Stonegate Bank v. TD Bank, N.A.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14000
________________________
D.C. Docket No. 0:12-cv-61521-WPD
STONEGATE BANK,
a Florida banking corporation,
Plaintiff–Appellant,
versus
TD BANK, N.A.,
Defendant–Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 6, 2015)
Before ED CARNES, Chief Judge, and RESTANI, * Judge, and ROBRENO, **
District Judge.
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
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ROBRENO, District Judge:
This appeal arises out of a dispute over the meaning of certain provisions
within a multi-bank loan Participation Agreement (“Agreement”). Plaintiff–
Appellant Stonegate Bank (“Stonegate”) owned a 10.7142% participating interest
in a construction loan that defaulted in 2011. Defendant–Appellee TD Bank, N.A.
(“TD Bank”) owned a 28.5714% interest and was also the lead bank in the deal.
Upon default, participating banks representing 86.61% of the loan interest voted to
sell the loan back to the borrower at a substantial discount. In spite of this
supermajority in favor of the sale, Stonegate voted in the minority against it.
Stonegate subsequently brought this diversity suit against TD Bank, claiming
breach of contract and willful misconduct under the Agreement. In reviewing
these claims, the district court found that, although the Agreement provisions at
issue were ambiguous, that ambiguity could be resolved by applying Georgia’s
statutory rules of contract construction. The district court granted summary
judgment in favor of TD Bank and Stonegate appealed.
I.
A.
On March 26, 2008, Integrity Bank (Stonegate’s predecessor-in-interest) and
**
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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Fairfield Financial Services, Inc. (TD Bank’s predecessor-in-interest) entered into
the Participation Agreement. Under it, Fairfield, as originating/lead bank, sold to
Integrity an undivided, participating 10.7142% interest in a $26,925,557.21
construction loan made to Chaven Investments, LLC (“Chaven”). Chaven
borrowed this sum in order to finance the purchase of the Palm Cove Marina in
Jacksonville, Florida. In time, and via its predecessor-in-interest, TD Bank
acquired a 28.5714% interest in the loan and assumed the mantle of lead bank. At
the time of the events relevant to this appeal, a total of thirteen banks owned
participation interests in the loan, each bank having executed a separate
participation agreement that differed from the others only with respect to the
percentage of its participating interest.
On September 12, 2011, after twice receiving extensions on the loan’s
maturity date, Chaven defaulted. On October 27, 2011, all of the participating
banks authorized TD Bank to negotiate a loan sale with Chaven. These
negotiations culminated on December 6, 2011, when Chaven sent TD Bank a “best
and final” offer to purchase the loan for $9 million. By December 15, 2011, banks
representing 86.61% of the loan’s total participating interests had voted to approve
the sale. However, Stonegate and one other bank voted against it. TD Bank
proceeded over these objections and the sale was finalized on December 21, 2011.
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On December 29, 2011, TD Bank wired Stonegate $962,659.39, or that
portion of the sale proceeds relating to Stonegate’s participating interest.
Stonegate accepted the payment, which was not conditioned on any
acknowledgements or relinquishments of any rights by Stonegate.
Stonegate subsequently brought this diversity suit under Georgia law,
claiming breach of contract and willful misconduct by TD Bank under the
Agreement. After finding the Agreement plainly ambiguous, the district court
applied Georgia’s “specific over general” rule of contract interpretation and ruled
in TD Bank’s favor. Stonegate then appealed to this Court.
B.
Following are sections from the parties’ Agreement relevant to this appeal:
8. Obligations of Originating Bank.
Originating Bank shall, until Participating Bank’s Participation
Interest in the Loan has been repaid in full: (i) hold the original
promissory notes and, to the extent actually received by Originating
Bank, all other documents evidencing or providing security for the
Loan or containing agreements in respect to the sale or repayment of
the Loan (hereinafter referred to collectively as the “Loan
Documents”) for the benefit of itself and Participating Bank . . . .
....
