CROMPTON-RICHMOND CO., INC., FACTORS v. BRIGGS

BROWN, Chief Judge:

In the world of corporate finance, the amount of credit one is able to obtain often represents the difference between the success or failure of an enterprise. This case is one in which a skilled and knowledgeable businessman formulated a plan to attempt to bring Grosse Pointe Mills, Inc. (Grosse Pointe), a Rome, Georgia carpet manufacturer, from a losing operation into the capitalist haven of profitability. The plan was to increase sales dramatically in hopes of reversing the nonprofit trend. To do so, Grosse Pointe had to acquire significantly increased inventories of production materials which required obtaining correspondingly greater amounts of credit. The pivotal aspect of this plan for Grosse Pointe, as with all financially weak companies, was how to secure additional credit. How this credit was obtained and how a guarantor seeks to avoid his guaranty obligation is the essence of this diversity based enforcement action which we affirm.

Under the direction of James S. Briggs, chief financial officer and a director of Grosse Pointe, and his hand-picked president for Grosse Pointe's operations, the strategy to get this increased credit for Grosse Pointe was developed and implemented. Briggs knew that Grosse Pointe's ability to obtain ready cash by factoring1 its own accounts receivable had been extended as far as possible. Thus, any credit for the purchase of increased production inventories had to be procured via credit purchases from the suppliers. One of the earliest suppliers under this scheme was Integrated Products, Inc. which obtained a large yarn contract from Grosse Pointe.

Since Integrated Products did not desire to extend credit directly to Grosse Pointe, it factored the account receivable from the Grosse Pointe purchase. However, before Crompton-Richmond as factor for Integrated, and later for seven other suppliers, would grant credit at Crompton-Richmond's risk for Grosse Pointe purchases, Crompton-Richmond2 sought and obtained on January 14, 1970, the personal guaranty of James S. Briggs. Thus, the entire scheme as developed and executed by Briggs was to gain credit for the expansion of Grosse Pointe's business by having suppliers factor the accounts receivable created by Grosse Pointe's purchases3 — at least for those suppliers unwilling to extend credit directly to Grosse Pointe.

At the time James Briggs executed the guaranty agreement to ensure that Grosse Pointe obtained its inventory purchases on credit, only an initial purchase of approximately $50,000 from Integrated was involved. However, Briggs did not sign a limited guaranty. The agreement covered "any concern for which [Crompton-Richmond] may now or in the future act as factors to extend credit to Grosse Pointe Mills, Inc." Essentially Briggs was personally guarantying present and future contracts, obligations, and indebtedness of Grosse Pointe which Crompton-Richmond factored. Also included in the guaranty agreement was a waiver of any notice requirements and any basis for Briggs' discharge except for full payment of Grosse Pointe's liabilities to Crompton-Richmond.4 The agreement is by its very terms ". . . an absolute, continuing, unconditional and unlimited guaranty of payment . . .."

Unfortunately, the Briggs rescue plan failed and Grosse Pointe was declared bankrupt in September 1972. At that time, despite some concern over Grosse Pointe's financial position, Crompton-Richmond had, on the basis of the Briggs guaranty, factored approximately $645,040.23 for Crompton-Richmond clients who had been suppliers to Grosse Pointe.

In refusing to pay Crompton-Richmond for the Grosse Pointe liabilities covered by the guaranty agreement, Briggs has presented before both this Court and the trial court two arguments contesting the fact of liability. (i) The $645,040.23 exceeds by far any reasonable amount contemplated by the parties at the execution of the guaranty agreement and, thus, requires his discharge for at least part of this figure. (ii) Crompton-Richmond's failure to observe a duty of good faith and due diligence or commercial reasonableness owed to Briggs as a guarantor necessitates his total discharge from liability under the guaranty. Appended to these defenses, Briggs contends that Crompton-Richmond failed to sufficiently prove the exact dollar extent of his liability under the guaranty agreement. Lastly, Briggs argues that the Trial Judge's denial of a continuance two days before trial was an abuse of discretion.

