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
_________________________
May 31, 2000
Before REAVLEY, SMITH, and Belle, Inc. (“BCBI”). Those assets were EMILIO M.GARZA, Circuit Judges. placed by BCI/BCBI into two escrow accounts to be employed in building two JERRY E. SMITH, Circuit Judge: casinos. The casinos ran over budget, and BCI/BCBI filed for bankruptcy. First National First Trust National Association (“First Bank of Commerce (“FNBC”), the agent for Trust”) is indenture trustee for a trust the these escrow funds, failed to obtain necessary assets of which are proceeds of notes sold by documentation, guaranteeing the cost of Belle Casinos, Inc. (“BCI”), and Biloxi Casino construction, from various sources, therefore
2
contributing to the cost overruns and the were placed into two escrow accounts bankruptcy. Before the bankruptcy, First administered by FNBC, which agreed to Trust became aware of cost overruns and of its distribute the funds from those accounts only failure to receive from FNBC copies of all on the occurrence of certain conditions listed necessary documentation. in the Disbursement Agreement.
Simultaneously, BCI loaned the net proceeds First Trust sued FNBC, claiming breach of of the notes to BCBI, which executed a various contractual and fiduciary obligations to Disbursement and Escrow Account Security the noteholders whom First Trust represents as Agreement (“Disbursement Security indenture trustee. FNBC challenged First Agreement”) to BCI in the principal amount of Trust’s suit on grounds of standing and the $75 million. BCBI was to use the net statute of limitations. The district court found proceeds of the offering to finance the for FNBC on summary judgment on both construction and expansion of the projects and grounds. First Trust appeals. Agreeing with thereafter operate the casinos. the district court that limitations bars this action , we affirm. After a draw at closing to pay off the interim loans and closing costs, BCBI I. deposited almost $60 million into two escrow Mississippi Riverboat Amusements, Ltd. accounts at FNBC. Finally, an Assignment (“MRA”), which owned and operated the Agreement was executed between BCI as Biloxi Belle Casino in Biloxi, Mississippi, assignor and First Trust as assignee, whereby decided in 1993 to expand its existing casino BCI assigned all of BCI’s rights as Lender to (the “Biloxi Project”) and to open a new First Trust, including its rights under the casino in Tunica County (the “Tunica Disbursement Agreement. Moreover, BCI Project”). To facilitate this expansion, MRA assigned its rights, title, and interest in the established two subsidiary corporations: BCI, escrow accounts to First Trust. a Delaware corporation, and BCBI, a Mississippi corporation. To finance the According to article III of the Disbursement construction and expansion of the projects, Agreement, FNBC and First Trust were to recertain notes were sold under an offering put ceive certain documents (the “initial together by Bear, Sterns & Co., Inc., in the documents”) as a precondition to disbursing name of BCI. The notes were sold to money from the escrow accounts. After the investors (the “noteholders” or “Holders”) note sale, FNBC received Contractor’s and pursuant to an Indenture under which First Architect’s Certificates (the “Disbursement Trust served as indenture trustee, thereby Certificates” or “certificates”) as contemplated agreeing to perform certain acts on behalf of by article VI of the Disbursement Agreement, the Holders and in relation to the notes, which and in particular section 6.08. FNBC, were sold in October 1993. however, was to use the Disbursement Certificates to make disbursements only if both Upon sale of the notes, FNBC was selected First Trust and FNBC had first secured the as Disbursing Agent for the proceeds, and its initial documents. obligations were defined by the Disbursement and Escrow Agreement (“Disbursement Neither First Trust nor FNBC received Agreement”). The proceeds from the notes those documents. FNBC, though, disbursed
3
the requested funds on the strength of the Dis- 1994. First Trust claims that it first discovered bursement Certificates alone. FNBC’s failure to obtain the initial documents in July 1996, when its attorneys examined FNBC first distributed money from the es- FNBC’s files. crow accounts on October 14, 1993, and continued to disburse until May 13, 1994. On II. or about April 14, 1994, the Holders were first First Trust sued in its capacity as indenture notified by BCI that there were construction- trust ee on behalf of the Holders on June 10, cost overruns. At a meeting between Bear, 1997, claiming breach of the Disbursement Stearns and the Holders on May 5, 1994, the Agreement, alleging that FNBC disbursed Holders received a financial report indicating funds from the escrow accounts without that the projects had greatly overrun their having first received the initial documents. It budgets. claimed breach of contract and of fiduciary duty and sought damages in an amount equal The Holders hired attorneys to negotiate to the funds wrongfully disbursed. further with BCI and to investigate defaults under the Indenture and Disbursement In response, FNBC filed a third-party Agreements. On May 19, 1994, the complaint against various third-party noteholders’ attorney informed Scott Strod- defendants, claiming that they were at least thoff, First Trust’s vice president, of the partly responsible for FNBC’s alleged overruns and that a review of the mishandling of the proceeds. FNBC also filed Disbursement Agreement indicated that a po- a motion for summary judgment, arguing that tential default had occurred, and faxed Strod- First Trust’s action was time-barred and that thoff a copy of the Disbursement Agreement. First Trust lacked standing under the Indenture to bring its claims. The district court found for On or about May 19, 1994, Strodthoff ex- FNBC on both counts, granting summary amined First Trust’s file and discovered that judgment and attorney’s fees under the only Disbursement Certificates numbered 3, 4, Indenture. and 5 were in the file. First Trust then hired its own counsel on May 26, 1994, to “review III. documents regarding construction All agree that the applicable statute of limdisbursements .” The construction budget in itations is Mississippi’s catch-all statute, which the Disbursement Agreement limited the Biloxi requires that and Tunica Projects to about $30 million each. Accordingly, BCBI could not exceed the bud- (1) All actions for which no other period gets by more than $1.2 million without First of limitation is prescribed shall be Trust’s permission. There is no evidence that commenced within three (3) years next First Trust ever consented to any increase in after the cause of such action accrued, the budgets. and not after.
