GREEN et al v. WELLS FARGO BANK NA
Filing
23
ORDER granting 16 Motion to Dismiss. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 12/14/15 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROBERT E. GREEN and
:
JANICE W. GREEN,
:
:
Plaintiffs,
:
:
v.
:
:
5:15‐CV‐161 (CAR)
WELLS FARGO BANK, N.A.,
:
successor by merger to WACHOVIA :
BANK, N.A.,
:
:
Defendant.
:
___________________________________ :
ORDER ON DEFENDANT’S MOTION TO DISMISS
Before the Court is Defendant Wells Fargo Bank, N.A., successor by merger to
Wachovia Bank, N.A.’s Motion to Dismiss [Doc. 16] Plaintiffs Robert E. Green and
Janice W. Green’s Second Amended Complaint [Doc. 18] for damages arising from
breach of contract. The Motion is fully briefed and ripe for adjudication. Upon review
of the pleadings, the arguments of counsel, and the relevant legal authorities, the
Court finds Plaintiffs’ Complaint [Doc. 18] fails to state a claim for which relief may be
granted. Therefore, Defendant’s Motion to Dismiss is hereby GRANTED [Doc. 16].
1
LEGAL STANDARD
On a motion to dismiss, the Court must accept as true all well‐pleaded facts in a
plaintiff’s complaint.1 To avoid dismissal pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, “a complaint must contain specific factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’”2 A claim is plausible
where the plaintiff alleges factual content that “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”3 The
plausibility standard requires that a plaintiff allege sufficient facts “to raise a
reasonable expectation that discovery will reveal evidence” that supports a plaintiff’s
claims.4
BACKGROUND
The facts in the light most favorable to Plaintiffs, the nonmoving party, are as
follows. In the early 1990s, Plaintiff Robert Green founded Witten Technologies, Inc.
(“the Company”) to commercialize and patent technology in three‐dimensional
underground imaging. In 2001, with the help of Defendant’s officers, John Raymond,
Mark Griffis, and Angie Hall, Plaintiff Robert Green set up a Corporate Line of Credit
(“LOC”) with Defendant. The LOC was memorialized by a series of documents
Sinaltrainal v. Coca‐Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009).
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
3 Id.
4 Twombly, 550 U.S. at 556.
1
2
2
executed between July 2001 and January 2003. Defendant required the LOC to be
underwritten by cash and clean letters of credit (“Prime Collateral”). Plaintiffs Robert
Green and Janice Green claim that they “provided part of that Prime Collateral which
was the consideration for the LOC” by executing a Personal Equity Line of Credit
(“PELOC”) with the Defendant on January 24, 2001.5
By 2003, the LOC was underwritten by seven guarantors, including Plaintiff
Robert Green, all posting cash, property or bank letters of credit as collateral totaling
$1.7 million.6 The Defendant renewed the LOC every year from 2001 through 2007, and
during that period, “Defendant never expressed any concerns” to Plaintiff Robert
Green, “regarding the performance or security with the Company accounts or the
LOC.”7 Rather, Defendant expressed its desire to maintain its relationship with the
Company.8
In 2007, Plaintiff Robert Green discovered unauthorized issuance of stock
warrants to friends of the other Officers, Directors, and a shareholder—Howard White.
In an attempt to remedy the unauthorized transactions, Plaintiff Robert Green planned
to remove the officer responsible—Brian Hurse.9 The other Officers and Directors
disagreed with the plan to remove Hurse. They decided to utilize their personal
Second Amended Comp. [Doc. 18] at 4.
Id. at 4‐5.
7 Id. at 5‐6.
8 Id. at 6.
9 Id. at 8.
5
6
3
relationships with Defendant to take control of the Company, as Hurse was a former
officer of Defendant.10
In September 2007, Defendant’s Officers (Griffis, Raymond, and, possibly,
Gallardo) and the other Officers and Directors of the Company held a private meeting
regarding the Company’s LOC without Plaintiff Robert Green, and Defendant
knowingly excluded Plaintiff Robert Green from discussions of the Company’s
confidential financial matters.11 Then on October 4, 2007, Defendant’s Officer, Griffis,
issued a letter to Plaintiff Robert Green, the other Officers, Directors, and shareholder
White terminating the LOC and demanding payment of the outstanding balance by
November 1, 2007.12
The abrupt termination of the LOC blocked Plaintiff Robert Green’s ability to
financially operate the Company and was used by the other Officers, Directors, and
shareholder White to force Plaintiff Robert Green out of the Company. Defendant
participated in this event despite having knowledge that Plaintiffs’ ability to repay the
balance due under the PELOC was highly contingent upon Plaintiff Robert Green’s
position with the Company.13
Instead of reducing the balance of the LOC with funds from the Company’s bank
accounts, Defendant facilitated the other Officers, Directors, and shareholder White in
Id. at 9.
