Dunnington v. FIRST ATLANTIC NAT. BANK, 13674.

• Decision Date: 15 April 1952
• Docket Number: No. 13674.,13674.
• Parties: DUNNINGTON v. FIRST ATLANTIC NAT. BANK OF DAYTONA BEACH.
• Court: U.S. Court of Appeals — Fifth Circuit

195 F.2d 1017 (1952)

DUNNINGTON v. FIRST ATLANTIC NAT. BANK OF DAYTONA BEACH.

No. 13674.

United States Court of Appeals Fifth Circuit.

April 15, 1952.

Olin E. Watts, William A. Hamilton, Jacksonville, Fla., for appellant.

Edward McCarthy, Jacksonville, Fla., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

HUTCHESON, Chief Judge.

This appeal from a summary judgment entered on defendant's motion, as all other such appeals do, presents for our decision the single question whether, on the record¹ before him, the district judge was right in holding: that there was no genuine issue as to any material fact; and that defendant was entitled to judgment as a matter of law.

In explanation of his judgment, the district judge filed this memorandum:

"The plaintiff\'s conduct, and not that of the defendant, was the cause of the penalty, interest and attorney\'s fees for which plaintiff seeks recovery. The defense of `participation and concurrence\' is clearly made out on plaintiff\'s admissions and upon his undisputed conduct. The position taken by him throughout his course of dealings with defendant resulted in the losses he now seeks to recover. There is no issue for a jury."

Appellant, focusing his attack upon the reason given in the memorandum for the entry of the judgment, insists: that the judge erred, in failing to apply controlling principles of law, and in concluding that there was no genuine issue as to any material fact; and that a judgment for defendant was demanded as matter of law.

Appellee, addressing itself primarily to sustaining the ground for the judgment, assigned in the memorandum, puts forward as its second point: that defendant obtained and acted upon the advice of counsel; and that it, therefore, acted prudently as a matter of law since, whether the advice was wise or unwise, it was not patently wrong.

Upon the issues thus joined on appeal, appellee, in support of the first contention, that a beneficiary or principal cannot complain of an act of his trustee or agent in which he himself has participated or concurred, cites: Bogert on Trusts, Vol. 4, Sec. 941, p. 134; ibid, Vol. 3, Sec. 602, p. 146; 2 Scott on Trusts, Sec. 216, p. 1149, and cases; Oellien v. Galt, 150 Mo.App. 537, 131 S.W. 158; A.L.I.Restatement, "Trusts", Sec. 216(1), p. 609; Turner v. Fryberger, 99 Minn. 236, 109 N.W. 229. It insists that any one of reasonable mind is bound, on this record, to conclude: that the appellant's own conduct was the basis and the cause of the penalty, interest and attorney's fees of which he complains; that the defense of participation and concurrence was made out by appellant's own conduct and admissions; and that there was no issue on which a jury could have found otherwise.

Upon the second contention, that, having obtained and acted upon advice of counsel, the administrator acted prudently as matter of law, appellee cites Strong v. West, 110 Ga. 382, 35 S.E. 693; Kaufman v. Kaufman, 292 Ky. 351, 166 S.W.2d 860, 144 A.L.R. 866; Hatfried, Inc. v. Commissioner, 3 Cir., 162 F.2d 628; and similar cases such as Haywood Lumber & Mining Co. v. Commissioner, 2 Cir., 178 F.2d 769.

Appellant, contesting both appellee's statement of the law and his conclusion as to the necessary result of the facts, cites in support of his claim, that the summary judgment was wrongly entered: (1) many cases holding that all doubts as to the existence of a genuine issue as to a material fact must be resolved against the person moving for a summary judgment;² and (2) authorities holding that advice of counsel is not a defense as matter of law.³ Planting himself firmly upon them, he insists that, upon the controlling principles of law and the facts of record, the case was not one for summary judgment, the entry of a compelled conclusion on undisputed facts. It was one requiring a trial in which not only the acts and conduct, but the motives for those acts and that conduct, could be searched out and the proper inferences drawn as can only be done upon a trial.

Of the opinion: that the case is not one for summary judgment; and that in the event of another trial the legal principles which should be applied to the facts as they appear are sufficiently settled and clear, we shall not undertake at this time to express our opinion either upon...