IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

HANCOCK BANK, a Mississippi 

banking corporation, 

Plaintiff,

vs. CASE NO. 5:11-cv-94/RS-CJK

CONSOLIDATED

BOYD BROTHERS, INC., a Florida corporation; 

JAMES A. BOYD, SR.; NANCY G. BOYD;

JAMES A. BOYD, JR.; and 

CECELIA R. BOYD, 

Defendants. 

_________________________________________/

ORDER

Before me are Plaintiff’s Motion for Summary Final Judgment (Doc. 63) and 

Defendants’ Response in Opposition (Doc. 82).

Standard of Review

Summary judgment is appropriate when “there is no genuine issue as to any 

material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56 (c). In other words, the basic issue before the court is “whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of 

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showing the absence of a genuine issue as to any material fact, and in deciding whether 

the movant has met this burden, the court must view the movant’s evidence and all 

factual inferences arising from it in the light most favorable to the nonmoving party. 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences 

arising from undisputed facts, then a court should deny summary judgment. Miranda v. B 

& B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile 

Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere ‘scintilla’ of evidence supporting the nonmoving party's position will not suffice; 

there must be enough of a showing that the jury could reasonably find for that party. 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 

251). 

Analysis

Plaintiff’s Claims

Plaintiff and Defendant Boyd Brothers, Inc. are parties to at least six separate loan 

agreements. Defendant Boyd Brothers, Inc. is in bankruptcy and a stay has been entered 

as to that defendant. (See Doc. 74). The individual defendants personally guaranteed 

these loans. Plaintiff claims that the loans are in default, and the personal guaranties have 

not been satisfied. For clarity, each of the loans will be discussed in turn. 

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 2 of 11
I . LOAN 1 (5:11-cv-94)

The first loan involves the promissory note in the initial principal amount of 

$250,000 that Defendant Boyd Brothers Inc. executed and delivered on May 10, 2007. 

(Doc. 1, Exhibit 1). This loan was renewed on two occasions. (Doc. 1, Exhibits 2 & 3). 

Along with the second renewal, the individual defendants executed guaranty agreements. 

(Doc. 1, Exhibits 4, 5, 6, & 7). Defendant Boyd Brothers Inc. executed a third loan 

renewal. (Doc. 1, Exhibit 10). Plaintiff claims that this loan is in default and that the 

guaranties are not satisfied. 

The individual defendants contend that summary judgment is inappropriate for 

several reasons. First, they assert that Mr. Jade Stanford’s declaration is inadmissible. 

(Doc. 82, p.3). Mr. Stanford is a Plaintiff’s vice president, and his declaration and review 

of the loan documents is admissible. (See Doc. 65). What is not within Mr. Stanford’s 

personal knowledge is covered by the business record’s exception. Fed. R. Evid. 803(6). 

Next, Defendants also contend that the named defendant Cecelia R. Boyd is an 

improper party. The loan documents refer to Cecilia R. Boyd. The named defendant 

reflects a clear misspelling and can be corrected upon motion. Ms. Boyd, regardless of 

the spelling of her first name, has appeared. 

Defendants also contend that the Equal Credit Opportunity Act (“ECOA”) bars 

recovery from the female individual defendants. (Doc. 82, p. 6-7). The ECOA makes it 

unlawful for lenders to discriminate against applicants based on gender or marital status. 

15 U.S.C. § 1691(a)(1). Defendants have cited an Alaska Supreme Court case to argue 

that the ECOA makes unlawful guaranty agreements unenforceable. See Still v. 

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 3 of 11
Cunningham, 94 P.3d 1104 (Alaska 2004). However, Defendants have not met their 

burden in establishing a prima face case of credit discrimination. Mays v. Buckeye Rural 

Elec. Coop., Inc., 277 F.3d 873, 876 (6th Cir. 2002); Mercado-Garcia v. Ponce Fed. 

Bank, 979 F.2d 890, 893 (1st Cir. 1992); Nicholson v. Johanns, 2007 U.S. Dist. LEXIS 

83909, *18-20 (S.D. Ala. 2007). Absent anything but mere allegations, Defendants are 

not entitled to any burden-shifting analysis. Id. 

Affirmative Defenses

The first affirmative defense, waiver and estoppel, is meritless. (Doc. 18, p. 1). 

Defendants claim that Plaintiff made representations that they would make future 

renewals of the promissory note. However, the terms of the final renewal (Doc. 1, 

Exhibit 10) states that the “Note cannot be changed or modified orally.” Id at ¶14. The 

terms could not be clearer. Any representations about future renewals are not part of this 

agreement and cannot be considered. Further, the parole evidence rule precludes 

consideration of oral agreements which contradict the terms of this valid contract. Solary 

v. Webster, 35 Fla. 363, 373 (Fla. 1895); Federal Deposit Ins. Corp. v. Hemmerle, 592 

So. 2d 1110, 1113-1114 (Fla. 4th DCA. 1991). 

