Midwestern Cattle Marketing, LLC v. Legend Bank, N.A.
Filing
42
Memorandum Opinion and Order: The court ORDERS that defendant's motion 27 for summary judgment be, and is hereby, granted in part; that plaintiff take nothing on its claims asserted in Counts Two through Twelve of the amended complaint; and, that such claims be, and are hereby, dismissed. The court further ORDERS that the motion for summary judgment be, and is hereby, otherwise denied. (Ordered by Judge John McBryde on 5/16/2018) (edm)
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TE~AS
FORT WORTH DIVISION
. /
1
MIDWESTERN CATTLE MARKETING,
LLC,
Plaintiff,
vs.
LEGEND BANK, N.A.,
Defendant.
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MAY I 6 20\ll
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C.IJ'JZ
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NO. 4:17-CV-375-A
MEMORANDUM OPINION
and
ORDER
Came on for consideration the motion of defendant, Legend
Bank, N.A.,
for summary judgment. The court, having considered
the motion, the response of plaintiff, Midwestern Cattle
Marketing, LLC, the reply, the record, the summary judgment
evidence,
1
and applicable authorities, finds that the motion
should be denied in part and granted in part.
I.
Plaintiff's Claims
The operative pleading is plaintiff's first amended
complaint filed March 19, 2018. Doc. 2 23. In it, plaintiff
'The court has also considered plaintiffs objections to defendant's summary judgment evidence.
In accordance with the court's custom, the court is not striking any of the evidence, but has given it
whatever weight it deserves. The court has considered defendant's evidence despite defendant's failure to
appropriately highlight its appendices since the motion is primarily a no-evidence motion.
'The "Doc.
"reference is to the number of the item on the docket in this action.
l'
alleges:
At all relevant times plaintiff was a cattle broker,
matching cattle producers with cattle buyers. Doc. 23 , 11. In
July 2011, plaintiff's president, Jason O'Connell ("Jason") met
Tony Lyon ("Tony") at a sale barn. Shortly thereafter, plaintiff
entered into a business arrangement with Tony, and his parents,
Owen ("Owen") and Monna ("Monna") Lyon, through their business,
Lyon Farms. Id. , 12. Lyon Farms used a bank account at defendant
known as the Owen and Monna D Lyon Cattle Account
(the "Legend
account"). Owen and Monna were the only signatories on the Legend
account. Id. , 13. Owen worked for a pipeline company and Monna
was a retired teacher's assistant. They were elderly and retired.
Id. , 14.
For over three years, plaintiff purchased cattle from and
sold cattle to Lyon Farms. These transactions were completed
using checks from plaintiff's account at Points West Bank in
Sidney, Nebraska (the "Points West account"), and the Legend
account.
Id. , 16. Early in 2014, plaintiff provided to the Lyons
a checkbook and a signature stamp on the Points West account so
that they could sign checks on its behalf after receiving
authorization. Tony also provided plaintiff with blank checks
from the Legend account signed by Monna, with the amount to be
filled in upon Tony's instructions. Id. , 17.
2
Starting in late 2014, Tony represented to plaintiff that he
had met a big money cattle buyer named John George with George
Cattle Company. Id. , 18. Unbeknownst to plaintiff, John George
and George Cattle Company did not exist, but was used as a front
for a check-kiting scheme. Id. , 20. Typically, Tony would write
a check on plaintiff's Points West account purportedly for funds
to be used by Tony for cattle he said he was purchasing for
George Cattle Company, Owen would deposit that check to the
Legend account and Tony would provide plaintiff a handwritten
invoice by fax that provided information about the cattle
purportedly being purchased; Tony would request plaintiff to
prepare an invoice for George Cattle Company, which plaintiff
would do and send by fax to Tony; Tony would inform plaintiff
that he had delivered the cattle to George Cattle Company and
that George Cattle Company had paid Lyon Farms for the cattle;
Tony would then inform plaintiff that it was authorized to fill
out one of the checks pre-signed by Monna on the Legend account,
and plaintiff would fill out the amount specified by Tony on a
pre-signed check, and deposit it into the Points West account.
Id. ,
19.
