* Because of illness, Judge John Minor Wisdom was not present

at the oral argument of this case; however, having had available

the tape of oral argument, he participated in this decision.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-1335

FEDERAL DEPOSIT INSURANCE CORPORATION,

Plaintiff-Appellee

Cross-Appellant,

versus

REX P. FULLER, Individually and as

Independent Executor of the Estate

of R.P. Fuller, deceased,

Defendant-Appellant

Cross-Appellee,

and

ANN FULLER CLAYTON, f/k/a Ann Fuller

Lydick, and JANE FULLER JACKSON, d/b/a

Lydick-Jackson Joint Venture,

Defendants

CrossAppellees.

Appeals from the United States District Court

for the Northern District of Texas

(June 21, 1993)

Before WISDOM * , GARWOOD, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

I.

The FDIC sued on a promissory note executed by Rex P. Fuller

on behalf of himself, his sisters, Ann Fuller Lydick Clayton and1 We throughout refer to the makers as "Fuller."

2 Jane Fuller Jackson, and his father, R.P. Fuller in favor of

Continental Illinois National Bank and Trust Company of Chicago in

December 1984. The makers defaulted in May 1986 and Continental

accelerated the note and sued in September 1986. Fuller 1

counterclaimed for fraud, racketeering, and civil conspiracy.

In April 1987, Continental assigned Fuller's note to the FDIC

in its corporate capacity. The FDIC and the Fullers then began

settlement negotiations agreeing to temporarily dismi ss the suit

during their effort. When no settlement was reached, the FDIC sued

on the note in September 1990.

Fuller answered the FDIC's claim in part by a plea of laches.

At trial, the court rejected the defense of laches holding that

laches cannot be asserted against the FDIC in its corporate

capacity. The jury returned a verdict in favor of the FDIC for the

principal amount of $4,500,096.50. The court awarded the FDIC

costs, po st-judgment interest, and counsel fees, but denied

prejudgment interest.

II.

Fuller urges that the court erred in rejecting laches as a

defense and asks for a trial of the issue. The FDIC cross-appeals

the denial of prejudgment int erest. We do not reach the broad

contention that laches is never a defense to a claim by the FDIC in

its corporate capacity. We conclude that laches is, in any event,

n ot a defense to the legal claim against Fuller and t hat the

district court did not err in not awarding prejudgment interest.3

The FD IC argues that laches is not a defense to its legal

claim, a suit on the note for debt. The FDIC points out that it

filed suit within the limitations period and that it is equally

clear that the FDIC asserted a legal and not an equitable claim.

The FDIC relies on Clark v. Amoco Production Co.

, 794 F.2d 967

(5th Cir. 1986), in which we held that under Texas law, laches is

usually not a defense unless the claim is "of an essentially

equitable character." Judge Rubin articulated the consistent

principle behind laches as "equitable remedies are not available if

granting the remedy would be inequitable to the defendant because

of the plaintiff's long delay." Environmental Defense Fund, Inc.

v. Alexander

, 614 F.2d 474, 478 (5th Cir.), cert. denied

, 449 U.S.

919 (1980). This principle illustrates the equitable nature of the

laches defens e, implying its inapplicability to claims for legal

remedies. In F ranks v. Bowman Transp. Co.

, 495 F.2d 398, 406 (5th

Cir. 1974), rev'd on other grounds

, 424 U.S. 747 (1976), we stated

that "[i]n an equitable action, equitable defenses may be raised,

and these include the doctrine of laches." The converse would be

that in legal a ctions, laches is not available. S ee Morgan v.

Koch , 419 F.2d 993, 996 (7th Cir. 1969).

T his would end the matter but, we are told, ther e is an

exception to this general rule. In "extraordinary circumstances,"

laches may be asserted before limitations has run. Of course, this

sidesteps the issue of whether laches can bar a legal claim filed

within the statute of limitations and the on ly relevant Fifth

Circuit precedent we are pointed to involved claims that the Court4

cha racterized as "essentially equitable" in nature. S ee, e.g.

