United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
McCALLA UNITED STATES DISTRICT COURT JUDGE.
the Court is Plaintiff Great American Insurance Company
(“GAIC”)'s Motion for Summary Judgment, filed
December 23, 2016. (ECF No. 25.) Defendants Nelson, Inc.,
Willie Nelson, Sr., and Hattie Nelson filed a response in
opposition on January 20, 2017. (ECF No. 26.) Plaintiff filed
a reply on February 3, 2017 (ECF No. 30), and amended that
reply with leave of Court on March 21, 2017 (ECF No. 34.) For
the reasons stated below, the Court GRANTS in part and DENIES
in part Plaintiff's Motion for Summary Judgment (ECF No.
25). Specifically, the Court GRANTS summary judgment in favor
of Plaintiff on the issue of Defendant Nelson, Inc.'s
breach of the Indemnity Agreement; DENIES summary judgment in
favor of Plaintiff on the issue of Defendant Nelson,
Inc.'s breach of the Settlement Agreement; GRANTS
Plaintiff's request for specific performance under the
Indemnity Agreement; and GRANTS Plaintiff's request for
attorneys' fees and costs under the Indemnity Agreement.
This Order does not address claims against Defendants Willie
Nelson, Sr. and Hattie Nelson pursuant to an automatic stay
under 11 U.S.C. § 362.
November 6, 2006, Plaintiff GAIC and Defendants executed an
Indemnity Agreement. (ECF No. 1-5; ECF No. 25-2 ¶ 8.)
The Indemnity Agreement provided that the Defendants would
indemnify GAIC in return for GAIC issuing performance and
payment bonds necessary for Defendant Nelson, Inc. to secure
construction contracts with various public and private
clients. (ECF No. 1-5; ECF No. 25-2 ¶ 7.) The Indemnity
Agreement also contained other provisions, such as a
requirement that any funds associated with the secured
construction contracts received by Defendants would be
deposited into a separate trust account, and that GAIC would
be entitled to attorneys' fees or costs for suits
relating to the Indemnity Agreement. (ECF No. 1-5; ECF No.
25-2 ¶ 26.)
2009, Nelson, Inc. secured a contract with the United States
Army Corps of Engineers (“USACE”) for
construction of stone dikes (hereinafter the “Stone
Dike Contract”). (ECF No. 25-2 ¶ 5.) GAIC then
issued performance and payment bonds on behalf of Nelson,
Inc. for the Stone Dike Contract. (Id. ¶ 6.)
February 9, 2010, the USACE terminated Nelson Inc.'s
right to proceed with further work on the Stone Dike
Contract. (Id. ¶ 10.) Subcontractors and
suppliers of the Defendants then sought payment from GAIC.
(See id. ¶ 11.) GAIC made these payments after
April 27, 2010. (Id.) Defendants did not reimburse
GAIC, and thus GAIC brought suit against Defendants in
September 2010. (ECF No. 25-2 ¶ 12; ECF No. 26-3 ¶
February 2012, GAIC and Defendants Willie Nelson, Sr. and
Hattie Nelson entered into a settlement agreement
(hereinafter the “Settlement Agreement”). (ECF
No. 25-2 ¶ 17.) The Settlement Agreement required, among
other things, that Willie Nelson, Sr. and Hattie Nelson make
several payments to GAIC as well as assist GAIC in collecting
remaining contract funds, such as for those fund associated
with the Stone Dike Contract. (Id.) Both Willie
Nelson, Sr. and Hattie Nelson failed to make full payments to
GAIC as set out in the Settlement Agreement. (See
id. ¶ 24; see also ECF No. 26-2
¶¶ 24, 29.)
December 16, 2015, the Armed Services Board of Contract
Appeals found that USACE improperly terminated Nelson,
Inc.'s Stone Dike Contract, which resulted in Nelson,
Inc. receiving a monetary settlement between USACE and
Nelson, Inc. (ECF No. 25-2 ¶ 23.) In February 2016,
Nelson, Inc. received a payment of $222, 108.00 from USACE
for the Stone Dike Contract. (Id. ¶ 27.)
April 27, 2016, GAIC filed the instant action for breach of
the Settlement and Indemnity Agreements, and seeking
injunctive relief. (ECF No. 1.) Defendants filed an Answer on
June 7, 2016. (ECF No. 15.)
December 23, 2016, GAIC filed a Motion for Summary Judgment.
(ECF No. 25.) Defendants Nelson, Inc., Willie Nelson, Sr.,
and Hattie Nelson filed a response in opposition on January
20, 2017. (ECF No. 26.) On January 20, 2017, Defendants
Willie Nelson, Sr. and Hattie Nelson filed a Notice of
Bankruptcy. (ECF Nos. 27-28.) Plaintiff filed a reply to
Defendant's response the Motion for Summary Judgment on
February 3, 2017 (ECF No. 30), and amended that reply with
leave of Court on March 21, 2017 (ECF No. 34.)
