CIT Grp/Equip Fin v. Condere Corporation ( 2003 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    REVISED APRIL 8, 2003
    April 3, 2003
    UNITED STATES COURT OF APPEALS
    Charles R. Fulbruge III
    Clerk
    For the Fifth Circuit
    No. 00-60103
    CIT GROUP/EQUIPMENT FINANCING, INC
    Plaintiff-Counter Defendant-Appellee,
    VERSUS
    CONDERE CORPORATION, doing business as Service Fleet Tire
    Company, doing business as
    Fidelity Tire and Manufacturing Company
    Defendant-Counter Claimant-Appellant.
    Appeals from the United States District Court
    For the Southern District of Mississippi, Jackson
    (5:98-CV-5-BrS)
    Before DeMOSS and STEWART, Circuit Judges, and LITTLE,* District
    Judge.
    PER CURIAM:**
    This is an appeal of two final judgments entered by the district
    court.     Plaintiff-Counter Defendant-Appellee, CIT Group/Equipment
    *
    District Judge of the Western District of Louisiana, sitting by
    designation.
    **
    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    this opinion should not be published and is not precedent except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.
    Financing, Inc., (“CIT”), filed a replevin action in the district
    court seeking immediate possession of equipment that was in the
    possession     of    Defendant-Counter         Claimant-Appellant,        Condere
    Corporation (“Condere”).        Condere posted a bond allowing it to
    continue to possess the equipment and made counter claims asserting
    that they had the right to have the lease reinstated because the
    lease was part of its bankruptcy estate, or, alternatively, the
    equipment    was    not   subject    to   a   lease   but   rather   a   security
    agreement, that it had the right of redemption, and that the
    equipment was a fixture.       The district court ruled in favor of CIT
    and ordered Condere to return the equipment.                  Condere appealed
    without supersedeas.        While the appeal was pending, the parties
    settled two issues: Condere allowed CIT’s third-party purchaser to
    remove the equipment and Condere paid CIT to release the lien on
    certain equipment used as collateral for the lease.                  This Court
    then ordered a stay of the appeal of the replevin action and
    remanded the case for a hearing on damages.                 The district court
    held a hearing and found CIT was entitled to $1,650,815.17 in
    damages.     Condere now appeals the final judgment in the replevin
    action and the final judgment awarding damages.              We affirm the two
    judgments of the district court for the reasons stated therein and
    summarize those reasons below.
    BACKGROUND
    Condere operated a tire manufacturing plant in Natchez,
    2
    Mississippi.        On December 14, 1993, the City of Natchez executed a
    Bill of Sale to Condere covering the equipment at issue in this
    case.     Both the City’s resolutions authorizing the sale and the
    Bill    of   Sale     itself    referred        to   the    equipment      as   “personal
    property.”
    Also around the same time, because Condere needed cash, they
    proposed and CIT approved a transaction whereby CIT would purchase
    the equipment at issue, mainly eleven tire presses, from Condere
    for    $1,300,000.00      and    lease     it    back      to    Condere   in   a   “sale-
    leaseback” transaction, which is a common commercial transaction.
    On December 21, 1993, the transaction was closed.                                 Condere
    executed a Bill of Sale to CIT for the equipment, which was to be
    covered      by   a   Master     Lease     (“Lease”),           and   Condere    received
    $1,300,000.00 for the equipment.                 The Lease provided for monthly
    lease payments of $23,468.40 per month for 60 months, the last
    being due December 31, 1998.             At the end of the Lease, Condere had
    the option of purchasing the equipment or returning it to CIT at
    Condere’s expense.         Condere was required to give CIT reasonable
    written notice prior to expiration of the lease term as to which of
    these options it would exercise.                     Condere has never given any
    written notice to CIT.
    On December 21, 1993, Condere also executed a separate Security
    Agreement to Collateralize the Master Lease (“Security Agreement”)
    covering      different        equipment    for       the       purpose    of   providing
    collateral to CIT in the event of a default on the Lease by
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    Condere.     This equipment was not covered by the Bill of Sale to
    CIT.
    U.C.C. Financing Statements were filed by CIT as the “Lessor”
    under the Lease and as “Secured Party” for the equipment covered by
    the Lease and Security Agreement.            At the time the transaction was
    closed, CIT required Condere to install tags with “CIT” and a
    number on all equipment covered by the Lease that did not have
    identifying serial numbers.          The Lease form was one commonly used.
