United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR SUMMARY JUDGMENT
S. KRIEGER CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court pursuant to the
Plaintiff's (“Tatonka”) Motion for Summary
Judgment (# 83), Mr. Connelly's pro
se response (# 92), and
Tatonka's reply (#95); and Mr.
Connelly's Motion for Summary Judgment (#
93), Tatonka's response (# 96),
and Mr. Connelly's reply (#
Court summarizes the pertinent facts here and elaborates as
necessary in its analysis. Mr. Connelly is the Chief
Executive Officer of an entity called Mosaica Education, Inc.
(“Mosaica”). In 2007, Tatonka entered into an
agreement with Mosaica to loan Mosaica up to $10 million via
a revolving loan agreement. Pursuant to the agreement,
Tatonka made large long-term loans to Mosaica.
in 2013, Mosaica requested new short-term loans from Tatonka,
but Tatonka was reluctant to agree. The parties ultimately
agreed that Tatonka would make the additional short-term
loans if Mr. Connelly (and other principals of Mosaica)
executed personal guarantees. Over a period of several months
in 2013, Mr. Connelly executed six Guaranty Agreements,
promising to personally guarantee various amounts of
Mosaica paid off the short-term loans as required, by 2014 it
had defaulted on its long term indebtedness to Tatonka.
Several lawsuits involving Mosaica ensued, and ultimately the
company was eventually placed into a receivership and
liquidated. Some $4 million of Mosaica's debt remained
unpaid following the liquidation of Mosaica.
then turned to the guarantees given by Mr. Connelly. Mr.
Connelly disputed that the guarantees applied to the
long-term loans as compared to the short-term loans that had
been paid off. Tatonka commenced this suit, asserting a
single claim against Mr. Connelly for breach of contract.
Tatonka moves (# 83) for summary judgment
against Mr. Connelly. Mr. Connelly filed a cross motion for
summary judgment (# 93), a single-page
document that incorporates his response to Tatonka's
motion by reference.
Court exercises jurisdiction pursuant to 18 U.S.C.
Standard of review
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.
1989). A factual dispute is “genuine” and summary
judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When considering a
summary judgment motion, a court views all evidence in the
light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
moving party does not have the burden of proof at trial, it
must point to an absence of sufficient evidence to establish
the claim or defense that the non-movant is obligated to
prove. If the respondent comes forward with sufficient
competent evidence to establish a prima facie claim
or defense, a trial is required. If the respondent fails to
produce sufficient competent evidence to establish its claim
or defense, then the movant is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
case involves cross-motions for summary judgment.
"Because the determination of whether there is a genuine
dispute as to a material factual issue turns upon who has the
burden of proof, the standard of proof and whether adequate
evidence has been submitted to support a prima facie
case or to establish a genuine dispute as to material fact,
cross motions must be evaluated independently." In
re Ribozyme Pharmaceuticals, Inc., Securities Litig.,
209 F.Supp.2d 1106, 1112 (D. Colo. 2002); see also
Atlantic Richfield Co. v. Farm Credit Bank of Wichita,226 F.3d 1138, 1148 (10th Cir. 2000); Buell Cabinet Co.
v. Sudduth, 608 F.2d 431, 433 ...