Opinion
No. 3:01-CV-2248-P
February 3, 2003
MEMORANDUM OPINION AND ORDER
Defendants and Plaintiff entered into an Indemnification Agreement in connection with a contract for Plaintiff to provide a supersedeas bond. Plaintiff paid the amount covered by the bond and sought repayment from the Defendants, who dispute their obligations under the Indemnification Agreement. Presently pending before the Court is Plaintiffs Motion for Summary Judgment, which was filed November 1, 2002. In this Motion, Plaintiff asks the Court to find there to be no genuine issue of material fact concerning its entitlement to all "losses, costs, damages, expenses, and attorneys fees incurred by [Plaintiff] as a result of having issued a supersedeas bond for [one of the defendants]." Pl.'s Mot. at 5. Plaintiff requests certain additional attorneys fees as well as pre- and postjudgment interest.
Defendants Medsolutions, Inc., formerly known as Advanced Envirotech Systems, Inc. ("AES"), Matthew Fleeger, Beverly Fleeger, Michael Moorhead, Lonn Smallwood, and Kathy Smallwood submitted a Joint Response to the motion on November 20, 2002. Defendants Bruce and Barbara Rockett, with leave of the Court, filed their Response on December 6, 2002. Plaintiff filed a Reply on December 6, 2002. Defendants AES, Matthew and Beverly Fleeger, and Michael and Lonn Smallwood submitted a Surreply, which was filed with permission of the Court on January 13, 2003. After careful consideration of the motion, the briefing, and the applicable law, the Court GRANTS Plaintiffs motion.
Factual Background
Plaintiff Western Surety Company ("Plaintiff" or "Surety") is a South Dakota corporation and a citizen of that State pursuant to 29 U.S.C. ¶ 1332. Defendant Medsolutions, Inc., formerly known as Advanced Envirotech Systems, Inc. ("AES"), is a Texas corporation and a citizen of that State. The remaining individual defendants are citizens of Texas. Plaintiff seeks to recover from Defendants $254,708.17 plus attorneys fees and interest.
All Defendants have stipulated to the following facts: In 1999 a judgment was entered against Defendants AES, Matthew Fleeger, Michael Moorhead, Lonn Smallwood, Beverly Fleeger, and Bruce Rockett ("Judgment Debtors"), in a lawsuit styled Turnamics, Inc. v. Advanced Envirotech Systems, Inc., Cause Number 98CV54903 in the General Court of Justice, Superior Court Division of the State of North Carolina, for the County of Buncombe (the "Judgment"). The North Carolina Court of Appeals affirmed the Judgment against the Judgment Debtors on February 1, 2000. The Judgment Debtors sought a supersedeas bond from Plaintiff in order to stay execution on the Judgment. In February 2000 the Judgment Debtors and Defendants Kathy Smallwood and Barbara Rockett executed a General Indemnity Agreement ("Indemnity Agreement") in favor of Plaintiff. Supersedeas bond no. SP268991577 was issued by Plaintiff on May 10, 2000, in the penal amount of $354,708.17.
Defendants Bruce and Barbara Rockett did not join the Amended Stipulation of Facts submitted on October 18, 2002. The proposed Joint Pretrial Order submitted January 10, 2003, indicates that all Defendants stipulate to the facts listed in this and the next paragraph.
On June 7, 2001, the North Carolina Supreme Court denied a Petition for Discretionary Review. The plaintiffs in the underlying litigation (the "Judgment Creditors") made demand on the supersedeas bond issued by Plaintiff. By check dated August 3, 2001, Plaintiff paid the Judgment Creditors $354,708.17 in satisfaction of its obligations on the bond. Plaintiff drew on a $100,000 certificate of deposit held as collateral, thereby reducing its loss to $254,708.17. Plaintiff made demand for indemnification from each Defendant. In December 2001, Plaintiff took possession (from the Judgment Creditors) of 63,450 shares of stock in AES pursuant to a Final Release and Assignment of Judgment ("Release and Assignment") executed by Plaintiff and the Judgment Creditors. None of the defendants has paid Plaintiff the $254,708.17 demanded. The Indemnity Agreement
Defendant Michael Moorhead's name was omitted from this stipulation in the Amended Stipulation of Facts, apparently because a settlement with Moorhead was imminent. That settlement agreement was never executed, and the stipulation of facts in the proposed Joint Pretrial Order indicates that Moorhead has not paid the money demanded by Plaintiff.