16. Administration of Loan.
(a)
Originating Bank shall, until all amounts payable with respect to
Participating Bank’s Participation Interest have been paid in full: (i)
hold the Note(s) and all other documents evidencing the Loan,
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guaranteeing or providing security for the Loan or containing
agreements with respect to the sale or repayment of the Loan
(collectively, the “Loan Documents”) for the benefit of Participating
Bank and Originating Bank . . . .
(b)
Without the prior written consent of the holders of 75% or more of the
outstanding interest in the Loan, Originating Bank shall not: (i) make
or consent to any modification, amendment, or termination of any of
the material terms or conditions of the Loan Documents (without
limiting the foregoing, a “material” term includes the interest rate, the
specific collateral pledged, guaranties made, scheduled term and
maturity date, required covenants, and like provisions), (ii) make or
consent to any release of any guarantor or release modification,
substitution or exchange of any of the Collateral given as security for
the Loan, (iii) accelerate the maturity date of the Loan; make or
consent to any extension or renewal of the Loan; or (iv) commence
any foreclosure or other legal action or proceeding for the collection
of the Loan.
....
(e)
Upon becoming actually aware of a default by Borrower(s) under any
of the Loan Documents or with respect to the Collateral, or any event
which, with the giving of notice or passage of time or both, would
constitute a default thereunder, Originating Bank immediately shall
notify Participating Bank of such default or event, and Originating
Bank and Participating Bank shall thereafter attempt to mutually agree
upon a course of action within sixty (60) business days. If, within
sixty (60) business days a mutually agreeable course of action can not
be decided by the holders of 50% or more of the outstanding interest
in the Loan, Originating Bank shall (i) accelerate the maturity of the
Loan, (ii) demand payment of the loan, and (iii) take appropriate
action to collect the Loan.
....
18. Amendment and Modification.
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No amendment, change [sic] modification or termination of this
Agreement shall be valid or binding upon the parties hereto unless
such amendment, change, modification or termination shall be in
writing and signed by both parties.
Participation Agmt. ¶¶ 8, 16, 18.
II.
We review 1 the district court’s summary judgment decision de novo,
applying the same legal standards as below, which includes “constru[ing] the facts
and draw[ing] all reasonable inferences in favor of the non-moving party.”
Bradley v. Franklin Collection Serv., Inc., 739 F.3d 606, 608 (11th Cir. 2014).
“Summary judgment is appropriate where there are no genuine issues of material
fact and the movant is entitled to judgment as a matter of law.” Strickland v.
Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). A court must not
engage in “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences” when deciding a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We may, however,
“affirm the district court’s judgment ‘on any ground that finds support in the
record.’” Strickland, 692 F.3d at 1154 (quoting Lucas v. W.W. Grainger, Inc., 257
F.3d 1249, 1256 (11th Cir. 2001)).
III.
1
The district court had diversity jurisdiction under 28 U.S.C. § 1332. We have
jurisdiction to review the district court’s grant of summary judgment under 28 U.S.C.
§ 1291.
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Stonegate claims the district court erred in three successive ways: (1) it
incorrectly held the Agreement to be ambiguous; (2) even if the Agreement were
ambiguous, the court failed to properly apply Georgia’s rules of contract
construction; and (3) even if the court did apply the rules correctly, it failed to
consider parol evidence and draw all reasonable inferences in favor of Stonegate.
Based on our analysis below, we need only reach the first two arguments.
A.
Under Georgia law, 2
[t]he construction of contracts involves three steps. At least initially,
construction is a matter of law for the court. First, the trial court must
decide whether the language is clear and unambiguous. If it is, the
court simply enforces the contract according to its clear terms; the
contract alone is looked to for its meaning. Next, if the contract is
ambiguous in some respect, the court must apply the rules of contract
construction to resolve the ambiguity. Finally, if the ambiguity
remains after applying the rules of construction, the issue of what the
ambiguous language means and what the parties intended must be
resolved by a jury.
