Towers Charter & Marine Corp. v. Cadillac Insurance

894 F.2d 516
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 17, 1990
DocketNo. 189, Docket 89-7486
StatusPublished
Cited by1 cases

This text of 894 F.2d 516 (Towers Charter & Marine Corp. v. Cadillac Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Towers Charter & Marine Corp. v. Cadillac Insurance, 894 F.2d 516 (2d Cir. 1990).

Opinion

KEARSE, Circuit Judge:

Plaintiff-counterclaim-defendant Towers Charter & Marine Corporation (“Towers”) and additional counterclaim-defendant Steven Hoffenberg appeal from so much of a final judgment of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, as (1) summarily dismissed Towers’s complaint against defendant Cadillac Insurance Company (“Cadillac”) for anticipatory breach of a loan commitment agreement, (2) ordered Towers to pay Cadillac $51,652.55 as costs and attorneys’ fees incurred in connection with the defense of Towers’s complaint, and (3) ordered Towers and Hoffenberg to pay Cadillac $97,893.96 as costs and attorneys’ fees incurred in connection with Cadillac’s first counterclaim. The court granted summary judgment dismissing the complaint on the ground that Towers had not fulfilled its own obligations under the loan commitment agreement; the court ruled in favor of Cadillac on its counterclaims for repayment of a note and for reimbursement of attorneys’ fees provided for by contract. 708 F.Supp. 612. On appeal, Towers contends principally that summary judgment was improper because its timely performance of conditions imposed by the loan commitment agreement was not essential and because there were genuine issues as to whether Cadillac had waived performance of the pertinent conditions; Towers and Hoffenberg contend that the awards of attorneys’ fees were not entirely authorized by the agreements at issue and that the amounts awarded were unreasonable. For the reasons below, we affirm the judgment.

I. BACKGROUND

The material facts are not genuinely in dispute. In late 1987, Towers contracted to purchase a 111-foot yacht, the MARCO POLO, from a third party. In order to finance the purchase, Towers proposed to borrow $1.4 million from Cadillac.

A. The Arrangements for the Loan

Towers and Cadillac entered into a loan commitment agreement reflected in a January 11, 1988 letter signed by both parties (“Commitment Letter” or “Loan Commitment”), pursuant to which Cadillac was to grant Towers a $1.4 million loan on which Hoffenberg, Towers’s president, would be guarantor. The Commitment Letter provided, in part, (1) that “[n]ot less than thirty (30) days before the closing date,” Towers would provide Cadillac with, inter alia, (a) “[a]n appraisal report (the “appraisal”) prepared at the request of [Cadillac] for [Cadillac’s] use, by a duly qualified marine appraiser, and satisfactory to [Cadillac]”; (b) an inspection report regarding the vessel’s seaworthiness and general condition (the “survey”); (c) financial statements for Towers and any guarantors of the loan; and (d) such other documents and information as Cadillac might reasonably request; (2) that Towers would provide proof of its corporate existence, including a certified copy of its certificate of incorporation and bylaws, and an opinion letter from its counsel confirming, inter alia, that Towers would be legally bound by the various documents evidencing the loan when they were properly executed; and (3) that Towers was to pay Cadillac a 2% loan commitment fee, i.e., $28,000, of which $5,000 was payable upon Towers’s acceptance of the Commitment Letter and $23,-000 was payable at the loan closing. The Commitment Letter provided that the loan [519]*519commitment would expire if the closing did not occur on or before March 15, 1988, and that “[wjhether or not the Loan is closed, all expenses of [Cadillac] in connection with the Loan, including ... the fees of [Cadillac’s] attorneys, shall be paid by [Towers].”

In February 1988, Towers and Cadillac entered into an additional agreement (“Escrow Agreement”), pursuant to which Cadillac paid $1.4 million into an escrow account to be maintained by Towers’s attorneys at a commercial bank. This agreement, which was set forth on the letterhead of Towers’s attorneys, annexed and incorporated the Commitment Letter. In the Escrow Agreement, Cadillac “agree[d] that at such time as Towers satisfie[d] all of the terms and conditions of the Loan Commitment,” Cadillac would instruct the escrow agent to release the escrowed funds to Towers; if Cadillac gave no such instructions on or before May 31, 1988, the escrow agent was required to return the funds, with all earned interest, to Cadillac. These provisions adjourned the loan closing deadline to May 31, 1988.

The Escrow Agreement also provided that any waivers' or modifications of the parties’ obligations were to be in writing:

9. Except as otherwise specifically provided for hereunder, no party to this Escrow Agreement shall be deemed to have waived any of its rights hereunder or under any other agreement, instrument or paper signed by any of them with respect to the subject matter hereof, unless such waiver is in writing and signed by the party waiving said right. Except as otherwise specifically provided for hereunder, no delay or omission by any party to this Escrow Agreement in exercising any right with respect to the subject matter hereof shall operate as a waiver of such right or of any such other right....
12. This Escrow Agreement may not be changed, modified, extended, terminated, or discharged orally, but only by an agreement in writing, signed by all of the parties to this Escrow Agreement.

' On March 30, 1988, Cadillac authorized the escrow agent to advance to Towers $225,000 of the funds held in escrow. In exchange, Towers executed a promissory note (the “Note”) for that amount plus interest, and it agreed to pay Cadillac the remaining $23,000 of the loan commitment fee, originally due at the closing, immediately. The Note provided that if the loan closing did not occur on or before May 31, “this Note, including all accrued interest and principal evidenced hereby, shall be immediately due and payable in full on May 31, 1988.” The Note also provided that

[u]pon default in the payment of all or any portion of the principal and/or interest when due hereunder, [Towers] agrees to pay all costs of collection, including reasonable attorneys’ fees, court costs, costs of appeal, and other costs incurred by [Cadillac] under such circumstances, in case the principal of the Note or any interest thereon is not paid at the Due Date hereunder, whether or not suit is commenced for such purpose.

By a Guaranty also dated March 30, 1988, Hoffenberg personally guaranteed Towers’s performance of the terms and conditions of the Note, and he

agree[d] to indemnify [Cadillac] and hold it harmless from and against any and all reasonable losses, expenses and damages, including court costs, attorney’s fees and disbursements, incurred by [Cadillac] in connection with the enforcement of its rights under this Guaranty, or as a result of the assertion of any and all claims for the return of moneys paid under the Note ....

B. Performance of the Agreements

In light of the new May 31, 1988 closing deadline, the appraisal, survey, financial statements, and other documents that the Commitment Letter required Towers to furnish were due not later than May 1. By May 5, however, Towers had not yet provided these materials, and Cadillac had attempted to make its own arrangements for an appraisal. On that date its attorneys wrote Towers’s attorneys as follows:

[520]*520As you know, we have requested David Pascoe of D.H. Pascoe & Co., Inc.

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