T-M Vacuum Products v. TAISC, Inc. , 336 F. App'x 441 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 1, 2009
    No. 08-20585                    Charles R. Fulbruge III
    Clerk
    T-M VACUUM PRODUCTS
    Plaintiff - Appellee
    v.
    TAISC, INC
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:07-CV-04108
    Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit
    Judges.
    PER CURIAM:*
    TAISC, a financing company, appeals the trial court’s summary judgment
    in favor of T-M Vacuum Products, Inc., a furnace manufacturer. We AFFIRM.
    This case arises from a three-party transaction to finance the sale and
    lease of two commercial furnaces. T-M agreed to deliver two furnaces to Ulba
    Metallurgical Plant Joint Stock Company (not a party to this case) by a date
    certain. TAISC functioned as the financing arm by way of a lease transaction.
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    No. 08-20585
    T-M failed to deliver the furnaces on time. However, Ulba continued to pay
    TAISC and ultimately entered into an agreement with T-M, to which TAISC was
    not a party, to extend the time for the furnace delivery. That new date was met.
    When TAISC refused to pay the remaining amounts due for the furnaces to T-M,
    T-M filed this lawsuit. The district court granted summary judgment to T-M for
    the remaining balance on the purchase price of the furnaces and refused TAISC’s
    claim for return of the payments it had already made (termed “conditional
    payments” in the contract) and interest on those payments. TAISC then filed
    this appeal.
    We review grants of summary judgments de novo. Minter v. Great Am.
    Ins. Co. of N.Y., 
    423 F.3d 460
    , 464 (5th Cir. 2005). Summary judgment is
    appropriate if, after making all inferences in favor of the non-movant, the record
    contains no genuine issue of material fact, and the movant is entitled to a
    judgment as a matter of law. F ED. R. C IV. P. 56(b); 
    Minter, 423 F.3d at 464-65
    .
    TAISC’s arguments on appeal can be summed up as follows: (1) T-M
    defaulted by its late delivery of the furnaces and, therefore, forfeited its right to
    payment of the purchase price balance; and (2) TAISC is entitled to interest on
    the conditional payments it made to T-M for the time period between the original
    delivery date and the actual delivery date. Both parties agree that Texas law
    applies to our analysis.
    It is unnecessary to decide whether T-M’s original late delivery constitutes
    an event of default under the parties’ contract, because we conclude that
    TAISC’s continued acceptance of performance under the financing contract
    prevented TAISC from using the default as an excuse for its own
    nonperformance. See Gupta v. E. Idaho Tumor Inst., Inc., 
    140 S.W.3d 747
    , 756
    (Tex. App. -- Houston [14th Dist.] 2004, pet. denied).1 As the district court
    1
    While this arrangement was nominally structured as a sale and lease of goods, the
    district court analyzed it as a financing transaction, and that is indeed the essence of the
    2
    No. 08-20585
    correctly explained, T-M’s delay did not excuse TAISC’s performance because
    TAISC continued to pay T-M and accept lease payments from Ulba. Texas law
    is clear that, “[i]f the non-breaching party elects to treat the contract as
    continuing and insists the party in default continue performance, the previous
    breach constitutes no excuse for nonperformance on the part of the party not in
    default and the contract continues in force for the benefit of both parties.” 
    Id. Despite its
    demand letter, TAISC’s actions did not treat T-M as being in
    default after the original failure to timely deliver. T-M’s delay in delivery
    provided TAISC or Ulba with the opportunity to cancel the contracts by their
    own terms. Both declined to do so, instead treating T-M’s obligations to deliver
    the furnaces as continuing. TAISC continued to make payments to T-M for
    nearly four months after notifying T-M of its “defaults,” T-M manufactured and
    delivered the furnaces, Ulba accepted them, and Ulba made the lease payments
    to TAISC. After electing to continue contract performance, TAISC cannot now
    rely on T-M’s initial delay as an excuse for the failure to make full payment. For
    the same reason, we also agree with the district court’s decision regarding
    interest on the conditional payments. TAISC also has failed to establish that it
    was damaged by any delay.
    Accordingly, the district court’s judgment is AFFIRMED.
    agreement between TAISC, T-M, and Ulba. Thus, like the parties and the district court, we
    analyze it as such.
    3
    

Document Info

Docket Number: 08-20585

Citation Numbers: 336 F. App'x 441

Judges: Haynes, Higginbotham, Jones, Per Curiam

Filed Date: 7/1/2009

Precedential Status: Non-Precedential

Modified Date: 8/2/2023