Branch Banking and Trust Company v. Crystal Centre, LLC et al

Filing 44

ORDER: Plaintiff's Motion for Final Summary Judgment against Defendant Oswald P. Carrerou 40 and Plaintiff's Renewed Motion for Default Final Judgment against Defendant Crystal Centre, LLC 41 are granted as explained herein. The C lerk of Court is directed to enter Final Judgment in Plaintiff's favor and against Defendants Crystal Centre, LLC and Oswald P. Carrerou, jointly, and severally, in the amount of $927,149.53, all of which shall bear interest at the per annu m rate specified by 28 U.S.C. § 1961, and for all of which let execution issue forthwith. The Clerk of Court is directed to close this case and terminate any pending motions as moot. Any motion for attorney's fees and costs shall be filed within fourteen (14) days of this Order. Signed by Judge James S. Moody, Jr on 8/3/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRANCH BANKING AND TRUST
COMPANY, a North Carolina banking
corporation, as successor-in-interest to
Colonial Bank by asset acquisition
from the FDIC as Receiver for Colonial
Bank, successor by merger to Citrus and
Chemical Bank,
Plaintiff,
v.

Case No. 8:15-CV-1462-T-30EAJ

CRYSTAL CENTRE, LLC, a Florida limited
liability company, OSWALD P. CARREROU,
individually, and DONALD K. STEPHENS,
individually,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Final Summary
Judgment against Defendant Oswald P. Carrerou (Dkt. 40) and Plaintiff’s Renewed Motion
for Default Final Judgment against Defendant Crystal Centre, LLC (Dkt. 41). Upon
consideration of the motions, the record evidence, and being otherwise advised in the
premises, the Court grants the motions.
BACKGROUND
Plaintiff’s complaint seeks to enforce a commercial promissory note (the “Note”)
executed by Defendant Crystal Centre, LLC, and the related personal guaranty agreements
executed by Defendant Oswald P. Carrerou and Defendant Donald K. Stephens.

On November 12, 2015, a clerk’s default was entered against Defendant Crystal
Centre, LLC for its failure to retain counsel (Dkt. 21). Subsequently, Plaintiff moved for a
default final judgment against Crystal Centre, which this Court denied without prejudice to
renew the motion at a later date when the Court had reached the merits of the claims against
Defendants Carrerou and Stephens, who, at that time, were still defending the lawsuit (Dkt.
25). Subsequently, Stephens agreed to the entry of a final judgment against him (Dkt. 33).
Plaintiff now moves to renew its motion for default judgment against Crystal Centre
and for final summary judgment against Carrerou, who has been proceeding in this case pro
se. Notably, Carrerou failed to respond to the motion for final summary judgment, even after
the Court entered an Order to Show Cause regarding this failure, and provided him with
additional time to respond (Dkt. 43). Accordingly, both motions are ripe at this time. Upon
review of the record, the Court concludes that Plaintiff is entitled to a final judgment against
Crystal Centre and Carrerou.
DISCUSSION
I.

Plaintiff’s Motion for Final Default Judgment against Crystal Centre
Under Federal Rule of Civil Procedure 55(b)(2), a court may enter a final judgment

of default against a party who has failed to plead in response to a complaint. A default
judgment may be entered “against a defendant who never appears or answers a complaint,
for in such circumstances, the case never has been placed at issue.” Solaroll Shade & Shutter
Corp. v. Bio-Energy Sys., 803 F.2d 1130, 1134 (11th Cir. 1986). All well-pleaded allegations
of fact are deemed admitted upon entry of default; however, before entering a default
judgment, a court must confirm that it has jurisdiction over the claims and that the complaint
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adequately states a claim for which relief may be granted. See Nishimatsu Const. Co. v.
Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975);1 see also GMAC Commercial
Mortg. Corp. v. Maitland Hotel Assocs., 218 F. Supp. 2d 1355, 1359 (M.D. Fla. 2002).
The Court concludes that it has diversity jurisdiction over Plaintiff’s claims. Also, the
complaint’s allegations are sufficient to state a claim for breach of contract and a claim to reestablish the Note. Specifically, the complaint attaches a copy of the Note that Crystal
Centre executed and alleges that Crystal Centre defaulted under the Note through its failure
to pay all sums due under the Note at maturity. Plaintiff also alleges that, although the
original Note is not in its possession, it is entitled to enforce the Note, the whereabouts of the
Note cannot be determined, the loss of the Note was not due to any lawful seizure or transfer
by Plaintiff, and Defendants are adequately protected against the loss because no other
person is entitled to enforce the Note. Finally, the Affidavit of David S. Pratt clearly
establish Plaintiff’s damages, which negates any need for an evidentiary hearing.
Accordingly, the Court grants Plaintiff’s motion for default final judgment against Crystal
Centre in the amount of $923,793.26, through June 27, 2016, in addition to per diem interest
of $90.71 accruing after June 27, 2016, until the entry of final judgment.
II.

Plaintiff’s Motion for Summary Judgment against Carrerou
A district court cannot base the entry of summary judgment on the mere fact that a

motion for summary judgment was unopposed, but, rather, must consider the merits of the

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh
Circuit adopted as binding precedent all the decisions of the former United States Court of Appeals
for the Fifth Circuit handed down prior to the close of business on September 30, 1981.
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motion. Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir.
1988) (per curiam). The district court need not sua sponte review all of the evidentiary
materials on file at the time the motion is granted, but must ensure that the motion itself is
supported by evidentiary materials. Id. In addition, so that there can be an effective review
of the case on appeal, the district court’s order granting summary judgment must “indicate
that the merits of the motion were addressed.” Dunlap, 858 F.2d at 632.
Based on the merits of Plaintiff’s motion against Carrerou, summary judgment is
appropriate in Plaintiff’s favor. The record is undisputed that Crystal Centre defaulted under
the Note, is entitled to enforce the Note, and is entitled to enforce the Guaranty Carrerou
executed in connection with the related loan documents. The record is undisputed that
Carrerou breached the Guaranty. And, as explained further above, the record is undisputed
that Plaintiff has proven its entitlement to re-establish the Note. The Affidavit of David S.
Pratt clearly establishes Plaintiff’s damages against Carrerou. Accordingly, the Court grants
Plaintiff’s motion for summary judgment against Carrerou and awards damages in the
amount of $923,793.26, through June 27, 2016, in addition to per diem interest of $90.71
accruing after June 27, 2016, until the entry of final judgment.2
It is therefore ORDERED AND ADJUDGED that:
1.

Plaintiff’s Motion for Final Summary Judgment against Defendant Oswald P.
Carrerou (Dkt. 40) and Plaintiff’s Renewed Motion for Default Final Judgment

2

Notably, Carrerou withdrew his affirmative defenses on May 9, 2016 (Dkt. 35).
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against Defendant Crystal Centre, LLC (Dkt. 41) are granted as explained
herein.
2.

The Clerk of Court is directed to enter Final Judgment in Plaintiff’s favor and
against Defendants Crystal Centre, LLC and Oswald P. Carrerou, jointly, and
severally, in the amount of $927,149.53,3 all of which shall bear interest at the
per annum rate specified by 28 U.S.C. § 1961, and for all of which let
execution issue forthwith.

3.

The Clerk of Court is directed to close this case and terminate any pending
motions as moot.

4.

Any motion for attorney’s fees and costs shall be filed within fourteen (14)
days of this Order.

DONE and ORDERED in Tampa, Florida on August 3, 2016.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2015\15-cv-1462.mts-FJ-40and41.wpd

3

This amount includes per diem interest in the amount of $90.71, from June 28, 2016,
through, and including, August 3, 2016.
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