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Tractor and Equipment Co. v. Dual Trucking And Transport, LLC

United States District Court, E.D. Louisiana

April 3, 2017


         SECTION: R



         Before the Court are cross motions for summary judgment on the validity of a surety agreement signed by Anthony Alford.[1] In addition, Tractor and Equipment Co. has filed a motion in limine to exclude an affidavit submitted by Alford.[2] Because the Court finds that Alford's intent to be bound as Dual Trucking and Transport, LLC's surety is clear from the plain language of the “Personal Guarantee” agreement, Tractor and Equipment's motion for summary judgment is granted, defendants' corresponding motion is denied, and Tractor and Equipment's motion in limine is denied as moot.

         I. BACKGROUND

         This action arises out of Dual Trucking and Transport, LLC's (DTT) alleged default under an open account agreement with Tractor and Equipment Co.[3] The core facts are not in dispute. On March 19, 2012, a DTT employee sent Tractor and Equipment a form application for credit.[4] Tractor and Equipment's application form consists of two parts, first a section requesting information regarding the entity seeking credit, and second, a personal guarantee.[5] The day after DTT sent its application, a Tractor and Equipment employee sent a letter to DTT stating as follows:

         Dear Sirs:

In reviewing the application for Credit you submitted, we find the Personal Guarantee portion was not signed. Please have the owner or officer of company [sic] sign the attached application as indicated, fax a copy to me at 406 651 8346 and drop the copy with original signature in the mail to PO Box 20158, Billings MT 59107.
Thank you for your help and consideration.
[Signature Block][6]

         Anthony Alford, a 50% owner of DTT, [7] signed the “Personal Guarantee” section of the credit application form supplied by Tractor and Equipment and returned it the following day.[8] The application for credit form Alford signed was identical to the copy DTT submitted on March 19, except that the March 19 copy was, with the exception of the “Personal Guarantee” section, mostly filled-out.[9] It was Dated: the line requesting the signature of an owner, principal, or authorized officer or partner of the applicant.[10] By contrast, the form Alford signed had many unfilled blanks.[11] It identified only the applicant's corporate name and address, and it was not signed by a corporate representative.[12]

         In late 2013, Tractor and Equipment sued DTT and Anthony Alford in Montana state court, alleging that DTT had an unpaid account balance of $292, 646.30.[13] Tractor and Equipment also alleged that Alford had personally guaranteed DTT's open account and was therefore jointly liable for the amounts due under its open account agreement.[14]The Montana court dismissed the claims against Alford for lack of personal jurisdiction, and later entered judgment against DTT in the amount of $292, 846.30, plus interest, attorney's fees, and costs.[15] After the Montana court dismissed Alford from that litigation, Tractor and Equipment filed this suit seeking a declaratory judgment that Alford's surety contract is valid and enforceable.

         The parties have filed cross motions for summary judgment, [16] and corresponding responses[17] and replies.[18] Tractor and Equipment has also filed a motion in limine to exclude an affidavit completed by Alford.[19]


         Summary judgment is warranted when “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 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

         If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.

         If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Id. at 324. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)).


         As noted, the parties do not dispute that Alford signed the “Personal Guarantee” section of a form application for credit and submitted it to Tractor and Equipment. The relevant section-contained in a separate box from the remainder of the form-reads as follows:


         The undersigned, ___, in consideration of your giving credit to the aforesaid applicant, jointly and severally guarantee(s) and agree(s) to pay to TRACTOR & EQUIPMENT CO., N C MACHINERY CO., MACHINERY POWER & EQUIPMENT CO., N C POWER SYSTEMS CO. OR ANY OF THEIR RELATED OR AFFILIATED COMPANIES all monies which shall become due you from Dual Trucking and Transport LLC by reason of any credit you extended as credit you extend as [sic] herein requested, including late payment charges and all costs of collection and reasonable ...

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