FTD, L.C. v. Bernad ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: FAIRFAX MEDICAL CENTER
ASSOCIATES II,
Debtor.
FTD, L.C.,
Plaintiff-Appellant,
v.
PETER BERNAD; WILLIAM L. GLOVER;
CHARLES D. KIRKSEY; MOHAMMED R.
MOINFAR; WILLIAM C. SILBERMAN;
BAIKUTH SINGH; COMMERCIAL
CONDOMINIUM MANAGEMENT
No. 96-2254
COMPANY, INCORPORATED; FAIRFAX
NURSING CENTER, INCORPORATED;
NORTHERN VIRGINIA GYNECOLOGISTS
INVESTORS, G.P.; FAIRFAX NURSING
CENTER OFFICE LIMITED PARTNERSHIP,
d/b/a Fairfax Nursing Center Office,
Ltd.,
Defendants-Appellees,
and
JOSEPH BALLO; MIGUEL H. GONZALEZ;
BRIAN C. CAMPDEN-MAIN; MARY L.
SARA,
Defendants.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-96-1112-A, BK-95-15403-DOT, AP-96-1004-DOT)
Argued: June 4, 1997
Decided: September 2, 1997
Before WILLIAMS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Reversed and remanded by unpublished per curiam decision.
_________________________________________________________________
COUNSEL
ARGUED: Deborah Jean Israel, SILVERSTEIN & MULLENS,
P.L.L.C., Washington, D.C., for Appellant. David J. McClure,
HIRSCHKOP & ASSOCIATES, P.C., Alexandria, Virginia, for
Appellees. ON BRIEF: William M. Harvey, SILVERSTEIN &
MULLENS, P.L.L.C., Washington, D.C., for Appellant. Philip J.
Hirschkop, HIRSCHKOP & ASSOCIATES, P.C., Alexandria, Vir-
ginia; John D. Steffan, STEFFAN & ASSOCIATES, P.C., Fairfax,
Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Plaintiff (and appellant) FTD, L.C., brought suit against defendants
Peter Bernad and others, alleging that the defendants breached their
guaranties on a note now held by FTD. At issue is whether the defen-
dants, who are all partners in the now-bankrupt Fairfax Medical Cen-
ter Associates II General Partnership (the Partnership), are liable
under the note for the outstanding principal. The defendants contend
2
that the guaranties limited their liability on the note to interest, real
estate taxes, and insurance premiums, while FTD contends that the
guaranties also cover the principal sum. The bankruptcy court agreed
with the defendants and granted summary judgment against FTD. The
district court affirmed. We conclude, however, that the meaning of
the guaranties is ambiguous, and we therefore reverse and remand to
the district court for trial.
I.
As its name might indicate, the Fairfax Medical Center Associates
II General Partnership was formed by the partners, primarily medical
doctors, to hold and manage medical office buildings located in Fair-
fax, Virginia. In 1987 the Partnership obtained a $5.9 million loan
from Old Stone Bank to finance a second medical office building.1
The loan was secured by a deed of trust on the building. The Partner-
ship executed the Promissory Note, and the partners executed individ-
ual guaranties. Eleven of the twelve partners executed guaranties
which provided as follows:
1. Subject to the limitations set forth below, Guarantors
guarantee to Lender the prompt, absolute, and unconditional
payment of the principal sum disbursed under and evidenced
by the Note together wi[th] all interest thereon . . . and any
and all sums of money which, at any time, may become due
and payable under the provisions of the Deed of Trust and
other Loan Documents . . . .
2. Notwithstanding anything contained herein to the con-
trary, it is understood and agreed that the liability of Guar-
antors hereunder is limited to the payment of (i) any and all
interest that accrues on and is added to the principal balance
of the Note pursuant to the terms thereof to an aggregate
maximum for all Guarantors of $182,500.00, (ii) all real
estate taxes due against the Mortgaged Property, and (iii) all
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1 Defendants claim that this 1987 loan was a refinance of a loan from
Old Stone Bank made in 1985. FTD, however, claims that the documents
for the 1987 loan evidence no connection to a 1985 loan.
