1

 Defendant DL Air, LLC did not file a motion for summary judgment.

2

 The original civil action entitled "Charter Services, Inc. and Mobile Fractional Leasing, LLC v.

D.L. Air, LLC; Central Progressive Bank; and Richard Blossman” CV-08-901566, was filed in the

Circuit Court of Mobile County, Alabama on October 2, 2008, and removed to this Court on November 7,

2008. On March 5, 2009, the undersigned issued an Order remanding the case to state court citing a

failure of the removing Defendants to prove there was complete diversity of the parties for purposes of

federal jurisdiction as the citizenship of all members of Mobile Fractional Leasing, LLC and DL Air, LLC

were not presented to the Court. The case was again removed to this Court on May 20, 2009.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARTER SERVICES, INC., and )

MOBILE FRACTIONAL LEASING, LLC, ) 

Plaintiffs, ) 

 )

v. ) CIVIL ACTION NO.: 09-00281-KD-N

 )

DL AIR, LLC, et al., ) 

Defendants. )

ORDER

This matter is before the Court on the Motion for Summary Judgment filed by

Defendants Central Progressive Bank, Blossman Bancshares, Inc. and Richard Blossman (Docs.

30-32),1

 Plaintiffs’ response in opposition (Docs. 34, 35) and Defendants’ Reply thereto (Doc.

38).

I. Relevant Background

A. Procedural History

On May 20, 2009, this case was removed to this Court on the basis of federal diversity

subject matter jurisdiction.2

 (Doc. 1). On April 30, 2010, based on the plaintiffs’ notice of

voluntary dismissal, the following claims were dismissed: Count One (Breach of Contract) of the

Complaint against Defendants Blossman Bancshares, Inc., Central Progressive Bank, Inc. and

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 1 of 24
3

 Count One of the Amended Complaint also names Defendant DL Air, however the parties did

not move to dismiss Count One as to DL Air and thus it remains pending.

4

 MFL is a Delaware limited liability company formed in 2001 as a fractional leasing business

and is wholly owned by sole member George Brown who is a resident of the State of Alabama (Doc. 1 at

3) (leases aircraft and then subleases a fractional interest of the use of that aircraft to others). (Doc. 31-1

at 2-3 (Dep. Brown at 7, 9-10)). See also Doc. 53.

5

 DL Air is a Delaware limited liability company (Doc. 7 at 1) that has been wholly owned by

Defendant Richard Blossman since 2002; he is the sole member and is a resident of the State of

Louisiana. (Doc. 31-3 at 6-7 (Dep. Blossman at 24, 26)). See also Doc. 50.

6

 Charter, an Alabama corporation (Doc. 1 at 3) wholly owned by Robert “Bobby” Marks

(President), is in the business of aircraft charters and providing management services for those who

own/lease aircraft. (Doc. 31-2 at 2-3 (Dep. Marks at 7-9)). GulfShares Management is a limited liability

company of which Marks was the only member. (Id. at 3 (Dep. Marks at 10-11)). Jerry Lightsey is the

director of marketing and sales at Charter. (Id. at 2 (Dep. Marks at 8).

7

 CPB is a Louisiana bank (Blossman is the CEO) which is managed by a management

committee (5-6 people who review invoices/approve payment by a majority vote). (Doc. 31-3 at 10 (Dep.

Blossman at 37, 39); Doc. 31-4 at 2 (Dep. Faciane at 6, 8); Doc. 1 at 4). Brandon Faciane is the President

of CPB. (Doc. 31-4 at 2 (Dep. Faciane at 6)). According to CPB President Faciane, Blossman had no

involvement in CPB’s management committee’s vote regarding aircraft leasing (even though he was a

committee member) because he had a conflict as he owned the company that was leasing the planes to

CPB. (Id. at 4-6 (Dep. Faciane at 16-17, 23-24)). The committee reviewed and approved the expenditures

before the charter, as well as paid the monthly management/leasing fees in addition to invoices for the

2

Richard Blossman;3 and Count Two (Breach of Guarantee) of the Complaint against Defendants

D.L. Air, LLC, Blossman Bancshares, Inc., Central Progressive Bank, Inc. and Richard

Blossman.

B. Factual History

This case arises from a contractual agreement relating to the lease of usage of aircraft

between Plaintiff Mobile Fractional Leasing, LLC (“MFL”)4 and DL Air, LLC (“DL Air”),5 and a

contractual agreement for management services incident to that lease between Plaintiff Charter

Services, Inc. (“Charter”)6 and DL Air. Plaintiffs allege that DL Air failed to make payments under

the terms of the renewals of these agreements and that Defendants Central Progressive Bank

(“CPB”),7

 Blossman Bancshares (“BB”)8 and/or Richard Blossman (“Blossman”)9 – none of which

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 2 of 24
plane’s actual use. (Id.)

8

 BB is a closely-held Louisiana corporation (Doc. 1 at 4); Blossman owns 12% and controls

46% of the shares and is the CEO and Chairman of the Board. (Doc. 31-3 at 3 (Dep. Blossman at 9-10)). 

BB wholly owns CPB. (Id.)

9

 Blossman is an individual resident of Louisiana. (Doc. 6 at 2). Blossman is CEO of CPB and

runs BB as a holding company that owns 100% of CPB. (Doc. 31-3 at 3 (Dep. Blossman at 9-10)).

3

were parties to the Agreements – are liable for DL Air’s failure to pay. Specifically, Plaintiffs argue

that CPB, BB and Blossman are liable under theories of piercing the corporate veil/alter ego and

promissory fraud.

On May 23, 2002, Blossman purchased 100% of the membership interest in DL Air, which

at that time owned an airplane. (Doc. 31-3 at 6-7 (Dep. Blossman at 24, 26); Doc. 31-5). Prior to

the agreements with Plaintiffs, DL Air sold the airplane. (Doc. 31-3 at 7 (Dep. Blossman at 27-28)).

DL Air does not presently own assets or real property apart from some cash assets in checking

accounts at CPB. (Id. at 7-8 (Dep. Blossman at 28-29)).

On September 22, 2006, Plaintiff MFL and DL Air entered into an Aircraft Lease

Agreement through which MFL subleased a fractional portion of use of an aircraft to DL Air. (Doc.

