Leslie v. Lloyds of London

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

______________________________

No. 95-20085 ______________________________

CHARLES ROBERT LESLIE,

Plaintiff-Appellant/Cross-Appellee,

Versus

LLOYDS OF LONDON, also known as The Corporation of Lloyd's also known as Lloyd's, also known as The Society of Lloyd's, also known as The Committee of Lloyd's;

Defendant-Appellee/Cross-Appellant,

CHEMICAL BANK, INC.

Defendant-Appellee,

and

R. W. STURGE, also known as R. W. Sturge, Ltd.

Defendant.

_______________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CA-H-90-1907) _______________________________________________________

May 07, 1996

Before LAY,* HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:**

Charles Robert Leslie appeals the district court's denial of

* Circuit Judge for the Eighth Circuit, sitting by designation. ** Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the Court has determined that this opinion should not be published. his motion for a preliminary injunction against Lloyds of London

("Lloyd's") from presenting for payment Leslie's irrevocable letter

of credit. Leslie urges that without a preliminary injunction, he

will suffer irreparable injury, and that the district court

erroneously required him to prove his claim of fraud in the

transaction. Lloyd's cross-appeals, arguing certain findings of

fact by the district court should be set aside because they address

matters that are inappropriate in a preliminary injunction context.

We affirm the judgment of the district court.

Facts

In 1976, Leslie was solicited for participation in an

investment contract to underwrite insurance risks through Lloyd's.

Participation required that Leslie apply and qualify for membership

in Lloyd's which required him to prove financial means and deposit

a specified sum by posting an irrevocable letter of credit in favor

of Lloyd's; thereafter, Leslie became a "Name." Each Name is

responsible for his or her share of a syndicate's losses, but

liability is unlimited for that share. Leslie's letter of credit

did not incorporate the terms of his agreement with Lloyd's,

instead requiring only a "certified statement signed by and [sic]

authorized official of the Committee of Lloyd's, London, England,

certifying that the amount of the accompanying draft is due under

the terms of Mr. C.R. Leslie's underwriting membership." Pl.'s Ex.

2. Leslie earned profits as a Name through the underwriting year

-2- 1984, but thereafter has incurred substantial losses.

Leslie has refused to pay in regard to calls for losses from

various syndicates in which he has participated as a Name. He

filed a lawsuit against Lloyd's, claiming, among other things, that

he was fraudulently induced into investing in Lloyd's and that

Lloyd's misrepresented the scope of his potential liability.

Because of Leslie's refusal to pay, Lloyd's claims it has the

contractual right to draw down on his letter of credit and forward

the funds to the syndicates that have issued calls to Leslie.

Leslie filed a motion for a preliminary injunction against the

operation of the letter of credit. The district court denied the

motion, finding Leslie did not demonstrate that he will suffer

irreparable injury if the letter of credit is honored, and did not

establish that any fraud on the part of Lloyd's so vitiates his

entire transaction with Lloyd's such that he was denied any value

from his participation in the transaction. We have jurisdiction

under 28 U.S.C. § 1291(a)(1).

I. Injunctive Relief

A. Irreparable Harm

Leslie argues that without a preliminary injunction, Lloyd's

will be able to draw on the letter of credit, and he will be

irreparably injured because of Lloyd's financial condition that

-3- would limit, if not destroy, Leslie's ability to recoup even if he

obtained a judgment on the merits against Lloyd's.

A preliminary injunction is an extraordinary and drastic

remedy. Mississippi Power & Light Co. v. United Gas Pipe Line Co.,

760 F.2d 618, 621 (5th Cir. 1985). The decision to grant or deny

a preliminary injunction lies within the discretion of the district

court. Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991).

Accordingly, such an order may be reversed on appeal only upon a

showing the district court abused its discretion. White v.

Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989). In order to obtain

a preliminary injunction, Leslie has the burden of proving four

elements: (1) a substantial likelihood of success on the merits;

(2) a substantial threat of irreparable injury if the injunction is

not issued; (3) that the threatened injury to Leslie outweighs any

damage the injunction might cause to Lloyd's; and (4) that the

injunction will not disserve the public interest. Atwood Turnkey

Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 1174, 1178

(5th Cir. 1989), cert. denied, 493 U.S. 1075 (1990). If the movant

fails on any one element, a preliminary injunction may not issue.

