Johnson v. Sector 10 et al

Filing 136

MEMORANDUM DECISION granting in part and denying in part 124 Motion for Partial Summary Judgment ; 5 Day Jury Trial set for 11/18/2013 08:30 AM in Room 150 (Clerks Office) before Judge Dale A. Kimball. Signed by Judge Dale A. Kimball on 07/03/2013. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

EDWARD JOHNSON,
Plaintiff,
vs.
SECTOR 10, INC., a corporation,
SECTOR 10 HOLDINGS, an unknown
business entity; PERICLES DEAVILA,
an individual, LARRY MADISON, and
individual,

MEMORANDUM DECISION
AND ORDER

Case No. 2:10CV92 DAK

Defendants.

This matter is before the court on Plaintiff’s Motion for Partial Summary Judgment.
A hearing on the motions was held on June 19, 2013. At the hearing, Plaintiff Edward Johnson
was represented by Michael L. Deamer and Defendants Sector 10, Inc., and Sector 10 Holdings,
Inc. (the “Sector 10 Defendants”) were represented by Donald L. Dalton. The court has carefully
considered the memoranda and other materials submitted by the parties. Since taking the matter
under advisement, the court has further considered the law and facts relating to this motion. Now
being fully advised, the court renders the following Memorandum Decision and Order.
Plaintiff has moved for partial summary judgment on his First Cause of Action for Breach
of the Loan Agreement. The Sector 10 Defendants oppose the motion, arguing that the
calculation of the amount owing is wrong and that their counterclaim damage request exceeds the
amount of Plaintiff’s contract claim and therefore “prevents” the entry of summary judgment.

Plaintiff has provided undisputed evidence that there was a written loan agreement for
$200,000, that he performed under the contract, that there was breach by Sector 10, Inc., and that
he suffered damages in the amount of $115,197.95 as of May 1, 2013, with monthly interest
accruing at $866.15 per month.1
While Defendants contend that the amount owed is $86,615 with accrued interest at six
percent–not 12% for all period after June 11, 2009, as claimed by Plaintiff–they have not
provided admissible evidence to create a disputed fact regarding the amount. The Affidavit of
Laurence Madison contains a self-serving statement that the parties agreed that the interest on the
remaining balance would be six percent and that “it was confirmed in emails between the
parties,” but the referenced emails were not provided.2 In addition, noticeably absent from Mr.
Madison’s affidavit is any explanation relating to his own contradictory deposition testimony or
the other evidence provided by Plaintiff, which includes Mr. Madison’s June 5, 2009 Letter to
Plaintiff offering the 12% interest amount and also the deposition testimony of Pericles DeAvila.3
Plaintiff, on the other hand, has provided evidence that in exchange for his willingness to extend
the loan repayment date, the interest would increase from 6% to 12% for the period after June 11,

1

Plaintiff moved for summary judgment against all Defendants, but there is no evidence
to support granting summary judgment against the Individual Defendants, Pericles DeAvila or
Larry Madison.
2

See Docket No. 127, Exhibit 1 at 2.

3

See Docket No. 124, Exhibit 3, Exhibit 5 at pp. 6-7 (deposition testimony of Pericles
DeAvila); and Exhibit 6 at pp. 2-3 (deposition testimony of Laurence Madison).
2

2009.4

Therefore, because the Sector 10 Defendants have not disputed that evidence with any

admissible evidence, the court grants Plaintiff’s motion for partial summary judgment on his
First Cause of Action.
Also, while Defendants may have asserted a counterclaim against Plaintiff, that does not
prevent entry of partial summary judgment on the breach of contract claim. Final judgment will
not be entered at this juncture, and thus, if Defendants were to prevail on their counterclaim at
trial for an amount in excess of contract damage amount found above, the final judgment will so
reflect.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial
Summary Judgment [Docket No. 124] is GRANTED in part and DENIED in part. The court
grants summary judgment on Plaintiff’s First Cause of Action (Breach of Contract) against
Sector 10, Inc., in the amount of $115,197.95 as of May 1, 2013, with monthly interest accruing
at $866.15 per month. Final judgment will not be entered at this time, as only one claim has
been resolved. A five-day jury trial is set for November 18, 2013 beginning at 8:30 a.m.
DATED this 3rd day of July, 2013.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

4

See Docket No. 124, Exhibit 1 at 3.
3