City of Baldwin v. Woodard & Curran, Inc., 743 S.E.2d 381, 389 (Ga. 2013)
(alteration in original) (quoting Record Town, Inc. v. Sugarloaf Mills Ltd. P’ship
of Ga., 687 S.E.2d 640, 642 (Ga. Ct. App. 2009)). “The existence or nonexistence
of an ambiguity is a question of law for the court. If the court determines that an
ambiguity exists, however, a jury question does not automatically arise, but rather
2
Stonegate and TD Bank, as successor parties to the Agreement, agreed that “the laws of
the State of Georgia shall govern the interpretation, validity and enforceability hereof, without
regard to the conflicts of law rules thereof.” Participation Agmt. ¶ 20.
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the court must first attempt to resolve the ambiguity . . . .” Simpson v. Infinity
Select Ins. Co., 605 S.E.2d 39, 42 (Ga. Ct. App. 2004) (citation omitted).
Language is ambiguous if it admits more than one reasonable interpretation.
See Hammer Corp. v. Wade, 628 S.E.2d 638, 641 (Ga. Ct. App. 2006)
(“[L]anguage is unambiguous if it is capable of only one reasonable
interpretation.” (alteration in original) (quoting Caswell v. Anderson, 527 S.E.2d
582, 584 (Ga. Ct. App. 2000))); St. Charles Foods, Inc. v. Am.’s Favorite Chicken
Co., 198 F.3d 815, 820 (11th Cir. 1999) (“A contract term is ambiguous if it is
reasonably susceptible of more than one interpretation.” (quoting Int’l Bhd. of
Boilermakers v. Local Lodge D111, 858 F.2d 1559, 1561 (11th Cir. 1988))).
B.
When analyzing a disputed contract under the first step of Georgia’s contract
construction inquiry, if “the words in th[e] contract are plain and obvious, they
must be given their literal meaning, and unambiguous terms are taken in their
plain, ordinary and popular sense as supplied by dictionaries.” Record Town, Inc.,
687 S.E.2d at 643 (citation omitted); see also Perkins v. M & M Office Holdings,
LLC, 695 S.E.2d 82, 84–85 (Ga. Ct. App. 2010) (using dictionary definitions to
analyze terms under the first step of the contract construction inquiry).
The district court found plain ambiguity among the interactions of Sections
16(b), 16(e), and 18. Order, Aug. 5, 2013, at 8. In doing so, it sketched the
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parties’ competing interpretations, providing a framework we find helpful for
analyzing the key differences between them. Describing Stonegate’s general
position, the district court wrote that
there is a reasonable interpretation that these provisions create a
sliding scale of permissible actions based on escalating thresholds for
approval by the Participating Banks/Participation Interests. Under
that interpretation, 50% of the Participation Interests can agree to—
but not necessarily implement—certain courses of action if the Loan
is in default. 75% of the Participation Interests can then implement
those courses of action or can otherwise act regardless of whether the
Loan is in default. If, however, any action would modify or terminate
terms of the Participation Agreement(s), each Participating Bank—
and 100% of the Participation Interests—must approve that action in
writing.
Id. The district court next described the opposing position, which it associated
with TD Bank:
On the other hand, it is reasonable to interpret Section 16(b) as
authorizing broad conduct, including a full sale of the Loan,
regardless of how that sale would affect the Participation
Agreement(s). It is similarly reasonable to interpret Section 16(e) as
providing broader authority to act—with approval by only 50% of the
Participation Interests—only if the Loan is in default. Finally, it is
reasonable to interpret Section 18 as a general clause that does not
apply to the specific courses of action covered by Sections 16(b) and
16(e). Rather, Section 18 would apply to changes to the overarching
Participation Agreement, such as, for example, modifying the voting
threshold in Section 16(e) from 50% to 60% or changing the
governing law in Section 20 to Alabama law.
Id. 3
3
The district court held that, since it had resolved the Agreement’s ambiguity by
considering Sections 16(b) and 18, it did not need to reach the parties’ Section 16(e) arguments.
Id. at 11 n.3. We note that, as the parties agree, the participating banks voted to approve the sale
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At the heart of Stonegate’s argument is its conception of its participation
interest as an “indefeasible, undivided, titled ownership in the Loan”—akin to an
inviolable property right. Stonegate’s Br. 17. Stonegate asserts that, in the event
of default, Section 16(e) allows a majority of the participating interests to agree on
a plan of action and, “[i]f a plan is made, necessary votes to approve it must occur
under Sections 16(b) or 18, depending on the action.” Id. at 20. According to
Stonegate, Section 16(b) allows 75% of the participating interests to modify certain
aspects of the loan documents (but not the “underlying indebtedness”), while
Section 18 requires the consent of 100% of those interests in order to modify or
terminate the Agreement (i.e., to sell the underlying loan). Id. at 17–18.