    In   all      the     Condere    corporate    documents       authorizing      the
    transaction, the correspondence between CIT and Condere, and the
    transaction     documents     themselves,       the    transaction      was   always
    referred to as a “Lease.”          The invoices Condere received from CIT
    were for “rent.”         As required by Mississippi law, on every lease
    payment    made    by    Condere    to   CIT,   the     appropriate     amount    of
    Mississippi sales tax was included.
    In      the     transaction      documents,         Condere    made     numerous
    representations and warranties to CIT that all the equipment
    covered by the Lease and the Security Agreement was personal
    property.
    Condere made monthly lease payments of $23,468.40 rent plus
    $352.03 sales tax to CIT on the Lease but was two payments
    delinquent when, on May 13, 1997, Condere filed for bankruptcy.
    After filing for bankruptcy, Condere made no further payments on
    the Lease, and on June 24, 1997, CIT filed a Motion to set a
    deadline for Condere to reject or accept the Lease.                  On September
    4
    11, 1997, Condere rejected the Lease and an Agreed Order was
    entered by the bankruptcy court to that effect, but the Order
    contained the provision “with the Debtor in possession reserving
    the right to litigate whether said instrument is a lease or a
    financing transaction, together with any other rights, claims or
    defenses incident to such determination.”                  The automatic stay was
    lifted as to all equipment covered by both the Lease and Security
    Agreement, but Condere made no further payments on the Lease
    thereafter.
    Condere took no steps to litigate any issues regarding the
    rejected    Lease   from    September       11,    1997,    until    it   filed   its
    responsive pleadings in the replevin action on February 13, 1998.
    Condere    also   had   a   second   lease        from   CIT   covering    computer
    equipment (which is not the subject of this case).                  Condere assumed
    this lease in the bankruptcy proceedings and brought all payments
    current.    No claim was made that the second lease was not a true
    lease.
    Because     Condere   had   defaulted       and    rejected    the Lease,       CIT
    actively sought buyers for the equipment covered by both the Lease
    and the Security Agreement.          Condere was aware of CIT’s efforts
    and, in fact, CIT contacted Condere about Condere’s interest in
    purchasing the presses several times.               Nevertheless, Condere made
    no effort to bring the Lease current or make any payments on it.
    Condere and its successor Titan Tire Corporation of Natchez simply
    did nothing and continued to use the equipment without paying.
    5
    On December 8 and 9, 1997, representatives of CIT and Specialty
    Tire Company (“Specialty”) inspected the presses in the Natchez
    plant.    Specialty made an offer to CIT to purchase the eleven tire
    presses for $250,000.00 by a letter dated December 11, 1997,
    conditioned upon acceptance that same day.          CIT accepted the offer
    by a letter of the same date.
    On December 12, 1997, CIT’s attorney wrote to Condere’s attorney
    and informed him of CIT’s contract to sell the eleven tire presses.
    Condere refused to turn over the presses to CIT for delivery to
    Specialty.
    A week later, on December 18, 1997, Condere, without seeking or
    obtaining approval of the bankruptcy court, tendered $224,000.00 by
    a cashier’s check to CIT’s counsel stating that “the debtor has
    elected to cure the default in connection with the CIT equipment
    lease.”     The $224,000.00 amount included an estimate of CIT’s
    attorney’s fees to that date.         Condere did not introduce evidence
    that this    amount   was   correct    nor   was   there   bankruptcy   court
    approval of any transaction to “cure the default.”           CIT’s attorney
    wrote to Condere’s attorney on December 29, 1997, returning the
    $224,000.00 check advising that CIT could not accept it.
    When Condere sought to “cure the default in connection with the
    CIT equipment lease,” no mention was made of a security agreement.
    No request was made by Condere about what would be necessary to
    bring any “loan” current or pay off a “loan.”          While Condere, when
    it rejected the Lease in bankruptcy court, reserved the right to
    6
    litigate whether it was a lease or a security agreement, Condere
    made no attempt at this time to enjoin the sale or litigate any
    issue as to whether the Lease was a security agreement.
    When CIT sought to take possession of the equipment, including
    the eleven tire presses sold to Specialty, Condere refused to
    surrender it. CIT filed a replevin action in January 1998, seeking
    immediate   possession   of    the   equipment.   As   is   allowed   by
    Mississippi law, Condere posted a bond with a surety to prevent CIT
    from obtaining immediate possession.        No approval was sought or
    obtained in the bankruptcy court and Condere concedes that Titan
    arranged for the bond.        This allowed Condere and subsequently,
    Titan Tire Corporation of Natchez, to continue using the equipment
    without paying.   Ultimately, the Lease expired by its own terms in
    December 1998.    There is no evidence that Condere exercised its
    option to purchase the equipment covered by the Lease.
