Tri-Crown, Inc. v. American Federal Sav. & Loan Ass'n

• Decision Date: 11 July 1990
• Docket Number: INC,No. 89-1124,TRI-CROW,89-1124
• Citation: 908 F.2d 578
• Parties: , 1990-2 Trade Cases 69,159 ; John Ventimiglia; WVS Investment Joint Venture; Richard Walker; Lee E. Pittle; Michael Stanley, Plaintiffs-Appellants, v. AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION; AmFed Financial Corp.; Centurion Development Corp., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 578

908 F.2d 578

59 USLW 2070, 1990-2 Trade Cases 69,159

TRI-CROWN, INC.; John Ventimiglia; WVS Investment Joint Venture; Richard Walker; Lee E. Pittle; Michael Stanley, Plaintiffs-Appellants, v. AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION; AmFed Financial Corp.; Centurion Development Corp. Defendants-Appellees.

No. 89-1124.

United States Court of Appeals Tenth Circuit.

July 11, 1990.

Patrick J. Canty of Bruce Wright P.C., Colorado Springs, Colo., for plaintiffs-appellants Tri-Crown, Inc. and WVS Inv. Joint Venture.

J. Gregory Walta, Colorado Springs, Colo., for plaintiff-appellant John M. Ventimiglia.

Dan S. Hughes of Trott, Kunstle & Hughes, Colorado Springs, Colo., for plaintiff-appellant Michael F. Stanley.

Richard L. Walker, pro se.

Lee E. Pittle, pro se.

Gregory B. Kanan and Elizabeth T. Wald of Rothgerber, Appel, Powers & Johnson, Denver, Colo., for defendants-appellees American Federal Sav. & Loan Ass'n and Centurion Development Corp.

Bruce N. Warren of Hecox, Tolley, Keene & Beltz, P.C., Colorado Springs, Colo., for defendant-appellee AmFed Financial Corp.

Before ANDERSON, BARRETT and BALDOCK, Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiffs-appellants instituted the underlying action against defendants-appellees to recover damages for an alleged violation of the antitying provisions of the Thrift Institutions Restructuring Act (TIRA), 12 U.S.C. Sec. 1464(q)(1). The district court dismissed plaintiffs' case under Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

I.

As an initial matter, we must address defendants' contention that we lack jurisdiction over this appeal because plaintiffs' notice of appeal failed to "specify the party or parties taking the appeal" as required by Fed.R.App.P. 3(c).

The purpose of the specificity requirement of Rule 3(c) is to provide notice both to the opposition and to the court of the identity of the appellant or appellants.... The specificity requirement of Rule 3(c) is met only by some designation that gives fair notice of the specific individual or entity seeking to appeal.

Torres v. Oakland Scavenger Co., 487 U.S. 312, 318, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285, 292 (1988). Failure to comply with the specificity requirement constitutes a jurisdictional bar to an appeal. Id.

Plaintiffs' notice of appeal named each plaintiff in the caption and recited in the body of the notice: "Notice is hereby given that the Plaintiffs above-named hereby appeal to the United States Court of Appeals from (sic) the Tenth Circuit from the Order of Dismissal entered in this action on the 12th day of April 1989." The notice also contained separate signature blocks for each plaintiff or his attorney.

Defendants argue that the notice of appeal does not comply with Rule 3(c) because "the litigants are not named in the body of the notice and Appellants' reference to 'Plaintiffs above-named' is ... misleading.... It is a generic reference that does not specify which of the plaintiffs named in the caption are also appellant parties." Memorandum Brief in Support of Dismissal of Appeal at 4. We disagree.

The caption of the notice of appeal named each plaintiff specifically, and the body of the notice incorporated the caption by reference. "[T]he intent to appeal of the part[ies] named in the caption was manifest from a reading of the body of the notice of appeal and the caption." Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1116 (1st Cir.1989). We agree with the First Circuit that "[t]he caption should be looked at as part of the entire notice." Id. In this case, the existence of a signature block for each plaintiff also clearly indicated which parties were appealing. Under the circumstances, we hold that plaintiffs' notice of appeal was sufficient "to provide notice both to the opposition and to the court of the identity of the appellant or appellants." Torres, 487 U.S. at 318, 108 S.Ct. at 2409, 101 L.Ed.2d at 292. We therefore have jurisdiction over plaintiffs' appeal.

II.

