Young v. Federal Deposit Insurance

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT H. YOUNG; EDX HOLDINGS,
INCORPORATED,
Plaintiffs-Appellants,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for Hilton
Head Bank & Trust Company,
N.A.; FIRST PACIFIC CORPORATION;
SWISS-AMERICAN FIDELITY INSURANCE
COMPANY AND GUARANTEE, LIMITED;
ATTILIO FRANCIULLI; JOHN ROCHE;
No. 95-1897
TOM RUHF; GEORGE STRICKLAND;
PRICE WATERHOUSE, Chartered
Accountants, a Bahamian
Partnership; LEE S. PIPER;
HERBERT C. SCHULKEN, JR.; DENNIS J.
GOGINSKY, and other possible
partners of Price Waterhouse LLP,
such as are residents of South
Carolina,
Defendants-Appellees,
and
BRUCE BENN; CORPORATION HOUSE,
LIMITED; RAYMOND JONES; WILLIAM
RUTH; ALFRED MARTIN; GENERAL
BENNETT; TOM WHELAN; CLAUDE
SURFACE; CON FECHER; ED HUGHES,
HELEN CORK; WILLIAM EAXLEY; AN
GROSSHUESCH; CATHY MCGILL, other
possible officers and directors of
Hilton Head Bank and Trust
Company, N.A., after July 1988,
not yet ascertained; HILTON HEAD
BANK & TRUST COMPANY, N.A.;
TONY HABIB,
Defendants.
Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Falcon B. Hawkins, Senior District Judge.
(CA-89-1398-9-1, CA-92-308-9-1)
Argued: September 25, 1996
Decided: January 10, 1997
Before MURNAGHAN and HAMILTON, Circuit Judges, and
MERHIGE, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Hamilton and Senior Judge Merhige joined.
_________________________________________________________________
COUNSEL
ARGUED: George Hunter McMaster, Columbia, South Carolina, for
Appellants. Jerome Anthony Madden, FEDERAL DEPOSIT INSUR-
2
ANCE CORPORATION, Washington, D.C.; Andrew John Pincus,
MAYER, BROWN & PLATT, Washington, D.C.; Thornwell Forrest
Sowell, III, SOWELL, TODD, LAFFITTE, BEARD & WATSON,
L.L.C., Columbia, South Carolina; Brett Alan Feinstein, Miami
Beach, Florida, for Appellees. ON BRIEF: Ann S. DuRoss, Assistant
General Counsel, Colleen B. Bombardier, Senior Counsel, Maria
Beatrice Valdez, Kathy R. Bess, FEDERAL DEPOSIT INSURANCE
CORPORATION, Washington, D.C.; C. Allen Gibson, Jr., Catherine
Pulley Ballard, Christine E.W. Edenfield, BUIST, MOORE,
SMYTHE & MCGEE, P.A., Charleston, South Carolina, for Appellee
FDIC. G. Dana Sinkler, Elizabeth T. Thomas, WARREN & SINK-
LER, L.L.P., Charleston, South Carolina, for Appellees Ruhf and
Strickland. J. Calhoun Watson, Suzanne C. Massey, NELSON, MUL-
LINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South Caro-
lina; Andrew Plunkett, Office of General Counsel, PRICE
WATERHOUSE, L.L.P., New York, New York, for Appellees Price
Waterhouse and Partners.
_________________________________________________________________
OPINION
MURNAGHAN, Circuit Judge:
Plaintiff-Appellant Robert Young attempted to raise $600 million
to finance gas and oil investments. When the proposed financing
failed, Young sued those involved in the financing arrangement. The
district court dismissed the claims against some of the Appellees and
granted summary judgment to the remaining Appellees. For the rea-
sons stated below, we affirm.
I.
We recount the facts and inferences in the light most favorable to
Young. See Donmar Enters., Inc. v. Southern Nat'l Bank of N.C., 64
F.3d 944, 946 (4th Cir. 1995). In 1986, Plaintiff-Appellant Robert
Young1 sought to acquire oil and gas reserves, and he approached
_________________________________________________________________
1 EDX Holdings, Inc. is also a Plaintiff-Appellant in the instant appeal.
Young is the President and Chief Executive Officer of EDX Holdings,
Inc. For ease of reading, we refer only to Young as the Plaintiff-
Appellant throughout the opinion, but such references apply equally to
EDX Holdings, Inc.
3
ABN Bank of Canada (ABNB) to finance his venture. ABNB referred
Young to Bruce Benn, a financial advisor at Corporation House, Lim-
ited (Corporation House). Benn advised Young that he could quickly
raise purchase money for the oil and gas reserves through a "credit
enhancement" transaction. Benn, for a fee, would arrange for First
Pacific Corporation (FPC) to obtain letters of credit from international
banks, and Young would then use the letters of credit as collateral to
obtain a $600 million loan from ABNB. To provide security for the
international banks in case Young defaulted, Young would purchase
a surety bond from Swiss-American Fidelity Insurance Company and
Guarantee, Limited (SAFIG). John Roche, SAFIG's general manager,
would arrange the transaction for a fee. Thus, the letters of credit
would secure ABNB's $600 million loan, and the surety bond would
secure the international banks' letters of credit. The plan, therefore,
allowed Young to shift the primary risk from himself to SAFIG.
To initiate the credit enhancement transaction, Young had to pur-
chase a surety bond from SAFIG. SAFIG's surety bond provided $55
million worth of surety protection for a premium of $2.2 million.
SAFIG required an initial deposit of $550,000 from Young to obtain
the surety binder. Young did not want to pay cash for the transaction,
so Young had his bank, Northpark National Bank (NPNB), issue a
letter of credit for $550,000 in SAFIG's favor. On September 16,
1988, after NPNB issued the letter of credit to SAFIG, SAFIG issued
a two-month surety binder in FPC's favor, which stated that it would
only be effective if Young fully paid the $2.2 million premium.
