JANET C. HALL, District Judge.
Plaintiff A.T. Clayton & Co. ("A.T. Clayton"), a Connecticut paper products company, brings this action against defendant Donald Hachenberger for breach of a personal guaranty. Hachenberger filed this Motion for Partial Summary Judgment
A motion for summary judgment "may properly be granted ... only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009). Thus, the role of a district court in considering such a motion "is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Id. In making this determination, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir.2009).
"[T]he moving party bears the burden of showing that he or she is entitled to summary judgment." United Transp. Union v. Nat'l R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir.2009). Once the moving party has satisfied that burden, in order to defeat the motion, "the party opposing summary judgment may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in the Rule, must set forth `specific facts' demonstrating that there is `a genuine issue for trial.'" Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (quoting Fed.R.Civ.P. 56(e)). "A dispute about a `genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)); see also Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (stating that a non-moving party must point to more than a mere "scintilla" of evidence in order to defeat a motion for summary judgment).
A.T. Clayton & Co. is a Connecticut corporation that is in the business of supplying
On or about August, 2008, Hachenberger executed and delivered to A.T. Clayton an Unconditional Personal Guaranty (the "Guaranty") relating to obligations of Greenwood to A.T. Clayton in excess of $1,500,000. Pl.'s 56(a)(1) Mot. Summ. J. at ¶ 4; Def.'s 56(a)(2) at ¶ 4. The most pertinent section of the Guaranty reads:
Def.'s 56(a)(1) Mot. Partial Summ. J. at Ex. F. The parties dispute whether the Guaranty covered obligations then existing between Greenwood and A.T. Clayton, or only obligations going forward.
The Guaranty provides for the payment of certain collection costs and attorney's fees. Pl.'s 56(a)(1) Mot. Summ. J. at ¶ 5; Def.'s 56(a)(2) at ¶ 5. Pursuant to the terms of the Guaranty, Hachenberger agreed that any legal proceeding arising out of the Guaranty shall be brought in the Connecticut state courts or the courts of the United States located in Connecticut, and further submitted and consented in advance to such jurisdiction. Pl.'s 56(a)(1) Mot. Summ. J. at ¶ 6; Def.'s 56(a)(2) at ¶ 6.
The parties dispute whether, as of April 1, 2010, Greenwood was indebted to A.T. Clayton in the amount of $2,994,536.18 for paper sold and delivered by A.T. Clayton to Greenwood, and whether Greenwood had failed to make payments to A.T. Clayton. Pl.'s 56(a)(1) Mot. Summ. J. at ¶ 7; Def.'s 56(a)(2) at ¶ 7, 13, 14, 15. It is not entirely clear whether Hachenberger solely disputes that the amount of outstanding indebtedness was incorrectly calculated by A.T. Clayton, or whether he disputes that any indebtedness existed at all. Def.'s 56(a)(2) at ¶ 7.
On April 1, 2010, IRH sent a document to Hachenberger of the amounts due from Greenwood and demanded payment from Hachenberger of the amount due in excess of $1,500,000. Pl.'s 56(a)(1) Mot. Summ. J. at ¶ 8; Def.'s 56(a)(2) at ¶ 8. Hachenberger disputes that the document was ever received. Def.'s 56(a)(2) at ¶ 8. Hachenberger has never paid any moneys pursuant to the Guaranty. Pl.'s 56(a)(1) Mot. Summ. J. at ¶ 9, 10; Def.'s 56(a)(2) at ¶ 9, 10. The parties dispute whether this nonpayment constitutes a breach of the Guaranty. A.T. Clayton has incurred attorney's
The following factual assertions are presented solely in either Hachenberger's 56(a)(2) statement or his 56(a)(1) statement in support of his Motion for Partial Summary Judgment.
Hachenberger never owned an interest in Greenwood. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 11. In 2008, Hachenberger acquired 100 percent of the stock of the Geo. W. Park Seed Co. Inc. ("Park Seed"), a business located in South Carolina. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 5. Around the same time, Hachenberger acquired ownership in Jackson & Perkins Company, Inc., which Hachenberger relocated to South Carolina. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 6. Both of these companies were consumer agriculture businesses that sold live plants, seeds, and gardening products directly to consumers through mail order catalogs. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 7. Paper purchases for the two companies were made through Greenwood, which was incorporated in 2001. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 9, 10. During the five years prior to Hachenberger's acquisition of Park Seed and J & P, A.T. Clayton sold paper to Greenwood for the benefit of Park Seed, but did no business with J & P. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 12. After Hachenberger became an owner of Park Seed and J & P, Greenwood purchased paper for both companies from A.T. Clayton. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 13.