More specifically, Stonegate disputes that the term “Loan Documents” in
Section 16(b) may be defined by referencing Sections 8 or 16(a). It argues that the
definition of “Loan Documents” provided in Sections 8 and 16(a) must be cabined
to those sections, since the purpose of those sections—“the fiduciary obligations of
the lead bank to protect documents”—is different from the purpose of Section
16(b)—“to provide a voting mechanism for making changes to material terms of
Loan Documents, or to authorize foreclosure.” Id. at 26–27. Moreover, Stonegate
disputes that Section 16(b)’s “material terms or conditions of the Loan
under Section 16(b). Because this matter can be resolved without reference to 16(e), we will not
consider that section in detail. See also infra note 9.
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Documents” refers to the loan principal itself. Stonegate first distinguishes
between “the obligation [i.e., the indebtedness itself] and the Documents
evidencing it.” Id. at 30. Then, from the examples Section 16(b) provides
(“without limiting the foregoing, a ‘material’ term includes the interest rate, the
specific collateral pledged, guaranties made, scheduled term and maturity date,
required covenants, and like provisions”), it argues that these are all concerned
with “how the Loan is collateralized, secured and administered,” not with the
“obligation to repay the principal” or with the underlying indebtedness itself. Id. at
31 (emphasis omitted). Further, the “obligation to repay the principal of the Loan
is not a ‘like provision’ in this context.” Id. Stonegate maintains that its
interpretation is clear and the district court was wrong to hold the Agreement
ambiguous.
TD Bank sees no ambiguity in the Agreement. It reads the following
excerpt from Section 16(b) as expressly authorizing a sale of the loan: “termination
of any of the material terms or conditions of the Loan Documents.” TD Bank’s Br.
16. TD Bank argues that Stonegate’s cabining of the definition of “Loan
Documents” to Sections 8 and 16(a) would unjustifiably give “Loan Documents”
two different meanings within Section 16 alone. Id. at 19. Finally, TD Bank
asserts that, unambiguously, the “total amount due under the Loan is a material
term.” Id. Because the note, which establishes the amount due, is included in
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Section 8’s and Section 16(a)’s definitions of “Loan Documents,” 4 as are
“agreements with respect to the sale or repayment of the Loan,” “Loan
Documents” includes the loan’s principal. Id. at 19–20.
We agree with the district court that the Agreement is plainly ambiguous on
the issue of selling the loan. The plain, ordinary meanings of “Loan,” “Loan
Documents,” and “material terms or conditions” do not provide much help,
particularly as the latter two terms are not generally used outside of very context-
specific settings. Rather, the context surrounding the Agreement’s use of these
terms indicates that their meanings are technical and industry-specific. See Estate
of Pitts v. City of Atlanta, 746 S.E.2d 698, 704 (Ga. Ct. App. 2013) (“Words are to
be understood in their ordinary, everyday meanings—unless the context indicates
that they bear a technical sense.” (quoting Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 69 (2012))). The parties have not
provided any useful external evidence that would help us to determine these terms’
industry meanings. See id. at 705 (declining to analyze a contested term’s industry
4
TD Bank’s reading of the “Loan Documents” definition does not fully capture the
Agreement’s haziness here. Section 8 reads, in relevant part: “[H]old the original promissory
notes and, to the extent actually received by Originating Bank, all other documents evidencing or
providing security for the Loan or containing agreements in respect to the sale or repayment of
the Loan (hereinafter referred to collectively as the ‘Loan Documents’).” It is unclear whether
“collectively” includes “original promissory notes” or simply “all other documents.” Section
16(a) reads: “[H]old the Note(s) and all other documents evidencing the Loan, guaranteeing or
providing security for the Loan or containing agreements with respect to the sale or repayment of
the Loan (collectively, the ‘Loan Documents’).” It is likewise unclear whether “collectively”
includes the “Note(s)” or simply “all other documents evidencing the Loan,” etc.