31-1 at 3 (Dep. Brown at 11-12); Doc. 31-3 at 8 (Dep. Blossman at 29-30); Doc. 31-6 (9/22/06

Aircraft Lease Agreement)). According to Brown, MFL’s owner, “[i]t’s a direct lease between

[MFL] and D.L. Air or [CPB]. I have what’s called a head lease with Charter [] and the right to lease

the plane by billable hours, and so ... I guess it’s a sublease.” (Doc. 31-1 at 3 (Dep. Brown at 12)).

Blossman signed the Aircraft Lease Agreement on behalf of DL Air and Brown signed on behalf of

Plaintiff MFL. (Doc. 31-6 at 11; Doc. 31-1 at 3 (Dep. Brown at 11); Doc. 31-3 at 8 (Dep. Blossman

at 29-30)). The Aircraft Lease Agreement was for a term of one (1) year; it expired on September

21, 2007. (Doc. 31-6 at 3; Doc. 31-1 at 4 (Dep. Brown at 15-16)). 

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 3 of 24
4

Even though the Lease Agreement was between MFL and DL Air, Brown testified that he

“never dealt with anybody except [CPB]. . . Every payment I received was from [CPB] . . . and . .

. my account. . . . said [CPB], and all the checks continued to come from [CPB] on one of their

checks. So it was always [CPB] to me. But this contract says what it says [DL Air].” (Doc. 31-1 at

4 (Dep. Brown at 13)). Brown testified that there was a signed contract between MFL and CPB

before the MFL-DL Air agreement and that he was “not entirely certain under which contract we

were dealing under.” (Id. (Dep. Brown at 14)). Brown testified though, that “every payment” came

from CPB and “I don’t know what Blossman Bancshares’ relationship is to [CPB] . . . I never got

a check that said this is coming from Blossman Bancshares.” (Id. at 8 (Dep. Brown at 29)).

Also on September 22, 2006, DL Air entered into an Aircraft Management Agreement

with non-party GulfShares Management, LLC (“GulfShares”), under which GulfShares was to

provide flight crews, insurance, maintenance and other services on the aircraft DL Air was

subleasing from MFL. GulfShores was the party to the contract but Charter performed all the

services under the contract (GulfShares outsourced the performance of its obligations under the

contract to Charter). (Doc. 31-2 at 3, 7 (Dep. Marks at 11, 26-27); Doc. 31-3 at 8 (Dep. Blossman

at 29-30); Doc. 31-7 (9/22/06 Aircraft Management Agreement)). Marks, owner of Charter and

GulfShares, testified that the contract was originally entered into between GulfShares and CPB; CPB

later requested the name change to DL Air in the contract. (Doc. 31-2 at 4 (Dep. Marks at 16)). In

the contract at issue, however, Blossman signed the Aircraft Management Agreement on behalf of

DL Air and Marks signed on behalf of non-party GulfShares. (Doc. 31-7 at 11). The Aircraft

Management Agreement was for a term of one (1) year; it expired on September 21, 2007. (Doc.

31-2 at 3 (Dep. Marks at 12-13); Doc. 31-7 at 1-2)). MFL was not a party to the Aircraft

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 4 of 24
5

Management Agreement. (Doc. 31-1 at 5 (Dep. Brown at 17)). According to Marks, Charter

received payments from BB and CPB accounts for services rendered under DL Air’s contract. (Doc.

31-2 at 3 (Dep. Marks at 17)).

During the original one (1) year term of both the Lease and Management Agreements, DL

Air sublet or chartered its use of the aircraft to CPB and occasionally to BB, and in return, CPB and

BB paid for their actual use of the aircraft (CPB paid the standard monthly payments that DL Air

owed under the terms of the Lease and Management Agreements). (Doc. 31-3 at 8 (Dep. Blossman

at 31); Doc. 31-4 at 2-4 (Dep. Faciane at 8-10, 13-14, 16)). 

Plaintiffs issued the first invoice to DL Air. (Doc. 31-2 at 5 (Dep. Marks at 19-20)). On

September 27, 2006, however, Blossman requested via BB letterhead that Charter send all invoices

to CPB (instead of DL Air). (Doc. 31-8; Doc. 31-3 at 8-10 (Dep. Blossman at 31-35, 40)). See also

(Doc. 31-2 at 5-6 (Dep. Marks at 19-20, 23)). CPB President Faciane was not involved in that

decision. (Doc. 31-4 at 8-10 (Dep. Faciane at 31-32, 36-37)). Marks testified that CPB asked to

make the payments for DL Air and so they did. (Id. at 4 (Dep. Marks at 23)). All invoices were

subsequently paid by CPB or BB instead of DL Air. (Doc. 34 at 2; Doc. 31-1 at 4-6 (Dep. Brown

at 16, 19-24)). 

Both CPB and BB used the aircraft for business purposes. (Doc. 31-3 at 11-12 (Dep.

Blossman at 43-45); Doc. 31-4 at 5 (Dep. Faciane at 18-19)). According to CPB President Faciane,

CPB paid the aircraft leasing bills for the times the bank used the aircraft, and if BB used the

aircraft, CPB would refer those bills to BB for payment. (Doc. 31-4 at 7 (Dep. Faciane at 27-28)).

Faciane stated that CPB “doesn’t have anything to do with [the] leasing agreement[]” but just paid

the bills on the bank’s use of the airplanes. (Doc. 31-4 at 4 (Dep. Faciane at 14)). Faciane

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 5 of 24
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understood from Blossman, who was representing DL Air, that the leased airplanes were “coming

from DL Air” (CPB would get a quote and decide what to do and pay the monthly bills as “part of

what we had to do if we were going to lease the planes[]”). (Id. (Dep Faciane at 16)). According

to Blossman, DL Air would provide the aircraft to CPB and/or BB and they would simply pay the

charge, without any profit to DL Air. (Doc. 31-3 at 20 (Dep. Blossman at 77)). Blossman explained

that “[i]t was a strategy[]” for “that transaction[]” that DL Air not make a profit. (Id. at 20 (Dep.

