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FLEXI VAN LEASING v. ISAIAS

October 14, 1998

FLEXI-VAN LEASING, INC., Plaintiff, against ESTEFANO ISAIAS, Defendant.


The opinion of the court was delivered by: NEWMAN

OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

 BERNARD NEWMAN, Senior Judge : *fn1"

 Plaintiff, Flexi-Van Leasing, Inc. ("Flexi-Van"), is suing to recover $ 156,684.76 plus interest, attorney's fees and costs from defendant, Estefano Isaias ("Isaias"), based upon a personal guaranty signed by him on April 15, 1997.

 The court has jurisdiction in this case pursuant to 28 U.S.C. Section 1332, and venue properly lies in this district under 28 U.S.C. Section 1391. The case was tried before this court in a two-day bench trial. In conformity with Rule 52(a) of the Federal Rules of Civil Procedure, the following constitutes the court's findings of fact and conclusions of law.

 THE RECORD

 The parties presented the testimony of four witnesses: Bernard Vaughn, Estefano Isaias, Evelio Quirch, and Vasili Krishnamurti, an expert. By agreement, both parties were allowed to elicit direct testimony from any of the four witnesses, and all of the witnesses testified as part of both the plaintiff's and defendant's case. The parties also stipulated into evidence twenty-seven exhibits, including the transcript of a deposition of Armando Espinel.

 FINDINGS OF FACT

 Flexi-Van is a lessor of marine chassis equipment, which consists of a wheeled undercarriage attached to a tractor, for the purpose of transporting ocean-going containers over roadways. Prior to April 1987, Flexi-Van also leased ocean-going containers to shipping lines for the transport of cargo aboard ships. Defendant, Estefano Isaias ("Isaias") was an owner, investor, and board member of Naviera Continental, the company that operated a small shipping fleet. In 1983, Naviera Continental changed its place of incorporation and its name to Naviera Consolidada, S.A. Navicon U.S.A. was the local agent owned and controlled by Naviera Consolidada. (These entities are hereinafter referred to as "Naviera").

 Naviera was a client of Flexi-Van's for approximately two decades. In the late 1970's, Flexi-Van considered Naviera to be a credit risk. Because of Flexi-Van's concerns, Roberto Isaias, the defendant's brother who also had an ownership interest in Naviera, signed a personal guaranty on April 17, 1979. The guaranty was drafted by employees of Flexi-Van and covered "lease agreements" entered into by the companies for both containers and chassis, and was to "remain and continue in full force and effect upon any renewal, modification or extension of any of the leases." The 1979 guaranty does not refer to any specific leases nor were there any specific lease agreements attached to the guaranty.

 In 1983, Naviera Continental, S.A., changed its name to Naviera Consolidada, S.A., and its place of incorporation from Ecuador to Panama. The relationship between the companies remained the same; but as a result of the changes, Flexi-Van required a second personal guaranty with the proper name of the company. All existing leases for equipment were also transferred to the new shipping line.

 At this point, Flexi-Van believed that the defendant, Estefano Isaias, was controlling Naviera. Thus, his signature was requested on the substitute guaranty. However, the guaranty that Flexi-Van eventually secured in 1984 was signed by Arturo Abascal ("Abascal"), operating under a Power of Attorney in the name of Estefano Isaias. Flexi-Van had again drafted the guaranty which also covered "leases" and "lease agreements" for containers and chassis. The 1984 guaranty further provided that it "shall remain and continue in full force and effect upon any renewal, modification or extension of any of the leases." The 1984 guaranty similarly did not refer to any specific leases and no lease agreements were attached to it.

 Two years later, in 1986, Flexi-Van determined that the Power of Attorney did not actually authorize Abascal to sign Estefano's name in a personal capacity, thus rendering the 1984 guaranty invalid. Therefore, Flexi-Van required a third guaranty from Isaias. At that time, Naviera's debt to Flexi-Van exceeded $ 142,300, causing Flexi-Van to place the Naviera account in default. However, the business relationship continued, as illustrated by a lease for 100 containers in October, 1986.

 The third personal guaranty (the second substitute guaranty and the one at issue in this case) was signed by Estefano Isaias on April 15, 1987. The delay was caused by the fact that Isaias was unavailable and the document, drafted by Flexi-Van, was being reviewed by different attorneys at Naviera. During the period leading up to the execution of the 1987 guaranty, Naviera's pre-existing debt of over $ 142,300 was paid.

 Like the two previous guaranties, the 1987 document did not refer to any specific leases and did not have any attachments. The guaranty stated in pertinent part:

 
For value received and in consideration for and as an inducement to Flexi-Van Leasing, Inc., . . . in making lease agreements ("the Lease" or "Leases") with [Naviera] . . . (the "Lessees") . . . the undersigned, . . . hereby guarantees to you [Flexi-Van], . . . the due regular and punctual payment of the total rental as provided in the Leases, . . . and further guarantees that the Lessees will faithfully perform and fulfill all agreements and obligations provided in the Leases at the time and in the manner therein provided. The undersigned agrees to pay on demand all losses, costs, reasonable attorney's fees, or expenses which may be suffered by you by reason of Lessees' default . . . The extension of the time of payment or the renewal of the Leases or the extension of the time of performance of agreements or any other indulgence may be granted to the Lessees . . . without ...

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