Triangle Maint. Serv., LLC v. Liberty Mut. Ins. Co. (In re Triangle Maint. Serv., LLC)
| Decision Date | 12 March 2013 |
| Docket Number | Case No. 11-15142,A.P. No. 12-01019 |
| Parties | In re: TRIANGLE MAINTENANCE SERVICE, LLC Debtor. TRIANGLE MAINTENANCE SERVICE, LLC Plaintiff v. LIBERTY MUTUAL INSURANCE COMPANY Defendant. |
| Court | U.S. Bankruptcy Court — Northern District of Mississippi |
This adversary proceeding is before the Court on the Motion for Summary Judgment (the "Motion")(A.P. Doc. 23) filed by defendant Liberty Mutual Insurance Company ("Defendant") on December 13, 2012. The plaintiff/debtor Triangle Maintenance Service, LLC ("Plaintiff') filed a Response to Defendant's Motion for Summary Judgment (the "Response")(A.P. Doc. 27) on January 24, 2013. This Court has jurisdiction pursuant to 28 U.S.C. §§ 151, 157(a) and 1334(b) and the United States District Court for the Northern District of Mississippi's Order Of Reference Dated August 6, 1984. This is a core proceeding arising under Title 11 of the United States Code as defined in 28 U.S.C. § 157(b)(2)(A),(E) and (O).1 The Court must decidewhether the Complaint was filed after the statute of limitations had run, and therefore, whether Defendant's Motion for Summary Judgment is due to be granted. No hearing on the Motion is necessary. The Court has considered the pleadings, the evidence, the briefs and the law, and finds and concludes as follows.
The following facts are undisputed. Plaintiff is a Mississippi limited liability company doing business in Lowndes County, Mississippi, and is the debtor in the above-styled case. Panola Construction Company ("Panola") entered into a contract with Mississippi State University ("Owner") for the renovation of Spencer Track located in Starkville, Mississippi (the "Project"). Panola then entered into a subcontract with Plaintiff. The Project is identified in the contract as Spencer Track Renovations IHL #205-244. In accordance with § 31-5-3 et seq.t of the Mississippi Code, Panola, as principal on a construction project with a state entity, entered into a bonding contract with Defendant whereby Defendant acted as a surety for construction on the Project. When Panola later failed to pay Plaintiff, Plaintiff sought to collect under the bond.
Plaintiff filed a chapter 11 bankruptcy petition with this Court on November 3,2011. On February 17, 2012, Plaintiff filed its Complaint, seeking payment under the bond and alleging that Plaintiff is owed $13,150.00 by Panola for Plaintiffs work on the Project. (A.P. Doc. 1).
The sole factual dispute, and the issue on which resolution of the Motion depends, is whether the last date Plaintiff performed labor was February 8, 2011, or February 18, 2011. For the reasons set forth below, this Court finds that the last date on which Triangle performed labor or supplied materials to Panola on the Project was February 8, 2011.
Rule 56 of the Federal Rules of Civil Procedure governs the process by which a court will grant or deny a motion for summary judgment.2 Summary judgment is only appropriate if no genuine issue as to any material fact exists and if the movant is entitled to a judgment as a matter of law. FED. R. CIV. P. 56; Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000). The United States Supreme Court has made clear that summary judgment is appropriate:
after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Chan v. Coggins, 294 F. App'x 934,939 (5th Cir. 2008).
A court considering a motion for summary judgment must view evidence and make all inferences in the light most favorable to the non-movant. Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir. 2004). However, as the Fifth Circuit and Supreme Court have made clear, the non-moving party does bear certain affirmative responsibilities as to issues on which that party bears the ultimate burden of proof:
[a]s to issues on which the nonmoving party has the burden of proof at trial, the moving party need only point to portions of the record that demonstrate an absence of evidence to support the non-moving party's claim. The non-moving party must then go beyond the pleadings and designate 'specific facts showing that there is a genuine issue for trial.'
U.S. for Use and Benefit ofT.L. Wallace Const., Inc. v. Fireman's Fund Ins. Co., 790 F.Supp. 680, 682 (5th Cir. 1992) (quoting Celotex, 477 U.S. at 324). A party may not successfully defeat a motion for summary judgment by simply denying that the moving party's claims and assertionsare correct, without any supporting evidence. As Celotex provides, "[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex, 477 U.S. at 323-24.
