Dibidale of Louisiana, Inc. v. American Bank & Trust Co., New Orleans, s. 89-3601

• Decision Date: 06 November 1990
• Docket Number: Nos. 89-3601,90-3400,s. 89-3601
• Citation: 916 F.2d 300
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: , 1990-2 Trade Cases 69,235, 17 Fed.R.Serv.3d 1253 DIBIDALE OF LOUISIANA, INC., Plaintiff-Appellant, v. AMERICAN BANK & TRUST COMPANY, NEW ORLEANS, et al., Defendants-Appellees.

Page 300

916 F.2d 300

59 USLW 2301, 1990-2 Trade Cases 69,235,

17 Fed.R.Serv.3d 1253

DIBIDALE OF LOUISIANA, INC., Plaintiff-Appellant, v. AMERICAN BANK & TRUST COMPANY, NEW ORLEANS, et al.,

Defendants-Appellees.

Nos. 89-3601, 90-3400.

United States Court of Appeals,

Fifth Circuit.

Nov. 6, 1990.

James F. Willeford, Gordon P. Serou, Jr., John H. Ryan, New Orleans, La., for plaintiff-appellant.

C. Berwick Duval, Jr., Sidney C. Sundbery, Houma, La., for First Nat. Bank of Houma.

Robert S. Rooth, Corinne Ann Morrison, Robert G. Coury, E. Howell Crosby, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for American Bank & Trust and Allen Frederic, Jr.

Donna D. Fraiche, Sandra A. Vujnovich, Fred J. Cassibry, Jack P. Brook, Brook, Morial, Cassibry, Fraiche & Pizza, New Orleans, La., for Whitmore.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, JOLLY, and JONES, Circuit Judges.

POLITZ, Circuit Judge:

Dibidale of Louisiana, Inc. appeals an adverse summary judgment dismissing its complaint that American Bank & Trust and the First National Bank of Houma illegally tied its approval for a loan to its use of a contractor of American Bank's choosing, in violation of the Bank Holding Company Act (BHCA), 12 U.S.C. Sec. 1971 et seq. Finding that the BHCA, unlike general antitrust statutes, does not include a coercion element, we vacate in part and remand.

Background

In early 1987 Dibidale Securities Establishment (DSE) sought to acquire, through its subsidiary Dibidale, a partially complete townhouse and boathouse development in Louisiana held by the Federal Savings and Loan Insurance Corporation. Robert Wagner, a general contractor serving as FSLIC custodian for the development, informed Dibidale that it would cost an estimated $4,000,000 to complete the project. According to Dibidale agent Nicholas Popich and architect Leonard Spangenberg, Dibidale was prepared to award the contract to Wagner when it obtained the loan needed to acquire and complete the development.

Popich contacted Peter Butler, a director and attorney for American Bank, to initiate loan negotiations. What occurred in the course of those negotiations forms the core of the instant dispute. According to affidavits filed by Spangenberg and Popich, Butler informed them by telephone that American Bank wanted National Building and Contracting Co., headed by Ronnie J. Theriot, to be the general contractor or project manager for the development. Spangenberg and Popich traveled to New Orleans to discuss the loan and were introduced to Theriot by an American Bank agent. American Bank and First National were under common ownership at the time. In the course of the negotiations with Ameri can Bank Popich met with Butler, William Whitmore, CEO of both American Bank and First National, and Abel Caillouet and Robert Blanchard, officers of both banks.

American Bank agents, including Whitmore, allegedly advised Spangenberg and Popich on several occasions about Theriot's reliability and encouraged them to hire him for the project. According to Popich, Theriot's name was mentioned at every negotiation session and Whitmore made it clear that American Bank would feel "comfortable" in making the loan if Theriot were hired. In a later meeting Butler informed Popich that American Bank was very desirous that Theriot get the job. While conceding that no one from American Bank ever expressly stated that hiring Theriot was a condition of the loan, Popich asserts that this was apparent and implicit in the negotiations with the bank.

Popich and Spangenberg finally decided that Dibidale would hire Theriot; American Bank issued its loan commitment letter the day after it learned of this decision. Unbeknownst to Dibidale, First National purchased a participation in the loan. Section 6.03 of the loan agreement required Dibidale to certify that it had chosen National Building from among "numerous possible general contractors" and that Dibidale "was not coerced or forced by [American Bank] in any manner" to do so.

Dibidale alleges that during the negotiations American Bank and Whitmore withheld material facts about Theriot and National Building's financial condition. As CEO of First National Whitmore was aware that Theriot owed that bank over $3,000,000, which he could not pay. Whitmore also was aware that during the course of negotiations with Dibidale, Theriot and National Building's debt with First National had been reorganized, with National Building assigning all of its accounts receivable to First National.

