USCA1 Opinion
February 23, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1614
BANCO & AGENCIA FINANCIAMIENTO VIVIENDA DE PUERTO RICO,
Plaintiff, Appellant,
v.
PONCE FEDERAL BANK, F.S.B.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge] ___________________
[Hon. Jesus A. Castellanos, U.S. Magistrate Judge] _____________________
____________________
Before
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, ____________________
and Boyle, Senior District Judge.* _____________________
____________________
Emilio F. Soler with whom Bufete Roberto Corretjer Piquer was on _______________ ________________________________
brief for appellant.
Francisco A. Besosa, with whom Axtmayer, Adsuar, Muniz & Goyco ____________________ _________________________________
was on brief for appellee.
____________________
____________________
*Of the District of Rhode Island, sitting by designation.
1
____________________
Per Curiam. Banco y Agencia Financiamiento de la __________
Vivienda de Puerto Rico ("the Housing Bank") appeals from an
order of the district court granting Ponce Federal Bank's
motion for summary judgment. When reviewing a district
court's entry of summary judgment, we determine de novo ________
whether the moving party has shown "that there is no genuine
issue as to any material fact and that [it] is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). See ___
also Data General Corp. v. Grumman Systems Support Corp., 36 ____ ___________________ _____________________________
F.3d 1147, 1159 (1st Cir. 1994) "In this context, 'genuine'
means that the evidence about the fact is such that a
reasonable jury could resolve the point in favor of the
nonmoving party and 'material' means that the fact is one
that might affect the outcome of the suit under the governing
law." Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993) ______ _____
(citations, internal quotation marks, and brackets omitted).
Although "we read the record and indulge all inferences in
the light most favorable to the non-moving party,"
Rivera-Ruiz v. Gonzalez-Rivera, 983 F.2d 332, 334 (1st Cir. ___________ _______________
1993), the adverse party cannot defeat a well-supported
motion by "rest[ing] upon the mere allegations or denials of
[its] pleading," Fed. R. Civ. P. 56(e). If the nonmovant
bears the ultimate burden of persuasion with respect to its
claim or defense, it may avert summary judgment only if it
identifies issues genuinely in dispute and advances
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convincing theories as to their materiality. See Pagano, 983 ___ ______
F.2d at 347 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. ________ ___________________
242, 247-48 (1986)). We may affirm a district court's grant
of summary judgment "'on any ground supported in the record
even if the issue was not pleaded, tried or otherwise
referred to in the proceedings below.'" de Casenave v. ___________
United States, 991 F.2d 11, 12 n.2 (1st Cir. 1993) (citation ______________
omitted).
The district court determined that the Housing Bank
was estopped to maintain the instant action against Ponce by
virtue of what it described as "public and notarized
documents to settle and release the parties from future
claims." The documents referred to were submitted as
exhibits to Ponce's Statement of Material Facts as to Which
There is No Genuine Issue. They included a notarized Deed
dated December 7, 1984 and a notarized Acclaratory Deed dated
December 31, 1984, whereby Capitana conveyed all unsold lots
in the project Colinas de Villa Rosa (the "project") to the
Housing Bank. Of particular relevance was a so-called
Agreement, Release and Payment of Guaranty (the
"Settlement"). The Settlement recites that it was executed
on December 7, 1984 by Capitana, Ponce, and the Housing Bank,
and was signed by Jos F. Blasini, Executive Vice President,
for Ponce; Amado Vega Vega, President, for Capitana; and
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Francisco Fantauzzi, President, for the Housing Bank. It
provides, in pertinent part,
5th: By virtue of this document the ___
Housing Bank and Finance Agency of Puerto
Rico releases in its entirety Ponce
Federal Bank, F.S.B., from any present
and future claim with respect to the
project Colinas de Villa Rosa of Sabana
Grande, Puerto Rico, and releases
Capitana Corporation from any debt with
respect to the loan granted to the latter
by the Ponce Federal Bank, F.S.B.,
secured by the Housing Bank and Finance
Agency of Puerto Rico.
