United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
H. Miller, Senior United States District Judge.
before the court is plaintiff Ranch 620 Retail Partners,
Ltd.'s (“Ranch 620”) motion for summary
judgment (Dkt. 3), defendants Richard Sodja and Molly
Sodja's (“the Sodjas”) response (Dkt. 8),
Ranch 620's sealed reply (Dkt. 10), and the Sodjas'
sur-reply (Dkt. 15). Ranch 620 seeks summary judgment on its
sole claim against the Sodjas for breach of contract, in
addition to judgment for a sum certain of “$1, 195,
126.25, plus pre-judgment interest, attorneys' fees and
costs, post-judgment interest until the judgment is paid, and
costs of suit.” Dkt. 3 ¶ 14.
considered the pleadings, the evidentiary record, and the
applicable law, the court finds that Ranch 620's motion
should be GRANTED as to liability, but that
a hearing is required to determine the precise amount of
issue in this case is a May 20, 2015 guaranty agreement
signed by Richard Sodja and Molly Sodja, the guarantors, in
favor of Ranch 620. Dkt. 3-1, Ex. 1-B. The guaranty was
executed contemporaneously as consideration for a lease
agreement, in which Ranch 620 is the landlord and CLA Austin
Trails, LLC is the tenant. Dkt. 3-1, Ex. 1-A. The guaranty
provides that the Sodjas are “absolutely and
unconditionally” responsible for “performance and
observance of all amounts to be paid and provisions of the
Lease provided to be performed and observed by Tenant”
in the “Event of Default under the Lease.” Dkt.
3-1, Ex. 1-B. There is no dispute that the guaranty is valid.
Nor is there any real dispute that the tenant is in
default. The only dispute is how much the
guarantors owe. According to Ranch 620, the Sodjas owe
“$1, 195, 126.25, plus pre-judgment interest,
attorneys' fees and costs, post-judgment interest until
the judgment is paid, and costs of suit.” Dkt. 3 ¶
14. According to the Sodjas, Ranch 620 began modifying the
tenant's rent in late 2016. Dkt. 8 ¶ 11. The Sodjas
claim that “Plaintiff's modification of the rent .
. . inures to the benefit of the defendants as surety
guarantors, ” and that this precludes summary judgment.
Dkt. 8 at 8.
judgment is proper only when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Once the moving party has
demonstrated the absence of a material fact issue, the
non-moving party must ‘go beyond the pleadings and
designate specific facts showing that there is a genuine
issue for trial.'” Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc)). “This burden will not be
satisfied by ‘some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.'”
Id. (quoting Little, 37 F.3d at 1075).
“[O]n summary judgment, ‘the evidence of the
nonmovant is to be believed, and all justifiable inferences
are to be drawn in his or her favor.'” Waste
Mgmt. of La., L.L.C. v. River Birch, Inc., 920 F.3d 958,
972 (5th Cir. 2019) (quoting Tolan v. Cotton, 572
U.S. 650, 656, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per
standard for Ranch 620 to prevail on the instant motion is as
To prevail on summary judgment on a claim for breach of a
guaranty, the plaintiff must establish (1) the existence and
ownership of the guaranty, (2) the terms of the underlying
contract, (3) the occurrence of the condition on which
liability is based, and (4) the guarantor's failure or
refusal to perform the promise.
Norris v. Texas Dev. Co., 547 S.W.3d 656, 659 (Tex.
App.-Houston [14th Dist.] 2018, no pet.). See also
Sunbelt Sav., FSB, Dallas, Tex. v. Birch, 796 F.Supp.
991, 995 (N.D. Tex. 1992) (citations omitted) (“Under
Texas law, a plaintiff may recover upon a guaranty if he
shows (1) that the defendant executed the guaranty, (2) that
the underlying note is in default, (3) that the plaintiff is
the present holder of the note and guaranty, and (4) that a
certain balance is due and owing.”).
there is no dispute that the guaranty, attached to Ranch
620's summary judgment motion as Exhibit 1-B, is valid,
or that Ranch 620 is the owner of the guaranty. There is no
dispute as to the terms of the underlying lease. Nor is there
a genuine dispute that the tenant is in default. Although the
Sodjas dispute in their sur-reply that any Event of Default
has occurred, that argument is without merit. Ranch 620 has
submitted evidence showing that no rent was paid in July 2019
or August 2019 (see Dkt. 10-1 ¶¶ 9, 10),
and the Sodjas have not even addressed that contention, much
less designated specific facts showing that there is a
genuine dispute as to whether any rent is owed for those
months. Boudreaux, 402 F.3d at 540. While the Sodjas
claim that there were “monthly adjustments and payments
of rent that left nothing owed when this case was
filed” (Dkt. 8 at 1), the Sodjas do not dispute that
the tenant was in default by at least July 26, 2019
(id. ¶ 17), and remained in default at the time
the instant motion was filed (id. ¶ 18). Nor
have the Sodjas alleged that any default occurring after July
2019 has been cured. That the tenant is presently in
default-regardless of when default first occurred-is
sufficient to trigger the Sodjas' liability. Finally,
given that this suit was instigated to compel the Sodjas'
performance as guarantors, there is no dispute that the
Sodjas have failed to perform their promise. Accordingly,
Ranch 620 has established all the elements required to
prevail on its summary judgment motion.
the Sodjas raise a number of suretyship defenses that they
claim preclude summary judgment. The Fifth Circuit explains
these defenses in the context of a “absolute and
unconditional” guaranty-like the one at issue
here-succinctly in United States v. Vahlco
In an action to enforce a guaranty, the guarantor may assert
as a defense that the terms of the guaranteed agreement have
been altered materially. Under Texas law, the guarantor of a
note is discharged from his obligation to answer for that
debt if the creditor grants an extension of time for the
payment of the note to the principal debtor. . . . These
defenses, based upon changes to the underlying obligation and
therefore changes to the guaranty, are termed suretyship