HANCOCK BANK v. BOYD et al
ORDER granting 45 Motion for Judgment as a Matter of Law. 1. The Motion for Summary Judgment 45 is GRANTED. 2. Plaintiff shall move the court to correct the Defendant's name, if appropriate. 3. Plaintiff shall submit the current balance of the loan with principal, accrued interest, and daily accrued interest rate. The clerk will then enter judgment in favor of Plaintiff in that amount. 4. The case shall remain open pending resolution of these matters. Signed by JUDGE RICHARD SMOAK on 10/25/2011. (jcw)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
HANCOCK BANK, a Mississippi
CASE NO. 5:11-cv-132/RS-EMT
JAMES A. BOYD, JR. and
CECELIA R. BOYD,
Before me are Plaintiff‟s Motion for Summary Final Judgment (Doc. 45),
Defendants‟ Response in Opposition (Doc. 54), and Supplemental Response (Doc. 64).
Standard of Review
Summary judgment is appropriate when “there is no genuine issue as to any
material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56 (c). In other words, the basic issue before the court is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of
showing the absence of a genuine issue as to any material fact, and in deciding whether
the movant has met this burden, the court must view the movant‟s evidence and all
factual inferences arising from it in the light most favorable to the nonmoving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences
arising from undisputed facts, then a court should deny summary judgment. Miranda v. B
& B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile
Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However,
a mere „scintilla‟ of evidence supporting the nonmoving party's position will not suffice;
there must be enough of a showing that the jury could reasonably find for that party.
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at
It is undisputed that Defendants and Plaintiffs entered into several loan agreements
in which Defendants borrowed $925,265.00. (Doc. 29, ¶7). Defendants admit that they
borrowed the funds under the original instrument, executed a first renewed promissory
note on September 10, 2009, a second renewed promissory note on September 3, 2009,
and a short term maturity extension agreement on September 17, 2010. Id. ¶¶7-12.
Defendants contend that each of these agreements “is the best evidence of its contents.”
Defendants have failed to perform their obligations under the most recent
agreement, the short term maturity extension agreement (“Extension Agreement”). (Doc.
47, Attach. 3, Exhibit 6). The Extension Agreement matured on March 31, 2011, without
Defendants repaying the outstanding principal and accrued interest. (See Doc. 47).
Defendants contend that summary judgment is inappropriate because Plaintiff has
“offered nothing more than inadmissible hearsay to prove its allegations.” (Doc. 64, p. 3).
The loan agreements are clear, and they are admissible. Plaintiff‟s vice president is
qualified to make statements regarding the payment history and default status of the loan.
This information is likewise admissible.
Defendants also contend that the named defendant Cecelia R. Boyd is an improper
party. The loan documents refer to Cecilia R. Boyd. The named defendant reflects a clear
misspelling and can be corrected upon motion. Ms. Boyd, regardless of the spelling of
her first name, has appeared. Her affidavit indicates that the correct spelling is Cecilia,
and this spelling matches the loan documents. (See Doc. 63).
Unless Defendants have valid defenses, summary judgment is appropriate because
there are no genuine issues concerning the formation of the loan agreement, and the
default under the agreement‟s terms.
The first affirmative defenses, waiver and estoppel, is meritless. Defendants claim
that Plaintiff made representations that they would make future renewals of the
promissory note. However, the terms of the Extension Agreement (Doc. 47, Attach. 3,
Exhibit 6) state the following: “You agree that we do not have any obligation to enter
into any subsequent agreements to further extend the Loan‟s maturity date or otherwise
modify, amend, renew or refinance the Loan.” Id. The terms could not be clearer. And,
the parole evidence rule precludes consideration of oral agreements which contradict the
terms of this valid contract. Solary v. Webster, 35 Fla. 363, 373 (Fla. 1895); Federal
Deposit Ins. Corp. v. Hemmerle, 592 So. 2d 1110, 1113-1114 (Fla. 4th DCA. 1991).
The second affirmative defense, commercial impracticability, is meritless. The
doctrine of commercial impracticability provides that “where, after a contract is made, a
party's performance is made impracticable without his fault by the occurrence of an event
the non-occurrence of which was a basic assumption on which the contract was made, his
duty to render that performance is discharged, unless the language or the circumstances
indicate the contrary.” Seitz v. Mark-O-Lite Sign Contractors, 210 N.J. Super. 646, 65,
510 A.2d 319, 322 (Law Div. 1986) (citing RESTAT. 2D OF CONTRACTS, § 261). Quite
simply, the BP oil spill, and knowledge by Plaintiff that Defendants would have difficulty
repaying the debt do not excuse nonperformance.
The third and ninth affirmative defenses, no meeting of the minds, are without
merit. The agreement speaks for itself. “In an action based upon a contract, the admitted
contract . . . so often speaks so conclusively on the material facts as to leave no doubt that
there are no genuine issues of any material fact to be determined.” Rivaux v. Florida
Power & Light Co., 78 So. 2d 714, 716 (Fla. 1955). Here, the Extension Agreement is
unambiguous and any terms which do not appear in the agreement concerning other
contingencies are not to be considered.
The fourth affirmative defense, mutual departure, is without merit. Mutual
departure is not a recognized defense in Florida. In addition, the terms of the Extension
Agreement (Doc. 47, Attach. 3, Exhibit 6) undermine Defendants‟ allegation that a
course of dealings between the parties guaranteed further loan extensions. “You agree
that we do not have any obligation to enter into any subsequent agreements to further
extend the Loan‟s maturity date or otherwise modify, amend, renew or refinance the
Loan.” Id. The terms could not be clearer.
The fifth affirmative defense, duress and coercion, is also meritless. Even if true,
a threat to call a promissory note to induce the execution of the Amended Loan
Agreement is not actionable. The right to call a promissory note is governed by the terms
of that agreement. And, exercising that right is not a form of duress. See AM JUR 2D
Duress and Undue Influence § 6 (“A claim of duress cannot be based upon a party's
threat to take an action that is within that party's legal right to take.”).
The sixth, seventh, eighth affirmative defenses which ask for recission are without
moment. “It is undisputed that the absence of a remedy at law is a required element of the
rescission action.” Anchor Bank, S.S.B. v. Conrardy, 763 So. 2d 360, 361 (Fla. 4th DCA
1998). See also Crown Ice Machine Leasing Co. v. Sam Senter Farms, Inc., 174 So. 2d
614, 617 (Fla. 2d DCA 1965). Because this case is entirely about money, damages are the
IT IS ORDERED:
1. The Motion for Summary Judgment (Doc. 45) is GRANTED.
2. Plaintiff shall move the court to correct the Defendant‟s name, if appropriate.
3. Plaintiff shall submit the current balance of the loan with principal, accrued
interest, and daily accrued interest rate. The clerk will then enter judgment in
favor of Plaintiff in that amount.
4. The case shall remain open pending resolution of these matters.
ORDERED on October 25, 2011.
/S/ Richard Smoak
UNITED STATES DISTRICT JUDGE
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