Ferguson Enterprises, LLC v. Wolfe Construction Company, Inc. et al
Filing
16
MEMORANDUM OPINION AND ORDER The 13 Motion for Summary Judgment is granted as to the joint and several liability of Wolfe Construction and Josh Wolfe for $76,367.12, reasonable attorneys' fees, the costs of bringing this action, and pre a nd post-judgment interest; counsel for Ferguson is directed to provide an affidavit and any other supporting materials documenting attorneys' fees and the costs of bringing this action, together with a calculation of pre-judgment interest by 7/2 2/2021; Wolfe Construction and Josh Wolfe may respond to Ferguson's filing by 7/29/2021; the pretrial conference is continued. Signed by Senior Judge John T. Copenhaver, Jr. on 7/8/2021. (cc: counsel of record; any unrepresented parties) (kew)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
FERGUSON ENTERPRISES, LLC,
Plaintiff,
v.
Civil Action No. 2:20-cv-00439
WOLFE CONSTRUCTION COMPANY, INC.;
and JOSH WOLFE,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff Ferguson Enterprises, LLC’s
(“Ferguson”) motion for summary judgment, filed April 26, 2021.
ECF No. 13.
I.
Background
On January 29, 2019, defendant Wolfe Construction
Company, Inc. (“Wolfe Construction”) executed a credit
application with Ferguson, which provided that: “This Agreement
along with the terms and conditions located at
https/www.ferguson.com/content/website-info/terms-of-sale on
[Ferguson’s] quotation, invoice or delivery ticket which are
incorporated by reference . . . represent the entire agreement
between the parties and apply to all transactions.”
13-2, at 4.
ECF No.
In the credit application, Wolfe Construction agreed
to “pay for material and services (‘Products’) Net 10th proximo,
unless on invoice otherwise . . . .”
Id.
Further, the credit
application provided that if Wolfe failed to make any payment
when due, its “entire account(s) with [Ferguson] shall become
immediately due and payable and [Ferguson] may suspend further
performance under any order with [Wolfe Construction].”
Id.
In
addition, the credit application stated that “[a]ll past due
amounts are subject to a service charge of 1.5% per month or up
to the maximum rate permitted by law.
If [Wolfe Construction]
is in default for non-payment, then in addition to other
remedies, [Wolfe Construction] agrees to reimburse [Ferguson]
all costs of collections including reasonable attorneys’ fees.”
Id.
Defendant Josh Wolfe, president of Wolfe Construction,
signed the credit application on Wolfe Construction’s behalf.
Id.
Josh Wolfe also signed the credit application as a personal
guarantor, agreeing that “[a]s consideration for [Ferguson]
extending credit to [Wolfe Construction], [Josh Wolfe], jointly
and severally hereby personally guarantee[s] the payment of any
obligation of [Wolfe Construction] to [Ferguson].”
Id.
In
doing so, Josh Wolfe acknowledged that he “agrees to pay
[Ferguson] on demand, without offset, any sum due to [Ferguson]
2
by [Wolfe Construction]” and that he “further agrees to pay all
costs of collection including reasonable attorney’s fees.”
Id.
According to the affidavit of “M. Spisak,” Ferguson’s
Regional Credit Manager, Ferguson “agreed to provide materials
and supplies to Wolfe Construction for use in the improvement of
certain real property” under the Agreement and did, in fact,
“provide[] all required materials and perform[] all requested
services in a good and workmanlike manner.”
3-4.
ECF No. 13-1, at ¶¶
Spisak affirms that “Wolfe Construction was appropriately
invoiced” and that the outstanding balances on such invoices
total $76,367.12.
Id. at ¶¶ 5-6.
Ferguson has produced a statement pertaining to Wolfe
Construction’s account, which documents invoices spanning from
June 24, 2019, through April 30, 2020.
ECF No. 13-3.
This
statement reflects that the outstanding balance on the invoices
is $76,367.12.
See id.
