Cardinal Health 110 v. Cyrus Pharmaceutical ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3619/08-1200
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Cardinal Health 110, Inc., *
formerly known as Whitmire *
Distribution Corporation, *
*
Appellee, *
*
v. *
*
Cyrus Pharmaceutical, LLC, * Appeal from the United States
also known as Cyrus Pharmaceutical * District Court for the
Co., LLC, doing business as * Western District of Missouri.
Cyrus Pharmacy; Kian Shafe; *
Judith J. Shafe, *
*
Appellants, *
*
Kendallwood Investment, LLC; *
Kendallwood Retirement Homes, Inc., *
*
Defendants. *
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Submitted: October 17, 2008
Filed: March 31, 2009
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Before RILEY, BOWMAN, and COLLOTON, Circuit Judges.
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RILEY, Circuit Judge.
Cardinal Health 110, Inc. (Cardinal) sued Cyrus Pharmaceutical, LLC (Cyrus),
Judith Shafe (Ms. Shafe) and Kian Shafe (Mr. Shafe) (collectively, Shafes),
Kendallwood Investment, LLC (KI), and Kendallwood Retirement Homes, Inc. (KRH)
based upon a Credit Application and Agreement (Credit Agreement) for Cardinal’s sale
of pharmaceuticals to Cyrus. The district court1 granted Cardinal summary judgment
on claims of breach of contract, breach of guarantee, and action on account, and
awarded Cardinal costs and attorney fees. Cyrus and the Shafes now appeal. We
affirm.
I. BACKGROUND
In 2001, Cardinal and Cyrus entered into a contract in which Cardinal agreed to
supply pharmaceuticals to Cyrus’s nursing homes. The contract provided a security
agreement for Cardinal. By January 2006, Cyrus owed Cardinal $135,000 on the
contract. In light of this outstanding balance, Cardinal and Cyrus renegotiated their
agreement by executing (1) a letter agreement extending the time for Cyrus to pay the
outstanding $135,000 (Dating Agreement), and (2) a Credit Agreement.
Under the Dating Agreement, Cardinal agreed “to provide [Cyrus] with extended
dating for a period of six (6) months in order to assist [Cyrus] in the expansion of its
current business operations and assist with the impact of the new Medicare part D
program.” In return, Cyrus agreed to make payments of $45,000 each on May 15,
2006; June 15, 2006; and July 15, 2006. The Shafes accepted the Dating Agreement
by signing it as the “owner/President” of Cyrus. Although the Shafes did not date their
1
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
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signatures on the Dating Agreement, the record before us places the Dating Agreement
execution between January 20, 2006, and January 31, 2006.2
Under the Credit Agreement, Cardinal agreed to supply pharmaceuticals to
Cyrus on credit. However, the Credit Agreement involved three provisions in the event
Cyrus failed to pay on the credit. First, Cyrus agreed to “pay all out-of-pocket
expenses, including attorneys’ fees and disbursements, incurred by Cardinal to collect
any amounts due under [the Credit Agreement] or to otherwise enforce any of the terms
of [the Credit Agreement].” Second, Cyrus granted Cardinal a security interest in all
of Cyrus’s “goods, equipment, inventory, accounts, accounts receivable and all general
intangibles, books and records, computer programs and records, and other personal
property, tangible or intangible, related to the foregoing.” Finally, the Credit
Agreement provided a section entitled “Guarantee” which set forth the following:
The undersigned Principal(s) of Applicant, by reason of their interest in
Applicant and as an inducement for Cardinal Health to extend credit to
Applicant, hereby jointly and severally, irrevocably, and unconditionally
guarantee to Cardinal Health and it subsidiaries, affiliates and successors
(each a Guarantee Party) and assigns the prompt and full payment (and
not merely the ultimate collectability) and performance of all obligation
of Applicant to each Guaranteed Party, whether now existing or hereafter
arising. The undersigned authorize Cardinal Health to verify this
information and/or additional information by obtaining data from a credit
reporting agency. If Applicant or its business is hereafter sold, this
guaranty shall continue to all credit hereafter made available to that
Applicant or its business (as the case may be) until such time as Cardinal
Health has received 5 days advanced written notice (via certified mail,
return receipt requested) that Applicant and/or Principal(s) will no longer
2
The Dating Agreement states it applies to invoices up to January 20, 2006.
