FDIC v. Abraham ( 1998 )


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  •                      REVISED, April 28, 1998
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 97-30411
    FEDERAL DEPOSIT INSURANCE
    CORPORATION, as receiver and
    subrogee of Capital Union Savings
    FA and Capital-Union Savings
    Association and in its corporate
    capacity as manager of the FSLIC
    Resolution Fund,
    Plaintiff-Appellant,
    versus
    INSA S. ABRAHAM, ET AL.,
    Defendants,
    INSA S. ABRAHAM, NAYLOR M. CRAGIN,
    JAMES S. EMERY, CHARLES C. GARVEY,
    WILLIAM L. MILLER, G. ALLEN PENNIMAN,
    JR., RAYMONE G. POST, JR., M. J.
    RATHBONE, JR., PAUL R. REEVES, ROBERT
    M. STUART, O.M. THOMPSON, JR., O.M.
    THOMPSON, III, WILLIAM H. WRIGHT, JR.,
    DANIEL H. HOFFMAN, JR., HIBERNIA
    NATIONAL BANK, in its capacity as
    curator of the property and estate
    of Henry W. Jolly, Jr.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Middle District of Louisiana
    March 13, 1998
    Before JOLLY, WIENER and STEWART, Circuit Judges.
    WIENER, Circuit Judge.
    The FDIC, as statutory successor to the RTC, appeals the
    district court’s grant of summary judgment dismissing the suit
    filed by the RTC in June 1993 against fifteen (15) former officers
    and directors (collectively, Appellees) of Capital-Union Savings,
    F.A.       The gravamen of the district court’s judgment was its
    determination that the claims asserted against Appellees for breach
    of their fiduciary duties sounded in unintentional tort, i.e.,
    negligence (or gross negligence), and were thus time barred by
    Louisiana’s one-year prescriptive period; that none of the claims
    against        Appellees   ——   including   the   claim   arising   from   the
    repurchase of another thrift’s participation in the so-called
    Esplanade Mall Loan1 —— rose to the level of fraud, self-dealing,
    bad faith, or any other kind of misdeed that would constitute a
    breach of Appellees’ fiduciary duty of “good faith” under the
    applicable state statute.2
    The district court concluded that its decision was mandated by
    1
    The FDIC’s late efforts to create a genuine issue of
    material fact by recharacterizing Appellees’ action in the
    repurchase of Royal Palm’s participation is unavailing; at worst it
    amounted to gross negligence and at best to a permissible exercise
    of their collective business judgment.
    2
    La. Rev. Stat. Ann. § 6:291 (West 1986) (amended 1992). The
    1992 amendments to Title 6 of the Louisiana Revised Statutes made
    § 6:291 applicable to officers and directors of banks and bank
    holding companies only, adding a new provision —— § 6:786 —— to
    cover officers and directors of other financial institutions,
    presumably including savings and loan associations and other
    “thrifts.”
    2
    our holding in FDIC v. Barton,3 in the opinion of which we state
    that “[g]ross negligence is a violation of the duty of care, but
    unless it is coupled with fraud, a breach of trust or other ill
    acts, it does not constitute a breach of fiduciary duty.”4         The
    Barton opinion goes on to say that “[t]o set out a claim for the
    breach of fiduciary duty, the FDIC would have to have alleged the
    failure of good faith and loyalty by the Directors.”5
    The principal thrust of the FDIC’s position on appeal is that,
    irrespective of what we held in Barton, we are now Erie-bound to
    abandon that case as binding precedent and follow the subsequent,
    purportedly opposite holding of a Louisiana intermediate court of
    appeal in Theriot v. Bourg.6      In considering the fiduciary duty of
    corporate directors in Louisiana under the Business Corporation
    Law,7 which contained language identical to the wording of the
    statutes that applied to bank and savings and loan directors at the
    times relevant to the instant suit, the Theriot court merely
    approved the trial court’s jury charge which described the duty of
    officers and directors of Louisiana corporations as “two-fold:
    First, is the duty to act in good faith.     Second, there is the duty
    3
    
    96 F.3d 128
     (5th Cir. 1996), reh’g and suggestion for reh’g
    en banc denied, 
    104 F.3d 700
     (5th Cir. 1997).
    4
    Id. at 133-34.
    5
    Id. at 133 (citing FDIC v. Duffy, 
    47 F.3d 146
    , 152 (5th
    Cir. 1995) (quoting Gerdes v. Estate of Cush, 
    953 F.2d 201
    , 205
    (5th Cir. 1992)).
    6
    