3
insurance premiums for insurance policies required to be
maintained by the Borrower . . . .
J.A. 628, 638, 645, 652. However, one guaranty, which was signed
by Robert Bainum on behalf of the Fairfax Nursing Center Office
Limited Partnership (the twelfth partner in the Partnership), contained
different language. In that guaranty, paragraph 1 stated:
1. Subject to the limitations set forth below, Guarantors
guarantee to Lender the prompt, absolute, and unconditional
payment of that portion of the interest due on the Note as
specified in Paragraph 2 . . . together with all real estate
taxes due against the mortgaged property and all insurance
premiums for insurance policies required to be maintained
by the Borrower . . . .
J.A. 659.
In early 1994 Old Stone Bank came under receivership of the Res-
olution Trust Corporation (RTC). The loan matured in August 1994,
but just prior to maturity the Partnership defaulted on the loan. FTD
bought the loan from the RTC in November 1995. On December 5,
1995, several of the partners filed an involuntary Chapter 11 bank-
ruptcy petition against the Partnership. Two days later FTD filed in
Virginia state court the breach of contract claims at issue in this case,
alleging that the defendants had failed to make the payments required
under the loan.
In January 1996 defendants removed FTD's action to the United
States District Court for the Eastern District of Virginia. The district
court referred the case to the bankruptcy court, which was concur-
rently conducting the Partnership's chapter 11 proceeding. As part of
that proceeding, FTD moved for relief from the automatic stay on the
Partnership's assets in order to foreclose on the deed of trust. The
bankruptcy court granted the relief. The defendants then moved for
partial summary judgment on FTD's breach of contract claims. The
bankruptcy court entered an order granting the motion, holding that
4
the defendants were liable only for $182,500 in interest on the note.
The district court affirmed the order, and FTD now appeals.2
II.
FTD argues that the bankruptcy court erred in granting summary
judgment on its breach of contract claims against the defendants. FTD
contends that the guaranties signed by the defendants clearly extend
to cover the principal amount of the loan, along with interest, taxes,
and insurance.3 The defendants claim that the bankruptcy court cor-
rectly determined that the guaranties extend only to interest, taxes,
and insurance. We review the grant of summary judgment de novo.
See United States v. Jefferson-Pilot Life Ins. Co., 49 F.3d 1020, 1021
(4th cir. 1995).
Looking at the text of all of the guaranties (except the guaranty
signed by Robert Bainum), there appears to be textual support for
both sides' positions. Paragraph 1 guarantees "the prompt, absolute,
and unconditional payment of the principal sum disbursed under and
evidenced by the Note." J.A. 628. This language appears to be a
straightforward guarantee of the entire principal. Paragraph 2, how-
ever, states that the liability of the guarantors"is limited to the pay-
ment of (i) any and all interest . . . to an aggregate maximum for all
Guarantors of $182,500.00, (ii) all real estate taxes due against the
Mortgaged Property, and (iii) all insurance premiums for insurance
policies required to be maintained by the Borrower." Id. This lan-
guage appears to limit the liability to interest, taxes, and insurance
premiums and does not include any liability for the principal. The
contrast between these two paragraphs is highlighted by the differ-
ence in the guaranty signed by Bainum. Paragraph 1 of the Bainum
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2 FTD has filed two motions requesting that we take judicial notice of
other orders of the bankruptcy court. Because taking notice of these
orders would not effect our disposition of this appeal, we deny the
motions.
3 FTD also makes a res judicata argument, claiming that the bankruptcy
court first decided this issue in favor of FTD during the lift stay hearing.
As the defendants point out, however, FTD failed to raise this argument
before the bankruptcy court or the district court. The argument was there-
fore waived. See Tabion v. Mufti, 73 F.3d 535, 539 (4th Cir. 1996).