The $550,000 deposit was supposed to be refundable until Young
authorized the issuance of the surety bond. However, on or about Sep-
tember 20, 1988, without Young's consent or approval, SAFIG
assigned the $550,000 NPNB letter of credit to FPC. Attilio Franci-
ulli, owner and director of FPC and SAFIG, then unsuccessfully tried
to cash the letter of credit at a Miami bank. After that incident, Young
told Benn that he wanted nothing further to do with FPC, Franciulli,
or Tony Habib, another owner of FPC. Unbeknownst to Young, how-
ever, Franciulli and Habib also owned SAFIG. Since Young was
unaware of their relationship to SAFIG, he proceeded with the credit
enhancement transaction with SAFIG.
For reasons unexplained in the record, SAFIG then refused to
accept the NPNB letter of credit and insisted that Young pay the
4
$550,000 deposit in cash. Young borrowed the $550,000 from NPNB.
Benn assured Young that his $550,000 loan would be secured by a
SAFIG letter of credit, so that if Young defaulted on the loan, NPNB
could proceed against SAFIG. Young borrowed the $550,000 from
NPNB, and on September 22, 1988, SAFIG issued a letter of credit
for $550,000 to NPNB.
According to Young, he agreed to borrow the $550,000 from
NPNB only because the SAFIG letter of credit secured the loan. Benn
and Young believed that SAFIG's letter of credit provided adequate
security because SAFIG had produced an audited financial statement
from Price Waterhouse-Bahamas (PW-Bahamas) that stated that
SAFIG had $12 million on deposit "with a U.S. bank based in South
Carolina." Benn believed that Hilton Head Bank & Trust, N.A.
(HHB&T) was the South Carolina bank referred to in the financial
statement because Mark Feaster, an HHB&T vice president, allegedly
indicated to Benn that SAFIG had $12 million on deposit with
HHB&T under a Trust Deposit Agreement. The Trust Deposit Agree-
ment provided that SAFIG would deposit $12 million at HHB&T and
that the funds would "not be withdrawn, pledged or otherwise encum-
bered up to the dollar equivalent of the insurance guarantees con-
firmed by the Bank." Young contends that Feaster executed the Trust
Deposit Agreement, but both Feaster and HHB&T deny it.
PW-Bahamas based the financial statement on a Standard Bank
Confirmation, purportedly signed by Feaster, which verified that
SAFIG had $12 million on deposit with HHB&T. However,
HHB&T's official records do not contain either the Trust Deposit
Agreement or the Standard Bank Confirmation. Furthermore, it is
undisputed that SAFIG never deposited $12 million at HHB&T.
HHB&T was chosen as escrow agent to facilitate the transfer of the
$550,000 between NPNB and SAFIG. Accordingly, NPNB and
HHB&T executed an escrow agreement on September 23, 1988. Pur-
suant to the escrow agreement, NPNB wired Young's $550,000 loan
proceeds to HHB&T. On or about September 30, 1988, HHB&T, in
accordance with the terms of the escrow agreement, forwarded the
$550,000 to Credit Suisse for deposit in SAFIG'S Credit Suisse
account. There is no dispute that HHB&T complied with the terms of
the escrow agreement.
5
Young, however, contends that SAFIG orally agreed that the loan
proceeds would remain on deposit at HHB&T until SAFIG issued the
surety bond. The escrow agreement does not contain or reference the
oral agreement, nor does any other document memorialize the oral
agreement.
Young then defaulted on the NPNB loan. The letter of credit that
SAFIG provided to NPNB stated that it was "payable against presen-
tation to [HHB&T] . . . or to Credit Suisse, Bahamas." Young claims
that HHB&T also confirmed the SAFIG letter of credit. Young relies
on two letters from Feaster, dated January 9 and January 20, 1989, to
support his contention. The January 9 letter, on HHB&T letterhead,
states: "We hereby acknowledge receipt and confirmation of the
attached documentation." However, no documents are attached to the
letter. The January 20 letter, also on HHB&T letterhead, confirms the
SAFIG letter of credit, but is unsigned. Young contends that the two
letters establish that HHB&T agreed to confirm and guarantee the
SAFIG letter of credit. HHB&T's official records, however, do not
contain the SAFIG letter of credit or the two January 1989 letters.
After Young's default, NPNB presented the SAFIG letter of credit,
which secured Young's $550,000 loan, to HHB&T for payment.
HHB&T, however, refused to pay.
On June 2, 1989, Young filed suit in the United States District
Court for the District of South Carolina against several defendants:
1) HHB&T;2 2) SAFIG; 3) John Roche; 4) FPC; 5) Attilio Franciulli;
6) Tony Habib; 7) Corporation House; and 8) Bruce Benn. Young
alleged violations of the Federal Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C.A. § 1961-1968 (West 1984 &
Supp. 1996), a RICO conspiracy, 18 U.S.C.A. § 1962(d)(West Supp.
1996), violations of the South Carolina Unfair Trade Practices Act
(SCUTPA), S.C. Code Ann. § 39-5-10 to -160 (Law. Co-op. 1985 &
Supp. 1995), fraudulent misrepresentation, civil conspiracy, conver-
sion, breach of contract, and wrongful dishonor, S.C. Code Ann. § 36-
5-115 (Law. Co-op. 1977).
_________________________________________________________________
2 In August 1991, the Comptroller of the Currency declared HHB&T
insolvent and the Federal Deposit Insurance Corporation (FDIC) was
appointed as its receiver.
6
On January 31, 1992, Young filed a second action against several
additional defendants: 1) Tom Ruhf, President of HHB&T; 2) George
Strickland, Vice-Chairman of the Board, Vice-President, and Trust
Officer of HHB&T; 3) various other officers and directors of
HHB&T; 4) the FDIC, in its corporate capacity;3 5) PW-Bahamas, a
partnership with its principal place of business in the Bahamas; and
6) Lee Piper, Herbert Schulken, and Dennis Goginsky, partners of
Price Waterhouse-United States (PW-US). Young demanded an
accounting and alleged negligence, negligent supervision, and viola-
tions of the National Bank Act, 12 U.S.C.A. § 194 (West Supp.