    691 So.2d 213
     (La. Ct. App.), writ denied, 
    696 So.2d 1008
    (La.), recons. denied, 
    701 So.2d 146
     (La. 1997).
    7
    La. Rev. Stat. Ann. § 12:91 (West 1994).
    3
    to act with due care. . . .       The law does not require that the
    officers or directors who breach their fiduciary duties as to the
    corporation profit financially from the corporation’s loss before
    they can be held liable for damages resulting from their breach of
    duty.”8     The Theriot court went on to say that it was unpersuaded
    by our decision in Louisiana World Exposition v. Federal Insurance
    Company.9
    The Louisiana Supreme Court denied writs in Theriot; and it is
    clear that in doing so the court was aware of our Barton opinion,
    as it was argued in support of the writ application.    What effect,
    if any, Barton may have had in the decision to deny writs is
    unknown.     What is known, however, is that Theriot did not involve
    the issue of time bar.    Neither can the opinion in Theriot be read
    as a clear and unequivocal holding     —— as the FDIC would have us
    read it —— that (1) the version of the state statute defining the
    fiduciary duty of officers and directors of banks and savings and
    loan associations then in effect created a single duty, (2) such
    duty was personal under the Louisiana scheme rather than general or
    delictual, or (3) the prescriptive period applicable to any breach
    of the duty, whether it be the facet implicating loyalty and good
    faith or the facet comprising the “prudent man” rule, was subject
    8
    Theriot, 691 So.2d at 221-22.
    9
    
    864 F.2d 1147
    , 1152 (5th Cir. 1989) (holding that simple
    negligence alone was insufficient to establish personal liability
    of an officer or director of a nonprofit Louisiana corporation;
    “[I]n order to recover against any defendant, the plaintiff must
    establish at least gross negligence on the part of that
    defendant.”).
    4
    to the prescriptive period of ten years.
    Our well-known standard of review of the district court’s
    grant of summary judgment is de novo.10    “To the extent a district
    court’s grant of summary judgment is based on an interpretation of
    state law, our review of that determination is also de novo.”11
    Even though federal subject matter jurisdiction of the case we
    review on appeal today is not grounded in diversity of citizenship,
    we nonetheless apply the rules of interpretation that have evolved
    since Erie Railroad v. Tompkins12 to the controlling state law here
    under examination.    “When adjudicating claims for which state law
    provides the rules of decision, even when those claims are ``federal
    questions’ in form, we are bound to apply the law as interpreted by
    the state’s highest court.”13 And, when a state’s highest court has
    not spoken on an issue, our task is to determine as best we can how
    that court would rule if the issue were before it.   In so doing, we
    are bound by an intermediate state appellate court decision only
    when we “remain unconvinced ``by other . . . data that the highest
    court of the state would decide otherwise.’”14
    10
    FDIC v. Myers, 
    955 F.2d 348
    , 349 (5th Cir. 1992).
    11
    Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 
    55 F.3d 181
    , 184 (5th Cir. 1995).
    12
    
    304 U.S. 64
    , 
    58 S.Ct. 817
    , 
    82 L.Ed. 1188
     (1938).
    13
    Ladue v. Chevron, U.S.A., Inc., 
    920 F.2d 272
    , 274
    (5th Cir.), reh’g denied, 
    925 F.2d 1461
     (1991) (citing Commissioner
    of Internal Revenue v. Estate of Bosch, 
    387 U.S. 456
    , 465, 
    87 S. Ct. 1176
    , 1783, 
    18 L.Ed.2d 886
     (1967)).
    14
    