Cardinal’s Manager of Underwriting testified, and Cyrus and the Shafes admitted, the
Dating Agreement was negotiated in January 2006, which would require execution by
January 31, 2006.
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be responsible for credit thereafter made available with the respect to that
Applicant or its business.
THE UNDERSIGNED ACKNOWLEDGES THAT HIS/HER
INDIVIDUAL CREDIT HISTORY MAY BE A FACTOR IN THE
EVALUATION OF THE CREDIT HISTORY OF THE APPLICANT
AND HEREBY CONSENTS AND AUTHORIZES THE USE OF A
CONSUMER CREDIT REPORT ON THE UNDERSIGNED BY
CARDINAL HEALTH FORM TIME TO TIME AS CARDINAL
HEALTH MAY DEEM NECESSARY IN ITS CREDIT
EVALUATIONS.
(spelling and grammar unaltered).
The Credit Agreement was executed on January 25, 2006, through three sets of
signatures by both Ms. Shafe and Mr. Shafe. The first set of signatures were styled as
an “Authorized Signature” which accepted the terms of the Credit Agreement,
including the expenses and attorney fees provision, on behalf of Cyrus. The second
set of signatures authorized Cardinal’s security interest in Cyrus’s goods and was
executed as Cyrus’s “owner/President.” The third set of signatures executed the
guarantee and was signed “By” the Shafes as “Principals.”
In reliance on the Dating Agreement and Credit Agreement, Cardinal continued
to fill Cyrus’s orders. Cyrus never paid the Dating Agreement payments, and failed
to pay Cardinal for the new orders. As a result, Cardinal sued Cyrus and the Shafes
asserting claims of breach of contract against Cyrus, breach of guarantee against the
Shafes, action on account against Cyrus, fraud against Cyrus, and alter ego against KI
and KRH.
Cardinal moved the district court for partial summary judgment on the breach
of contract, breach of guarantee, and action on account claims. On June 20, 2007, the
district court granted the motion finding (1) the Credit Agreement and Dating
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Agreement were one valid contract which made Cyrus liable on the contract and
account, and (2) the Shafes were personally liable for all Cyrus’s debt because the
“Guarantee” was unambiguous, signed by the Shafes in their personal capacity,
supported by consideration, and valid. Cardinal then moved the district court to
dismiss Cardinal’s remaining two claims without prejudice, and the district court
granted the motion on October 31, 2007. That same day, an entry was made on the
case’s docket which read: “(Court only) ***Civil Case Terminated. (Morse, Judy)
(Entered: 10/31/2007).”
On November 15, 2007, Cyrus and the Shafes filed a notice of appeal on the
partial summary judgment motion, stating final judgment in the case had been entered
on October 31, 2007. Five days later, on November 20, 2007, the district court entered
judgment in the case. Cardinal then moved, on December 4, 2007, for costs and
attorney fees under the Credit Agreement in the amount of $5,540.33 and $88,221.65,
respectively. Cardinal’s motion asserted final judgment was entered on November 20,
2007. On January 9, 2008, the district court partially granted Cardinal’s motion and
awarded Cardinal $5,540.33 in costs and $65,000 in attorney fees. The Shafes have
now appealed the district court’s grant of summary judgment to Cardinal on the breach
of guarantee claim, and Cyrus and the Shafes challenge the district court’s award of
costs and attorney fees.
