United States District Court, W.D. Louisiana, Shreveport Division
Elizabeth Erny Foot, Judge
before the Court are cross Motions for Summary Judgment
[Record Documents 46 & 47] filed by Defendant, Danny K.
Prince (“Prince”) and Plaintiff, Bank of the West
(“BOW” or “the Bank”). For the
reasons announced below, the Court DENIES
both motions. The Court ORDERS additional
briefing on matters addressed herein, and will hold a hearing
to resolve remaining issues at a later date.
AND PROCEDURAL HISTORY
Energy Services, LLC, a Louisiana limited liability company,
subsequently converted to a Texas limited liability company,
GES Gladiator Energy Services of Texas, LLC (collectively
“Gladiator” or “GES”) before it
ceased doing business. See Record Documents 46-1
& 52. GES, as lessee, executed Master Lease Agreement No.
2530 (the “Lease”), effective May 13, 2014, in
favor of Summit Funding Group, Inc. (“Summit”).
In accordance with the Lease, GES executed Equipment Schedule
No. 12 (the “Equipment Schedule”), under which it
leased certain movable equipment (the
“Equipment”) from Summit at a monthly base rent
of $19, 819.41. Id. At that same time, Defendants
Prince and Steven Cloy Gantt ("Gantt") executed personal
guaranties in favor of Summit. Summit later assigned its
rights in and to the Lease and the Equipment Schedule to BOW.
defaulted on its payments under the Lease by failing to make
the monthly payment in February of 2016. Id. GES
voluntarily surrendered the leased Equipment to BOW on July
13, 2016, at GES's yard in Arcadia, Louisiana. Prince
initially indicated, and BOW agreed, that at the time GES
surrendered the Equipment to BOW, the amount of past due rent
under the lease was $138, 735.87. Id. However, in his
opposition to BOW's Motion for Summary Judgment, Prince
claims the actual amount owed as past due rent, based on a
surrender date of July 13, 2016, is $118, 916.46.
See Record Document 50-2; 50, pp. 8-9. BOW represents that the
Equipment was then sold, and the Bank recovered net proceeds
in the amount of $320, 964.00. Record Document 47-1, p. 3.
filed this suit seeking to recover from Gantt and Prince
amounts due under the Lease, plus costs and attorneys'
fees. It moved for summary judgment in May 2017, Record
Document 13, and this Court held a hearing on the motion in
July 2017, see Record Document 30. The Court orally
granted in part and denied in part BOW's motion. The
Court found that BOW was entitled to a judgment against
Prince for amounts owed by GES under the terms of the lease
agreement, and granted the motion to that extent. The Court
declined to declare an exact amount owed due to
inconsistencies and uncertainties regarding the amount.
Record Document 30, p. 2. The Court set a telephone
conference and the parties were ordered to confer prior to
the conference and attempt to resolve any uncertainties as to
the specific amount owed. Id. Defendant retained new
counsel and another telephone conference was set.
See Record Document 34. At that conference, BOW was
granted leave to file an amended complaint and Defendant
raised new legal issues regarding the amount owed. Record
Document 40. The Court set deadlines for BOW to file its
amended complaint and for dispositive motions. Id.
Now before the Court are cross motions for summary judgment
regarding the amounts owed by Prince under the Lease.
argues that, under the terms of the Lease, it is entitled to:
(1) recovery of the Equipment; (2) liquidated damages equal
to the present value of the remaining payments due under the
Lease, discounted at a rate of 2% per annum; and (3)
attorneys' fees, expenses, and costs incurred by BOW in
enforcing the Lease documents. BOW cites the Lease itself as
the authority for recovery of these amounts. Specifically,
the Lease provides:
Lessor may exercise one or more of the following remedies
upon an Event of Default: . . . (iv) recover from Lessee all
accrued and unpaid amounts, (v) recover from Lessee, as
liquidated damages for loss of bargain and not as a penalty,
the present value of all amounts to be paid by Lessee for the
remainder of the Firm Term, or any successive period then in
effect, discounted at the rate of 2% per annum, which amount
will become immediately due and payable, (vi) demand that
Lessee return the Equipment in strict compliance with the
terms hereof . . . (xi) recover from Lessee all amounts
incurred by Lessor in enforcing its rights and remedies
hereunder, including, but not limited to, Lessor's
repossession costs, transportation costs, storage costs,
insurance costs, repair and maintenance costs, appraisal
costs, remarketing costs and commissions, disposal costs,
filing fees, reasonable attorneys' fees, and reasonable
internal costs. . . .
Document 47-3, p. 4. Additionally, the Lease provides that
interest on unpaid recoverable amounts will accrue at a rate
equal to the lesser of 1.5% per month and the highest rate
allowed under applicable law. Id.
equipment has already been returned and sold at auction.
Thus, BOW calculates the amount owed as follows:
Original Balance Due ($19, 819.41 x 46 months)
Less Payments Made (12 payments)
Gross Remaining Balance (34 payments)
Liquidated Damages (34 payments at $19, 819.41
discounted at 2%)
Less Sales Proceeds
Net Amount Owed
Document 47-14, p. 11. BOW thus seeks summary judgment
against Prince in the amount of $333, 628.79, plus interest
at the rate of 1.5% per month from September 9,
paid, plus attorneys' fees and expenses, and costs
incurred in enforcing the Lease and related documents.