849 P.2d 437 | Okla. Civ. App. | 1992
OPINION
On September 14, 1981, John Bianco and his then wife, Sally Bianco Cable (Cable), executed and delivered a note to First National Bank and Trust Company (FNB).
On March 2, 1982, Cable executed and delivered to FNB her unlimited Guaranty Agreement. On April 23, 1981, Robert Johnston (Johnston) executed and delivered to FNB his limited Guaranty Agreement.
On September 12, 1985, FNB obtained judgment against Bianco and Cable on the note in the case styled Staples v. Bianco, et al., District Court of Oklahoma County, case number CJ-84-4980. In that lawsuit, FNB did not attempt to enforce either Cable or Johnston’s separate guaranty agreements.
Sometime later, FNB was declared insolvent and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver.
FDIC assigned all of its right, title and interest in the note and the guaranty agreements to Mundaca Investment Company. In either 1988 or 1989, Mundaca then assigned to the Cadle Company (Plaintiff) all of its right, title and interest in the note and the guaranty agreements. Apparently neither FDIC nor Mundaca was aware the note had been reduced to judgment.
On September 12, 1990, Plaintiff filed an action against John Bianco
On that same day, October 30, 1990, Plaintiff discovered the existence of the September 12, 1985 judgment. It then notified FDIC and Mundaca. FDIC then assigned the judgment to Mundaca and on April 10, 1991, Mundaca assigned the judgment to Plaintiff.
On June 14, 1991, Plaintiff filed a motion for leave to amend its petition to reflect that “its cause of action is now against the Guarantors, Robert C. Johnston and Sally Cooper Bianco, for payment of “the Judgment rendered on September 12, 1985, in favor of First National Bank and Trust Company, and against John Bianco, Jr.” Therein, Plaintiff argued the judgment, and not just the note itself, was a form of indebtedness contemplated by the guaranty agreements.
On June 26, 1991, the trial court denied Plaintiff’s motion for leave to amend its petition because “to do otherwise would permit the plaintiff to revive an otherwise dormant judgment.”
On October 25, 1991, the trial court sustained Cable’s and Johnston’s motions for summary judgment. In doing so, it found that on September 27, 1985,
On January 27, 1992, the trial court granted Johnston and Cable’s motion to tax costs and attorney fees.
Plaintiff appeals the above orders.
As one of its propositions of error, Plaintiff complains the trial court erred in sustaining Cable and Johnston’s motions for summary judgment. Specifically, it argues the trial court erred in finding the statute of limitations had run on Plaintiff’s guaranty cause of action. We disagree. The statute of limitations begins to run against a cause of action at the time that cause of action accrues. 12 O.S.1991 § 92. An action upon an agreement in writing must be commenced within five years after it accrues. 12 O.S.1991 § 95(1).
Plaintiff submits a cause of action on a guaranty accrues when a judgment becomes final. In support of its argument, it cites this Court to Rucker v. Republic Supply Company, 415 P.2d 951 (Okla.1966). Therein, the Supreme Court held the cause of action on the guaranty agreement accrued when the judgment against the debt- or became final. Although the guarantor had executed an unconditional, revolving, general, continuing, written guaranty agreement similar to the agreements in the instant case, the agreement in Rucker also guaranteed payment of any indebtedness, including judgments. The agreement in the instant case does not specifically include a guaranty of judgments. Moreover, it does not mention 12 O.S.1991 § 332. Section 332 specifically provides that a guarantor is liable immediately on default of the principal, and without demand or notice.
The record reveals Bianco defaulted by failing to make payments on the note sometime prior to September 5, 1984. However, even if we calculate the statute of limitations from September 5, 1984, the date FNB filed its action to collect on the note from Bianco, the statute had run by the time Plaintiff filed its action on September 12, 1990. Plaintiff’s cause of action on the guaranty is time-barred. There are no disputed facts at issue herein. Thus, as a matter of law, the trial court did not err in sustaining Cable and Johnston’s motions for summary judgment.
Plaintiff further complains the trial court erred in awarding attorney fees pursuant to 12 O.S.1991 § 936.
AFFIRMED.
. Although both Bianco and Cable executed the September 14, 1981, note which was reduced to judgment against them both on September 12, 1985, Plaintiffs first cause of action is against Bianco only.
. John Bianco was never served as a defendant in the instant case.
. Plaintiffs first cause of action against Bianco is not the subject of its appeal.
. The guaranty agreements executed by Cable and Johnston provide in pertinent part:
The undersigned Guarantor ... guarantees the prompt payment when due of any and all liability or indebtedness of the debtor [Bian-co] ... to the bank [FNB], now existing or hereafter arising, including, but not limited to: principal, interest, and all expenses of collection of any nature incurred by Bank, (all of which is hereinafter called the ‘Indebtedness’) irrespective of any invalidity therein, the unenforceability thereof, or the insufficiency, invalidity or unenforceability of any security interest which might be given therefor by debtor.
The obligation of the Guarantor ... is an absolute, unconditional and continuing guaranty of payment of the indebtedness....
. 15 O.S.1991 § 332 provides:
A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal, and without demand or notice.
. The record reflects the judgment was rendered on September 12, 1985 and file stamped on September 27, 1985.
. 12 O.S.1991 § 936 provides:
In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject to the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.