Blossman at 77-79)). DL Air did not have a written lease agreement and did not address liability

in that arrangement. (Id. (Dep. Blossman at 79)). 

On June 19, 2007, Lightsey of Charter e-mailed Blossman’s secretary Deane O’Brien

attaching a renewal agreement to “allow us to move seamlessly into the new contract with no

‘downtime[]’” and which would not take effect until the last hour of the original contract was flown;

he requested that Blossman sign and return the documents. (Doc. 31-9 at 2-4). Shortly thereafter,

Blossman, on behalf of DL Air, and MFL executed the Renewal Term Agreement for the Aircraft

Management Agreement which provided:

....In accordance with the current Aircraft Management Renewal Term Agreement

between Mobile Fractional Leasing, LLC and DL Air, LLC, a Delaware corporation

(“Operator”), dated September 22, 2006, the parties do hereby agree to enter into a

one (1) year “Renewal Term.” 

The Renewal Term effective date shall be the same day on which Operator flies the

last of his total allocated hours (102 hours) through the term of the current

agreement. The Renewal Term will expire after (1) year or use of 102 flight hours,

whichever occurs first. ...

(Doc. 31-9 at 1 (emphasis omitted)). Blossman (for DL Air) signed the Renewal on June 21, 2007

and Brown (for MFL) signed on June 28, 2007. (Id.; Doc. 31-1 at 7 (Dep. Brown at 26-27)). See

also Doc. 31-3 at 11 (Dep. Blossman at 42-43)). Additionally, Blossman, on behalf of DL Air,

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 6 of 24
7

executed a Renewal Term Agreement with Plaintiff Charter, which included exact language as

supra. (Doc. 31-3 at 11 (Dep. Blossman at 42-43)). Under the terms of these agreements once the

hours available under the original agreement were exhausted the renewal term would automatically

take affect. (Doc. 35-4 at 3 (Dep. Lightsey at 10)). The original agreement terminated and the

renewal agreement began in July of 2007. (Id.)

On July 12, 2007, the Federal Deposit Insurance Corporation (“FDIC”) issued a Cease and

Desist (“C&D”) Order to CPB. (Doc. 31-4 at 5 (Dep. Faciane at 20); Doc. 35-5). CPB President

Faciane testified that when the order was issued, the bank was no longer able to use the aircraft

leasing services. (Doc. 31-4 at 5-6 (Dep. Faciane at 20)). In September 2007, Plaintiffs stopped

receiving payments on the leasing and management contracts. (Doc. 35-4 at 4 (Dep. Lightsey at

18)). In November 2007, Blossman told Marks that CPB would be unable to charter planes and

make payments such that DL Air would not be able to fulfill its obligations to MFL or Charter under

the renewal contracts until such time as CPB could again charter the plane. (Doc. 31-3 at 12, 15-17

(Dep. Blossman at 47-48, 58-59, 61, 66-67)). Nevertheless, Blossman testified that DL Air was

obligated to the agreement. (Id. at 13 (Dep. Blossman at 49)). Blossman told Marks and Lightsey

to bear with DL Air because of the delay in use of leasing; encouraged them to give him more time

for CPB and BB to be in a position to use the service; and “intended to ask for some forbearance and

time and hopefully things would work out to everyone’s benefit[]” so that DL Air could “honor its

commitments.” (Doc. 31-3 at 25 (Dep. Blossman at 97-99)).

On January 8, 2008, Lightsey, Charter’s Director of Marketing & Sales, sent a letter to

Blossman’s secretary, O’Brien, at CPB, attaching copies of outstanding invoices [5 management/4

lease] for both Charter and MFL, and stating “[s]ince Bobby’s [Marks] conversation with Mr.

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 7 of 24
10 Blossman testified that his secretary sent the e-mail but it “was probably constructed by me,

I’m sure.” (Doc. 31-3 at 15 (Dep. Blossman at 57-58)).

8

Blossman at the end of November, we are waiting until January 15th [2008] for resolution of the

outstanding invoices.” (Doc. 31-10). Lightsey asked that CPB process them for payment and “let

me know the time frame, I came [sic] pass that information to everyone here.” (Id.)

At 3:57 p.m. on February 8, 2008, Blossman (c/o his secretary O’Brien) e-mailed10 Lightsey

at Charter, stating as follows:

I have just reviewed your request. I understand your position but I am hopeful we

can come to an agreement. I would like to be able to pick up all renewals and

reinstate our agreement. Currently I am involved with the bank examiners for our

audit and expenses are being restricted for the next 2 to 3 months. Unfortunately I

have to wait until these restrictions are lifted before we can reinstate our agreement.

I would like to come to speak with you and Mr. Marks in person. Once the examiners

are finished I will have time to arrange to do so.

I hope we will be able to work together to get this issue resolved and I do appreciate

your patience to date. If this is unacceptable to you it will not be necessary to file a

lawsuit as I will consent judgment if this is what you wish.

(Doc. 31-10 at 11). According to Blossman, DL Air was unable to lease the aircraft “because we

had nobody to lease it to[]” because “the people who were leasing it [CPB] were unable to do so.”

(Doc. 31-3 at 10 (Dep. Blossman at 38-39)). Blossman states that he sent the e-mail on behalf of

DL Air. (Id. at 16 (Dep. Blossman at 61)). 

Also on February 8, 2008, at 6:40 p.m., Blossman e-mailed Lightsey stating as follows:

I have received your default notice. I understand your frustration with the new lease

agreement. I did speak to Mr. Marks back in mid November 06, and explained to him

that my company has experienced the mortgage melt down and we are trying to

survive $100 million of the $500 million dollars I have in Real Estate loans are

impaired or defaulted. This represents 20% of the portfolio. I have injected the

necessary capital to survive this but I will need to liquidate the loans out when and

if possible. These properties are along the gulf coast in Alabama & Florida. I was

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 8 of 24
9

placed under what is called a C&D (Cease and Desist) during the same time the

renewal/new lease was due. This C&D is public record and you can view it for

yourself on the FDIC website. I hope to be out of this soon but it is not my call. 

My regulators started a scheduled examination on January 15, 08 and upon their

completion. I have never had an examination last this long but I never have had these

types of problems to work out. Upon the completion of the exam I planned to discuss

this matter with them and my board of directors to see if we can get back on track.

