Centers, William L. v. Centennial Mortgage ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2644
WILLIAM L. CENTERS,
Plaintiff-Appellant,
v.
CENTENNIAL MORTGAGE, INC., and
MATTHEW T. KANE,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 04 C 153—Allen Sharp, Judge.
____________
ARGUED JANUARY 20, 2004—DECIDED FEBRUARY 22, 2005
____________
Before FLAUM, Chief Judge, and BAUER and KANNE,
Circuit Judges.
FLAUM, Chief Judge. Plaintiff-appellant William Centers
is the former sole shareholder of Centennial Mortgage, Inc.
(“Centennial”). Centers sold all of his shares in the corpora-
tion to Matthew Kane in exchange for most of Centennial’s
assets. Plaintiff filed this action against Kane and Centen-
nial, seeking a declaration defining the scope of the assets
he received in the deal. He also requested a mandatory
injunction ordering Centennial and Kane to sue the United
States Department of Housing and Urban Development
(“HUD” or “the Department”) on his behalf, a remedy
Centers contends he is entitled to under the terms of the
2 No. 04-2644
sale. The district court granted defendants’ motion to
dismiss for failure to state a claim, and Centers appealed.
For the reasons stated herein, we affirm in part, reverse in
part, and remand for further proceedings.
I. Background
We summarize the facts as pleaded by Centers. Centen-
nial specializes in issuing mortgages insured by HUD. On
January 18, 1989, Centennial, then owned by Centers,
signed a building loan agreement with Miller Beach
Limited Partnership (“Miller Beach”) and its trustee. The
agreement provided that Centennial would lend Miller
Beach $2,270,000.00 to fund construction work converting a
motel into a residential care facility. Centennial’s loan was
secured by a mortgage on the property. HUD agreed that it
would insure the mortgage, provided that the general
contractor hired to renovate the building sign an irrevocable
letter of credit for the benefit of Centennial in the amount
of $237,760.20. Centennial would be permitted to draw
down on these funds if the general contractor defaulted on
its construction obligations. The general contractor was
unable to issue the letter of credit, however, and David
Blumenfeld, the president of Miller Beach, personally
supplied the financing. HUD found this arrangement
acceptable and insured the mortgage.
Miller Beach later defaulted on the loan, and Centennial
filed a claim for insurance payments with HUD. At
HUD’s direction, Centennial withdrew $212,105.26 from the
letter of credit. HUD paid Centennial’s claim less
this amount, and Centennial assigned ownership of the
mortgage to HUD.
Blumenfeld then sued Centennial for breach of contract
and conversion. Although it is not entirely clear from the
pleadings, it appears that Blumenfeld argued that Cen-
tennial had no right to draw down on the letter of credit
No. 04-2644 3
because the general contractor had fulfilled its construction
obligations. The case went to trial, a jury found in favor of
Blumenfeld, and the judgment was affirmed on appeal. See
Centennial Mortgage Inc. v. Blumenfeld, 745 N.E.2d 268(Ind. Ct. App. 2001). After interest and costs, Centennial
paid Blumenfeld a total of $202,730.23. Centennial then
turned to HUD and asked it to pay the balance of the
insurance proceeds the corporation would have received
absent the letter of credit. HUD refused.
In the meantime, the ownership of Centennial was in
transition. On August 1, 2000, Centers executed a stock
purchase agreement whereby he sold all of his stock in
Centennial to Kane. That same day Centers and Kane
also signed an assignment agreement providing that,
in exchange for the stock, Centers would receive vir-
tually all of the assets of the corporation. The trans-
ferred assets explicitly included “all chose[s] in action,”
defined in the agreement as “all rights recoverable by
lawsuit by [Centennial] pertaining to matters arising
prior to Closing.” (J.A. 27.) Both the stock purchase agree-
ment and the assignment required the parties to take the
steps necessary to consummate the transaction.
Centers contends that HUD breached its contract to
insure Centennial by refusing to supplement its initial
insurance payment. He asserts that the right to recover
against HUD because of this wrong is a “chose in action”
that arose prior to the close of the transaction. According to
plaintiff, the assignment agreement transfers to him all
choses in action arising prior to the closing date, including
the right to sue HUD. He believes, however, that only a
party in privity with the federal government may sue it for
breach of contract. A suit filed by Centennial on Centers’s
behalf would satisfy this procedural requirement, plaintiff
argues. He contends that because Centennial and Kane are
required to do whatever is necessary to consummate the
transaction, defendants must sue HUD on Centers’s behalf
4 No. 04-2644
so that he might vindicate his rights under the chose in
action. Defendants declined Centers’s request that they sue
the Department.