II. DISCUSSION
A. Breach of Guarantee Claim
The Shafes argue the district court erred in granting summary judgment on
Cardinal’s breach of guarantee claim because the district court (1) improperly stated
and applied Missouri law, (2) misstated the facts and wrongly interpreted the guarantee
to demonstrate unambiguously the Shafes’ intent to be personally bound, and (3)
erroneously found the guarantee was supported by consideration for Cyrus’s
preexisting debt of $135,000. “We review de novo a district court’s grant of summary
judgment, as well as its interpretation of state law and the terms of a contract.” Ace
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Elec. Contrs., Inc. v. Int’l Broth. of Elect. Workers, 414 F.3d 896, 899 (8th Cir. 2005)
(citation omitted).
1. Interpretation of Missouri Law
The Shafes first urge this court to reverse the district court’s grant of summary
judgment because the district court improperly relied upon dicta from Standard Meat
Co. v. Taco Kid of Springfield, Inc., 554 S.W.2d 592 (Mo. Ct. App. 1977), to create
a rule of strict liability in Missouri law that a signatory who signs a guarantee as a
“principal” has unambiguously signed the guarantee in his or her personal capacity.
The Shafes contend the district court’s interpretation was erroneous because Missouri
law does not have a rule of strict liability, but rather requires a court to analyze an
individual’s intent to be personally bound by a guarantee. The Shafes argue the district
court’s interpretation of Missouri law was an error of law which, by definition,
constituted an abuse of discretion and requires reversal.
The Shafes’ argument regarding the district court’s interpretation of Taco Kid
is misplaced. On de novo review, we interpret Missouri law independent of the district
court, see Ace, 414 F.3d at 899, and can affirm the district court’s grant of summary
judgment based upon any reason supported in the record, see Christoffersen v. Yellow
Book USA, 536 F.3d 947, 949 (8th Cir. 2008). We therefore address, under our own
interpretation of Missouri law, whether the district court properly found there was no
genuine issue of material fact regarding the Shafes’ personal liability under the
Guarantee.
2. Intent of Personal Liability
Missouri subscribes to the following general rule regarding signatory liability
on a guarantee:
[W]here the principal is disclosed and the capacity in which the individual
signs is evident, e.g., president, secretary, agent, the liability is the
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principal’s and not the individual signing for the principal. The
presumption, in such cases, is, that it was the agent’s intention to bind his
principal and not to incur personal liability, and an agent will not be
bound personally, except upon clear and explicit evidence of an intention
to be bound. Of course, where the circumstances surrounding the
transaction disclose a mutual intention to impose personal responsibility
on the individual executing the agreement, the individual may be
personally liable even though the form of the signature is that of the
agent.
....
The determinative issue here is whether, in view of the form of the
signature to the agreement, the language of the so called guaranty clause
is sufficient to manifest a clear and explicit intent by [the signatory] to
assume a personal guaranty contract.
....
[Missouri] therefore adopt[s] the policy that in order to hold a corporate
officer individually liable in signing a contract of guaranty . . . the officer
should sign the contract twice–once in his corporate capacity and once in
his individual capacity. If the parties have mutually agreed and intended
that the officer executing the contract for his corporation is to assume
personal obligations thereunder, the simple but unequivocal act of
manifesting such intent can be accomplished by having the officer also
sign in his individual capacity.
Wired Music, Inc. of the Great Midwest v. Great River Steamboat Co., 554 S.W.2d
466, 468–71 (Mo. Ct. App. 1977) (citations and quotations omitted).
In Taco Kid, 554 S.W.2d at 593–94, the Missouri Court of Appeals found
signatory liability on a two-sided document which included a credit application on one
side and a guarantee on the other side. The guarantee required “a principal of the
business” to guarantee payment of outstanding debts. Id. at 594. In two separate
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instances, the guarantee was signed by shareholders and directors of the corporation
who denoted themselves as either “president of Taco Kid of Springfield Mo, Inc.” or
“Pres.” Id. The court held these identifiers did not engender any ambiguity, and the
signatories had executed the guarantee in their individual capacities because the
guarantee was completed by a “principal of the business” and there was no attempt or
intent to enter the guarantee on behalf of the corporation. Id. at 595–96. The court
also stated this interpretation was reasonable because an interpretation of the contract
which would result in the corporation guaranteeing its own debt would be “redundant,
illusory, absurd, and therefore unreasonable.” Id. at 596 (citations and quotations
omitted).
