43 F.3d 587 (11th Cir. 1995), 91-3924, Resolution Trust Corp. v. Dunmar Corp.

Docket Nº:91-3924.
Citation:43 F.3d 587
Party Name:RESOLUTION TRUST CORP., Plaintiff, v. DUNMAR CORP. and Michael D. Jones, Defendants-Counterclaim Plaintiffs, The First F.A., Defendant-Counterclaim Defendant, Sherman Dantzler and Jack Shirek, Defendants, and The First F.A. of Orlando and Resolution Trust Corp., Counter-Defendants. Michael D. JONES, Robert S. Guskiweicz, R.S. Futch, Jr., Plaintiffs
Case Date:January 26, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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43 F.3d 587 (11th Cir. 1995)



DUNMAR CORP. and Michael D. Jones, Defendants-Counterclaim Plaintiffs,

The First F.A., Defendant-Counterclaim Defendant,

Sherman Dantzler and Jack Shirek, Defendants,


The First F.A. of Orlando and Resolution Trust Corp.,


Michael D. JONES, Robert S. Guskiweicz, R.S. Futch, Jr.,



RESOLUTION TRUST CORP., Defendant-Third Party Plaintiff-Appellee.

Philip DONLEVY, William Crawford, Robert Stone, Defendants,



Orlando, Third Party Defendants.

RESOLUTION TRUST CORP., Plaintiff-Counter Defendant-Appellee,


LAKE PICKETT, LTD., a Florida Limited Partnership; Michael

D. Jones, as general partner, d/b/a Lake Pickett, Ltd., a

Florida Limited Partnership; Michael D. Jones, individually

and as Trustee, Defendants - Counter - Plaintiffs - Appellants,

The First F.A. of Orlando, Defendant.

No. 91-3924.

United States Court of Appeals, Eleventh Circuit

January 26, 1995

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Broad and Cassel, Brenda Lee London, Robert D. Gatton, Orlando, FL, for appellant.

Giles, Hedrick & Robinson, P.A., E. Givens Goodspeed, Orlando, FL, Kirk K. Van Tine, Baker & Botts, Washington, DC, for Resolution Trust Corp.

Manueal A. Palau, FDIC, Washington, DC, for amicus curiae FDIC.

Appeal from the United States District Court for the Middle District of Florida.


ANDERSON, Circuit Judge:


In this decision we assess the propriety of the district court's grant of summary judgment in favor of appellee Resolution Trust Corporation based upon the D'Oench, Duhme doctrine. For the reasons that follow, we affirm the judgment of the district court.


This case arises from the banking relationship of Michael D. Jones, Robert A. Guskiewicz, R.S. Futch, Jr., and Lake Pickett, Ltd. (collectively "Jones") with the financial institution of Freedom Savings & Loan Association ("Freedom"). Beginning in 1979, Jones obtained several personal and business loans from Freedom, two of which are at issue here. First, Jones obtained a loan secured by a mortgage on a residential real estate development known as Pickett Downs ("Lake Pickett"). Jones executed a two-year note and mortgage on Lake Pickett on July 11, 1984 for a total indebtedness of $1,600,000. With an unpaid balance of $1,117,172, the parties executed an extension agreement which delayed the loan's payoff until July 1987. Second, Jones obtained a loan for which the collateral consisted of property which Jones and his partners intended to develop as a "fly-in" residential community with an airstrip ("Airport Property"). The parties executed a two-year note and mortgage on the Airport Property on June 5, 1986 in the amount of $7,950,000.

At the time of the alleged incidents which spawned this litigation, Jones still owed Freedom substantial sums on both obligations. Jones owed a total of more than $8,000,000, with approximately $850,000 due on the Lake Pickett obligation and over $7,400,000 due on the Airport Property loan. Both loans were evidenced by a standard note and mortgage. Pursuant to both loan agreements, Jones could not effectuate an assumption of the obligations without the prior consent of Freedom.

On July 23, 1987, the Federal Home Loan Bank Board ("FHLBB") declared Freedom insolvent and appointed the Federal Savings & Loan Insurance Corporation ("FSLIC") as the institution's Receiver. The FHLBB chartered a new federal savings and loan institution with the same name ("New Freedom") to which the FSLIC transferred assets of Freedom, including the loans at issue, pursuant to an acquisition agreement.

During the operation of New Freedom, the incidents at issue in this case occurred. With respect to each of the properties, negotiations occurred between and among Jones, potential buyers, and New Freedom officials in an effort to restructure the loans. In each case, Jones had reached an agreement with buyers to purchase his land, the collateral. With respect to the Airport Property, interested buyers submitted a written proposal of the deal to New Freedom. In both cases, the arrangement between Jones and the buyers required assumption of the existing loans; thus, the transactions required New Freedom's approval.

