Castillo v. Keck

873 F. Supp. 12, 1993 U.S. Dist. LEXIS 20801, 1993 WL 761674
CourtDistrict Court, S.D. Texas
DecidedMarch 18, 1993
DocketCiv. A. No. H-92-1110
StatusPublished

This text of 873 F. Supp. 12 (Castillo v. Keck) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castillo v. Keck, 873 F. Supp. 12, 1993 U.S. Dist. LEXIS 20801, 1993 WL 761674 (S.D. Tex. 1993).

Opinion

MEMORANDUM OPINION

NORMAN W. BLACK, Chief Judge.

This case is before the Court on the Motion for Summary Judgment filed by Defendants Keck, Mahin & Cate (“KMC”) and Landan. By prior order of the Court, all motions were referred to the United States Magistrate Judge for decision or, on dispositive motions, for Memorandum and Recommendation. Following oral argument, the Magistrate Judge issued his Memorandum and Recommendation regarding Defendants’ motion for summary judgment. Defendants submitted timely objections to the Magistrate Judge’s memorandum, Plaintiffs filed their response to Defendants’ objections, and both parties presented oral argument to the Court. The Court’s review of the Magistrate Judge’s Memorandum and Recommendation is de novo, and the Court prefers to issue its own memorandum opinion on Defendants’ Motion for Summary Judgment.

The factual background in this case is basically undisputed. In early 1989, Plaintiffs (the Coca family and their related companies) entered into negotiations with representatives of First City Bancorporation of Texas, Inc. (“First City”) to refinance Plaintiffs’ multi-million dollar debt in order to avoid the imminent exercise of an option to purchase certain of Plaintiffs’ properties. These negotiations resulted in an agreement whereby Citibank Spain loaned Plaintiffs $119.5 million secured by a $120 million irrevocable letter of credit from First City which was secured by mortgages on all Plaintiffs’ properties in Spain. Pursuant to the transaction documents, Plaintiffs were required to transfer to an administrator selected by First City all power to manage the properties and to oversee the orderly sale of the real estate. The administrator would have full authority to oversee First City’s collateral, including the authority to accept or reject purchase offers and to manage the properties. First City named Pelican Group, Inc., a corporation which was owned in its entirety by Kevin Hart, as the Sole Administrator contemplated by the transaction documents.

Plaintiffs defaulted, Citibank Spain recovered its funds from the First City letter of credit, and First City declared the mortgages in default. In response, Plaintiffs filed this lender liability action against First City and its officers, Pelican and Hart, Defendants Landan and KMC, and various other individuals and entities. Plaintiffs subsequently settled with all Defendants except Landan and KMC.1 These two defendants moved to [14]*14dismiss because the complaint made no allegations of wrongdoing against them and instead complained only of misconduct on the part of First City and Pelican. The motion to dismiss was denied, with leave granted for Plaintiffs to conduct discovery and file an amended complaint. When Plaintiffs filed the amended complaint, allegations previously made against First City and Peliean were converted to allegations against Landan and KMC, and it was also alleged for the first time that Landan and KMC were legal counsel for Plaintiffs. Landan and KMC filed the motion for summary judgment which is now ripe for decision.

The United States Supreme Court has held that a motion for summary judgment is properly granted unless there is evidence “on which the jury could reasonably find for the plaintiff. The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the Plaintiff is entitled to a verdict.” Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). Rule 56, no longer a disfavored procedure in federal practice, is an integral part of the Federal Rules of Civil Procedure and recognizes a party’s right to demonstrate that certain claims have no factual basis and to have those unsupported claims disposed of prior to trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In the ease at bar, Plaintiffs have failed to raise a genuine issue of material fact and Defendants are entitled to summary judgment.

BREACH OF FIDUCIARY DUTY

Plaintiffs first cause of action is for breach of fiduciary duty. In their attempt to create a fiduciary relationship between themselves and Defendants, Plaintiffs allege that Landan and KMC were their attorneys. Plaintiffs have faded to present evidence which supports this allegation, however, and have failed to raise a genuine issue of material fact. Affidavits filed by First City’s Vice-Chairman, Pelican’s President, and Defendant Landan assert that Landan and KMC never provided legal advice or counsel to Plaintiffs. More importantly, testimony given by Plaintiff Inigo Coca prior to the settlement with First City included statements that “I informed First City through their attorneys, Henry Landan of Keck, Mahin & Cate, and Uria & Menendez, of my family’s decision to reject the proposal” and that it was not disclosed to his family that Landan, “an attorney and fiduciary to First City,” would have power over certain properties. Perhaps the clearest description of the relationships is provided by Mr. Coca in an affidavit in which he stated “Even though I understood Mr. Landan to be First City’s lawyer, I also trusted Mr. Landan, as my family’s friend, to be giving me sound advice during these conversations.” It is undisputed that Plaintiffs had a full team of legal counsel and advisers throughout the negotiation, formation and implementation of the loan transaction. Correspondence between Landan and Plaintiffs’ counsel includes numerous references to “our client” being First City and “your client” being the Coca family.

Plaintiffs’ evidence that Landan negotiated agreements with potential purchasers on behalf of the Coca Family and their related companies and signed documents “on behalf of’ the Coca family companies fails to raise an issue of fact regarding Landan and KMC acting as their counsel. The signature by Landan “on behalf of’ and as “attorney” for a company was proper because Pelican, as Sole Administrator, was the only entity with authority to sell the property, and Landan and KMC were the attorneys for Pelican. Plaintiffs’ argument that the President of Pelican and the Coca family believed that Landan was acting on behalf of Plaintiffs is contradictory to the many statements by Plaintiffs discussed above and to a previous affidavit filed by Pelican’s President. The fact that KMC’s bills for legal services were sent directly to Plaintiffs for payment does not support Plaintiffs allegations, because such payment by the borrower is customary in commercial loan transactions and was required by the transaction documents. Additionally, the invoices included clear and unambiguous notations that they were for legal [15]*15services performed for First City and/or Pelican and not for Plaintiffs. The Court finds without reservation that Plaintiffs have failed to raise a genuine issue of material fact regarding their allegation that Landan and KMC served as their attorneys.

Plaintiffs also attempt to create a fiduciary relationship by alleging that Landan and KMC exceeded the bounds of their role as attorney and thereby became principals of Pelican, the Sole Administrator. The uncontradicted evidence establishes that, as part of the legal representation of First City and Pelican, Landan was named assistant secretary of Pelican and was given certain powers of attorney.

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Bluebook (online)
873 F. Supp. 12, 1993 U.S. Dist. LEXIS 20801, 1993 WL 761674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castillo-v-keck-txsd-1993.