Lane v. Chowning, 79-1209

• Decision Date: 06 December 1979
• Docket Number: No. 79-1209,79-1209
• Citation: 610 F.2d 1385
• Parties: Harlan LANE, Appellant, v. Frank E. CHOWNING et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1385

610 F.2d 1385

Harlan LANE, Appellant, v. Frank E. CHOWNING et al., Appellees.

No. 79-1209.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 8, 1979.

Decided Dec. 6, 1979.

Charles L. Honey, Honey & Rodgers, Prescott, Ark., for appellant.

Philip S. Anderson and Alston Jennings, Wright, Lindsey & Jennings, Little Rock, Ark. (argued), and John C. Calhoun, Little Rock, Ark., on brief, for appellees.

Before ROSS and STEPHENSON, Circuit Judges, and McMANUS, District Judge. ^*

ROSS, Circuit Judge.

In this appeal, Harlan Lane challenges the district court's ¹ granting of directed verdicts in favor of all eight defendants and the denial of his motion for a new trial. The defendants in this suit are officers, directors, attorneys and a former employee of the Union National Bank of Little Rock, Arkansas. Lane, as former Chairman of the Board and Chief Executive Officer of the bank, charges the defendants with fraud, malpractice, destruction of and interference with prospective business advantage, breach of fiduciary duty and conspiracy to commit all of the above. At the conclusion of his case in chief, the district court determined that Lane had failed in his burden of proving these allegations, and directed the verdicts. Following the denial of his motion for a new trial, this appeal was filed.

A review of the history of this case demonstrates the weakness of Harlan Lane's position. He has been convicted by a jury under Section 215, Title 18, U.S.C.A., which makes it a crime to receive a fee or commission for procuring a loan for a third party while serving as an officer or director of a bank. ² This court affirmed that conviction in United States v. Lane, 464 F.2d 593 (8th Cir.), Cert. denied, 409 U.S. 876, 93 S.Ct. 127, 34 L.Ed.2d 129 (1972). In this action, however, Mr. Lane has sought to collect damages from the defendants for their part in a series of events which led up to the criminal prosecution the same events and activities for which Lane has been convicted.

The relevant facts are as follows: In June of 1968, a group of investors organized by Lane and Donald P. Couch purchased a controlling interest in the shares of Union National Bank of Little Rock, Arkansas. Lane became the Chairman of the Board and Chief Executive Officer of the bank, and Couch was elected President. The same two men subsequently were responsible for the organization of La-Co, Inc., of which Lane was Chairman of the Board and Chief Executive Officer and Couch was President. It was intended that La-Co, Inc. would be used as a bank-holding organization and Lane arranged for La-Co, Inc. to purchase stock in the Union National Bank.

In order to raise money for the purchase of bank stock, La-Co, Inc. established a line of credit with Union National Bank and with the National Bank of Commerce in Dallas. The Dallas bank granted the credit subject to an agreement that Union National Bank would deposit with them a compensating noninterest-bearing balance of fifty percent of the loans to La-Co, Inc.

In October of 1969, Harlan Lane arranged for the Union National Bank to loan Wheel-Air, Inc., an Illinois corporation, one million dollars. La-Co, Inc. was to receive $125,000 to serve as guarantor of the loan. As a result of this questionable activity, the board of directors of the Union National Bank voted on October 31, 1969, to remove Lane and Couch from their respective positions in the bank's hierarchy. Their good judgment in this matter was subsequently borne out when Lane was prosecuted for his role in the Wheel-Air loan, convicted by a jury, and sentenced to a prison term.