Id. at 9.
12 Id at 10.
13 Id. at 11‐12.
10
11
4
moving the Company’s funds to First Guaranty Bank and recouped the LOC money
solely from the guarantors.14 Defendant’s actions in utilizing the collateral to repay the
LOC helped the other Officers and Directors to successfully wipe away over $900,000 of
Company liability and took “the clean slate to another bank effectively absconding with
the Company benefits for themselves.”15
On February 21, 2008, Plaintiff Robert Green was informed that he was
terminated at the January 25, 2008 board meeting.16 Following his termination, Plaintiffs
were forced to pay the interest on the PELOC that they provided as collateral for the
LOC, even though Defendant “knew the Plaintiffs’ PELOC was highly contingent upon
[Plaintiff Robert Green’s] position with the Company.17 Moreover, Plaintiffs were also
unable to stay current on the PELOC because they had loaned an additional $250,000 to
the Company for business development.18 Ultimately, Plaintiffs argue that the Board’s
actions, aided by Defendant, drove the Company into bankruptcy and financially
destroyed the Plaintiffs.19
Id. at 13,15.
Id. at 15.
16 Id. at 14.
17 Id. at 15, 16.
18 Id. at 16.
19 Id.
14
15
5
DISCUSSION
There are two basic issues in this case. The first is whether Plaintiffs have
standing to bring this action against Defendant. The second is, even if Plaintiffs have
standing, did Defendant breach the LOC and, in turn, breach the PELOC?
However, before the Court addresses these issues, it must first decide the law
that should be applied to the contracts at issue. Because this Court has jurisdiction of
this suit based on diversity, the rights of these parties are governed by Georgia law.20
Generally, a contract is interpreted under Georgia law, unless the contract has a choice
of law provision.21
Here, there are two contracts at issue—the PELOC and LOC. There is no dispute
between the parties that Georgia law applies to the PELOC. However, in their Response
Brief, Plaintiffs have cited Georgia law in regard to the LOC, but Defendant asserts that
Florida law should apply to the LOC. In the promissory note, the LOC has a choice of
law provision that states that it should be “governed by and construed under the laws
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (a federal court sitting in diversity applies state
substantive law).
21 Convergys Corp. v. Keener, 276 Ga. 808, 811 n. 1. (2003) (“([C]ontracts) are to be governed as to
their nature, validity, and interpretation by the law of the place where they were made, except
where it appears from the contract itself that it is to be performed in a State other than that in
which it was made, in which case ... the laws of that sister State will be applied.”) (citations
omitted)
20
6
of the state named in the Bank’s address,” which is Jacksonville, Florida.22 Therefore,
the Court agrees that Florida law should apply to the LOC.
I.
Standing
There is no question that Plaintiffs have standing to sue under the PELOC;
Plaintiffs and Defendant were the named parties on the contract. Defendant, however,
argues that Plaintiffs do not have standing to sue under the LOC for two reasons: First,
because although Plaintiff Robert Green signed the LOC, he did so in his official
capacity as president of the Company; and second because Plaintiff Green was not a
third‐party beneficiary to the contract. Plaintiff argues that although there is no
reference to Plaintiffs as personal beneficiaries in the plain terms of the LOC, they
offered partial collateral to secure the loan by taking out the PELOC, and, therefore,
were third party beneficiaries to the contract. The Court disagrees.
Under Florida law, a person not a party to a contract may sue for breach of the
contract where the contract provisions clearly establish the partiesʹ intent to create a
right primarily and directly benefiting the third party.23 A party is an intended
beneficiary only if the parties to the contract clearly express, or the contract itself
[Doc. 19‐2].
Health Application Systems, Inc. v. Hartford Life and Accident Insurance Company, 381 So.2d 294
(Fla. Dist. Ct. App. 1980)
22
23
7
expresses, an intent to primarily and directly benefit the third party.24 And the intent of
both parties is “the key” to the analysis.25
After reviewing the parties’ arguments and relevant law, the Court is
unconvinced that Plaintiffs were intended beneficiaries of the LOC. There is nothing in
the LOC’s provisions showing a clear intent by the parties to benefit Plaintiffs; in fact,
only Plaintiff Robert Green signed the LOC, and he signed it in his capacity as president
of the Company. Plaintiffs’ reliance on Georgia law that a party providing the
consideration for a contract can be third‐party beneficiary26 is misguided. Florida law
controls, and under Florida law, “the test is[ ] not that the promisee is liable to the third
person, or that there is some privity between them or that some consideration moved
from the third person, but that the parties to the contract intended that a third person
should be benefitted by the contract.”27 However, even if assuming arguendo, Plaintiffs
were intended beneficiaries of the LOC, they still have not pled sufficient factual
allegations to state a claim for breach of a third party beneficiary contract.28
Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So. 2d 1028, 1030‐31 (Fla. Dist. Ct. App.