The Shafes claim the district court erred in granting summary judgment because
the Guarantee does not evidence the Shafes’ intent to be bound personally. The Shafes
contend (1) the signature block in the Guarantee contains “By: Principals” language
which evinces corporate capacity signatures, (2) the Guarantee does not contain
personal pronouns indicative of personal liability, and (3) the Guarantee has “spelling
errors, verb tense and/or conjugation errors, improper sentence structure and improper
and/or confusing placement of modifiers and modifying phrases” which create
ambiguities regarding the Shafes’ intent, and such ambiguities should be construed
against the drafter, Cardinal. The Shafes assert these deficiencies raise issues of fact
regarding the Shafes’ intent, which precludes summary judgment. We disagree.3
3
The Shafes also take issue with the version of the Guarantee which the district
court used. According to the Shafes, the district court used a modified or corrected
version of the Guarantee, modified by the district court or corrected by Cardinal,
which was inconsistent with the true language of the Guarantee. Similar to the
Shafes’ argument regarding the district court’s interpretation of Taco Kid, this
argument is misplaced. Upon de novo review, the version of the Guarantee used by
the district court is irrelevant. See Ace, 414 F.3d at 899. We address, under our
interpretation of the actual Guarantee, whether the district court properly found there
was no genuine issue of material fact regarding the Shafes’ intent to be personally
bound.
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Under Missouri law, a contract is interpreted with its plain and ordinary
meaning, and will only be declared ambiguous if there is more than one reasonable
interpretation of the contract. See Kelly v. State Farm Mut. Auto. Ins. Co., 218 S.W.3d
517, 522 (Mo. Ct. App. 2007). If there is no ambiguity, external evidence cannot be
used to interpret the contract. Id.
The plain and ordinary meaning of the Guarantee evidences the Shafes’ intent
to be bound personally. In the signature block, the Shafes’ did not sign the Guarantee
with reference to their corporate capacities. This is distinctly different from the
Shafes’ other sets of signatures in the Credit Agreement and Dating Agreement which
had the Shafes signing as either an “Authorized Signature” or on behalf of Cyrus as its
“owner/President.” The Shafes simply signed the Guarantee as “Principals” of Cyrus.
See Taco Kid, 554 S.W.2d at 595–96. The Shafes did not designate their corporate
capacity when signing the Guarantee, and we have not been presented with any
evidence in this record to indicate the Shafes attempted to do so. See id. at 596
(finding personal liability on a guarantee even though the signatories, in their own
handwriting, designated their capacities as president). Similarly, the Guarantee was
a separate section of the Credit Agreement and contained the Shafes’ fourth set of
signatures in the Credit Agreement and Dating Agreement, which presumes the Shafes
signed the Guarantee as a “simple but unequivocal act of manifesting” intent to be
bound personally. Wired Music, 554 S.W.2d at 471.
The language of the Guarantee also supports interpreting the contract to bind the
Shafes personally. The Guarantee states it was entered by the Shafes as a “principal”
of Cyrus and “by reason of their interest” in Cyrus. (Emphasis added). The Guarantee
notes the extension of credit to Cyrus may depend upon “his [Mr. Shafe’s]/her [Ms.
Shafe’s] individual credit history.” The use of these pronouns in the Guarantee section
strongly suggests personal liability; if the language was being used to bind Cyrus, it
is more likely the Guarantee would have used traditional entity references like “it” or
“its.”