The summary-judgment record includes numerous copies of the Indemnity Agreement. In signing the Indemnity Agreement, Defendants promised to "indemnify and save [Surety] harmless from and against every claim, demand, liability, cost, charge, suit, judgment and expense which [Surety] may pay or incur in consequence of having executed [the supersedeas bond]." Indemn. Agrt. ¶ 2. Defendants also agreed "to accept the voucher or other evidence of such payments as prima facie evidence of the propriety" of any payments made by Surety "and of the Indemnitors' liability therefor to [Surety]." Id.
Paragraph 3 states that "[p]ayment shall be made to [Surety] by the Indemnitors as soon as liability exists or is asserted against [Surety], whether or not [Surety] shall have made payment therefor." Id. ¶ 3. The amount of such payment "shall be either equal to the larger of(a) the amount of any reserve set by [Surety], or (b) such amount as [Surety], in its sole judgment, shall deem sufficient to protect it from loss." Id. The Indemnity Agreement gives Plaintiff "the right to use the deposit, or any part thereof, in payment or settlement of any liability, loss or expense for which the Indemnitors would be obligated to indemnify [Surety] under the terms of this Agreement." Id. Under paragraph 5, Surety has "the exclusive right to determine for itself and the Indemnitors whether any claim . . . brought against [Surety] or the principal upon any such bond shall be settled or defended and its decision shall be binding and conclusive upon the Indemnitors." Id. ¶ 5.
Defendants' indemnification obligations also include payment of "fees of attorneys, whether on salary, retainer or otherwise, and the expense of procuring, or attempting procure, release from liability, or in bringing suit to enforce the obligation of any of the Indemnitors under this Agreement." Indemn. Agrt. ¶ 2.
The agreement was signed on February 16, 2000, by Matthew Fleeger in his personal capacity and on behalf of Advanced EnviroTech Systems, Inc., Beverly L. Fleeger, Michael P. Moorhead, Lonn J. Smallwood, Kathy S. Smallwood, Bruce A. Rockett, and Barbara J. Rockett.
The Release and Assignment and the AES Stock
A copy of the Release and Assignment was included in the summary-judgment record. In this agreement, the Judgment Creditors released Plaintiff from all claims under the supersedeas bond and assigned Plaintiff "an undivided interest in the Judgment entered in favor of Turnamics, Inc., et al." in the underlying case. Plaintiff and the Judgment Creditors also agreed, subsequent to the execution of the Release and Assignment, that the Judgment Creditors could pursue collection of the so-called deficiency amount, that is, the difference between the Judgment and the amount of the bond. When the deficiency amount is collected (or a settlement compromised) "then ownership of this Judgment shall vest completely and fully in Western Surety Company without further documents or assignments." The subsequent agreement appended to the Release and Assignment further states that "[a]t such time as the Deficiency Amount is collected by Execution, payment or compromise, counsel for [the judgment creditors] shall deliver . . . original stock certificates [in AES] duly indorsed to Western Surety Company, Inc., and shall record of record a full and absolute assignment of the entire Judgment less the Deficiency Amount to Western Surety . . ."
Also in the summary-judgment record is a letter from Albert L. Sneed, Jr., counsel to the Judgment Creditors. This letter indicates that the Judgment Debtors paid $48,225.48 to the Judgment Creditors in apparent satisfaction of the deficiency amount. The letter states that the stock certificates were being transmitted to counsel for Surety "in accordance with our agreement . . ." According to the letter, "You will recall that the stock certificates are to be returned when the Judgment has been paid and satisfied in full." The letter does not indicate to whom the stock certificates are to be returned. The summary-judgment record also includes copies of stock certificates that were transmitted to counsel for Surety. They are issued in the names of the various Judgment Creditors and are indorsed in blank on the back of the certificate.