1994)
25 Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981‐82 (11th Cir. 2005).
26 People Bank of Calhoun et al. v. Harry L. Winter Inc., 161 Ga. 898, 906 (1926) ( noting that if “the
contract does not state, in express terms, to whom the promise is made, the law declares that it
is made to the person whom proceeded the consideration by which it is supported”).
27 Id. (quoting Marianna Lime Prods. Co. v. McKay, 109 Fla. 275, 147 So. 264, 265 (1933) (emphasis
added).
28 Although the Court notes that intent may be inferred by the pre‐contract and post‐contract
actions of the parties, if the contract does not expressly provide for the third party beneficiary,
then the litigant must clearly show that both parties to the contract intended its beneficiary
status. See Nova Info. Sys., Inc. v. Greenwich Ins. Co., 365 F.3d 996, 1003 (11th Cir. 2004). See also
24
8
II.
Breach of Contract
Plaintiffs allege that Defendant breached the LOC by failing to renew the loan, and
in doing so breached the PELOC. The Court first addresses whether Plaintiffs have
alleged sufficient facts to maintain their claim Defendant breached the LOC, and then
addresses Plaintiffs’ claims under the PELOC.
A. The LOC
Generally, to maintain a cause of action for breach of a third party beneficiary
contract under Florida law, “the party asserting the third party beneficiary status must
prove (1) the existence of the contract; (2) clear or manifest intent of the parties that the
contract primarily and directly benefits the third party; (3) breach of a contact by a
contracting party; and (4) damages to the third‐party resulting from the breach.”29 The
Court finds that even assuming Plaintiffs could show they had standing as third‐party
beneficiaries under the LOC, they simply have not pled sufficient facts to show a breach
of the terms of the LOC.
Plaintiffs claim that Defendant violated its duties and obligations under the LOC.
However, Defendant contends that the LOC expired by its own terms. As such,
Defendant was under no obligation to renew and within its rights under the contract to
Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. Dist. Ct. App.1994)
(“It is insufficient to show that only one party unilaterally intended to benefit the third party”).
29 Steadfast Ins. Co. v. Corp. Prot. Sec. Grp., Inc., 554 F. Supp. 2d 1335, 1338 (S.D. Fla. 2008) (citing
Jenne v. Church & Tower, Inc., 814 So.2d 522, 524 (Fla. Dist. Ct. App. 2002).
9
seek payment upon demand. The Court agrees. Plaintiffs have not alleged which terms
were breached when Defendant declined to renew the LOC in 2007.
Plaintiffs assert in their Complaint that Defendant “expressed its desire to
continue the relationship with the Company” when it renewed the LOC in 2007, and it
did not express “any concerns regarding the Company.”30 However, as Defendant
contends, these alleged attestations of an ongoing relationship are merely parol
evidence and cannot be used to alter the plain terms of the contract—plain terms that
show that the LOC expired by its own terms on June 30, 2003, “unless renewed or
extended by [Defendant].”31 Moreover, Plaintiffs concede in their Brief that they are
“not attempt[ing] to use parol evidence.”32 Therefore, because Plaintiffs fail to allege
which terms of the LOC were breached by Defendant’s non‐renewal of the LOC in 2007,
the Court finds that Plaintiffs have failed to state a plausible third‐party breach of
contract claim under the LOC.
B. PELOC
Along with their third party claims, Plaintiffs argue that Defendant breached the
PELOC in three ways: 1) failing to renew the LOC; 2) aiding and abetting; and 3)
violating the duty of good faith and fair dealing. However, for many of the same
Second Amended Comp. [Doc. 18] at 7, 8.
[Doc. 17‐5] at 2.
32 Pls’ Resp., [Doc. 19] at 14.
30
31
10
reasons as discussed above, Plaintiffs have failed to state a claim for breach of the
PELOC.