If possible I would like to meet with you and explain further if possible.

I understand if you elect not to meet and if your intention is to file a legal action

against my company let me know prior to running up a big legal expense. I will work

with you, I do not want to fight with you guys.

(Doc. 31-10 at 12). According to Blossman, in this e-mail, he was describing the problems that the

bank would have and the reason that CPB is going to have a problem leasing, which would be

problematic for DL Air because without CPB, “D.L. Air could not perform.” (Doc. 31-3 at 16-17

(Dep. Blossman at 62-67)). “That’s a personal email from myself explaining the difficulties that we

were going to have in performing–D.L. Air would have in performing its obligation and the reasons

behind it. And there were many and they were massive and I laid it all out.” (Id. at 17 (Dep.

Blossman at 66)). “That was me, personally [talking]. And I wore a couple of different hats at the

time. And I was explaining that the bank was going to have a hard time, which is going to cause

D.L. Air a hard time, which in turn is going to go back to our agreement, that we’re not going to be

able to perform, and this is why.” (Id. (Dep. Blossman at 66-67)).

According to Marks at Charter, Blossman “basically didn’t pay the bill and said he would,

and continued to say he would and continued to not pay the bill.” (Doc. 31-2 at 7 (Dep. Marks at

28)). Marks explained in his testimony that “[i]f Mr. Blossman had just said, cancel the agreement,

I can’t pay – but, quite the contrary. When this first started, he kept stringing us out. He kept saying,

hey, we’re going to get this done. The contract was never canceled but, rather, the request

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 9 of 24
10

specifically was to continue to be patient, and in that sense we have to be continued to be prepared

to fly.” (Id. at 10 (Dep. Marks at 39)). Marks added that “[f]rom our standpoint[]” even when a

customer is in default or having difficulty, “he can still cure that contract, pay up, and then he would

certainly expect to fly.” (Id. (Dep. Marks at 40)). Marks testified that in his conversations with

Blossman, he indicated that CPB was under audit and was having some issues and “[e]verything he

mentioned related to the bank.” (Id. at 11 (Dep. Marks at 43)).

As for alter ego evidence, MFL relies on the following: that the client was CPB on the

original contract (even though he acknowledges that DL Air was later substituted for CPB); MFL

received checks from CPB; MFL made the file in CPB’s name; and “[i]n my [Brown’s] mind, it was

[CPB].” (Doc. 31-1 at 9 (Dep. Brown at 33)). MFL does not have evidence that DL Air was

undercapitalized since inception, DL Air does not observe requisite corporate formalities and/or that

DL Air, CPB, BB and Blossman ignored the separateness of each other. (Id. (Dep. Brown at 34)).

According to Charter’s Marks, “to me they’re all the same[]” because he did not know if

Blossman was also BB, CPB and/or DL Air because “[h]e has never identified a separation of one

versus the other. And in all communication, correspondence, telephone, it’s [CPB]. . . and I have no

idea when I talked to Mr. Blossman which Mr. Blossman I’m talking to. I assume and have always

assumed it’s [CPB], other than when he asked to have the contract signed in the name of D.L.Air.

I assumed then he is D.L. Air.” (Doc. 31-2 at 6-7 (Dep. Marks at 24-25)). However, Marks

subsequently testified – when asked if it was his testimony that Charter believes that BB, CPB and

DL Air are all the same – that “[w]e don’t think they’re the same.” (Id. at 8 (Dep. Marks at 31)).

Charter has no evidence that DL Air was undercapitalized when formed, that DL Air does not

observe the requisite corporate formalities, or any other reason to think that CPB and DL Air are one

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 10 of 24
11

and the same entity (apart from billing). (Id. at 8-9 (Dep. Marks at 32-33)). 

Charter relies on the fact that everything was “represented for the [CPB] bank. And . . . in

my discussions with Mr. Blossman, when they were not able to send the payments, he said the bank

is going to get this straightened out, the bank is under an audit, please give us more time. It kept

stretching out . . . he asked for two or three more months, the bank will get this resolved, the bank

will bring everything up to date. Everything presented to us represented that our customer was the

bank.” (Id. at 9 (Dep. Marks at 33-34)). Charter “was under the impression the only entity using

the aircraft was [CPB].” (Id. at 4 (Dep. Marks at 16)). Marks testified that “anything we ever did

was [CPB]. The only time I ever heard of or saw D.L. Air was when they requested to change the

name and I signed the agreement. I never heard or saw of D.L. Air ever again. That was the only

time.” (Id. at 6-7 (Dep. Marks at 24-25)). Marks testified that in all his phone calls with Blossman,

to him, “he is [CPB]” and he “never, ever mentioned D.L. Air. I never heard D.L. Air come out of

his mouth in all my communications.” (Doc. 31-2 at 11 (Dep. Marks at 41)). Marks believed that

he was dealing with CPB the entire time because the original contract was signed by CPB; the

original checks were from CPB; and the checks and trip requests came from CPB. (Id. (Dep. Marks

at 41-42)). Marks added that there were some checks from BB. (Id. (Dep. Marks at 42)).

Blossman testified that he “rolled up” DL Air’s tax return into his own personal tax return.

(Doc. 31-3 at 13 (Dep. Blossman at 52)). Blossman testified that there was not a plan for DL Air

to be profitable even though “we wouldn’t pass up a profit[,]” but did not recall any ventures that

were actually profitable. (Id. at 14 (Dep. R.Blossman at 53)). DL Air has not made a profit in its

history – “[t]hey could and they just haven’t.” (Id. at 18 (Dep. Blossman at 72)). Blossman testified

that DL was capitalized –- had money when it was formed and had cash assets – it “was not without

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 11 of 24
11 Rule 56(c) of the Federal Rules of Civil Procedure, provides that summary judgment shall be

granted:

if the pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.

Fed. R. Civ. P. 56(c).

12

any money.” (Id. at 19, 24 (Dep. Blossman at 73, 75, 93)). DL Air “down-streamed” most of the

money from the sale of the airplane to Blossman. (Id. (Dep. Blossman at 75)). Blossman testified

that, while not sure, he thinks CPB would pay the aircraft invoices and then get reimbursed by BB,

or vice-versa, and that CPB’s management committee would have handled payment. (Id. at 22 (Dep.

