Opinion
Case No. 2:01-CV-00776PGC
May 6, 2003
ORDER GRANTING SUMMARY JUDGMENT ON DAMAGES
This is is an action arising out of a July 2, 2001 Lease Agreement for property located in Kane County, Utah. On March 18, 2003, this court granted partial summary judgment in favor of Baca Enterprises, the landlord, and ruled that Pacific Nakon, the tenant, breached the Lease Agreement and was liable for resulting damages. On April 29, 2003, the court held a hearing on Pacific Nakon's motion for damages. At that hearing, the court ruled that based on the parties' stipulation and the undisputed facts, both Pacific Nakon and Lamar Jensen (collectively "Pacific Nakon") were liable in this action. After hearing oral argument on the amount of damages, and reviewing the parties' briefs and the relevant law, the court now GRANTS Baca's motion for summary judgment on damages and enters judgment against Pacific Nakon for $695,049.12 plus reasonable Attorneys' fees. The court dismisses Baca's remaining claim for future damages at Baca's request and because it is premature.
Summary judgment is appropriate where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." All material facts will be deemed admitted for the purpose of summary judgment, unless the opposing party specifically controverts these facts with material facts of record. In this case, the court adopts Baca's statement of facts because Pacific Nakon has not specifically controverted them in its opposing memorandum and because counsel for Pacific Nakon conceded at oral argument that there is no genuine dispute about these facts. Accordingly, the court finds as follows.
See Fed.R.Civ.P. 56(e).
The Bond
Pursuant to paragraph 14 of the Lease, Pacific Nakon's default only entitled Baca to "the full value of a $5,000,000.00 bond [unless] the bond cannot be sold or liquidated for cash." If the bond cannot be redeemed, Baca may pursue general damages. Based on the parties' pleadings, and the stipulation made at oral argument, the court finds that this so-called $5,000,000 bond cannot be sold or liquidated for cash and has little or no value to Baca. Accordingly, Baca is entitled to general damages as set forth below.
See Lease at ¶ 14.
See Id.
Rent
Pursuant to paragraph 4 of the Lease, base rent for the property was $250,000 per year, to be paid in a combination of a lump-sum payment and subsequent monthly rent of $20,833.34. Pacific Nakon had possession of the property from August 2001 until September 3, 2002, but paid no rent after August 2001. Based on the Lease provisions and the parties' stipulation at oral argument, the court finds that Pacific Nakon is liable to Baca for $272,888.12 in rent.
See Memorandum of Points and Authorities in Support of Baca Enterprises' Motion for Partial Summary Judgment Regarding Damages ("Memo in Support") at 5.
The Paul Note
On or about July 27, 2001, Pacific Nakon and Lamar Jensen signed a Promissory Note in favor of R. Kip Paul and Terri J. Paul, Ltd. ("Paul Note") for $235,125.00. The Paul Note is secured by a trust deed, which is collateralized by the leased property. There is currently $397,161.00 due and owing on the Paul Note, including interest. If the monthly interest payments are not made and/or the Paul Note is not paid off by September 30, 2003, Baca asserts that its property may be foreclosed. Based on these facts, and the stipulation of counsel, the court finds that Pacific Nakon is liable to Baca for $397,161.00 in damages relating to the Paul Note.
See id. at 3-4.
See id. at 4.
See id. at 4 and 9.
See Memo in Support at 4.
The Frank Baca Payment
Pursuant to paragraph 18.10 of the Lease, Pacific Nakon agreed to pay $25,000 on August 1, 2001 to Frank Baca, the son of Ted and Cecelia Baca, for certain personal property at or near the leased land. It is undisputed that this $25,000 has not been paid. Accordingly, the court finds that Pacific Nakon is liable to Baca for this $25,000 payment.
See id. at 3.
Attorneys' Fees
Pursuant to paragraph 14 of the Lease, Baca is entitled to the reasonable attorneys' fees arising out of Pacific Nakon's breach. These fees will be determined after the appropriate affidavits and objections have been reviewed by the court, pursuant to the deadlines established in the April 29, 2003 hearing.
Future Damages
In addition to these general damages, Baca asserts that it may be entitled to future damages if the leased property is foreclosed. However, at oral argument, Baca's counsel conceded that these claims are premature and agreed that these claims should be dismissed now, without prejudice, subject to reasserting them at a later date if they become proper.
For these reasons, the court GRANTS summary judgment on damages [Doc. # 68-1] for $695,049.12 plus reasonable attorneys' fees, in favor of Baca Enterprises and against both Pacific Nakon and Lamar Jensen. payable immediately. This case will remain open until the amount of attorneys' fees is determined.
SO ORDERED.