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meaning when the parties “neither argued in their appellate briefs nor pointed to
any parol evidence” of such meaning). 5
More generally, each party’s overarching interpretation of the Agreement is
reasonable, but nothing in the Agreement clearly steers the interpreter in one
direction or the other. In addition, neither interpretation is without flaw. For
example, Stonegate makes too much of the Agreement’s distinction between
“Loan” and “Loan Documents.” In plain terms, the loan is a conceptual debt
agreement, while the loan documents simply evidence that agreement. Stonegate
tries to elicit larger limiting principles from Section 16(b)’s ad hoc listing of loan
document examples (i.e., how the loan is “collateralized, secured and
administered”). But the Agreement itself does not exclude other types of
documents—notably, those evidencing the sale or repayment of the loan.
Stonegate has another problem in that it shows no support for its view that Section
18 somehow covers primarily “the right to alter the obligations, liabilities and
indebtedness, i.e. the Loan itself, evidenced and secured by the Loan Documents.”
5
Stonegate does reference Generally Accepted Accounting Principles (“GAAP”) in
support of its claim that the Loan principle was intentionally omitted from Section 16(b)’s list of
Loan Documents. Stonegate’s Reply Br. 7. “[I]f Fairfield could sell the Loan or reduce the
principal without a participant’s consent, its sales of participation interests in the Loan may not
have qualified as ‘sales’ under GAAP”—“potentially impacting its ability to service other loans
as a result of regulatory lending limits.” Id. This argument does not so much clarify the
industry’s use of the word as it asks us to rely on a roundabout chain of assumptions. For
example, Stonegate has not shown that the abstruse GAAP requirements typically inform the
language banks insert in their agreements. Nor has it shown that banks generally allow
accounting policy to dictate front office decisions—that the proverbial tail wags the dog, so to
speak. Stonegate’s use of GAAP does not aid us here.
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Stonegate’s Br. 16. We find nothing in the Agreement that links Section 18’s
language (“No amendment, change [sic] modification or termination of this
Agreement shall be valid or binding upon the parties hereto unless [it is] in writing
and signed by both parties.”) to the underlying indebtedness of the loan—the
conceptual core of the Agreement. Section 18 is not clear: it could refer to
modifications of the underlying loan, to those of the Agreement terms, or to those
of both. Stonegate’s interpretation is by no means airtight.
But neither is TD Bank’s. For example, as discussed in footnote 4 above,
TD Bank elides the definitional uncertainties in Sections 8 and 16(a).
Additionally, it parses Sections 16(b)’s language closely, but does not give a
reason beyond mere common usage for why the loan’s principal is a “material
term.”
In sum, the district court was correct that the Agreement is plainly
ambiguous on the question of how a loan sale must be authorized under the
Agreement. We affirm its holding to that effect and proceed to apply Georgia’s
rules of contract construction.
C.
Georgia courts do not take a uniform approach in applying their state’s rules
of contract construction. Instead, they tend to make use of different rules on an ad
hoc basis. See, e.g., DJ Mortg., LLC v. Synovus Bank, 750 S.E.2d 797, 804–05
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(Ga. Ct. App. 2013); Estate of Pitts, 746 S.E.2d at 704–08; see also, e.g., Sun Am.
Bank v. Fairfield Fin. Servs., Inc., 690 F. Supp. 2d 1342, 1361–62 (M.D. Ga.
2010). Only a few guiding principles exist. For example, “[t]he cardinal rule of
construction is to ascertain the intention of the parties.” Ga. Code Ann. § 13-2-3.
Another is that “[n]o canon of interpretation is absolute. Each may be overcome
by the strength of differing principles that point in other directions.” DJ Mortg.,
LLC., 750 S.E.2d at 805 (quoting Estate of Pitts, 746 S.E.2d at 702 (quoting Scalia
& Garner, supra, at 59)). Georgia’s rules of interpretation derive from statute, see
Ga. Code Ann. § 13-2-2, and case law.
