Cessna Finance Corp. v. Morrison

667 S.W.2d 580, 1984 Tex. App. LEXIS 4882

• Court: Court of Appeals of Texas
• Decided: January 19, 1984
• Docket: 01-83-0204-CV
• Status: Published

Opinions

OPINION

EVANS, Chief Justice.

This is an appeal from a summary judgment entered in favor of Lucian L. Morrison, administrator of the estate of Frank Dyke, deceased, against Cessna Finance Corp., a secured creditor of the decedent’s estate.

Cessna’s first five points of error relate to the trial court’s action in classifying its claim as “a preferred debt and lien” payable only from the proceeds of the security, under sec. 306(a)(2) of the Texas Probate Code, rather than as a “matured secured” claim which would be paid in due course of the administration of the estate pursuant to sec. 306(a)(1) of the Probate Code.

The transaction giving rise to Cessna’s claim against the decedent’s estate involved the purchase of an airplane. The summary judgment proof shows that in March, 1980, the decedent executed a promissory note and conditional sales contract with Cessna which provided for a deferred payment of $360,745.80, in eighty-four monthly installments of $4,187.45 each, commencing April 4,1980. In the sales transaction, the seller reserved a security interest which was assigned, along with the contract and note, to Cessna. On December 6, 1980, the decedent died in Bolivia, apparently as a result of the crash of the airplane. On March 16, 1981, Cessna filed its claim with the administrator of the decedent’s estate for the sum of $213,888.55, representing the claimed balance due in the secured debt. On April 15, 1981, the administrator filed its written objections to the claim, pointing out that the claim failed to specify whether the claimant desired to have the claim allowed and approved as a matured secured claim under sec. 306(a)(1), to be paid in due course of administration, or whether it desired to have the claim allowed, approved and fixed, under sec. 306(a)(2), as a preferred debt and lien against the specific property securing the debt. The administrator rejected the claim in its entirety. Cessna instituted this action to recover the amount of its claim and then filed a motion for summary judgment asserting that it was entitled, as a matter of law, to judgment under the terms of the note. In response, the administrator urged that because Cessna had failed to specify an election under sec. 306(a), its claim should be treated as a preferred debt and lien claim against the specific property. After a hearing, the probate court entered summary judgment in Cessna’s favor for the full amount of its claim, but directed that Cessna’s claim be classified as a preferred debt and lien claim which, under sec. 306(c), was limited to the aircraft comprising the security for the debt. The administrator thereafter moved for summary judgment against Cessna, asserting a counterclaim for usury, and upon hearing that matter, the trial court granted summary judgment in favor of the administrator against Cessna for the sum of $98,276.64, as penalties, plus $12,000 in attorney’s fees. Cessna appeals from those portions of the final judgment entered against it.

Texas Probate Code sec. 298(a) requires that claims for money against a decedent’s estate be presented to the personal representative of the estate within six months after the original grant of letters and that the payment of any claims not presented within such period will be postponed until claims which have been so presented and allowed by the representative, and approved by the court, have been first entirely paid. The Code further provides that the failure of the holder of a secured claim to present his claim within the said six months period shall not cause his claim to be postponed, but that such claim shall be treated as a claim “to be paid in accordance with subsequent provisions of this Code.” Tex.Prob.Code Ann. sec. 298(a) (Vernon 1980).

Sec. 306 deals with the method of handling secured claims, and we quote that section in its entirety:

(a) Specifications of Claim. When a secured claim against an estate is presented, the claimant shall specify therein, in addition to all other matters required to be specified in claims:

(1) Whether it is desired to have the claim allowed and approved as a matured secured claim to be paid in due course of administration, in which event it shall be so paid if allowed and approved; or

(2) Whether it is desired to have the claim allowed, approved, and fixed as a preferred debt and lien against the specific property securing the indebtedness and paid according to the terms of the contract which secured the lien, in which event it shall be so allowed and approved if it is a valid lien; provided, however, that the personal representative may pay said claim prior to maturity if it is for the best interest of the estate to do so.

(b) Handling of Secured Claims Not Presented in Time. If a secured claim is not presented within the time provided by law, it shall be treated as a claim to be paid in accordance with Paragraph (2) of Subsection (a) hereof.

(c) Approved Claim As Preferred Lden Against Property. When an indebtedness has been allowed and approved under Paragraph (2) of Subsection (a) hereof, no further claim shall be made against other assets of the estate by reason thereof, but the same thereafter shall remain a preferred lien against the property securing same, and the property shall remain security for the debt in any distribution or sale thereof prior to final maturity and payment of the debt.

(d) Payment of Maturities on Secured Claims. If property securing a claim allowed, approved, and fixed under Paragraph (2) of Subsection (a) hereof is not sold or distributed within twelve months from the date letters testamentary or of administration or guardianship are granted, the representative of the estate shall promptly pay all maturities which have accrued on the debt according to the terms thereof, and shall perform all the terms of any contract securing same. If the representative defaults in such payment or performance, on motion of the claimholder, the court shall require the sale of said property subject to the unmatured part of such debt and apply the proceeds of the sale to the liquidation of the maturities, or, at the option of the claimholder, a motion may be made in a like manner to require the sale of said property free of such lien and to apply the proceeds to the payment of the whole debt.