Centers then filed this action, seeking a declaratory
judgment that his contemplated suit against HUD was
a “chose in action” transferred to him by the assignment
agreement, that the stock purchase and assignment
agreements obligated defendants to sue on his behalf,
and that he had the right to control Centennial’s suit
against HUD. Plaintiff also requested a mandatory injunc-
tion ordering Centennial and Kane to sue the Department.
Centers’s complaint attached as exhibits the stock purchase
agreement, its exhibits, and the assignment agreement.
Centennial and Kane moved to dismiss the action for
failure to state a claim. The district court granted the
motion, holding that the Assignment of Claims Act, 31
U.S.C. § 3727, barred the transfer of the chose in action,
and that the language of the contracts could not support the
relief requested by plaintiff. Centers appeals.
II. Discussion
We review de novo the district court’s dismissal for failure
to state a claim. Cole v. U.S. Capital, 389 F.3d 719, 724 (7th
Cir. 2004). Dismissal is proper under Rule 12(b)(6) only
where “it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
When ruling on a motion to dismiss, the court generally
should consider only the allegations of the complaint.
Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 661 (7th
Cir. 2002). “A copy of any written instrument which is an
exhibit to a pleading is a part thereof for all purposes.” Fed.
R. Civ. P. 10(c). Because the stock purchase agreement and
assignment agreement are attached as exhibits to Centers’s
complaint, we may consider their terms in ruling on the
No. 04-2644 5
motion to dismiss. And while we accept well-pleaded
allegations as true and draw all reasonable inferences in
favor of the plaintiff, Ogden Martin Sys. of Indianapolis,
Inc. v. Whiting Corp., 179 F.3d 523, 526 (7th Cir. 1999), to
the extent that the terms of an attached contract conflict
with the allegations of the complaint, the contract con-
trols. See Rosenblum, 299 F.3d at 661 (“The court is not
bound to accept the pleader’s allegations as to the effect
of the exhibit, but can independently examine the document
and form its own conclusions as to the proper construction
and meaning to be given the material.”) (quoting 5 Wright
& Miller, Federal Practice & Procedure: Civil 2d § 1327 at
766 (1990)). “[A] plaintiff may plead himself out of court by
attaching documents to the complaint that indicate that he
or she is not entitled to judgment.” Ogden Martin, 179 F.3d
at 529 (quoting In re Wade, 969 F.2d 241, 249 (7th Cir.
1992)).
This appeal focuses on whether Centers’s complaint
adequately alleges that: (i) the assignment agreement
transferred to him the right to sue HUD; and (ii) the
assignment agreement and stock purchase agreement
obligate defendants to sue the Department on Centers’s
behalf. Before reaching these issues, however, we ad-
dress whether defendants have waived on appeal an argu-
ment made below—that the Assignment of Claims Act, 31
U.S.C. § 3727, bars the transfer of the chose in action
from Centennial to Centers.
A. Waiver of § 3727 as Barring the Transfer
Centers’s appellate brief argues at length that the Act
does not apply to this case. Rather than attempting to rebut
plaintiff’s contentions, defendants recast the opinion below
as having held that § 3727 does not bar the transfer.
Centennial and Kane claim that the district court merely
recognized that contracts must be read to avoid conflict with
governing law, e.g., Indiana-American Water Co. v. Town of
6 No. 04-2644
Seelyville, 698 N.E.2d 1255, 1259 (Ind. Ct. App. 1998), and
that the court below interpreted the stock purchase agree-
ment and assignment agreement so as to conform with the
Act. Defendants’ recharacterization of the district court’s
opinion is untenable; the court below clearly held that §
3727 barred the transfer. Moreover, defendants’ argument
makes sense only if a plausible interpretation of either
agreement conflicts with the Act. Centennial and Kane do
not contend, however, that there is a possible conflict. To
the contrary, they cite authority for the proposition that the
statute does not apply to the facts of this case. Defendants
therefore have waived this argument, and we do not
address whether the Act provides a defense to plaintiff’s
claim.1 We turn to the issues actually contested on appeal.
B. Transfer to Centers of the Right to Sue HUD
The parties agree that the interpretation of both contracts
is governed by Indiana law. Indiana courts hold that “[t]he
primary and overriding purpose of contract law is to
ascertain and give effect to the intentions of the parties.”
