Mercantile Bank, N.A. v. Loy

77 S.W.3d 93, 2002 Mo. App. LEXIS 1291, 2002 WL 1284225
CourtMissouri Court of Appeals
DecidedJune 12, 2002
DocketNo. 24500
StatusPublished
Cited by1 cases

This text of 77 S.W.3d 93 (Mercantile Bank, N.A. v. Loy) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercantile Bank, N.A. v. Loy, 77 S.W.3d 93, 2002 Mo. App. LEXIS 1291, 2002 WL 1284225 (Mo. Ct. App. 2002).

Opinion

ROBERT S. BARNEY, Chief Judge.

This is an action by a creditor bank of a bankrupt corporation against four persons who had guaranteed payment in varied amounts of the bankrupt’s debt. Guarantors appeal from the trial court’s judgment in favor of the creditor bank and against the guarantors, jointly and severally, in the amount of $230,833.75 together -with interest at the rate of 9.25% from and after July 13, 2001, and attorney fees of $31,220.97. As more fully explained below, in their sole point on appeal Guarantors premise trial court error in “finding as valid the written waiver of surety defenses contained within their absolute guaranty.”

In a bench trial, the standard of review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), which interprets what is now Rule 73.01(c). Tower Props. Co. v. Allen, 33 S.W.3d 684, 687 (Mo.App.2000). “Under this standard, this court will affirm and sustain the judgment of the trial court unless it is not supported by substantial evidence, it is against the [95]*95weight of the evidence, or it erroneously declares or applies the law.” Id.

“A guarantor agrees to become secondarily liable for the obligation of a debtor in the event the debtor does not perform the primary obligation.” Jamieson-Chippewa Inv. Co. v. McClintock, 996 S.W.2d 84, 87 (Mo.App.1999). “A guaranty is thus a species of contract.” Id. “The rules of construction applicable to a guaranty are the same as applied to other contracts.” Royal Banks of Missouri v. Fridkin, 819 S.W.2d 359, 361 (Mo. banc 1991).

A guaranty is a “collateral agreement for another’s undertaking, and is an independent contract which imposes responsibilities different from those imposed in the agreement to which it is collateral.” Jamieson-Chippewa, 996 S.W.2d at 87. “A ‘continuing’ guaranty is one that contemplates guaranteeing a series of possible transactions between the debtor and creditor, rather than only a single such transaction.” Id.

“A guaranty agreement may be construed together with any contemporaneously executed agreements dealing with the same subject matter, as an aid in ascertaining the intention of the parties.” Id. “However, this does not mean that those agreements constitute a single contract, and the liability of the guarantor remains primarily dependent on the guaranty agreement itself.” Id. “It is the guaranty contract itself which defines the obligations and rights of both the guarantor and guarantee.” Id. at 87-88.

“ ‘[T]he liability of a guarantor is to be strictly construed according to the terms agreed upon, and a guarantor is bound only by the precise words of his contract, and no stretching or extension of terms can be indulged in order to hold the guarantor liable.’ ” Lemay Bank & Trust Co. v. Lawrence, 710 S.W.2d 318, 322 (Mo.App.1986) (quoting U.S. Suzuki Motor Corp. v. Johnson, 673 S.W.2d 105, 107 (Mo.App.1984)). Moreover, interpretation of the guaranty contract cannot rely on other words being added by construction or implication, but the meaning of the words actually used is to be ascertained in the same manner as the meaning of similar words used in other contracts. Id.

The record shows that prior to bankruptcy Ag Service Centers, L.C. (“Ag Service”) provided fertilizers and chemicals to farmers, including the spreading and delivery of such products. Respondent, Mercantile Bank of Western Missouri, (“Mercantile”) provided financing for Ag Service, in return for the execution of two corporate promissory notes. The first promissory note was for $375,000 and the second was for $850,000 and used as a capital line of credit. Both promissory notes contained provisions for interest and attorney fees in the event of collection. As security, Mercantile took security interests in Ag Service’s “inventory, motor vehicles, equipment, fixtures, accounts, and general intangibles.”

Each of the Appellants, Michael F. Loy, Diane L. Loy, Timothy M. Loy and Denise A. Loy (“Guarantors”), signed a “Continuing Guaranty Agreement,” which set out, in part:

4. PRIMARY LIABILITY. Guarantor is primarily liable under this Agreement, regardless of whether or not Bank pursues any of its remedies against Borrower, against any other maker, surety, guarantor or endorser of the Obligations or against any collateral securing the Obligations.
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9. RELEASE OF COLLATERAL. Guarantor agrees that any collateral which secures all or part of the Obli[96]*96gations (Collateral) may be assigned, exchanged, released in whole or in part or substituted without notice to- Guarantor and without defeating, discharging or diminishing the liability of the Guarantor. Guarantor’s obligation is absolute and Bank’s failure to perfect any security interest or any act or omission by Bank which impairs the Collateral shall not relieve Guarantor of Guarantor’s liability under this Agreement.

Ag Service filed for Chapter 11 bankruptcy in the summer of 1999. Following its Chapter 11 filing, a bankruptcy trustee was appointed. The 'trustee inspected Ag Service facilities at Lockwood, Missouri, Pierce City, Missouri and Jasper, Missouri. After the Jasper, Missouri inspection, the trustee took the position that Mercantile was unperfected as to certain leasehold improvements at the Jasper, Missouri facility.

Mercantile did not contest the trustee’s decision that certain assets at the Jasper facility were unperfected. Following the bankruptcy judge’s approval, the trustee sold the assets. Mercantile did not object to the sale of the assets at the Jasper facility. The sale generated $185,000.

The trial court concluded that had Mercantile perfected its security interest in the assets of the Jasper facility there would have been sufficient funds to pay all of indebtedness to Mercantile owed by Ag Services. But the trial court also concluded that there was no evidence that Mercantile Bank acted in bad faith or in any way attempted to deceive Guarantors and found that there remained an outstanding debt owed to Mercantile by the Guarantors in the amount of $280,883.75, consisting of principal and interest, and that Mercantile had expended $31,220.97 in attorney fees in attempting to collect the debt.

In their argument, Guarantors concede that Mercantile did not practice “deceit or dishonesty.” Rather, Guarantors argue that despite the language of the Continuing Guaranty Agreement, Mercantile’s failure to perfect its security interest as to assets in the Jasper, Missouri facility, together with its failure to contest the bankruptcy trustee’s opinion that such assets should not be applied against the guaranteed debt, constituted a lack of “good faith and fair dealing.” We disagree. As discussed, infra, the disposition of this case is controlled by Lemay Bank & Trust Co. v. Lawrence, 710 S.W.2d 318

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Bluebook (online)
77 S.W.3d 93, 2002 Mo. App. LEXIS 1291, 2002 WL 1284225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercantile-bank-na-v-loy-moctapp-2002.