First Trust Natl v. First National Bank

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-60431 _______________

FIRST TRUST NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE,

Plaintiff-Appellant,

VERSUS

FIRST NATIONAL BANK OF COMMERCE,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Mississippi (1:97-CV-306) _________________________

May 31, 2000

Before REAVLEY, SMITH, and First Trust National Association (“First EMILIO M.GARZA, Circuit Judges. Trust”) is indenture trustee for a trust the assets of which are proceeds of notes sold by JERRY E. SMITH, Circuit Judge:* Belle Casinos, Inc. (“BCI”), and Biloxi Casino Belle, Inc. (“BCBI”). Those assets were placed by BCI/BCBI into two escrow accounts to be employed in building two * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be * published and is not precedent except under the (...continued) limited circumstances set forth in 5TH CIR. R. 47.5.4.

casinos. The casinos ran over budget, and were sold in October 1993. BCI/BCBI filed for bankruptcy. First National Bank of Commerce (“FNBC”), the agent for Upon sale of the notes, FNBC was selected these escrow funds, failed to obtain necessary as Disbursing Agent for the proceeds, and its documentation, guaranteeing the cost of obligations were defined by the Disbursement construction, from various sources, therefore and Escrow Agreement (“Disbursement contributing to the cost overruns and the Agreement”). The proceeds from the notes bankruptcy. Before the bankruptcy, First were placed into two escrow accounts Trust became aware of cost overruns and of its administered by FNBC, which agreed to failure to receive from FNBC copies of all distribute the funds from those accounts only necessary documentation. on the occurrence of certain conditions listed in the Disbursement Agreement. First Trust sued FNBC, claiming breach of Simultaneously, BCI loaned the net proceeds various contractual and fiduciary obligations to of the notes to BCBI, which executed a the noteholders whom First Trust represents as Disbursement and Escrow Account Security indenture trustee. FNBC challenged First Agreement (“Disbursement Security Trust’s suit on grounds of standing and the Agreement”) to BCI in the principal amount of statute of limitations. The district court found $75 million. BCBI was to use the net for FNBC on summary judgment on both proceeds of the offering to finance the grounds. First Trust appeals. Agreeing with construction and expansion of the projects and the district court that limitations bars this ac- thereafter operate the casinos. tion, we affirm. After a draw at closing to pay off the I. interim loans and closing costs, BCBI Mississippi Riverboat Amusements, Ltd. deposited almost $60 million into two escrow (“MRA”), which owned and operated the accounts at FNBC. Finally, an Assignment Biloxi Belle Casino in Biloxi, Mississippi, Agreement was executed between BCI as decided in 1993 to expand its existing casino assignor and First Trust as assignee, whereby (the “Biloxi Project”) and to open a new BCI assigned all of BCI’s rights as Lender to casino in Tunica County (the “Tunica First Trust, including its rights under the Project”). To facilitate this expansion, MRA Disbursement Agreement. Moreover, BCI established two subsidiary corporations: BCI, assigned its rights, title, and interest in the a Delaware corporation, and BCBI, a escrow accounts to First Trust. Mississippi corporation. To finance the construction and expansion of the projects, According to article III of the Disbursement certain notes were sold under an offering put Agreement, FNBC and First Trust were to re- together by Bear, Sterns & Co., Inc., in the ceive certain documents (the “initial name of BCI. The notes were sold to documents”) as a precondition to disbursing investors (the “noteholders” or “Holders”) money from the escrow accounts. After the pursuant to an Indenture under which First note sale, FNBC received Contractor’s and Trust served as indenture trustee, thereby Architect’s Certificates (the “Disbursement agreeing to perform certain acts on behalf of Certificates” or “certificates”) as contemplated the Holders and in relation to the notes, which by article VI of the Disbursement Agreement,