The arrangement between plaintiff and Tony was that
plaintiff would never take possession of the cattle directly.
Id. , 21. Instead, possession of the cattle purportedly remained
3
with Tony until the cattle were transferred to the fictitious
buyer, George Cattle Company.
Id.
In late-2014 and early-2015, the activity in the Legend
account increased, the dollar amounts of the transactions
increased substantially, and overdrafts on the account became
frequent.
Id. , 28.
Most of the overdrafts were created by
checks drawn on the Legend account payable to plaintiff.
Id. ,
32. Defendant, through Brennan Williams ("Brennan"), the
president of its Decatur branch, knew beginning in early 2015 of
irregular activity in the Legend account. Id. , 31-32. The amount
of the overdrafts grew from about $152,000 in February 2015 to
over $4.4 million in June 2015. Id. , 35. Brennan approved each
of the overdrafts. Id. , 37.
During that time period, Brennan and his father, Brent,
received $118,506, initially by a check written on the Points
West account, that was later replaced by a check drawn on the
Legend account, from an alleged sale of cattle by them to the
Lyons, id. ,, 42-48; and defendant made sure its loans to the
Lyons were repaid before the collapse of the check-kiting scheme.
Id. , , 49-52, 60-65.
The scheme collapsed in late-June 2015 when
Brennan, with the concurrence of Owen, returned for insufficient
funds a check payable to plaintiff, drawn on the Legend account,
for $5,020,230.11.
Id. , 64.
4
On July 6, 2015, plaintiff obtained a prejudgment writ of
garnishment against defendant as garnishee for the indebtedness
of the Lyons to plaintiff in the amount of $5,020,230.11. Id.
,
96. On August 3, 2015, $81,381.05 was deposited to the Legend
account on behalf of the Lyons. Defendant transferred $72,500
from the Legend account to pay down the remaining balance on a
line of credit despite the pending writ garnishment. Id. at 98.
Plaintiff asserts causes of action for fraudulent transfer
(Count One), money had and received (Count Two), unjust
enrichment
(Count Three), common law fraud (Count Four), aiding
and abetting (Count Five), conspiracy (Counts six and Seven),
violation of the garnishment statute (Count Eight), negligent
misrepresentation (Count Nine), violations of the Uniform
Commercial Code (Count Ten), and negligence, negligence per se,
and gross negligence
(Count Eleven) . Plaintiff also seeks
exemplary damages and attorney's fees.
II.
Grounds of the Motion
Defendant seeks judgment as to each of the claims asserted
by plaintiff, as discussed hereinafter.
5
III.
Applicable Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.
Fed. R. Civ.
P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986).
The movant bears the initial burden of pointing out to
the court that there is no genuine dispute as to any material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim,
"since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmoving party must identify evidence in the record that creates
a genuine dispute as to each of the challenged elements of its
case.
Id. at 324; see also Fed. R. Civ. P. 56 (c)
asserting that a fact
the assertion by
the record
("A party
is genuinely disputed must support
citing to particular parts of materials in
'
II )
•
If the evidence identified could not lead
a rational trier of fact to find in favor of the nonmoving party
6
as to each essential element of the nonmoving party's case, there
is no genuine dispute for trial and summary judgment is
appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 597 (1986).
Sys.,
In Mississippi Prat. & Advocacy
Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could not,
as a whole, lead a rational trier of fact to find for
the nonmoving party, there is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. 3
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prat. &
Advocacy Sys., 929 F.2d at 1058.
3
ln Boeing Co. v. Shipman, 41 I F.2d 365, 374-75 (5th Cir. 1969) (en bane), the Fifth Circuit
explained the standard to be applied in determining whether the eomt should enter judgment on motions
for directed verdict or for judgment notwithstanding the verdict.
7
IV.
