Iberiabank v. Coconut 41, LLC et al, No. 2:2011cv00321 - Document 310 (M.D. Fla. 2013)

Court Description: OPINION and ORDER denying 251 Motion for Partial Summary Judgment and 255 Motion for summary judgment. Signed by Judge John E. Steele on 2/4/2013. (SVC)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION IBERIABANK, a Louisiana banking corporation, as successor in interest to Orion Bank, Plaintiff, vs. Case No. COCONUT 41, LLC, a Florida limited liability company, THE D'JAMOOS GROUP, LTD, a Florida limited liability company, D'JAMOOS HOLDINGS, INC., a Florida corporation, JOSEPH D'JAMOOS, an individual and trustee of the Joseph E. D'Jamoos Second Amended and Restated Revocable Trust Agreement U/AD May 20, 2003, AJAX PAVING INDUSTRIES, INC., a Michigan corporation, WESTWIND CONTRACTING, INC., a Florida corporation, and HOLE MONTES, INC., Defendants. ___________________________________ WESTWIND CONTRACTING, INC., Counter-claim Plaintiff, vs. IBERIABANK, a Louisiana banking corporation, as successor in interest to Orion Bank, Counter-claim Defendant. ___________________________________ COCONUT 41, LLC, Counter-claim Plaintiff, vs. 2:11-cv-321-FtM-29DNF IBERIABANK, as successor in interest to Orion Bank, Counter-claim Defendant. ___________________________________ WESTWIND CONTRACTING, INC., Cross-claim Plaintiff, vs. COCONUT 41, LLC, a Florida limited liability company; AJAX PAVING, INC., a Michigan corporation; and HOLE MONTES, INC., a Florida corporation; Cross-claim Defendants. ___________________________________ WESTWIND CONTRACTING, INC., Third-party Plaintiff, vs. HG COCONUT, LLC, a Florida limited liability company, Third-party Defendant. ___________________________________ HG COCONUT, LLC, Cross-claim Plaintiff, vs. WESTWIND CONTRACTING, INC., Cross-claim Defendant. ___________________________________ COCONUT 41, LLC, Cross-claim Plaintiff, -2- vs. WESTWIND CONTRACTING, INC.; and HG COCONUT, LLC, Cross-claim Defendants. ___________________________________ HG COCONUT, LLC, Third-party Plaintiff, vs. IBERIABANK, a Louisiana banking corporation, as successor in interest to Orion Bank, Third-party Defendant. ___________________________________ HG COCONUT, LLC, Cross-claim Plaintiff, vs. COCONUT 41, LLC, Cross-claim Defendant. ___________________________________ OPINION AND ORDER This matter comes before the Court on HG Coconut, LLC s (HG Coconut) Motion for Partial Summary Judgment Against Westwind Contracting, Inc. (Doc. #251), along with Deposition Excerpts (Doc. #253) and the Affidavit of David Leve (Doc. #254) filed on October 26, 2012. Westwind Contracting, Inc. (Westwind) filed a Memorandum in Opposition (Doc. #263) and HG Coconut filed a Memorandum of Law in Reply (Doc. #275). -3- Also before the Court is Iberiabank s Motion for Summary Judgment Against HG Coconut, LLC (Doc. #255) filed on October 26, 2012. HG Coconut, LLC filed a Legal Memorandum in Opposition (Doc. #261) and Iberiabank filed a Reply (Doc. #273). summary judgment on HG Coconut, LLC s Iberiabank seeks Counterclaim Against Iberiabank (Doc. #201). Summary judgment is appropriate only when the Court is satisfied that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). An issue of fact is genuine if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Baby Buddies, Inc. v. Toys R Us, Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is material if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana v. Dantanna s, 611 F.3d 767, 772 (11th Cir. 2010). However, if reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. St. Charles Foods, Inc. v. America s Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)(finding -4- summary judgment may be inappropriate where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts )). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment. Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007). After review of the record, the Court concludes that there are material issues of disputed material fact which preclude summary judgment. Accordingly, it is now ORDERED: 1. HG Coconut, LLC Motion for Partial Summary Judgment Against Westwind Contracting, Inc. (Doc. #251) is DENIED. 2. Iberiabank s Motion for Summary Judgment Against HG Coconut, LLC (Doc. #255) is DENIED. DONE AND ORDERED at Fort Myers, Florida, this February, 2013. Copies: Counsel of record -5- 4th day of

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