Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank

• Decision Date: 08 July 1991
• Docket Number: 90-2524N,Nos. 90-2385N,s. 90-2385N
• Citation: 934 F.2d 976
• Parties: RICO Bus.Disp.Guide 7780 TERRY A. LAMBERT PLUMBING, INC., Appellant, v. WESTERN SECURITY BANK, formerly doing business as Ames Bank, A Nebraska Banking Corporation and Dennis C. Robey, an individual, Appellees. TERRY A. LAMBERT PLUMBING, INC., Appellee, v. WESTERN SECURITY BANK, formerly doing business as Ames Bank, A Nebraska Banking Corporation and Dennis C. Robey, an individual, Appellants. E.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 976

934 F.2d 976

RICO Bus.Disp.Guide 7780

TERRY A. LAMBERT PLUMBING, INC., Appellant, v. WESTERN SECURITY BANK, formerly doing business as Ames Bank,

A Nebraska Banking Corporation and Dennis C.

Robey, an individual, Appellees.

TERRY A. LAMBERT PLUMBING, INC., Appellee, v. WESTERN SECURITY BANK, formerly doing business as Ames Bank,

A Nebraska Banking Corporation and Dennis C.

Robey, an individual, Appellants.

Nos. 90-2385NE, 90-2524N.E.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1991.

Decided June 4, 1991.

Rehearing Denied July 8, 1991.

Jeffrey A. Silver, Omaha, Neb., for appellant.

Patrick M. Heng, Omaha, Neb., for appellees.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Terry A. Lambert Plumbing, Inc. ("Lambert") appeals the District Court's ¹ grant of summary judgment in favor of Western Security Bank ("Western") and Dennis Robey ("Robey") on all counts of Lambert's amended complaint and grant of summary judgment for Western on Count II of Western's counterclaim (No. 90-2385). Western cross-appeals from the denial of Rule 11 sanctions (No. 90-2524). We affirm the district court in all respects in both cases.

I. BACKGROUND

Lambert was in the business of installing commercial and residential plumbing and had a longstanding banking relationship as a customer of Western. The relationship included loan transactions and the frequent exchange of advice and ideas. Lambert often incorporated Western's advice into its operations. Prior to 1988, Lambert borrowed and repaid working capital funds from Western on several occasions. In 1986, because of an increased need for funds, Lambert received a loan and gave Western a first mortgage on its office property. L & G Properties ("L & G") held a second mortgage on the same property. An officer of Western arranged the transaction and Western's files include information regarding the two liens on the property.

Lambert's business expanded rapidly during 1986 and 1987, and Lambert obtained various loans from Western for business expansion purposes. In 1987, Western had discussions with Lambert concerning Lambert's growth and increased need for working capital. As a result of those discussions, in February, 1988, Lambert and Western entered into two lending agreements. First, the parties executed a loan agreement for $350,000 with the Small Business Administration ("SBA Loan"). ² Lambert gave a mortgage on its office property as security for the SBA Loan. As a prerequisite to its participation, the SBA required a second lien position on the mortgaged property. In the second agreement, Lambert and Western agreed to a $175,000 line of credit ("Credit") which was secured by various Lambert assets, including its accounts receivable. One of the terms of the Credit was that Lambert's failure to fulfill any obligation on any other loan with Western would constitute a default of the Credit. If Lambert defaulted on the Credit, one of the remedies available to Western was to refuse to make disbursements of funds under the Credit.

Immediately after the SBA Loan was closed on February 28, 1988, Robey, the officer in charge of the Lambert account at Western, left for vacation. In his absence, another officer at Western, without reviewing a title search on the mortgaged property, disbursed substantially all the SBA Loan proceeds to pay trade creditors and to repay existing loans with Western. At the same time, the officer disbursed $42,000 of the Credit to repay another of Lambert's existing loans with Western. Upon his return from vacation, Robey reviewed the title search of the mortgaged office property and discovered that the SBA was in the third lien position on the property. ³ Robey notified Lambert that it was in default of the SBA Loan and demanded that it cure the problem by obtaining a second lien position for the SBA. Also, Robey informed Lambert that the default on the SBA Loan had triggered a default under the Credit and that Western would not advance any further funds until Lambert cured the default on the SBA Loan.

