Nationsbank of TX v. Oliver Trans Inc

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10980
Summary Calendar
NATIONSBANK OF TEXAS, N.A.,
Plaintiff-Appellee,
VERSUS
OLIVER TRANSPORTATION INCORPORATED, ET AL.,
Defendants,
TONY MEADOR,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:95-CV-1735-X)
March 26, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Tony Meador (“Meador”) appeals the summary
judgment granted to Plaintiff-Appellee NationsBank of Texas, N.A.
*
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opinion should not be published and is not precedent except under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.
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(“NationsBank”) in this action on a guaranty. We affirm.
FACTS AND PROCEDURAL HISTORY
On February 28, 1994, NationsBank granted Oliver Transport,
Inc. (“OTI”) a line of credit in a secured revolving credit
arrangement. Meador, who at that time served as president of OTI,
and John F. Oliver signed agreements to serve as personal
guarantors of the loan.
In June 1995, NationsBank discovered that OTI had overstated
its receivables which served as security for the outstanding loan.
In spite of that discovery, NationsBank continued to loan OTI
additional amounts under the revolving credit arrangement until
September 1995. NationsBank advanced a total of approximately
$62,900,000 to OTI under the agreement. On September 21, 1995,
when NationsBank demanded full payment of amounts due on the note,
the outstanding balance was $3,209,432.05. Because OTI failed to
fully satisfy its obligations, NationsBank demanded payment of
Meador’s Guaranty Obligation.
When OTI, Meador and Oliver failed to pay the balance of the
debt, NationsBank filed suit. OTI and Oliver did not answer the
complaint and default judgment was entered against them, which is
now final.
On NationsBank’s motion for summary judgment against Meador,
the district court found that there were no disputed issue of
material fact on the elements of an action on a guaranty: (1) the
existence and ownership of the guaranty contract, (2) the terms of
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the underlying contract, (3) the occurrence of the conditions upon
which liability is based, and (4) the failure or refusal to perform
by the guarantor. Winan v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex.
App.--Dallas 1994, n.w.h.). After resolving questions of law
involving contract interpretation against Meador, the district
court entered summary judgment for NationsBank, which Meador now
appeals.
DISCUSSION
We review the entry of summary judgment de novo, applying the
same standards that governed the District Court’s decision. Estate
of Carter v. United States, 921 F.2d 63, 65 (5th Cir. 1991).
a. Material alterations
Meador contends that NationsBank made material alterations of
the indebtedness which discharged his guaranty. In order to
succeed on his material alteration defense, Meador must create a
fact issue on each of the following elements: (1) a material
alteration of the underlying contract; (2) made without his
consent; (3) which is to his detriment. Austin Hardwoods, Inc. v.
VandenBerghe, 917 S.W.2d 320, 326 (Tex. App.--El Paso, 1995, writ
denied). However, the guaranty states that Meador’s “obligations
under the terms of this guaranty shall not be . . . affected by .
. . any failure of the Lender to notify the Guarantor of any
renewal, extension or assignment of the Guaranteed Indebtedness[.]”
The trial court did not err in holding that Meador agreed in
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advance to the increase of which he now complains and
simultaneously waived all rights to notice of any increase.
b. Meador’s retirement
Meador asserts that his retirement for OTI, of which
NationsBank became aware through news media reports, operated to
terminate his liability on the guaranty. The guaranty states that
in order to be relieved of further liability on the guaranty,
Meador must communicate written notice to NationsBank that he would
not be liable for amounts advanced after the notice was sent.
Communication of his employment status through the news media does
not comply with that requirement. The district court did not err
in finding that there was no disputed issue of material fact on
this defense.
c. Equitable estoppel
Meador argues that NationsBank should be equitably estopped
from enforcing the guaranty because NationsBank failed to require
Meador to update his financial statements after his retirement,
which he says he assumed indicated his release from liability. To
succeed on his claim of equitable estoppel, Meador must establish
material concealment of material fact, made with actual or
constructive knowledge of true facts, with the intent that the
concealment be acted upon by a party without knowledge or means of
knowledge of the true facts who relies on the concealment to his
detriment. Matter of Christopher, 28 F.3d 512, 520 (5th Cir.
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1994). Meador’s contention amounts to a claim that NationsBank
concealed from Meador the advances made to OTI between June and
September 1995. This position fails to create a fact issue on
equitable estoppel because Meador’s guaranty expressly waived any
notice of such advances, because no evidence supports an inference
of concealment, and because there is no fact question that the 1995
advances in question did not operate to Meador’s detriment. In
fact, Meador’s liability was reduced during the June - September
1995 time period.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment for NationsBank.
AFFIRMED.
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