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Although the Shafes contend the Guarantee language contains errors which
make its intent ambiguous, the grammatical errors the Shafes identify do not reflect
upon their intent. Based upon the facts in this record surrounding the Guarantee, these
errors are inaccuracies, not ambiguities. See Donovan v. Boeck, 116 S.W. 543, 547
(Mo. 1909) (reasoning, “[t]he language may be inaccurate, but if the court can
determine the meaning of this inaccurate language without any other guide than a
knowledge of the simple facts upon which, from the nature of language in general, its
meaning depends, the language, though inaccurate, could not be ambiguous”).
Finally, the structure of the Credit Agreement evinces the Guarantee’s purpose
to bind the Shafes personally. The Credit Agreement grants Cardinal a security interest
in Cyrus in the event Cyrus fails to pay. If we were to interpret the Guarantee to bind
Cyrus, the Guarantee would grant Cardinal a right it already possessed under its
security interest and would have Cyrus guaranteeing its own debt. This interpretation
would be “redundant, illusory, absurd, and therefore unreasonable.” Taco Kid, 554
S.W.2d at 596 (citations and quotations omitted). Thus, the district court did not err
in finding no genuine issue of material fact regarding the Shafes’ personal liability
under the Guarantee.
3. Consideration for Preexisting Debt
The Shafes ultimately contend, even if the Guarantee were signed in their
personal capacity, the district court erred in granting summary judgment as to the
Shafes’ guarantee of all Cyrus’s debt. The Shafes claim the lack of a date on the
Guarantee, and the failure of the Guarantee, Credit Agreement, and Dating Agreement
to reference each other, create fact questions regarding whether there was adequate
consideration to enforce the Guarantee on Cyrus’s $135,000 preexisting debt. The
Shafes’ argument is not convincing.
Under Missouri law, a guarantee is a contract which requires separate
consideration. See Kurtz v. Fischer, 600 S.W.2d 642, 646 (Mo. Ct. App. 1980). “An
agreement to extend the time for payment of an existing debt or a promise to forbear
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collection, even for an indefinite time, is sufficient consideration for a guarantee of the
debtor’s obligation.” Id. (citation omitted). “Where the contract of guaranty and the
original contract creating the liability guaranteed are contemporaneously made, the two
contracts are regarded as integrated and the consideration supporting the original
contract also supports the guarantee.” Id. (citation omitted).
Missouri courts have held a guarantee can be deemed contemporaneous with an
original contract even if the guarantee is not made on the same day as the original
contract. See Centennial State Bank v. S.E.K. Const. Co., Inc., 518 S.W.2d 143, 150
(Mo. Ct. App. 1974) (holding a guarantee was legally contemporaneous with a
promissory note even though the guarantee was given ten days after the promissory
note was entered). To be contemporaneous, Missouri courts tend to focus on whether
the guarantee was part of an overall “single transaction” involving the original contract.
See Edwards v. Heidelbaugh, 574 S.W.2d 25, 28 (Mo. Ct. App. 1978).
The Dating Agreement provides the consideration needed to tie the Guarantee
to the $135,000 preexisting debt. Cyrus agreed under the Dating Agreement to make
three payments of $45,000 to satisfy the debt. Cardinal’s promise to allow Cyrus an
additional six months to repay the existing debt was sufficient consideration for the
Guarantee. See Kurtz, 600 S.W.2d at 646. The Guarantee was also made
contemporaneously with the Dating Agreement. The Guarantee states it applies to all
debt of Cyrus “now existing,” and the Guarantee was made as part of the single
transaction between Cardinal and Cyrus to renegotiate Cyrus’s existing debt and
continue their business relationship through a line of credit. See Edwards, 574 S.W.2d
at 28. Thus, there is no genuine issue of material fact whether the Guarantee applies
to Cyrus’s preexisting debt through the Dating Agreement, and the district court did
not err in granting summary judgment to Cardinal on the breach of guarantee claim.