While working to obtain a second lien position for the SBA on its office property, Lambert made several requests for disbursements under the Credit to meet its working capital needs. Western rejected each demand and refused to disburse any funds under the Credit until Lambert cured the default on the SBA Loan. Lambert obtained an offer from L & G to subordinate its second lien position to that of the SBA in return for $20,000. However, because Lambert was unable to obtain any disbursements from the Credit, it was unable to pay L & G to subordinate. In addition to the lien position problem, Lambert developed a problem with its bonding company because Lambert was unable to persuade Western to subordinate its security interest in Lambert's assets. Because of a lack of cash flow and the loss of its bonding, Lambert was unable to remain in business. Pursuant to a security agreement under the Credit, Western took possession of most of Lambert's assets, including its accounts receivable. Western liquidated the majority of the assets through an auctioneer who was a customer of Western.

Lambert filed a suit against Western in Nebraska state court, and the suit was later removed to federal district court. Lambert's six-count amended complaint sought monetary damages for racketeering ("RICO Claim") under 18 U.S.C. Sec. 1961 (1988), breach of contract, breach of implied covenant of good faith and fair dealing, injury to business reputation, negligence, and breach of fiduciary duty. Western filed a general denial and a two-count counterclaim for monetary damages for breach of contract on the notes for the SBA Loan and the Credit. Lambert filed a motion for summary judgment on its amended complaint. Western filed motions for summary judgment on the amended complaint, for summary judgment on its counterclaim, and for Rule 11 sanctions against Lambert's attorney. The district court granted Western's motion for summary judgment on the amended complaint, granted summary judgment for Western on Count II of its counterclaim, dismissed Count I of Western's counterclaim, and denied Rule 11 sanctions. Lambert appeals the grant of summary judgment for Western on the amended complaint and on Count II of Western's counterclaim. Western cross-appeals the denial of Rule 11 sanctions.

II. DISCUSSION

A. Standard of Review

Our standard of review of the district court's grant of summary judgment is well settled:

In reviewing a district court's grant of summary judgment, this court applies the same standard as the district court applied, without giving deference to the court below. A court should grant a summary judgment motion if the full record discloses that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. The non-moving party must establish significant probative evidence to prevent summary judgment. In addition, the court must give the benefit of all favorable factual inferences to the party opposing summary judgment.

Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990) (citations omitted). Also, we must review de novo the district court's determinations of state law. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).

B. Lambert's Amended Complaint

1. RICO

Lambert alleges that Western and Robey engaged in a pattern of racketeering activity within the definition of 18 U.S.C. Sec. 1961(5) in violation of 18 U.S.C. Sec. 1962(c). ⁴ Lambert claims specifically that Western and Robey committed acts of mail and wire fraud as part of a scheme and conspiracy to defraud Lambert in violation of 18 U.S.C. Sec. 1962(d). The goal of the alleged conspiracy was to destroy Lambert as a viable business entity.

Lambert's contentions are centered on the allegation that Western engaged in a pattern of racketeering activity. In H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989), the Supreme Court discussed the kind of conduct which meets the pattern of racketeering requirement. The Court cited legislative history for the proposition that a pattern must involve both relatedness and continuity. Id. at 239, 109 S.Ct. at 2900.

The relatedness requirement involves " 'criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.' " Id. at 240, 109 S.Ct. at 2901 (quoting 18 U.S.C. Sec. 3575(e) (Supp. V 1987)). The Court acknowledged the difficulty in formulating a general test for continuity, and stated that:

"Continuity" is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. It is, in either case, centrally a temporal concept.... A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated.

Id. at 241-42, 109 S.Ct. at 2902 (emphasis in original) (citations omitted).

Although not intending to list all possibilities, the Court listed three situations in which a threat of continued racketeering could be established: (1) the predicate acts themselves involve an actual threat of long-term racketeering activity, either implicit or explicit, ⁵ (2) "the predicate acts or offenses are part of an...