and in particular section 6.08. FNBC, gets by more than $1.2 million without First however, was to use the Disbursement Trust’s permission. There is no evidence that Certificates to make disbursements only if both First Trust ever consented to any increase in First Trust and FNBC had first secured the the budgets. initial documents. First Trust declared default on July 12, Neither First Trust nor FNBC received 1994, and instructed FNBC to transfer the re- those documents. FNBC, though, disbursed maining escrowed funds to First Trust; BCI the requested funds on the strength of the Dis- and BCBI filed for bankruptcy on August 31, bursement Certificates alone. 1994. First Trust claims that it first discovered FNBC’s failure to obtain the initial documents FNBC first distributed money from the es- in July 1996, when its attorneys examined crow accounts on October 14, 1993, and FNBC’s files. continued to disburse until May 13, 1994. On or about April 14, 1994, the Holders were first II. notified by BCI that there were construction- First Trust sued in its capacity as indenture cost overruns. At a meeting between Bear, trust ee on behalf of the Holders on June 10, Stearns and the Holders on May 5, 1994, the 1997, claiming breach of the Disbursement Holders received a financial report indicating Agreement, alleging that FNBC disbursed that the projects had greatly overrun their funds from the escrow accounts without budgets. having first received the initial documents. It claimed breach of contract and of fiduciary The Holders hired attorneys to negotiate duty and sought damages in an amount equal further with BCI and to investigate defaults to the funds wrongfully disbursed. under the Indenture and Disbursement Agreements. On May 19, 1994, the In response, FNBC filed a third-party noteholders’ attorney informed Scott Strod- complaint against various third-party thoff, First Trust’s vice president, of the defendants, claiming that they were at least overruns and that a review of the partly responsible for FNBC’s alleged Disbursement Agreement indicated that a po- mishandling of the proceeds. FNBC also filed tential default had occurred, and faxed Strod- a motion for summary judgment, arguing that thoff a copy of the Disbursement Agreement. First Trust’s action was time-barred and that First Trust lacked standing under the Indenture On or about May 19, 1994, Strodthoff ex- to bring its claims. The district court found for amined First Trust’s file and discovered that FNBC on both counts, granting summary only Disbursement Certificates numbered 3, 4, judgment and attorney’s fees under the and 5 were in the file. First Trust then hired its Indenture. own counsel on May 26, 1994, to “review documents regarding construction III. disbursements.” The construction budget in All agree that the applicable statute of lim- the Disbursement Agreement limited the Biloxi itations is Mississippi’s catch-all statute, which and Tunica Projects to about $30 million each. requires that Accordingly, BCBI could not exceed the bud-

(1) All actions for which no other period cur. See Young v. Southern Farm Bureau Life of limitation is prescribed shall be Ins. Co., 592 So. 2d 103, 107 (Miss. 1991); commenced within three (3) years next Johnson v. Crisler, 125 So. 724, 724-25 after the cause of such action accrued, (Miss. 1930). The breach First Trust com- and not after. plains of is FNBC’s disbursement of money without having received and transmitted to (2) In actions for which no other period First Trust the appropriate documents. of limitation is prescribed and which in- Disbursements began on October 14, 1993, volve latent injury or disease, the cause and continued until May 13, 1994. First of action does not accrue until the Trust’s cause of action therefore emerged at plaintiff has discovered, or by reasonable the earliest on the first of those dates and, diligence should have discovered, the most generously, on the last. injury. First Trust claims that its cause of action MISS. CODE ANN. § 15-1-49 (1999). could not arise until BCI and BCBI filed for bankruptcy, because “First Trust’s claims First Trust sued on June 10, 1997. Under against FNBC were contingent on whether subsection (1), therefore, its action is barred if BCI paid the amounts due and owing under it accrued before June 10, 1994. First Trust the Notes. Only when it became clear that claims, however, that the “discovery rule” BCI was unable to satisfy its obligations under should apply to toll the statute until July 1996, the Notes was First Trust able to seek when it first discovered that FNBC had never recovery of principal and interest from other sent it the initial documents, or, if the sources.” First Trust argues that the district discovery rule does not apply, that its claim court’s earlier denial of summary judgment to was still timely, because its cause of action did the third-party defendants (regarding the not accrue until BCI and BCBI declared bank- claims brought by FNBC) on limitations ruptcySSafter June 10, 1994. grounds should, under the law-of-the-case doctrine, protect First Trust from FNBC’s The district court and FNBC reason, to the summary judgment motion as well. contrary, that First Trust’s claim accrued on the day of the first disbursement of funds, that First Trust errs in comparing its cause of the discovery rule does not apply, and that action to FNBC’s. As we will explain, First even if it did, the tolling pursuant to that rule Trust’s viable, independent action against would have ended at the very latest on June FNBC sounds in contract, while FNBC’s ac- 10, 1994, when First Trust’s attorneys tion sounds in tortSSrecovery as a result of explained to First Trust that breach had fraud. The district court’s refusal to find the probably occurred and that the relevant third-party defendants dismissed on limitations documents should be reviewed. We agree. grounds is based on when tort actions, not contract actions, accrue. As we have said, A. contract actions accrue when the breach, not In Mississippi, a breach of contract claim the injury, accrues. While it might have been accrues at the time of the breach regardless of the case that First Trust’s injuries became final when damages resulting from the breach oc- when BCI/BCBI filed for bankruptcy, formal