First, Plaintiffs claim that the PELOC was breached when Defendant failed to
renew the LOC. In their Complaint, Plaintiffs assert that because the PELOC was
executed “in order to partially secure and guarantee the LOC,” when Defendant failed
to renew the LOC, “it breached its obligations under the PELOC.”33 However, as
discussed above Plaintiffs were not parties to the LOC, and even if they were third
party beneficiaries, they have not alleged how Defendant’s actions in failing to renew
constituted a breach of the LOC. Moreover, Plaintiffs do not point to any terms in the
PELOC that reference the LOC, nor do they purport to allege any “‘unwritten cross
default provisions’ between the PELOC and the LOC” that were breached.34 Therefore,
Plaintiffs have simply failed to allege any terms of the PELOC that were breached when
Defendant did not renew the LOC, and thus, these claims are dismissed.35
Second, Plaintiffs claim Defendant is liable for aiding and abetting the Board’s
“improper, tortious ouster of Plaintiff R. Green from the Company” and that this was a
breach of Defendant’s obligations under the PELOC.36 Although Plaintiffs suggest that
Second Amended Comp. [Doc. 18] at 20.
[Doc. 19] at 14.
35 See Twombly, 550 U.S. at 570 (noting that because “the plaintiffs here have not nudged their
claims across the line from conceivable to plausible, their complaint must be dismissed.”)
36 [Doc. 19] at 15.
33
34
11
“aiding and abetting improper conduct “is [a] long established and well known” claim
in Georgia, imposing liability on lenders, the Court is unconvinced. 37
In an attempt to clarify the claims in their Complaint, Plaintiffs concede in their
Brief that they “do not allege that Defendant aided and abetted a breach of contract
claim.”38 Moreover, Defendant contends, to the extent Defendant engaged in a meeting
regarding the LOC without Plaintiff Robert Green being present, Plaintiffs cannot make
out a tortious interference with contractual or business relations claim either. In order
to make out a tortious interference claim in Georgia, the plaintiff must establish that the
defendant is a “stranger” to the business relationship or contract.39 Here, Defendant is a
party to the LOC and therefore is not a stranger either the PELOC or LOC. Thus,
Plaintiffs cannot maintain a tortious interference claim either.
Therefore, although Plaintiffs claim that they can make out a claim under “some
viable legal theory,”40 the Court simply cannot ascertain what that theory is.41 Moreover
Plaintiffs point to two cases, both of which sound in aiding and abetting of fraud claims, and
one of which is based on California state law and thus holds no precedential value. Williamson v.
Walker, 187 Ga. 603, 604‐05 (1939) (noting Plaintiff’s claim that Defendant aided and abetted
Plaintiff in persuading his wife to sign loan papers under her name); First Fed. Sav. & Loan Assn.
v. Lehman, 159 Cal. App. 3d 537, 542‐43 (Ct. App. 1984) (noting that fraud actions may be
brought for damages incurred from misrepresentations impairing value of real property
security).
38 Id. (emphasis in original).
39 Renden, Inc. v. Liberty Real Estate Ltd. Pʹship III, 213 Ga. App. 333, 335 (1994).
40 [Doc. 19] at 15.
41 See Fed.R.Civ.P. 8(a)(2) (“A pleading that states a claim for relief must contain ... a short and
plain statement of the claim showing that the pleader is entitled to relief.”); Twombly, 550 U.S. at
570 (A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its
face.”)
37
12
the Eleventh Circuit has noted that “a courtʹs duty to liberally construe a plaintiffʹs
complaint in the face of a motion to dismiss is not the equivalent of a duty to re‐write it
for [them].”42 Therefore, because Plaintiffs have not pled a cognizable claim under
applicable State or Federal law, Plaintiffs’ general aiding and abetting claim must be
dismissed.
Finally, to the extent Plaintiffs seek to make out a breach of the PELOC through a
breach of the implied covenant of good faith and fair dealing, Plaintiffs claim must
likewise fail. Under Georgia law, every contract implies a covenant of good faith and
fair dealing in the contractʹs performance and enforcement.43 However, the implied
covenant modifies and becomes a part of the provisions of the contract, but the
covenant cannot be breached apart from the contract provisions it modifies. 44 As such,
the implied covenant cannot provide an independent basis for liability. 45
As the Court noted above, because Plaintiffs have failed to allege a sufficient
factual basis for a breach of the PELOC or LOC, the Court likewise cannot find a breach
of the implied covenant of good faith and fair dealing and must, accordingly, dismiss
this claim.
Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 912 (11th Cir. 1993).
WirelessMD v. Healthcare.com Corp., 271 Ga. App. 461, 468 (2005).
44 Stuart Enterprises Intʹl, Inc. v. Peykan, Inc., 252 Ga. App. 231, 234 (2001).
45 Myung Sung Presbyterian Church, Inc. v. N. Am. Assʹn of Slavic Churches & Ministries, Inc., 291
Ga. App. 808, 810 (2008).
42
43
13
CONCLUSION
Based on the foregoing, Defendant’s Motion to Dismiss [Doc. 16] is GRANTED.
Accordingly, Plaintiffs’ Second Amended Complaint [Doc. 18] is hereby dismissed.
SO ORDERED, this 14th day of December, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?