1996). The district court consolidated the two cases for trial with the
consent of counsel.
On April 24, 1990, the district court dismissed all claims under the
RICO statutes. The court also granted summary judgment to the FDIC
on the conversion claim. Young does not appeal those rulings.
On October 16, 1992, the district court dismissed PW-Bahamas for
lack of personal jurisdiction and granted summary judgment to the
PW-US partners. The court denied Young's Motion to Reconsider on
January 7, 1993. On March 31, 1993, the district court dismissed the
claims against Habib for lack of personal jurisdiction. Young appeals
the dismissal of PW-Bahamas and PW-US, but he does not appeal the
dismissal of Habib.
Franciulli filed a motion on May 19, 1993 to compel Young to
adhere to the terms of a release agreement that he and Young had
entered. The motion also requested the court to compel Young to dis-
miss Franciulli from the case because of his compliance with the
release agreement. At a hearing on August 3, 1993, the district court
granted Franciulli's motion to enforce the terms of the release agree-
ment, but the court required Franciulli to continue complying with his
obligation under the agreement to cooperate with Young. Young now
challenges the validity of the release agreement, and he appeals the
district court's ruling enforcing that agreement.
_________________________________________________________________
3 With Young's consent, the district court dismissed the FDIC, in its
corporate capacity, on April 28, 1992. The FDIC remains a party, how-
ever, by virtue of its receivership of HHB&T.
7
On September 29, 1993, the district court granted summary judg-
ment to the FDIC on the wrongful dishonor and fraud claims. On Feb-
ruary 17, 1994, the district court granted summary judgment to the
officers and directors of HHB&T, with the exception of Ruhf and
Strickland. On May 3, 1994, the district court granted the FDIC sum-
mary judgment on the SCUTPA cause of action. Young appeals the
grants of summary judgment to the FDIC, but he does not appeal the
grant of summary judgment to the officers and directors of HHB&T.
Young settled with Benn and Corporation House in August 1994.
The district court entered a final order on December 9, 1994 that
disposed of the remaining defendants and claims. The court granted
summary judgment to the FDIC on the fraudulent misrepresentation
and civil conspiracy claims. The court also granted Ruhf and Strick-
land summary judgment on the negligent supervision claim. The court
denied Young's Motion to Reconsider on March 7, 1995. Young ini-
tially appealed all of those rulings, but he settled with Ruhf and
Strickland in September 1996.
II.
A. Claims Against The FDIC
The district court granted summary judgment in favor of the FDIC
on all claims. We review those grants of summary judgment de novo.
Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d
922, 928 (4th Cir. 1995). In order to prevail on a motion for summary
judgment, the moving party must establish the absence of genuine
issues of material fact and that he or she is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
If the moving party carries its burden, the nonmoving party may not
rest on the allegations in his or her pleading, but must produce suffi-
cient evidence that demonstrates that a genuine issue exists for trial.
Id. at 324.
1. Wrongful Dishonor, SCUTPA, and Fraud Claims
Young asserts that the two January 1989 letters from Feaster prove
that HHB&T agreed to confirm the SAFIG letter of credit. He argues
8
that HHB&T wrongfully dishonored the SAFIG letter of credit when
it failed to pay the letter of credit upon NPNB's presentment. He fur-
ther contends that by wrongfully dishonoring the letter of credit,
HHB&T engaged in an unfair trade practice under SCUTPA. Young
also alleges a fraud claim based on HHB&T's transfer of the
$550,000 to SAFIG pursuant to the terms of the escrow agreement.
The district court granted summary judgment to the FDIC, as receiver
for HHB&T, on the ground that the D'Oench doctrine and its partial
codification, see 12 U.S.C.A. § 1823(e)(1) (West Supp. 1996), bar all
three claims.
The D'Oench doctrine, first described by the United States
Supreme Court in D'Oench, Duhme & Co. v. FDIC , 315 U.S. 447(1942), "prohibits claims based upon agreements which are not prop-
erly reflected in the official books or records of a failed bank or
thrift." Resolution Trust Corp. v. Allen, 16 F.3d 568, 574 (4th Cir.
1994). The doctrine serves two purposes. First, it allows federal and
state examiners to rely on a bank's records in evaluating the institu-
tion's fiscal soundness. Id. at 574. Second, it "ensure[s] mature con-
sideration of unusual loan transactions by senior bank officials, and
prevent[s] fraudulent insertion of new terms, with the collusion of
bank employees, when a bank appears headed for failure." Langley v.
FDIC, 484 U.S. 86, 92 (1987).
The original test for determining whether claims were barred under
the D'Oench doctrine was whether the agreement, oral or written,
either was designed to deceive the public authority or would tend to
have that effect. D'Oench, Duhme & Co., 315 U.S. at 460. Courts,
however, have expanded the doctrine, and it now applies in virtually
all cases where the FDIC is confronted with an agreement not docu-
mented in the institution's records. OPS Shopping Ctr., Inc. v. FDIC,
992 F.2d 306, 308 (11th Cir. 1993).
Congress substantially codified the elements of the common-law
D'Oench doctrine in order to protect taxpayers, depositors, and credi-
tors of failed financial institutions. Allen, 16 F.3d at 574. The statute
provides in pertinent part:
No agreement which tends to diminish or defeat the inter-
est of the [FDIC] in any asset acquired by it . . . as receiver
9
of any insured depository institution [ ] shall be valid against
the [FDIC] unless such agreement (A) is in writing, (B) was
executed by the depository institution and any person claim-
ing an adverse interest thereunder, including the obligor,
contemporaneously with the acquisition of the asset by the
depository institution, (C) was approved by the board of
directors of the depository institution or its loan committee,
which approval shall be reflected in the minutes of said
board or committee, and (D) has been, continuously, from
the time of its execution, an official record of the depository
institution.