breach had occurred long before. only when damages therefrom occur.1 As the district court noted, however, an independent Moreover, First Trust errs in its assertion tort does not arise in circumstances in which that it enjoyed no option of action before the tort claim is based solely on a breach of a bankruptcy ensued because it could prove no contractual duty.2 damages. The Disbursement Agreement provides that, “[u]pon the occurrence of any 1 Event of Default, Lender may, in its sole See Williams v. Kilgore, 618 So. 2d 51, 54 discretion and without notice to or demand on (Miss. 1992) (citing Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704, 706-07) (Miss. 1990)). Borrower, and in addition to all rights and remedies available to Lender under the 2 See Palmer v. Orkin Exterminating Co., Collateral Documents, demand the return of 871 F. Supp. 912, 914-15 (S.D. Miss. 1994), any funds in the Escrow Account,” and take aff’d, 71 F.3d 875 (5th Cir. 1995); Smith v. Orkin various actions against the borrower. First Exterminating Co., Inc., 791 F. Supp. 1137, 1143- Trust then, immediately upon disbursement of 44 (S.D. Miss. 1990), aff’d, 943 F.2d 1314 (5th the first funds, co uld have recognized that it Cir. 1991) (noting that the “mere failure to perform had not been sent copies of the initial docu- a contract obligationSSor non-actionSSgives rise to ments, demanded them from FNBC, found no claim in tort”); see also Carter Equip. Co. v. that FNBC lacked them as well, declared John Deere Indus. Equip. Co., 681 F.2d 386, 390 breach, and seized the escrow accounts. (5th Cir. 1982) (opining that “[o]rdinarily, courts do not impose fiduciary duties upon parties to These actions would have ensured, as contractual agreements”). In Palmer, the court explained that concretely as did BCI’s and BCBI’s bankruptcy, that expenditures from the [i]t is axiomatic that a single act or course account would cease until the documentary of conduct may constitute not only a breach deficiencies were resolvedSSeither through of contract but an independent tort as well, proper provision of the documentation if in addition to violating a contract (thereby protecting the Holders) or through obligation it also violates a duty owed to FNBC’s discovery of fraud by various third plaintiff independent of the contract to parties and recovery against them (thereby avoid harming him. Such independent harm recompensating the Holders). In short, First may be found because of the relationship Trust’s claim that its cause of action did not between the parties, or because of de- materialize until BCI and BCBI declared fendant’s calling or because of the nature of bankruptcy cannot stand; it accrued on the harm. However, not all breaches of con- disbursement of the funds. tract are also independent torts: where defendant's negligence ends merely in non- performance of the contract and where de- B. fendant is not under any recognized duty to First Trust argues that the analysis above act apart from contract, the courts ignores the fact that its claim against FNBC generally still see no duty to act for breach of fiduciary duty is an independent affirmatively except the duty based onSSand tort that could have emerged at a different, limited bySSdefendant’s consent. later, time, because tort claims generally arise Palmer, 871 F. Supp. at 914 (citations, quotation (continued...)