Blossman at 85-88)). Blossman testified that “from his desk,” he operated as Blossman for CPB,

Blossman for DL Air, and Blossman for BB. (Id. at 14 (Dep. Blossman at 55-56)).

II. Summary Judgment Discussion

A. Standard of Review

Summary judgment should be granted only if “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).11 The party

seeking summary judgment bears “the initial burden to show the district court, by reference to

materials on file, that there are no genuine issues of material fact that should be decided at trial.”

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The party seeking summary

judgment always bears the “initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence

of a genuine issue of material fact.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). If the nonmoving party fails to make “a sufficient showing on an essential element of her

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 12 of 24
12 Plaintiffs’ Amended Complaint alleges that DL Air breached the Agreements causing them

“significant damages for which they are liable in an amount not less than $82,665.00, plus prejudgment

interest, costs, and attorney’s fees as agreed.” (Doc. 1-4 at 5). 

13

case with respect to which she has the burden of proof,” the moving party is entitled to summary

judgment. Celotex, 477 U.S. at 323. “In reviewing whether the nonmoving party has met its

burden, the court must stop short of weighing the evidence and making credibility determinations

of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d

994, 998-999 (11th Cir. 1992), cert. den., 507 U.S. 911 (1993) (internal citations and quotations

omitted). The mere existence of any factual dispute will not automatically necessitate denial of a

motion for summary judgment; rather, only factual disputes that are material preclude entry of

summary judgment. Lofton v. Sec’y of the Dep’t of Children & Family Serv., 358 F.3d 804, 809

(11th Cir. 2004), cert. den., 534 U.S. 1081 (2005).

B. Application

1. Count One: Breach of Contract

Pursuant to the parties’ Notice of Voluntary Dismissal (Doc. 36) and this Court’s Order on

same (Doc. 37), Count One as to Defendants CPB, BBB and Blossman, has been dismissed.

Accordingly, it is ORDERED that the portion of Defendants’ motion relating to Count One as to

these defendants is MOOT. However, Count One as to Defendant DL Air remains pending; it has

not been placed at issue on summary judgment.12

2. Count Two: Breach of Guarantee

Pursuant to the parties’ Notice of Voluntary Dismissal (Doc. 36) and this Court’s Order on

same (Doc. 37), Count Two as to all of the defendants has been dismissed. Accordingly, it is

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 13 of 24
13 DL Air was incorporated in the State of Delaware. As such, Plaintiffs’ alter ego/veil piercing

claims against DL Air are governed by Delaware law. Jefferson Pilot Broadcasting Co. v.Hilary &

Hogan, Inc., 617 F.2d 133, 135 (5th Cir. 1980) (concluding that “[c]onsistently with the first Restatement,

we think that Alabama courts would look to the law of the incorporating state . . . in deciding whether to

recognize or disregard a corporate entity. See Restatement of Conflict of Laws s 154, Comment a

(1934)[]”). See also Horton Homes, Inc. v. Bandy, 2007 WL 4571251, *2 (M.D. Ala. Dec. 26, 2007)

(finding that veil-piercing issues concerning disregard of corporate form are to be determined by

reference to the law of the state under which the corporation exists). See Ala. Code § 10-12-46(a) (1975)

(providing that “[s]ubject to the Constitution of Alabama, the laws of the state or other jurisdictions under

which a foreign limited liability company is organized govern its organization, its internal affairs, and the

liability of its members[]”). In contrast, Plaintiffs’ promissory fraud claim (Count Five) is governed by

Alabama law because the injury occurred to Plaintiffs in Alabama. Alabama choice of law rules apply the

doctrine of lex loci delicti to tort claims, which means that the law of the state in which the injury

occurred governs the substantive rights of the injured party. Colonial Life & Accident Ins. Co. v. Hartford

Fire Ins. Co., 358 F.3d 1306, 1308 (11th Cir. 2004). Additionally, the parties do not dispute that Alabama

law governs the promissory fraud claim.

14

ORDERED that the portion of Defendants’ motion relating to Count Two is MOOT.

3. Plaintiffs’ Tort Claims13

a. Counts Three and Four: Piercing the Corporate Veil/Alter Ego

In Counts Three and Four, Plaintiffs seek to pierce the “corporate veil” of DL Air under an

alter ego theory and hold CPB, BB and/or Blossman liable for DL Air’s alleged contractual liability

to Plaintiffs. Specifically, Plaintiffs assert that CPB, BB and Blossman overextended their corporate

privileges and used the corporate form “to defeat justice, perpetrate a fraud and avoid contractual

responsibility[;]” DL Air is the alter ego of CPB, BB and Blossman because they “had complete

control or domination over DL Air, it’s finances, policy and business practices so that at the time

of the alleged contracts DL Air had no separate mind, will or existence of its own[;]” and DL Air’s

control was misused by CPB, BB or Blossman causing Plaintiffs’ damage. (Doc. 1-4 at 4, 6-7).

Plaintiffs allege that DL Air is a sham created to deceive and defraud; all payments made under DL

Air were made by CPB, BB or Blossman; DL Air was undercapitalized; DL does not observe the

requisite Delaware corporate formalities; and DL Air, CPB, BB and Blossman ignore the

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 14 of 24
14 “The terms ‘alter ego theory’ and ‘piercing the corporate veil’ are used interchangeably in

Delaware law.” Winner Acceptance Corp. v. Return on Capital Corp., 2008 WL 5352063, *5 n.32 (Del.

Ch. 2008) (unpublished).

15

separateness of one another by “regularly answering” one another’s financial obligations. (Id. at 6).

In Delaware, courts disregard the corporate form only in the “exceptional case.” See, e.g.,

Case Financial, Inc. v. Alden, 2009 WL 2581873, *4 (Del. Ch. Aug. 21, 2009) (citing Sprint Nextel

Corp. v. iPCS, Inc., 2008 WL 2737409, * 11 (Del. Ch. Jul. 14, 2008)) (unpublished). “Corporate

form will be disregarded and individuals will be held personally liable ‘in the interest of justice,

when such matters as fraud, contravention of law or contract, public wrong, or where equitable

consideration among members of the corporation require it, are involved.’” Pauley Petroleum Inc.

v. Continental Oil Co., 239 A.2d 629, 633 (Del. 1968). This analysis is labeled the “alter ego”14

analysis because the court “is examining whether there are legally distinct entities.” Mason v.

