Opinion
Civil Action No. 1:05-CV-1453-GET.
July 24, 2006
ORDER
The above-styled matter is presently before the court on plaintiff's motion for summary judgment [docket no. 11].
Plaintiff filed the instant action on June 2, 2005, seeking past-due payments and enforcement of a guaranty arising from a breach of contract. Plaintiff had allegedly entered into six agreements with OneSource Wholesale Copy ("OneSource") to service and maintain six copy machines, on which defendant Perez, OneSource's president, signed a personal guaranty. Plaintiff contends that OneSource failed to make the required payments. On January 25, 2006, plaintiff filed a motion for summary judgment against defendant Perez. In the motion, plaintiff explained that OneSource had filed a Chapter 11 Bankruptcy petition on June 17, 2005, and is thus not party to the motion for summary judgment. As of the date of this order, no response has been filed.
Standard
Courts should grant summary judgment when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must "always bear the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Car v. Catrett, 106 S. Ct. 2548, 477 U.S. 317, 324 (1986). That burden is `discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; see also U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991).Once the movant has met this burden, the opposing party must then present evidence establishing that there is a genuine issue of material fact. Celotex, 477 U.S. at 325. The nonmoving party must go beyond the pleadings and submit evidence such as affidavits, depositions and admissions that are sufficient to demonstrate that if allowed to proceed to trial, a jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 477 U.S. 242, 257 (1986). If he does so, there is a genuine issue of fact that requires a trial. In making a determination of whether there is a material issue of fact, the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Id. at 255; Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). However, an issue is not genuine if it is unsupported by evidence or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50. Similarly, a fact is not material unless it is identified by the controlling substantive law as an essential element of the nonmoving party's case. Id. at 248.
Where "the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e). Thus, the district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed.United States v. 5800 SW 74 th Avenue Miami Florida, 363 F.3d 1099, 1101 (11th Cir. 2004). Rather, "the district court must review all of the evidentiary materials submitted in support of the motion for summary judgment" to "ensure that the motion is supported by evidentiary materials." Id. at 1101-1102.
Facts
In light of the foregoing standard, the court finds the following facts for the purpose of resolving this motion for summary judgment only. The instant action arises out of a dispute relating to six contracts entered into in January 20.04, between CSU and OneSource, for the service and maintenance of one DocuColor 2060 copier and five DocuTech copiers. The contracts are binding and enforceable. Mr. Perez signed a limited guaranty on each of the six contracts, personally guaranteeing OneSource's timely payment under the DocuColor 2060 contract for a sum up to $8,800 and under each of the five DocuTech contracts for a sum up to $14,280.00 per contract. The guaranties further required the payment of attorney's fees and costs incurred by CSU in any action to enforce the contract obligations.
OneSource defaulted under the contracts by faring to make payments when due. On January 4, 2005, counsel for CSU wrote to Mr. Perez in his capacity as President of OneSource and in his personal capacity demanding payment in the amounts due.
Discussion
Personal guaranties for enforceable contracts are valid under Georgia law. See e.g. Marett v. Brice Bldg. Co., Inc., 268 Ga. App. 778 (2004) (upholding trial court's grant of summary judgment based on personal guaranties); Fore v. Parnell-Martin Cos., Inc., 192 Ga. App. 851, 852.(1989) (applying basic contract principles to enforce contract for personal guaranty). Mr. Perez has admitted that he signed the contracts and that each is valid and enforceable. Anheuser Busch, Inc. v. Philpot, 317 F.3d 1264, 1265 n. 1 (11th Cir. 2003) (pursuant to Fed.R.Civ.P. 36(b), requests to which responses or objections are not filed are deemed admitted and the matter conclusively established). Further, copies of the contracts at issue were attached to the motion for summary judgment. In each, Mr. Perez agreed to "unconditionally, absolutely and irrevocably guaranty to CSU, LLC timely payment due of all indebtedness." The guarantied sum was $8,800 for the DocuColor 2060 and $14,280 for five other copiers, serial nos. W11-03293, W11-036226, W11-035714, W11-030381, W11-030643. Finally, Mr. Perez admitted in his answer to the complaint that he had signed the personal guaranties. Accordingly, plaintiff is contractually entitled to $80,200.
Plaintiff also seeks attorney's fees and costs in the amount of $8,045.00 pursuant to O.C.G.A. § 13-1-11. Section 13-1-11 states that "[a]bligatians to pay attorney's fees upon any note or other evidence of indebtedness . . . shall be valid and enforceable and collectible" if certain conditions are met. The holder "of the evidence of indebtedness or his attorney at law shall, after maturity of the obligation, notify in writing the maker, endorser or party sought to be held on such obligation that the provisions relative to the payment of attorney's fees . . . shall be enforced and that such maker, endorser or party sought to be held on said obligation has ten days from the receipt of such notice to pay the principal and interest without the attorney's fees." O.C.G.A. § 13-1-11(a)(3).
Each contract provided, within the personal guaranty section, that "[t]he undersigned's liability under this section shall be limited to the sum of [the amount specified] and all costs and expenses incurred by CSU in enforcing the undersigned's obligations under this Guaranty." Plaintiff has provided the affidavit of its attorney, Allison M. Gluvna, in which Ms. Gluvna testifies that she sent the required notice to Mr. Perez. Accordingly, plaintiff complied with the requirements of O.C.G.A. § 13-1-11.
The amount of attorney's fees recoverable depends on whether the percentage of the principal and interest payable to the attorney as a fee is specified within the contract providing for fees. O.C.G.A. § 13-1-11. The contracts at issue do not specify percentage payable. When the evidence of indebtedness does not specify the amount of fees, "such provision shall be construed to mean 15 percent of the first $500.00 of principal and interest owing . . . and 10 percent of the amount of principal and interest owing thereon in excess of $500.00." O.C.G.A. § 13-1-11(a)(2). The court has found that plaintiff is entitled to $80,200. Pursuant to the court's calculations, 15 percent of the first $500.00 is $75.00. Ten percent of the remainder is $7,970. Consequently, plaintiffs are entitled to the $8,045 they seek for attorney's fees.
Accordingly, and for all the aforementioned reasons, plaintiff's motion for summary judgment [docket no. 11] is hereby GRANTED.
Summary
Plaintiff's motion for summary judgment against defendant Perez [docket no. 11] is hereby GRANTED.
SO ORDERED.