Erie Choices

In evaluating the diversity claims presented, a federal court's normal procedure is to evaluate the Erie-Klaxon5 mandated choice of law decision. However, by calling for application of the law of New York, the Briggs-Crompton-Richmond guaranty agreement relieves us of determining whether the trial court made the appropriate choice of law selection.6 See Ideal Structures Corp. v. Levine Huntsville Development Corp., 5 Cir., 1968, 396 F.2d 917, 925; Restatement (Second) of Conflicts of Laws §§ 186, 187. On oral argument the applicability of New York law was conceded by Briggs' counsel. Consequently, our review of the substantive liability challenges to the Trial Judge's findings under the clearly erroneous rule, F.R.Civ.P. 52(a), is framed in the context of New York guaranty law.

The Unbuckled Facts

As formulated by Briggs, the due diligence and reasonable contemplation arguments amount to a request to be discharged from liability based on the concept that a guarantor or surety is a "favorite of the law" deserving protections from changes in the risks assumed by the guarantor.7 Despite these protests, we find that the District Court's findings of fact are sufficiently supported under the protection of the Buckler and Shield of F.R.Civ.P. 52(a).

The record before this Court adequately demonstrates that this creditor-debtor-guarantor situation was one in which a highly educated and skilled businessman with extensive experience in factoring developed and executed a plan to finance Grosse Pointe's expansion program. During this period while acting as Grosse Pointe's chief financial officer, it is an unfathomable assertion that Briggs did not know that the very credit transactions he had contemplated were transpiring. How else would Grosse Pointe achieve its expansionary goal? And as each new purchase was procured from materials suppliers, which were not paid directly by Grosse Pointe, Briggs of all people knew of it. An additionally important point exists. Because the controlling ownership of Grosse Pointe was in his wife's name, Briggs' interest in the company extended further than that of a mere officer.8 This indirect ownership interest coupled with Briggs' officer status is indicative of the high degree of awareness of Grosse Pointe's financial status.

Briggs occupies the status of one who knew what Grosse Pointe needed to survive and who obtained what was needed — even if later to no avail. In the apt words of the District Court,

A Legal Shield

Nor may the District Court's findings be set aside because an improper legal standard was utilized or a proper one was misapplied. See, e. g., Theriault v. Silber, 5 Cir. 1977, 547 F.2d 1279, 1280; Costello v. Lipsitz, 5 Cir., 1977, 547 F.2d 1267, 1277 n. 33. Briggs' theory that his obligation under the guaranty far exceeds any reasonable amount contemplated and that Crompton-Richmond violated a duty owed him as a guarantor are belied by the guaranty agreement and are precluded by the relevant law. The guaranty is by its terms a continuing, unconditional one. Such a guaranty is recognized by the New York courts. See Walter E. Heller & Co. v. Cox, 2 Cir., 1972, 486 F.2d 1398, aff'g, S.D.N.Y., 343 F.Supp. 519; Indianapolis Morris Plan Corp. v. Karlen, 1971, 28 N.Y.2d 30, 319 N.Y.S.2d 831, 268 N.E.2d 632; La Mar Hosiery Mills, Inc. v. Credit & Commodity Corp., 1961, 28 Misc.2d 764, 216 N.Y.S.2d 186; M. Lowenstein & Sons v. Roselle Manufacturing Co., 1958, 9 Misc.2d 617, 171 N.Y.S.2d 7, aff'd, 8 A.D.2d 592, 185 N.Y.S.2d 216. Under the guaranty Briggs could and did waive any duty Crompton-Richmond might arguably have owed him. Cf. Walter E. Heller, supra, at 527.9 As the New York Court stated in an analogous situation

Indianapolis Morris Plan Corp., supra, 319 N.Y.S.2d at 835, 268 N.E.2d at 635.