First Trust declared default on July 12, (2) In actions for which no other period 1994, and instructed FNBC to transfer the re- of limitation is prescribed and which inmaining escrowed funds to First Trust; BCI volve latent injury or disease, the cause and BCBI filed for bankruptcy on August 31, of action does not accrue until the
4
plaintiff has discovered, or by reasonable most generously, on the last. diligence should have discovered, the injury. First Trust claims that its cause of action could not arise until BCI and BCBI filed for MISS. CODE ANN. § 15-1-49 (1999). bankruptcy, because “First Trust’s claims against FNBC were contingent on whether First Trust sued on June 10, 1997. Under BCI paid the amounts due and owing under subsection (1), therefore, its action is barred if the Notes. Only when it became clear that it accrued before June 10, 1994. First Trust BCI was unable to satisfy its obligations under claims, however, that the “discovery rule” the Notes was First Trust able to seek should apply to toll the statute until July 1996, recovery of principal and interest from other when it first discovered that FNBC had never sources.” First Trust argues that the district sent it the initial documents, or, if the court’s earlier denial of summary judgment to discovery rule does not apply, that its claim the third-party defendants (regarding the was still timely, because its cause of action did claims brought by FNBC) on limitations not accrue until BCI and BCBI declared bank- grounds should, under the law-of-the-case ruptcySSafter June 10, 1994. doctrine, protect First Trust from FNBC’s summary judgment motion as well.
The district court and FNBC reason, to the contrary, that First Trust’s claim accrued on First Trust errs in comparing its cause of the day of the first disbursement of funds, that action to FNBC’s. As we will explain, First the discovery rule does not apply, and that Trust’s viable, independent action against even if it did, the tolling pursuant to that rule FNBC sounds in contract, while FNBC’s acwould have ended at the very latest on June tion sounds in tort SSrecovery as a result of 10, 1994, when First Trust’s attorneys fraud. The district court’s refusal to find the explained to First Trust that breach had third-party defendants dismissed on limitations probably occurred and that the relevant grounds is based on when tort actions, not documents should be reviewed. We agree. contract actions, accrue. As we have said, contract actions accrue when the breach, not A. the injury, accrues. While it might have been In Mississippi, a breach of contract claim the case that First Trust’s injuries became final accrues at the time of the breach regardless of when BCI/BCBI filed for bankruptcy, formal when damages resulting from the breach oc- breach had occurred long before. cur. See Young v. Southern Farm Bureau Life Ins. Co., 592 So. 2d 103, 107 (Miss. 1991); Moreover, First Trust errs in its assertion Johnson v. Crisler, 125 So. 724, 724-25 that it enjoyed no option of action before (Miss. 1930). The breach First Trust com- bankruptcy ensued because it could prove no plains of is FNBC’s disbursement of money damages. The Disbursement Agreement without having received and transmitted to provides that, “[u]pon the occurrence of any First Trust the appropriate documents. Event of Default, Lender may, in its sole Disbursements began on October 14, 1993, discretion and without notice to or demand on and continued until May 13, 1994. First Borrower, and in addition to all rights and Trust’s cause of action therefore emerged at remedies available to Lender under the the earliest on the first of those dates and, Collateral Documents, demand the return of
5
any funds in the Escrow Account,” and take First Trust’s fiduciary-duty claims against various actions against the borrower. First FNBC arise from the same source and the Trust then, immediately upon disbursement of same incidents as do its breach of contract the first funds, could have recognized that it claimsSSthe relationship between the parties had not been sent copies of the initial docu- created by FNBC’s contract and the failure to ments, demanded them from FNBC, found get and deliver the initial documents to First that FNBC lacked them as well, declared Trust. No basis independent of the contract breach, and seized the escrow accounts. exists for finding a fiduciary duty. The district
These actions would have ensured, as concretely as did BCI’s and BCBI’s (...continued)