12 U.S.C.A. § 1823(e)(1). A plaintiff must satisfy all four require-
ments before it can enforce an agreement against the FDIC. Allen, 16
F.3d at 574.
Section 1823(e) essentially encompasses the principles of the
common-law D'Oench doctrine. E.J. Sebastian Assocs. v. Resolution
Trust Corp., 43 F.3d 106, 108 (4th Cir. 1994). Section 1823(e) does
not, however, preempt the D'Oench doctrine. Motorcity of Jackson-
ville, Ltd. v. Southeast Bank, N.A., 83 F.3d 1317, 1327-34 (11th Cir.
1996). Thus, although the Fourth Circuit and other courts often con-
strue the D'Oench doctrine and section 1823(e) in tandem, see, e.g.,
E.J. Sebastian Assocs., 42 F.3d at 108, the common-law doctrine and
the statute remain separate and independent grounds for decision.
Reding v. FDIC, 942 F.2d 1254, 1259 (8th Cir. 1991).
The D'Oench doctrine bars Young's wrongful dishonor claim.
Young offers two January 1989 letters, one signed by Feaster and one
unsigned, to support his contention that HHB&T agreed to confirm
the SAFIG letter of credit. However, an FDIC officer attested that
HHB&T's official records contain neither the SAFIG letter of credit
nor the two January 1989 letters. Young has not refuted the officer's
affidavit. The D'Oench doctrine, therefore, prohibits Young's claim
based upon HHB&T's purported agreement because the agreement is
not properly reflected in HHB&T's official records.
The same reasoning bars Young's SCUTPA claim. As the district
court found, Young bases his entire SCUTPA claim on the wrongful
dishonor allegation. Although Young's complaint lists seven acts in
10
addition to wrongfully dishonoring the letter of credit, none could rea-
sonably be considered a trade practice of HHB&T because each
relates to the actions of other defendants. The only"trade practice"
relating to HHB&T's conduct is the allegedly wrongful dishonor of
the letter of credit. As stated above, however, the agreement that
formed the basis for that dishonor fails under the D'Oench doctrine
because it is not properly reflected in HHB&T's records.
The D'Oench doctrine also bars Young's fraud claim. NPNB and
HHB&T executed an escrow agreement that provided that HHB&T
would act as the escrow agent to facilitate the transfer of Young's
$550,000 loan proceeds between NPNB and SAFIG. Pursuant to that
agreement, NPNB wired Young's $550,000 loan proceeds to HHB&T
on September 23, 1988. On or about September 30, 1988, HHB&T,
in accordance with the terms of the escrow agreement, forwarded the
$550,000 to Credit Suisse for deposit in SAFIG'S Credit Suisse
account. No one disputes that HHB&T complied with the terms of the
escrow agreement. Young, however, alleges that SAFIG orally agreed
that the loan proceeds would remain on deposit at HHB&T until
SAFIG issued the surety bond. The escrow agreement, which was in
the bank's official records, does not contain or reference the oral
agreement, however. Nor does any other document in the bank's
records memorialize the oral agreement. The D'Oench doctrine,
therefore, prevents Young from bringing a claim based on the unre-
corded oral agreement.
Young, however, argues that neither the D'Oench doctrine nor sec-
tion 1823(e) bars his claims. He contends that the D'Oench doctrine
does not apply because he falls under the "innocent borrower excep-
tion." He contends that section 1823(e) does not apply because his
claims address a liability of the bank; they do not diminish or defeat
any specific asset of the bank.
Young first argues that the D'Oench doctrine does not apply in the
instant case because he falls under the "completely innocent bor-
rower" exception that the Ninth Circuit developed in FDIC v. Meo,
505 F.2d 790 (9th Cir. 1974). The Meo court held that the D'Oench
doctrine did not apply because the borrower at issue was "a com-
pletely innocent party." Id. at 792.
11
Although the Fourth Circuit has not previously addressed the issue,
other circuit courts of appeal that have addressed the so-called "inno-
cent borrower exception" since Meo have rejected it because it con-
flicts with the underlying rationale of the D'Oench doctrine. See, e.g.,
Motorcity of Jacksonville, Ltd., 83 F.3d at 1325 (holding that the
D'Oench doctrine applies even when the customer is completely
innocent of any bad faith, recklessness, or negligence); Dendinger v.
First Nat'l Corp., 16 F.3d 99, 102 (5th Cir. 1994) (holding that the
Fifth Circuit does not recognize an "innocent borrower" exception to
the D'Oench doctrine); In re 604 Columbus Ave. Realty Trust, 968
F.2d 1332, 1338 (1st Cir. 1992) (holding that no"complete inno-
cence" exception to the D'Oench doctrine exists).
We agree with these courts that the Ninth Circuit's complete inno-
cence exception "is based on an outdated understanding of the
D'Oench doctrine." FSLIC v. Gordy, 928 F.2d 1558, 1567 n.14 (11th
Cir. 1991). Such an exception runs contrary to the doctrine's broad
purpose of preventing private parties from enforcing claims against
the FDIC based upon agreements not found in the bank's records. The
need for bank examiners to rely on a bank's records in evaluating the
bank's fiscal soundness remains unaffected by whether or not the cus-
tomer acted innocently or negligently. Therefore, we hold that the
D'Oench doctrine applies even when the customer is completely
innocent of any bad faith, recklessness, or negligence.
In regard to section 1823(e), Young points out that the statutory
language prohibits claims based on agreements that tend "to diminish
or defeat the interest of the [FDIC] in any asset" that the FDIC
acquires as receiver of a failed depository institution. 12 U.S.C.A.
§ 1823(e)(1) (emphasis added). Young claims that since the con-
firmed letter of credit relates to a liability of the bank, rather than to
a specific asset, section 1823(e) does not bar his claim. Several cases
in other circuit courts of appeal support Young's contention. See, e.g.,
E.I. du Pont de Nemours and Co. v. FDIC, 32 F.3d 592 (D.C. Cir.