Lane bases his claims for damages on the theory that the defendants participated in a conspiracy of silence which kept him from discovering the illegality of the loan, and thus fraudulently induced him to follow through with the illegal activities. This alleged conspiracy began when Lane claims to have asked an employee of the bank, defendant David Johnson, to seek advice as to the legality of the Wheel-Air loan from the bank's attorneys, defendants Frank Chowning and W. P. Hamilton. Johnson supposedly obtained information that the transaction was illegal. Instead of reporting it to Lane, however, Johnson, the attorneys and the bank officers and directors allegedly initiated the conspiracy to keep the information from Lane, involve him in criminal activities, and provide grounds thereby for his removal as an officer and chairman of the board. Lane claims that the conspiracy was directed towards his financial and professional ruin. In addition, Lane claims that the injuries he suffered from this conspiracy were aggravated by the fact that the attorneys, Chowning and Hamilton, were his personal attorneys and had knowledge of his financial affairs. Lane charges that this breach of the client-attorney relationship constituted malpractice. Furthermore, Lane claims that the activities of the board of directors constituted a breach of their fiduciary duty.

Lane finally argues that the malpractice of the attorneys, the breach of fiduciary duties, the frauds and the conspiracy amounted to tortious interference with his prospective business advantage. He claims to have suffered in particular from several instances of interference, including the removal of the compensating balances from the Dallas bank, the freezing of Lane's and La-Co, Inc.'s accounts, the refusal to honor cashier's checks issued by Lane, and the making of phone calls to other bankers in an attempt to discredit Lane and destroy his reputation. In addition, several loans issued while Lane was an officer were listed as substandard and called in by the bank.

Amidst all of these allegations there are basically three discernable legal questions before us. First of all, we must consider whether any of the defendants owed a duty to Harlan Lane as Chairman of the Board and Chief Executive Officer of the bank. Second, we must examine the nature of the tort of interference with prospective business advantage and determine whether or not the prima facie case was established at trial. Finally, we are presented with the question of whether or not a civil conspiracy existed.

In reviewing the decision of a district court to direct a verdict, we use the same standard applied by that court in deciding the issue that is, we must determine whether or not the evidence was sufficient to create an issue of fact for the jury. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2524 at 541; § 2536 at 595 (1971). In making such a determination, the evidence is viewed in the light most favorable to the nonmoving party, and that party is entitled to the benefit of all reasonable inferences from the evidence without resort to speculation. Hauser v. Equifax, 602 F.2d 811, 814 (8th Cir. 1979); Kropp v. Ziebarth, 601 F.2d 1348, 1352 (8th Cir. 1979). In reviewing a decision of a district court denying a motion for a new trial, we are mindful that such a motion "is addressed to the sound discretion of the trial court and its decision thereon should not be upset absent a strong showing of abuse." Lincoln Carpet Mills, Inc. v. Singer, Inc., 549 F.2d 80, 81 (8th Cir. 1977). We have carefully reviewed the record, the pleadings and the briefs and conclude that Lane has failed to establish the existence of factual issues for the jury and has failed also in showing that the trial judge abused his discretion in denying the motion for a new trial.

I. Duties

Lane's allegations of fraud, malpractice and breach of fiduciary duty must fail for the lack of any proof of duties owing to Lane. Turning first to the officers, directors and the employee of the bank, we note that the appellant does not question on this appeal the right and duty of the board of directors of a corporation to remove an officer whom they feel has committed criminal acts in the exercise of his or her authority. Nevertheless, it is claimed that the board's and officers' silence fraudulently induced Lane to enter into an illegal loan and constituted a breach of the fiduciary duty of the directors and officers. This argument is clearly untenable, for it is well settled that the fiduciary duty of a bank officer or director is owed to the depositors and shareholders of the bank, and not to the Chairman of the Board or Chief Executive Officer. W. Fletcher, Cyclopedia of the Law of Private Corporations § 845 (rev. perm. ed. 1975). The duty of the directors in this proceeding clearly was to remove Lane and Couch from power. In fact, the failure to investigate and remove these men could have resulted in personal liability for the directors and officers. Michelson v. Penney, 135 F.2d 409, 417 (2d Cir. 1943); Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S.W. 803, 808 (1917).

More specific allegations are leveled against the bank's attorneys, Frank Chowning and W. P. Hamilton. It is claimed that they took advantage of Mr....