Thus, when the movant fails to prove that, absent the injunction,

irreparable injury will result, the preliminary injunction should

be denied. Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera

Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985); cf. Bonny v.

Society of Lloyd's, 3 F.3d 156, 160 n.11 (7th Cir. 1993)

(preliminary injunction denied pending litigation over forum

-4- selection clause), cert. denied, 114 S. Ct. 1057 (1994).

The general rule is that there can be no irreparable injury

where money damages would adequately compensate a plaintiff. See,

e.g., City of Meridian v. Algernon Blair, Inc., 721 F.2d 525, 529

(5th Cir. 1983). The record in this case is clear that only money

is at stake. While Leslie will suffer the immediate loss of money

if Lloyd's draws upon the letter of credit, the very purpose of the

letter of credit is to place the money in the beneficiary's hands

while "contractual disputes wend their way towards resolution."

Enterprise, 762 F.2d at 474 (quotation omitted). Moreover, as this

court noted in Enterprise, a case involving an international letter

of credit, "the requirements for preliminary injunctive relief,

including the showing of a substantial threat of irreparable injury

if the injunction is not issued, are to be strictly exacted so as

to avoid shifting the contractual allocation both of the risk of

loss and the burden of pursuing international litigation." Id. As

the district court found, such monetary loss alone does not

constitute irreparable harm sufficient to justify the issuance of

a preliminary injunction.

Nonetheless, Leslie contends his expert testimony shows that

Lloyd's financial situation is so precarious that he will never

recover any monies from Lloyd's if he ultimately prevails,

therefore, he is entitled to injunctive relief. See Roland Mach.

Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984)

(stating that a damage remedy may be inadequate if a defendant may

become insolvent before a final judgment can be entered and

-5- collected). We disagree. The district court judge found the

testimony of Leslie's experts that Lloyd's liabilities might

preclude collection of any future judgment too speculative and

otherwise insufficient to satisfy Leslie's burden that no other

adequate remedy at law exists in lieu of the requested injunction.1

See Sampson v. Murray, 415 U.S. 61, 90 (1974) (noting that the

"possibility that adequate compensatory or other corrective relief

will be available at a later date . . . weighs heavily against a

claim of irreparable harm" (quotation omitted)). This finding will

be reversed only for clear error. Enterprise, 762 F.2d at 472.

Such is not the case here.

B. Fraud in the Transaction

Leslie next contends the district court erred by requiring him

to meet the same burden of proof he would face in a permanent

injunction hearing, rather than merely determining whether he

proved a substantial likelihood on the merits. Specifically,

Leslie contends the district court erroneously required proof of a

separate element of "fraud in the transaction." Leslie's argument

is unpersuasive.

The law surrounding presentment of letters of credit is well

settled in Texas. See, e.g., Philipp Bros., Inc. v. Oil Country

Specialists, Ltd., 787 S.W.2d 38, 40-41 (Tex. 1990). The

1 The record shows that even Leslie's experts testified "Lloyd's will sail on into the future." Tran. at 160.

-6- obligation of the issuer bank to pay to the beneficiary upon

presentment of conforming documents is independent of the

underlying contractual relationship between customer and the

beneficiary. Republic Nat'l Bank v. Northwest Nat'l Bank, 578

S.W.2d 109, 114 (Tex. 1978). Under this doctrine of independence,

any contractual disputes between the customer and beneficiary are

not the concern of the issuer; when conforming documents are

presented, payment must be made. Tex. Bus. & Com. Code Ann.

§ 5.114(a). Presentment may not be enjoined unless there is a

showing by the customer of fraud by the beneficiary. Id.