1994) (holding that section 1823(e) is narrower than the D'Oench
doctrine and that section 1823(e) applies only to cases involving a
specific asset); John v. Resolution Trust Corp. , 39 F.3d 773, 776 (7th
Cir. 1994) ("Section 1823(e) requires an identifiable ``asset' which is
acquired by the bank and then transferred to the regulatory agency,
and to which the unenforceable agreements must relate."); Murphy v.
12
FDIC, 38 F.3d 1490, 1500-01 (9th Cir. 1994) (en banc) (holding that
section 1823(e) applies only to assets and does not apply to claims
regarding letters of credit because letters of credit are liabilities rather
than assets).
However, since we hold that the D'Oench doctrine bars Young's
claims, we need not, and do not, address whether section 1823(e) also
bars his claims or whether Congress limited section 1823(e) to claims
that impair the FDIC's interest in a specific asset. Regardless of any
limitation on section 1823(e), several circuit courts of appeals have
specifically held that the common-law D'Oench doctrine is not so
limited. These courts have held that D'Oench bars claims relating to
specific assets and also bars claims relating to liabilities of a bank
under FDIC receivership. See, e.g., Inn at Saratoga Assocs. v. FDIC,
60 F.3d 78, 82 (2d Cir. 1995) (rejecting the argument that the
D'Oench doctrine is limited by an "asset" requirement because such
a requirement "would undercut an important purpose of that doctrine
--allowing the FDIC to rely on a bank's records when insuring the
bank"); Brookside Assocs. v. Rifkin, 49 F.3d 490, 496 (9th Cir. 1995)
(holding that "the common-law [D'Oench] doctrine applies to bar suit
even when the RTC does not acquire a specific asset whose value is
affected by the alleged secret agreement"); OPS Shopping Ctr., Inc.,
992 F.2d at 308-10 (noting that every circuit court of appeals that has
expressly addressed the asset limitation argument under the D'Oench
doctrine has rejected it); Timberland Design, Inc. v. First Serv. Bank
for Sav., 932 F.2d 46, 50 (1st Cir. 1991) (" D'Oench protects the FDIC
from [the plaintiff's] affirmative claims which are based upon an
alleged oral agreement to lend money in the future."); Bell & Murphy
and Assocs. v. Interfirst Bank Gateway, N.A., 894 F.2d 750, 753 (5th
Cir. 1990) (rejecting argument that the D'Oench doctrine "bars only
claims or defenses based upon unrecorded side agreements that defeat
the FDIC's interest in a specific asset acquired from a bank"); Hall
v. FDIC, 920 F.2d 334, 339 (6th Cir. 1990) (holding that the D'Oench
doctrine protects the FDIC even where the FDIC does not have "an
interest in an asset"). Moreover, the Eleventh Circuit specifically has
held that the D'Oench doctrine protects the FDIC from claims regard-
ing letters of credit. See OPS Shopping Ctr., Inc., 992 F.2d at 308-10.
We find the reasoning of these courts persuasive. The purposes
underlying the D'Oench doctrine do not support a "specific asset"
13
limitation. The Supreme Court designed the D'Oench doctrine to give
bank examiners an accurate picture of a bank's financial position. The
records of regular banking transactions should reflect all of the rights
and liabilities of the bank regarding such regular banking transactions
in order for bank examiners to evaluate the bank's fiscal soundness.
Therefore, we hold that the common-law D'Oench doctrine bars both
claims relating to a specific asset of the bank and claims relating to
a liability of the bank.
Thus, we hold that the district court properly granted summary
judgment to the FDIC on the wrongful dishonor, SCUTPA, and fraud
claims because HHB&T's official records do not contain the agree-
ments that Young relies upon to support his claims, as required by the
D'Oench doctrine.4
2. Civil Conspiracy and Fraudulent Misrepresentation Claims
Young also brought civil conspiracy and fraudulent misrepresenta-
tion claims against HHB&T. Young does not argue, however, and the
record does not reflect, that HHB&T's board of directors ordered,
authorized, or ratified any act that constituted a civil conspiracy. Nor
does Young argue that HHB&T's board ordered or ratified any false
representations. Rather, Young argues that HHB&T is liable under
the respondeat superior doctrine. Thus, he contends that we should
hold HHB&T vicariously liable on the civil conspiracy and fraudulent
misrepresentation claims for Feaster's statement on the Standard
Bank Confirmation that SAFIG had deposited $12 million dollars at
HHB&T when in fact it had not.
The district court granted summary judgment to the FDIC, as
receiver for HHB&T, on both claims. In regard to the civil conspiracy
claim, the court found that Young failed to allege special damages, an
essential element, and also failed to support the other elements of the
claim. In regard to the fraudulent misrepresentation claim, the district
_________________________________________________________________
4 Because we hold that the D'Oench doctrine bars Young's wrongful
dishonor and SCUTPA claims, we do not reach the district court's alter-
native holdings that Young failed to establish wrongful dishonor or an
unfair trade practice as a matter of law.
14
court found that Young failed to establish that he had a right to rely
on Feaster's misrepresentation, an essential element of the claim.
Although the district court granted summary judgment on the
ground that Young failed to establish the state-law elements of his
claims, we may affirm a grant of summary judgment on different
grounds than those relied on below. Lowe v. Sporicidin Int'l, 47 F.3d
124, 131 n.6 (4th Cir. 1995). Regardless of whether Young estab-
lished the required elements as to Feaster, we affirm the grant of sum-
mary judgment to the FDIC, as receiver for HHB&T, on the civil
conspiracy and fraudulent misrepresentation claims on the ground that
Young failed to provide any evidence that Feaster acted within the
scope of his employment.
Civil conspiracy and fraudulent misrepresentation are intentional
torts. See Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1012 (D.S.C.