On March 6, 2008, Park Seed signed a Guarantee Agreement ("Park Seed Guaranty") that guaranteed payments of obligations of Greenwood to A.T. Clayton. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 16. At the time Hachenberger signed his personal Guaranty in August 2008, Greenwood had already incurred debts to A.T. Clayton. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 19. A.T. Clayton informed Hachenberger that it would not provide any paper to his companies until a personal guaranty was signed. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 21.
After Hachenberger's Guaranty was signed, Greenwood ordered new paper from A.T. Clayton, and Park Seed and J & P made periodic payments to A.T. Clayton. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 22. In late 2009, when Greenwood's outstanding balance reached $2.5 million, A.T. Clayton refused to extend further credit. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 23, 24.
In April 2010, Park Seed initiated Chapter 11 bankruptcy proceedings in the District of South Carolina. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 25. In late July, 2010, A.T. Clayton filed a claim in that bankruptcy in the amount of $2,944,536.00, which it claims represents the outstanding invoices issued to Greenwood for paper products and for unpaid interest and service charges. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 26. Subsequently, J & P also filed for Chapter 11 bankruptcy in the District of South Carolina. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 27. A.T. Clayton also filed a claim in that bankruptcy in the amount of $2,944,536.00. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 28. As a result of these claims, A.T. Clayton received a payment of $106,253.79 out of the Park Seed bankruptcy estate via a check dated June 24, 2011. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 29, 30. At the close of the bankruptcy proceedings, both Park Seed and J & P were sold to a third party, and Greenwood was administratively dissolved. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 31. Hachenberger retained no interest in the
Hachenberger did not retain any of the corporate records for Greenwood, Park Seed, or J & P after the sale and/or dissolution of those companies. Def.'s 56(a)(2) at ¶ 16.
The court first turns to Hachenberger's Motion for Partial Summary Judgment, which concerns whether Hachenberger is liable for a portion of Greenwood's debts that predated the signing of the Guaranty itself.
In Connecticut, "`[A] guarantee is a promise to answer for the debt, default or miscarriage of another.... It is simply a species of contract.'" One Country, LLC v. Johnson, 137 Conn.App. 810, 823, 49 A.3d 1030 (Conn.App.2012) (quoting Regency Savings Bank v. Westmark Partners, 59 Conn.App. 160, 164, 756 A.2d 299 (Conn.App.2000)). Here, both parties assert that the Guaranty is unambiguous in its meaning.
Id. at 823-824, 49 A.3d 1030 (quoting D'Amato Investments, LLC v. Sutton, 117 Conn.App. 418, 423-24, 978 A.2d 1135 (Conn.App.2009)). "[T]he moving party must prove that the contractual language is not susceptible to at least two fairly reasonable meanings." Elm Haven Const. Ltd. Partnership v. Neri Const., LLC, 281 F.Supp.2d 406, 408 (D.Conn.2003) (citing Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983)). "If the moving party cannot establish unambiguous contract language,
Hachenberger argues that the Guaranty is unambiguous in its exclusion of Greenwood's debts at the time the Guaranty was signed (August 2008). Hachenberger himself acknowledges in an affidavit that, at the time the Guaranty was signed, Greenwood had already incurred debts to A.T. Clayton, and those debts amounted to approximately $1,500,000. Def.'s 56(a)(1) Mot. Partial Summ. J. at ¶ 19; Ex. C at ¶ 12.
