Crocker Nat. Bank v. Ideco Div. of Dresser Industries, Inc.
| Decision Date | 15 March 1988 |
| Docket Number | No. 87-2634,87-2634 |
| Parties | 5 UCC Rep.Serv.2d 755 CROCKER NATIONAL BANK, Plaintiff-Appellant, and T.O.S. Industries, Inc., Intervenor-Appellant, v. IDECO DIVISION OF DRESSER INDUSTRIES, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ann Spiegel, Tim S. Leonard, H. Victor Thomas, Kirklin, Boudreaux & Joseph, Houston, Tex., for T.O.S. Industries, Inc. & Crocker Nat. Bank.
James R. O'Donnell, Kevin F. Risley, Butler & Binion, Houston, Tex., for defendant-appellee.
Appeals from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, BRIGHT, * Senior Circuit Judge, and GEE, Circuit Judge.
I. BACKGROUND
In this case we determine the security interests, and their relative priority, of appellee Ideco Division of Dresser Industries, Inc. (Seller), the unpaid seller-manufacturer of drilling rigs; appellant T.O.S. Industries, Inc. (Buyer), who agreed to purchase the drilling rigs; and appellant Crocker National Bank (Bank), the holder of a security interest in the Buyer's inventory.
Sometime in 1981, the Buyer agreed to purchase forty drilling rigs, their engines and control units, from the Seller. In January 1982, the Buyer informed the Seller that it did not need the rigs. The Seller, however, informed the Buyer that it was too far along in the manufacture of six of the rigs to cancel the order and that the Buyer would have to purchase these six rigs. The Seller continued to send invoices for the goods to the Buyer. These invoices stated that the goods were to be "held for shipping instructions" and contained an F.O.B. point of shipment term. The Seller In July 1982, the Seller stopped sending invoices for the six rigs and issued credit memoranda reflecting the cancellation of the Buyer's indebtedness and executed a mutual release with the Buyer whereby each party released the other from all contractual obligations arising from the sale of the six rigs. 1 At that time the Seller's books showed an increase in inventory and a decrease in accounts receivable. Approximately one month later, the Buyer filed for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. Secs. 1101, et seq.
retained possession of the rigs. The Seller accounted for the rigs as a sale and, accordingly, its records showed an increase in accounts receivable and a decrease in inventory.
In May of the following year, the Bank filed its complaint in the district court, based on diversity of citizenship, 28 U.S.C. Sec. 1331, asserting that it is entitled to recover the rigs, engines and control units from the Seller on the basis of a security interest in the inventory of the Buyer which it had perfected by the filing of financing statements. The Buyer moved to intervene, asserting that as debtor in possession it might avoid its transfer of the goods to the Seller.
Both the Bank and the Seller filed motions for summary judgment, each asserting a perfected security interest in the goods entitled to preference. The Honorable Lynn N. Hughes, United States District Judge for the Southern District of Texas, 660 F.Supp. 192, granted summary judgment in favor of the Seller, holding that the Seller's perfected purchase money security interest prevails over any interest held by the Bank. The court further held that the Buyer never possessed sufficient rights in the goods to convey a security interest to the Bank. Finally, the district court concluded that neither the Buyer nor the Bank acquired any interest superior to that of the Seller in the engines, which had been shipped to a third party, Continental Drilling Company.
This appeal followed.
II. DISCUSSION
Summary judgment shall be granted only when the moving party establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In reviewing an order granting summary judgment we must consider the evidence in the light most favorable to the party opposing the motion, McPherson v. Rankin, 736 F.2d 175, 177-78 (5th Cir.1984), aff'd, --- U.S. ----, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), and resolve all reasonable inferences in his favor, Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.1985). In this case, the relevant facts are not disputed but the parties reach differing legal conclusions on those facts.
The Seller contends that it retained an interest in the rigs superior to any interest possessed by the Buyer or the Bank by virtue of its continued possession of the rigs.
A seller who retains title to goods retains a security interest in those goods. Sec. 2.401. 2 A security interest in goods obtained through continued possession by a seller for the purpose of securing the purchase price of the goods is a purchase money security interest. Sec. 9.107. This security interest is perfected by the seller's continued possession of the goods. Sec. 9.305. 3 Thus, so long as the Seller retains possession of the rigs in order to secure payment by the Buyer, its security interest remains perfected.
