AccuBanc Mortg. Corp. v. Drummonds

• Decision Date: 19 December 1996
• Docket Number: No. 2-95-072-CV,2-95-072-CV
• Citation: 938 S.W.2d 135
• Parties: ACCUBANC MORTGAGE CORPORATION, Appellant, v. Richard DRUMMONDS, Appellee.
• Court: Texas Court of Appeals

Page 135

938 S.W.2d 135

ACCUBANC MORTGAGE CORPORATION, Appellant, v. Richard DRUMMONDS, Appellee.

No. 2-95-072-CV.

Court of Appeals of Texas,

Fort Worth.

Dec. 19, 1996.

Rehearing Overruled Feb. 27, 1997.

Brown, McCarroll & Oaks Hartline, Peter J. Harry and Kathy J. Owen, Dallas, for appellant.

Frank Gilstrap, Ann E. Jones and John M. Rgoers, Arlington for appellee.

Before DAUPHINOT, RICHARDS and HOLMAN, JJ.

OPINION

RICHARDS, Justice.

Appellant AccuBanc Mortgage Corporation (AccuBanc), a mortgage banking company, appeals from a $9.1 million judgment on a jury verdict for Appellee Richard Drummonds. We affirm in part and reverse and render in part.

This case presents several complicated questions, including: (1) whether a wrongful discharge claim against the asset of a federally regulated thrift is governed by FIRREA's administrative claims procedure; (2) whether such a claim must be brought under the FTCA; (3) what constitutes an employment contract; (4) whether a Bivens action is available against the asset of a federally regulated thrift when the thrift is in receivership; and (5) what constitutes self-publication of defamatory statements. In twenty-five points of error, AccuBanc contends the trial court's rulings and judgment on these and other issues are improper.

THE JURISDICTIONAL ISSUES

In its first point of error, AccuBanc asserts the trial court lacked subject matter jurisdiction over Drummonds' causes of action because Drummonds failed to satisfy the administrative prerequisites of the Financial Institutions Reform, Recovery, and Enforcement Act, 12 U.S.C. §§ 1811-31u (West 1989 & West Supp. Pamph. 1996) (FIRREA) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (West 1994) (the FTCA).

We hold that Drummonds was not required to satisfy the administrative prerequisites of either FIRREA or the FTCA because those statutory schemes do not apply to his claims.

1. FIRREA

FIRREA sets up a detailed framework for restoring the financial integrity of the federal deposit insurance fund, providing funds from public and private sources to deal expeditiously with failed depository institutions. In re Scott, 157 B.R. 297, 308 (Bankr.W.D.Tex.1993), op. withdrawn due to settlement, 162 B.R. 1004 (Bankr.W.D.Tex.1994); see also Circle Indus. v. City Fed. Svgs. Bank, 749 F.Supp. 447, 451 (E.D.N.Y.1990), aff'd, 931 F.2d 7 (2d Cir.1991). FIRREA includes an administrative claims procedure for resolving claims asserted against both failed depository institutions and the RTC in its capacity as receiver of failed depository institutions. 12 U.S.C. § 1821(d)(3)(B)(i), (d)(5), (d)(6) (West 1989 & West Supp. Pamph.1996); RTC v. Elman, 949 F.2d 624, 627 (2d Cir.1991); In re Scott, 157 B.R. at 308 & n. 6. If the creditor-claimant does not satisfy these administrative prerequisites, he deprives the trial court of subject matter jurisdiction over: (1) any claim from the assets of a depository institution for which the RTC has been appointed a receiver; or (2) any claim relating to any act or omission of the RTC as receiver. 12 U.S.C. § 1821(d)(13)(D) (West 1989).

In this case, Drummonds, the former president and CEO of AccuBanc, sued the company because he was fired by its RTC-controlled board of directors. AccuBanc was a wholly owned subsidiary of El Paso Federal Savings and Loan Association (El Paso Savings), a depository institution. At the time Drummonds was discharged, El Paso Savings had failed and had been placed under the receivership of the RTC. Although AccuBanc was an asset of a depository institution, it was not itself a depository institution; it made and serviced loans, but it did not take deposits from the public. Id. § 1813(c) (West 1989). In addition, AccuBanc did not fail; it remained a viable entity. None of Drummonds' claims is against El Paso Savings, nor do any of them concern the RTC's actions with respect to a claim against El Paso Savings. Instead, Drummonds has alleged claims against AccuBanc.

AccuBanc contends that Drummonds was required to satisfy FIRREA's administrative prerequisites because (1) he asserted his claims against the asset of a depository institution for which the RTC had been appointed a receiver--AccuBanc; and (2) his claims related to the RTC's acts as receiver. AccuBanc argues that section 1821(d)(13)(D) operates as a jurisdictional bar to any claim asserted against the assets of a failed depository institution, irrespective of whether the claimant is asserting a claim against the failed depository institution itself.