Network of Wilmington, Inc., 2005 WL 1653954, *2 (Del. Ch. Jul. 1, 2005) (unpublished) (citing

United States v. Golden Acres, Inc., 702 F. Supp. 1097, 1104 (D. Del. 1988)). 

In making this determination, courts look to how the corporation operates and the particular

party’s relationship to that operation. Harper v. Delaware Valley Broadcasters, Inc., 743 F. Supp.

1076, 1085 (D. Del. 1990). This determination entails a fact intensive inquiry in which courts may

consider the following factors “none of which are dominant: (1) whether the company . . . was

adequately capitalized for the undertaking; (2) whether the company was solvent; (3) whether

corporate formalities were observed; (4) whether the controlling shareholder siphoned company

funds; and (5) whether, in general, the company simply functioned as a facade for the controlling

shareholder.” Case Financial, 2009 WL 2581873, *4. See also Golden Acres, 702 F. Supp at 1104.

Significantly, however, there must also be an element of fraud to justify piercing the

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 15 of 24
15 As noted in Mason 2005 WL 1653954, *3:

....mere insolvency is not enough to allow piercing of the corporate veil. If creditors could

enter judgments against shareholders every time that a corporation becomes unable to pay

its debts as they become due, the limited liability characteristic of the corporate form would

be meaningless. Thus, the insolvency inquiry must have a different purpose. Instead,

insolvency is one factor to be considered in assessing whether the corporation engaged in

conduct that unjustly shields its assets from its creditors. If so, and especially if particular

shareholders benefitted from and controlled that conduct, then justice would require the

piercing of the corporate veil in order to hold the benefitting shareholders responsible. This

concept may also be applicable as the inability to pay creditors becomes imminent and the

corporation enters the “zone of insolvency.....

16

corporate veil. Mason, 2005 WL 1653954, *3. “[T]he alter ego theory requires that the corporate

structure cause fraud or similar injustice . . . The 'injustice' must be more than the breach of

contract alleged in the complaint . . . .” Outokumpu Engineering Enter., Inc. v. Kvaerner

Enviropower, Inc., 685 A.2d 724, 729 (Del. 1996) (emphasis added). See also Mobil Oil Corp v.

Linear Films, Inc., 718 F. Supp. 260, 268 (D. Del. 1989) (concluding that “[a]ny breach of contract

and any tort . . . is, in some sense, an injustice. Obviously this type of ‘injustice’ is not what is

contemplated by the common law rule that piercing the corporate veil is appropriate only upon a

showing of fraud or something like fraud . . . To hold otherwise would render the fraud or injustice

element meaningless, and would sanction bootstrapping[]”). Moreover, “[s]ince it is the

exceptional instance where a court will disregard the corporate form, the party who wishes the court

to disregard that form ‘bears the burden of proving that there are substantial reasons for doing so.’”

Mobil, 718 F. Supp. at 270-271 (citing Laborers' Pension Fund v. Litgen Concrete Cutting & Coring

Co., 709 F. Supp. 140, 143 (N.D. Ill. 1989) (quoting Contractors, Laborers, Teamsters and Eng'rs.

Health and Welfare Plan v. Hroch, 757 F.2d 184, 190 (8th Cir. 1985))).

Concerning undercapitalization and insolvency,15 the evidence reveals that DL Air had one

main asset (an airplane) apart from some “limited amount of cash” and “some money” when

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 16 of 24
17

Blossman purchased the company in 2002. (Doc. 31-3 at 7, 19, 24 (Dep. Blossman at 26-29, 73-75,

93)). Blossman also put cash into DL Air and when payments were overdue under the Agreements,

DL Air had “a couple of thousand dollars.” (Id. at 19, 24 (Dep. Blossman at 75, 94-95)). However,

about a year after Blossman’s purchase [approximately 2003], DL Air sold its main asset (the

airplane) and the proceeds from the sale went to DL Air’s sole member and owner, Blossman. (Id.

at 19 (Dep. Blossman at 75)). However, there is no evidence that the sale of the primary asset was

for the purpose of avoiding current or future obligations. This is especially true in light of the fact

that the asset was sold approximately three (3) years before DL Air incurred the obligations at issue.

Regarding the transaction with plaintiffs, Blossman testified that DL Air was “not set up to

be profitable” in “these transactions” with plaintiffs, rather DL Air’s “strategy” for meeting its

obligations to plaintiffs was to allow CPB to use plaintiffs’ services and for CPB to pay for them

directly. While the plan went awry when CPB experienced economic problems, the evidence alone

is insufficient to equate the actions of DL Air with fraud or to otherwise provide a substantial basis

for disregarding the corporate form. 

As for corporate formalities, the invoices for use of the aircraft under the Charter-DL Air and

MFL-DL Air Agreements were paid by CPB or Blossman – not DL Air. Blossman specifically

instructed Plaintiffs that all invoices be sent to CPB for payment. DL Air never made any payments

to Plaintiffs under the Agreements. Moreover, plaintiffs considered CPB their client, not DL Air,

because they had little or no dealings with DL Air (apart from DL Air being the party named in the

contracts). Nevertheless, the observance of some corporate formalities is shown in the record

through the fact that CPB’s management committee regularly met and reviewed and approved

payment of the bills for CPB and/or Blossman’s usage of aircraft, and in so doing, excluded

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 17 of 24
18

Blossman from those approvals “due to his conflict” in owning DL Air. Additionally, Blossman

testified that DL Air’s franchise taxes (for at least 2007) were paid for by him. (Doc. 31-3 at 20

(Dep. Blossman at 80)). Moreover, both Marks (as Charter’s corporate representative) and Brown

(as MFL’s corporate representative) testified that they had no evidence (or did not know of any

evidence) to show that DL Air did not observe the requisite corporate formalities. (Doc. 31-2 at 8-9

(Dep. Marks at 32-33); Doc. 31-1 at 9 (Dep. Brown at 34)). As previously stated, the burden is on

the Plaintiffs to show a lack of observance of corporate formalities significant enough to disregard

the corporate form.