Although Plaintiff is in possession of stock certificates that are indorsed in blank, Plaintiff claims to take no position as to who owns the stock certificates, but will return them to Defendants as soon as Plaintiff is paid what it is owed. Daniel Wilmer, counsel to Plaintiff, also stated in deposition that Plaintiff would apply the proceeds of a sale of the stock to the amount owed the Plaintiff by the Defendants. In its reply brief, Plaintiff asserts, for the first time, rights of equitable subrogation with respect to the stock.
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Plaintiff filed a diversity suit in this Court on November 9, 2001, claiming breach of contract and seeking to recover losses incurred as a result of having issued the supersedeas bond, related attorneys fees and costs, and interest. In their respective answers, Defendants maintain that Plaintiffs recovery "is barred, in whole or in part, by the defense of payment or offset." With leave of the Court, all Defendants except Bruce and Barbara Rockett asserted a counterclaim on September 5, 2002, seeking a declaratory judgment to the effect that the value of the stock received by Surety is to be set off against, and constitutes payment for, any amounts paid by Surety.
In the instant motion, Plaintiff asks this Court to grant summary judgment in its favor, on grounds that it has proven each element of its cause of action for breach of contract. Defendants have not filed a rival motion for summary judgment on their affirmative defenses or counterclaim.
Summary-Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and pointing out those portions of the record that demonstrate such an absence. Id. When the moving party bears the burden of proof on a matter, "[it] must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [its] favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis original). The nonmoving party may but need not present evidence casting doubt on the sufficiency of the moving party's proof. Summary judgment must be denied if a genuine issue of material fact remains in spite of the evidence traduced by the moving party. All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Breach of Contract
Plaintiff has moved for summary judgment on its breach-of-contract claim. Under Texas law, liability for breach of contract is established by proof of (1) the existence of a valid contract; (2) performance of the contractual obligations; (3) breach of the contract; and (4) injury resulting from the breach. Hussong v. Schwan's Sales Enter., Inc., 896 S.W.2d 320, 326 (Tex.App.-Houston [1st Dist.] 1995).
Defendants Medsolutions, Matthew Fleeger, Beverly Fleeger, Lonn Smallwood, Kathy Smallwood, and Michael Moorhead do not dispute that Plaintiff "may seek indemnification for the `loss' it incurred by issuing a supersedeas bond on Defendants' behalf" Joint Resp., Br. at 1 — 2. Defendants Bruce and Barbara Rockett, however, deny that the summary-judgment evidence establishes the essential elements of a breach-of-contract claim. In their Response, the Rocketts assert that Plaintiff "fails to demonstrate that no genuine issue of material fact exists" with respect to the existence of a valid contract, i.e., the essential elements of offer, acceptance, and consideration. The Rocketts further contend that the summary-judgment evidence is lacking with respect to the elements of performance, breach, and damages.
Existence of a Contract
As for the existence of a contract, the Rocketts' contention is without merit. Farnsworth defines "offer" as "a manifestation of assent that empowers another to enter into a contract by manifesting assent in return." FARNSWORTH ON CONTRACTS ¶ 3.10 (2d ed. 19XX). See also Wallace v. Ramon, 82 S.W.3d 501, 506 (Tex.App.-San Antonio 2002) (Lopez, J., dissenting) (citing RESTATEMENT (SECOND) OF CONTRACTS ¶ 24 (1981) (the manifestation of the "willingness to enter into a bargain so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it")). "if the offeree exercises this power by manifesting assent, the offeree is said to `accept' the offer." FARNSWORTH ¶ 3.10. See also RESTATEMENT ¶ 50. "Consideration is defined as `either a benefit to the promisor or a loss or detriment to the promisee. . . .'" Northern Natural Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1999) (quoting Receiver for Citizen's Nat'l Assurance Co. v. Hatley, 852 S.W.2d 68, 71 (Tex.App. — Austin 1993, no writ) (citations and quotation omitted)).