Cessna contends that because its claim was presented within the six months period provided by sec. 298(a), that the court exceeded its powers in classifying the claim as a preferred debt and lien against the security, and it argues that because its claim states “on information and belief” that the collateral was “lost or destroyed,” the claim adequately reflected its election to have the claim allowed as a matured secured claim for money payable out of the general assets of the estate.

In response to Cessna’s contentions, the administrator argues that the provisions of sec. 306(a) are mandatory, and that a secured claim is not timely “presented” within the meaning of 306(a) unless the claimant specifies in the claim, “in addition to all other matters required to be specified,” the claimant’s election either to have the claim allowed and approved as a “matured secured claim” or as a “preferred debt and lien” against the specific property securing the debt. Thus, the administrator argues that the secured creditor must make an affirmative election within the six months period following the original grant of letters. Otherwise the claim is to be treated as a preferred debt and lien against the specific security, as provided by sec. 306(b).

Although we find no cases construing sec. 306(a) and (b) together, we are persuaded that the construction urged by the administrator is correct. Accordingly, we conclude that because Cessna did not make an affirmative election, as required by sec. 306(a), its secured claim was not timely “presented” within the meaning of sec. 306(b), and when it failed to amend its claim in response to the administrator’s objections, the probate court was authorized to treat its claim as a preferred debt and lien against the specific property, as provided by sec. 306(b).

We also have determined that Cessna’s secured claim in the case at bar does not affirmatively reflect an election to proceed under sec. 306(a). Although the claim recites that it is secured by the conditional sales contract establishing a lien on the aircraft belonging to the estate, and alleges on information and belief that the aircraft has been lost or destroyed, the claim fails to request or otherwise indicate an election for treatment other than as a preferred debt and lien against the specific property. The administrator timely filed its objections to the claim, as required by Tex.Prob.Code Ann., sec. 302, specifically pointing out this failure, but Cessna made no effort thereafter to amend or supplement the claim to indicate the required election. Although the claimant asserted in its brief that it did not receive notice of the administrator’s objection, it concedes on oral submission that specific notice of such filing was not required and that it was legally on notice thereof. See, Russell v. Dobbs, 163 Tex. 282, 354 S.W.2d 373, 376 (1962).

Cessna argues, notwithstanding the provisions of sec. 306(b), that even assuming it failed to make an election as required by sec. 306(a), its claim should be treated as a matured secured claim to be paid in due course of administration rather than as a preferred debt against the specific property. In support of this argument it cites Dallas Joint-Stock Land Bank v. Maxey, 112 S.W.2d 305 (Tex.Civ.App.—Dallas 1937, no writ). In that case a mortgagee made no election under the statute (now codified under sec. 306), and its claim was classified by the probate court as a class 3 claim. The mortgagee contended that because unpaid allowances existed in favor of the widow and minor children of the decedent, which have priority over costs of administration, the personal representative of the estate could not properly charge general administration expenses against the security for the debt. The Dallas Court of Civil Appeals overruled this contention, concluding that since the claimant had not made an election in accordance with the statute, it was not entitled to the protection of the statute (now sec. 306), and held that the administration expenses, bearing a priority classification, could be paid out of the proceeds of the mortgaged property.

Cessna contends that the holding in Max-ey suggests that when a secured claimant makes no election under sec. 306, the claim should be considered a matured secured claim to be paid in the due course of administration, rather than as a preferred debt against the specific property. We do not read the decision in Maxey as compelling that conclusion. We further conclude that even if Maxey does stand for the proposition urged by Cessna, the decision does not apply to the facts of the instant case. In Maxey, the secured property was sold by the administrator to the mortgagee for the amount of the secured claim plus interest. The dispute between the claimant and the administrator was over whether the administrator’s fees and the attorney’s fees in connection with the sale could properly be charged against the funds derived from such sale. The court held that such fees and costs were proper charges against the sales proceeds, and that since the claimant had not made the statutory election, it was not entitled to claim the protection afforded claimants who do make the election. Under the facts involved in Maxey, it was unnecessary for the court to determine whether a secured claimant’s failure to make a sec. 306(a) election, within the time for presentment of claims, entitles the probate, court to treat the claim as a preferred debt and lien against specific property in accordance with sec. 306(b). Indeed, the court in Maxey did not even make reference to the provisions of sec. 306(b).

The record in the case at bar shows that Cessna was given the opportunity to amend its defective claim, and that within the six month period, it could have presented to the administrator a corrected claim in compliance with the statute. However, Cessna did not heed the administrator’s objection and took no action to correct its defective claim. Under such circumstances, the probate court acted within its discretion in finding that Cessna had failed to make the election required by sec. 306(a), and in classifying Cessna’s claim as a preferred debt and lien against the security under sec. 306(a)(2), Texas Probate Code. We overrule Cessna’s first four points of error.

