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Tony Marks Racing, LLC v. Vr-12, LLC

United States District Court, N.D. Ohio, Western Division

January 18, 2018

Tony Marks Racing, LLC, Plaintiff
v.
VR-12, LLC, et al., Defendants

          ORDER

          James G. Carr Sr. U.S. District Judge

         This is a breach-of-contract suit in which one of the defendants, Luis M. Latour, has again moved for summary judgment. (Doc. 77).

         The plaintiff alleges that Latour and one of his companies, co-defendant VR-12, LLC, contracted to sponsor plaintiff's race car during the 2011 season of the Automobile Racing Club of America (ARCA). Plaintiff claims, inter alia, that Latour, at the urging of ARCA representatives, personally guaranteed VR-12's alleged obligation to plaintiff (which amounted to $950, 000).

         I previously held there was sufficient evidence to permit a jury to find that Latour made a collateral or secondary promise to answer for VR-12's alleged debt. Tony Marks Racing, LLC v. VR-12, LLC, 2017 WL 1328769, *6-8 (N.D. Ohio). That evidence consisted of the sworn testimony of Tony Marks, the owner of Tony Marks Racing, LLC, that Latour had made such a promise in Daytona, Florida, in the presence of an ARCA representative.

         Following the entry of that order, the parties undertook additional discovery, including the deposition of Mark Gundrum, ARCA's Vice President of Business Development and Corporate Partnerships. (Doc. 79-3). Gundrum testified that he was present during the Daytona conversation between Latour and Marks, and that: 1) Latour never personally guaranteed VR-12's obligation to the plaintiff; and 2) Gundrum never asked Latour to make such a guarantee. (Id. at 5).

         On the basis of this evidence, Latour again argues that he is entitled to summary judgment on plaintiff's breach-of-contract and promissory-estoppel claims. According to Latour, no genuine factual dispute exists as to whether he made the guarantee because both he and Gundrum deny the existence of the guarantee, whereas plaintiff's evidence consists of nothing but “unsupported, self-serving statements which are belied by independent record evidence[.]” (Doc. 77-11 at 11).

         Latour's argument has no merit.

         Granting summary judgment to Latour on the basis of Gundrum's testimony (and Latour's own “self-serving” assertion that he never made a guarantee) would require me to believe their testimony over that of Marks's. But that gets summary-judgment practice exactly backwards:

Despite the lack of corroborating evidence, Plaintiff's testimony is sufficient to create a genuine dispute of material fact that forecloses summary judgment at this juncture.
* * *
On summary judgment, all reasonable inferences must be made in favor of the non-moving party and, as we have held in the past, a plaintiff's testimony alone may be sufficient to create a genuine issue of material fact thereby defeating a defendant's motion for summary judgment.

Moran v. Al Basit LLC, 788 F.3d 201, 206 (6th Cir. 2015).

         Here, Marks was a participant in the disputed conversation, and he obviously has the personal knowledge needed to testify about what Latour said. Accordingly, I cannot “disregard [plaintiff's] status as an appropriate fact witness simply because he is a party to this case . . . The lack of corroboration goes to his testimony's ultimate weight, not its sufficiency under Rule 56.” Golden v. Met. Gov't of Nashville and Davidson Cnty., 263 F.Supp.3d 684, 694 (M.D. Tenn. 2017).

         Furthermore, Latour cites no controlling authority requiring me to ignore or discredit Marks's testimony on the ground it is ...


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