Employers Mutual Casualty Company v. JVV Consulting-Construction Management, LLC et al
Filing
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RULING granting 45 Motion for Summary Judgment. Plaintiff shall submit a form of judgment. Signed by Judge James J. Brady on 3/26/2012. (CMM) Modified on 3/26/2012 to edit text. (CMM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EMPLOYERS MUTUAL CASUALTY
COMPANY
CIVIL ACTION
VERSUS
NO. 11-79-JJB
JVV CONSULTING-CONSTRUCTION
MANAGEMENT, L.L.C.,
ANTHONY R. VIGILOTTI, and
TENNILLE P. VIGILOTTI
RULING ON MOTION FOR SUMMARY JUDGMENT
Presently before the Court is a motion for summary judgment (Doc. 45)
filed by plaintiff Employers Mutual Casualty Company against defendants JVV
Consulting-Construction Management, L.L.C. (“JVV”), Anthony R. Vigilotti, and
Tennille P. Vigilotti (collectively, “defendants”). Oral argument is unnecessary.
The Court has jurisdiction over this case under 28 U.S.C. § 1332.
I.
This case involves claims for money damages based on an alleged breach
of an indemnity agreement by the defendants. Plaintiff is a surety company that
issues payment and performance bonds and stands as surety for select
contractors.
Defendants were contractors in the business of performing
construction work, and in order to submit bids and perform work on projects, they
were required to obtain payment and performance bonds.
Thus, defendants
requested that plaintiff execute certain payment and performance bonds as
surety with defendants as the principal.
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On or about June 26, 2009, plaintiff and defendants entered into a General
Agreement of Indemnity (“GAI”) in favor of plaintiff, and by executing the GAI, the
defendants agreed to be bound by its terms jointly and severally. (Indemnity
Agreement, Doc. 45-3).
The relevant provisions of the GAI states that the
defendants:
shall exonerate, indemnify, and keep indemnified
[plaintiff] from and against any and all liability for losses
and/or expenses of whatsoever kind or nature
(including, but not limited to interest, court costs and
counsel fees) and from and against any and all such
losses and/or expenses which [plaintiff] may sustain and
incur: (1) By reason of having executed or procured the
execution of the Bonds, (2) By reason of the failure of
the Principal or the Undersigned to perform or comply
with the covenants and conditions of this Agreement or
(3) In enforcing any of the covenants and conditions of
this Agreement.
(Id., p. 1, § 2). The GAI also states:
If for any reason [plaintiff] shall be required or at its
option and in its sole discretion shall deem it necessary
to set up a reserve in any amount … the [defendants],
within 10 calendar days after mailing by [plaintiff] of
written demand by registered or certified mail shall
deposit with [plaintiff], cash or collateral in the amount of
such reserve and every increase thereof, to be held by
[plaintiff] as collateral with the right to use any such
funds or any part thereof, at any time, without notice to
the [defendants] in payment or compromise of any
judgment, claim, liability, loss, damage, attorneys’ fees,
engineers’ fees, investigative charges and other
disbursements and/or expenses in connection with said
Bond or Bonds or in anticipation of loss thereunder.
(Id., p. 3, § 11).
2
Defendant subsequently obtained contracts for several construction
projects, including: 1) Plaquemine High School New Field House; 2) Plaquemine
High School Administration and Gym Renovations; 3) Zachary High School New
Drives and Parking; 4) Gray’s Creek Elementary Multi-Purpose Building; 5) New
Fire Station No. 10; and 6) The LTC-Ascension Campus Project. (Statement of
Uncontested Facts, Doc. 45-18, pp. 4-15). Plaintiff alleges that it had to satisfy
payment and performance bond claims for several reasons, including, but not
limited to, termination of defendant from projects by its clients. (Id.).
Defendants Anthony Vigilotti and Tennille Vigilotti provided plaintiff with a
document entitled “Confidential Personal Financial Statement,” making certain
representations concerning the Vigilottis’ personal financial conditions in order to
induce plaintiff to execute payment and performance bonds on defendants’
behalf. (Confidential Personal Financial Statement, Doc. 45-4).
