Vintero Corp. v. Corporacion Venezolana De Fomento, 739

• Citation: 675 F.2d 513
• Decision Date: 02 April 1982
• Docket Number: D,No. 739,739
• Parties: VINTERO CORPORATION, Appellee, v. CORPORACION VENEZOLANA DE FOMENTO, Appellant. ocket 81-5018.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 513

675 F.2d 513

VINTERO CORPORATION, Appellee, v. CORPORACION VENEZOLANA DE FOMENTO, Appellant.

No. 739, Docket 81-5018.

United States Court of Appeals Second Circuit.

Argued Feb. 4, 1982.

Decided April 2, 1982.

Glen T. Oxton, Healy & Baillie, New York City (Elisa M. Pugliese, New York City, of counsel), for appellant.

Neal M. Rosenbloom, Finkel, Goldstein & Berzow, New York City (Harvey L. Goldstein, New York City, of counsel), for appellee.

Before OAKES and VAN GRAAFEILAND, Circuit Judges, and BARTELS, District Judge. ^*

PER CURIAM:

The Vintero Corporation (Vintero), a Chapter XI debtor, brought an adversary proceeding in bankruptcy court in the Southern District of New York against Corporacion Venezolana de Fomento (CVF) and Venezolane de Cruceros del Caribe (Cariven) to determine the validity and priority of their creditors' liens on the S.S. Santa Rosa. Vintero moved for summary judgment, claiming, first, that the ship was collateral customarily used in more than one jurisdiction and that the creditors had failed to take the steps necessary under the Uniform Commercial Code (U.C.C.) to perfect security interests in such collateral. Second, Vintero argued that the security interests became unperfected in any event when the creditors failed to refile in Maryland within four months after the vessel was moved there from Virginia.

In opposition to Vintero's motion CVF argued in point I of its memorandum of law that Cariven had beneficial title to the ship because Vintero, in purchasing the Santa Rosa, had acted as Cariven's agent. In point II CVF asserted that Vintero had breached its contract with Cariven but that Cariven had substantially performed. Point III stated that because Vintero's principal DeLyra had perpetrated a fraud on CVF and Cariven as alleged in a separate action, ¹ Vintero should be deemed a trustee holding the ship for the benefit of Cariven.

Bankruptcy Judge Lewittes granted Vintero's motion for summary judgment on the four-month refiling issue. He found that CVF had presented no material facts challenging Vintero's ownership of the vessel, and that under the U.C.C. the creditors' security interests were unperfected and subordinate to Vintero's status as a debtor in possession. On appeal to the district court CVF's brief presented two arguments: (1) a constructive trust should be imposed in favor of CVF on Vintero's title to the Santa Rosa because Vintero would be unjustly enriched by retaining both the purchase money and the vessels, and (2) a contractual term should be implied in law into the Cariven-Vintero contract transferring title from Vintero to Cariven to prevent unjust enrichment. CVF did not contest the bankruptcy court's interpretation of the U.C.C. Vintero cross-appealed, challenging the bankruptcy court's rejection of its argument that the ship was collateral customarily used in more than one jurisdiction on which the creditors had failed to perfect their security interests. The United States District Court for the Southern District of New York, Lawrence W. Pierce, Judge, affirmed the bankruptcy court's decision, finding that the cross-appeal was meritless and that CVF had not raised its equitable arguments before Judge Lewittes so could not raise them in the appellate court. CVF appeals, and we reverse.

A party who has not raised an issue below "is precluded from raising it for the first time on appeal." Schwimmer v. Sony Corp. of America, 637 F.2d 41, 49 (2d Cir. 1980). Arguments made on appeal need not be identical to those made below, however, if the elements of the claim were set forth and additional findings of fact are not required. Higginbotham v. Ford Motor Co., 540 F.2d 762, 768 n.10 (5th Cir. 1976); Maynard v. General Electric Co., 486 F.2d 538, 539 (4th Cir. 1973). Therefore when a party raises new contentions that involve only questions of law, an appellate court may consider the new issues. Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693-94 (9th Cir. 1980); Foster v. United States, 329 F.2d 717, 718 (2d Cir. 1964). See also North American Leisure Corp. v. A & B Duplicators, Ltd., 468 F.2d 695, 699 (2d Cir. 1972). That is the situation here.

While CVF did not use the words "unjust enrichment" before the bankruptcy court, it did contend that a constructive trust should be imposed. CVF's constructive-trust argument before the district court was in reality no more than a rewording of points I and III of its bankruptcy-court brief. Point I had urged the court to find that under the contract between Vintero and Cariven, Vintero was an agent and title was in Cariven. Point III...