1981) (regarding civil conspiracy); Field v. Mans, 116 S.Ct. 437, 444,
133 L.Ed.2d 351 (1995) (regarding fraudulent misrepresentation). A
corporation may be held vicariously liable for such an intentional tort
of its officer or agent if the officer or agent acted within the scope of
his or her employment. See Crittenden v. Thompson-Walker Co., 341
S.E.2d 385, 387-88 (S.C. Ct. App. 1986). See also 18B Am. Jur. 2d
Corporations § 2129 (1985) (collecting cases). Under South Carolina
law, an act falls within the scope of employment even if the employee
exceeded his or her authority and even if the employee acted contrary
to the express orders of the employer. Jamison v. Howard, 247 S.E.2d
450, 451 (S.C. 1978); Crittenden, 341 S.E.2d at 387. Nevertheless, an
act falls within the scope of employment only if the employee acted
with the purpose of benefiting the employer. Jamison, 247 S.E.2d at
451; Crittenden, 341 S.E.2d at 387-88. If the employee acted for
some independent purpose of his own, the conduct falls outside the
scope of his employment. Vereen v. Liberty Life Ins. Co., 412 S.E.2d
425, 429 (S.C. Ct. App. 1991); Crittenden, 341 S.E.2d at 287.
In the instant case, no evidence suggests that Feaster acted with the
purpose of benefiting HHB&T even incidentally. Indeed, if we accept
Young's allegations as true, the evidence suggests instead that Feaster
acted to further his conspiracy with Franciulli and Habib and to bene-
fit his own independent purpose of defrauding Young. Young con-
ceded as much at oral argument. Feaster, therefore, did not act within
15
the scope of his employment, and the FDIC, as receiver for HHB&T,
cannot be held liable for his conduct.5
B. Claims Against Price Waterhouse
1. PW-Bahamas
Young brought a professional negligence claim against PW-
Bahamas. He claimed that he relied to his detriment on a PW-
Bahamas audit report that erroneously represented that SAFIG had
$12 million on deposit "with a U.S. bank based in South Carolina."
The district court held, however, that PW-Bahamas has insufficient
contacts with South Carolina to support in personam jurisdiction.
We review de novo a district court's dismissal for lack of personal
jurisdiction. Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1198 (4th
Cir. 1993). However, we review findings of fact pertaining to the dis-
missal for clear error. Mylan Laboratories, Inc. v. Akzo, N.V., 2 F.3d
56, 60 (4th Cir. 1993).
Young bears the burden of establishing that personal jurisdiction
exists over the nonresident PW-Bahamas. Mylan Laboratories, Inc.,
2 F.3d at 60. He must demonstrate two things. First, he must prove
that PW-Bahamas's conduct meets the requirements of South Caroli-
na's long-arm statute. Id. Second, he must prove that PW-Bahamas
has sufficient contacts with South Carolina to meet the constitutional
standards of due process. Id.South Carolina's long-arm statute extends to the constitutional lim-
its that the due process clause imposes. Triplett v. R.M. Wade & Co.,
200 S.E.2d 375, 379 (S.C. 1973). As a result, the state-law analysis
collapses into the constitutional analysis. Under that analysis, Young
must demonstrate that PW-Bahamas has sufficient"minimum con-
tacts" with South Carolina such that the maintenance of the suit would
"``not offend traditional notions of fair play and substantial justice.'"
_________________________________________________________________
5 Because we hold that Feaster acted outside the scope of his employ-
ment, we do not reach the issue of whether the D'Oench doctrine bars
free-standing tort claims not based on an unrecorded agreement and not
related to a specific asset of the bank.
16
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92
(1980) (quoting International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)) (internal quotation marks omitted).
As the Supreme Court has noted, "it is essential in each case that
there be some act by which the defendant purposefully avails itself of
the privilege of conducting activities within the forum State, thus
invoking the benefits and protections of its laws." Hanson v. Denckla,
357 U.S. 235, 253 (1958). In other words, the defendant must have
a "``substantial connection'" with the forum state. Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting McGee v. Interna-
tional Life Ins. Co., 355 U.S. 220, 223 (1957)).
PW-Bahamas is a partnership organized under the laws of the
Bahamas, with its principal place of business in Nassau, Bahamas.6
PW-Bahamas conducted the audit of SAFIG, also a Bahamian com-
pany, in the Bahamas, not in South Carolina. PW-Bahamas has no
offices, agents, employees, or property located in South Carolina, and
it has not engaged in any business in South Carolina. Furthermore,
none of its members or employees have ever traveled to South Caro-
lina to conduct business on the partnership's behalf.
_________________________________________________________________
6 PW-Bahamas is part of a world-wide organization of separate and
independent Price Waterhouse firms that practice accountancy in various
countries. The members of each Price Waterhouse firm hold shares in
Price Waterhouse World Firm Limited (PW-World Firm), a limited lia-
bility company incorporated under the laws of Bermuda. PW-World
Firm assists the various Price Waterhouse firms in advancing their
respective practices, and it facilitates the maintenance of uniform stan-
dards of practice. It does not conduct or supervise client engagements,
however. Nor does it play a part in the day-to-day management of the
Price Waterhouse firms.
PW-World Firm's bylaws designate twenty-six separate"member
firms" in the Price Waterhouse organization. Those member firms
include PW-US and Price Waterhouse North Caribbean (PW-North
Caribbean), a Cayman Islands partnership authorized to use the Price
Waterhouse name pursuant to an agreement with PW-World Firm. PW-
North Caribbean sub-licenses PW-Bahamas to use the Price Waterhouse
name.
17
Young bases his personal jurisdiction argument on the Standard
Bank Confirmation form that was submitted to HHB&T in South Car-
olina to confirm SAFIG's deposits there. No evidence suggests that
PW-Bahamas itself mailed the form to the bank, but some evidence
does suggest that PW-Bahamas used the information contained in the
form to substantiate its audit of SAFIG's financial statement. Indeed,
PW-Bahamas does not deny that it received information that verified
the SAFIG deposit at HHB&T. However, the sole act of using
account information from HHB&T in South Carolina does not estab-
lish a "substantial connection" between PW-Bahamas and South Car-
olina; nor does it constitute a purposeful availment of the privilege of
conducting business in South Carolina. See Burger King Corp., 471
U.S. at 475 (noting that the "purposeful availment requirement
ensures that a defendant will not be haled into a jurisdiction solely as
a result of random, fortuitous, or attenuated contacts" (internal quota-
tion marks omitted)).