The single
largest asset was real estate valued at $320,000.00, which Anthony Vigilotti and
Tennille Vigilotti claimed to own. However, this property was actually owned by
Ralph Vigilotti, defendant Anthony Vigilotti’s father. (Act of Sale, Docs. 45-12 and
45-13).
Plaintiff alleges that it relied on the Vigilottis’ misrepresentations in
deciding to execute bonds on behalf of JVV. (Statement of Uncontested Facts,
Doc. 45-18, at 6).
On September 19, 2011, defendants’ counsel in this case withdrew and
defendants have not added substitute counsel. (Doc. 28).
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Plaintiff has moved for summary judgment (Doc. 45), arguing that the
defendants have failed to perform their obligations under the indemnity
agreement and plaintiff is entitled to judgment on the following:
1) In the amount of $1,820,338.39 against defendants, jointly, severally,
and in solido, representing plaintiff’s net losses and expenses incurred as
of December 13, 2011 by reason of having executed bonds on behalf of
JVV and in enforcing defendants’ obligations under the indemnity
agreement. (Affidavit, Doc. 45-2, p. 12).
2) Ordering defendants to specifically perform and satisfy their collateral
security obligation of $470,284.38 under the indemnity agreement.
(Indemnity Agreement, Doc. 45-3, § 11, p. 3).
3) Finding that plaintiff’s losses were the result of its reasonable reliance
on the materially false, written representations made by defendants
Anthony Vigilotti and Tennille Vigilotti concerning their financial condition.
(Statement of Uncontested Facts, Doc. 45-18 at 6).
4) Reserving plaintiff’s right to seek all additional losses and expenses,
including but not limited to all costs, consultants’ fees, and attorneys’ fees,
incurred by plaintiff by reason of having executed bonds on behalf of JVV
and in enforcing defendants’ obligations under the indemnity agreement.
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II.
Summary judgment is appropriate when “the movant shows that there is
no genuine dispute as to any material fact.” Fed. Rule Civ. P. 56(a). The party
seeking summary judgment carries the burden of demonstrating that there is an
absence of evidence to support the non-moving party’s case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). When the burden at trial rests on the nonmoving party, the moving party need only demonstrate that the record lacks
sufficient evidentiary support for the non-moving party’s case. Id. The moving
party may do this by showing that the evidence is insufficient to prove the
existence of one or more essential elements of the non-moving party’s case. Id.
A party must support its summary judgment position by “citing to particular parts
of materials in the record” or “showing that the materials cited do not establish
the absence or presence of a genuine dispute.” Fed. Rule Civ. P. 56(c)(1).
Although the Court considers evidence in a light most favorable to the nonmoving party, the non-moving party must show that there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Conclusory
allegations and unsubstantiated assertions will not satisfy the non-moving party’s
burden. Grimes v. Tex. Dep’t of Mental Health, 102 F.3d 137, 139-40 (5th Cir.
1996). Similarly, “[u]nsworn pleadings, memoranda or the like are not, of course,
competent summary judgment evidence.” Larry v. White, 929 F.2d 206, 211 n.12
(5th Cir. 1991), cert. denied, 507 U.S. 1051. If, once the non-moving party has
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been given the opportunity to raise a genuine fact issue, no reasonable juror
could find for the non-moving party, summary judgment will be granted for the
moving party. Celotex, 477 U.S. at 322.
III.
Local Rule 11.1 states that “[e]ach attorney and pro se litigant has a
continuing obligation to apprize [sic] court of any address change.” 1 Because the
defendants have failed to uphold this obligation to this Court, notices to the
defendants on motion for summary judgment that were mailed informing them of
the January 30, 2012 deadline for the opposition were returned as undeliverable.