Almost a year after he was hired Theriot informed Dibidale that he could not complete the project for $4,000,000 as per their contract, but would require an additional $1,400,000. Dibidale borrowed this sum from American Bank. When Theriot advised Dibidale, one month later, that additional funds again would be required, Dibidale dismissed him and his company. According to Dibidale, some $2,000,000 in construction liens currently encumber the project, despite Theriot's having been paid $250,000 more than the $4,873,766 contract price.

American Bank and First National paint a very different picture. They contend that Dibidale has fabricated its allegations in a blatant attempt to avoid the consequences of its subsequent default on the American Bank loans.

Dibidale filed suit against American Bank, First National, Whitmore, Caillouet, Frederic, National Building, and Theriot, claiming violations of the anti-tying provisions of the BHCA, 12 U.S.C. Sec. 1972, along with pendent state claims. Holding that the proscriptions of section 1972 apply only to banks, the district court dismissed Dibidale's federal claims against Whitmore, Caillouet, Frederic, and Theriot as individuals, but retained pendent jurisdiction over the state claims. DSE filed a similar claim against American Bank, Whitmore, Caillouet, Frederic, and First National. American Bank filed a separate suit in state court against Popich as personal guarantor of the loan. Popich removed the case to federal court. The district court consolidated the three cases in accordance with Local Rule 1.051E. ¹

American Bank, which initially had filed a motion to dismiss Dibidale's federal anti-tying claims, was granted leave to convert that motion into one for summary judgment. First National joined that motion. Analogizing to the Sherman Antitrust Act, which requires a showing of coercion under similar anti-tying provisions, the district court concluded that Dibidale's allegations, even if true, failed to prove that American Bank had forced Dibidale to choose Theriot as its contractor. The district court thus dismissed the claims of both Dibidale and DSE based on section 1972 and further dismissed all of Dibidale's remaining state law claims, including those against the individual defendants.

Dibidale filed a motion for reconsideration. While that motion was pending the district court entered its final judgment dismissing Dibidale's claims, but did not certify the judgment pursuant to Fed.R.Civ.P. 54(b). Dibidale filed a notice of appeal from this judgment, after which the district court entered its order denying Dibidale's motion for reconsideration. Dibidale, however, did not file a second notice of appeal. Subsequent to oral argument the district court issued an appropriate Rule 54(b) judgment. Dibidale timely appealed that judgment which is also now before us.

Analysis

1. Jurisdictional threshold.

Subsequent to the filing of briefs on the merits of this case we requested supplemental letter briefing on appellate jurisdiction. Specifically, we inquired whether certification of the judgment from which Dibidale had appealed was required under Fed.R.Civ.P. 54(b) and, if certification was not required or was otherwise obtained, whether Dibidale's motion for reconsideration rendered its earlier notice of appeal ineffective under F.R.A.P. 4(a)(4). As noted, the district court's subsequent issuance of a certified judgment pursuant to Rule 54(b), and Dibidale's subsequent timely appeal have rendered the first portion of this issue moot.

The appellees contend nonetheless that the Rule 54(b) certification must apply retroactively to the district court's original judgment, thus rendering Dibidale's earlier notice of appeal premature and its most recent notice of appeal untimely. We are not persuaded. Until the issuance of the qualifying Rule 54(b) judgment, no final judgment existed from which Dibidale could take an appeal. Accordingly, Dibidale's notice of appeal from the district court's post-argument judgment properly has invoked our jurisdiction.

2. Anti-tying claims--the proper legal standard under section 1972.

Section 1972(1) contains five subsections, each prohibiting a slightly different form of tying arrangement. In both its brief on appeal and at oral argument Dibidale has professed its reliance upon section 1972(1)(D), which provides that

A bank shall not in any manner extend credit, lease or sell property of any kind, or furnish any service, or fix or vary the consideration for any of the foregoing, on the condition or requirement--

(D) that the customer provide some additional credit, property, or service to a bank holding company of such bank, or to any other subsidiary of such bank holding company....

12 U.S.C. Sec. 1972(1)(D). Dibidale alleges that by making the hiring of Theriot a condition or requirement for its loan, American Bank required Dibidale to provide a service to its affiliate First National, which held all of Theriot's accounts receivable. ²

Dibidale contends that the district court erred in requiring it to demonstrate that it was forced to hire Theriot in order to prevail on its claim. While conceding that it is appropriate as a general rule to analogize to the general antitrust statutes in interpreting section 1972, Swerdloff v. Miami Nat'l Bank, 584 F.2d 54 (5th Cir.1978), Dibidale urges caution in light of the absence from...