Shoney's North America, LLC v. Smith & Thaxton, Inc. et al

Filing 105

ORDER: The Court hereby REJECTS the magistrate judge's Report & Recommendation (ECF No. 68 ) and GRANTS the renewed motion for summary judgment (ECF No. 41 ). Defendants Andre Smith and Ballard Thaxton's estate are jointly and several ly liable on the default judgment previously entered against Smith & Thaxton, Inc., in the amount of $59,430.27, plus prejudgment interest in the amount of $168.20 and post-judgment interest at the statutory rate, dating from May 2, 2014 . All other pending motions are DENIED as moot. The Clerk is DIRECTED to enter Judgment in a separate document in accordance with Rule 58 of the Federal Rules of Civil Procedure. It is SO ORDERED. Signed by Chief Judge Kevin H. Sharp on 12/29/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
SHONEY’S NORTH AMERICA, LLC,
Plaintiff,
v.
SMITH & THAXTON, INC., BALLARD G.
THAXTON and ANDRE SMITH,
Defendants.

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Case No. 3:12-cv-00625
Chief Judge Sharp
Magistrate Judge Knowles

ORDER
Before the Court are the plaintiff’s objections (ECF No. 71) to the Report and Recommendation
(“R&R”) (ECF No. 68) filed by Magistrate Judge Cliff Knowles, recommending that the plaintiff’s Renewed
Motion for Summary Judgment (ECF No. 41) be denied. The plaintiff, Shoney’s North America, LLC
(“SNA”) has lodged proper objections to each of the magistrate judge’s findings and proposed ruling, and
the Court has therefore conducted a de novo review of the record and the plaintiff’s motion. For the
reasons set forth herein, the Court finds that the plaintiff is entitled to summary judgment in its favor as to
the claims at issue in the motion for summary judgment.
To be clear, the motion for summary judgment is actually a motion for partial summary judgment,
because it does not address the plaintiff’s federal claims for trademark and service mark violations. The
Court deems these federal claims to have been abandoned by the plaintiff. Such claims are therefore
DISMISSED WITH PREJUDICE.
The plaintiff moves for summary judgment only on its breach-of-contract claims, over which the
Court has supplemental jurisdiction. Default judgment has already been entered against defendant Smith
& Thaxton, Inc. in the amount of $59,430.27, plus prejudgment interest in the amount of $168.20 and
post-judgment interest at the statutory rate. (ECF No. 93.) Thus, the only issue before the Court is the
liability of the individual defendants, Andre Smith and Ballard Thaxton (now substituted as a defendant by
his wife, Brenda K. Thaxton, presumably representing Mr. Thaxton’s estate) under the Guaranty
Agreements for the obligations of Smith & Thaxton, Inc. As set forth in the accompanying Memorandum

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Opinion, the Court finds that SNA has the right to enforce the Guaranty Agreements, and that Messrs.
Smith and Thaxton (or his estate) are individually liable, jointly and severally, to SNA under the Guaranty
Agreements for the damages already assessed against Smith & Thaxton, Inc. The Court has further
concluded that the liquidated-damages provision in the License Agreements is enforceable and that SNA
is therefore entitled to the full amount of damages sought in its complaint and the renewed motion for
summary judgment.
The Court hereby REJECTS the magistrate judge’s Report & Recommendation (ECF No. 68) and
GRANTS the renewed motion for summary judgment (ECF No. 41). Defendants Andre Smith and Ballard
Thaxton’s estate are jointly and severally liable on the default judgment previously entered against Smith
& Thaxton, Inc., in the amount of $59,430.27, plus prejudgment interest in the amount of $168.20 and
post-judgment interest at the statutory rate, dating from May 2, 2014.
All other pending motions are DENIED as moot.
The Clerk is DIRECTED to enter Judgment in a separate document in accordance with Rule 58 of
the Federal Rules of Civil Procedure.
It is SO ORDERED.

KEVIN H. SHARP
Chief Judge
United States District Court