In their answer to the complaint, the defendants admit
the following: Wolfe Construction entered into the credit
application; the credit application “along with the terms and
conditions on Ferguson's quotation, invoices, and delivery
tickets” constituted the entire agreement between the parties;
“Ferguson agreed to provide materials and supplied to Wolfe
Construction for use in the improvement of certain real
3
property” pursuant to the agreement; “Ferguson provided all
required materials and performed all requested services in a
good and workmanlike manner” pursuant to the agreement, “Wolfe
Construction was appropriately invoiced for these materials and
services”; “Wolfe Construction promised to pay Ferguson a
service charge on the unpaid balance of any invoice not paid in
full by its due date at the rate of 1.5% per month or up to the
maximum permitted by law” pursuant to the agreement; “Wolfe
Construction further promised to reimburse Ferguson all costs of
collections, including reasonable attorney’s fees”; Josh Wolfe
personally guaranteed the payment of Wolfe Construction’s
obligations, including costs of collection and attorneys’ fees;
and “Ferguson has made demand on Wolfe Construction and Wolfe
for payment in full, but has not received any payment or
response to its demand.”
See ECF No. 7, at ¶ 2 (admitting
certain allegations in the complaint, ECF No. 1, at ¶¶ 6-9,
11-14).
Ferguson filed this action on June 26, 2020, alleging
one count of breach of contract against Wolfe Construction and
Josh Wolfe and one count of unjust enrichment against the
defendants.
ECF No. 1, at ¶¶ 15-23.
In its complaint, Ferguson
“requests that the Court grant Ferguson judgment in its favor
against Wolfe Construction and Wolfe, jointly and severally, in
4
the amount of . . . $76,367.12 . . .
plus pre- and
post-judgment interest at the legal rate, costs incurred in
bringing this action, including reasonable attorney’s fees, and
such other relief as this Court deems fair and equitable.”
Id.
at 4.
On April 26, 2021, Ferguson filed a motion for summary
judgment arguing that the defendants are jointly and severally
liable for breach of contract inasmuch as:
Ferguson provided Wolfe Construction with materials
and supplies in reliance on a contract. Wolfe
Construction received the materials and supplies, and
presumably, installed those products into one of its
construction projects. Yet, Wolfe Construction has
failed to pay Ferguson for the delivered product.
Additionally, Wolfe, who guaranteed payment for the
delivered product, has also failed to pay Ferguson as
required by the Personal Guaranty. Defendants admit as
much.
ECF No. 14, at 4.
Ferguson requests judgment in the amount of
$76,367.12, the balance on the invoices, “plus interest and
costs incurred in bringing this action, including reasonable
attorney’s fees.”
Id.
The defendants have not responded to the
motion for summary judgment.
II.
Legal Standard
Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
5
Fed. R. Civ. P. 56(a).
“Material” facts are those necessary to
establish the elements of a party’s cause of action.
Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010).
A “genuine” dispute of material fact
exists if, in viewing the record and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for the
non-moving party.
Anderson, 477 U.S. at 248.
“The party seeking summary judgment bears the initial
burden of demonstrating that there is no genuine issue of
material fact.”
Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d
756, 761 (4th Cir. 2021) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).
“Once the movant has made this threshold
demonstration, the nonmoving party, to survive the motion for
summary judgment, must demonstrate specific, material facts that
give rise to a genuine issue.”
U.S. at 323).
Id. (citing Celotex Corp., 477
“Under this standard, ‘the mere existence of a
scintilla of evidence’ in favor of the non-movant’s position is
insufficient to withstand the summary judgment motion.”
(quoting Anderson, 477 U.S. at 252).
6
Id.
Inferences that are “drawn from the underlying facts
. . . must be viewed in the light most favorable to the party
opposing the motion.”
654, 655 (1962).
United States v. Diebold, Inc., 369 U.S.
A party is entitled to summary judgment if the
record, as a whole, could not lead a rational trier of fact to
find for the non-moving party.
820, 823 (4th Cir. 1991).
Williams v. Griffin, 952 F.2d
Conversely, summary judgment is
inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.