In section A of the Guaranty, under a heading marked "Recitals," the Guaranty reads: "At the request of Greenwood Advertising & New Media, Inc .... (the "Debtor"), ATC has agreed to sell paper to the Debtor from time to time (the "Transaction"). Def.'s 56(a)(1) Mot. Partial Summ. J. at Ex. F (emphasis in original). For Hachenberger, the term, "has agreed to sell paper," clearly means that the Guaranty refers only to paper sales occurring in the future. See Def.'s Memo. Supp. Mot. Partial Summ. J. at 9 ("Even though Park Seed, Greenwood, and A.T. Clayton had been doing business for some time in advance of the signing of this Guaranty, no reference is made in this recital to any sales having already occurred. The phrases `has sold,' `continue to sell' or `past and future sales' appear nowhere in this paragraph. Instead, this Recital only speaks about A.T. Clayton's present intentions and proposed future actions."). In section B under "Recitals," the Guaranty further states, "ATC's willingness to engage in the Transaction is expressly conditioned upon the Guarantor's execution and delivery of its unconditional guaranty of all of the Debtor's liabilities and obligations to ATC arising under the Transaction." Def.'s 56(a)(1) Mot. Partial Summ. J. at Ex. F. Hachenberger argues that because "Transaction" is defined solely in a prospective manner, the liabilities and obligations of Greenwood that Hachenberger must secure can only be those occurring after the Guaranty was signed. Hachenberger argues that because ATC's willingness to "engage in the Transaction" is conditioned on the Guaranty, by its own logic this statement in the Guaranty can only apply to paper sales occurring after the signing because otherwise there can be no Transaction without a Guaranty. And if the Transaction has yet to occur, then there is nothing yet for Hachenberger to actually guaranty. By defining the "Transaction" as an event occurring at some point after the signing of the Guaranty, Hachenberger argues that the liabilities that arise under it can likewise only emerge in the future.
Finally, Hachenberger points to the language of the Guaranty itself, which reads, "The Guarantor unconditionally guaranties the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all obligations of the Debtor to ATC now or hereafter arising on account of the Transaction." Id. "Simply construed, this phrase describes only those debts that come into being at the present moment, or thereafter in time or sequence. As such, the plain language of the Hachenberger Guaranty only encompasses Greenwood's indebtedness that arise at the signing of the Guaranty, or thereafter, and then only after $1.5 million in additional debt is incurred." Def.'s Memo. Supp. Mot. Partial Summ. J. at 11.
While a valiant effort to create a rigid temporal barrier in the Guaranty language where none exists, Hachenberger's arguments belie the simple, unambiguous meaning of the Guaranty. Clearly the word "Transaction" is intended to apply to future paper sales, but equally unambiguous
This reading is confirmed by the clear language of the Guaranty itself, which states that it applies to "all obligations of the Debtor to ATC now or hereafter arising on account of the transaction." The parties vigorously debate the meaning of "now" in this context, but it is clear that the "now" encompasses then-existing liabilities. Indeed, the Guarantee does not itself create a paper sales contract or an obligation from the sale of paper, so for the word "now" to apply to the exact moment of the signing of the Guaranty is somewhat nonsensical if it is not referring to sales that occurred in the past. Far more obvious is the application of the Guaranty language to obligations outstanding "now" — i.e., the time of signing — in addition to new obligations created by future sales. The sentence cannot be read to mean "all obligations ... now ... arising on account of the Transaction."
Hachenberger also argues that, if the Guaranty is read to encompass preexisting Greenwood debts, then that portion of the Guaranty is not supported by adequate consideration. Hachenberger argues that:
Def.'s Memo. Supp. Mot. Partial Summ. J. at 12-13. The Guaranty does explicitly note that, "The Guarantor has received adequate consideration in return for his delivery of this Guaranty." The court notes that, "In Connecticut, `the recital of consideration acknowledged as received is prima facie evidence of the fact recited.'" Motiva Enterprise LLC v. W.F. Shuck Petroleum, No. 10-CV-793 (JCH), 2012 WL 601245, *14 n. 14 (D.Conn. Feb. 22, 2012). Courts cited by Hachenberger have found that extension of additional credit can be sufficient consideration for both preexisting and prospective debts. See, e.g., C.I.T. Corp. v. Deering, 119 Conn. 347, 176 A. 553 (Conn.1935). Further, Hachenberger seems to argue that the preexisting debt portion of the Guaranty is somehow separate and distinct from debts going forward, even though the Guaranty exempts $1,500,000 million in liability — the very amount that Greenwood
Accordingly, Hachenberger's Motion for Partial Summary Judgment is denied; the Guaranty contemplates debts preexisting at the time of the signing of the Guaranty and is supported by consideration.