    In May 1998, Specialty, the purchaser of the eleven tire presses,
    filed suit in Pennsylvania against CIT seeking damages in excess of
    $12,000,000.00 due to CIT’s inability to deliver the eleven tire
    presses CIT had sold to Specialty.
    Meanwhile, in the replevin action Condere made counter-claims
    asserting that they had the right to have the Lease reinstated
    because it was part of their bankruptcy estate, or, alternatively,
    the equipment was not subject to a lease but rather a security
    agreement, that they had the right of redemption, and that the
    equipment was a fixture.      There was a trial on October 13, 1999.
    7
    The district court on January 25, 2002, ruled in favor of CIT and
    ordered Condere to return the equipment.              Final Judgment was
    entered on January 27, 2002.
    Because of the CIT/Specialty litigation, the district court
    ordered Condere to post a supersedeas bond of $12,000,000.00 before
    appealing.       Condere appealed without supersedeas.
    On February 4, 2000, summary judgment in favor of CIT was granted
    in the Specialty litigation and the case was dismissed.                   This
    ruling was affirmed on appeal on November 20, 2000.
    While the appeal was pending in this present case, the parties
    settled    two    issues:   Condere   allowed   Specialty   to   remove   the
    equipment and Condere paid CIT to release the lien on equipment
    used as collateral for the Lease.          This Court then ordered a stay
    of the appeal of the replevin action and remanded the case for a
    hearing on damages.
    The district court held a hearing on August 20, 2001, concerning
    damages.     The court conducted a detailed analysis of the damages
    allowed under the Lease for: past due lease payments, late fees,
    fees for continued use of the equipment by Condere without payment
    after expiration of the Lease, the cost to CIT of having the
    equipment removed, and attorney’s fees and costs.            CIT presented
    evidence, including expert testimony from Lawrence McCabe, a former
    general counsel of a Fortune 500 company, concerning the necessity
    of the legal fees incurred by CIT, including the fees charge by
    out-of-state lawyers at the Otterbourg firm.           The district court
    8
    awarded CIT $1,650,815.17 in damages.
    Condere now appeals the final judgment in the replevin action in
    so far as the court held that: 1) the Lease was rejected by Condere
    and therefore not part of Condere’s bankruptcy estate and Condere
    did not have a right to have the Lease reinstated; 2) the Lease was
    not a disguised security agreement; 3) Condere had no right to
    redeem the equipment; and, 4) the equipment was personal property.
    Condere also appeals the district court’s final judgment on
    damages making four arguments: 1) no damages incurred by CIT were
    caused by Condere; 2) the Lease limited CIT’s recovery; 3) the
    district court should not have considered the testimony of CIT’s
    expert, Lawrence McCabe; and, 4) the district court should have
    reduced the fees of CIT’s out-of-state counsel, the Otterbourg
    firm.
    DISCUSSION
    I.     Whether the district court erred in finding the Lease was not
    part of Condere’s bankruptcy estate and therefore Condere had
    no right to have the Lease reinstated.
    It appears Condere asserts that if the Lease really is a lease
    then the Lease and Security Agreement, along with the equipment
    covered, were part of the bankruptcy estate and therefore Condere
    had the right, under the bankruptcy code, to reinstate the Lease
    upon    full   payment   of   all   past   due   amounts.   However,   on
    September 11, 1997, the bankruptcy court entered an order, that was
    signed by both parties, finding that Condere had rejected the Lease
    9
    and the court then lifted the automatic bankruptcy code stay
    covering all the equipment that CIT was seeking to recover.                 The
    effect of Condere rejecting the Lease and the court then lifting
    the stay was to “return the parties to whatever legal relationship
    existed before commencement of the [bankruptcy] case.”                    In re
    Malone Properties, Inc., 
    1992 WL 611459
     at *2 (Bankr. S.D. Miss.
    1992); see Matter of Garfinkle, 
    577 F.2d 901
    , 904-05 (5th Cir.
