Equilease Corp. v. State Federal Sav. and Loan Ass'n

• Decision Date: 08 May 1981
• Docket Number: No. 79-1594,79-1594
• Citation: 647 F.2d 1069
• Parties: EQUILEASE CORPORATION, Plaintiff-Appellant, v. STATE FEDERAL SAVINGS AND LOAN ASSOCIATION, a Federal Savings and Loan Association, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1069

647 F.2d 1069

EQUILEASE CORPORATION, Plaintiff-Appellant, v. STATE FEDERAL SAVINGS AND LOAN ASSOCIATION, a Federal

Savings and Loan Association, Defendant-Appellee.

No. 79-1594.

United States Court of Appeals, Tenth Circuit.

Argued March 16, 1981.

Decided May 8, 1981.

John B. Wimbish of Ungerman, Conner, Little, Ungerman & Goodman, Tulsa, Okl., for plaintiff-appellant.

John Henry Rule, II, Tulsa, Okl. (Richard W. Gable, Tulsa, Okl., with him on brief) of Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., for defendant-appellee.

Before HOLLOWAY, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

This is an appeal from summary judgment granted to State Federal Savings and Loan Association (State Federal), defendant below, in an action brought by Equilease Corporation (Equilease), plaintiff below, seeking damages in amount of $42,000.00, together with interest, costs and attorney fees. Federal jurisdiction vests by virtue of diversity of citizenship.

Upon review of grant of summary judgment, the appellate court must be guided by the principle that summary judgment cannot be granted unless the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.Rules Civ.Proc., rule 56(c), 28 U.S.C.A.; Cayce v. Carter Oil Co., 618 F.2d 669 (10th Cir. 1980); Madison v. Deseret Livestock Company, 574 F.2d 1027 (10th Cir. 1978); Mustang Fuel Corporation v. Youngstown Sheet & Tube Company, 516 F.2d 33 (10th Cir. 1975). Pleadings and documentary evidence must be construed liberally in the light most favorable to the party opposing the motion. National Aviation Underwriters, Inc. v. Altus Flying Service, Inc., 555 F.2d 778 (10th Cir. 1977); Harman v. Diversified Medical Investments Corporation, 488 F.2d 111 (10th Cir. 1973), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1976). With these standards guiding us, we will review the undisputed facts.

On October 31, 1973, Equilease leased seven trucks to Henry Oil Company, Inc. (Henry Oil). The lease was secured by six savings certificates, each in amount of $7,000.00, issued by State Federal to Henry Oil. These certificates were pledged and delivered to Equilease by Henry Oil on November 12, 1973.

Henry Oil subsequently encountered financial straits and on December 13, 1974, representatives of Henry Oil notified State Federal that the six savings certificates had been lost and that Henry Oil desired to effect an early withdrawal of the funds. On December 16, 1974, Henry Oil was permitted by State Federal to withdraw the entire amount of the deposits represented by the six certificates. At that time, State Federal had not been notified of the pledge agreement between Equilease and Henry Oil and had not acknowledged in writing notice of the pledge of the six savings certificates. On May 27, 1975, Henry Oil defaulted on one of its leases with Equilease, and it was then that Equilease discovered for the first time that Henry Oil had withdrawn the funds pledged.

In its complaint, Equilease alleged two causes of action against State Federal. The fifth cause of action alleged that State Federal was negligent and failed to exercise due care and due diligence in protecting Equilease as the true owner and holder of the savings certificates in that State Federal permitted Henry Oil to receive cash representing the value of the savings certificates without first presenting the certificates and the passbooks issued with the certificates. The fourth cause of action alleged that inasmuch as Equilease was the true owner and holder of the savings certificates and passbooks by virtue of the pledge by Henry Oil, State Federal violated the express terms of the certificates by allowing Henry Oil to withdraw the funds without first presenting the passbooks. Further, Equilease alleged that because it was in possession of the passbooks (and certificates) it was entitled to receive the payment.

District Court's Order

Following completion of all pleadings and based upon the pleadings, affidavit, admissions, response to interrogatories, and briefs of the parties, the District Court granted State Federal's motion for summary judgment.