(See Docs. 47-49). The Court therefore treats this motion as unopposed and
resorts to the evidence furnished by plaintiff to determine whether those
undisputed facts entitle it to judgment as a matter of law.
As stated in the indemnity agreement, (Doc. 45-3, p. 1, § 2), an itemized
statement by the plaintiff shall be prima facie evidence of the liabilities owed by
defendants. As there is no rebuttal, the court proceeds with the facts asserted in
the affidavit submitted by Linda Hoffmann and plaintiff’s statement of undisputed
facts as conclusive. (See Hoffman Affidavit, Doc. 45-2; Statement of Undisputed
Facts, Doc. 45-18). Therefore, the net losses and expenses, as itemized by
plaintiff, incurred because of the execution of the performance bonds totals
$1,820,338.39, including $429,860.40 in costs, attorneys’ fees, and consultants’
1
Modern dictionaries show this spelling to be an obsolete form of “appraise.” The world should be
“apprise.”
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fees less the $409,353.30 recovered from available contract balances. (See,
e.g., Doc. 45-18, ¶¶ 64, 67).
Local Rule 56.2 states that “[a]ll material facts set forth in the statement [of
undisputed facts] will be deemed admitted, for purposes of the motion, unless
controverted as required by this rule.” Like the Hoffman affidavit, (Doc. 45-2),
plaintiff submitted its statement of undisputed facts which contains the itemization
and documentation necessary to show entitlement to relief. (See Doc. 45-18).
Defendants filed no opposition to plaintiff’s motion for summary judgment and
have offered no evidence establishing the presence of a genuine dispute by the
January 30, 2012, deadline set forth by this Court. (Order, Doc. 46). Therefore,
the unambiguous terms of the indemnity agreement, coupled with the submitted
proof of sums owed, entitles plaintiff to a judgment in the amount of
$1,820,338.39.
Moreover, under the indemnity agreement, plaintiff had a right to demand
defendants deposit a reserve amount to cover amounts determined by plaintiff in
its sole discretion necessary to cover any judgment, claim, loss, or other fee
sustained by plaintiff in the performance of the bonds. (Doc. 45-3, p. 3, § 11).
The cash or collateral demanded by plaintiff in the amount of $470,284.38 was
not posted within the 10 days required by the agreement. Under the provisions
of La. C.C. arts. 3053-54, surety companies have the right to sue 10 days after a
principal’s failure to perform an act within the scope of the suretyship that is
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currently due and owing. Under the provision of La. C.C. art. 1986, plaintiff is
entitled to specific performance.
Thus, defendants owe plaintiff specific
performance to tender cash or collateral security valued at $470,284.38.
These losses resulted from the false written representations defendants
made to plaintiff regarding their financial condition.
Defendants falsified the
amount of collateral security they owed, which fraudulently induced plaintiff to
execute as surety the construction bonds for which they have been forced to pay.
(Compare Doc. 45-4 (showing the Vigilottis owned $320,000 in real estate) with
Docs. 45-12 and 45-13 (showing Ralph Vigilotti, defendant Anthony Vigilotti’s
father, actually owned and subsequently transferred the real estate in question)).
Finally, because plaintiff is entitled to summary judgment and its expenses
and losses may yet be ongoing, plaintiff shall be permitted to seek additional
losses and expenses incurred as a result of executing the bonds, performing its
obligations thereunder, and enforcing the terms of the indemnity agreement
against defendants.
Thus, because (1) plaintiff has introduced competent, unrebutted summary
judgment evidence showing undisputed facts which entitle it to judgment as a
matter of law, and (2) defendants failed to apprise the Court of any address
change, resulting in their conscious non-opposition to this motion, the Court
concludes that plaintiff’s motion for summary judgment should be granted.
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IV. Conclusion; Order
Accordingly, it is ORDERED plaintiff’s unopposed motion for summary
judgment (Doc. 45) is hereby GRANTED in full.
Plaintiff shall submit a form of judgment.
Signed in Baton Rouge, Louisiana, on March 26, 2012.
JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
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