The summary-judgment evidence includes photocopies of the indemnity agreement. This agreement plainly manifests Plaintiffs assent to enter into a contract. The Rocketts' signatures on this document plainly manifest their assent to be bound. Plaintiffs execution of supersedeas bond no. 5P26899 1577 is sufficient consideration. "[A] written contract, prima facie, is presumed to embody the real intentions of the parties." Janes Contracting Co. v. Home Life Accident Co., 245 S.W. 1004, 1007 (Tex.Civ.App.-El Paso 1922). See also Perry v. Sinderman, 408 U.S. 593, 601 (1972) (a written contract is evidence of a formal understanding); Wheel Masters, Inc. v. Jiffy Metal Prods. Co., 955 F.2d 1126 (7th Cir. 1992) (a signed agreement is prima facie evidence of a valid and enforceable contract); Days Inn of Am., Inc. v. Patel, 88 F. Supp.2d 928 (C.D. Ill. 2000) (same). No other party disputes the existence of a valid contract. The summary-judgment evidence demonstrates "beyond peradventure" that a valid contract exists.
Performance and Breach
As for performance and breach, the Court finds there to be no genuine issue of material fact. The Court begins by noting "that the obligation assumed by [Defendants] is not confined to that of a common-law principal to reimburse his surety for any amount paid upon his debt, in which the liability of the principal is controlling, but that a special undertaking was assumed by [Defendants], which must be determined from a construction of the written contract." U.S. Fid. Guar. Co. v. Jones, 87 F.2d 346, 347 (5th Cir. 1937) (citing Fid. Cas. Co. v. Harrison, 274 S.W. 1002 (Tex.Civ.App.-Fort Worth 1925)). See also Ford v. Aetna Ins. Co., 394 S.W.2d 693 (Tex.Civ.App.-Corpus Christi 1965) (citing English v. Century Indem. Co., 342 S.W.2d 366, 369 (Tex.Civ.App. — San Antonio 1961)). "[T]he nature of an indemnitor's liability upon an indemnity contract must be determined by its provisions . . ." Cent. Sur. Ins. Corp. v. Martin, 224 S.W.2d 773, 776 (Tex.Civ.App.-Beaumont 1949) (citing Russell v. Lemons, 205 S.W.2d 629, 631 (Tex.Civ.App.-Amarillo 1947)). "A contract for indemnity is read as any other contract." Safeco Ins. Co. of Am. v. Gaubert, 829 S.W.2d 274, 281 (Tex.App.-Dallas 1992); Liberty Steel Co. v. Guardian Title Co., 713 S.W.2d 358, 360 (Tex.App.-Dallas 1986, no writ).
Under principles of contract law, it is the task of this Court to ascertain and give effect to the parties' intentions, as expressed in the written document. Ideal Lease Serv. v. Amoco Prod. Co., 662 S.W.2d 951, 953 (Tex. 1983); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Sun Oil Co v. Madeley, 626 S.W.2d 726, 727-28 (Tex. 1981). If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is unambiguous and the court will construe the contract as a matter of law. Coker, 650 S.W.2d at 393; Sun Oil, 626 S.W.2d at 732; R P Enters, v. LaGuarta, Gavrel Kirk, Inc., 596 S.W.2d 517, 519 (Tex. 1980). When the contract is unambiguous, the court must determine the rights and liabilities of the parties by giving legal effect to the plain grammatical meaning of the contract as written. Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987). Indemnity agreements are strictly construed in favor of the indemnitors. Keystone Equity Mgmt. v. Thoen, 730 S.W.2d 339, 340 (Tex.App.-Dallas 1987, no writ).
The parties do not argue that the Indemnity Agreement is ambiguous. Finding the Indemnitors' obligations, as expressed in paragraph 2 of the Indemnity Agreement, to be unambiguous, the Court enforces this obligation according to its terms. If Plaintiff "[paid] or incur[red]" any "claim, demand, liability, cost, charge, suit, judgment and expense . . . in consequence of having executed [the supersedeas bond]" then Defendants are obligated to indemnify Plaintiff for the same. Id. ¶ 2. Plaintiff paid the Judgment Creditors $354,708.17 toward the Judgment. Because Plaintiff "paid" a "judgment," Defendants are obliged to "indemnify and save [Plaintiff] harmless . . ." Id. Therefore, under the Indemnity Agreement, Defendants must pay Plaintiff "such amount as [Surety], in its sole judgment, shall deem sufficient to protect it from loss." Id. at ¶ 3 (emphasis added). It is undisputed that Plaintiff drew on a $100,000 certificate of deposit held as collateral, and applied the proceeds toward Defendants' obligation. It is also undisputed that Plaintiff demanded payment of $254,708.17 from each defendant. Thus Plaintiff implicitly asserts that the amount demanded—$254,708. 17mdashiis an amount which it judged sufficient to protect it from loss. Insofar as Defendants have failed to make such payment, the Court finds them to be in breach of their obligations under the Indemnity Agreement.
