Branch Banking & Trust Co. v. Envtl. Techs., Inc.
| Decision Date | 22 August 2013 |
| Parties | BRANCH BANKING AND TRUST COMPANY, Plaintiff, v. ENVIRONMENTAL TECHNOLOGIES, INC., EUGENE C. DUNWODY JR., Individually, CAROLE M. LOVETT, Individually, and L. ROBERT LOVETT, Individually, Defendants. |
| Court | U.S. District Court — Middle District of Georgia |
This case is before the Court on Plaintiff's Motion for Summary Judgment (Doc. 27). Defendants have filed a response, and Plaintiff has filed a reply. After reviewing the briefs, depositions, and other evidence, the Court grants Plaintiff's Motion for Summary Judgment.
Federal Rule of Civil Procedure 56 requires that summary judgment be granted "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." Fed.R.Civ.P. 56(a). "The moving party bears 'the initial responsibility of informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with theaffidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotations omitted)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505 (1986).
The applicable substantive law identifies which facts are material. Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249-50.
In resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Trial Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to draw those inferences which are reasonable. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec.Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986))."If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
In accordance with Local Rule 56, Plaintiff filed a statement of material facts to which it contends there is no genuine dispute. (Doc. 27-2). As required by Local Rule 56, each fact statement is supported by a specific citation to the record. See M.D. Ga. L.R. 56.
Local Rule 56 requires the respondent to respond to each of the movant's numbered material facts. "All material facts contained in the moving party's statement which are not specifically controverted by specific citation to the record shall be deemed to have been admitted, unless otherwise inappropriate." M.D. Ga. L.R. 56. In their response to Plaintiff's statement of material facts, Defendants deny or disagree with many of Plaintiff's statements but do not specifically controvert the statements by specific citation to the record. See Responses No. 2, 8, 11, 13, 17, 18, 23, 27, and 28. Therefore, in accordancewith Local Rule 56, these particular facts contained in Plaintiff's statement are deemed admitted.1
Even though certain of Plaintiff's submitted facts are deemed admitted, Plaintiff "continues to shoulder the initial burden of production in demonstrating the absence of any genuine issue of material fact, and the court must satisfy itself that the burden has been satisfactorily discharged." Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008). The Court must "review the movant's citations to the record to determine if there is, indeed, no genuine issue of material fact." Id. at 1269 (quotation and internal quotation marks omitted). The Court has so reviewed the record, and viewed in the light most favorable to Defendants, finds the facts for purposes of summary judgment to be as follows.
Defendant Environmental Technologies, Inc. ("ETI") made a promissory note to Plaintiff dated March 18, 2004 in the principal amount of $650,000 (the "ETI Note"). The ETI Note provided for repayment of principal and interest in monthly installments. Defendants Eugene C. Dunwody Jr., Carole M. Lovett, andL. Robert Lovett each signed a Guaranty Agreement dated March 18, 2004 (the "ETI Guaranty Agreements") by virtue of which they guaranteed the payment of ETI's obligations and liabilities, whether then existing or thereafter arising.
The loan proceeds were for the renovation of a commercial retail building and multi-family dwelling on Poplar Street in Macon, Georgia. ETI also signed a Loan Agreement dated March 18, 2004 setting forth the terms and conditions under which Plaintiff would fund the project. From March 2004 through September 2004, ETI drew loan proceeds in the total amount of $475,614.76. Only one of ETI's payments on the ETI Note was made on time in 2004.2 Defendants subsequently requested that the principal amount of the ETI Note be reduced to match the amount actually drawn and to lower the monthly payments. Accordingly, the ETI Note was modified on January 6, 2005 and reduced to the principal amount of $468,531.01.
Over the subsequent years, the ETI Note was modified on numerous occasions to extend the maturity date and to reflect a new principal amount. The ETI Note was modified as follows3:
Date of Modification
Principal Amount
June 9, 2005
$463,990.10
October 26, 2009
$426,797.67
January 26, 2010
$422,597.67
August 12, 2010
$420,125.16
December 10, 2010
$420,125.16
Along with the last modification, Defendants Dunwody and Robert Lovett each signed a Guaranty Agreement dated December 10, 2010, again guaranteeing payment of the ETI Note.
The ETI Note matured on June 10, 2011. Neither ETI nor the individual Defendants paid the indebtedness due under the ETI Note upon maturity. The ETI Note went into default. Plaintiff delivered an Acceleration Notice dated September 28, 2011 demanding immediate payment of all principal and interest owing on the ETI Note.
The ETI Note provides that the Defendants shall be liable for all costs of collection and reasonable attorney's fees if the note is placed with an attorney for collection. The Acceleration Notice notified Defendants that the provisions of the ETI Note regarding payment of attorney's fees would be enforced if the full amount of principal and interest due on the note was not paid within ten daysfrom Defendants' receipt of the Acceleration Notice. Defendants made no payments in response to the Acceleration Notice.
According to Plaintiff, the following amounts are due on the ETI Note: principal in the amount of $420,125.16; bank fees in the amount of $9,778.38; accrued interest in the amount of $66,257.24 as of April 12, 2013; attorney's fees in the amount of $48,663.24 as of April 12, 2013; per diem interest of $87.5260 per day for each day after April 12, 2013; and per diem attorney's fees for each day after April 12, 2013.
Defendants Robert and Carole Lovett (the "Lovetts") made a promissory note to Plaintiff dated April 7, 2006 in the principal amount of $90,000 (the "Lovett Note"). The Lovett Note provided for repayment of principal and interest in monthly installments. The Lovetts received the entire $90,000 on or about April 7, 2006.
The Lovett Note was modified on several occasions to extend the maturity date and to reflect a new principal amount. The Lovett Note was modified as follows4:
Date of Modification
Principal Amount
April 27, 2009
$73,926.50
July 23, 2009
$72,613.78
October 26, 2009
$70,091.67
January 26, 2010
$70,657.80
September 12, 2010
$69,001.85
December 12, 2010
$68,261.85
The Lovett Note matured on June 10, 2011. The Lovetts did not pay the indebtedness due under the Lovett Note upon maturity, and the note went into default. Plaintiff delivered an Acceleration Notice dated August 15, 2011 demanding immediate payment of all principal and interest owing on the Lovett Note.
The Lovett Note provides that the Lovetts shall be liable for all costs of collection and reasonable attorney's fees if the note is placed with an attorney for collection. The Acceleration Notice notified the Lovetts that the provisions of the Lovett Note regarding payment of attorney's fees would be enforced if the full amount of principal and interest due on the note was not paid within ten days from the Lovetts' receipt of the Acceleration Notice. The Lovetts made no payments in response to the Acceleration Notice.
According to Plaintiff, the following amounts are due on the Lovett Note: principal in the amount of $66,421.85; bank fees in the amount of $1,242.44; accrued interest in the amount of $11,828.33 as of April 12, 2013; attorney's fees in the amount of $7,850.02 as of April 12, 2013; per diem interest of $16.1442 per day for each day after April 12, 2013; and per diem attorney's fees for each day after April 12, 2013.
Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 795, 709 S.E.2d 336, 340 (2011) (quotation omitted); Smith v....
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