5
guaranty only guarantees "the prompt, absolute, and unconditional
payment of that portion of the interest due on the Note as specified
in Paragraph 2 . . . together with all real estate taxes due against the
mortgaged property and all insurance premiums for insurance policies
required to be maintained by the Borrower." J.A. 659. The Bainum
guaranty does not discuss liability for the principal.
We find the contradiction between paragraphs 1 and 2 sufficient to
create an ambiguity about the meaning of the guaranty. Although the
district court recognized that "[t]here does appear to be a problem"
with the contradictory language, it nevertheless found that the guaran-
ties were not ambiguous because paragraph 2 was"the ultimate
trump" that took away the guarantee in paragraph 1. J.A. 76, 78. We
do not read paragraph 2 so powerfully. It is possible that the limita-
tion language in paragraph 2 was intended to wipe out the guaranty
of principal in paragraph 1. Needless to say, however, such drafting
would be unusual. See Ames v. American Nat'l Bank, 176 S.E. 204,
217 (Va. 1934) ("The presumption always is that the parties have not
used words aimlessly and that no provision is merely a superfluity
. . . ."). Moreover, this interpretation (that paragraph 2 cancels out the
guaranty of principal) is by no means compelled. Paragraph 2 might
be read as limiting only those payments which it specifically dis-
cusses; for example, it would limit interest to $182,500. Since para-
graph 2 does not discuss payment of principal, it could be interpreted
as having no effect on the guarantee of principal made in paragraph
1.
The defendants argue that the contradiction can be resolved by
looking to other loan documents involved in the transaction. Accord-
ing to defendants, the loan contract must be read to include not only
the note, the deed of trust, and the guaranties, but also amendments
made on August 20, 1987, to Old Stone Bank's commitment letter.4
Assuming that the August 20 amendments are part of the underlying
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4 The note specifically references these amendments as part of the "loan
documents." See J.A. 549 ("The Note, the Deed of Trust, the Assignment
of Leases, the commitment letter dated June 30, 1987, as amended by let-
ter agreement dated August 20, 1987, issued in connection with the Loan
and all such other documents and agreements are herein referred to col-
lectively as the `Loan Documents.'").
6
agreement, we nevertheless do not find that they resolve the meaning
of the guaranties. The defendants point to two amendments as dispo-
sitive to the meaning of the guaranty. The first amendment states that
condition 2 of the original commitment offer shall be amended to
read: "All partners shall unconditionally guarantee, by a written guar-
anty agreement . . ., payment on a pro rata ownership share basis . . .,
all interest (to an aggregate maximum for all partners of . . .
$182,500), taxes and insurance." J.A. 805. This amendment, however,
is only a restatement of paragraph 2 of the actual guaranty. If any-
thing, it is less compelling than paragraph 2 itself because it lacks
paragraph 2's language that liability is "limited" to interest, taxes, and
insurance premiums. The defendants also point to an amendment to
condition 8 which reads: "It is further understood that any new partner
is to become personally liable for the loan under the terms and condi-
tions of Condition No.2-Guarantor." J.A. 806. The defendants claim
that this language shows that the guaranty in Condition 2 was the only
one imposed on the partners. While the amendment does offer some
evidence in that regard, it is not dispositive. As with paragraph 2, the
amendment could be read only to specify the amount of interest,
taxes, and premiums for which new partners would be liable. Alterna-
tively, it could mean that new partners did not have to assume liability
for the principal.
The district court also seems to have been influenced by its view
of the parol evidence offered by both parties. The court told FTD that
it was "damned if you do and damned if you don't," because if FTD
convinced the court that the guaranty was ambiguous, then the defen-
dants' parol evidence would be allowed in to resolve the matter. J.A.
