United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
reasons provided below, the Court grants Plaintiff's
Motion for Partial Summary Judgment .
a breach of contract case arising from several promissory
notes and guaranty agreements. In June 2015, Defendant
Richard Keller executed a Promissory Note (“Note
1") in favor of Plaintiff on behalf of Defendant Willow
Springs Enterprises, Inc. (“Willow”) in a
principal amount of $525, 089.39. Exhibit 1 to Motion for
Partial Summary Judgment at 5-6, Hancock Bank v. Willow
Springs Enters., Inc., No. 2:16-CV-108-KS-MTP (S.D.Miss.
Nov. 16, 2016), ECF No. 9-1. Willow agreed to pay Plaintiff
the principal, plus interest of 4.95% per annum in 59 monthly
payments beginning on July 4, 2015. Id. Note 1 also
provided for late charges in the event of late payments,
increased interest after default, and court costs and
attorney's fees incurred to collect unpaid amounts due.
same day, Keller executed another Promissory Note
(“Note 2") in favor of Plaintiff on behalf of
Willow in a principal amount of $186, 380.00. Id. at
9-10. Note 2 provided for monthly interest payments beginning
on July 10, 2015, and a single payment of principal and
interest on September 10, 2015. Id.
same day that Keller executed Notes 1 and 2 on behalf of
Willow, Defendants Keller, Bulls Eye Express, Inc.
(“Bulls Eye”), Larsen & Keller, LLC
(“Larsen”), and R. L. Kelco, Inc.
(“Kelco”) executed Commercial Guaranty
agreements. Id. at 11-22. Under the Guaranties, each
Guarantor guaranteed repayment of Willow's obligation
under Note 1 and any future indebtedness and agreed to pay
Plaintiff's costs and attorney's fees incurred in
enforcing the Guaranties. Id.
September 2015, Keller executed another Promissory Note
(“Note 3"), refinancing the loan made under Note
2. Id. at 7-8. Willow agreed to pay Plaintiff the
principal amount of $191, 771.80, plus interest at a rate of
5% per annum in 35 monthly payments beginning on October 24,
2015. Id. Note 3 also provided for late charges in
the event of late payments, increased interest after default,
and court costs and attorney's fees incurred to collect
unpaid amounts due. Id.
6, 2016, Willow defaulted. Plaintiff accelerated the debt and
demanded payment from Willow and the Guarantors. Neither
Willow nor the Guarantors have paid the debt.
initiated this litigation, asserting claims of breach of
contract, fraud, and tortious breach of contract. It filed a
Motion for Partial Summary Judgment  on its breach of
contract claims. Defendants did not respond, and the motion
is ripe for review.
Standard of Review
provides that “[t]he court shall grant summary judgment
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); see also Sierra
Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d
134, 138 (5th Cir. 2010). “An issue is material if its
resolution could affect the outcome of the action.”
Sierra Club, Inc., 627 F.3d at 138. “An issue
is ‘genuine' if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving
party.” Cuadra v. Houston Indep. Sch. Dist.,
626 F.3d 808, 812 (5th Cir. 2010). The Court is not permitted
to make credibility determinations or weigh the evidence.
Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.
2009). When deciding whether a genuine fact issue exists,
“the court must view the facts and the inference to be
drawn therefrom in the light most favorable to the nonmoving
party.” Sierra Club, Inc., 627 F.3d at 138.
did not respond to Plaintiff's motion, but Plaintiff must
still satisfy its “initial burden of demonstrating that
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.” John v. Louisiana, 757 F.2d 698, 708
(5th Cir. 1985). If Plaintiff “fails to discharge this
burden, summary judgment must be denied - even if the
nonmoving party has not responded to the motion.”
plaintiff asserting a breach of contract claim has the burden
of proving “by a preponderance of the evidence: 1. the
existence of a valid and binding contract; and 2. that the
defendant has broken, or breached it . . . .” Bus.
Commc'ns, Inc. v. Banks, 90 So.3d 1221, 1224-25
(Miss. 2012). Monetary damages are not an element ...