Briggs agreed to an absolute, unconditional, and unlimited guaranty. He obtained what he wanted — credit for Grosse Pointe — knowing that the guaranty possessed a waiver of the duty or duties he now urges as a basis for discharging his liability. Briggs' knowledge and intent added to the law's recognition of such a guaranty necessitates our upholding the trial court's determination that Briggs is liable under the unlimited guaranty for Grosse Pointe's indebtedness. See Franklin National Bank of Long Island v. Palm Beach Builders, Inc., 1961, 28 Misc.2d 986, 221 N.Y.S.2d 133. To hold otherwise, this Court would permit a sophisticated guarantor knowingly to obtain extensions of credit for a debtor of the kind, form, and amount conceived and to subsequently renege on his guaranty of payment. We decline to allow one in Briggs' position to do so. Cf. Merrill Lynch, Pierce, Fenner & Smith v. Brooks, 5 Cir., 1977, 548 F.2d 615.

Insofar as Briggs' argument that some New York decisions, in recognizing the obligation of scrupulous fairness between surety-obligor, find breaches of such requirements, the Judge's findings and this total record negative the existence of any such equitable demands here. His complaint boils down to the assertion that he had to be informed of the conditions he, of all people, knew existed. It is almost to say that Crompton-Richmond had to tell him that he should not incur any further credit obligations for Grosse Pointe because if things did not work out he would owe the factor for the loss. If Crompton-Richmond did not have a duty to tell him those things, it certainly did not have to say "No".

A Charge Back Made, A Penny Saved?

Although imposition of liability in a guaranty case generally ends the dispute when the amount owed is easily ascertainable, this case, which properly should have fallen into this category, does not. Because of Crompton-Richmond's cavalier approach to discovery, it denied that it had made any charge backs10 and denied the existence of records showing charge backs. Subsequently, almost $45,000.00 of such charges was revealed. Added to this factor is the destruction of records sought by Briggs' counsel to cross-check the accuracy of Crompton-Richmond's trial proof on the extent of credit granted Grosse Pointe under the guaranty agreement.

As proof of the amount of credit factored from Grosse Pointe suppliers, Crompton-Richmond introduced into evidence computer printouts of the account supported by testimony of the appropriate Crompton-Richmond personnel. The Trial Judge accepted this evidence and utilized it to determine the extent of Briggs' liability.11

The finding of $588,907.40 as Grosse Pointe's liability was not made simply on the basis of evidence adduced at trial. After the trial's conclusion, the Trial Judge ordered further delivery of Crompton-Richmond's records to Briggs' counsel and both sides filed post argument briefs which covered this proof of the amount of liability issue. Thus Briggs had the opportunity, by using the factor's records, trial evidence, and Grosse Pointe's own records, to point out in detail the claimed errors and deficiencies. Only after this additional, post-trial discovery did the District Judge make his findings. The trial court's reliance on these records, properly admitted into evidence as business records, and the post-trial discovery was proper and the evidence sufficiently supported this finding within the standard of F.R.Civ.P. 52(a).12

Nonabusive Denial

Approximately two days prior to trial, information previously denied under oath relating to "charge backs" was revealed to be incorrect. As already indicated, $44,815.46 was charged back by Crompton-Richmond to one supplier, Delta Finishers, Inc. Because of this discovery only shortly before trial, Briggs' counsel sought a continuance so he could further investigate the existence of other charge backs and verify the amount of liability claimed by Crompton-Richmond. This request was denied by the Trial Judge.

The grant or denial of a continuance is within the sound discretion of the Trial Judge. Roberts v. Williams, 5 Cir., 1971, 456 F.2d 819, 824, cert. denied, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110; Thompson v. Fleming, 5 Cir., 1968, 402 F.2d 266, 267; Wright & Miller, Federal Practice & Procedure: Civil § 2352. Although we deplore Crompton-Richmond's attitude toward requests for information made during discovery and the filing by its counsel of statements under oath that turned out to be untrue, we find no abuse of discretion arising from the denial of Briggs' continuance motion. This is particularly true in light of the post-trial discovery and briefing ordered by the Trial Judge which fully ventilated Briggs' contentions.

AFFIRMED.