Mississippi Property Investments, Inc. v. Donald

Filing 38

ORDER granting 35 Motion for Summary Judgment. Plaintiff is entitled to a judgment on all claims against the defendant in the amount of $325,818.49. Additionally, under the terms of the subject note, the plaintiff is entitled to 9% annua l interest until the judgment is satisfied. Plaintiff shall have seven business (7) days from the date of this order to file briefing on the amount of attorney's fees actually incurred with respect to this litigation, and Defendant shall have seven business (7) days thereafter to file any response or objection thereto. Signed by Magistrate Judge Jane M. Virden on 08/07/2015. (lec)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
MISSISSIPPI PROPERTY INVESTMENTS, INC.
VS.

PLAINTIFF

CIVIL ACTION NO.: 4:13-cv-253-MPM-JMV

STANLEY E. DONALD

DEFENDANT
ORDER

This matter is before the court on Plaintiff’s Motion for Summary Judgment [35]. Upon
due consideration of the motion and authorities cited and the fact that Defendant presents no
opposition to the motion, the court finds it is well taken and should be granted as detailed below.
Facts
This lawsuit is for nonpayment of a $225,000.00 promissory note (“the subject note”),
evidencing a loan by Plaintiff, Mississippi Property Investments, Inc., to Debtor, Locomotive
Sales and Leasing Corporation. See Exh. 1 to Am. Compl. [3-1]. Defendant, Stanley E. Donald,
and William H. Wright signed the subject note as joint and several guarantors. See Def.’s
Answer to Am. Compl. [5] at 2. Each obligor was jointly and severally liable to the plaintiff for
the full amount of the note under its terms. See Exh. 1 to Am. Compl. [3-1].
The purpose of the $225,000.00 loan secured by the subject note was to permit Debtor to
make partial payment on an approximately $1,500,000.00 loan owed to a third party. See Exh. 3
to Pl’s Mot. for Summ. J. [35-3] at 4. At the time Defendant Donald and Wright signed the
subject note, Locomotive Sales and Leasing Corporation had already defaulted on the
$1,500,000.00 loan. Id. at 3.

To date, the Debtor, Defendant Donald, nor Wright has paid any money to Plaintiff on
the subject note. Id. at 6. There is currently a balance of principal and interest due on the note of
$325,818.49.1
On or about April 6, 2015, the parties announced they had reached a settlement agreement
in the instant action. But after the passage of some time and the settlement agreement having not
been consummated, the plaintiff filed a motion to enforce the settlement or, in the alternative, to
amend the scheduling order on June 8, 2015. See Mot. to Enforce Settlement, or in the
Alternative, to Am. the Scheduling Order [30]. The court ultimately amended this matter’s case
management order, set a new dispositive motions deadline, and reset the trial date. Now,
Plaintiff has filed a motion for summary judgment to which Defendant presents no opposition.
Plaintiff asserts, to date, Defendant has failed to make payment under the note and it is entitled to
judgment on the subject note in its favor as a matter of law.
Standard of Review
Summary judgment is warranted under Rule 56(c) when evidence reveals no genuine
dispute regarding any material fact, and that the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial
responsibility of informing the district court of the basis for its motion and identifying those
portions of the record it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets its burden, the nonmoving party must “come forward with specific facts showing a genuine factual issue for trial.”
Harris ex rel. Harris v. Pontotoc Cty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011). Summary
judgment is mandated if the nonmovant fails to make a showing sufficient to establish the
1

$325,818.49 = $225,000 (Principal) + $91,818.49 (9% Interest on Principal from January 1, 2011 to July 15, 2015)
+ $9,000.00 (4% Late Payment Charge after Fifteen Days of Non-Payment). See Exh. 4 to Mot. for Summ. J. [35-4]
for a detailed computation of damages.

existence of an element essential to his case on which he bears the burden of proof at trial.
Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S. Ct. 1689, 123 L.Ed. 2d 317 (1993); Cutrera v.
Board of Supervisors of La. State Univ., 429 F.3d 108, 110 (5th Cir. 2005); Patrick v. Ridge, 394
F.3d 311, 315 (5th Cir. 2004). “In such a situation, there can be ‘no genuine issue as to any
material fact,’ since a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S.
at 322-23.
Law and Analysis
Where the guarantors’ obligation is joint and several, either of them is liable for the
whole amount; upon default, the obligee can sue any of the joint and several obligors separately
or all of them together at its option. See MISS. CODE ANN. § 85-5-3 (2014); Woods-Tucker
Leasing Corp. of Georgia v. Kellum, 641 F.2d 210, 216 (5th Cir. 1981) (applying substantive
Mississippi law); Hattiesburg Hardware. Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570
(Miss. 1917) (Suit may be brought against one or more persons who are jointly and severally
liable.); see also Johnny C. Parker, Joint and Several Liability in Contract, in MISSISSIPPI LAW
OF DAMAGES

§ 9:2 (3d ed. 2014); 67A C.J.S. Actions on Contract § 44 (2015). A plaintiff

asserting a breach of contract claim has the burden of proving “by a preponderance of the
evidence: 1. the existence of a valid and binding contract; and 2. that the defendant has broken,
or breached it ....” Bus. Commc’ns, In. v. Banks, 90 So. 3d 1221, 1224-25 (Miss. 2012)2
Defendant Donald does not deny the authenticity of the subject note, that he signed it as a
co-obligor, or even that he is obligated for the full amount under the terms of the subject note.
Defendant is a Certified Public Accountant. He conceded at his deposition he was aware at the
2

The Court applies the substantive law of Mississippi because federal jurisdiction is founded on diversity of
citizenship and no party argues for the application of any other state's law. See Gladney v. Paul Revere Life Ins. Co.,
895 F.2d 238, 241 (5th Cir.1990).

time that he signed the subject note he was obligating himself to being severally and individually
liable for the full amount of the note. See Exh. 3 to Pl’s Mot. for Summ. J. [35-3] at 6 (“Q: And
being an accountant, Mr. Donald, you understand that if you sign a note along with other people
that you can be called on to pay the entire amount of the note if there’s not some provision that
limits your exposure? A: I understand that.”). Additionally, to date, he has breached such
agreement and made no payments on the subject note. Id. (“Q: And to your knowledge, has
anything been paid on the obligation? … A: Not that I’m aware of.”). Moreover, Defendant
presents no objection to the contentions made in Plaintiff’s Motion for Summary Judgment.
Because there is no issue – let alone a material issue – as to the existence and breach of the
subject note, Plaintiff is entitled to judgment as a matter of law.
Conclusion
For the foregoing reasons and the fact the motion is unopposed, summary judgment in
this case is appropriate. IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for
Summary Judgment is hereby GRANTED. Plaintiff is entitled to a judgment on all claims
against the defendant in the amount of $325,818.49. Additionally, under the terms of the subject
note, the plaintiff is entitled to 9% annual interest until the judgment is satisfied. Plaintiff shall
have seven business (7) days from the date of this order to file briefing on the amount of
attorney’s fees actually incurred with respect to this litigation, and defendant shall have seven
business (7) days thereafter to file any response or objection thereto.
SO ORDERED, this the 7th day of August, 2015.
/s/ Jane M. Virden
__
UNITED STATES MAGISTRATE JUDGE