Brae Asset Fund v. Walsh ( 1996 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1049
BRAE ASSET FUND, L.P.,
Plaintiff, Appellant,
v.
WELD MANAGEMENT, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Lynch, Circuit Judges.
John A. Doonan, with whom Doonan & Graves, Debra Csikos, and
Acquisition Management, Inc. were on brief for appellant.
Joseph K. Mackey, with whom Kearney & Gleason, P.C. was on brief
for appellee.
December 3, 1996
Per Curiam. Following oral argument and a careful
Per Curiam.
review of the briefs and the entire record on appeal, we affirm
the summary judgment entered in favor of Weld Management, Inc.
("Weld"), essentially for the reasons stated by the district
court. Largely on the strength of inapposite authorities,
see, e.g., Den Norske Bank AS v. First Nat'l Bank of Boston, 75
F.3d 49 (1st Cir. 1996); Cofman v. Acton Corp., 958 F.2d 494 (1st
Cir. 1992), appellant Brae Asset Fund, L.P. ("Brae") asserts on
appeal that the plain literal import of the language in the
limited recourse loan guaranty drafted by its predecessor in
interest, Bank of New England, and executed by Weld's predecessor
in interest, E. Denis Walsh, Inc. should be disregarded
because the parties could not have intended that a loan guaranty
be rendered meaningless as the district court's interpretation
essentially does. Brae's argument fails.
Even assuming that the guaranty language is ambiguous,
Brae did not generate a trialworthy issue of material fact, see,
e.g., Den Norske Bank AS, 75 F.3d at 53, since it proffered no
extrinsic evidence (e.g. circumstances surrounding negotiations
or execution of guaranty, "usage of trade" evidence, course of
dealing) which might enable a reasonable factfinder to determine
that the parties meant the limited recourse guaranty to be
unlimited, as Brae urges. See id. at 55-59. In fact, Brae has
not so much as intimated that any such extrinsic evidence exist-
ed, nor indicated, for example, whether the original guarantor,
E. Denis Walsh, Inc., even owned property which it might have
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mortgaged to secure its loan guaranty. Absent extrinsic evidence
sufficient to generate a material issue of fact, its opposition
to summary judgment was unavailing. See id.Accordingly, the district court judgment is affirmed;
Accordingly, the district court judgment is affirmed;
costs to appellee.
costs to appellee.
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