The antitying provisions of the TIRA provide as follows:

(1) An association shall not in any manner extend credit, lease, or sell property of any kind, or furnish any service, or fix or vary the consideration for any of the foregoing, on the condition or requirement--

(A) that the customer shall obtain additional credit, property, or service from such an association, or from any service corporation or affiliate of such association, other than a loan, discount, deposit, or trust service;

(B) that the customer provide additional credit, property, or service to such association, or to any service corporation or affiliate of such association, other than those related to and usually provided in connection with a similar loan, discount, deposit, or trust service; and

(C) that the customer shall not obtain some other credit, property, or service from a competitor of such an association, or from a competitor of any service corporation or affiliate of such association, other than a condition or requirement that such association shall reasonably impose in connection with credit transactions to assure the soundness of credit.

12 U.S.C. Sec. 1464(q)(1). An "association" under the TIRA is "a Federal savings and loan association or a Federal savings bank chartered by the [Federal Home Loan Bank] Board under [12 U.S.C.] section 1464." 12 U.S.C. Sec. 1462(d). Although the three subsections of section 1464(q)(1) set forth above are listed in the conjunctive, they are interpreted in the disjunctive, i.e., a complaint need only allege a violation of one of the subsections to state a claim for relief. Bruce v. First Fed. Sav. & Loan Ass'n of Conroe, Inc., 837 F.2d 712, 717 (5th Cir.1988).

Plaintiffs alleged in their complaint the following pertinent facts. In 1985, Tri-Crown, Inc. and WVS Investment Joint Venture (WVS) ¹ applied for and received from American Federal Savings and Loan (American Federal) two loans for the acquisition of thirty-eight acres in Colorado Springs, Colorado, for a project known as "Centennial West." Messrs. Ventimiglia, Stanley, Pittle, and Walker personally guaranteed the acquisition loans. Centennial West was to be built in two phases, the first of which was to be the "Shoppette." Plaintiffs built the Shoppette in 1986 using a construction loan from American Federal. The second phase (Phase II) was to be a shopping center, the anchor tenants of which were to be Albertson's Food Store (Albertson's) and Longs Drug Store (Longs).

In November of 1985, Tri-Crown, Albertson's, and Longs signed a joint development agreement which, among other things, obligated Tri-Crown to commence construction of Phase II within ninety days after Longs and Albertson's issued notices to proceed, so long as the notices were issued within three years of execution of the joint development agreement. Plaintiffs alleged that beginning in 1985 and continuing thereafter, American Federal repeatedly assured plaintiffs it would provide the construction financing for Phase II.

In 1987, one or more agents of American Federal began urging Mr. Walker to push Albertson's and Longs to issue the notices to proceed so that construction of Phase II could begin. Mr. Walker advised the agents that he would do so but that American Federal must be prepared to advance construction money shortly thereafter since Tri-Crown was obligated to commence construction within ninety days of the notices to proceed. Mr. Walker also advised the agents that American Federal must be prepared to back the project fully once Albertson's and Longs committed themselves to construction. Plaintiffs alleged that an agent of American Federal repeatedly assured Messrs. Walker and Pittle that American Federal supported the project and would be ready to fund the construction.

In January of 1988, Albertson's indicated it was ready to proceed with construction and wanted to move in by Thanksgiving. In July of 1988, Albertson's and Longs both issued formal notices to proceed. At American Federal's insistence, WVS was restructured in July to make Mr. Ventimiglia the sole managing partner, with whom American Federal could negotiate all loans. Plaintiffs specifically alleged that "[i]n July of 1988, all details of all loans had been negotiated and the parties were ready to extend all loans, except that the amount to be guaranteed by Ventimiglia had not yet been set." Rec. Vol. I, Doc. 1, at 4. Plaintiffs further alleged: "In meetings from July through September, 1988, American Federal repeated that it was prepared to close, if the guarantee of Ventimiglia was signed." Id.

Also in July, immediately after Albertson's and Longs issued their notices to proceed, an agent for Centurion, an affiliate of American Federal, ² approached a partner of Mr. Ventimiglia and proposed that their partnership assume certain nonperforming loans held by American Federal. Mr. Ventimiglia and his partners ultimately refused to assume these loans. They conveyed their decision to American Federal on August 27, 1988. Plaintiffs alleged that in retaliation for Mr. Ventimiglia's refusal to assume American Federal's loans, beginning on September 1, 1988, American Federal made additional demands for collateral from plaintiffs which it knew plaintiffs could not meet. Plaintiffs further alleged that "[b]y refusing to advance construction funds to Plaintiffs unless other non-performing loans of American Federal were assumed by Ventimiglia and other of his partners, and knowing Plaintiffs have no other financing available, American Federal is forcing Tri-Crown to default upon the Joint Venture Agreement." Id. at 5. Plaintiffs alleged that the foregoing actions of defendants violated the provisions of 12 U.S.C. Sec. 1464(q)...