United States v. First City Capital Corp.

53 F.3d 112, 1995 WL 293040
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 1, 1995
Docket94-20186
StatusPublished
Cited by7 cases

This text of 53 F.3d 112 (United States v. First City Capital Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. First City Capital Corp., 53 F.3d 112, 1995 WL 293040 (5th Cir. 1995).

Opinions

WISDOM, Circuit Judge:

In this ease, the plaintiff/appellee the Small Business Administration (“SBA”), as receiver, sought to enforce a guarantee agreement against the defendant/appellant Brent J. Barron almost ten years after the maturity date of the underlying debt. The district court granted summary judgment in favor of the SBA. The court found that language in the guarantee agreement made a demand for payment a condition precedent to suit on the guarantee agreement, and that, therefore, the applicable statute of limitations did not begin to run until a demand was made. Because we find that the demand for payment was unreasonably delayed, we conclude that any action to enforce the guarantee agreement is barred under Texas law. Accordingly, we REVERSE and RENDER.

I.

On December 28, 1978, the Small Business Investment Company of Houston, a Texas company that later changed its name to First City Capital Corporation (“lender”), and Barron Construction Company, a Texas corporation (“borrower”), executed a written agreement for a loan of $50,000 for working capital (the “loan agreement”). Section II-A of the loan agreement specified that the loan would be evidenced by a promissory note attached as Exhibit “A” to the loan agreement. The loan agreement specified that this promissory note would be in the principal sum of $50,000 bearing interest at 14 percent with the interest being paid in monthly installments beginning February 10, 1979, and continuing monthly thereafter “until paid in full”. The loan agreement further specified that the principal would be due and payable in monthly installments of $892.85 each, with the first installment being due and payable on July 10, 1979, and on the tenth day of each month thereafter “until July 10, 1983 at which time the entire remaining balance owing on said note will be due and payable”. The loan agreement further specified that the promissory note “shall be guaranteed in its payment, unconditionally and without reservation, jointly and severally by all the principals of borrower”, and that “this [ljoan [ajgreement is to be construed in accordance with the laws of the State of Texas”.

On the same date, the borrower executed and delivered a promissory note in the amount of $50,000 (the “note”). The note contains the same provisions as the loan agreement except that the note does not contain any language specifying that the entire remaining balance will be due and payable on July 10, 1983. The note does expressly state that it shall be governed by Texas law and that it was executed pursuant to the loan agreement of the same date.

Also, on the same date, a separate agreement was signed by Bert I. Barron and Brent J. Barron (the “guarantee agreement”). In the opening paragraph of the guarantee agreement, the lender is identified by name, the borrower is identified by name, and the principal amount of the note guaranteed is specified as $50,000. The guarantee [114]*114agreement farther provides that the note being guaranteed “is attached hereto as Exhibit ‘A’ and made a part hereof for all purposes”.

The lender’s records reflect that the borrower never made monthly installments of interest and principal as specified in the note. The borrower made payments in various amounts at varying intervals until December 22, 1983, when the last payment was made. After these payments were applied, there was an outstanding balance on the note in the principal amount of $27,752. Neither the borrower nor any guarantor made any payments on the note after December 22, 1983, and there is no evidence in the record of any ratification, renewal, or extension agreement relating to the note.

On April 7, 1988, the United States of America, as plaintiff, filed suit in federal district court under 15 U.S.C. § 687 against the lender, First City Capital Corp., alleging (1) that the lender violated various regulations issued by the Small Business Administration (“SBA”) under the Small Business Investment Act, 15 U.S.C. § 661 et seq. (the “Act”); (2) that the lender was in default on certain subordinated debentures which were guaranteed by the SBA; (3) that the lender’s license and franchise under the Act should be forfeited; and (4) that the SBA should be appointed as “permanent receiver of First City for the purpose of liquidating all of defendant’s assets and satisfying the claims of creditors therefrom in the order of priority as determined by this court, and pursuing all causes of action available to First City against third parties”.

On the same day, a stipulation of settlement was filed between the United States and the lender, and an order was entered by the district court granting the relief sought in the original complaint. Some 15 months later, on July 31, 1989, the SBA, as receiver of the lender, sent a letter by certified mail to Brent J. Barron demanding payment of the principal balance of the note in the amount of $27,750 and an additional sum of about $95,000 of accrued interest thereon. There is nothing in the record to indicate Brent J. Barron responded to this demand letter.

Three years and eight months later, on April 9, 1993, the plaintiff SBA, as receiver, filed a complaint in district court against Barron Construction Co., Bert I. Barron and Brent J. Barron, as an ancillary proceeding to the original civil action under which the SBA was appointed receiver. There was no service of process served on Barron Construction Co. or Bert I. Barron. The defendant Brent J. Barron was served and filed his answer on May 3, 1993. Subsequently, both parties filed motions for summary judgment.

In its motion for summary judgment, the SBA argued that the applicable statute of limitations had not run against Barron’s obligation on the guarantee agreement. The SBA argued that the guarantee agreement contained a provision which made a demand for payment a condition precedent to bringing suit on the guarantee agreement. The SBA contends that, because of this condition precedent, the applicable statute of limitations did not start to run until the demand letter of July 31, 1989 was received. In making this contention, the SBA relies on the following language in the guarantee agreement:

If the promissory note above described shall become due and remain unpaid, in whole or in part, the Guarantors, jointly and severally, will, on demand (and without further notice of dishonor, and without any notice having been given to the Guarantors previous to such demands, of the acceptance by the lender of this guaranty) pay to the Lender its successors or assigns, at its office in Harris County, Texas, the full amount due and owing on said promissory note ... (emphasis added).

Barron, in his motion for summary judgment, argued that the above language did not make a demand a condition precedent to suit, and therefore, the applicable statute of limitations began to run on July 10, 1983, the date the note was due and payable. Barron, alternatively, argued that, even if a demand was a condition precedent to suit on the guarantee agreement, the action was barred under Texas law because the demand for payment was unreasonably delayed.

[115]*115The district court denied Barron’s motion for summary judgment.

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Bluebook (online)
53 F.3d 112, 1995 WL 293040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-first-city-capital-corp-ca5-1995.