Nationsbank of TX v. Oliver Trans Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 26, 1998
• Docket: 97-10980
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-10980 Summary Calendar

NATIONSBANK OF TEXAS, N.A.,

Plaintiff-Appellee,

VERSUS

OLIVER TRANSPORTATION INCORPORATED, ET AL.,

Defendants,

TONY MEADOR, Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Texas (3:95-CV-1735-X) March 26, 1998

Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Tony Meador (“Meador”) appeals the summary

judgment granted to Plaintiff-Appellee NationsBank of Texas, N.A.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 (“NationsBank”) in this action on a guaranty. We affirm.

FACTS AND PROCEDURAL HISTORY

On February 28, 1994, NationsBank granted Oliver Transport,

Inc. (“OTI”) a line of credit in a secured revolving credit

arrangement. Meador, who at that time served as president of OTI,

and John F. Oliver signed agreements to serve as personal

guarantors of the loan.

In June 1995, NationsBank discovered that OTI had overstated

its receivables which served as security for the outstanding loan.

In spite of that discovery, NationsBank continued to loan OTI

additional amounts under the revolving credit arrangement until

September 1995. NationsBank advanced a total of approximately

$62,900,000 to OTI under the agreement. On September 21, 1995,

when NationsBank demanded full payment of amounts due on the note,

the outstanding balance was $3,209,432.05. Because OTI failed to

fully satisfy its obligations, NationsBank demanded payment of

Meador’s Guaranty Obligation.

When OTI, Meador and Oliver failed to pay the balance of the

debt, NationsBank filed suit. OTI and Oliver did not answer the

complaint and default judgment was entered against them, which is

now final.

On NationsBank’s motion for summary judgment against Meador,

the district court found that there were no disputed issue of

material fact on the elements of an action on a guaranty: (1) the

existence and ownership of the guaranty contract, (2) the terms of

2 the underlying contract, (3) the occurrence of the conditions upon

which liability is based, and (4) the failure or refusal to perform

by the guarantor. Winan v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex.

App.--Dallas 1994, n.w.h.). After resolving questions of law

involving contract interpretation against Meador, the district

court entered summary judgment for NationsBank, which Meador now

appeals.

DISCUSSION

We review the entry of summary judgment de novo, applying the

same standards that governed the District Court’s decision. Estate

of Carter v. United States, 921 F.2d 63, 65 (5th Cir. 1991).

a. Material alterations

Meador contends that NationsBank made material alterations of

the indebtedness which discharged his guaranty. In order to

succeed on his material alteration defense, Meador must create a

fact issue on each of the following elements: (1) a material

alteration of the underlying contract; (2) made without his

consent; (3) which is to his detriment. Austin Hardwoods, Inc. v.

VandenBerghe, 917 S.W.2d 320, 326 (Tex. App.--El Paso, 1995, writ

denied). However, the guaranty states that Meador’s “obligations

under the terms of this guaranty shall not be . . . affected by .

. . any failure of the Lender to notify the Guarantor of any

renewal, extension or assignment of the Guaranteed Indebtedness[.]”

The trial court did not err in holding that Meador agreed in

3 advance to the increase of which he now complains and

simultaneously waived all rights to notice of any increase.

b. Meador’s retirement

Meador asserts that his retirement for OTI, of which

NationsBank became aware through news media reports, operated to

terminate his liability on the guaranty. The guaranty states that

in order to be relieved of further liability on the guaranty,

Meador must communicate written notice to NationsBank that he would

not be liable for amounts advanced after the notice was sent.

Communication of his employment status through the news media does

not comply with that requirement. The district court did not err

in finding that there was no disputed issue of material fact on

this defense.

c. Equitable estoppel

Meador argues that NationsBank should be equitably estopped

from enforcing the guaranty because NationsBank failed to require

Meador to update his financial statements after his retirement,

which he says he assumed indicated his release from liability. To

succeed on his claim of equitable estoppel, Meador must establish

material concealment of material fact, made with actual or

constructive knowledge of true facts, with the intent that the

concealment be acted upon by a party without knowledge or means of

knowledge of the true facts who relies on the concealment to his

detriment. Matter of Christopher, 28 F.3d 512, 520 (5th Cir.

4 1994). Meador’s contention amounts to a claim that NationsBank

concealed from Meador the advances made to OTI between June and

September 1995. This position fails to create a fact issue on

equitable estoppel because Meador’s guaranty expressly waived any

notice of such advances, because no evidence supports an inference

of concealment, and because there is no fact question that the 1995

advances in question did not operate to Meador’s detriment. In

fact, Meador’s liability was reduced during the June - September

1995 time period.

For the foregoing reasons, we affirm the district court’s

grant of summary judgment for NationsBank.

AFFIRMED.