First Trust’s fiduciary-duty claims against will analyze First Trust’s contention that the FNBC arise from the same source and the discovery rule should apply in this case under same incidents as do its breach of contract the assumption that FNBC was, pursuant to its claimsSSthe relationship between the parties contractual relationship, a fiduciary of First created by FNBC’s contract and the failure to Trust’s. get and deliver the initial documents to First Trust. No basis independent of the contract First Trust argues that the discovery rule exists for finding a fiduciary duty. The district should apply in this context because FNBC’s court therefore decided that the fiduciary duty errors were latent and undiscoverable, claim was parasitic of the breach on contract especially because FNBC stood in the position claim, and thus accrued as the contract claim of fiduciary to First Trust, responsible to accrued. report all of its errors to First Trust at every opportunity. FNBC responds by noting that First Trust does nothing to defeat the dis- the discovery rule has never been applied in trict court’s reasoning; it merely reasserts that Mississippi to a contract claim, and urges us to FNBC owed it a contract-based fiduciary duty. construe the discovery rule as inapplicable to Even were it able to convince us that the the contract setting. These facts, however, do court erred in finding that First Trust’s tort not require us to make that determination of claim is entirely derivative of its contract Mississippi law. claim, however, First Trust would gain no ground on the limitations front, because, for Even the assumption, arguendo, that the reasons we will explain, First Trust was or discovery rule should apply in a contract set- should have been aware, more than three years ting such as this does First Trust no material before it brought the instant action, that it had good. When applying the discovery rule, been actionably damage. “[t]he focus is upon the time that [First Trust] discovers, or should have discovered by the C. exercise of reasonable diligence, that [it] We agree with the district court that First probably has an actionable injury.”4 The Trust’s fiduciary duty claim is derivative of its contract claim. Because First Trust insists that 3 a fiduciary relationship existed between it and (...continued) FNBC, however, and because the bare thus cannot create an independent tort action. We existence of a fiduciary relationship is, in have not held thereby that FNBC did in fact owe Mississippi, a question of fact for the jury,3 we First Trust a fiduciary duty for any purposes, be- cause such a conclusion is reserved to the jury. We conduct the following analysis to demonstrate the irrelevance of such a finding, whatever the answer, 2 (...continued) to this case. marks and ellipses omitted; emphases added). 4 Smith v. Sanders, 485 So. 2d 1051, 1052 3 See Carter Equip., 681 F.2d at 390. As (Miss. 1986) (emphases added); see also In re discussed, we have recognized that any fiduciary Catfish Antitrust Litig., 826 F. Supp. 1019, 1031 duty owed First Trust by FNBC would have arisen (N.D. Miss. 1993). The court explained that as a result of the agreements discussed herein, and (continued...) (continued...)

would-be plaintiff need not have become abso- supporting an Event of Default.” First Trust lutely certain that he had a cause of action; he makes a gross overstatement to suggest that need merely be on noticeSSor should beSSthat FNBC “actively concealed” breach. First he should carefully investigate the materials Trust provides no evidence of active that suggest that a cause probably or concealment by FNBC. In fact, the only potentially exists.5 Neither need the plaintiff evidence First Trust supplies in purported know with precision each detail of breach, support of its position is a letter dated July 13, causation, and damages, but merely enough to 1994, in which FNBC explained to First Trust, make a plain statement of the case backed by in relevant part, that evidence sufficient to survive a summary judgment motion.6 [a]fter reviewing the documentation, we have reached the conclusion that we First Trust argues that FNBC’s breaches cannot comply with your request that were inherently undiscoverable, because we deliver funds directly to you under FNBC “actively concealed its breaches” by the Escrow Agreement or the Security “represent[ing] to First Trust, as its fiduciary Agreement. . . . that it was not aware of any evidence Under the terms of the Escrow Agreement, an event of default must 4 (...continued) exist before we, as escrow agent, can The plaintiffs need not have actual deliver the funds to the trustee. knowledge of the facts before the duty of Although we do not have concrete due diligence arises; rather, knowledge of evidence of the existence of an event of certain facts which are “calculated to excite default, we would be willing to rely inquiry” give rise to the duty to inquire. The upon your representation to that effect, statute of limitations begins to run once provided that you indemnified us for any plaintiffs are on inquiry that a potential claim exists. loss we sustained and costs and expenses incurred in connection with the Id. (citations omitted; emphasis added). transfer of such funds to you. . . .