    Id.
     (internal citations omitted). C.f. Green v. Walker,
    
    910 F.2d 291
    , 294 (5th Cir. 1990) (Louisiana appellate court
    decision merely a “guide” to federal court in its decision-making
    5
    Among the “other . . . data” that might contribute to our
    remaining unconvinced that the Louisiana Supreme Court would decide
    contrary to our decision in Barton is the fact that the Louisiana
    statutes that delineate the fiduciary duties of an officer or
    director of a bank or other financial institution were amended in
    1992 by legislation (which, incidentally, appears to conform to our
    holding in Barton) clarifying that an action for the breach of an
    officer’s or director’s duty of care (including a breach based on
    gross negligence) has a different prescriptive period than a breach
    of the duty of good faith (intentional breaches of the duty of
    loyalty, and acts or omissions of bad faith, fraud, or violations
    of law).      The clarifying legislation specifies that negligence
    actions against such fiduciaries must be filed within one (1) year
    following the date of the act, omission, or neglect, or within one
    (1) year after it was or should have been discovered, but in no
    case later than three (3) years from the date of the act, omission
    or neglect.    On the other hand, that legislation specifies a two-
    year prescriptive period and four-year preemptive period for such
    fiduciaries’ intentional and fraudulent breaches of the duty of
    good faith of such fiduciaries.15 Such expressions by the Louisiana
    legislature augur against an eventual Louisiana Supreme Court
    holding that would make Barton clearly wrong.
    process) and Wood v. Armco, Inc., 
    814 F.2d 211
    , 213 n.5 (5th Cir.
    1987) (“The decision of an intermediate appellate state court
    guides, but is not necessarily controlling upon, the federal court
    when determining what the applicable state law is.”).
    15
    See La. Rev. Stat. Ann § 6:293, added by Acts 1992, No.650,
    and § 6:787, added by Acts 1992, No. 586 (West Supp. 1998).
    6
    And, if we are chary to rely on —— much less be bound by ——
    the holding of one intermediate state appellate court as the
    harbinger of such a future ruling by the state’s highest court, we
    are doubly so when, as now, the state in question is Louisiana,
    where the primary sources of law are its constitution, codes, and
    statutes and the decisions of its courts are secondary sources of
    law until and unless the numbers and unanimity of such decisions
    achieve         the   force   of   law   through   the   Civil   Law   doctrine   of
    jurisprudence constante.16 Likewise, our usual reluctance to use the
    single holding of but one among a number of intermediate state
    courts of appeal as the foundation of an “Erie-guess” about how the
    highest court of the state might rule on a given issue of state law
    is further heightened in the instant case by the realization that
    the FDIC’s purpose in urging us to do so is to have us disregard
    our decision in Barton in favor of such a guess.                  Thus the appeal
    we consider today places us squarely at the legal intersection
    where the foregoing Erie rules for interpreting state law collide
    with the doctrine of stare decisis.
    We are, of course, a strict stare decisis court.                   One aspect
    of that doctrine to which we adhere without exception is the rule
    that one panel of this court cannot disregard, much less overrule,
    the decision of a prior panel.17             Adherence to this rule is no less
    16
    Songbyrd, Inc. v. Bearsville Records, Inc., et al.,
    
    104 F.3d 773
    , 776 (citing Alvin B. Rubin, Hazards of a Civilian
    Venturer in a Federal Court: Travel and Travail on The Erie
    Railroad, 48 La.L.Rev. 1369, 1372 (1988)).
    17
    United States v. Taylor, 
    933 F.2d 307
    , 313 (5th Cir.),
    cert. denied, 
    502 U.S. 883
    , 
    112 S. Ct. 235
    , 116 L.Ed.2d. 191
    7
    immutable when the matter determined by the prior panel is the
    interpretation of state law: Such interpretations are no less
    binding on subsequent panels than are prior interpretations of
    federal law.18     Thus, when a panel is considering a governing
    question of state law on which a prior panel has ruled, the
    subsequent    panel’s    obligation    to     follow   that   ruling   is    not
    alleviated by intervening decisions of intermediate state appellate
    courts unless such “subsequent state court decisions . . . are
    clearly contrary to a previous decision of this court.”19
    This    general    rule,   as   quoted    from    Pruitt,   arises     from
    identical language in Farnham v. Bristow Helicopters, Inc.,20 which
    itself relied on the following comment in Broussard v. Southern
    Pacific Transportation Co.:
    [A] prior panel decision “should be followed by other
    panels without regard to any alleged existing confusion
    in state law, absent a subsequent state court decision or
    statutory amendment which makes this Court’s [prior]
    decision clearly wrong.”21
    Neither Broussard nor Lee clarified precisely what is meant by “a
    (1991).
    18
    Broussard v. Southern Pac. Transp. Co., 
    665 F.2d 1387
    , 1389
    (5th Cir. 1982) (en banc).
    19
    Pruitt v. Levi Strauss & Co., 
    932 F.2d 458
    , 465 (5th Cir.
    1991)(citing Farnham v. Bristow Helicopters, Inc., 
    776 F.2d 535
    ,
    537 (5th Cir. 1985)); see Lee v. Frozen Food Express, Inc.,
    
