People's United Equipment Finance Corp. v. Southeastern Concrete Pumping, Inc. et al

Filing 28

MEMORANDUM AND ORDER GRANTED 26 MOTION for Summary Judgment.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

PEOPLE’S UNITED EQUIPMENT
FINANCE CORP.,
Plaintiff,
v.
SOUTHEASTERN CONCRETE
PUMPING, INC., et al.,
Defendants.

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CIVIL ACTION NO. H-10-4278

MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment (“Motion”)
[Doc. # 26] filed by Plaintiff People’s United Equipment Finance Corp. (“People’s
United”). By Order [Doc. # 27] entered November 3, 2011, the Court directed
Defendants Southeastern Concrete Pumping, Inc. (“Southeastern”), Stankunas
Concrete, Inc. (“Concrete”) and Frank Stankunas to file any opposition to the Motion
by November 14, 2011.1
Defendants neither filed a Response nor requested additional time to do so.
Pursuant to the Local Rules of the United States District Court for the Southern

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Defendant Cade Reaves filed a Suggestion of Bankruptcy [Doc. # 15] on February 25,
2011. Consequently, all proceedings as against him are stayed pursuant to 11 U.S.C.
§ 362(a)(1).

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District of Texas, failure to respond to a motion is taken as a representation of no
opposition. S.D. TEX. R. 7.3, 7.4. However, when a party fails to respond to a
dispositive motion, the Court must nevertheless consider the merits of the motion.
Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1022-23 (5th Cir. 1995). Having
reviewed the full record and applied governing legal authorities, the Court grants the
Motion for Summary Judgment.
I.

UNCONTROVERTED FACTS
Plaintiff provided financing for Southeastern to purchase equipment.

Specifically, in September 2008, Southeastern executed a Promissory Note in the
amount of $528,096.00, to be paid in monthly installments until paid in full. When
the terms of the original Promissory Note were modified and extended at
Southeastern’s request, Southeastern executed a blanket Security Agreement granting
Plaintiff a security interest in all Southeastern’s assets.
Concrete and Stankunas each executed a Guaranty in connection with the
Promissory Note. Each Guaranty provided that the named Guarantor agreed to be
directly and unconditionally liable to Plaintiff for the amounts due under the
Promissory Note, and provided that the Guarantor’s liability was without prior resort
to any other right, remedy, or security.

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Southeastern, Concrete and Stankunas have failed to make the installment
payments as they became due. After giving proper notice, Plaintiff accelerated the
obligations under the Promissory Note and sold certain pieces of equipment at public
sale for $200,000.00. After providing a credit for the sales proceeds, less reasonable
expenses of the sale, there remains an unpaid balance under the Promissory Note of
$250,001.62, plus interest and attorneys’ fees. Pre-judgment interest is accruing at the
contractual rate of 18% per annum.
II.

STANDARD FOR MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v.
ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment “should
be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex

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Corp., 477 U.S. at 322–23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.
2008).
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).
The moving party, however, need not negate the elements of the non-movant’s case.
See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving
party may meet its burden by pointing out “‘the absence of evidence supporting the
nonmoving party’s case.’” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th
Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.
1992)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001)
(internal citation omitted). “An issue is material if its resolution could affect the
outcome of the action. A dispute as to a material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” DIRECT
TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).

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In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The non-movant’s burden is not
met by mere reliance on the allegations or denials in the non-movant’s pleadings. See
Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002).
Instead, the nonmoving party must present specific facts which show “the existence
of a genuine issue concerning every essential component of its case.” Am. Eagle
Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir. 2003) (citation
and internal quotation marks omitted). In the absence of any proof, the court will not
assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d
at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
III.

ANALYSIS
In this case, Plaintiff has presented evidence that Southeastern is in default on

the Promissory Note and that Concrete and Stankunas are in default on their respective
Guaranties. Plaintiff has presented evidence that it gave proper notice prior to

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acceleration of the amount due under the Promissory Note and prior to the public sale
of equipment. Plaintiff has presented evidence that the proceeds of the public sale
were $200,000.00, which is the fair market value of the equipment sold. Plaintiff has
presented evidence that the reasonable expenses it incurred in connection with the
public sale were $13,089.14. Plaintiff’s evidence shows that the remaining balance
on the Promissory Note is $250,001.62, plus pre-judgment interest at the contractual
rate of 18% per annum. Defendants have presented no evidence to the contrary.
IV.

CONCLUSION AND ORDER
Based on the foregoing, the Court concludes that Defendants have failed to

present evidence that raises a genuine issue of material fact, therefore, Plaintiff is
entitled to summary judgment. As a result, it is hereby
ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. # 26] is
GRANTED. The Court will issue a separate final judgment.
SIGNED at Houston, Texas, this 23rd day of November, 2011.

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