Analysis'
Count Ten (Uniform Commercial Code)
In Count Ten, plaintiff alleges that defendant did not act
in good faith and failed to comply with reasonable commercial
standards in administering its responsibilities under the Uniform
Commercial Code. Doc. 23 , , 103-07. Defendant maintains that it
owed no duty to plaintiff, with which it had no contract or any
other relationship. Under Texas law, a bank does not owe a duty
to detect and stop a check-kiting scheme to someone who is not a
customer of the bank or does not otherwise have a special
relationship. Wells Fargo Bank, N.A. v. Citizens Bank of Tex.,
N.A., 181 S.W.3d 790, 804
(Tex. App.--Waco 2005, pet. denied);
Ennis State Bank v. Heritage Bank, No. 10-02-00226-CV, 2004 WL
1109833
(Tex. App.--Waco May 12, 2004, pet. denied). This is in
keeping with Texas's recognition that the UCC has the objective
of promoting certainty and predictability in commercial
transactions. See Southwest Bank v. Information Support Concepts,
Inc., 149 S.W.3d 104 (Tex. 2004). Recognizing a UCC duty owed to
one outside the UCC scheme would be contrary to the UCC's goals.
4
The court analyzes the issues in the same order presented by the paities, rather than the
sequential order of the amended complaint.
8
Id. at 111. Plaintiff's one paragraph response does not cite any
cases to support its position to the contrary. Doc. 35 at 36.
Count Eleven (Negligence, Negligence Per Se, and Gross
Negligence)
In Count Eleven, plaintiff alleges that defendant owed it
and other participants in the United States banking system a duty
or duties to exercise a degree of care and skill provided by
federal regulations and regulatory agencies to monitor and detect
suspicious or fraudulent activity. Doc. 23 , , 108-12. Again,
defendant argues that it owed no duty to plaintiff. Owens v.
Comerica Bank, 229 S.W.3d 544, 547 (Tex. App.--Dallas 2007, no
pet.) (generally a bank owes no duty to someone who is not a
customer and with whom the bank does not have a relationship)
See also Marlin v. Moody Nat'l Bank, N.A., 248 F. App'x 534, 540
(5th Cir. 2007); Red Rock Invs. v. Jafco, Ltd., 79 F.3d 1146,
1996 WL 97549, at *4 (5th Cir. 1996) (bank owes no legal duty of
care to investigate or disclose its customers' conduct or intent
to third parties with whom the bank's customers do business).
Further, a bank's internal policies do not create a standard of
care. Guerra v. Regions Bank, 188 S.W.3d 744, 747
(Tex. App.--
Tyler 2006, no pet.). Although plaintiff argues that the cases
defendant relies upon are not directly in point, neither are the
9
cases cited by plaintiff in its attempt to create a duty where
one has not been recognized by a Texas court to exist. 5
Finally, the court notes that even if it could be said that
defendant owed plaintiff a duty, it appears that the only injury
suffered by plaintiff is economic. Texas does not allow recovery
in negligence where the damages result solely from economic harm.
See LAN/STV v. Martin K. Eby Constr. Co., 435 S.W.3d 234
(Tex.
2014); Express One Int'l, Inc. v. Steinbeck, 53 S.W.3d 895, 89899
(Tex. App.--Dallas 2001, no pet.); Coastal Conduit & Ditching,
Inc. v. Noram Energy Corp., 29 S.W.3d 282, 287-89
(Tex. App.--
Houston [14th Dist.] 2000, no pet.).
Count One (Texas Uniform Fraudulent Transfer Act)
In Count One, plaintiff seeks to hold defendant liable under
the Texas Uniform Fraudulent Transfer Act, Tex. Bus. & Com. Code
§
24
(West 2015
&
Supp. 2017)("TUFTA"). Specifically, plaintiff
alleges:
[Plaintiff] was a creditor of the Lyons under the TUFTA
at the time of, or a reasonable time after: (1) the
Lyons transferred $118,506 from the Legend Account to
Brent Williams; (2) the Lyons transferred over $275, 000
from the Legend Account to [defendant] for purported
5
The comi does note that some of the cases plaintiff cites indicate that equity would prevent
defendant from exercising its right of offset in the event that funds in the account were held in trust for
plaintiff. See, e.g., Nat'l Indemnity Co. v. Spring Branch State Bank, 348 S.W.2d 528, 529 (Tex. 1961);
Steere v. Stockyards Nat'! Bank, 256 S.W. 586, 590-91 (Tex. 1923); Pan Am. Nat'! Bank v. Holiday
Wines & Spirits, Inc., 580 S.W.2d 7, 10 (Tex. Civ. App.--Houston [1st Dist.] 1979, writ refd n.r.e.).