    592 F.2d 271
    , 272 (5th Cir. 1979) (our own precedent “should be
    followed by other panels . . . absent a subsequent state court
    decision or statutory amendment which makes this Court’s decision
    clearly wrong.”).
    20
    
    776 F.2d 535
    , 537 (5th Cir. 1985).
    21
    Broussard, 
    665 F.2d at 1389
     (quoting Lee, 
    592 F.2d at 272
    ).
    8
    subsequent state court decision . . . which makes this Court’s
    [prior] decision clearly wrong,” but, at a minimum, a contrary
    ruling squarely on point is required.        We read Broussard and Lee to
    contemplate a ruling from a state’s highest court only, by virtue
    of the close proximity of the references to such courts and
    statutory amendments. Admittedly, Farnham relied on two subsequent
    contrary state appellate court decisions to justify disregarding
    our prior precedent; yet even in Farnham there were ultimately four
    intermediate      appellate    court   decisions    (two   prior     and     two
    subsequent) from three of Louisiana’s five courts of appeal, and
    the holdings in all four cases were squarely contrary to our
    precedent.
    We conclude then, that when our Erie analysis of controlling
    state law is conducted for the purpose of deciding whether to
    follow or depart from prior precedent of this circuit, and neither
    a clearly contrary subsequent holding of the highest court of the
    state nor a subsequent statutory authority, squarely on point, is
    available for guidance, we should not disregard our own prior
    precedent on the basis of subsequent intermediate state appellate
    court precedent unless such precedent comprises unanimous or near-
    unanimous holdings from several —— preferably a majority —— of the
    intermediate appellate courts of the state in question.
    But   even    in   the   alternative   that   we   would   be   prone    to
    disregard our own precedent on the basis of nothing more than one
    contrary opinion of but one of the several intermediate courts of
    appeal of the state in question, we would not do so in this case.
    9
    For even a cursory comparison of the issues, discussions, and
    holdings in Barton and Theriot demonstrates beyond cavil that the
    pure holding of Theriot is not “clearly contrary” to the holding of
    Barton. In a nutshell, Theriot recognizes that the state statutory
    language under examination in both cases requires officers and
    directors to discharge their fiduciary duties in ways that are free
    of, inter alia, negligence.22     Barton, on the other hand, concerned
    only the question whether the breach of a fiduciary’s duty of care
    under the prudent man standard of the statute is subject to the
    one-year liberative prescription for delicts or, by virtue of its
    inclusion in the statutory listing of the standards of care of a
    fiduciary,   is   subject   to   the    ten-year   prescription   that   is
    applicable to a fiduciary’s breach of the duty of loyalty or good
    faith —— the precise issue on which the decision of the district
    court turned in the instant case.           Thus, even if aspects of the
    reasoning in the state appellate court decision in Theriot are
    contrary to some aspects of the reasoning in Barton, we cannot say
    that the holding in Theriot is “clearly” contrary to the holding in
    Barton.
    Inasmuch as we agree with the district court’s conclusion that
    all claims asserted by the FDIC (including the claim emanating from
    the Esplanade Mall matter) sound in negligence, it follows that the
    22
    Although not at issue here, both cases implicitly recognize
    that officers and directors in Louisiana also must discharge their
    fiduciary duties in good faith, i.e., free of fraud, self-dealing,
    and other such ill acts; and, again implicitly, that breach of a
    duty of good faith by officers and directors is subject to the ten
    year prescription for personal actions.
    10
    district court correctly determined that it was constrained by our
    decision in Barton to hold that those claims are barred by the one-
    year period of prescription for delictual actions.      And, as we
    reach the same conclusion in our de novo review regarding the
    nature of the FDIC’s claims, and —— like the district court —— are
    bound by the holding in Barton, we affirm in all respects the
    district court’s grant of summary judgment dismissing the claims of
    the FDIC against Appellees.
    AFFIRMED.
    11