USCA1 Opinion

March 6, 1996

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 95-1892

MIGUEL SUCH-GONZALEZ AND BARBARA TERNOSKY,

Plaintiffs, Appellants,

v.

ADMINISTRACION DE FOMENTO Y DESAROLLO AGRICOLA, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, U.S. District Judge]

___________________

____________________

Boudin, Circuit Judge,

_____________

Coffin and Rosenn*, Senior Circuit Judges.

_____________________

____________________

Fernando L. Gallardo for appellants.

____________________
Ernesto Hernandez Milan for Commercial and
________________________

Farm Credit and

Development Corporation of Puerto Rico.

Wally de la Rosa Vidal for Puerto Rico Land Authority.
______________________

____________________

____________________

____________________

*Of the Third Circuit, sitting by designation.

COFFIN, Senior Circuit Judge.

____________________

This is the culmination of an

aging

his

lawsuit brought by a

pioneer Puerto Rico

then wife against the Commonwealth

rice farmer and

sponsor, the Puerto Rico

Land Authority (Authority), and financer, the Commercial and Farm

Credit

Development

Corporation

(CFCDC),

arising

out

of what

proved to be an ill-fated rice growing program.

Appellants,

having

adversary proceeding

complaint, so

causes

liability."

under

far as we

of action:

filed

bankruptcy,

U.S.C.

brought

1334.

The

are presently concerned,

The district

In April of

11

breach of

defendants on all counts.

in

contract, defamation,

court

granted

this

amended

alleged three

and "lender

summary judgment

to

We affirm.

1980, appellants entered into a lease agreement

with the Authority in which they leased 325.60 cuerdas of land in

Manati

for rice growing purposes

at an annual

rent, payable in

advance,

of $40 per cuerda,

less property taxes.

Under clause

27, the Authority was to deliver the land "duly razed and leveled

for the harvesting of rice

and with the canals for

draining

constructed."

"expanded"

said

lands duly

flooding and

Clause 34,

however,

clause 27 to provide both that the leveling should be

"precise" and that, if the lessor could not deliver any land with

precise leveling, "the

parties will renegotiate in order to make

an adjustment in the lease payments."

Clause 32

covenants

and

provided that the lease

stipulations agreed

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agreement contained "all

upon by

the parties."

And

clause

33

provided

that

the

lease

payment

was

subject

to

loan

to

renegotiation after the first year.

In

September

appellants, in

refinancing

of

the amount

CFCDC

made

of $200,000.

loan of $285,000; in

1985, one of $457,609.

for

1980,

its

In 1981

1984, one of

there was

$410,000; and in

Appellants made a first payment of $3,300

approximately half of the first semester.

were made.

first

No other payments

While the first

harvest of

rice, in October

of 1980,

was

excellent, the rest of the story is one of continual problems and

frustrations.

At

some

"backwards," and had to

was

point,

two

be releveled by

dug too deep, allowing seepage of

airplane

available

effective work.

for seeding

at another,

hindered

were

the Authority.

salt water.

flew too

late

leveled

well

The solitary

in the

day for

There was trouble in getting equipment released

and delay in decisions.

listened to.

fields

Experts were called in but allegedly not

Blast (a disease) afflicted the rice

the digging of a

operations.

ditch across some

at one point;

of the property

And appellants were moved from one farm to

another.

Nevertheless, appellant

Such (his

Rico in 1985) continued to farm the

wife having left

Puerto

property until July of 1986.

Indeed, according to his deposition testimony, what

head

of the

project" was

the coming

to power

"cut off the

of

the Popular

Democratic Party in 1985.

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In

September of

proceeding in

1986,

superior court,

the Authority

brought an

alleging a delinquency

eviction

in rental

payments of over $120,000.

the course of six

The court found that appellants, over

years, had not sought renegotiation,

the amount owed the Authority was $101,714.34.

appellants

were

ordered

to

vacate.

appellants filed in bankruptcy

In

and that

In March of 1987,

February

and in December of the

of

1987,

same year

brought this action.

DISCUSSION

Breach of Contract.
__________________

The

the principle that "a party to a

perform

district court properly

invoked

bilateral contract who does not

his obligations under the contract may not sue the other

contracting party for breach

of contract."

We quote some of the

court's discussion:

Under the common law doctrine of exceptio non aditempli

______________________

contractus, a
__________

party to

a bilateral contract

not perform his obligations

who does

under the contract may not

sue the other contracting party for breach of contract.

Constructora Bauza, Inc. v. Garcia Lopez, 91 JTS 99, p.
________________________________________
9077

(1991); Martinez v. Colon Franco, 89 JTS 109, p.