The threshold issue raised in the Motion is whether this action is time-barred by the applicable statute of limitations. The relevant statute provides, in relevant part:
(b) When suit is instituted on a payment bond given in accordance with this chapter, it shall be commenced within one (1) year after the day on which the last of the labor was performed or material was supplied by the person bringing the action and not later.
Miss. CODE ANN. § 31-5-53 (West). The original text of the law included a variety of possible commencement dates from which the statute of limitations would begin to run. 1994 Miss. Laws Ch. 626, § 4 (H.B. 875), amended by 2004 Miss. Laws. Ch. 452, § 1. However, the law was amended in 2004 to its current form, with the goal "to clarify.. .the time and manner for bringing suits on such bonds" by eliminating the various dates that possibly started the running of the statute, and replacing them instead with one date: the last date that a subcontractor performed work on the project. 2004 Miss. Laws Ch. 452, § 1; (A.P. Doc. 24, Pg. 3). Neither party disputes that the one (1) year statute of limitations applies in this case. The dispute is concentrated on the specific date of last performance that the statute of limitations began to run.
Plaintiff filed its complaint on February 17, 2012 (A.P. Doc. 1). In the Motion, Defendant asserts that "[t]he last date on which Triangle performed labor or supplied material to Panola on the Spencer Track project was no later than February 8, 2011..." (A.P. Doc. 23, Pg. 2). Accordingly, Liberty Mutual contends that Triangle Maintenance missed the one year statute of limitations by 9 days, and thus this adversary proceeding is barred by the statute of limitations.
In its Response, Plaintiff alleges instead that the last day work was performed was not February 8, 2011, but was February 18, 2011. Further, Plaintiff makes the unsupported allegation that the work done leading up to and on February 18, 2011 was substantial and necessary to the overall project, and without which the project could not be considered to be substantially complete. (A.P. Doc 28, Pg. 3). Therefore, by its calculations, Plaintiff met the statute of limitations by one day. (A.P. Doc. 27).
Defendant supports its contention that this suit is barred by the statute of limitations with evidence of payroll records which were produced and submitted by Plaintiff. (A.P. Doc. 23, pg. 2). This document is further explained in the affidavit of Nick Warren, an employee of Panola, who was the Project manager. (A.P. Doc. 23, Ex. 4). According to the payroll record, the last day for which non-remedial work was documented was Tuesday, February 8, 2011. (A.P. Doc. 23, Ex. 3). The payroll record covers the week ending on February 12, 2011, but it is plainly clear from notations for each individual day that no hours of work were recorded after February 8, 2011. This payroll record was prepared by Plaintiff, produced by Plaintiff, and is the last report that Plaintiff produced to Defendant. (A.P. Doc. 29, Pg. 2).
Plaintiff points to Exhibits 1, 2 and 3 in Plaintiffs Response to Motion for Summary Judgment as evidence of its assertion that work was done on February 18, 2011. Exhibit 1 is the affidavit of Scott Hannon (the "Affidavit")(A.P. Doc. 28, Ex. 1). The entire body of the Affidavit provides only:
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the above county and state, the within named SCOTT HANNON, who after being by me duly sworn and deposed, stated on oath that the facts stated in Plaintiffs Response to Defendant's Motion for Summary Judgment are true and correct to the best of his knowledge, information, and belief.
(A.P. Doc. 27, Ex. 1). There is no background information offered, nor any explanation of Scott Harmon's involvement, experience with, or knowledge of, the Project. No affirmative facts are set forth in the Affidavit and no other documents are referenced.
Rule 56(e) of the Federal Rules of Civil Procedure provides in pertinent part that "[supporting...affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." FED.R.CIV.P. 56(e); see also Duplantis v. Shell Offshore, Inc., 948 F.2d 187,191 (5th Cir. 1991). Absent from the affidavit of Scott Hannon are any of the 56(e) requirements, such as affirmative evidence that the affiant is competent to testify, or facts as would be admissible at trial. Several courts have held that pleadings based upon an affiant's "information and belief are "insufficient for the purposes of opposing a motion for summary judgment." Price v. Rochford, 947 F.2d 829, 832 (7th Cir. 1991); see also Canada v. Blain Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Perez v. Alcoa Fujikura, Ltd., 969 F.Supp. 911,997-98 (W.D. Tex. 1997)(affidavits must meet the requirements...
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