Anderson, 477 U.S. at 248.
III.
Analysis
In West Virginia, “[a] claim for breach of contract
requires proof of the formation of a contract, a breach of the
terms of that contract, and resulting damages.”
Sneburger v.
Morrison, 776 S.E.2d 156, 172 (W. Va. 2015) (citing Syl. Pt. 1,
State ex rel. Thornhill Group, Inc. v. King, 759 S.E.2d 795
(2014); Wetzel County Savings & Loan Co. v. Stern Bros., Inc.,
195 S.E.2d 732, 736 (1973)).
Here, Ferguson has produced evidence of contract
formation with the terms described in the credit application.
The defendants have admitted to the existence of the agreement
governed by such terms.
7
Under the terms of the agreement, Wolfe Construction
was obligated to “pay for material and services (‘Products’) Net
10th proximo, unless on invoice otherwise.”
ECF No. 13-2, at 4.
Ferguson has produced evidence in the form of Spisak’s affidavit
that materials and services were provided to Wolfe Construction
under the agreement, and the defendants have admitted as much.
Further, Spisak’s affidavit and the account statement document
that invoices from June 24, 2019, through April 30, 2020 have an
outstanding balance of $76,367.12.
Inasmuch as such balance
remains unpaid despite the obligation of Wolfe Construction and
Josh Wolfe to make such payments, summary judgment is
appropriate against Wolfe Construction and Josh Wolfe on the
issue of liability.
As for damages, it is clear that the plaintiff is
entitled to $76,367.12 plus pre and post-judgment interest,
together with the costs of bringing this action and reasonable
attorneys’ fees.
Pre-judgment interest is awardable in breach
of contract cases under West Virginia law, see W. Va. Code §
56-6-27, and will be awarded at the rate of 1.5% per month as
provided for in the credit application.
Post-judgment interest,
which is governed by federal law, is calculated at “a rate equal
to the weekly average 1-year constant maturity Treasury yield,
as published by the Board of Governors of the Federal Reserve
8
System, for the calendar week preceding.”
28 U.S.C. § 1961.
Such rate will accordingly be determined upon the entry of
judgment.
However, Ferguson has provided no computations with
respect to costs and attorneys’ fees.
Accordingly, it will be
necessary for Ferguson to supply such information by affidavit
prior to the entry of judgment.
Finally, the court notes that summary judgment on the
breach of contract claim alleged against Wolfe Construction and
Josh Wolfe would appear to moot the unjust enrichment claim
alleged in the complaint since that claim, like the breach of
contract claim, is premised on the failure to pay Ferguson for
the services and materials provided pursuant to the agreement
between the parties.
See, e.g., Gulfport Energy Corp. v.
Harbert Priv. Equity Partners, LP, 851 S.E.2d 817, 823 (W. Va.
2020) (holding that “the existence of a valid and enforceable
written contract governing a particular subject matter
ordinarily precludes recovery in quasi contract for events
arising out of the same subject matter.”).
The court
accordingly deems the unjust enrichment claim to be moot.
9
IV.
Conclusion
Accordingly, it is ORDERED that:
1.
Ferguson’s motion for summary judgment (ECF No. 13) be,
and it hereby is, GRANTED to the extent set forth herein.
Specifically, summary judgment is granted as to the joint and
several liability of Wolfe Construction and Josh Wolfe for
$76,367.12, reasonable attorneys’ fees, the costs of bringing
this action, and pre and post-judgment interest.
2.
On or before July 22, 2021, counsel for Ferguson shall
provide an affidavit and any other supporting materials
documenting attorneys’ fees and the costs of bringing this
action, together with a calculation of pre-judgment interest.
3.
Wolfe Construction and Josh Wolfe may respond to
Ferguson’s filing on or before July 29, 2021.
4.
In light of the foregoing, the pretrial conference
scheduled for July 23, 2021, is continued generally.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and to any
unrepresented parties.
ENTER:
10
July 8, 2021
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?