The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Presently pending before the Court for disposition are the MOTION FOR SUMMARY JUDGMENT (Doc. No. 27), filed by plaintiff 84 Lumber Company, L.P. ("84 Lumber" or "Plaintiff"); and the MOTION FOR SUMMARY JUDGMENT filed by Defendant, Steve Bryan ("Mr. Bryan" or "Defendant") (Doc. No. 31). The motions have been fully briefed (Doc. Nos. 28, 32, 36, 38, 40, 42, 44, 46) and the factual record has been thoroughly developed via the submission of the parties' appendices and CONCISE STATEMENTS OF MATERIAL FACT (Doc. Nos. 29, 33) with responses and opposition thereto (Doc. Nos. 35, 39, 41, 45, 50). Also pending before the Court is the PLAINTIFF'S MOTION TO STRIKE STEVE BRYAN'S SUPPLEMENTAL BRIEF IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT (Doc. No. 47). Mr. Bryan filed a response in opposition to 84 Lumber's motion to strike (Doc. No. 48), and Plaintiff filed a reply to defendant's response in opposition (Doc. No. 49). Accordingly, the motions are now ripe for disposition.
All of the claims, and the basic issues that remain in this lawsuit, flow from the allegedly binding personal guarantee provision set forth in the parties' June 1999 Commercial Credit Agreement (the "Agreement") and the unpaid balance on Bryan Construction's account with 84 Lumber. The remaining issue is whether Mr. Bryan can be held personally liable for the unpaid balance on the credit account between 84 Lumber and Bryan Construction along with interest and fees, as provided in the Agreement.
84 Lumber initiated this lawsuit on July 1, 2009, by filing a four-count Complaint against the Bryan Construction Company, Inc. a/k/a The Bryan Company ("Bryan Construction") and Mr. Bryan in the Court of Common Pleas of Allegheny County, Pennsylvania, alleging breach of contract and unjust enrichment claims against both defendants. On August 5, 2009, Defendants timely removed the case to this Court pursuant to 28 U.S.C.A. §§ 1332, 1441 and 1446.
Thereafter, on March 3, 2010, defendant Bryan Construction made an offer of judgment in the amount of $128,033.69, which 84 Lumber accepted. This Court entered final judgment on March 5, 2010 in favor of 84 Lumber and against Bryan Construction only. The Court originally entered judgment on March 4, 2010 against Bryan Construction and Mr. Bryan, as personal guarantor, but amended the judgment upon Defendants' motion, which notified the Court that the Offer of Judgment was not made by Mr. Bryan individually. The judgment remains unsatisfied.
Thus, the only remaining counts in this lawsuit are (1) a breach of contract claim against Mr. Bryan, based on the personal guarantee clause in the Agreement, and (2) an unjust enrichment claim against Mr. Bryan, individually. 84 Lumber demands judgment against Mr. Bryan for the unpaid principle balance of $128,033.69 (i.e., the amount of the Judgment entered against Bryan Construction) with continuing finance/late charges thereon at the rate of 1.5% per month, its attorneys' fees, and other associated costs as provided in the Agreement.
Both parties now move for summary judgment, disputing the application of the personal guarantee provision and the amount of damages, if any, which are to be awarded.
The following facts are taken from the Court's independent review of the parties' motions, the filings in support and opposition thereto, and the record as a whole. All disputed facts and inferences have been resolved in the light most favorable to the Defendants.
A. Steve Bryan and The Bryan Construction Company
At all relevant times, Defendant Steve Bryan owned and/or operated multiple construction and contracting companies. More specifically, Mr. Bryan is 100% owner and President of The Bryan Company, which is 100% owner of Bryan Homes, Inc. and Bryan Construction. Mr. Bryan also owns a 99.99% share in Bryan Contractors, LLC, and The Bryan Company owns the remainder. See Doc. No. 30 at Ex. 14 (depicting a chart of the corporate structure). All of Defendant's businesses share the same accounting department, officers, and address in Ridgeland, Mississippi.
B. The Commercial Credit Agreement
On June 24, 1999, Bryan Construction sought to purchase goods on credit from 84 Lumber, a limited partnership engaged in the business of supplying building materials with a principal place of business in Washington County, Pennsylvania. Mr. Bryan, in his capacity as the President of Bryan Construction, completed and executed a Commercial Credit Agreement (the "Agreement") with the company and submitted it to 84 Lumber.
