UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50600
Summary Calendar
In the Matter of: H. E. & I., INC.,
Debtor
_________________________________
ABC FIRE PROTECTION CO. INC.; AMERICAN DRYWALL & ACOUSTICS, INC.;
BILL JAMES CONSTRUCTION, INC.; BOWMAN TILE AND MARBLE CO., INC.;
BUTCH SMITH PLUMBING; G & J CONSTRUCTION, INC.; LARRY MITCHELL WALL
COVERINGS; MALL AIR AND GEORGIA, INC.; SCOTT ELECTRIC CO. OF
WILMINGTON, INC.; TALLAHASSEE ELECTRIC SERVICES; ROBERT MATOCK
ENTERPRISES, INC.,
Appellants,
VERSUS
FISRT NATIONAL BANK OF FAIRFIELD,
Appellee.
Appeal from the United States District Court
for the Western District of Texas
(W-96-CV-425)
April 30, 1999
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:*
The IntervenerS/Plaintiffs, referred to collectively as the
*
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this opinion should not be published and is not precedent except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.
1
Trade Contractors, appeal from a summary judgment entered for the
First National Bank of Fairfield, Texas (“the Bank”). We affirm.
We review the grant of summary judgment de novo. See Norman
v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994). We review the
district court's order denying additional discovery for abuse of
discretion. See Wichita Falls Office Assocs. v. Banc One Corp.,
978 F.2d 915, 918 (5th Cir. 1992).
H. E. & I., Inc. (“Debtor”) was a general contractor that
constructed and improved retail stores. The Debtor executed three
revolving line of credit notes payable to the Bank. The Bank was
a secured creditor of the Debtor. The Debtor filed a voluntary
Chapter 7 Bankruptcy Proceeding on December 22, 1993. Two years
later, the Trustee filed an adversary proceeding alleging that
payments made by the Debtor to the Bank on the revolving line of
credit notes within ninety days prior to the filing of Debtor's
Chapter 7 proceeding were preferences, fraudulent conveyances or
were “trust funds to be used to pay subcontractors.”
The Trade Contractors intervened, asserting causes of action
against the Bank for breach of trust/fiduciary duty; constructive
fraud; conversion; civil conspiracy; fraudulent conveyances; and
quantum meruit. The Trade Contractors claim that the Debtor paid
its revolving line of credit notes with “construction trust funds”
and that the Bank acted wrongfully in accepting the payments. The
Bank filed a motion for summary judgment alleging that it had no
knowledge of the trust character of the funds, that it was not a
trustee of the funds and that it was a good faith purchaser for
2
value of the funds, and therefore owed no duties to the Trade
Contractors. The Bank's summary judgment evidence was comprised of
the affidavit of a Bank officer with attached exhibits. The Trade
Contractors submitted no competent summary judgment evidence to
refute the Bank's position. The court found no genuine issue of
material fact and granted summary judgment for the Bank.
Trade Contractors assert on appeal that the court abused its
discretion in denying their motions to reschedule deadlines,
thereby foreclosing further discovery that they contend was
necessary to respond to the Bank's summary judgment motion. In
order to obtain a continuance of a summary judgment motion for the
purpose of further discovery, the non-movant must request extended
discovery prior to the court's ruling on summary judgment, provide
notice to the court that further discovery pertaining to summary
judgment is sought, and explain specifically how the requested
discovery pertains to the pending motions. See 7547 Corp. v.
Parker & Parsley Dev. Partners, 38 F.3d 211, 220 (5th Cir. 1994).
The record reveals that the Trade Contractors failed to fulfill
these obligations. The parties' joint motion to reschedule
deadlines, filed after the summary judgment motion had been on file
for seven months and only a week before summary judgment was
granted, did not state that Trade Contractors sought discovery
pertaining to the question of the Bank's knowledge. After the
district court granted summary judgment, the Trade Contractors
advised the court for the first time that they sought to obtain
discovery on the issue. We therefore conclude that the district
3
court did not abuse its discretion in denying further discovery and
reconsideration of its summary judgment decision. See id.
Trade Contractors' remaining points of error concern the
appropriateness of the grant of summary judgment, given the state
of the evidence concerning the Bank's knowledge. Having reviewed
the record, we conclude that there were no genuine issues of
material fact and summary judgment was appropriate. See
International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257,
1265-66 (5th Cir. 1991).
Based on the foregoing, we affirm the summary judgment granted
for the Bank.
AFFIRMED.
4