After finding the Agreement’s terms ambiguous, the district court appealed
primarily to the following rule of construction, found in the case law: “[T]he Court
‘should avoid any construction that renders portions of the contract language
meaningless, and when a provision specifically addresses the issue in question, it
prevails over any conflicting general language.’” Order, Aug. 5, 2013, at 9
(quoting Greenwald v. Odom, 723 S.E.2d 305, 317 (Ga. Ct. App. 2012)). In doing
so, the district court found the “issue in question” to be “a particular course of
conduct with respect to the ownership and value of the Loan.” Id. Because
Section 16(b) allows “modification, amendment, or termination of any of the
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material terms or conditions of the Loan Documents,” 6 it specifically addresses the
issue in question. Id. Section 18, by contrast, only generally addresses changes to
the Agreement. In addition, the district court viewed Section 16(b) as more
specifically recognizing and engaging with the nature of the larger, multiparty
participation arrangement. It read Section 16(b) as “specifically referenc[ing] the
Loan, the Loan Documents, the Originating Bank, and material terms,” and
providing instructions on how the several participating banks would coordinate
their efforts (i.e., via the 75% vote). Id. at 9–10. Section 18, which “just generally
requires a signed writing by both parties,” is not directed toward the multiparty
arrangement. Id. at 10 (internal quotation marks omitted). Instead, the district
court read Section 18 as covering changes such as those to the operative law or to
the voting thresholds, which require full consent from each party. Therefore, it
found that Section 18’s more general provisions do not override Section 16(b)’s
more specific terms. This, in the district court’s view, resolved the ambiguity and
ended its inquiry.
Stonegate argues that the district court improperly neglected three of
Georgia’s rules of construction: (1) “[w]ords generally bear their usual and
common signification,” Ga. Code Ann. § 13-2-2(2); (2) “[t]he construction which
will uphold a contract in whole and in every part is to be preferred,” § 13-2-2(4);
6
The district court found that “the total amount due under the Loan is a material term of
the Loan Documents.” Id.
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and (3) “[i]f the construction is doubtful, that which goes most strongly against the
party executing the instrument or undertaking the obligation is generally to be
preferred,” § 13-2-2(5). Stonegate’s Br. 35–36. We cover these and other
pertinent rules below.
1.
First we examine the rule that words generally bear their usual and common
signification. Stonegate provides the uncontroversial dictionary definitions for
several Agreement terms, including “undivided,” “interest,” “title,” “hold,” and
“repay.” Id. at 36–37. More substantively, it challenges the district court’s reading
of Section 16(b) as “speak[ing] to making material changes to the entire business
arrangement underlying this dispute.” Id. at 37. Because Section 16(b) directly
references only “modifying, amending or terminating material terms or conditions
of the Loan Documents,” it does not engage with the underlying business
arrangement. Id. at 38 (internal quotation marks omitted). With help from the
dictionary, Stonegate interprets “terms” and “conditions” from Section 16(b) as the
Agreement’s “rules of the road,” which do not encompass “the authority to
terminate the Loan or the obligation to repay it.” Id. We note that Stonegate’s
arguments here, and this rule of construction generally, add little to the discussion
of plain ambiguity above.
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A corollary principle, however, points us in the direction of TD Bank’s
interpretation. Georgia case law has developed the rule that words used in one
sense in one part of a contract are generally considered to have been used in the
same sense in other parts of the contract. See Estate of Pitts, 746 S.E.2d at 702
(“Without some indication to the contrary, general words . . . are to be accorded
their full and fair scope. They are not to be arbitrarily limited.” (quoting Scalia &
Garner, supra, at 101)). Under this rule, we read the definition of “Loan
Documents,” as defined in Section 8 and 16(a), to apply to the whole Agreement—
notwithstanding Stonegate’s attempts to differentiate these sections from Section
16(b) based on their respective purposes. With this in mind, we advance to the
next rule.
2.