We think such a reading of the statute is too broad. In cases of statutory interpretation, we look to the plain and common meaning of the terms and words used in the statute as a whole, to give effect to the legislature's intent. Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex.1993); ESIS, Inc. v. Johnson, 908 S.W.2d 554, 560 (Tex.App.--Fort Worth 1995, writ denied); see also Whatley v. RTC, 32 F.3d 905, 909 (5th Cir.1994) (interpreting FIRREA). Read as a whole, FIRREA repeatedly refers to the claims process only as it relates to creditors of failed depository institutions. In fact, the jurisdictional bar of section 1821(d)(13)(D) can be interpreted as applying to Drummonds' claims only if it is read in a vacuum, completely apart from the rest of the administrative scheme. We will not adopt such a tortuous interpretation of section 1821(d).

Further, the interpretation AccuBanc urges would not accomplish FIRREA's purposes. The primary purpose of FIRREA is to establish a scheme for fairly adjudicating creditor claims against failed financial institutions. Whatley, 32 F.3d at 909-10. Barring Drummonds' claims against AccuBanc, a solvent company, would not affect the fair adjudication of creditor claims against El Paso Savings, the failed depository institution.

Because Drummonds has not asserted any claims against a failed depository institution, we hold he did not have to satisfy FIRREA's administrative prerequisites before filing suit against AccuBanc.

2. The FTCA

Also in point of error one, AccuBanc contends the trial court lacked subject matter jurisdiction over Drummonds' claims because he failed to pursue administrative remedies under the FTCA.

The federal government has used the FTCA to waive its sovereign immunity to suits based on certain torts committed by government employees in the course and scope of their employment. 28 U.S.C. §§ 2672, 2674. The FTCA is applicable to the RTC. Rauscher Pierce Refsnes, Inc. v. FDIC, 789 F.2d 313, 315 (5th Cir.1986); Park Club, Inc. v. RTC, 742 F.Supp. 395, 398 (S.D.Tex.1990), rev'd on other grounds, 967 F.2d 1053 (5th Cir.1992). A person who wishes to sue under the FTCA must first exhaust his administrative remedies by presenting his claim to the appropriate federal agency. 28 U.S.C. § 2675(a). Moreover, the United States is the proper defendant in FTCA suits; neither the federal agency nor the federal employee involved can be sued in their own names. Vernell v. U.S. Postal Serv., 819 F.2d 108, 109 (5th Cir.1987). Finally, the federal district courts have exclusive jurisdiction over FTCA suits. 28 U.S.C. § 1346(b).

AccuBanc asserts Drummonds' tort claims fall under the FTCA because all the acts underlying his suit were committed by RTC employees in the course and scope of their employment for the United States Government. Thus, AccuBanc reasons, the United States is the proper defendant in this case, and Drummonds was required to file an administrative charge with the appropriate federal agency before suing AccuBanc.

Drummonds has alleged that, at all times material to this case, AccuBanc was owned or controlled by the RTC and that all the acts underlying his suit were committed by RTC employees. Nonetheless, Drummonds contends that none of his claims is covered by the FTCA because he did not sue the RTC or any federal employees. We agree.

The issue we must decide is not whether the United States is the proper defendant in an FTCA case. Rather, the issue is whether a plaintiff must sue under the FTCA when the conduct of which he complains was committed by federal employees in their dual capacity as U.S. employees and directors of a private corporation.

The record shows that, before Drummonds was fired, El Paso Savings had ceased to exist, and the RTC had taken over complete control of AccuBanc. Further, AccuBanc's board of directors was comprised entirely of RTC employees: Dan Crain, Chris Roach, and Richard Bodak. Drummonds' employment was terminated by Crain, Roach, and Bodak in the course and scope of their employment for the RTC. Nonetheless, when they committed these acts, Crain, Roach, and Bodak were performing dual roles; they were at the same time federal employees and directors of AccuBanc. Drummonds has chosen to sue AccuBanc, a private corporation, for the actions taken by its board of directors, rather than to sue the RTC for its employees' conduct, or to sue Crain, Roach, and Bodak individually.

Generally, the actions of a corporate agent made on behalf of the corporation are deemed the corporation's acts. Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex.1995); see also Duval County Ranch Co. v. Wooldridge, 674 S.W.2d 332, 335 (Tex.App.--Austin 1984, no writ) (defendant's fraud was attributable to corporation for which he was acting and of which he was sole owner). Even though Crain, Roach, and Bodak were RTC employees, as directors of AccuBanc, they had authority under state law to bind AccuBanc to the consequences of their decisions.

AccuBanc does not cite any cases that have held a plaintiff must sue the United States when the conduct of federal employees--who are also directors of a private corporation--is the basis for the plaintiff's claims. Our painstaking research has not unearthed any such cases. Thus, we conclude that, under the unique circumstances presented in this situation, Drummonds was entitled to sue AccuBanc under state law rather than the...