Concerning whether DL Air was created and functioned as a “facade” for Blossman, CPB

and/or BB, it is true that the evidence reveals a web of business arrangements with one common

thread - Blossman. Blossman owned 100% of DL Air yet required CPB to pay DL Air’s contractual

bills for DL Air’s Agreements with Plaintiffs. BB – of which Blossman owned 12% and controlled

46% -- owned 100% of CPB. Blossman was also CEO of CPB. Nevertheless, even with this

common thread, Plaintiffs have failed to demonstrate how Blossman’s ownership resulted in DL Air

being “a facade” or a sham entity. Particularly so, in light of the fact that DL Air was created by

someone other than Blossman many years before the Agreements existed, and moreover, was

purchased by Blossman four (4) years prior to those Agreements.

Furthermore, in considering the totality of circumstances and the foregoing, it is significant

that under Delaware law the ultimate question is whether plaintiffs presented substantial evidence

of the existence of fraud or inequity in the use of the corporate form (i.e., whether the corporate

structure itself was used to effect fraud or injustice). Plaintiffs allege that Blossman, CPB and/or

BB used DL Air “to defeat justice, perpetrate a fraud and avoid contractual responsibility[]” for “DL

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 18 of 24
19

Air’s obligations to plaintiffs under the aircraft lease and aircraft management agreements.” (Doc.

1-4 at 6-8). As noted supra, in Delaware, the fraud or injustice “must be more than the breach of

contract.” Plaintiffs, however, have limited themselves to precisely that. Namely, Plaintiffs’ alter

ego/veil piercing allegations are clearly based upon breach of contract allegations -- that Blossman,

CPB and/or BB used DL Air to avoid payment (i.e., to breach the two aircraft agreements and avoid

contractual responsibilities arising from same). Plaintiffs have not submitted evidence of any other

fraud or injustice as contemplated under Delaware law apart from asserting in sweeping fashion that

“[t]here are ample genuine issues of material fact supporting the abuse of the corporate form, and

fraud, by the Defendants. While Plaintiffs were clearly damaged by the breaching of their

agreements, this is far from the only inequity or fraudulent conduct perpetrated by the Defendants

in this case.” (Doc. 34 at 10). In sum, the fact that Plaintiffs were not paid under the Agreements

is not, under Delaware law, a basis upon which to pierce DL Air’s corporate veil. While DL Air’s

alleged breach of contract may be wrongful, “the requisite element of fraud under the alter ego

theory must come from an inequitable use of the corporate form itself as a sham, and not from the

underlying claim.” EBG Holdings LLC v. Vredezicht's Gravenhage 109 B.V., 2008 WL 4057745,

*12 (Del. Ch. Sept. 2, 2008) (unpublished) (citing Wallace ex rel. Cencom Cable Income Partners

II, Inc. v. Wood, 752 A.2d 1175, 1184 (Del. Ch. 1999)). Plaintiffs have not cited sufficient evidence

to create a triable issue of whether DL Air existed “for no other purpose than as a vehicle of fraud.”

Wallace, 752 A.2d. at 1184.

Accordingly, Defendants’ summary judgment motion as to Counts Three and Four for

piercing the corporate veil and alter ego is GRANTED.

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20

b. Count Five: Promissory Fraud

In the Amended Complaint, Plaintiffs assert a count for promissory fraud against all of the

defendants alleging that:

.... when Blossman misrepresented to the plaintiffs that they needed more time

to bring the account current because of an audit he made this representation on

behalf of himself, DL Air, Blossman Bancshares and/or Central Progressive[]” and

that “[a]t the time of Blossman’s misrepresentations, he, Blossman Bancshares,

Central Progressive, and DL Air had no intention of performing under the contract,

and he made those misrepresentation with the intent to deceive the plaintiffs ... 

(Doc. 1-4 at 8-9 (emphasis added)). Plaintiffs add that they reasonably relied upon that

misrepresentation, believing it to be true, and were damaged by the misrepresentation. Plaintiffs

allege further that Blossman is liable in his individual capacity for the damages caused by the

defendants in reliance upon his misrepresentation, and that BB, CPB or DL Air are also liable for

the damages caused by them in reliance upon Blossman’s misrepresentation as their agent. Plaintiffs

assert that Blossman informed them that CPB was being audited and that when the audit was

completed “all missed payments would be brought current[]” and “represented that if the plaintiffs

would hold off on legal action, their relationship could continue as was the case prior to the audit.”

(Doc. 1-4 at 4 at ¶11). Plaintiffs allege that based on Blossman’s statement and request for time “to

bring the account current, plaintiffs agreed to forbear from enforcing their contractual rights.” (Id.

at ¶16). In support, on summary judgment, Plaintiffs specifically root their promissory fraud claim

in two (2) February 8, 2008 e-mails from Blossman to Charter.

 In Alabama, “a claim of promissory fraud is one based upon a promise to act or not to act

in the future.” Ex parte Michelin North America, Inc., 795 So.2d 674, 678-679 (Ala. 2001). Black’s

Law Dictionary defines a promise as “[t]he manifestation of an intention to act or refrain from acting

in a specified manner, conveyed in such a way that another is justified in understanding that a

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 20 of 24
21

commitment has been made; a person’s assurance that the person will or will not do something[.]”

Black’s Law Dictionary (8th ed. 2004). To prove a claim for promissory fraud the plaintiff must

show: 1) a false representation; 2) of a material existing fact; 3) reasonably relied upon by the

plaintiff; 4) who suffered damage as a proximate consequence of the misrepresentation; 5) proof that

at the time of the misrepresentation, the defendant had the intention not to perform the act promised;

and 6) proof that the defendant had an intent to deceive. Southland Bank v. A&A Drywall Supply

Co., Inc., 21 So.3d 1196, 1210 (Ala. 2008); Hunt Petroleum Corp. v. State, 901 So.2d 1, 4 (Ala.