This action is consistent with Plaintiffs right under the Indemnity Agreement "to use the deposit, or any part thereof, in payment or settlement of any liability, loss, or expense for which the Indemnitors would be obligated to indemnify [Surety] under the terms of this Agreement." Idemn. Agrt. ¶ 3.
Defendants argue that Plaintiffs right to indemnification under the Indemnity Agreement "is limited to the amount of the losses it incurred . . ." Joint Resp. ¶ 1. Because Plaintiff possesses ABS stock indorsed by the persons in whose name the stock was issued, it is contended that Plaintiff must count the value of that stock (as of the date it was acquired) against any "loss" sustained as a consequence of paying the supersedeas bond. Furthermore, Defendants maintain, because a genuine fact issue exists concerning the value of that stock, Plaintiff cannot prevail on its Motion for Summary Judgment.
Defendants have presented no authority in support of their novel theory of avoidance, not one case where a court required an obligee to credit against an obligor's debt the value of property not assigned to the obligee or held as collateral. The summary-judgment evidence does not raise a fact question about whether this stock constitutes payment of the obligation. Though it is unclear why Plaintiff came into possession of the stock certificates, the uncontroverted summary-judgment evidence shows that Plaintiff claims no ownership interest in the stock. Nothing in the record suggests that Defendants transferred ownership of this stock or caused the Judgment Creditors to transfer ownership of this stock as payment, or that Plaintiff agreed to accept an assignment of this stock as a discharge of Defendants' obligation under the Indemnity Agreement. Other than Plaintiffs redeeming of the certificate of deposit held as collateral, there is no evidence of payment by Defendants.
Similarly, the summary-judgment evidence does not contain facts that would give this court reason to invoke the doctrine of setoff. "The right of setoff allows entities that owe each other money to apply their debts to each other." Sommers v. Concepcion, 20 S.W.3d 27, 35 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). The classic example of the right to setoff is a bank's right to apply cash in a customer's account (the bank's `debt' to the customer) against a loan made to the customer (the customer's debt to the bank). See, e.g., Bandy v. First State Bank, 835 S.W.2d 609 (Tex. 1992). Another example of potential setoff can be found in In re ICH Corp., 203 B.R. 88 (N.D. Tex. 1999). In that case, a predecessor of ICH had issued Sayyad Corporation what the Court described as a promissory note (ICH's debt to Sayyad), while Sayyad had taken loans from ICR under a revolving credit agreement (Sayyad's debt to ICR). Judge Fitzwater's reasons for setting aside the Bankruptcy Court's application of the setoff doctrine in that case have no application to the case at hand. And the fact that the promissory note was issued to complete the purchase of stock is of no consequence here. The facts of ICR merely illustrate why setoff is inapposite to the facts of the present case. There mutual obligations were at issue. Here, only one party is under an obligation to the other. Defendants are obligated under the Indemnity Agreement to indemnify Plaintiff against loss. This obligation is a debt Defendants owe Plaintiff Plaintiff holds (without claim of ownership) stock certificates issued by one of the defendants. This stock represents an equity interest in Defendant Medsolutions, not a debt. The summary-judgment evidence reveals no obligation in favor of Defendants whatsoever. Since there are no debts to cancel each other out, there is no basis for setoff.
The Court finds no other legal or equitable grounds for requiring Plaintiff to apply the value of the stock toward Defendants' obligation. Unjust enrichment, for example, has no application. The uncontroverted facts do not indicate that Plaintiff has obtained a benefit from Defendants by fraud, duress or the taking of undue advantage. See Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). In fact, the summary-judgment evidence reveals that Plaintiff intends to "return" the stock certificates to Defendants upon payment of the indemnification obligation. Were Plaintiff to claim an ownership interest in the stock and refuse to relinquish those rights upon full payment of Defendants' obligation, a claim of unjust enrichment might lie. But speculation about future events is insufficient to raise a genuine issue of material fact in the present case.