The court next turns to A.T. Clayton's Motion for Summary Judgment as to Hachenberger's liability. A.T. Clayton argues that on April 1, 2010, the date that it requested payment under the Guaranty for outstanding Greenwood debts, Greenwood owed A.T. Clayton $2,994,168.39. As this amount exceeded the $1,500,000 amount necessary before the personal Guaranty became applicable, A.T. Clayton argues that Hachenberger breached the Guaranty and is liable under its provisions, in the amount of $1,338,282, 39. A.T. Clayton further argues that summary judgment is appropriate as to Hachenberger's affirmative defenses.
As the court concluded above, the Guaranty unambiguously makes Hachenberger liable for outstanding Greenwood debts related to the sale of paper to Greenwood that exceeds the $1,500,000 million threshold. Hachenberger argues that issues of material fact as to its actual liability remain.
In support of the liability claim, A.T. Clayton relies on submitted invoice statements and the Affidavit of Benjamin Soule,
Hachenberger disputes that the submitted invoices demonstrate total outstanding Greenwood liability in excess of $1,500,000. In particular, he argues that a genuine issue of material fact exists as to whether the total amount alleged improperly includes interest and service charges on prepaid debt, whether there was an unexplained increase in the amount due on at least one invoice, and whether the interest rates charged. See Defendant's Memorandum in Opposition to Motion for Summary Judgment ("Def.'s Memo. Opp. Mot. Summ. J.") (Doc. No. 33) at 6-7. This argument is rooted in the deposition of Soule, which does refer to the possibility of certain discrepancies. A.T. Clayton Mot. Summ. J., Soule Aff.; Ex. D.
Astoundingly, A.T. Clayton makes no mention at all as to these issues, or their potential effect on the total amount due, in its Reply. Similarly, Hachenberger makes no attempt to ascertain how these evidentiary discrepancies might affect the total amount in question (it is clear, for instance, that the total amount owed is only partially made up of interest due), or how these disparities "call[ ] into question whether the invoices A.T. Clayton asserts constitute the debt owed by Greenwood and therefore by Mr. Hachenberger are in fact the true and correct invoices that were issued to Greenwood in the first instance." Def.'s Memo. Opp. Mot. Summ. J. at 7. Indeed, Hachenberger did not retain any records of any of the companies implicated by this case and, as such, "cannot cross-reference these invoices against the ones that were received by Greenwood." Id. Further, Hachenberger makes no attempt to show that the dollar amounts implicated by the discrepancies would come anywhere close to pushing the total amount owed below the $1,500,000 barrier. However, because the amount owed is pivotal to the question of whether Hachenberger breached the Guaranty, and because A.T. Clayton completely neglected to argue that the amount owing is still sufficient to sustain a breach despite these inconsistencies, the court cannot say that no issues of material facts exist as to whether Hachenberger breached the Guaranty. Accordingly, the court denies A.T. Clayton's Motion for Summary Judgment as to liability.
A.T. Clayton next moves for summary judgment as to Hachenberger's affirmative defenses, most of which relate to issues of damages. Hachenberger asserts eight affirmative defenses in his Amended Answer (Doc. No. 36). In his Opposition, Hachenberger only defends the second affirmative defense that the breach of contract claim is barred in whole or in part by moneys owed or paid to A.T. Clayton by third parties; the sixth affirmative defense of failure to mitigate damages; the seventh affirmative defense that the debt has been discharged by bankruptcy; and the eighth affirmative defense of the doctrine of the election of remedies. The court deems the remaining affirmative defenses abandoned.
The court turns first to the second affirmative defense, relating to whether the amount owed to A.T. Clayton is subject to offset and reduction by monies owed or paid to A.T. Clayton by third parties, including Greenwood and Park Seed. A.T. Clayton argues, "A.T. Clayton concedes that any payments would certainly offset/reduce the amount owed to A.T. Clayton by the Defendant, and the Affidavit of Benjamin Soule has taken all third party payments into account." See A.T. Clayton Mot. Summ. J. at 28. Hachenberger argues that a material issue of fact remains as to whether all such payments had been credited and that, because the motion for Summary Judgment is solely as to liability and not as to the amount of damages, summary judgment is inappropriate. A.T. Clayton does not address this argument in its Reply. The court notes that the issue of liability here is somewhat unique in that the amount of damages directly controls whether or not Hachenberger in fact breached the Guaranty. In other words, if less than $1,500,000 in Greenwood debt remained outstanding, then Hachenberger's failure to pay would not constitute breach. As such, because a material issue of fact still exists as to whether the Guaranty was breached, and because neither party has taken the time to elucidate what payments may or may not be at issue (or, for that matter, to cite any case law), the court finds summary judgment as to this affirmative defense inappropriate here.