§ 5.114(b)(2). Fraud in the transaction is defined as "fraud in

which the wrong doing of the beneficiary has so vitiated the entire

transaction that the legitimate purposes of the independence of the

issuer's obligations would no longer be served." Philipp Bros.,

787 S.W.2d at 40 (quotation omitted). The underlying transaction

must have been a complete sham, from which no value was derived by

the customer and with no purpose other than obtaining the

customer's money through the letter of credit. See GATX Leasing

Corp. v. DBM Drilling Corp., 657 S.W.2d 178, 183 (Tex. Ct. App.

1983). Moreover, proof of actionable fraud does not, in and of

itself, necessarily justify an injunction. See Paris Sav. & Loan

Ass'n v. Walden, 730 S.W.2d 355, 365 (Tex. Ct. App. 1987) ("We do

not hold that there is no actionable fraud in either transaction.

We hold only that there is no `fraud in the transaction' of the

type required to fall within section 5.114(b).").

The district court found Leslie failed to show the type of

-7- fraud in the underlying transaction that would destroy the

legitimate purpose of the irrevocable letter of credit, noting he

is a sophisticated investor who knowingly undertook the risks

inherent in causing the issuance of a letter of credit in return

for the rewards of international business. See Enterprise, 762

F.2d at 474. Moreover, the district court concluded that while

Leslie has incurred losses as a Name, and may well incur further

losses, Leslie admitted he derived value and benefitted from his

membership in Lloyd's for eight years, both in earning overall

profits and in using profits from certain syndicates to offset

losses from unprofitable syndicates. Leslie v. Lloyd's, No. H-90-

1907, at 17 (S.D. Tex. Nov. 2, 1994) (order denying preliminary

injunction). Finally, while the district court determined Leslie's

evidence indicated potentially fraudulent actions by Lloyd's, the

evidence simply did not support a finding that Lloyd's did not

intend for Leslie to benefit at all from the transaction underlying

the letter of credit. Leslie therefore failed to establish

substantial likelihood of success in his action on the letter of

credit. Since Leslie failed to carry his burden on this element,

the district court did not abuse its discretion in rejecting

Leslie's claim for a preliminary injunction.

II. Preliminary Findings

Lloyd's asserts the district court abused its discretion by

making findings of fact that are inappropriate in the preliminary

-8- injunction context. While Lloyd's concedes the findings of fact

are neither law of the case nor collateral estoppel as to other

proceedings in United States courts, University of Texas v.

Camenisch, 451 U.S. 390, 395 (1981); Mylett v. Jeane, 910 F.2d 296,

299 (5th Cir. 1990), it nevertheless requests this Court to set

them aside out of fairness, contending that other courts may attach

undue significance to them.

Lloyd's request to set aside certain findings of fact would

reduce the findings to bare conclusions and eliminate their primary

function, which is to facilitate appellate review. Chandler v.

City of Dallas, 958 F.2d 85, 88 (5th Cir. 1992); see also Bose

Corp. v. Linear Design Labs, Inc., 467 F.2d 304, 311 (2d Cir. 1972)

(trial court's findings are of the highest importance to a proper

review granting or denying a preliminary injunction). Moreover, it

would be premature to set aside the district court's findings at

this stage of the proceedings. After Leslie brought this appeal,

the district court reconsidered the venue and forum selection

issues raised by Lloyd's and denied Lloyd's motion to dismiss,

confirming that Houston, Texas is a proper venue for this lawsuit

and that the forum selection clause in the underlying agreement is

unreasonable and unenforceable. Leslie v. Lloyd's, No. H-90-1907,

at 17 (S.D. Tex. Aug. 20, 1995) (order affirming, after

reconsideration, magistrate's memorandum & recommendation). The

district court certified its order for interlocutory appeal. In

the order, the court referenced the findings from the preliminary

injunction motion and indicated that those findings are to be

-9- considered as part of its ruling denying Lloyd's motion to dismiss.

Accordingly, the preliminary injunction findings will be necessary

for this Court to properly review the appeal, see Chaiffetz v.

Robertson Research Holding, Ltd., 798 F.2d 731, 734-35 (5th Cir.

1986) (noting the appellate court must know the basis for the

district court's conclusion), and thus we decline to set them

aside.

The judgment of the district court is AFFIRMED. Each party

shall pay its own costs.

-10-