In short, Defendants have provided no support for their theory of avoidance, and the Court finds no legal or equitable basis for requiring Plaintiff to count the value of the stock against Defendants' obligation. Because Defendants are not entitled to any credit based on the stock's value, it is unnecessary to reach the issue of the stock's value. Though the parties have raised a genuine issue concerning the value of the stock, this disputed fact is not material to the resolution of the case. Thus, the Court declines to decide the issue.
Damages
Insofar as Defendants are not entitled to any credit toward their obligation, the amount of damages is not genuinely in dispute. Without credit for the stock, Defendants cannot show that damages are anything less than Plaintiff claims. Thus, the Court finds that Plaintiff has demonstrated beyond peradventure damages in the amount of $254,708.17 for the unpaid indemnity obligation.
Plaintiff has also presented uncontradicted summary-judgment evidence that it engaged the law firm of Kleiman Lawrence Baskind Fitzgerald LLP to assist it in bringing this action against Defendants for the enforcement of the indemnity agreement. Plaintiff avers that it has incurred attorneys fees totaling $20,926.60 in connection with the enforcement of the indemnity agreement. Plaintiff presents further uncontradicted evidence that it retained Dale Boisso of Ruhter Reynolds to assist it in valuing the stock certificates. Costs for this assistance, through September 30, 2002, are claimed to total $11,753.13. These fees and expenses are authorized under paragraph 2 of the Indemnity Agreement. Plaintiff may recover these fees and expenses.
Plaintiff prays this Court to award "$7,500.00 for appeal to the Fifth Circuit Court of Appeals and for $10,000 if appealed to any higher court." Pl.'s Mot. ¶ 20. The Indemnity Agreement entitles Plaintiff to recover expenses it may pay or incur in consequence of executing the bond. The Court awards these expenses, contingent upon Plaintiffs success on appeal.
Plaintiff also seeks "prejudgment interest" under Texas Finance Code ¶ 302.002. The Indemnity Agreement does not specify a rate of interest to be paid on the indemnification obligation after demand is made. The Texas Finance Code, however, provides for the payment of "legal interest" on an obligation when "a creditor has not agreed with an obligor to charge the obligor any interest . . ." TEX. FIN. CODE ¶ 302.002. The statutory rate of interest is "six percent a year on the principal amount beginning on the 30th day after the date on which the amount is due." Pursuant to the Indemnity Agreement, payment was to be made as soon as liability exists or was asserted against Surety. Indenm. Agrt. ¶ 3. The summary-judgment evidence does not indicate that Plaintiff became liable on the bond when the Supreme Court of North Carolina denied the discretionary petition in the underlying litigation on June 7, 2001. Further, the summary-judgment evidence does not indicate when the Judgment Creditors asserted a claim against the supersedeas bond. However, Plaintiff seeks interest only from the date of the filing of this suit. Inasmuch as the filing date of this suit (November 9, 2001) is more than thirty days after either event, the Court accepts this date as the starting date for the calculation of legal interest.
Though Plaintiff requests "prejudgment interest," the Court notes that the interest sought is more properly referred to as "legal interest." See Tex. Fin. Code ¶ 302.002 ¶ 301.002(a)(8) (definition of "legal interest").
Plaintiff also prays for postjudgment interest. Federal law governs the award of postjudgment interest on "any judgment in a civil case recovered in a district court, . . . including actions based on diversity of citizenship." Chapman Cole v. Itel Container Int'l B.V., 865 F.2d 676, 689 (5th Cir. 1989) (emphasis omitted); Travelers Ins. Co. v. Liljeberg Enters., Inc., 7 F.3d 1203, 1209 (5th Cir. 1993). Postjudgment interest is awarded pursuant to 28 U.S.C. ¶ 1961.
Conclusion
Plaintiff has demonstrated beyond peradventure each element of its breach-of-contract claim. The Motion for Summary Judgment is GRANTED. Plaintiff may recover total damages of $287,387.90 plus legal interest calculated at ¶ percent per annum beginning November 9, 2001, and postjudgment interest as provided by 28 U.S.C. ¶ 1961.
It is so ordered.
Signed this 3rd day of February 2003.