bankruptcy, that expenditures from the aff’d, 71 F.3d 875 (5th Cir. 1995); Smith v. Orkin account would cease until the documentary Exterminating Co., Inc., 791 F. Supp. 1137, 1143-
deficiencies were resolvedSSeither through 44 (S.D. Miss. 1990), aff’d, 943 F.2d 1314 (5th proper provision of the documentation Cir. 1991) (noting that the “mere failure to perform (thereby protecting the Holders) or through a contract obligationSSor non-actionSSgives rise to FNBC’s discovery of fraud by various third no claim in tort”); see also Carter Equip. Co. v. parties and recovery against them (thereby John Deere Indus. Equip. Co., 681 F.2d 386, 390 reco mpensating the Holders). In short, First (5th Cir. 1982) (opining that “[o]rdinarily, courts Trust’s claim that its cause of action did not do not impose fiduciary duties upon parties to materialize until BCI and BCBI declared contractual agreements”). In Palmer, the court bankruptcy cannot stand; it accrued on explained that disbursement of the funds.
[i]t is axiomatic that a single act or course B. of conduct may constitute not only a breach First Trust argues that the analysis above of contract but an independent tort as well, if in addition to violating a contract ignores the fact that its claim against FNBC obligation it also violates a duty owed to for breach of fiduciary duty is an independent plaintiff independent of the contract to tort that could have emerged at a different, avoid harming him. Such independent harm later, time, because tort claims generally arise may be found because of the relationship only when damages therefrom occur.1 As the between the parties, or because of district court noted, however, an independent defendant's calling or because of the nature tort does not arise in circumstances in which of the harm. However, not all breaches of the tort claim is based solely on a breach of a contract are also independent torts: where contractual duty.2 defendant's negligence ends merely in nonperformance of the contract and where defendant is not under any recognized duty to act apart from contract, the courts 1 See Williams v. Kilgore, 618 So. 2d 51, 54 generally still see no duty to act (Miss. 1992) (citing Owens-Illinois, Inc. v. affirmatively except the duty based onSSand Edwards, 573 So. 2d 704, 706-07) (Miss. 1990)). limited bySSdefendant's consent.
2 See Palmer v. Orkin Exterminating Co., Palmer, 871 F. Supp. at 914-15 (citations, quotation 871 F. Supp. 912, 914-15 (S.D. Miss. 1994), marks and ellipses omitted; emphases added).
(continued...)
6
court therefore decided that the fiduciary duty First Trust does nothing to defeat the disclaim was parasitic of the breach on contract trict court’s reasoning; it merely reasserts that claim, and thus accrued as the contract claim FNBC owed it a contract-based fiduciary duty. accrued. Even were it able to convince us that the court erred in finding that First Trust’s tort claim is entirely derivative of its contract claim, however, First Trust would gain no ground on the limitations front, because, for reasons we will explain, First Trust was or should have been aware, more than three years before it brought the instant action, that it had been actionably damage.
C.
We agree with the district court that First Trust’s fiduciary duty claim is derivative of its contract claim. Because First Trust insists that a fiduciary relationship existed between it and FNBC, however, and because the bare existence of a fiduciary relationship is, in Mississippi, a question of fact for the jury,3 we will analyze First Trust’s contention that the discovery rule should apply in this case under the assumption that FNBC was, pursuant to its contractual relationship, a fiduciary of First Trust’s.
First Trust argues that the discovery rule should apply in this context because FNBC’s errors were latent and undiscoverable, especially because FNBC stood in the position of fiduciary to First Trust, responsible to
3
See Carter Equip., 681 F.2d at 390. As discussed, we have recognized that any fiduciary duty owed First Trust by FNBC would have arisen as a result of the agreements discussed herein, and thus cannot create an independent tort action. We have not held thereby that FNBC did in fact owe First Trust a fiduciary duty for any purposes, because such a conclusion is reserved to the jury. We conduct the following analysis to demonstrate the irrelevance of such a finding, whatever the answer, to this case.