The second affirmative defense is also meritless. (Doc. 18, p. 2). The statute of 

frauds requires certain contracts to be in writing. See, e.g., Fla. Stat. § 672.201; Id. at § 

725.01. Defendants’ claims that the guaranty agreements were not notarized or dated is 

of no moment. There is no such requirement under Florida law. The fact that the 

guaranty agreements did not identify the amount of the debt is also not material. The 

agreement states that the “Guarantor absolutely and unconditionally guarantees full and 

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 4 of 11
punctual payment and satisfaction of the . . . indebtedness of the Borrower to Lender.” 

(Doc. 1, Attach. 7).1The language of this writing is sufficiently clear to establish the 

duties of the parties. It satisfies the statute of frauds. “Every agreement which is 

required to be in writing, under the statute of frauds, must be certain in itself, or capable 

of being made so by a reference to something else whereby the terms can be ascertined 

with reasonable certainty.” Swisher v. Conrad, 76 Fla. 644, 646 (Fla. 1919) (citation and 

quotation omitted). Here, the agreement refers to the indebtedness of Boyd Brothers Inc., 

and the amount of indebtedness could be ascertained by reference to the underlying loan. 

The third affirmative defense, commercial impracticability, is meritless. 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. Super. 646, 65, 

510 A.2d 319, 322 (Law Div. 1986) (citing RESTAT. 2D OF CONTRACTS, § 261). Quite 

simply, the BP oil spill, and knowledge by Plaintiff that Defendants would have difficulty 

repaying the debt do not excuse nonperformance. 

The fourth affirmative defense, no meeting of the minds, is without merit. The 

agreement speaks for itself. “In an action based upon a contract, the admitted contract . . 

. so often speaks so conclusively on the material facts as to leave no doubt that there are 

no genuine issues of any material fact to be determined.” Rivaux v. Florida Power & 

 

1 Each of the individual defendants executed identical, but separate guaranties. This guaranty is used as an example 

of what all individual defendants agreed to. It is between Ms. Cecelia Boyd and Plaintiff. 

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 5 of 11
Light Co., 78 So. 2d 714, 716 (Fla. 1955). Here, the original loan and subsequent 

extension agreements are unambiguous and any terms which do not appear in the 

agreements concerning other contingencies are not to be considered. 

The fifth affirmative defense, lack of consideration, is without merit. There was 

adequate consideration to support the original loan, the extensions, and the guaranty 

agreements. The fact that Plaintiff may have known that Defendants lacked the resources 

to pay does not negate that there was a mutuality of the bargained-for exchange. 

The sixth affirmative defense, mutual departure, is without merit. Mutual 

departure is not a recognized defense in Florida. 

The seventh affirmative defense, duress and coercion, is also meritless. Even if 

true, a threat to call a promissory note to induce the execution of the Amended Loan 

Agreement is not actionable. The right to call a promissory note is governed by the terms 

of that agreement. And, exercising that right is not a form of duress. See AM JUR 2D 

Duress and Undue Influence § 6 (“A claim of duress cannot be based upon a party's 

threat to take an action that is within that party's legal right to take.”). 

The ninth affirmative defense fails for the same reason as all the purported 

representations made by the bank, which were never written down. Those outside 

agreements are not part of the contract and will not be considered because they violate 

the parole evidence rule. 

In sum, even in the light most favorable to Defendants, there is no room for 

debate. The loan is in default, and the individual defendants have not fulfilled the valid 

guaranties. 

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 6 of 11
II. LOAN 2 (5:11-cv-95)2

The second loan involves the promissory note in the initial principal amount of 

$420,000 that Defendant Boyd Brothers Inc. executed and delivered on May 27, 2005. 

(Doc. 1, Exhibit 1). To secure this obligation, Defendant Boyd Brothers executed and 

delivered a mortgage on property it then owned to Plaintiff which was recorded. (Doc. 1, 

Exhibit 2). To further secure the obligation, Defendant Boyd Brothers Inc. executed and 

delivered an assignment of rents on property it owned which was also recorded. (Doc. 1, 

Exhibit 3). 

Defendant Boyd Brothers Inc. executed and delivered a renewal promissory note 

in September 2010, in the principal amount of $393,648.96. (Doc. 1, Exhibit 6). The 

individual defendants executed guaranty agreements of the loan. (Doc. 1, Exhibits 7, 8, 

9, & 10). Plaintiff claims that the loan is in default and the guaranties are not satisfied. 

Defendants’ arguments against summary judgment fail for the reasons set forth in 

Section I, supra. While the loan documents and guaranty agreements are somewhat 

different from the ones executed in Section I, the rationale is the same. Here, the 

guaranties contain similar language stating that the “lender shall not be deemed to have 

waived any rights . . . unless such waiver is in writing and signed by the lender.” (Doc. 1, 

Exhibit 7). This language has the same meaning and effect as those agreements in 

Section I. 

Defendants’ seventh affirmative defense is without moment. Defendants assert 

that Plaintiff claims are barred because Plaintiff failed to “mitigate its damages by not 

 

2 All references to documents in this section refer the docket entry for 5:11-cv-95. 

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 7 of 11
foreclosing on the collateral.” (Doc. 14, p.3). The loan documents entitle Plaintiff to 

pursue available remedies successively or concurrently. In addition, it is common 

practice and well settled law that a lender may first pursue a judgment on a promissory 

note, and then later file a separate action to foreclose the mortgage securing the note if 

the judgment is not satisfied. Junction Bit & Tool Co. v. Village Apartments, Inc., 262 

So.2d 659, 660 (Fla. 1972). 