80. The court suggested that the affidavit of Ronald K. Wills, who
allegedly helped negotiate the loan in 1987, would be "devastating"
to FTD's position. Id. However, in its summary judgment opinion the
bankruptcy court explicitly excluded the Wills affidavit from the
record. The district court recognized this and acknowledged that the
affidavit was "really not before [the bankruptcy court] and it's not
before me." J.A. 80. Even if we were to consider the Wills affidavit,
however, we do not find that it entitles the defendants to summary
judgment. The affidavit alleges that Old Stone Bank generally did not
require personal guaranties on commercial loans and that the parties
did not intend for the defendants to guarantee the principal. Such tes-
timony, even if it could be considered to have some probative value,
7
is not sufficient to resolve the glaring contradiction in the text of the
guaranty itself. Affidavits from three of the defendants claiming that
they did not intend to guarantee the principal likewise cannot resolve
the contradiction on summary judgment.5
"Only an unambiguous writing justifie[s] summary judgment, and
no writing is unambiguous if susceptible of two reasonable interpreta-
tions. . . . If there is more than one permissible inference as to intent
to be drawn from the language employed, the question of the parties'
actual intention is a triable issue of fact." Bear Brand Hosiery Co. v.
Tights, Inc., 605 F.2d 723, 726 (4th Cir. 1979) (quotations and cita-
tions omitted), quoted in Atalla v. Abdul-Baki , 976 F.2d 189, 192 (4th
Cir. 1992); see also Combs v. Dickenson-Wise Med. Group, 355
S.E.2d 553, 557 (Va. 1987) ("[W]henever it is necessary to refer to
testimony of witnesses in order to ascertain the contract, or to ascer-
tain facts in the light of which the contract is to be construed, then the
court is bound to refer such controverted matters of testimony to the
decision of the jury." (quoting Camp v. Wilson, 33 S.E. 591, 592 (Va.
1899))). Given the two permissible yet contradictory interpretations
that could be given to the guaranties, this issue should not have been
disposed of on summary judgment. In Atalla the agreement between
the parties also had two contradictory provisions: one stated that all
claims against the defendant were waived, while the other stated that
the plaintiff had a right of contribution. We held that "[b]ecause the
parties assert conflicting intentions on the basis of the same language,
which supports both interpretations, it is our opinion that the contract
is ambiguous and that the question of intent raises a genuine issue of
material fact, rendering summary judgment inappropriate." Atalla,
976 F.2d at 195. Faced with a case that is similar in all relevant
respects to Atalla, we too conclude that summary judgment is inap-
propriate.
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5 The defendants' parol evidence is also counterbalanced by the defen-
dants' tax returns, which were offered by FTD. The returns characterize
the loan as a recourse loan (i.e., a loan for which the defendants would
be personally liable) for tax purposes. See J.A. 690-755.
8
III.
The district court erred in affirming the bankruptcy court's order
granting partial summary judgment against FTD. We therefore
reverse the district court's order and remand for trial on FTD's claims.6
REVERSED AND REMANDED
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6 FTD also contends that the bankruptcy court did not have jurisdiction
to enter a final order dismissing its claims. Bankruptcy courts have juris-
diction to enter final orders in "all cases under title 11 and all core pro-
ceedings arising under title 11, or arising in a case under title 11." 28
U.S.C. § 157(b)(1). FTD argues that their underlying claims did not arise
under title 11 and are not core proceedings, and therefore the bankruptcy
court had no jurisdiction to enter a final order. However, since we now
reverse that order and remand the case to district court for trial, the issue
of the bankruptcy court's jurisdiction to enter a final order is moot. If we
were to find that the bankruptcy court did not have jurisdiction, FTD
would simply be entitled to a remand to the district court with a direction
that it review the summary judgment order de novo.
Of course, we would have to dismiss the case if the district court did
not have jurisdiction over FTD's claims. The district court has jurisdic-
tion over the claims as long as they constitute proceedings "arising in or
related to cases under title 11." 28 U.S.C. § 1334(b). FTD does not con-
tend that its claims do not "relate to" a proceeding under title 11. Given
the connection between the defendants, the Partnership (the debtor in the
underlying bankruptcy case), and the relief sought by FTD, we find that
FTD's claims are sufficiently related to the bankruptcy proceeding to
provide the district court with jurisdiction.
9