Sterling Savings Bank v. Thornburgh Resort Co. , 694 F. App'x 568 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STERLING SAVINGS BANK, a No. 15-35077
Washington chartered commercial bank,
D.C. No. 3:12-cv-00255-KI
Plaintiff-Appellee,
v. MEMORANDUM*
THORNBURGH RESORT COMPANY, an
Oregon limited liability company,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted July 10, 2017
Portland, Oregon
Before: WATFORD and OWENS, Circuit Judges, and CHHABRIA,** District
Judge.
Thornburgh Resort Company (“Thornburgh”) appeals from the district
court’s orders granting Sterling Savings Bank’s (“Sterling”) motion for summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
judgment, denying Thornburgh’s partial motion for summary judgment, dismissing
Thornburgh’s counterclaims, and awarding Sterling attorneys’ fees. As the parties
are familiar with the facts, we do not recount them here. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm in part and dismiss in part.
1. Thornburgh has no valid impairment of suretyship claims.
Thornburgh obtained suretyship status when it conveyed a trust deed on its
property to secure Sterling’s loan to Parker Group Investments (“PGI”), as this was
the only contract that granted Sterling recourse against Thornburgh’s property in
the event of a PGI default. See Restatement (Third) of Suretyship & Guaranty
§§ 1(1)(a), 2(c).1 Thornburgh performed its secondary obligation to repay
Sterling’s loan, via its property, when the trust deed was foreclosed upon on
August 31, 2011.
Section 37(4)(a) of the Restatement contemplates a claim based on
impairment of suretyship status “[i]f the obligee impairs the secondary obligor’s
suretyship status . . . after the secondary obligor performs any portion of the
secondary obligation[.]” § 37(4)(a) (emphasis added). Because the purported
1
All subsequent section citations refer to provisions of the Restatement (Third) of
Suretyship & Guaranty. Oregon courts follow the Restatement with respect to
suretyship law. CRM Collateral II, Inc. v. TriCounty Metro. Transp. Dist. of
Oregon, 669 F.3d 963, 970 (9th Cir. 2012).
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impairment—Sterling’s release of PGI’s cash collateral—occurred on December
17, 2007, which is before Thornburgh performed, Thornburgh has no claim under
§ 37(4)(a). Furthermore, Thornburgh has no claim under § 37(4)(b)(i) because it
performed with knowledge of the impairment. Thornburgh learned of the
purported impairment during a deposition on May 3, 2011, and alleged, in two
separate suits, including one filed the day before the foreclosure sale, that Sterling
impaired Thornburgh’s collateral. Accordingly, Thornburgh had knowledge of
the impairment prior to performing.
Therefore, counterclaim 1 was properly dismissed. Further, in the context of
Thornburgh’s impairment of suretyship status claim, the Restatement of Suretyship
& Guaranty provides Thornburgh’s exclusive avenue for affirmative relief against
Sterling. See § 5 (providing that “all other principles of law and equity” apply
“[u]nless inconsistent with the rules in this Restatement”). Accordingly,
counterclaims 2, 3, and 4 were properly dismissed.
2. The district court properly dismissed Thornburgh’s motion to strike.
As Thornburgh advanced no valid claims, the district court properly
dismissed Thornburgh’s motion to strike as moot.
3. The court lacks jurisdiction to review the award of attorneys’ fees.
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“[A]n order on attorneys’ fees is collateral to, and separately appealable
from, the judgment.” Hunt v. City of Los Angeles, 638 F.3d 703, 719 (9th Cir.
2011). This court lacks jurisdiction to review the attorneys’ fees award because
Thornburgh did not separately appeal from the supplemental judgment awarding
Sterling attorneys’ fees.
AFFIRMED in part and DISMISSED in part.
4