The court next turns to the sixth affirmative defense of mitigation of damages. In opposition to A.T. Clayton's claim that no factual evidence exists that it failed to mitigate its damages resulting from the Guaranty, Hachenberger argues, "The Plaintiff has demonstrated no efforts to mitigate its own losses by attempting to collect from the underlying debtor and primary guarantor other than by submitting a claim in the Park Seed bankruptcy. To be sure, A.T. Clayton never sued Park Seed or Greenwood when they were solvent." Def.'s Memo. Opp. Mot. Summ. J. at 10. A.T. Clayton asserts, again without citation to authority, that, "Simply put, there is no duty to mitigate damages between two commercial entities on a credit agreement and/or guaranty agreement. Rather, the duty to mitigate damages in a breach of contract action typically arises in a landlord-tenant situation." A.T. Clayton Mot. Summ. J. at 26. A.T. Clayton further argues that the Guaranty itself includes a waiver that provides that it has no duty to mitigate. The section of the Guaranty A.T. Clayton references reads:
Def.'s 56(a)(1) Mot. Partial Summ. J. at Ex. F (emphasis added). The language of the Guaranty appears unequivocal: Hachenberger has explicitly waived any requirement that A.T. Clayton exhaust any right at all against Greenwood, including the obligation to pursue mitigating payments through the bankruptcy process. The parties' intent is further underlined by the section of the Guaranty labeled "Guaranty Absolute," which reads:
Id. Hachenberger's absolute promise to pay, combined with the explicit waiver of A.T. Clayton's obligation to exhaust any rights against the debtor, and the general, basic purpose of personal guaranties, convince this court that summary judgment against Hachenberger is appropriate as to this sixth affirmative defense.
Next, the court addresses Hachenberger's seventh affirmative defense concerning whether A.T. Clayton's cause of action is barred in whole or in part because the debt claimed by A.T. Clayton has been discharged in bankruptcy. The court grants A.T. Clayton's summary judgment motion as to this affirmative defense as well.
The Guaranty makes specific provision for the potential discharge of debt obligations as a result of "insolvency, bankruptcy or reorganization." Greenwood's status as an administratively dissolved entity surely fits under the rubric of, at the very least, "reorganization." Thus, by the very face of the Guaranty itself, no material issue of fact remains as to this affirmative defense and summary judgment is appropriate. Additionally, the court notes the general warnings of the Restatement of Laws, which notes: "Indeed, an oblige who insists upon a secondary obligation as a condition of extending credit is typically most concerned about the risk of discharge in bankruptcy proceedings. If the principal obligor's defense of discharge in bankruptcy proceedings could be raised by the secondary obligor, the value of the secondary obligation would be seriously diminished. Accordingly, this defense may not be raised by the secondary obligor." Restatement (Third) Suretyship and Guaranty § 34. There are no material issues of fact and, as a matter of law, the seventh affirmative defense fails. The Guaranty is absolute and unambiguous in regards to obligations in the event of insolvency or reorganization.
Finally, the court turns to the eighth affirmative defense, concerning election of remedies. Hachenberger argues that material facts exist as to whether A.T. Clayton is precluded from filing suit to collect on the Hachenberger personal guaranty because A.T. Clayton first attempted to collect on the debts of Park Seed and J & P in bankruptcy proceedings. Hachenberger cites no authority for this proposition. The court notes, as it did above, that the Guaranty makes specific provision for the eventual bankruptcy of the debtor. Beyond that, however, it strains credulity to assert that pursuing a debt from the original debtor (or the entities that absorbed that debtor's assets) is in any way inconsistent with the pursuit of payment from a guarantor. Such a proposition would undermine the very purpose of obtaining secondary guaranties in the first place. Accordingly, the court grants A.T. Claytons Motion for Summary Judgment as to the eighth affirmative defense.
For the foregoing reasons, the court