These cases do not recognize a duty owed by a bank to a non-customer that would support a negligence
claim like the one asse1ied here.
10
payments on a line of credit between June 16-29, 2015;
(3) the Lyons transferred $67,891 from the Legend
Account to [defendant] to pay off vehicle loans,
between January 1 and June 29, 2015; (4) the Lyons
transferred $72,5000 [sic] to [defendant] for purported
payment on a line of credit, on or around August 3,
2015; and (5) the Lyons transferred $4,386,650.22 to
cover the overdraft in the Legend Account for which
they would have been personally liable.
Doc. 23
~
73. Plaintiff says that defendant facilitated the
transfers with knowledge of the Lyons' suspicious and irregular
account activity and it knew or should have known that the Lyons
intended to hinder, delay, or defraud plaintiff. Id.
~
74.
Defendant maintains that TUFTA does not apply because the
property at issue here, funds deposited, was subject to a valid
lien. In Texas, a bank has a common law right of setoff to funds
in an account at the bank. Mauriceville Nat'l Bank v. Zernial,
892 S.W.2d 858, 860
(Tex. 1995). In addition, a deposit agreement
may create such right, as it does in the case of the Legend
account. Id.
An exception to the right of setoff exists where a predeposit agreement gives the bank notice that the funds deposited
are held in trust. Id. at 859-60; Continental Nat'l Bank of Fort
Worth v. Great Am. Mgmt. & Inv .. Inc., 606 S.W.2d 346, 347-50
(Tex. Civ. App.--Fort Worth 1980, writ ref'd n.r.e.). In this
case, there is no such agreement.
11
Texas courts also recognize an equitable exception to the
right of setoff. Under that exception, even if the bank had no
notice of the character of the funds, it could still be liable to
the extent it applied the funds to its depositor's debt. Nat'l
Indem. Co. v. Spring Branch State Bank, 348 S.W.2d 528, 531 (Tex.
1961) . Here, plaintiff has at least raised an issue as to whether
the offset of the account should be allowed to stand.' Arguably,
the funds in the Legend account belonged to plaintiff as they
purportedly represented proceeds of a sale of plaintiff's cattle.
And, there is no reason to believe that defendant changed its
position to its detriment; i.e., defendant will not be harmed by
returning the offset funds to plaintiff, because it will be in
the same position where it stood at the time of the deposit.
Counts Two and Three (Money Had and Received and Unjust
Enrichment )
In Count Two, plaintiff alleges a claim for money had and
received. Doc. 23 , , 76-78. Count Three purports to allege a
claim for unjust enrichment. Id. ,, 70-81. Unjust enrichment,
however, is merely a theory of liability that a plaintiff can
pursue through an equitable cause of action, such as money had
and received, but not as a separate and distinct claim. Hancock
'There is no reason to believe that TUFTA applies with regard to the negotiation of the sale barn
check, which represented proceeds from the sale of cattle in which defendant had a long-standing
security interest and was made payable to defendant and Owen and was not deposited into the Legend
account.
12
v. Chicago Title Ins. Co., 635 F. Supp. 2d 539, 560 (N.D. Tex.
2009); Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.-El Paso 1997, no writ). To prevail on a claim for money had and
received, plaintiff must show that defendant holds money that in
equity and good conscience belongs to plaintiff. L'Arte de la
Mode, Inc. v. Neiman Marcus Group, 395 S.W,3d 291, 296
(Tex.
App.--Dallas 2013, no pet.). Ownership of the check proceeds is
an essential element of the claim. American Petrofina Co. v.
Panhandle Pet. Prods., Inc., 646 S.W,2d 590, 592
(Tex. App.--
Amarillo 1983, no writ). Generally, when funds are deposited into
a bank account, they are unrestricted and the bank's obligation
is to pay the funds pursuant to the depositor's instructions,
subject to the bank's right of setoff. Mauriceville Nat'l Bank,
892 S.W,2d at 860. See Miller-Rogaska v. Bank One, Tex.,
S.W.2d 655,
663
931
(Tex. App.--Dallas 1996, no writ) (a non-holder of
a check cannot maintain an action for money had and received) .