2004). See also e.g., G.F. Kelly Trucking, Inc. v. U.S. Xpress Enter., Inc, 281 Fed. Appx. 855, 861

(11th Cir. 2008).

At the outset, Blossman did not make any promises to MFL and Plaintiffs do not allege such.

Brown of MFL testified that he did not know of evidence showing promissory fraud in the

execution or performance of its contracts. (Doc. 31-1 at 9 (Dep. Brown at 34-35)). Brown also

testified that Blossman never made any representations to him about making payments under the

contract because he “[n]ever spoke to me.” (Id.) Accordingly, to the extent that Plaintiff MFL

alleges a promissory fraud claim against Defendants and the Defendants’ motion seeks summary

judgment on that claim, the Defendants’ motion is GRANTED.

As for Charter, there is one crucial question. Where is the promise? Charter has not

identified any specific promise made by Blossman in the February 8th e-mails upon which it relies

– i.e., that he promised to act or not to act in the future. In the Amended Complaint, Plaintiffs base

their claim entirely on the assertion that “Blossman misrepresented to the plaintiffs that they needed

more time to bring the account current because of an audit[.]” Charter’s argument in response to

the summary judgment motion reiterates this assertion insofar as Charter notes that Blossman’s eCase 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 21 of 24
22

mails “detail[] the problems facing Central Progressive Bank and why it cannot pay Plaintiffs.”

(Doc. 34 at 10). The parties do not dispute the fact that CPB was under a C&D Order and its

financial capabilities were severely restricted due to the related audit and examination and that this

situation impacted DL Air (because CPB was DL Air’s primary client). Blossman’s e-mails in this

regard were not “misrepresentations” because the communications that CPB was in the midst of

financial difficulties appear to be accepted as true by the parties. 

Additionally, in the e-mails that Blossman sent to Charter, he did not specifically promise

anything. Blossman states that he is “hopeful we can come to an agreement[;]” that he “would like

to be able to pick up all renewals and reinstate our agreement[;]” but because of the C&D and audit,

“expenses are being restricted for the next two to three months[]” so “[u]nfortunately I have to wait

until these restrictions are lifted before we can reinstate our agreement.” Blossman “hoped” they

would be able to “work together to get this issue resolved” and noted that if that was “unacceptable”

he would “consent [to entry of a] judgment” against him.” Blossman added that once the C&D audit

and examination conclude, he “plan[s] to discuss this matter with them and my Board of Directors

to see if we can get back on track.” In short, Blossman did not “promise” to do anything or to

refrain from doing anything. Blossman simply informed Charter that he was trying to get things

worked out but that he would have to wait until the examinations were complete and then take the

agreements back to CPB’s Board of Directors “to see if we can get back on track.” Implicit in such

communication, is that things may not work out and may not be able to “get back on track.” In other

words, “no promises.” Thus, to the extent that Plaintiffs relied upon Blossman’s e-mails as some

sort of definitive promise, that reliance would not be reasonable under the circumstances.

Moreover, Plaintiffs have not presented any evidence to support their claim that Blossman

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 22 of 24
16 The only other “promissory fraud” evidence upon which Plaintiffs rely (apart from the two

February 8, 2008 e-mails) is the testimony of Marks (Charter) regarding a conversation that he had with

Blossman, presumably in November 2007 since there is no evidence of any other conversations. 

Plaintiffs assert that in that conversation, Blossman told Marks that once the audit and examination of

CPB was complete “the bank will bring everything up to date[]”). (Doc. 34 at 3, 10-11 (citing Doc. 35-1

at 5 (Dep. Marks at 33)). Even assuming that this could be construed to be a promise, Plaintiffs have

failed to present any evidence that when Blossman made the statements that he had the intent to deceive,

i.e., that Blossman knew the bank’s obligations would not be brought up to date.

23

made any promises knowing they were untrue when he made them. Plaintiffs simply speculate as

to Blossman’s intent at the time of the February 8th e-mails, an intent which is belied by the

substance of the e-mails. “The burden is on the plaintiff to prove that when the promise was made

the defendant intended to deceive . . . [t]he plaintiff cannot meet his burden merely by showing that

the alleged promise ultimately was not kept; otherwise, any breach of contract would constitute a

fraud . . .[i]t is well settled that ‘a jury does not have untrammeled discretion to speculate upon the

existence of [the requisite] intent [for promissory fraud].’ There must be substantial evidence of a

fraudulent intent that existed when the promise was made.” Southland, 21 So.3d at 1212.

Further, Plaintiffs assert in the Amended Complaint that Blossman informed them that CPB

was being audited and “represented that if the plaintiffs would hold off on legal action, their

relationship could continue as was the case prior to the audit.” (Doc. 1-4 at 4 at ¶11). This

allegation is unsupported by the February 8, 2008 e-mails, and no further evidence has been

presented to support the allegation.16 Rather, the evidence reveals that Blossman specifically said

he did not know what would happen and agreed to having a consent judgment entered against him

– not that he requested that Plaintiffs “hold off on legal action.” 

Accordingly, Defendants’ motion for summary judgment as to Plaintiffs’ promissory fraud

Case 1:09-cv-00281-KD-N Document 56 Filed 05/07/10 Page 23 of 24
17 Due to the finding that there was no promise or misrepresentation, the Court need not address

the “promissory fraud via agency” allegation in Plaintiffs’ Amended Complaint.

24

claim (Count Five) is GRANTED.17

III. Conclusion

Based upon the foregoing and as detailed supra, the Court finds and it is hereby ORDERED

that Defendants’ Motion for Summary Judgment is GRANTED in part and MOOT in part, as

follows:

1) Defendants’ motion for summary judgment as to Count One (Breach of Contract)

is MOOT only as to Defendants Central Progressive Bank, Blossman Bancshares

and Blossman;

2) Defendants’ motion for summary judgment as to Count Two (Breach of

Guarantee) as to all of the Defendants is MOOT;

3) Defendants’ motion for summary judgment as to Counts Three and Four (Piercing

the Corporate Veil/Alter Ego) is GRANTED; and

4) Defendants’ motion for summary judgment as to Count Five (Promissory Fraud)

is GRANTED.

DONE and ORDERED this the 7th day of May 2010.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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