5 Mississippi courts have upheld summary In the alternative, under the Security judgments on limitations grounds even where the Agreement, you could seize the account. summary judgment record shows that the discovery The seizure of the account should be a rule would otherwise have applied under the relatively simple matter. . . . Finally, . . . circumstances, because the plaintiff either knew or [w]e can invoke a concursus [interplead- should have known that an action had accrued, and er] proceeding and deposit funds into it was not therefore latent. See Robinson v. the registry of the court. Singing Riv. Hosp. Sys., 732 So. 2d 204, 208 (Miss. 1999); Womble v. Singing Riv. Hosp., 618 This letter hardly indicates active concealment So. 2d 1252, 1266 (Miss. 1993); cf. Chamberlin v. City of Hernando, 716 So. 2d 596, 601 (Miss. on FNBC’s part. Rather, it demonstrates a 1998). bank wishing to serve the interests of all relevant parties to the best of its 6 See Robinson, 732 So. 2d at 208; FED. R. capacitySSeven providing legal advice about CIV. P. 8, 56.

how best a threatening party might achieve its exist to protect the courts from indolent desired ends. claimants as well as defendants from stale claims. First Trust also argues that the fiduciary re- lationship between it and FNBC rendered it In defense of its position, First Trust points “entitled to rely” on its conclusion that FNBC to Merchants & Marine Bank v. Douglas- had collected and provided to First Trust all of Guardian Warehouse Corp., 801 F.2d 742 the necessary and appropriate forms, and on (5th Cir. 1986). There, a bank hired Douglas- FNBC’s representation that it lacked concrete Guardian to keep track of the inventory of a proof of an Event of Default. First Trust debtor. Because of the debtor’s misfeasance, apparently thought this entitlement survived Douglas-Guardian submitted incorrect reports even in the face of mounting evidence of seri- to Merchants & Marine Bank, badly ous cost overruns, of Holders who had overstating the value of the debtor’s inventory. demanded an accounting, of evidence from its Douglas-Guardian did, however, provide all own files that FNBC had actually defaulted by reports to the bank as scheduled, and left the failing to file with First Trust most of the nec- bank with no way of discerning the essary documentation related to the incorrectness of the reports. See id. at 744-45. disbursements, and of lawyers who told it that The court held that, under those a default had probably occurred and that it circumstances, the bank’s action against should begin a review of its records to Douglas-Guardian for contract breach did not document and act on that default. accrue until the bank discovered the error in the reports.8 While fiduciary relationships do often ob- scure misfeasance on the fiduciary’s part and Merchants & Marine’s facts are inapposite thus trigger the discovery rule, the principal of here. As the Disbursement Agreement a fiduciary is not thereby permitted signifies, “[a]gent’s obligation to disburse any permanently and willfully to ignore patent portion of the funds in the Escrow Account to evidence of the fiduciary’s breach so as to Borrower . . . is subject to Agent and Trus- delay indefinitely the accrual of an action tee having received the . . . Collateral against the fiduciary.7 Statutes of limitations Documents.” (Emphasis added). First Trust, by its own admission, never received these documents. This failure to receive docu- 7 For its proposition, First Trust relies on Smith mentsSSeven without notice of cost over- v. Sneed, 638 So. 2d 1252, 1258 (Miss. 1994), holding that the discovery rule would work against a lawyer in a malpractice suit in part because of “the inability of the layman to detect [legal] 7 (...continued) misapplication; the client may not recognize the being able to protect those rights and duties. negligence of the professional when he sees it.” Id. 8 (citations omitted). Here, of course, First Trust See also Smith, 638 So. 2d at 1257 (holding does not merit “lay” status; it is, after all, a trust that the statute will not run against a fiduciary company, and therefore must be charged with the “until the client discovers, or should discover, the duty of knowing how to read a trust indenture, material facts in issue” because such tolling “vin- being aware of the rights and duties therein, and dicates the fiduciary duty of full disclosure”) (continued...) (citation omitted)).