7
report all of its errors to First Trust at every know with precision each detail of breach, opportunity. FNBC responds by noting that causation, and damages, but merely enough to the discovery rule has never been applied in make a plain statement of the case backed by Mississippi to a contract claim, and urges us to evidence sufficient to survive a summary construe the discovery rule as inapplicable to judgment motion.6 the contract setting. These facts, however, do not require us to make that determination of First Trust argues that FNBC’s breaches Mississippi law. were inherently undiscoverable, because FNBC “actively concealed its breaches” by Even the assumption, arguendo, that the “represent[ing] to First Trust, as its fiduciary discovery rule should apply in a contract set- . . . that it was not aware of any evidence ting such as this does First Trust no material supporting an Event of Default.” First Trust good. When applying the discovery rule, makes a gross overstatement to suggest that “[t]he focus is upon the time that [First Trust] FNBC “actively concealed” breach. First discovers, or should have discovered by the Trust provides no evidence of active exercise of reasonable diligence, that [it] concealment by FNBC. In fact, the only probably has an actionable injury.”4 The evidence First Trust supplies in purported would-be plaintiff need not have become abso- support of its position is a letter dated July 13, lutely certain that he had a cause of action; he 1994, in which FNBC explained to First Trust, need merely be on noticeSSor should beSSthat in relevant part, that he should carefully investigate the materials that suggest that a cause probably or [a]fter reviewing the documentation, we potentially exists.5 Neither need the plaintiff have reached the conclusion that we cannot comply with your request that we deliver funds directly to you under 4 the Escrow Agreement or the Security Smith v. Sanders, 485 So. 2d 1051, 1052 (Miss. 1986) (emphases added); see also In re Agreement. Catfish Antitrust Litig., 826 F. Supp. 1019, 1031 (N.D. Miss. 1993). The court explained that Under the terms of the Escrow
The plaintiffs need not have actual knowledge of the facts before the duty of (...continued) due diligence arises; rather, knowledge of summary judgment record shows that the discovery certain facts which are “calculated to excite rule would otherwise have applied under the inquiry” give rise to the duty to inquire. The circumstances, because the plaintiff either knew or statute of limitations begins to run once should have known that an action had accrued, and plaintiffs are on inquiry that a potential it was not therefore latent. See Robinson v. claim exists. Singing Riv. Hosp. Sys., 732 So. 2d 204, 208 (Miss. 1999); Womble v. Singing Riv. Hosp., 618 So. 2d 1252, 1266 (Miss. 1993); cf. Chamberlin v.
Id. (citations omitted; emphasis added). City of Hernando, 716 So. 2d 596, 601 (Miss.
1998).
5 Mississippi courts have upheld summary
6
judgments on limitations grounds even where the See Robinson, 732 So. 2d at 208; FED. R.
(continued...) CIV. P. 8, 56.
8
Agreement, an event of default must should begin a review of its records to exist before we, as escrow agent, can document and act on that default. While deliver the funds to the trustee. fiduciary relationships do often obscure Although we do not have concrete misfeasance on the fiduciary’s part and thus evidence of the existence of an event of trigger the discovery rule, the principal of a fidefault , we would be willing to rely duciary is not thereby permitted permanently upon your representation to that effect, and willfully to ignore patent evidence of the provided that you indemnified us for any fiduciary’s breach so as to delay indefinitely loss we sustained and costs and the accrual of an action against the fiduciary.7 expenses incurred in connection with the Statutes of limitations exist to protect the transfer of such funds to you. . . . courts from indolent claimants as well as defendants from stale claims.
In the alternative, under the Security Agreement, you could seize the account. In defense of its position, First Trust points The seizure of the account should be a to Merchants & Marine Bank v. Douglasrelatively simple matter. . . . Finally, . . . Guardian Warehouse Corp., 801 F.2d 742 [w]e can invoke a concursus [interplead- (5th Cir. 1986). There, a bank hired Douglaser ] proceeding and deposit funds into Guardian to keep track of the inventory of a the registry of the court. debtor. Because of the debtor’s misfeasance, Douglas-Guardian submitted incorrect reports This letter hardly indicates active concealment to Merchants & Marine Bank, badly on FNBC’s part. Rather, it demonstrates a overstating the value of the debtor’s inventory. bank wishing to serve the interests of all Douglas-Guardian did, however, provide all relevant parties to the best of its reports to the bank as scheduled, and left the capacitySSeven providing legal advice about bank with no way of discerning the how best a threatening party might achieve its incorrectness of the reports. See id. at 744-45. desired ends. The court held that, under those circumstances, the bank’s action against First Trust also argues that the fiduciary re- Douglas-Guardian for contract breach did not lationship between it and FNBC rendered it accrue until the bank discovered the error in “entitled to rely” on its conclusion that FNBC had collected and provided to First Trust all of
7
the necessary and appropriate forms, and on For its proposition, First Trust relies on Smith FNBC’s representation that it lacked concrete v. Sneed, 638 So. 2d 1252, 1258 (Miss. 1994), proof of an Event of Default. First Trust holding that the discovery rule would work against apparently thought this entitlement survived a lawyer in a malpractice suit in part because of “the inability of the layman to detect [legal]
even in the face of mounting evidence of serimisapplication ; the client may not recognize the ous cost overruns, of Holders who had negligence of the professional when he sees it.” Id.