Jones asserts that during such negotiations, New Freedom officials made oral representations that the bank would lend additional monies, extend the time for payment, and permit assumption by the buyers. Jones asserts that New Freedom intentionally and/or negligently killed Jones' arrangement with the buyers, accordingly damaging Jones

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due to the failure of the deals to be consummated.


After the foregoing negotiations surrounding the Airport Property broke down, Jones instituted an action in state court against New Freedom and various officers, raising a number of tort theories. New Freedom responded by counterclaiming to foreclose the Airport Property and by instituting foreclosure proceedings on the Lake Pickett Property. Prior to resolution of these cases, on February 7, 1989, FHLBB declared New Freedom insolvent and appointed FSLIC as Conservator. Subsequently, on March 8, 1989, FSLIC removed these cases to federal court. Pursuant to the passage of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. 101-73, 103 Stat. 183, Sec. 1821(d)(2)(A)(i), (FIRREA) the Resolution Trust Corporation ("RTC") was created, replacing the dissolved FHLBB and FSLIC. The RTC as Receiver for New Freedom occupies New Freedom's place with respect to Jones' claims against the failed institution. The RTC in its corporate capacity, as purchaser of New Freedom's assets, undertakes the claims against Jones on the notes.

Following discovery, the RTC moved for summary judgment. After Jones' response and full briefing, the district court granted summary judgment in favor of RTC. On appeal, a panel of this court affirmed in part and reversed in part. Resolution Trust Corp. v. Jones, 7 F.3d 1006 (11th Cir.1993). RTC's petition for en banc rehearing was granted, thus vacating the panel opinion. 20 F.3d 397 (11th Cir.1994).

RTC's motion for summary judgment argued that all of Jones' claims were based on oral agreements or representations and thus were barred by D'Oench. Jones filed a brief and response in opposition to summary judgment. See Memorandum of Law Opposing Motion for Summary Judgment or, Alternatively, Motion for Partial Summary Judgment (hereinafter "Memorandum of Law Opposing Motion for Summary Judgment") R-2-68-1. The first argument Jones raised to the district court, entitled "Dual Capacity," has not been pursued on appeal and thus is deemed abandoned. The third argument Jones raised, "Dominion and Control," is clearly without merit and warrants no further discussion. 1 Thus, we address Jones' second argument, namely that D'Oench does not apply to bar tort claims involving oral agreements that additional monies could be loaned, that extensions could be granted, and that the bank would permit assumption of the mortgage. Jones' brief to the district court argued:

Although the affirmative defenses allege oral agreements that additional monies could be loaned, that extensions could be granted and that New Freedom would be willing to allow an assumption of the loan to a qualified buyer, these agreements do not tend to diminish the rights of the corporation, RTC.

Memorandum of Law Opposing Motion for Summary Judgment, R-2-68-16. We further address a question implicit in this argument: i.e., that Jones' claims somehow do not diminish the rights of RTC. 2 For the reasons set forth below, we conclude that Jones' claims are barred.


In assessing a grant of summary judgment, this court conducts a de novo review, applying "the same legal standards 'that should have been applied by the district

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court.' " Brown v. Crawford, 906 F.2d 667, 669 (11th Cir.) (quoting Hiram Walker & Sons, Inc. v. Kirk Line, 877 F.2d 1508, 1513 (11th Cir.1989)), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In opposing a motion for summary judgment, "a party may not rely on his pleadings to avoid judgment against him." Ryan v. Int'l Union of Operating Eng'rs, Local 675, 794 F.2d 641, 643 (11th Cir.1986); see also Bennett v. Parker, 898 F.2d 1530, 1532 n. 1 (11th Cir.), cert. denied, 498 U.S. 1103, 111 S.Ct. 1003, 112 L.Ed.2d 1085 (1991). Forbidding reliance upon pleadings precludes a party from "choos[ing] to wait until trial to develop claims or defenses relevant to the summary judgment motion." Golden Oil Co., Inc. v. Exxon Co., U.S.A., 543 F.2d 548, 551 & n. 3 (5th Cir.1976). 3 This effectuates the purpose of summary judgment which " 'is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' " Wouters v. Martin County, 9 F.3d 924, 928 (11th Cir.) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)), cert. denied, --- U.S. ----, 115 S.Ct. 65, 130 L.Ed.2d 21 (1994). Thus, "mere general allegations which do not reveal detailed and precise facts" will not prevent the award of summary judgment upon a court's determination that no genuine issue for trial exists. Franz Chem. Corp. v. Phila. Quartz Co., 594 F.2d 146, 150 (5th Cir.1979).


Our analysis begins with an...

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