Regarding the Settlement, the Housing Bank contends
that there is a disputed issue of fact between the parties as
to whether the Settlement accurately evidences the agreement
of the parties made on December 7, 1984. The Housing Bank
notes that there is reference made to a document of the same
date, between the same parties, in an entry in Notary Wendell
W. Col n's registry of affidavits, a certified copy of which
entry was submitted as an exhibit to Ponce's statement of
material facts. It is conceivable, the Housing Bank argues,
that the Settlement's terms are different from those of the
referenced document, which cannot now be found. Therefore,
the Housing Bank argues, Ponce may not rely on the terms of
the Settlement as a defense to the Housing Bank's claim for
repayment.
We find this argument to be lacking in merit.
There is a wealth of evidence indicating that the signatories
to the Settlement entered into such a release on December 7,
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1984 and that the Settlement is a valid copy of that release.
Ponce submitted the affidavit of Mr. Jose Blasini, one of the
signatories, reciting the terms of the release entered into
on December 7, which were the same as those in the
Settlement. Ponce also presented deposition testimony, given
in an earlier case, Vega v. Ponce Federal, No. 88-369(JAF), ____ _____________
by Capitana's outside auditor, Mr. Rivera-Lebr n, stating
that he obtained a copy of the Settlement, signed by Vega,
Blasini, and Fantauzzi, from Mr. Vega. Further deposition
testimony from the Vega case was submitted, in which Mr. ____
Fantauzzi, the president of the Housing Bank, testifies that
he signed the release on December 7, the same day that he
signed the notarized Deed transferring the remainder of the
project to the Housing Bank. He stated that by that release
the parties "mutually relieved each other from any claims,"
and he mentioned several possible claims between the three
parties of which he was aware at that time. Thus, whether
the copy of the Settlement submitted bears a notarial seal is
not dispositive of this case; all of this evidence, combined
with the copy of the Settlement, was more than adequate to
establish the existence of a release which would serve to bar
the instant action.
Ponce's evidence strongly suggests, moreover, that
the Settlement was identical in its terms to the missing
document referenced in Mr. Col n's registry. It is not
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disputed that the signatures on the Settlement are genuine.
In the Vega case Mr. Colon had testified that either one or ____
two days before December 7, 1984, he sent a draft of the
document in question from his office in the city of Ponce to
the San Juan offices of the Housing Bank. While the document
was at that office a change was made to the language of the
third page, which was then retyped. He stated that on
December 7, 1984, when he arrived at the San Juan offices, he
found a change in the manner of expression of one of the
clauses.1 He then took the signatures of Mr. Fantauzzi and
Mr. Vega in San Juan. Mr. Col n's testimony is not crystal
clear as to whether Mr. Blasini signed for the bank in San
Juan or in Ponce, nor as to placement of the affidavit on the
final copy. However, he recorded the notarization of the
document, dated December 7, 1984, in his registry, and
____________________
1. The third and last page of the Settlement appears to have
been typed on a different machine than that used for the
first two pages. It is this page that contains the clause
reciting the pertinent release language, followed immediately
by a clause denominated an "Acceptance," which reads:
The appearing parties accept the
foregoing Agreement in the manner drafted
since they find same in accordance with
the covenants agreed upon among them, and
in proof of approval acknowledge and
subscribe same in the place and date
first above written.
This clause is followed by the signatures of the three
parties' officers. All three pages of the document bear the
initials of each of the three signatories. Thus, it is plain
that the signatories of the third page were all aware of the
release clause, as the clause was on the page that they
signed.
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neither his testimony nor any other suggests the possibility
that more than one version of the release was signed by all
three parties as of December 7, 1984.