The Supreme Court also has held that courts "must consider the
burden on the defendant, the interests of the forum State, and the
plaintiff's interest in obtaining relief." Asahi Metal Indus. Co. v.
Super. Ct. of California, 480 U.S. 102, 113 (1987). In particular, the
Supreme Court has held that courts should place"significant weight
in assessing the reasonableness of stretching the long arm of personal
jurisdiction over national borders" because of the "unique burdens
placed upon one who must defend oneself in a foreign legal system."
Id. at 114.
In the instant case, the balance of interests weighs against finding
personal jurisdiction. PW-Bahamas likely would face a large burden
if we required it to defend a claim in South Carolina. It would have
to travel between Nassau and South Carolina and participate in a for-
eign nation's judicial system. South Carolina, the forum state, has lit-
tle interest in the dispute since Young is a Texas resident and PW-
Bahamas prepared the audit report in the Bahamas. Moreover, as a
nonresident, Young's interest in obtaining relief in South Carolina is
reduced. See Federal Ins. Co. v. Lake Shore, Inc., 886 F.2d 654, 661
(4th Cir. 1989).
Despite these precedents, Young argues that PW-Bahamas could
have "foreseen" that investors would rely on its audit letter. However,
18
the Supreme Court clearly has held that "foreseeability" alone is not
"a sufficient benchmark for personal jurisdiction under the Due Pro-
cess Clause." World-Wide Volkswagen Corp, 444 U.S. at 295. Rather,
the defendant's conduct and connection with the forum state must be
such that he would reasonably anticipate being haled into court there.
Id. at 297.
PW-Bahamas could not reasonably anticipate defending an action
in South Carolina simply because it made one informational request
of a South Carolina bank. Young essentially conceded that point dur-
ing oral argument. Accordingly, we hold that the district court prop-
erly dismissed the claim against PW-Bahamas for lack of personal
jurisdiction.
2. PW-US
Lee Piper, Herbert Schulken, and Dennis Goginsky are partners of
PW-US, and they reside in South Carolina. PW-US 7 was not involved
in the financing, and Young does not allege any wrongdoing by PW-
US. Rather, Young contends that we should treat PW-Bahamas and
PW-US as a single partnership doing business in South Carolina
under the doctrine of "partnership by estoppel," which would make
PW-US jointly and severally liable for the alleged wrongdoing of
PW-Bahamas.
The district court converted PW-US's motion to dismiss into a
motion for summary judgment because the parties presented evidence
on the issue outside of the pleadings. The district court then con-
cluded that no partnership existed in fact between PW-Bahamas and
PW-US and that the evidence did not support a finding of partnership
by estoppel. The district court, therefore, granted summary judgment
to PW-US because Young failed to allege that any member of PW-US
participated in preparing the audit report.
Under the Uniform Partnership Act, which South Carolina has
adopted, a partnership by estoppel arises only where a person, "on the
faith of" a representation of partnership by persons who are not actual
_________________________________________________________________
7 We refer to the PW-US partnership and the three PW-US partners
interchangeably as PW-US.
19
partners, "give[s] credit to the actual or apparent partnership." S.C.
Code Ann. § 33-41-380(1) (Law. Co-op. 1990). Thus, partnership by
estoppel arises only where one extends credit to an ostensible partner-
ship in reliance upon a representation of partnership. NCNB Nat'l
Bank of N.C. v. Bridgewater Steam Power Co., 740 F. Supp. 1140,
1158 (W.D.N.C. 1990).
On appeal, Young concedes that no partnership existed between
PW-US and PW-Bahamas in fact. He also admits that none of the
PW-US partners participated in preparing the audit report for SAFIG.
He contends, however, that the district court erred in holding that he
failed to establish partnership by estoppel. Young argues that PW-US
holds itself out as a single partnership with offices around the world.
In support of his contention, Young submitted a PW-US brochure that
his attorney picked up at a litigation services seminar. The brochure
describes Price Waterhouse as one of the "world's largest and most
respected professional organizations" with "offices throughout the
world." Young asserts that the brochure casts Price Waterhouse as an
established international accounting firm and that PW-US promotes
that image to gain public confidence in the firm's stability and exper-
tise.
Young does not, however, contend that he relied on the brochure
in making his decision to invest. In fact, although Young requested
and received ample opportunity for discovery on the issue, he never
offered any evidence that he relied on any representation of PW-US.
Furthermore, regardless of whether PW-US made any representation
upon which Young relied, no evidence suggests that Young gave
"credit" to anyone, much less to PW-Bahamas or PW-US. See § 33-
41-380(1).
As discussed above, PW-Bahamas does not have a substantial con-
nection with South Carolina. Without such a connection, in personam
jurisdiction does not exist over PW-Bahamas unless a basis exists to
treat PW-Bahamas and PW-US as a single partnership doing business
in South Carolina under the partnership by estoppel doctrine. Since
Young failed to establish that he relied on any representation of PW-
US or that he gave credit to the alleged partnership, the district court
correctly held that a partnership by estoppel did not arise. Therefore,
the district court properly dismissed the claims against PW-Bahamas
20
for lack of in personam jurisdiction, and the court properly granted
summary judgment to PW-US because Young did not establish any
wrongdoing by the PW-US partners.
C. Claims Against Franciulli
Young originally alleged claims of fraud, negligence, conspiracy,
and unfair trade practices against Attilio Franciulli. However, given
the factual complexity of the case, Young thought it prudent to form
an alliance with at least one defendant. He therefore entered into a
release agreement with Franciulli on December 13, 1991. The agree-
ment provided that, in exchange for Franciulli's cooperation in
Young's suit against the other defendants, Young would release all
claims against Franciulli.