84 Lumber subsequently approved Defendants' application and set an initial creditlimit at $25,000.*fn1 Pursuant to the Agreement, Bryan Construction purchased, and 84 Lumber delivered, various materials on credit between 1999 and 2005. During this period, 84 Lumber submitted many invoices to Mr. Bryan's Ridgeland, Mississippi address, which appear to have been timely paid. Throughout this time, the parties appear to have engaged in an amicable business relationship. In January 2009, Bryan Construction's account became delinquent. 84 Lumber then attempted to collect the unpaid balance from Bryan Construction and now seeks to enforce the personal guarantee against Mr. Bryan.
Pursuant to the terms of the Agreement, the following personal guarantee appears immediately above Mr. Bryan's signature on the document:
BY SIGNING BELOW I HEREBY CERTIFY THAT I AM A PRINCIPAL OF THE ABOVE BUSINESS AND I DO PERSONALLY GUARANTEE THIS ACCOUNT AND PAYMENT OF ANY SUMS DUE BY THE ABOVE-NAMED BUSINESS, AND THAT I HAVE READ ALL OF THE TERMS AND CONDITIONS ON THE REVERSE SIDE OF THE APPLICATION AND THAT I UNDERSTAND AND AGREE TO THE SAME, AND THAT ALL OF THE INFORMATION CONTAINED IN THIS APPLICATION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. (Doc. No. 34, Ex. 5) (emphasis in original). Below the sole signature line, the agreement states that "[i]f Applicant is a partnership, then all partners must sign the application. If the Applicant is a corporation, the President must sign the application." Id. Mr. Bryan agrees that he signed the document, admits that he was not under duress when he signed the materials, and acknowledges that he has personally guaranteed numerous ventures in the past.
Mr. Bryan does contend, however, that he did not personally guarantee the Credit Agreement. Defendant argues that he signed the document only on behalf of Bryan Construction. Moreover, Defendant alleges that he was not given a choice to sign on behalf of the company only and cites the language below the signature line as support.
Prior to sending the Agreement to Plaintiff Defendant neither attempted to negotiate any language in the Agreement nor submitted any questions or proposals with regard to the application or enforceability of any provision or clause set forth in the Agreement. When asked "[i]s there a reason why [Mr. Bryan] didn't scratch out that language then," he replied "I don't have a reason." Doc. No. 30 at Ex. 5, p. 45-46 (reproducing February 23, 2010 deposition of Steve Bryan). On this record, it is undisputed that a personal guarantee is not required in order to receive goods and materials on credit. 84 Lumber also notes that it has approved many applications where the personal guarantee was not agreed to and stricken. See Doc. No. 30, Ex. 9 (Affidavit of David Svorcek)
The terms and conditions on the reverse side of the Agreement permit 84 Lumber to charge late fees on the unpaid principal balance plus interest, to recover costs in the event 84 Lumber places the account in the hands of a collection agency or an attorney, and to recover attorney's fees plus costs for all mechanic's liens filed by Plaintiff. More specifically, the terms and conditions provide, in relevant part, as follows:
A FINANCE/LATE CHARGE WILL BE ASSESSED AT 1.5% PER MONTH, WHICH IS 18% PER ANNUM, ON THE BALANCE THAT IS PAST DUE . . . IF THIS ACCOUNT IS PLACED IN THE HANDS OF A COLLECTION AGENCY OR ATTORNEY FOR COLLECTION, APPLICANT AGREES TO PAY AN AMOUNT EQUAL TO 15% OF THE UNPAID PRINCIPAL AND INTEREST AS A COLLECTION FEE, WHICH AMOUNT THE APPLICANT AGREES AS REASONABLE. APPLICANT FURTHER AGREES TO PAY ATTORNEYS FEES AND COSTS FOR ALL MECHANIC'S LIENS FILED BY
84 WHEN ANY PORTION OF APPLICANT'S ACCOUNT BECOMES PAST DUE.
Id. Although Mr. Bryan alleges that he does not recall reading these terms and conditions before he signed the document, he does admit that he "most likely" read the certification before executing the agreement and that his custom and practice was to either read such documents himself before he signs or to have his attorney read the relevant agreements for him.
Notwithstanding those contractual provisions, Mr. Bryan argues that the Court should limit any damages awarded to 84 Lumber to the initial credit limit, i.e., $25,000. In response, 84 Lumber contends that as of July 22, 2010, Bryan Construction's account was delinquent in the amount of $154,228, that $177,362.92 is due for the debt collection fee and that it has incurred $63,539.00 in attorney fees in prosecuting this action.
The primary cause of Bryan Construction's financial problems was the foreclosure of a Memphis, Tennessee condominium project known as the "Horizon Project." See Doc. No. 30 at Ex. 12 (reproducing e-mail communications and a newspaper story that depicts the events surrounding the ...