The Housing Bank, in any event, presented no
evidence contesting the above. Ponce's submissions amply
support its assertion that the Housing Bank released Ponce,
as the Settlement recites, from "any present and future claim
with respect to the project," on December 7, 1984. "When one
party has properly supported a motion for summary judgment,
the opposing party must 'set forth specific facts showing
that there is a genuine issue for trial.'" Playboy _______
Enterprises, Inc. v. Public Serv. Comm'n, 906 F.2d 25, 40 _________________ ____________________
(1st Cir. 1990), cert. denied, 498 U.S. 959 (1990) (citing ____________
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986) ________ ___________________
(quoting First Nat'l Bank v. Cities Service, 391 U.S. 253, _________________ ______________
288-89 (1968))); see also Fed. R. Civ. P. 56(e). The Housing ________
Bank has offered nothing to show that no release was
executed, or that the Settlement differs in its terms from
the release agreed to by the parties. The Housing Bank
merely presented several documents, none of which was fully
executed, which appear from their prior dates and their
incompleteness to be earlier drafts of the Settlement.
Because none of these documents, including the Settlement,
are notarized, it argues that there remains the unanswered
question of where the notarized document is and what it says,
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requiring "further evidentiary development." However, "[a]
court is not obliged to deny an otherwise persuasive motion
for summary judgment 'on the basis of a vague supposition
that something might turn up at the trial.'" Soar v. ____
National Football League Players' Ass'n, 550 F.2d 1287, 1289 ________________________________________
n.4 (1st Cir. 1977) (quoting Lundeen v. Cordner, 354 F.2d _______ _______
401, 408 (8th Cir. 1966)), quoted in Playboy Enter., 906 F.2d _________ ______________
at 40. We conclude that there was no disputed issue of fact
as to whether the Housing Bank had released Ponce from all
claims related to the project.2
The Housing Bank also argues that at the time the
release was executed it was unaware of the final extension to
____________________
2. The Housing Bank contends that the language of the
Settlement could not be read as an effective release for
present purposes because it referred explicitly only to the
first two properly guaranteed disbursements to Capitana, and
nowhere mentioned, either explicitly or by implication, the
final, unguaranteed disbursement. However while the
Settlement released Capitana only as to "the loan
. . . secured by the [Housing Bank]," it released Ponce from
"all claims related to" the project.
The Housing Bank also argues that any claims to
recover the payment to Ponce cannot be waived because such a
waiver would contravene clear public policy, citing Brooklyn ________
Savings Bank v. O'Neil, 324 U.S. 697, 704 (1945) ("a _____________ ______
statutory right conferred on a private party, but affecting
the public interest, may not be waived or released if such
waiver or release contravenes the statutory policy"). The
district court found that the statutory policy underlying Act
72 was, to paraphrase, to facilitate the construction of low-
income housing. Ponce presented substantial evidence that
cooperation between the Housing Bank and Ponce greatly
facilitated the completion of the Colinas de Villa Rosa
Project. We see no error in the district court's ruling that
there was no violation of statutory policy in the present
circumstances.
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Capitana's line of credit, and that any release was therefor
obtained by fraud. There is no evidence to support this
assertion. There is uncontradicted evidence tending to show
that when the Housing Bank entered into the release, it had
all relevant facts. Ponce submitted evidence which showed
that, during construction of the project, various contractors
would submit certifications of work performed to Capitana, as
the developer, for payment. Because the Housing Bank
guaranteed the loan, it had to approve each certification.
For that reason, it contracted with Per z Miranda Engineering
Services, to review all certifications submitted for payment
by the contractors and, when satisfied that the certification
reflected the job done, to recommend that the Housing Bank
approve payment. The certifications were approved by the
developer and an official at the Housing Bank and were sent
to Ponce Federal for payment. This procedure was used
throughout the construction of the project until its
completion in 1984. The Housing Bank thus had the means at
hand to keep track of how much money was being paid out to
Capitana, and it at no time notified Ponce that it considered
its obligations as guarantor at an end.
The uncontradicted evidence also showed that an
audit was conducted by a certified public accountant selected
by the Housing Bank before it approved payment of Ponce's
claim. The record contains a series of Ponce's ledger pages
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for loan #ML-5538 (the number assigned to the guaranteed
loan), which show toward the bottom of the final page an
increase of $954,609 to the amount owed by Capitana to
Ponce.3 The auditor requested "all books, documents and
files" relating to the loan; there was no evidence that he
did not see and consider these pages in making his audit. In
addition, as the Housing Bank alleges in its complaint, Ponce
collected in excess of $7 million from Capitana over the life
of the project. The auditor, in examining Ponce's records,
did not report that the loan was paid in full. The audit
revealed only certain bookkeeping errors resulting in a
downward adjustment of Ponce's claim by some $98,783.46.