B. Award of Costs and Attorney Fees
Cyrus and the Shafes also challenge the district court’s award of costs and
attorney fees. “Factual determinations concerning an award of attorney’s fees are
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reviewed under a clearly erroneous standard, while the district court’s determination
of the amount of the fee award is reviewed for abuse of discretion. Interpretation of
an unambiguous fee-shifting clause, however, is one of law to be reviewed de novo by
this court.” Litton Microwave Cooking Prod. v. Leviton Mfg. Co., Inc., 15 F.3d 790,
795 (8th Cir. 1994).
Cyrus and the Shafes first argue the district court was without jurisdiction to
enter an award of costs and attorney fees because Cardinal’s motion for costs and
attorney fees was filed more than fourteen days after entry of final judgment on
October 31, 2007, and thus was untimely under the fourteen day deadline of Fed. R.
Civ. P. 54(d)(2)(B)(i). Cyrus and the Shafes incorrectly calculate entry of final
judgment based upon the district court’s order and docket entry of October 31, 2007.4
Under Fed. R. Civ. P. 58(a), entry of judgment must be “set out in a separate
document” before it is final. The district court fulfilled this requirement when the clerk
entered final judgment on November 20, 2007. Cardinal filed its motion on December
4, 2007, which was within 14 days of entry of final judgment, and the district court had
jurisdiction for its award.5
4
The Shafes’ attempt to liken this case to Reyher v. Champion Int. Corp., 975
F.2d 483 (8th Cir. 1992), is ineffective. In Reyher, id. at 486–87, a panel of this court
held entry of final judgment was entered under Fed. R. Civ. P. 58 when a district court
issued a separate document styled a “Judgment in a Civil Case” reporting a jury
verdict and declaring “judgment is hereby entered.” Based upon the record in this
case, the district court’s October 31, 2007 order and docket entry are not at all similar
to Reyher.
5
At oral argument, Cyrus and the Shafes presented, for the first time, an
alternative argument that the district court lacked jurisdiction because it failed to keep
the judgment open for amendment under Fed. R. App. P. 4 and Jones v. UNUM Life
Ins. Co. of Am., 223 F.3d 130 (2d Cir. 2000). We choose not to consider this
argument. See Stillmunkes v. Hy-Vee Employee Benefit Plan and Trust, 127 F.3d
767, 769-70 n.6 (8th Cir. 1997) (“We refuse to consider an argument presented to this
court for the first time at oral argument.”).
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The Shafes next assert the Guarantee does not contain the attorney fees provision
in the Credit Agreement. Under Missouri law, a party is not allowed attorney fees
unless provided by contract, statute, or equity. See Moore v. Weeks, 85 S.W.3d 709,
723 (Mo. Ct. App. 2002). Section III of the Credit Agreement explicitly provides for
Cardinal to recoup costs and attorney fees. Because the Guarantee also insures the
Credit Agreement, the attorney fees provision of the Credit Agreement is incorporated
by the Guarantee, and the Shafes are personally bound by the attorney fees provision.
See Ulreich v. Kreutz, 876 S.W.2d 726, 730 (Mo. Ct. App. 1994) (determining a
guarantee of a contract includes payment of attorney fees authorized by the contract).
Finally, Cyrus and the Shafes argue the district court’s award of costs and
attorney fees was an abuse of discretion. Cyrus and the Shafes assert Cardinal’s
attorney fees are outrageous and unreasonable because they are higher than the local
rate, involved an excessive amount of hours and frivolous claims, and were expended
on claims Cardinal ultimately voluntarily dismissed. The district court substantially
reduced Cardinal’s award of attorney fees to $65,000 from Cardinal’s original request
of $88,221.65. In this case, the amount of costs and attorney fees is not unreasonable
to recover on a claim resulting in a $451,644.43 judgment. The district court did not
abuse its discretion.
III. CONCLUSION
The district court’s judgment is affirmed.
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