demanded an accounting, of evidence from its (citations omitted). Here, of course, First Trust own files that FNBC had actually defaulted by does not merit “lay” status; it is, after all, a trust failing to file with First Trust most of the nec- company, and therefore must be charged with the essary documentation related to the duty of knowing how to read a trust indenture, disbursements, and of lawyers who told it that being aware of the rights and duties therein, and a default had probably occurred and that it being able to protect those rights and duties.
9
the reports.8 The district court chronicled the events that occurred before June 10, 1994:
Merchants & Marine’s facts are inapposite here. As the Disbursement Agreement The record indicates that First Trust was signifies, “[a]gent’s obligation to disburse any first informed of the cost overruns on portion of the funds in the Escrow Account to April 29, 1994. After taking over the Borrower . . . is subject to Agent and Trus- account [a First Trust executive] was tee having received the . . . Collateral notified of the cost overruns on May 16, Documents.” (Emphasis added). First Trust, 1994, when he received a call from a by its own admission, never received these Holder. As previously stated, [another documents. This failure to receive docu- party] also called [him] on May 19, mentsSSeven without notice of cost over- 1994 and discussed the Holders’ runsSSconstituted the relevant “event of concerns about potential defaults under default.” the Disbursement Agreement and the Indenture. [He] reviewed the It was always within First Trust’s power, Disbursement Agreement on or about upon knowledge that disbursements were May 19, 1994, and discovered that being made, simply to review its records, note Disbursement Certificates numbers 3, 4, the lack of documentation, demand the and 5 were the only documentation in documents, and order that FNBC cease First Trust’s file. . . . First Trust hired disbursements and return the remaining escrow its own counsel on May 26, 1994, to money to First Trust upon failure to comply review all documents pertaining to the with the demand. Unlike Merchants & Marine construction of the projects. First Trust Bank, First Trust did not regularly, and in also sent letters to FNBC on May 26 conformance with its contract, receive and June 3, 1994, acknowledging that documents that were false. Instead, it failed to disbursements had been made by FNBC receive documents that it knew, or should have known, it should have been receiving. First Trust, therefore, did not suffer a latent or (...continued) hidden breach; the breach was always, or the general policies underlying th[e] statute should always have been, patently obvious to of limitations will not be thwarted by a reasonably diligent party.9 adoption of the discovery rule in that limited class of . . . cases in which, because of the secretive or inherently 8 See also Smith, 638 So. 2d at 1257 (holding undiscoverable nature of the [act] the that the statute will not run against a fiduciary plaintiff did not know, or with reasonable “until the client discovers, or should discover, the diligence could not have discovered, that material facts in issue” because such tolling “vin- he had been [injured]. In such rare dicates the fiduciary duty of full disclosure”) instances, we do not believe that a plaintiff (citation omitted)). can be accused of sleeping on his rights.
9 First Trust again points the panel to Smith, Id. (citations omitted; emphasis added). Again, 638 So. 2d at 1257, wherein the court instructed this is inapposite, because even minimal diligence that by First Trust would have brought discovery of the (continued...) agent’s breaches.
10
and requesting Disbursement Cer- reasonable.” Because we affirm the judgment tificates that it had not received as rendering FNBC the prevailing party, we required by section 6.08 of the affirm too on the issue of attorney’s fees. Disbursement Agreement. Neither side challenges the amount of fees awarded.
None of these facts comports with the picture of an entity’s remaining blissfully unaware that AFFIRMED. a cause of action had “probably” or “potentially ” arisen. Rather, they are events indicating that First Trust not only should have recognized but actually recognized that its rights had been jeopardized, and that it needed to take forceful and perhaps litigious action to defend them.
What follows these actions, though, is a long pauseSSuntil June 1996 according to First TrustSSin which First Trust took no action 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 of 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 cost s and attorneys’ fees as the court in such action or proceeding may adjudge
10 First Trust claims in July 1996 to have learned for the first time that FNBC had not received 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.