In Georgia, the construction which will uphold a contract in whole and in
every part is to be preferred. Stonegate understands this rule to mean that “under
Georgia law, a contract ought to be interpreted so that every section of it has a
function.” Stonegate’s Br. 39 (citing Am. Cas. Co. of Reading, Pa. v. Etowah
Bank, 288 F.3d 1282, 1287 (11th Cir. 2002)). “Therefore, under the applicable
rules of contract construction, the Georgia courts ‘should avoid any construction
that renders portions of the contract language meaningless.’” Id. (quoting Deep
Six, Inc. v. Abernathy, 538 S.E.2d 886, 888 (Ga. Ct. App. 2000)). Stonegate
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claims that the district court’s interpretation failed to look at the Agreement as a
whole, thereby ignoring the Agreement’s purpose and rendering several provisions
meaningless. Specifically, Stonegate examines the interaction between Sections
16(b) and 18. It asserts that the overarching purpose of the Agreement is to
“provide a construct for collective participation in the same loan.” Id. at 42.
Because an identical participation agreement was executed by each of the
participating banks, the very purpose of the Agreement was to “account[] for the
fact that there are multiple participation agreements addressing the same loan.” Id.
at 43 (quoting Order, Aug. 5, 2013, at 10). Section 18, which specifically deals
with changes to the Agreement, is therefore the provision that properly deals with
collective aspects of the arrangement—especially a sale of the loan.
Stonegate goes on to contest the district court’s finding that Section 18
addresses only changes to “aspects of the distinct participation agreement between
[Stonegate] and [TD Bank].” Id. at 44 (quoting Order, Aug. 5, 2013, at 10).
Specifically, Stonegate attacks the district court’s suggestion that Section 18 covers
things like changes to the voting requirements and governing law. Stonegate
argues that both examples are unworkable because allowing one participating bank
to deviate from the terms common to all the other banks would create havoc.
Thus, Stonegate argues, the district court’s interpretation of Section 18 has
rendered it meaningless.
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We note that Stonegate’s argument directly conflicts with the district court’s
opinion that Section 16(b) deals more specifically with changes affecting all of the
participating banks. The central question is therefore which provision—Section
16(b) or 18—is the prism through which the Agreement should be viewed. In
answering this question, we must also ensure that the less central provision is not
thereby rendered meaningless. In other words, this rule of construction requires
that each provision play a meaningful part in the whole of the working Agreement.
And each party’s interpretation abides by this requirement, at least ostensibly.
Stonegate would have Section 18 take precedence, overriding Section 16(b) to the
extent the issue involves changes to the underlying indebtedness. TD Bank (and
the district court) would have Section 16(b) take precedence for all of the loan’s
material terms or conditions—including changes to the underlying indebtedness—
leaving Section 18 to cover all other changes to the Agreement. Neither
interpretation renders meaningless the less central provision. Furthermore,
Stonegate’s argument that TD Bank’s (and the district court’s) conception of
Section 18 is unworkable does not hold up to scrutiny. Stonegate neglects to
consider that all changes to the agreements would be made across the board. 7
7
TD Bank recognizes this, where it notes that Section 18 forbids Stonegate from seeking
to amend the voting percentages “absent a signed writing by all Participating Banks.” TD
Bank’s Br. 26. TD Bank goes on: “Stonegate seeks to alter Section 16(b)’s voting threshold
from 75% to 100%—but Stonegate did not obtain signed consent from 100% of the Participating
Banks to accomplish that change.” Id. at 26–27.
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There is no indication that each bank could have different and conflicting
provisions in its agreement. We discern no way to meaningfully differentiate
between the parties’ interpretations based on this rule. We therefore move on to
the next rule.
3.
The third rule is contra proferentem, which holds that doubtful constructions
should be construed against the instrument’s drafter. Stonegate advocates
forcefully for its application here, complaining that the district court neglected to
do so. Id. at 50–52; see also Stonegate’s Reply Br. 9 (“The district court’s failure
to consider Georgia’s rule of contra proferentem was especially devastating.”).