The Court found/ruled that both the fourth and fifth causes of action, supra, sound in negligence and if Equilease's security was damaged by State Federal, same occurred in December of 1974 when the funds were withdrawn. Accordingly, based on lack of allegation of fraudulent concealment by State Federal that the funds had been withdrawn, the two-year statute of limitations prescribed under Title 12 Okla.St.Ann. § 95 barred the causes of action. Specifically, the Court succinctly reasoned/ruled:

The funds in question were paid to Henry Oil in accordance with the provisions of Title 12 C.F.R. § 545.2(c), which provides in part as follows:

"(c) Ownership of record. A Federal association may treat the holder of record of a savings account as the owner for all purposes without being affected by any notice to the contrary unless such Federal association has acknowledged in writing notice of a pledge of such savings account."

As previously stated, State Federal had no notice of the pledge of the certificates at the time of the withdrawal of the funds, and it was therefore entitled to treat the holder of record, Henry Oil, as the owner for the purpose of paying the funds represented by the savings certificates. Plaintiff argues that Title 12 C.F.R. § 545.2(d) imposed an affirmative duty upon State Federal to obtain an affidavit from Henry Oil, stating that the certificates had not been pledged, before paying the funds to it. Section 545.2(d) provides:

"(d) Duplicate account books and certificates. Upon filing with a Federal association by the holder of record as shown by the books of the association, or by his legal representative, of an affidavit to the effect that the certificate or account book evidencing his savings account with the association has been lost or destroyed, and that such certificate or account book has not been pledged or assigned in whole or in part, such Federal association shall issue a new certificate or account book evidencing such savings account in the name of the holder of record: Provided, That the board of directors shall, if in its judgment it is necessary, require a bond in an amount sufficient to indemnify the association against any loss which might result from the issuance of such new certificate or account book."

The regulation therefore specifies the procedure to be followed in the event such an affidavit is filed by the holder of record. No such affidavit was filed in this case, and, consequently, § 545.2(d) is not applicable. In any event, because the regulation does not create a liability for its violation, plaintiff's reliance on it can only be for the purpose of establishing a duty on the part of State Federal, the breach of which allegedly caused its loss. Therefore, both the fourth and fifth causes of action sound in negligence.

As one of the grounds for its motion for summary judgment, State Federal contends that plaintiff's fourth and fifth causes of action are barred by the applicable statute of limitations. The statutory period within which an action sounding in negligence must be brought is two years. Title 12 O.S. § 95. In Oklahoma,

" a statute of limitations begins to run when a cause of action accrues, and a cause of action accrues at the time when a plaintiff first could have maintained his action to a successful conclusion." Oklahoma Brick Corp. v. McCall, 497 P.2d 215 (Okl.1972).

Plaintiff argues that the statute did not begin to run until May of 1975, when it first learned that the funds had been withdrawn by Henry Oil. However,

"(a)s a general rule, the mere ignorance of the existence of a cause of action or the facts constituting a cause of action on the part of a person in whom a cause of action lies will not toll its running. This rule applies unless a statute specifically provides that the limitations do not begin to run until the person in whom the cause of action lies has actual knowledge of it, or unless there has been a fraudulent concealment of the cause of action on the part of the person against whom it lies." Knudson v. Weeks, 394 F.Supp. 963, 971 (W.D.Okla.1975).

The statute applicable to this case does not require such actual notice, and there is no allegation or indication of any fraudulent concealment by State Federal of the fact that the funds had been withdrawn. If the plaintiff's security was damaged, such damage occurred when the funds were withdrawn in December of 1974. Plaintiff's cause of action accrued at that time. Under the circumstances of this case, the fact that plaintiff was not aware of its injury until some five months later is immaterial to a determination of when the statute of limitations began to run. The present action was filed on January 31, 1977, more than two years after the statute began to run in December, 1974. Plaintiff's fourth and fifth causes of action are therefore barred by the statute of limitations.

For the foregoing reasons, it is hereby ordered that plaintiff's motion for summary judgment on its fourth cause of action is hereby overruled, and State Federal's motion for summary judgment on plaintiff's fourth and fifth causes of action is hereby sustained.

(R., Vol. I, at pp. 126-128).

Contentions on Appeal

On appeal, Equilease contends that the District Court erred in (1) finding that its fourth cause of action was barred by the two year (tort) statute of limitations inasmuch as it did not sound in tort, and (2) failing to find as a matter of law that it was entitled to summary judgment.

Our Disposition

Equilease argues that when Henry Oil breached the terms (non payment of rental) of one of the lease agreements entered into...