On March 31, 1993, the district court entered an order dismissing
Tony Habib for lack of personal jurisdiction. In a footnote to that
order, the district court noted that it would not rule on Franciulli's
earlier motion to dismiss for lack of jurisdiction because of the seem-
ingly valid release agreement. The court noted, however, that Franci-
ulli could reassert the motion to dismiss if Young properly brought
a subsequent motion to question the validity of the release agreement.
Young did not file any such motion.
Franciulli filed a motion on May 19, 1993 to compel Young to
adhere to the terms of the release agreement and to dismiss Franciulli
from the case because of his compliance with the agreement. At a
hearing on August 3, 1993, the district court granted Franciulli's
motion to enforce the terms of the agreement, but the court required
Franciulli to continue cooperating with Young. The court ordered
Franciulli to appear for a deposition and to turn over several docu-
ments that Young's attorney had requested. Pursuant to the district
court's order, Franciulli attended a deposition on September 20 and
21, 1993. On November 21, 1994, Young listed Franciulli as a wit-
ness for trial. On December 9, 1994, however, the district court
entered a final order that disposed of the remaining defendants and
claims, thus mooting Franciulli's appearance at the trial.
Young claims that Franciulli failed to cooperate with him and that
Franciulli therefore breached the terms of the release agreement. He
21
raised that contention below in the hearing on Franciulli's motion to
enforce the release agreement. Young argues on appeal that the dis-
trict court should have submitted the question of Franciulli's breach
to a jury, and he contends that the district court erred in summarily
dismissing Franciulli pursuant to the terms of the release agreement.
Young concedes, however, that the district court did not enter any
orders that actually dismissed Franciulli. He appears to contend
instead that the court impliedly dismissed Franciulli when it enforced
the terms of the release agreement.
Since we cannot review an order that the district court did not
enter, we review only the district court's decision to grant Franciulli's
motion to enforce the terms of the release agreement, which impliedly
rejected Young's claim that Franciulli breached the agreement. We
review the district court's decision for abuse of discretion. See Wilson
v. Wilson, 46 F.3d 660, 664 (7th Cir. 1995). 8
The Fourth Circuit has clearly held that district courts possess the
inherent power to enforce settlement agreements and to enter judg-
ments based on such agreements without a plenary hearing. In Petty
v. Timken Corp., 849 F.2d 130, 132 (4th Cir. 1988), the plaintiff con-
tended that the district court erred in summarily enforcing a settle-
_________________________________________________________________
8 Young states in his brief that the district court "also erred in releasing
SAFIG and FPC on the basis of [the release] agreement." Young cor-
rectly points out that the release agreement did not release any individual
or entity besides Franciulli, and he therefore contends that the district
court erred in releasing SAFIG and FPC pursuant to that agreement.
However, Young did not raise that issue before the district court.
Accordingly, Young has waived his right to complain about the district
court's treatment. See Domino Sugar Corp. v. Sugar Workers Local
Union 392, 10 F.3d 1064, 1068 (4th Cir. 1993) (noting that appellate
courts ordinarily do not consider issues that the appellant did not raise
below).
Moreover, we find no evidence in the record that the district court
actually or impliedly released either SAFIG or FPC pursuant to the
release agreement. The record reveals instead that the district court
entered a default judgment against SAFIG and FPC for failure to comply
with discovery orders. We therefore do not address Young's arguments
regarding the "erroneous release" of SAFIG and FPC.
22
ment agreement without conducting an evidentiary hearing on the
validity of the agreement. The Court held that when there is no doubt
as to the existence of a settlement agreement, or the authority of an
attorney to enter into a settlement agreement, the district court pos-
sesses the inherent authority to enforce the agreement and to enter
judgment based on the agreement without a plenary hearing. Id.In addition, the Fourth Circuit has recognized that trial courts may
summarily enforce a settlement agreement in some cases even when
one party claims a breach of the terms of the agreement. In Millner
v. Norfolk & W.R. Co., 643 F.2d 1005 (4th Cir. 1981), the Court
noted:
This summary procedure has been found to be "admirably
suited to situations where, for example, a binding settlement
bargain is conceded as shown, and the excuse for nonperfor-
mance is comparably unsubstantial."
Id. at 1009 (quoting Autera v. Robinson , 419 F.2d 1197, 1200 (D.C.
Cir. 1969)). Finally, the Fourth Circuit has held that district courts
also possess the inherent power to supervise and aid the implementa-
tion of settlement agreements. See Wood v. Virginia Hauling Co., 528
F.2d 423, 425 (4th Cir. 1975).
In the instant case, the district court did not abuse its discretion in
enforcing the terms of the release agreement. As the above precedents
demonstrate, the district court possessed the inherent authority to
enforce the terms of the agreement since neither party disputed that
a settlement agreement existed and neither party claimed that its attor-
ney lacked authority to enter into the agreement. Young's excuse for
failing to release Franciulli and his allegations regarding Franciulli's
breach are unsubstantial and conclusory; Young failed to cite to the
record or to provide any evidence that Franciulli materially breached
the terms of the agreement so as to void the release. Furthermore, the
district court properly supervised and aided the implementation of the
agreement pursuant to its inherent powers when it established the par-
ticulars of Franciulli's subsequent deposition.
As the Fourth Circuit held in Petty, 849 F.2d at 133, having second
thoughts about the results of a settlement agreement does not justify
23
setting aside an otherwise valid agreement. We therefore hold that the
district court did not abuse its discretion in enforcing the terms of the
release agreement.9
III.
For the foregoing reasons, we affirm the district court's judgment
in regard to all issues on appeal.
AFFIRMED
_________________________________________________________________
9 Although we find that Young's appeal lacks merit, we do not find that
it is frivolous within the meaning of Federal Rule of Appellate Procedure
38. Accordingly, we deny Franciulli's motion for sanctions, attorneys'
fees, and costs pursuant to Rule 38.
24