Stonegate argues that TD Bank’s predecessor-in-interest drafted the form
agreement that all participating banks signed, and thus ambiguous language should
be construed against TD Bank. Stonegate points to no specific provisions where
this rule should have been applied. It does note, however, that “[i]f the other parts
of the Participation Agreement had unequivocally supported the district court’s
construction, the district court was not compelled to apply th[is] canon. But that
was not the case here.” Stonegate’s Reply Br. 9–10.
As noted above, each party’s interpretation of Sections 16(b) and 18 is
reasonable. Because the parties’ intended construction is therefore ambiguous, the
rule of contra proferentem suggests that we should construe these provisions in
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favor of Stonegate. However, the logic of this rule is less persuasive where, as
here, the parties are both sophisticated entities engaged in their own lines of
business. The rule of contra proferentem thus applies with less force and is
“overcome by the strength” of other rules.
4.
Finally, we arrive at the rule, from Georgia’s case law, which performed the
heaviest lifting in the district court’s opinion: “when a provision specifically
addresses the issue in question, it prevails over any conflicting general language.”
Order, Aug. 5, 2013, at 9 (quoting Greenwald, 723 S.E.2d at 317); see also RLI
Ins. Co. v. Highlands on Ponce, LLC, 635 S.E.2d 168, 172 (Ga. Ct. App. 2006);
Woody’s Steaks, LLC v. Pastoria, 584 S.E.2d 41, 44 (Ga. Ct. App. 2003); Deep
Six, Inc., 538 S.E.2d at 889.
Stonegate challenges the district court’s definition of the “issue in question”
as “a particular course of conduct with respect to the ownership and value of the
Loan.” Stonegate’s Br. 46–47 (quoting Order, Aug. 5, 2013, at 9). Stonegate
argues that the ownership and value of the loan were not in question because “[i]t
was undisputed that TD Bank owned a certain portion of the Loan and that
Stonegate owned its Participation Interest in the Loan. Nor was there any dispute
regarding the value of the Loan or the Participation Interest.” Id. at 47. Stonegate
offers no competing “issue in question.” For its part, TD Bank affirms that Section
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16(b) overrides Section 18 on the issue of whether to sell the loan, because
“Section 18 is a general clause that does not address any of the voting requirements
of Sections 16(b) and 16(e). And Section 18 necessarily would yield to Sections
16(b) and (e) even if there were a conflict.” TD Bank’s Br. 26.
The district court was correct in ruling that Section 16(b) more specifically
recognizes and engages with the nature of the larger, multiparty participation
arrangement. Even if we more precisely define the issue in question as whether a
75% supermajority of participating interests can vote to sell the loan over the
objections of a holdout minority, the “specific over general” rule still favors TD
Bank. Section 16(b)—and 16(e)—with its voting requirements, seems to have
been written in recognition of the reality that the Participation Agreement is one of
many such agreements, all dealing with a single loan to the borrower. Section 18
omits all reference to the larger context and focuses instead on the participating
bank and the lead bank. This rule, then, supports TD Bank’s interpretation. 8, 9
. . . .
8
The fact that the Agreement contemplates voting requirements at all indicates that the
participation interests are not as akin to absolute property rights as Stonegate would have us
believe.
9
Section 16(e) may appear to be more specific to this matter, and therefore a more
appropriate provision to examine under this rule. We note that, if anything, Section 16(e) might
have authorized the loan sale with only 50% of the participating interests voting in favor of it.
Because the 75% voting threshold under Section 16(b) was surpassed, this point is moot, and we
need not consider Section 16(e) further in order to resolve this case.
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In sum, of the four Georgia rules of contract interpretation discussed above,
the first slightly favors TD Bank, the second could favor either Stonegate or TD
Bank, the third only weakly favors Stonegate, and the fourth strongly favors TD
Bank. Accordingly, we apply the first and fourth rules to resolve the ambiguity in
TD Bank’s favor. See DJ Mortg., LLC., 750 S.E.2d at 805 (“[N]o canon of
interpretation is absolute. Each may be overcome by the strength of differing
principles that point in other directions.” (alteration in original) (quoting Estate of
Pitts, 746 S.E.2d at 702 (quoting Scalia & Garner, supra, at 59))).
IV.
For the foregoing reasons, the district court’s grant of summary judgment is
AFFIRMED.
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