The Buyer and the Bank argue, however, that while the Seller retained physical possession of the rigs, the Buyer acquired constructive possession of them which served to oust the Seller of its security interest.
The Buyer and the Bank rely on the Code's "present sale" concept to support their argument.
Unless otherwise explicitly agreed, title to goods generally passes to the buyer when the seller completes his performance with reference to physical delivery of the goods. Sec. 2.401(b). Section 2.401(c) contemplates an agreement that delivery shall take place without moving the goods. See Borg-Warner Acceptance Corp. v. Massey-Ferguson, 713 S.W.2d 351, 353 (Tex.Ct.App.1985). The Buyer and the Bank rely on this latter section. They argue that the notation on the rig invoices to "hold for shipping instructions" evidence the agreed intent of Buyer and Seller that title shall pass at the time the rigs are identified to the contract and without physical delivery of them.
We reject this contention. The record unequivocally demonstrates that the parties never agreed to transfer title other than by delivery. The Code makes clear that the F.O.B. term is a delivery term, Sec. 2.319(a), and that F.O.B. point of manufacture indicates that the seller must place the rigs in the hands of a common carrier at the point of manufacture. Sec. 2.319(a)(1). Thus, the terms of the invoice oblige the Seller to deliver the rigs to a carrier. Title, therefore, passes only when that delivery obligation is met. Sec. 2.401(b). 4
The notation "hold for shipping instructions" does not conflict with the F.O.B. term. Whenever a sales agreement contains an F.O.B. term, except when the term is F.O.B. destination, the buyer must seasonably provide the seller with any needed shipping instructions. Sec. 2.319(c). The "hold for shipping instructions" notation simply recognizes the buyer's "obligation of cooperation," comment 3 to Sec. 2.319, with the seller. Those instructions, without more, do not effect the transfer of title of the goods to the Buyer.
The Buyer and the Bank attempt to negate the effect of the F.O.B. term by pointing to the Buyer's business practice of storing its inventory with its seller until a resale buyer is found. This practice, they contend, at least creates a genuine issue of material fact as to whether a present sale was intended. The proffered evidence, however, relates to circumstances surrounding the Buyer's transactions with other parties, not the arrangement between these parties. Thus, we reject this contention of the Buyer and the Bank.
The Buyer and the Bank also attempt to negate the F.O.B. term by referring to the Seller's accounting records reflecting an increase in its accounts receivable and a decrease in its inventory upon invoicing. These record transactions do not determine title. They represent bookkeeping procedures performed by the accounting department which do not negate the express delivery term of the agreement.
The district court therefore properly concluded under the undisputed evidence that no present sale occurred and that title to the rigs remained with Buyer.
The Buyer and the Bank argue in the alternative that the Buyer obtained rights in the rigs sufficient to transfer a security interest to the Bank.
A security interest attaches and is enforceable against the debtor and third parties when (1) the collateral is in the possession of the secured party or the debtor has signed a security agreement containing a description of the collateral; (2) value has been given; and (3) the debtor has rights in the collateral. Sec. 9.203(a). Here Buyer signed a security agreement with the Bank whereby the Bank obtained a security interest in the Buyer's inventory. In return, the Bank advanced funds to the Buyer.
When goods are identified to a contract, a buyer acquires a special property and insurable interest in those goods. Secs. 2.401(a), 2.501. The Buyer and the Bank argue that the special property interest which the Buyer acquired by identification of the six rigs to the contract constitutes a sufficient right in the collateral to permit the Bank's security interest to attach to the rigs.
The Uniform Commercial Code does not define the term special property interest. However, comment 3 to Sec. 2.401 indicates that the special property interest is not a security interest but essentially relates to a purchaser's remedial rights. "[I]ts incidents are defined in provisions of the Article such as those on the rights of the seller's creditors, on good faith purchase, on the buyer's right to goods on the seller's insolvency, and on the buyer's right to specific performance or replevin."
The Buyer and the Bank argue that because Sec. 9.203 does not specify any minimum quantum of rights in the collateral that must be held...
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