Jon Luce Builder, Inc., Jon Luce and Beverly Luce v. First Gibraltar Bank, FSB

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-91-337-CV

JON LUCE BUILDER, INC., JON LUCE AND BEVERLY LUCE,

APPELLANTS

vs.

FIRST GIBRALTAR BANK, F.S.B.,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT

NO. 478,361, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

PER CURIAM

Appellants Jon Luce Builder, Inc., Jon Luce, and Beverly Luce (1) filed suit seeking

a declaratory judgment (2) that the four-year limitations period had expired on any cause of action

based on a note executed by the corporation. See Tex. Civ. Prac. & Rem. Code Ann.

§ 16.035 (a) (West 1986). Appellee First Gibraltar Bank, F.S.B., counterclaimed for the amounts

due and owing under the terms of the note. The parties filed cross-motions for summary

judgment. The trial court granted First Gibraltar's motion for summary judgment and denied the

Luces' motions for summary judgment. We will affirm the judgment.

BACKGROUND

On July 26, 1984, Jon Luce Builder, Inc., by and through its president, Jon Luce,

executed and delivered to First Texas Savings Association (First Texas) a construction loan note

in the amount of $4,495,260.00 secured by a "Deed of Trust Assignment of Rents and Security

Agreement," and by a guaranty agreement signed by Jon Luce, individually (the "Luce

instruments"). The purpose of the loan was to finance the construction of condominium units the

parties referred to as the "14th Fairway Project." The note had a maturity date of July 26, 1985.

On December 27, 1988, the Federal Home Loan Bank Board determined that First

Texas was insolvent and appointed the Federal Savings and Loan Insurance Corporation (FSLIC)

as its receiver. On the same date, First Gibraltar Bank, F.S.B. (First Gibraltar), acquired

substantially all of the assets of First Texas and became the owner of the Luce instruments when

First Gibraltar entered into an acquisition agreement with the FSLIC. (3)

On January 24, 1990, the Luces filed suit for a declaratory judgment, seeking a

declaration that all of the holder's rights to recovery under note and deed of trust were barred by

limitations. On June 18, 1990, First Gibraltar filed its first amended original answer, in which

it counterclaimed against the corporation and Jon Luce for nonpayment of the note and guaranty

agreement. (4) On October 10, 1990, First Gibraltar filed a motion for summary judgment on its

nonpayment counterclaim. On October 26, 1990, Beverly Luce filed a motion for summary

judgment on the grounds that she was not a party to the loan transaction and is not liable to First

Gibraltar for its claims against the corporation and Jon Luce. On November 1, 1990, the

corporation and Jon Luce filed an amended response to First Gibraltar's motion for summary

judgment and a motion for summary judgment on their claim that limitations barred the debt

evidenced by the note. On June 13, 1991, the trial court rendered final judgment denying the

Luces' motions for summary judgment and granting First Gibraltar's motion for summary

judgment, awarding First Gibraltar recovery in the amount of $1,986,855.64 from the corporation

and Jon and Beverly Luce, jointly and severally.

DISCUSSION

Standard of Review

On appeal the Luces bring two points of error alleging that the trial court erred in

denying summary judgment in their favor and in granting summary judgment in favor of First

Gibraltar. See Malooly Bros., Inc. v. Nadia , 461 S.W.2d 119, 121 (Tex. 1970). The standards

for reviewing a motion for summary judgment are well established: (1) The movant for summary

judgment has the burden of showing that no genuine issue of material fact exists and that it is

entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact

issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true;

and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts

resolved in its favor. Nixon v. Mr. Property Management Co. , 690 S.W.2d 546, 548-49 (Tex.

1985). When both parties move for summary judgment, the trial court may consider the combined

summary-judgment evidence to decide how to rule on the motions. Woods v. Applemack Enters.

Inc. , 729 S.W.2d 328, 331 (Tex. App--Houston [14th Dist.] 1987, no writ); River Oaks Shopping

Ctr. v. Pagan , 712 S.W.2d 190, 193 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.).

When both parties move for summary judgment and one motion is granted and the other is

overruled, all questions presented to the trial court may be presented for consideration on appeal,

including whether the losing party's motion should have been overruled. Jones v. Strauss , 745

S.W.2d 898, 900 (Tex. 1988, orig. proceeding); Tobin v. Garcia , 316 S.W.2d 396, 400-01 (Tex.

1958).

Limitations

The sole issue on appeal is whether limitations bars First Gibraltar's claims. We,

therefore, consider the Luces' points of error together. The Luces assert that Tex. Civ. Prac. &

Rem. Code Ann. § 16.035 (a) (West 1986) (four-year statute of limitations) bars First Gibraltar's

claims and that the federal statute of limitations, 28 U.S.C. § 2415 (a) (1988) (six-year statute of

limitations), does not apply to the claims brought by First Gibraltar. First Gibraltar counters that

it is entitled to rely on section 2415(a) or, in the alternative, that the Luces either acknowledged

or renewed and extended the loan and, therefore, its claims are timely under section 16.035(a).

Because we conclude that First Gibraltar is entitled to rely on the federal statute of limitations,

we need not address the Luces' remaining contentions relating to the state four-year statute of

limitations.

The note's original maturity date was July 26, 1985. On December 27, 1988, the

FSLIC was appointed receiver and acquired First Texas' assets, including the Luce instruments.

First Texas' cause of action was not yet barred by the state statute of limitations. See Tex. Civ.