    1978) (holding, under the old bankruptcy code, that after rejection
    the bankruptcy estate no longer has an interest); and see also
    Matter of Austin Dev. Co., 
    19 F.3d 1077
    , 1081-83 (5th Cir. 1994)
    (finding Garfinkle’s holding to be persuasive even under the new
    code).
    Condere was in default before filing for bankruptcy.                   The
    agreement between the parties controls, not the bankruptcy code,
    and the language in the Lease does not give Condere the right to
    reinstate the Lease after defaulting.              Condere does not cite any
    authority that supports its assertion that the Lease remains part
    of    the   bankruptcy   estate   but    only   cites   to   bankruptcy    code
    provisions     that   allow   for   cure     and     assumption,   which    are
    inapplicable because the Lease controls. Accordingly, the district
    court properly rejected Condere’s argument that Condere could
    reinstate the Lease after being in default and rejecting the Lease
    and the decision is affirmed.
    II.    Whether the district court’s finding that Condere failed to
    10
    prove the Lease was a disguised security agreement was clearly
    erroneous.
    The district court’s finding that the Lease was not a security
    agreement is, under Mississippi, a factual determination depending
    on the intent of the parties and therefore subject to the clearly
    erroneous standard of review.           MISS. CODE ANN. § 75-1-201(37).1   A
    security interest under Mississippi law is defined as “an interest
    in       personal   property   or   fixtures   which   secures   payment   or
    performance of an obligation.”              MISS. CODE ANN. § 75-1-201(37).
    According to the district court, Condere has the burden of proving
    that the Lease was a disguised security agreement.
    In the present case the district court made the following
    findings, which we agree with:
    1.     An option to purchase the equipment does not of itself make
    a lease a security agreement but an agreement that the
    lessee has the option to become the owner of the equipment
    upon completion of a lease for nominal consideration does
    make a lease one intended to be a security. MISS. CODE ANN.
    § 75-1-201(37). Condere offered no credible evidence that
    the option price in the Lease was nominal.
    2.     Condere’s corporate resolutions authorized both a lease and
    a security agreement - two separate documents.
    3.     All the transaction documents describe the Lease as a
    lease. The form is one commonly used for leases.
    1
    Neither the Lease nor Security Agreement contains a choice of
    law provision and the contracts were to be performed in, and the
    subject matter of the contract is in, Mississippi and therefore
    Mississippi law governs. Todd v. Deposit Guar. Nat. Bank, 
    849 F. Supp. 1149
     (S.D. Miss. 1994). Additionally, the lease was executed
    in 1993, so the 1990 version of MISS. CODE ANN. § 75-1-201 (37)
    applies and not the current version.
    11
    4.   Contemporaneously, a security agreement was executed,
    demonstrating that the parties recognized the distinction
    between a security agreement and a lease and followed the
    directives of Condere’s resolutions.
    5.   Another equipment lease from CIT was involved, and Condere
    assumed it in the bankruptcy court, never claiming it was
    a security agreement.
    6.   Sales tax was added to each “rent” payment.                    This is
    applicable only to a lease.
    7.   The Lease had to be a lease for Condere to reject it in
    bankruptcy (see issue I supra). Condere had no right to
    reject a security agreement.
    8.   When Condere tendered $224,000.00 it was expressly stated
    to be for the purpose of curing “lease” defaults.
    9.   Not until this suit was filed did, Condere take any
    affirmative act to secure a judicial determination that the
    Lease was a security agreement.
    Thus, the district court found that the evidence established that
    the Lease was exactly what it was: a lease.            CIT had title to the
    equipment   and   therefore   was   entitled     to    immediate   possession
    because Condere    was   in   default    under   the    Lease   and   Security
    Agreement before it filed for bankruptcy (see supra).              Condere on
    appeal makes several factual arguments that basically revolve
    around their contention that the reason for the arrangement between
    Condere and CIT was because Condere was “cash starved.”                 This,
    however, does not overcome the findings of the district court
    concerning the intent of the parties and may in fact support the
    finding that the Lease was a lease.         Accordingly, the finding of
    the district court that the Lease was a lease is not clearly
    12
    erroneous and is affirmed.
    Additionally,   whether   Condere   had   the   right   to   redeem   the
    equipment and did in fact properly redeem the equipment depends on
    finding the lease was really a security agreement.             Because we
    agree with the district court that the Lease really was a lease,
    there is no need to address this issue.
    III. Whether the district court’s finding that the equipment was
    personal property was clearly erroneous.
    In Mississippi, the question of whether an object is a fixture
    or personal property is one of intent and a question of fact.