LEGAL STANDARD: Summary Judgment
is entitled to 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). “A fact is ‘material' for
purposes of summary judgment if proof of that fact would
establish or refute an essential element of the cause of
action or defense.” Bruederle v. Louisville Metro
Gov't, 687 F.3d 771, 776 (6th Cir. 2012).
considering a motion for summary judgment, [the] court
construes all reasonable inferences in favor of the nonmoving
party.” Robertson v. Lucas, 753 F.3d 606, 614
(6th Cir. 2014) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“The moving party bears the initial burden of
demonstrating the absence of any genuine issue of material
fact.” Mosholder v. Barnhardt, 679 F.3d 443,
448 (6th Cir. 2012) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).
the moving party satisfies its initial burden, the burden
shifts to the nonmoving party to set forth specific facts
showing a triable issue of material fact.”
Mosholder, 679 F.3d at 448-49; see also
Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587.
“When the non-moving party fails to make a sufficient
showing of an essential element of his case on which he bears
the burden of proof, the moving parties are entitled to
judgment as a matter of law and summary judgment is
proper.” Martinez v. Cracker Barrel Old Country
Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting
Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th
Cir. 2012) (en banc)); see also Kalich v. AT & T
Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012).
order to “show that a fact is, or is not, genuinely
disputed, ” both parties must do so by “citing to
particular parts of materials in the record, ”
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, ” or showing
“that an adverse party cannot produce admissible
evidence to support the fact.” Bruederle, 687
F.3d at 776 (alterations in original) (quoting Fed.R.Civ.P.
56(c)(1)); see also Mosholder, 679 F.3d at 448
(“To support its motion, the moving party may show
‘that there is an absence of evidence to support the
nonmoving party's case'” (quoting Celotex
Corp., 477 U.S. at 325)). “Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge[.]” Martinez, 703 F.3d at
914 (alteration in original) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)).
court need consider only the cited materials, but it may
consider other materials in the record.” Fed.R.Civ.P.
56(c)(3). “[T]he district court has no ‘duty to
search the entire record to establish that it is bereft of a
genuine issue of material fact.'” Pharos
Capital Partners, L.P. v. Deloitte & Touche, 535
F.App'x 522, 523 (6th Cir. 2013) (per curiam) (quoting
Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.
2008), abrogation recognized by Anderson v. City of Blue
Ash, 798 F.3d 338 (6th Cir. 2015)).
“‘[J]udges are not like pigs, hunting for
truffles' that might be buried in the record.”
Emerson v. Novartis Pharm. Corp., 446 F.App'x
733, 736 (6th Cir. 2011) (alteration in original) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
decisive “question is whether ‘the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.'” Johnson v.
Memphis Light Gas & Water Div., 777 F.3d 838, 843
(6th Cir. 2015) (quoting Anderson, 477 U.S. at
251-52). Summary judgment “‘shall be entered'
against the nonmoving party unless affidavits or other
evidence ‘set forth specific facts showing that there
is a genuine issue for trial.'” Rachells v.
Cingular Wireless Employee Services, LLC, No.
1:08CV02815, 2012 WL 3648835, at *2 (N.D. Ohio Aug. 23, 2012)
(quoting Lujan v. Nat'l Wildlife Fed'n, 497
U.S. 871, 888889, 110 S.Ct. 3177, 111 L.Ed.2d 695).
“[A] mere ‘scintilla' of evidence in support
of the non-moving party's position is insufficient to
defeat summary judgment; rather, the non-moving party must
present evidence upon which a reasonable jury could find in
her favor.” Tingle v. Arbors at Hilliard, 692
F.3d 523, 529 (6th Cir. 2012) (quoting Anderson, 477
U.S. at 251). “[I]n order to withstand a motion for
summary judgment, the party opposing the motion must present
“affirmative evidence” to support his/her
position.” Mitchell v. Toledo Hosp., 964 F.2d
577, 584 (6th Cir. 1992) (citing Anderson v. Liberty
Lobby, 106 S.Ct. 2505, 2510, 2514 (1986); Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989)). “[C]onclusory assertions, unsupported by
specific facts made in affidavits opposing a motion for
summary judgment, are not sufficient to defeat a motion for
summary judgment.” Rachells, 2012 WL 3648835,
at *2 (quoting Thomas v. Christ Hosp. and Med. Ctr.,
328 F.3d 890, 894 (7th Cir.2003)). Statements contained in an
affidavit that are “nothing more than rumors,
conclusory allegations and subjective beliefs” are
insufficient. Mitchell, 964 F.2d at 584-85.