IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ALL POINTS CAPITAL CORP.,

a foreign corporation,

Plaintiff,

vs. CASE NO. 5:11-cv-116/RS-EMT

BOYD BROTHERS, INC., a Florida 

corporation, et al., 

Defendants,

_________________________________________/

ORDER

Before me are Plaintiff’s Motion for Summary Judgment and Incorporated 

Memorandum of Law (Doc. 15) and Defendants’ Response in Opposition and Request 

for Continuance (Doc. 28). 

Beginning on July 7, 2006, Defendants entered into a series of installment 

promissory notes with RCA Capital Corp, the predecessor in interest to Plaintiff. On 

October 1, 2007, Defendants executed a cross-collateral and cross-default agreement on 

the promissory notes. Defendants have purportedly defaulted on these agreements.1 

Defendants seek continuance pursuant to Fed. R. Civ. P. 56(f) so that they may 

conduct further investigation to support their defenses. However, for the majority of their 

defenses, any further discovery would be unnecessary because those defenses fail as a 

matter of law. 

 

1 The promissory notes at issue are governed by the laws of New Jersey (See e.g., Doc. 1, Attach. 1, p.4). 

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Notarization and Dating 

Defendants’ first, third, fourth, fifth, sixth, and seventh affirmative defenses 

allege, in some part, that the agreements violate the statute of frauds because they were 

not notarized. Likewise, Defendants claim in the seventh affirmative defense that the 

agreement in question is invalid under the statute of frauds because it was not dated. 

Defendants’ have not addressed the notarization or dating in their response. 

New Jersey’s statute of frauds requires that certain agreements, including loans 

over $100,000, “shall be in writing, and signed by the party to be charged therewith.” 

N.J. Stat. § 25:1-5. There is no notarization or dating requirement. 

Commercial Impracticability 

Defendants claim in their second affirmative defense that the defense of 

commercial impracticability due to the BP oil spill excuses their nonperformance. They 

assert that a significant portion of their customers are located on the Gulf coast and were 

devastated by the oil spill. (Doc. 38, p. 10-11). As a result, Defendants’ printing 

business was severely impacted. 

The doctrine of commercial impracticability provides that “where, after a contract 

is made, a party's performance is made impracticable without his fault by the occurrence 

of an event the non-occurrence of which was a basic assumption on which the contract 

was made, his duty to render that performance is discharged, unless the language or the 

circumstances indicate the contrary.” Seitz v. Mark-O-Lite Sign Contractors, 210 N.J. 

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Super. 646, 65, 510 A.2d 319, 322 (Law Div. 1986) (citing RESTAT. 2D OF CONTRACTS, § 

261). “The continuation of existing market conditions and of the financial situation of 

the parties are ordinarily not such [basic] assumptions, so that mere market shifts or 

financial inability do not usually effect discharge under the rule.” RESTAT. 2D OF 

CONTRACTS, § 261, cmt. b.

Here, Defendant’s business may have been affected by the oil spill. However, the 

oil spill was but one of numerous factors that made up the general market conditions 

along the Gulf coast which the parties did not contemplate during their agreement. In all 

likelihood, the parties also did not consider a host of other factors which, subsequent to 

their agreement, would affect their business: the impending decline in the real estate 

market; the collapse of Wall Street firms and the subsequent tightening of credit; the 

rising cost of petroleum; a surge in commodity prices; multiple rounds of quantitative

easing. Performance cannot be simply discharged for all unforeseen conditions that 

affect one’s business. Otherwise, every fisherman, hotel worker, and palm-reader along 

Bourbon Street could forgo their mortgage payment, cancel their cell phone contract, and 

defer their credit card bills in the wake of the oil spill. This is obviously not a correct 

interpretation of the law. Rather, there must be a more direct connection to warrant the 

defense of commercial impracticability. Two examples in the Restatement are 

instructive. 

Several months after the nationalization of the Suez Canal, 

during the international crisis resulting from its seizure, A 

contracts to carry a cargo of B's wheat on A's ship from 

Galveston, Texas to Bandar Shapur, Iran for a flat rate. The 

contract does not specify the route, but the voyage would 

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normally be through the Straits of Gibraltar and the Suez 

Canal, a distance of 10,000 miles. A month later, and several 

days after the ship has left Galveston, the Suez Canal is 

closed by an outbreak of hostilities, so that the only route to 

Bandar Shapur is the longer 13,000 mile voyage around the 

Cape of Good Hope. A refuses to complete the voyage unless 

B pays additional compensation. A's duty to carry B's cargo is 

not discharged, and A is liable to B for breach of contract.

The Suez Canal is closed while A's ship is in the Canal, 

preventing the completion of the voyage. A's duty to carry B's 

cargo is discharged, and A is not liable to B for breach of 

contract.

RESTAT. 2D OF CONTRACTS, § 261, illustrations 9 & 10. 

Here, the oil spill did not prevent Defendants from doing their printing business. 

Rather, it made their printing business more difficult and less profitable. Under these 

circumstances, they are not excused from performance. 

Missing Contract Terms 

Defendants allege in the first affirmative defense that because the promissory 

notes failed to identify the interest rate charged they should relief should be barred 

because of the statute of frauds. The statute of frauds does not deal with the specific 

terms of a contract, but rather requires certain contracts to be in writing. I construe 

Defendants’ contention here to mean that the contract was lacking an essential term and 

should be void for being indefinite. In New Jersey, where “the essential parts of a

contract are spelled out, a court will not refuse to enforce that contract because some of 

its less critical terms have not been articulated.” Satellite Entertainment Center, Inc. v. 

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Keaton, 347 N.J. Super. 268, 276 (App.Div. 2002). In such cases, courts will imply a 

reasonable missing term or, if necessary, will receive evidence to provide a basis for such 

an implication. Id. This is particularly true when there has been part performance of the 

contract, or--as here--where one of the parties has fully performed his part of the bargain. 

Id. 

Here, any failure to include interest rates may affect the calculation of what is in 

arrears but it does not bar Plaintiff from relief. 

IT IS ORDERED: 

1. The Motion for Summary Judgment (Doc. 15) is GRANTED, in part, and 

DENIED, in part. 

2. The first, third, fourth, and seventh affirmative defenses are dismissed because 

notarization, dating, and identifying an interest rate do not violate the statute of 

frauds and do not bar recovery. 

3. The second affirmative defense is dismissed because the doctrine of 

commercial impracticability does not excuse performance. 

4. The fifth and sixth affirmative defenses remain because Defendants should be 

allowed time to take discovery regarding the account which contained no 

signature page, and the cross-collateral and cross-default agreements which did 

not identify or reference the loan or agreements. 

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ORDERED on July 15, 2011.

/S/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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