_________________________

7291 (1989);

Heirs of Escalera v. Barreto,

_____________________________

580, 591 (1959).

breach of

This

[footnote and

[sic]

breaches a

defense

doctrine provides a defense

contract derived from the

Code.

81 P.R.R.

citation

material

to

Puerto Rico Civil

omitted]

clause of

If a

leasee

the lease,

the

of exceptio non aditempli contractus clearly

___________________________________

applies to

shelter the

lessor from liability

for his

own failure to perform.

Appellants

claiming

that

contract, citing

challenge

the

the

Authority

the incidents

application of

early

we have

and

this

often

principle,

breached

summarized.

the

They also

sketchily claim in their brief that they requested renegotiation.

But

we

have

read

their

ill-assorted

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appendix

and

have

meticulously reviewed

the excerpts

depositions they have included.

furnished us from

the three

There is no hint of any request

for renegotiation or of any indication that any of the trials and

tribulations which they

payment

faced were considered as breaches.

Non-

of rent for six years, during which CFCDC disbursed some

$800,000 on appellants' account, under a lease which specifically

allowed the possibility of

change in rent if

renegotiation were

requested, and the total absence of any request for renegotiation

dictate

our affirmance

of

summary judgment

on

the breach

of

contract claim.

Lender Liability.
_________________

generally

claim,

of both

the

While the

Authority and

paragraph 47 makes clear

predecessor

of CFCDC) is

complaint refers

CFCDC as

to actions

supporting this

that only Credito Agricola (the

being charged.

Appellants'

brief on

appeal also confines this issue to CFCDC.

Appellants aver that, in

liability,

breach of contract,

limitations,

ruling on the

may

also serve

addition to tort bases

with its fifteen

as a

basis.

Our

breach of contract issue disposes of

such support for lender liability here.

for lender

year period of

discussion and

any claim of

The district

liability claims

court summarized appellants' tort based lender

as intentional

or negligent failure

to comply

with obligations under the contract, "complete control" over rice

operations, pressure

fiduciary

exerted because of such

duties, and bad faith.

control, breach of

The court looked in vain for

specific information about actions under these headings and times

-5-

when

they

were allegedly

committed.

It

ruled that

the only

allegation approaching specificity, notice of a three month delay

in

furnishing equipment, occurred in 1984,

before filing of the complaint.

far exceeding a year

It held the claim time barred.

The only specific conduct pointed to by

brief

as evidence

testimony

of

of tortious

one

former

financial aid was "always

everything

appellants in their

overreaching was

project

supervisor,

the deposition

Barbosa,

a problem because they wanted

that was going to

be done."

that

to know

Appellants complain in

their brief that CFCDC's predecessor "went as far as to condition

their financing to their adhering

strictly to the conditions and

methods established by the Rice Project .

agreement itself

itself

to

provided, in

conduct

the

clause 29:

seeding

and

. . ."

But the

lease

"'The lessee'

binds

harvesting

of

rice

in

accordance with the provisions of [the Rice Project]."

We

find no suggestion of

a genuine issue

of material fact

relevant to the lender liability claim, and certainly none within

the one year limitations period.

Defamation.
__________

simply

is

not

allegations are

As for

supported

defamation cause

by

anything

phrased in the

defamatory statements

Such

was

the

action, it

record.

The

terms: "false

and

periods of

1983 and 1984

and

various persons of the public,

business community, and of the press

Miguel

in

of

most general

during the

continuing in 1987, among

the

the

deceitful,

-6-

and of

. . . that coplaintiff

fraudulent

and

made

false

representations of payment of

his obligations and

. . . was

in

breach of his agreements with all the defendants . . . ."

The

furnished

only

to

documentation

us

was an

excerpt

appellant Barbara Ternosky.

She left Puerto Rico in 1985.

and 1984, she

in

support of

from

the

these

allegations

deposition of

co-

Her testimony is exceedingly frail.

As concerns any statements in 1983

thought "there were,

like, negative things

going

on, being

said

about the

rice project

. .

."

She

later

confessed that she did not recall anything that was said.

Appellant Such, in his deposition, said that he recalled one

article in

some unmentioned publication

in which a

the Authority said some things damaging to him.

director of

But, when asked,

he could not recall what had been said.

Such threads are

happened in

of,

not even

gossamer.

1983 and 1984 that

defamation.

And

We

see nothing

rises to, or sinks

of course

there

is no

that

to the depth

indication

that

anything was said within the one year limitations period.

This

concerned.

been able

has

been

history

But they must be

inhospitable

left where they are.

to discern the faintest glimmer

material fact.

to

all

parties

We have not

of a genuine issue of

Affirmed.
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