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FirstMerit Bank, N.A. v. Trinity Mgmt. Assocs., L.P.

United States District Court, N.D. Illinois

August 12, 2013

FIRSTMERIT BANK, N.A., a national banking association, Plaintiff,
v.
TRINITY MANAGEMENT ASSOCIATES, L.P., an Illinois limited partnership; CARSTEN H. FRANK II, an individual; S. THOMAS CLEMENTS, an individual; DANIEL A. KINNARE, an individual; and WILLIAM J. SIVERS, an individual, Defendants

For FirstMerit Bank, N.A., a national banking association, Plaintiff: Kenneth M. Lodge, LEAD ATTORNEY, Ryan Matthew Holz, Locke, Lord, LLP, Chicago, IL.

For Trinity Management Associates, L.P., an Illinois limited partnership, S. Thomas Clements, an individual, Daniel A Kinnare, an individual, William J Sievers, an individual, Defendants, Cross Claimants: Christopher N. Ackeret, Debt & Injury Law Center, LLC, Chicago, IL.

For Carsten H Frank, II, an individual, Defendant, Cross Defendant, Cross Claimant: Lee F. DeWald, LEAD ATTORNEY, Kevin K McCormick, DeWald Law Group P.C., Arlington Heights, IL.

For S. Thomas Clements, an individual, Daniel A Kinnare, an individual, William J Sievers, an individual, Cross Defendants: Christopher N. Ackeret, Debt & Injury Law Center, LLC, Chicago, IL.

OPINION

Milton I. Shadur, Senior United States District Judge.

MEMORANDUM OPINION AND ORDER

FirstMerit Bank, N.A. (" FirstMerit" ) has sued Trinity Management Associates, L.P. (" Trinity" ), Carsten Frank II (" Frank" ), S. Thomas Clements (" Clements" ), Daniel Kinnare (" Kinnare" ) and William Sivers (" Sivers" ), alleging a breach of contract on the part of each defendant. All of those contract claims stem from the identical promissory note (" Note" ) on which Trinity was the maker and the individuals were guarantors under separate commercial guaranty agreements (" Guaranties" ). Because each Guaranty contained a provision (as is customary in such transactions) that permitted the obligee under the Note to sue directly on the Guaranty without first having to pursue (let alone exhaust) its remedy against principal obligor Trinity, FirstMerit could properly sue all of the defendants in this single lawsuit.

FirstMerit has now filed a motion under Fed.R.Civ.P. (" Rule" ) 56 for summary judgment on its Complaint Count I against Trinity and its Complaint Counts III through V against Clements, Kinnare and Sivers respectively (collectively " Guarantors" ). [1] Neither Trinity nor the Guarantors

Page 790

dispute any of the relevant substantive facts. Instead their only argument against the grant of summary judgment is that FirstMerit's requested amount of attorneys' fees and expenses is excessive. For the reasons stated in this opinion, FirstMerit's motion for summary judgment is granted as to the damages sought in Counts I, III, IV and V, with the amount of attorneys' fees and expenses to be decided at a later date.

Standard of Review

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). For that purpose courts consider the entire evidentiary record and must view all of the evidence and draw all inferences from that evidence in the light most favorable to nonmovants (Egan Marine Corp. v. Great Am. Ins. Co. of N.Y., 665 F.3d 800, 811 (7th Cir. 2011)).

But a nonmovant must produce more than " a mere scintilla of evidence" to support the position that a genuine issue of material fact exists and " must come forward with specific facts demonstrating that there is a genuine issue for trial" (Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010), quoting Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). As Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003) has explained:

[T]he Federal Rules of Civil Procedure require the nonmoving party to " set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Conclusory allegations, ...

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