Prac. & Rem. Code Ann. § 16.035 (a) (West 1986). Thus, when the FSLIC acquired the claim,

the state statute of limitations ceased to run because the federal statute of limitations superseded

it and began to run against the FSLIC. Pineda v. PMI Mortgage Ins. Co. , 843 S.W.2d 660, 669

(Tex. App.--Corpus Christi Nov. 25, 1992), writ denied per curiam, No. D-3260 (Tex. S.Ct. Apr.

7, 1993) (citing United States v. Sellers , 487 F.2d 1268 (5th Cir. 1973)).

Section 2415(a) provides, in pertinent part, that "every action for money damages

brought by the United States or an officer or agency thereof which is founded upon any contract

express or implied in law or fact, shall be barred unless the complaint is filed within six years

after the right of action accrues." (emphasis added). Thus, the FSLIC had until December 27,

1994, to file suit on its claims. The dispositive issue is whether the FSLIC's limitations rights

under section 2415(a) passed to First Gibraltar even though section 2415(a) recites that it applies

to actions "brought by the government or an officer or agency thereof."

Only one Texas court of appeals has considered this precise question, holding that

the government's limitations rights under section 2415(a) passed to the transferee. Pineda , 843

S.W.2d at 669 (federal institution's limitations rights passed to transferee pursuant to Tex. Bus.

& Com. Code Ann. § 3.201 (West 1968)). Additionally, this Court has previously held that a

transferee "steps into the shoes" of the government for purposes of limitation rights under a

federal statute of limitations. Thweatt v. Jackson , 838 S.W.2d 725, 727-28 (Tex. App.--Austin

1992, writ granted) (common law principles applicable to assignees held to vest transferee with

same rights as Federal Deposit Insurance Corporation (FDIC); six-year statute of limitations (18

U.S.C. 1821(d)(14) (Supp. I 1989) applicable to actions FDIC brings as conservator or receiver

also applicable to transferee); see also Mountain States Fin. Resources Corp. v. Agrawal, 777

F.Supp. 1550, 1552 (W.D. Okla. 1991) (assignee stands in shoes of assignor; acquires all

assignor's rights and liabilities in assignment; FDIC's assignee acquires six-year limitations

period provided by § 1821(d)(14)). But see Thweatt , 838 S.W.2d at 730 (Powers, J., dissenting)

(plain language of statute does not evidence congressional intent that FDIC's assignee should

acquire statutory right assigned by Congress to that agency alone); Federal Debt Management,

Inc. v. Weatherly , 842 S.W.2d 774, 777 (Tex. App.--Dallas 1992, writ granted) (federal common-law principles cannot be used to expand protections afforded to the FDIC under 1821(d)(14); nor

can a transferee rely on Tex. Bus. & Com. Code Ann. § 3.201 (a) (West 1968) to step into shoes

of FDIC for purpose of asserting a procedural defense applicable only to FDIC in its capacity as

conservator or receiver); Tivoli Ventures, Inc. v. Tallman, No. 91CA1904, 1992 WL 301822

(Colo. Ct. App. Nov. 27, 1992, pet. for review filed) (when FDIC assigns note to private party,

private party does not acquire right to sue within time provided for in federal statute of

limitations; section 2415(a) applies only to actions brought by United States or officer or agency

thereof).

We conclude that the principles of assignment relied on in Thweatt apply here, as

well. See Thweatt , 838 S.W.2d at 727 n.1 (result would likely be the same if decided based on

section 2415(a)). First Gibraltar, as the FSLIC's transferee, stood in the shoes of the FSLIC and

had the right to assert its claims on the promissory note, deed of trust, and guaranty agreement

to the same extent as the FSLIC. Because the FSLIC had until December 27, 1994, to file suit

against the Luces, First Gibraltar had the same right and, as a matter of law, its counterclaim was

not barred by limitations. Accordingly, the trial court did not err in granting First Gibraltar's

motion for summary judgment and in denying the Luces' motions for summary judgment. We

overrule appellants' first and second points of error.

The judgment of the trial court is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: March 3, 1993

[Publish]

1. 1 We will refer to appellants collectively as the Luces. When necessary to distinguish the

appellants individually, we will refer to Jon Luce Builder, Inc., as "the corporation" and to Jon

and Beverly Luce by their individual names.

2. 2 See Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. § 37.001

et seq. (West 1986 & Supp. 1993).

3. 3 These are the facts as asserted in appellants' brief. The record reflects that the acquisition

agreement is between FSLIC and First Texas Bank, F.S.B. The record does not show First

Gibraltar's relationship to First Texas Bank, F.S.B., or how First Gibraltar became the owner of

the note, deed of trust, or guaranty agreement. First Gibraltar does not challenge the appellants'

statements contained in their brief. Accordingly, we accept the statements as correct. Tex. R.

App. P. 74(f). Additionally, there is no contention on appeal that First Gibraltar's summary-judgment proof does not establish as a matter of law that First Gibraltar is the owner of the note,

deed of trust, or guaranty agreement.

4. 4 Additionally, First Gibraltar requested appointment of a receiver to collect the rents assigned

it pursuant to the assignment of rents under the deed of trust. First Gibraltar also requested a

temporary restraining order (TRO) to prevent the Luces from disposing of the rents and security

deposits until such time as a receiver was appointed. The trial court first issued a TRO. It later

issued a temporary injunction reflecting the parties' agreement regarding collection and disposition

of the rents and appointment of a receiver.