Indiana-American Water Co., 698 N.E.2d at 1259. “In
interpreting a written contract, the court should attempt to
determine the intent of the parties at the time the contract
was made as discovered by the language used to express
their rights and duties. The meaning of a contract is to be
determined from an examination of all of its provisions, not
1
While conceding that the Act does not apply to this case,
defendants nonetheless imply that Centers is bound by the dis-
trict court’s ruling because he argued below that § 3727 barred the
transfer. We disagree. Some of plaintiff ’s counsel’s statements
during oral argument before the district court, taken out of
context, contradict his contentions on appeal. His comments later
in that hearing clarify that he did not admit that the Act applies.
Accordingly, plaintiff is not bound by the ruling below.
No. 04-2644 7
from a consideration of individual words, phrases or
paragraphs read alone.” Id. (internal citations omitted).
Centers contends that the assignment agreement trans-
ferred to him the right to sue HUD for its failure
to supplement its initial insurance payment to Centen-
nial. The assignment agreement provides:
[Centennial] hereby sells, transfers, assigns and
conveys to Centers all of [Centennial’s] rights, title
and interest in and to all of the assets and proper-
ties of [Centennial] (subject to liabilities of [Centen-
nial] related to those assets), except for (i) the office
equipment, furniture and supplies, (ii) the licenses,
permits and authorizations (including those issued
by the Federal Housing Administration), which are
necessary to sustain [Centennial] in the ordinary
course of its business of originating loans, and (iii)
all pending loan commitments other than the
Pending Loans [sic] Commitments (as defined in
the Purchase Agreement). The assets and proper-
ties being conveyed by [Centennial] to Centers
hereunder . . . shall include . . . all chose in action
(all rights recoverable by lawsuit by [Centennial]
pertaining to matters arising prior to Closing).2
(J.A. 27.)
On its face, this sweeping language admits only three
exceptions: (i) office equipment, furniture and supplies;
(ii) licenses, permits and authorizations; and (iii) cer-
tain pending loan commitments. Defendants do not argue
2
A “chose in action” is defined similarly under Indiana law as
“a personal right not reduced into possession but recoverable
by suit in law. It is a property right characterized as personal-
ty. The term in its broadest sense encompasses all rights of action
whether they sound in contract or tort.” Neffle v. Neffle, 483
N.E.2d 767, 771 (Ind. App. 2d Dist. 1985) (internal citations
omitted).
8 No. 04-2644
that a chose in action against HUD falls into one of
these categories. They point out, rather, that the agree-
ments fail to identify specifically an action against HUD
as an asset transferred to Centers. Centennial and Kane
also contend that ¶ 8(e) of the stock purchase agreement
limits the choses in action assigned to plaintiff. Paragraph
8(e) states:
[Centers] hereby represents and warrants to [Kane]
that . . . [e]xcept as disclosed on Exhibit B, there
are no actions or proceedings pending or, to the
knowledge of [Centers], threatened against, relating
to or affecting [Centers or Centennial], and . . .
there are no facts or circumstances known to
[Centers] that could reasonably be expected to give
rise to any such action or proceeding.
(Id. at 18.) Exhibit B identifies four pending lawsuits;
Centennial is named as a defendant in two, as a counter-
defendant in one, and appears to be a third-party defendant
in another. The exhibit does not mention the possibility of
a suit against HUD. Centennial and Kane argue that ¶ 8(e)
restricts the transferred choses in action to those mentioned
in Exhibit B, and that the parties decided not to list an
action against HUD in that exhibit because they intended
that Centers not receive the right to sue the Department.
We believe that defendants have it backwards. First,
the assignment agreement transfers all of Centennial’s
assets, including all choses in action, to Centers, subject
to three narrow exceptions. Thus, unless defendants
can point to express language in the agreements carving out
a chose in action against HUD, that asset passed
to Centers.
Second, neither the language nor the context of ¶ 8(e)
suggest that it limits the assets transferred to Centers. The
text of that paragraph does not purport to narrow the class
of assets assigned to Centers, nor does it explicitly mention
“chose[s] in action.” Moreover, Centennial’s potential
No. 04-2644 9
liability in all four suits listed in Exhibit B reveals that
defendants’ interpretation is untenable. Defendants’
argument that only the listed suits were transferred leads
to the incongruous result that the “assets” defined as “rights
recoverable by lawsuit” include only actions in which
Centennial stands to lose money. Defendants’ reading of ¶
8(e) also renders language elsewhere in the agreements
superfluous. See Indiana-American Water Co., 698 N.E.2d
at 1259 (courts should avoid interpretation of contract that
renders any of its terms meaningless). If that paragraph
defined the choses in action transferred to Centers, then
there would be no need to state separately that Centennial
was assigning to Centers “all chose[s] in action.” Finally,
the context of ¶ 8(e) undermines defendants’ interpretation.