,

Franks

, 495 F.2d at 406. The appellants do gain some support from

S.E.R., Jobs F or Progress, Inc. v. United States , 759 F.2d 1, 8

(Fed. Cir. 1985), where the Court stated that laches is not

inapplicable in contract cases p er se

. Instead, the Federal

Circuit stated that laches cannot be asserted against legal claims

where a statute of limitations is available to preclude recovery on

stale claims "unless the offended party has been unmistakably

prejudiced by the delay." I d

. at 9. We question this "exception"

because it does not admit principled limits but we need not cross

this bridge because even if we assume laches is available in

"extraordinary" circumstances or where the defendant is

"unmistakably prejudiced," nothing supports its application here.

Fuller argues that the FDIC's delay of two years caused the

loss of witnesses and access to evidence that would have supported

third party claims of fraud, racketeering, and civil c onspiracy

against Continental. In the dismissal agreement, Fuller agreed not

to refile claim s against Continental until or unless the FDIC

refiled suit. The decision not to pursue discovery regarding these

claims was unilateral.

Fuller alleges that a key witness die d during negotiations,

another witness could no longer recollect the relevant events and

involved employees of Continental left the company's employment and

cannot be located. Yet Fuller admits that the death was one month

after the original case was dismissed, a loss hardly the result of

the delay. In addition, he does not allege that he had been aware5

of the whereabouts of the missing witnesses when the case was

dismissed and later lost track of them. There is no contention

that the witness with the failed memory had any recollection of the

events when the case was originally dismissed. Two years does not

account for the witness's inability to recall events from ten years

ago. Those events were eight years old when Fuller first filed his

counterclaims.

The FDIC denies that any delay caused the loss of any claims.

In Matter of Bohart

, 743 F.2d 313 (5th Cir. 1984), we held that

loss of a claim during a delay is not enough. Rather, the delay

must cause the loss. I d

. at 326-27. Fuller was free to pursue

discovery during negotiations. In addition, there is no suggestion

that h e would have had access to the "lost" evidence before the

delay.

III.

At trial, FDIC employee Winget, the only witness to testify

regarding the amount due on the note, testified that the principal

amount due was $4,500,096.50. He also testified that the accrued

interest as of January 3, 1992, was $2,239,273.62. Winget did not

personally calculate the interest due.

The promissory note provided for payment of interest by Fuller

as follows:

. . plus interest (on the basis of a year consisting of 365,

or when appropriate 366, days) from the date hereof until

maturity at a fluctuating rate per annum equal to the sum of

the pr ime interest rate of the Bank [Continental] (being at

any time the rate per annum then most recently announced by

the Bank at Chicago, Illinois as its prime rate) in effect

from time to time, plus one percent (1%), such rate to change

concurrently with each change in said prime rate as publicly6

announced by the Bank, on t he principal balance hereof

remaining from time t o time unpaid, payable monthly on the

first day of each month hereafter, commencing January 1, 1985,

and at maturity, and with interest after maturity (whether by

acceleration or otherwise) on said principal balance until

paid at a rate per annum which is in effect from time to time

(but not less than the prime rate in effect at maturity), plus

two percent (2%), all such payments of principal and interest

to be made in lawful money of the United States in immediately

available funds.

There was no evidence regarding Continental's prime rate or dates

on which it changed.

In closing argument, the FDIC req uested a total award,

including principal and interest, in excess of $6.7 million. The

jury awarded $4,500,096.50. The district court denied the FDIC's

motion to amend the judgment to include an award for the alleged

prejudgment interes t. We review the district court's denial of

this motion for abuse of discretion. Midland West Corp. v. FDIC

,

911 F.2d 1141, 1145 (5th Cir. 1990).

Fuller vigorously contested the FDIC's proof of the a mount

due. In particular, he argued to the jury that Winget had no

personal knowledge regarding the facts and calculations leading to

his interest amount testimony. Fuller asked the jury to award no

money where the FDIC failed to proof the amount due with a

preponderance of the evidence. The most likely inference from the

jury's award is that it rejected the interest testimony. We are

not persuaded that the district court abused its discretion by

declining to amend the judgment.

AFFIRMED.