    Bondafoam, Inc. v. Cook Const. Co., 
    529 So. 2d 655
    , 658 (Miss.
    1988).   The general rule is that whatever is affixed to land
    becomes part of the realty; however, Mississippi courts recognize
    that the parties, such as a lessor and lessee, can agree between
    themselves as to whether or not something is to be considered a
    fixture and the parties can incorporate this agreement into a
    lease.   Simmons v. Bank of Miss., 
    593 So. 2d 40
    , 42 (Miss. 1992).
    In the present case, the Lease in the first and second paragraphs
    describes the equipment as personal property.        Further the eighth
    paragraph of the Lease states that the equipment shall remain
    personal property.   The Bill of Sale refers to the equipment as
    personal property and the Security Agreement, which collateralizes
    the Lease, states that regardless of how the property is affixed it
    shall remain personal property.       Accordingly, the intent of the
    parties is clear and the district court did not err in finding the
    13
    equipment was personal property and the decision is affirmed.
    IV.    Whether the district court erred in awarding damages.
    A district court’s factual determination of damages is subject
    to clear error review and legal determinations are reviewed de
    novo.     Sockwell v. Phelps, 
    20 F.3d 187
    , 192 (5th Cir. 1994).
    Condere    makes   four,   basically    factual,   arguments   concerning
    damages: 1) no damages incurred by CIT were caused by Condere; 2)
    the Lease limited CIT’s recovery; 3) the district court should not
    have considered the testimony of CIT’s expert, Lawrence McCabe;
    and, 4) the district court should have reduced the fees of CIT’s
    out-of-state counsel, the Otterbourg firm.
    The factual history of this case indicates that Condere brought
    this damages judgment upon itself and the district court did not
    err.
    First, as to whether Condere caused the damages.             Condere’s
    argument is based on its earlier argument that had it been given
    the right of redemption and had CIT complied with the notice
    requirements, CIT would not have incurred any damages.              This
    argument depends on a finding that Condere had the right of
    redemption and properly exercised the right, a finding the district
    court properly rejected.
    Second, Condere claims Section 11 of the Lease limits recovery
    in a default situation.      This argument was not made until post-
    trial briefing to the district court.       Nonetheless, Section 11 of
    14
    the Lease refers only to CIT’s right if Condere is in default
    during the term of the Lease.       Condere’s holdover and use of the
    equipment for 21 months after the Lease term is not limited by
    Section 11.     Condere’s limitation argument does not make sense
    because it only applies to the past due lease payments and if
    adopted would result in Condere possibly paying more in damages.
    Third, as to Condere’s argument that the court should not have
    considered the testimony of CIT’s expert, Lawrence McCabe, because
    according to Condere, McCabe’s area of experience was not in
    bankruptcy    matters   involving    leases   nor    in    Mississippi     law.
    Condere presents no legal arguments but only its disagreement with
    the district court that McCabe was qualified to testify.                   CIT,
    however, used McCabe, a former general counsel of a Fortune 500
    company, to testify as to whether the expenses incurred by CIT in
    the litigation between CIT and Condere and CIT and Specialty were
    reasonable.    There is nothing to indicate McCabe lacked experience
    in the area for which he offered testimony.
    Fourth, as to whether the out-of-state attorney’s fees were
    reasonable. Condere argues that the rate charged by the Otterbourg
    firm   was   unreasonably   excessive     compared    to   local   rates    and
    therefore should have been reduced. The Lease obligates Condere to
    pay attorney’s fees and the fees in this case were, in part, the
    result of Condere’s refusal to surrender the equipment, which
    caused Specialty to bring suit against CIT.                In summary, the
    bankruptcy    litigation,    the    Mississippi      litigation,    and     the
    15
    Pennsylvania    litigation    were     intertwined    and   CIT   sought   the
    assistance     of   the   Otterbourg    firm   in    coordinating   all    the
    litigation.     The district court was correct in accepting CIT’s
    evidence that the fees were necessary and reasonable when Condere
    presented no evidence to the contrary but merely complained about
    the fees.
    Accordingly, the district court did not err in awarding damages.
    Therefore, the decision is affirmed.
    CONCLUSION
    Having carefully reviewed the record of this case and the
    parties’ respective briefing and arguments, for the reasons set
    forth above we conclude that the district court did not err in
    deciding any issue now appealed and therefore both judgments are
    affirmed.    AFFIRMED.
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