That provision appears in the stock purchase agreement. If
it were intended to limit the transferred assets, we would
expect to find it in the assignment agreement, the document
that conveys the assets to plaintiff. Instead, we locate ¶ 8(e)
in a list of representations and warranties from Centers to
Kane that, for example, the corporation is duly organized,
Centers has the authority to sell Centennial, and plaintiff
lawfully owns its outstanding shares. This list of promises
focusing on the corporation being sold to Kane seems an odd
place for language limiting the assets being given to
Centers in exchange. Centers’s complaint therefore ade-
quately pleads that the assignment agreement transferred
to him a chose in action against HUD.
C. Defendants’ Obligation to Sue HUD
Centers asserts that, despite owning the chose in ac-
tion against HUD, he cannot sue the Department di-
rectly because, in his view, only those parties in privity with
the federal government can sue it for breach of contract.
Because the agreement to insure the Miller Beach mortgage
was between HUD and Centennial, plaintiff contends that
10 No. 04-2644
his rights under the chose in action may be vindicated only
through a suit filed by Centennial on his behalf. He argues
that the consummation clauses of the stock purchase
agreement and the assignment agreement obligate defen-
dants to take this action.
Paragraph 5(e) of the stock purchase agreement states:
Subject to the terms and conditions herein pro-
vided, each of the parties agrees to use their best
efforts to do all things necessary, proper or advis-
able in order to consummate and make effective . . .
the transactions contemplated by this Agreement,
including, but not limited to, the obtaining of all
consents, authorizations, orders and approvals of
any governmental commission, board or other
regulatory body, . . . and initiating or defending any
legal action that is necessary or appropriate to
permit such transactions to be consummated. At
any time after the Closing Date, if any further
action is necessary, proper or advisable to carry out
the purposes of this Agreement, then . . . each party
to this Agreement shall take, or cause to be taken,
such action.
(J.A. 16.) The assignment agreement’s consummation clause
reads:
[Centennial] . . . does covenant with Centers . . .
that [Centennial] and its legal representatives,
successors and assigns will do, execute and deliver,
or will cause to be done, executed and delivered, all
such further acts, transfers, assignments, convey-
ances, powers of attorney and assurances, for the
better assuring, conveying and confirming unto
Centers all and singular of [Centennial’s] entire
rights, title and interest in and to the Assets.
(Id. at 28.)
No. 04-2644 11
Plaintiff’s argument stretches this language too far. The
stock purchase agreement requires that defendants “do
all things necessary, proper or advisable in order to con-
summate and make effective . . . the transactions con-
templated by this Agreement.” (Id. at 16.) It antic-
ipates that these steps might include “initiating . . . any
legal action that is necessary or appropriate to permit
such transactions to be consummated.” (Id.) But the
contemplated deal was the exchange of Centers’s stock
for most of Centennial’s assets. Plaintiff’s complaint alleges
that he received those assets, including the chose in action
against HUD, pursuant to the assignment agreement. If so,
the exchange was completed and no further steps were
required. Centers does not ask for a lawsuit that would
“permit such transactions to be consummated,” but rather
a suit that would make the assets he received through those
transactions more valuable. The stock purchase agreement
does not obligate defendants to file a suit for this purpose.
Moreover, the notion that Centers may force Centennial
to sue HUD and that he would control the litigation is
at odds with ¶ 5(c) of the agreement, which provides
that plaintiff’s “only authority on behalf of [Centennial]
from and after the Closing will be to handle and resolve the
pending lawsuits that are listed on Exhibit B hereto.” (Id.
at 15). As discussed, Exhibit B does not list a lawsuit
against HUD. Centers fares no better under the assignment
agreement, which requires defendants to take “all such
further acts . . . for the better assuring, conveying and
confirming unto Centers . . . the Assets.” (Id. at 27.) Accord-
ing to the allegations of the complaint, the agreement itself
conveyed the assets to Centers, fulfilling defendants’
obligations under this clause.
Centers bases his claims on the terms of the stock
purchase agreement and the assignment agreement. His
complaint does not allege that any other contract be-
tween the parties entitles him to the requested relief. Thus,
12 No. 04-2644
we must find support for his claims, if anywhere, in the
attached documents. Because they do not obli-
gate defendants to sue HUD, plaintiff’s request for a de-
claration and mandatory injunction to that effect were
properly dismissed.
III. Conclusion
For the reasons stated herein, we REVERSE the dis-
trict court’s dismissal of plaintiff’s request for a declaration
that the assignment agreement transferred to him a chose
in action to sue HUD, and REMAND for proceed-
ings consistent with this opinion. We AFFIRM the remainder
of the district court’s order.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-22-05