We also overrule Cessna’s fifth point of error in which it argues that secs. 306(a)(2) and 306(c) of the Texas Probate Code unconstitutionally impair the obligations of its contract with the decedent. The constitutional prohibitions relied upon by Cessna apply only where parties have entered into a contract and thereafter a statute is passed that unlawfully impairs their contractual obligations. See, City of Brownsville v. Public Utility Commission of Texas, 616 S.W.2d 402 (Tex.Civ.App.—Texarkana 1981, writ ref’d n.r.e.). That is not the case here.

In its points of error six through ten, Cessna contends that the trial court erred in applying the law of Kansas in determining whether the transaction in question is usurious, and that regardless of whether Kansas or Texas law is applicable, the transaction was, under the law of both states, not usurious because it was a time-price sale.

The summary judgment proof shows that three states were involved in the decedent’s purchase of the airplane. The conditional sales contract and promissory note were both entered into in Minnesota, the home state of the seller; the buyer was from Texas, and the contract provided that the airplane’s home base would be in Houston; and the promissory note provided for payment of the purchase price to Cessna at its offices in Kansas. Neither document specified which state laws were intended to govern the transaction.

The estate’s counterclaim for usury is based upon the note and its provision for a fifteen percent interest rate. Both sides concede that under Texas law the time-price doctrine would apply and that the transaction would not be usurious. However, the trial court found that Kansas law governed, and therefore that the contractual rate of interest violated the usury statute of that State.

We have concluded that the trial court properly applied the law of Kansas to the transaction; however, we also have determined that the contractual rate of interest was not usurious under the law of that state.

Cessna contends that Kansas law should not be applied because the contract did not contain a “valid forum selection clause,” and that the law of the state with the most significant relationship should be applied to resolve the conflicts issue. See, Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1983).

We recognize that Duncan now sets forth the controlling law for resolution of the conflict issue in contract cases. However, we do not believe the Texas Supreme Court intended to extend this principle to negotiable instruments. In the case at bar, the promissory note expressly provided for payment in Kansas, and the laws of that State therefore govern the substantive rights and liabilities of the parties. Andrews v. Hoxie, 5 Tex. 171 (1849); Wade v. Darring, 511 S.W.2d 320 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Restatement of Conflict of Laws 2d, sec. 214, comment (b).

We also hold that the transaction is not usurious under Kansas law. Both parties agree that the transaction was a purchase on credit which would be governed by the time-price doctrine, but they disagree about whether that doctrine is recognized in Kansas. Cessna contends that Kansas, like Texas, recognizes the time-price doctrine and that the transaction should, under that doctrine, be exempt from the Kansas usury statute. In support of its position, Cessna cites Atlas Securities Co. v. Copeland, 124 Kan. 393, 260 P. 659 (1927). The administrator concedes that because of the Atlas decision, a time-price sale was not subject to Kansas usury laws when that decision was rendered. However, the administrator argues that because of statutory changes in Kansas subsequent to the Atlas decision, the time-price doctrine should no longer be considered “alive” in that State. The administrator refers us to the statutory analysis of Prof. Barkley Clark, “Interest Rates in Kansas: The Decline and Fall of Ezekiel,” 49 Journal of the Kansas Bar Association 81 (1980).

We do not consider it necessary to discuss whether the time-price doctrine in Kansas has been eliminated by implication by statutes enacted subsequent to the Atlas decision. It suffices to say that we have not been referred to any Kansas statute or case which expressly rejects the time-price doctrine as an exception to the Kansas usury rule. We also point out that despite Professor Clark’s article, at least one student of Kansas usury law has concluded that the time-price exception to Kansas usury law still exists. See, Note, “New Kansas Usury Laws and Interest Rate Regulation,” 20 Washburn L.J. 572, 580 (1981). Thus, we are required to recognize the decision of the Kansas Supreme Court in Atlas as representing the law of that state, and we accordingly sustain Cessna’s eighth point of error. We also conclude that the trial court was entitled to judicially notice the law of Kansas, and we therefore overrule Cessna’s ninth point of error. Because of our decision that the transaction in question was not usurious under Kansas law, we need not address Cessna’s tenth point of error contending that the Kansas usury statute is unenforceable in Texas; Cessna’s eleventh point of error contending that the defense of usury was personal to the decedent and that the administrator had no standing to raise the defense; and Cessna’s twelfth point of error asserting that any award for usury should be in the form of a setoff, and was not the proper subject of an independent judgment.

We affirm that portion of the trial court’s summary judgment awarding to Cessna the full amount of its claim, and directing that such claim be classified as a preferred debt and lien claim against the specific property given as security for the debt on which the claim is based, and we reverse that portion of the trial court’s summary judgment awarding damages against Cessna on the administrator’s counterclaim for usury, and render judgment that the administrator take nothing against Cessna on said counterclaim.

All costs of appeal are divided equally between the parties.

BASS, J., dissenting.