runsSSconstituted the relevant “event of The record indicates that First Trust was default.” first informed of the cost overruns on April 29, 1994. After taking over the It was always within First Trust’s power, account [a First Trust executive] was upon knowledge that disbursements were notified of the cost overruns on May 16, being made, simply to review its records, note 1994, when he received a call from a the lack of documentation, demand the Holder. As previously stated, [another documents, and order that FNBC cease party] also called [him] on May 19, disbursements and return the remaining escrow 1994 and discussed the Holders’ money to First Trust upon failure to comply concerns about potential defaults under with the demand. Unlike Merchants & Marine the Disbursement Agreement and the Bank, First Trust did not regularly, and in Indenture. [He] reviewed the conformance with its contract, receive Disbursement Agreement on or about documents that were false. Instead, it failed to May 19, 1994, and discovered that receive documents that it knew, or should Disbursement Certificates numbers 3, 4, have known, it should have been receiving. and 5 were the only documentation in First Trust, therefore, did not suffer a latent or First Trust’s file. . . . First Trust hired hidden breach; the breach was always, or its own counsel on May 26, 1994, to should always have been, patently obvious to review all documents pertaining to the a reasonably diligent party.9 construction of the projects. First Trust also sent letters to FNBC on May 26 The district court chronicled the events that and June 3, 1994, acknowledging that occurred before June 10, 1994: disbursements had been made by FNBC and requesting Disbursement Cer- tificates that it had not received as 9 First Trust again points the panel to Smith, required by section 6.08 of the 638 So. 2d at 1257, wherein the court instructed Disbursement Agreement. that None of these facts comports with the picture the general policies underlying th[e] statute of an entity’s remaining blissfully unaware that of limitations will not be thwarted by a cause of action had “probably” or “potential- adoption of the discovery rule in that ly” arisen. Rather, they are events indicating limited class of . . . cases in which, because that First Trust not only should have of the secretive or inherently recognized but actually recognized that its undiscoverable nature of the [act] the rights had been jeopardized, and that it needed plaintiff did not know, or with reasonable to take forceful and perhaps litigious action to diligence could not have discovered, that defend them. he had been [injured]. In such rare instances, we do not believe that a plaintiff can be accused of sleeping on his rights. What follows these actions, though, is a long pauseSSuntil June 1996 according to First Id. (citations omitted; emphasis added). Again, TrustSSin which First Trust took no action this is inapposite, because even minimal diligence by First Trust would have brought discovery of the agent’s breaches.

against FNBC.10 The district court was fully justified in concluding that First Trust knew or should have known that breach probably had occurred before June 10, 1994. Applying the discovery rule, then, cannot save First Trust’s cause of action.

IV. The question of attorney’s fees is parasitic here. Section 10.14 o f the Disbursement Agreement reads, “[i]f any action or proceeding is brought by any party against any other party under this Agreement, the prevailing party shall be entitled to recover such co sts and attorneys’ fees as the court in such action or proceeding may adjudge reasonable.” Because we affirm the judgment rendering FNBC the prevailing party, we affirm too on the issue of attorney’s fees. Neither side challenges the amount of fees awarded.

AFFIRMED.

10 First Trust claims in July 1996 to have learned for the first time that FNBC had not re- ceived any initial documents (even though it knew or should have known that it had also never received such documents, as required), and realized that FNBC was a relevant target of litigation. Even then, First Trust still waited another 11 months, until June 1997, to sue FNBC.