Thus, the Housing Bank honored Ponce's request for payment
only after it had independently determined the extent of its
liability.
Finally, Ponce submitted a sworn and notarized
statement introduced in the Vega case, dated December 21, ____
1989, from Mildred Goyco, who in 1984 was a vice president of
the Housing Bank. In this statement Ms. Goyco states that
____________________
3. The Housing Bank argues that this exhibit proves that it
had complied with all its obligations to Ponce by October,
1982, presumably because, as of that date, Capitana had no
outstanding balance due with Ponce on the guaranteed portion
of the loan. (We note that the district court explicitly
found that the final credit extension was not covered by the
guarantee.) However, this does not prove that the Housing
Bank did not know of the final credit extension to Capitana,
either at the time it was made, or at the time it entered
into the release.
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she was contacted by Ponce in connection with the Vega case ____
for assistance in locating a document in the Housing Bank's
files entitled "Agreement, Release and Payment of Warranty
[sic]" executed by the parties and Capitana on December 7,
1984, and that after several tries the document could not be
found. She asserted, however, that "the Housing Bank did
know that the document must have existed and that it must
have been duly signed by all the parties involved."
Against this evidence of the Housing Bank's
intimate involvement with all aspects of the project, the
Housing Bank submitted a second, unsworn statement under
penalty of perjury from Mildred Goyco, dated October 28,
1991, in which she states that the authorization by Mr.
Fantauzzi to pay Ponce "was given with the factual impression
that it was a 'bona fide' claim which arised [sic] under the
certificate of insurance." This does not contradict Ponce's
assertion that the Housing Bank knew of the irregular nature
of the final disbursement, but nonetheless agreed to treat it
as covered by the guarantee in order to facilitate the
completion of the project. We therefore conclude that the
district court's implicit determination that the Housing Bank
had knowingly released Ponce from all claims related to the
project was supported by the summary judgment materials
referred to in Fed. R. Civ. P. 56(c).
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Under the statute that created it, the Housing Bank
is a corporation which may sue and be sued. 7 L.P.R.A.
901, 910(a) (1982). The capacity to sue and be sued "is not
only the power to bring an action, but is also the power to
maintain it," Mather Constr. Co. v. United States, 475 F.2d ___________________ ______________
1152, 1155 (Ct. Cl. 1973), quoted in 6A Charles Alan Wright _________
et al., Federal Practice & Procedure 1559 (1990). Implicit
also is the power to settle. Under Puerto Rico law, "[a]
compromise has, with regard to the parties, the same
authority as res adjudicata." 31 L.P.R.A. 4827 (1990).
Having once settled this matter, the Housing Bank may not
reopen it now.4
Affirmed. Costs for appellee. _____________________________
____________________
4. As our decision disposes of all issues in this case, we
do not reach the estoppel and statute of limitations issues
raised by the Housing Bank in its brief.
We note with respect to the latter issue, however,
that the complaint, while somewhat unclear, may be read as
stating causes of action sounding in tort, fraud,
restitution, and illegality of the contract. This being so,
the district court may have erred in finding that the entire
action was time-barred under the fraud statute of
limitations. However, as the claims sounding in tort,
restitution and illegality are clearly claims "with respect
to the project Colinas de Villa Rosa," the Housing Bank has
released Ponce with respect to these claims, and there is no
need to consider whether they were still viable as of the
date of the complaint. With respect to the fraud claim, the
Housing Bank argues that, there being no statute of
limitations in Puerto Rico for nullity of a contract where
consent was obtained by fraud, this claim cannot be time
barred. Even if so, we have already said that the Housing
Bank has not presented any evidence to defeat Ponce's motion
for summary judgment as to fraud; whether its action is time-
barred or not is not dispositive.
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