For these reasons, and in the light most favorable to Defendants, summary 

judgment is appropriate for the second loan. 

III. Loan 3 (5:11-cv-97)

3

The third loan involves the promissory note in the initial principal amount of 

$100,000 that Defendant Boyd Brothers Inc. executed and delivered on April 27, 1995. 

(Doc. 1, Exhibit 1). This loan was renewed in 1996 (Doc. 1, Exhibit 2), and again in 

1997 (Doc. 1, Exhibit 3). On November 26, 1997, Defendant Boyd Brothers Inc. 

executed and delivered a promissory note in the initial principal amount of $150,000. 

(Doc. 1, Exhibit 4). Also on November 26, 1997. Defendant Boyd Brothers Inc. 

memorialized its obligations under the original $100,000 note, and the second $150,000 

note by executing and delivering a promissory note in the initial principal amount of 

$250,000. (Doc. 1, Exhibit 5). This $250,000 note was renewed seven additional times. 

(See Doc. 1, Exhibits 6, 7, 8, 9, 10 , 11 & 12). In the “tenth renewal,” executed on July 

 

3 All references to documents in this section refer the docket entry for 5:11-cv-97.

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 8 of 11
9, 2009, Defendant Boyd Brothers Inc. delivered a promissory note in the initial principal 

amount of $1,000,000. (Doc. 1, Exhibit 12). 

On July 9, 2009, the individual defendants executed and delivered commercial 

guaranties for the loan. (Doc. 1, Exhibit 13). On September 17, 2010, Defendant Boyd 

Brothers Inc. executed and delivered a renewal promissory note in the initial principal 

amount of $1,000,000. (Doc. 1, Exhibit 16). Plaintiff alleges that the loan is in default 

and the guaranties have not been satisfied. 

Defendants have raised eight affirmative defenses which are all meritless for the 

reasons stated in the previous two sections. 

IV. Loan 4 (5:11-cv-98)4

The fourth loan involves a promissory note in the initial principal amount of 

$3,400,000 that Defendant Boyd Brothers Inc. executed and delivered on June 13, 2002. 

(Doc. 1, Exhibit 1). Also on June 13, 2002, the individual defendants executed and 

delivered guaranty agreements for this loan. (Doc. 1, Exhibit 2). Defendant Boyd 

Brothers Inc. also granted a security interest in certain printing equipment to secure the 

loan. (Doc. 1, Exhibit 3). On September 17, 2010, Defendant Boyd Brothers executed 

and delivered a renewal promissory note in the initial principal amount of $1,548,039.30. 

(Doc. 1, Exhibit 8). Plaintiff alleges that this note is in default and that the guaranties 

have not been satisfied.

 

4 All references to documents in this section refer the docket entry for 5:11-cv-98.

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 9 of 11
Defendants have raised ten affirmative defenses which are all meritless for the 

reasons stated in previous sections. 

V. Loan 5 (5:11-cv-339)

This fifth loan is not part of this consolidated action, and will not be considered 

here. 

VI. Loan 6 (5:11-cv-96)5

The sixth loan involves a promissory note in the initial principal amount of 

$734,000 that Defendant Boyd Brothers Inc. executed and delivered on September 17, 

2010. (Doc. 1, Exhibit 1). Also on September 17, 2010, the individual defendants 

executed a guarantee agreement. (Doc. 1, Exhibit 2). Plaintiff alleges that this note is in 

default and that the guarantees have not been satisfied. 

Defendants have raised eight affirmative defenses which are all meritless for the 

reasons stated in previous sections. The guarantee agreement is somewhat different from 

the others. However, it contains similar language which states that “no waiver of any of 

its rights hereunder, and no modification or amendment of this Guarantee, shall be 

deemed to be made by Lender unless the same shall be in writing, duly signed on behalf 

of Lender.” (Doc. 1, Exhibit 2). 

 

5 All references to documents in this section refer the docket entry for 5:11-cv-96.

Case 5:11-cv-00094-RS-CJK Document 94 Filed 12/22/11 Page 10 of 11
IT IS ORDERED: 

1. The Motion for Final Summary Judgment (Doc. 63) is GRANTED as to the 

individual defendants-- JAMES A. BOYD, SR., NANCY G. BOYD, JAMES A. 

BOYD, JR., and CECELIA R. BOYD. 

2. The cases remain stayed as to Defendant Boyd Brothers, Inc., pending 

resolution of its bankruptcy. This order does not apply to Defendant Boyd 

Brothers, Inc. 

3. Plaintiff’s Motion for Judgment on the Pleadings (Doc. 90) is DENIED as 

moot. 

4. Plaintiff shall submit the current balances of the outstanding indebtedness with 

principal, accrued interest, and daily accrued interest rate. The clerk will then 

enter judgments in favor of Plaintiff against the individual defendants in that 

amount. 

ORDERED on December 22, 2011.

/S/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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