Resolution Trust Corp. v. Gibson
| Decision Date | 10 September 1993 |
| Docket Number | Civ. A. No. 92-0140-CV-W-8-6. |
| Parties | RESOLUTION TRUST CORPORATION, Plaintiff, v. John M. GIBSON, William R. Kidwell, Jr., Robert K. McBride, Steven W. Mathena, Charles F. Mehrer, III, John W. Lounsbury, Floyd R. Gibson, Gertrude W. Gibson, Joseph H. Peters, William L. Brooks, William R. Cockefair, Jr., Ewing L. Lusk, Jr., Paul F. Woodard, Hugh G. Hadley, L.H. Johanson, Jack L. Reddin, M.D., Annette N. Morgan, Personal Representative of the Estate of William B. Morgan, Deceased, and Campbell, Morgan & Gibson, P.C., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Clifford K. Stubbs, Lawrence D. Greenbaum, Douglas M. Greenwald, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, Patrick D. McAnany, McAnany, Van Cleave & Phillips, P.A., Lenexa, KS, David A. Vorbeck, Resolution Trust Corp., Kansas City, MO and Charles A. Getto, Lenexa, KS, for plaintiff/counterdefendant.
Joel Pelofsky, Russell S. Jones, Jr., Robert R. Raymond, James C. Sullivan, Shughart, Thomson & Kilroy, P.C., Kansas City, MO, Steven W. Mathena, Glendale, AZ, Daniel R. Young, Smith, Gill, Fisher & Butts, Kansas City, MO, Franklin T. Thackery, Daniel Lee Duncan, Martin M. Bauman, Martin M. Bauman, P.C., St. Joseph, MO, Patrick C. Cena, Thomas E. Deacy, Jr., Deacy & Deacy; Donald W. Giffin, Spencer, Fane, Britt & Browne; Peter E. Strand, Shannon Reynolds Spangler, Shook, Hardy & Bacon; James W. Humphrey, Jr., John B. Gillis, Kuraner & Schwegler; Glenn McCann, Knipmeyer, McCann, Smith, Manz & Gotfredson; David M. Harding, Van Osdol, Magruder, Erickson
& Redmond, P.C.; Michael J. Thompson, John G. Mazurek, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, MO, for defendants/counterclaimant.
This matter is before the court on three separate summary judgment motions, all by defendants.1 The three motions are as follows: (1) Defendant John M. Gibson's motion for summary judgment (Doc. 433) on Counts III and IV, which allege legal malpractice; (2) Defendants John M. Gibson, Gertrude W. Gibson, and William R. Kidwell, Jr.'s motion for summary judgment (Doc. 435) on all claims based on excessive compensation; and (3) Defendants John M. Gibson, and William R. Kidwell's motion for partial summary judgment (Doc. 439) on Counts I and II to the extent they make claims involving the acquisition of North American Development and Management, Inc. ("NADM") and certain "side letters."
For the reasons set forth in this order, defendants' motions for summary judgment are disposed of as follows: (1) defendant John M. Gibson's motion on Counts III and IV (Doc. 433) is denied; (2) defendants John M. Gibson, Gertrude W. Gibson and William R. Kidwell, Jr.'s motion on all claims based on excessive compensation (Doc. 435) is denied; and (3) defendants John M. Gibson and William R. Kidwell's motion on claims involving North American Development and Management, Inc., and certain "side letters" (Doc. 439) is denied.
For the purposes of defendants' summary judgment motions, the court makes the following findings of fact.
Resolution Trust Corporation ("RTC") brought this action for officers' and directors' liability and for legal malpractice against former officers, directors, and lawyers of Blue Valley Federal Savings and Loan Association ("Blue Valley").
Blue Valley was a federally chartered, federally insured mutual savings and loan association. Its principal place of business was in the Western District of Missouri.
On February 16, 1989, the Federal Home Loan Bank Board ("FHLBB") determined Blue Valley was insolvent and appointed the Federal Savings and Loan Insurance Corporation ("FSLIC") as conservator. When RTC came into existence in the summer of 1989, it assumed the position of conservator of Blue Valley. On June 15, 1990, RTC became the receiver of Blue Valley. RTC, in its corporate capacity, acquired certain assets from the RTC receiver. Such assets included any and all causes of action and claims against any officer, director, lawyer or any other Blue Valley agent arising out of the acts of any such persons or arising out of the performance or non-performance of their duties.
