Texas National Bank v. Sandia Mortgage Corporation v. William B. Nelson

PATRICK E. HIGGINBOTHAM, Circuit Judge,

concurring in part and concurring in the result.

I concur in the result reached by the principal opinion, and in most of its reasoning. However, in my view, the contractual issue can be resolved on simpler grounds. Nelson signed a pledge agreement in which he “transfers, assigns and conveys” the original certificate of deposit, and “all liens, rights, titles, equities and interests securing the same” to Sandia’s predecessor in interest. The agreement further provides that upon payment of the underlying note the transfer of the CD shall be null and void, and the collateral will be retrans-ferred to Nelson. In the event of default, Sandia has certain contractual remedies, and the agreement also expressly incorporates any rights and remedies under the Texas Uniform Commercial Code.

Attorney’s fees can be awarded under § 38.001 where there is “a duty or obligation which the opposing party has failed to meet.” Schlobohm v. Pepperidge Farm, Inc., 806 F.2d 578, 582 (5th Cir.1986) (quoting Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex.1983)). In this case, Nelson had a contractual obligation to transfer all his rights and interests in the collateral to San-dia until such time as the note was paid off. Since the agreement did not specify the contrary, it also created a security interest in the proceeds of the CD. See Tex.Bus. & Comm.Code §§ 9.203(c), 9.306(b). By seeking to prevent Sandia from collecting the *702proceeds of the CD, Nelson failed to perform his contractual obligation to convey his interest in the CD to Sandia. Sandia’s position in the interpleader action, seeking enforcement of Nelson’s obligations under the contract, did not differ significantly from that of any contracting party trying to enforce a contract.

In my view, we need not consider whether Nelson breached an implied duty not to interfere with Sandia’s collection of the CD proceeds. Rather, by asserting rights in the proceeds, Nelson breached his express contractual obligation to transfer those rights to Sandia. Given the Texas Supreme Court’s rejection of an implied covenant of good faith and fair dealing in English v. Fischer, 660 S.W.2d 521, 522 (Tex.1983), I think we are on steadier ground if we tie our analysis to the express terms of the contract.