The three motions disposed of by this order are brought by one, or a combination of, the following three defendants: (1) John M. Gibson; (2) William R. Kidwell, Jr.; and (3) Gertrude W. Gibson.
Defendant John M. Gibson was a member of the Blue Valley Board of Directors from approximately 1968 until October 8, 1987. He was Chairman of the Board from October 8, 1981, until October 8, 1987. Additionally, he was a principal and shareholder in Campbell, Morgan, & Gibson, P.C., a law firm that handled legal business for Blue Valley.
Defendant William R. Kidwell, Jr. was a member of the Blue Valley Board of Directors from approximately 1983 until October 8, 1987.
Defendant Gertrude W. Gibson was a member of the Blue Valley Board of Directors from January 1964 until approximately March 1, 1988.
In July 1984, defendants John M. Gibson ("Gibson"), William R. Kidwell ("Kidwell"), and William B. Morgan ("Morgan"), along with two other business associates, incorporated NADM. Subsequently, Gibson, Kidwell, and Morgan decided to sell NADM to Blue Valley. On February 23, 1985, at a regular meeting, with Gibson and Kidwell abstaining, the Blue Valley Board unanimously voted to approve the purchase of NADM.
On May 29, 1985, the Federal Home Loan Bank Board ("FHLBB") began an examination of Blue Valley's acquisition of NADM. On October 22, 1985, the Blue Valley Board unanimously voted to sell NADM.
In or about September 1985, after the FHLBB initiated its investigation of Blue Valley's purchase of NADM, the Blue Valley Board hired both the law firm of Lathrop, Koontz, and Norquist and the investigative firm of Clarence Kelly and Associates to investigate NADM and its purchase by Blue Valley. Additionally, the Blue Valley Board assigned William F. Pollard to investigate the "side letters" issued by Robert K. McBride.
In 1987, the FHLBB began an investigation into the conduct of Gibson and Kidwell. The investigation included both the acquisition of NADM and the "side letters" issued by Robert K. McBride.
Following the commencement of the FHLBB's 1987 investigation, discussions were conducted regarding the possibility of obtaining Gibson's and Kidwell's resignations from Blue Valley. The discussions concluded in the following arrangement: The FHLBB terminated its investigation of Gibson and Kidwell and Gibson and Kidwell resigned from Blue Valley. Additionally, Blue Valley entered into a "Mutual Limited Release" with Gibson and Kidwell. According to the terms of the release, Gibson and Kidwell, in consideration for their resignations and release of any claims they had against Blue Valley, were released from any and all claims Blue Valley had against them. Specifically, the release states as follows:
... in consideration of the resignations from all posts by Messrs. Gibson and Kidwell and, further, in consideration for the releases received hereunder from Messrs. Gibson and Kidwell, Blue Valley ... and each of its subsidiaries do hereby release ... any and all claims, causes of action, and possible causes of action which have heretofore been the subject of prior Blue Valley investigations, including and limited to, the acquisition of North American Development and Management, Inc., the issuance ... of "side letters" releasing personal guarantees and recourse in connection with the placing of certain real estate loans, and Solaris-Winter Park.
Defendants Gibson and Kidwell's Exhibits 10 and 11. Additionally, the release provides that it "is meant to be binding upon the heirs, successors, and assigns of the parties hereto." Id. However, its scope is limited by the following provision: "Nothing contained in the release shall limit the FSLIC in the performance of its regulatory or statutory duties in the future." Id.
A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1985). The substantive law identifies which issues are material. Id. at 248, 106 S.Ct. at 2510. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. Thus, "only genuine disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
The movant has the burden of showing the absence of a genuine issue of material fact. The movant may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmovant's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1985). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. at 2553. Once the movant makes a properly supported motion, the nonmovant must go beyond the pleadings and, by affidavits or the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is no genuine issue for trial. Fed.R.Civ.Pro. 56(e). See also Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 ( 56(e)).
A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. Green v. United States...
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