As defendant notes, one who seeks equity must come to court
with clean hands. Grohn v, Marguardt, 657 S.W.2d 851, 855
(Tex.
App.--San Antonio 1983, writ ref'd n.r.e.). Defendant says that
plaintiff cannot establish that it has clean hands. Among other
things, plaintiff contributed to its own predicament by giving
Tony its checkbook and a signature stamp, knowing that Tony was a
convicted felon. Doc. 28 at 39-40. Plaintiff responds that
13
defendant is just as culpable. Doc. 35 at 44-47. Nevertheless,
the court is not persuaded that money had and received can be
pursued by plaintiff in this case.
Counts Four and Nine (Fraud and Negligent Misrepresentation)
In Count Four, plaintiff asserts a claim for common law
fraud. Doc. 23 ,, 82-84. In Count Nine,
it asserts a claim for
negligent misrepresentation. Id. ,, 100-02. Defendant says that
plaintiff cannot prevail on either claim as both require the
making of a false representation. See Zorilla v. Aypco Constr.
II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (common law fraud);
McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests,
991
S.W.2d 787, 791 (Tex. 1999) (negligent misrepresentation).
Defendant maintains that it made no representations to plaintiff.
See Neuhaus v. Kain, 557 S.W.2d 125, 138
(Tex. App.--Corpus
Christi 1977, writ ref'd n.r.e.). Specifically, presentment of a
check is not a factual assertion that can be characterized as
true or false; it is simply not a representation of status of
bank account balance or anything else. Doc. 28 at 42
United States v. Briggs, 939 F.2d 222, 226-27
(citing
(5th Cir. 1991))
Plaintiff has not shown that defendant made any false
representations to it, directly or indirectly,' much less pleaded
'Plaintiff simply cites to statements for the Legend account, but not to any statements made to
(continued ... )
14
in the manner required by Rule 9(b) of the Federal Rules of Civil
Procedure that such is the case.
Counts Five Through Seven (Conspiracy and Aiding and Abetting)
In Count Five plaintiff asserts a claim for aiding and
abetting the Lyons' check-kiting scheme. Doc. 23 , , 85-88. In
Counts Six and Seven, it alleges that defendant conspired with
the Lyons and with Brennan and Brent, respectively.
Id.
, , 89-92;
93-94. Again, the claims are not sufficiently pleaded. Fed. R.
Civ. P.
9(b). Counts Five and Six purport to stand on the notion
that defendant "placed the integrity of the banking system in
question." Doc. 23 , , 86, 90.
The elements of a conspiracy are: defendant was a member of
a combination of two or more; the object of the combination was
to accomplish an unlawful purpose or a lawful purpose by unlawful
means; the members had a meeting of minds on their object or
course of action; one member committed an unlawful, overt act to
further the course of action; and, the plaintiff suffered injury
as a proximate result of the wrongful act. Chon Tri v. J.T.T.,
162 S.W.3d 552, 556
(Tex. 2005).
Plaintiff has alleged two different conspiracies, but failed
to establish a genuine fact issue as to each element of either of
'( ... continued)
plaintiffs bank. Doc. 35 at 55.
15
them. In particular, with regard to Count Six, evidence of a
combination is lacking. See Crowe v. Lucas, 595 F.2d 985, 993
(5th Cir. 1979) (plaintiff must show establish facts to show that
there was an agreement to inflict a wrong or injury upon the
plaintiff) . Even assuming that defendant knew of the checkkiting, allowing it to happen is a far cry from actively
participating in it. Conspiracy must be based on more than
speculation and conjecture.
With regard to Count Seven, the allegations are even more
speculative. A corporation cannot conspire with itself. Leasehold
Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 463
(5th Cir. 2003). Thus, because plaintiff makes clear that Brennan
was acting in the course and scope of his employment, Doc. 35 at
51 & n.7, he cannot have been a conspirator with defendant.
Further, there is no evidence that Brent conspired with anyone.
The elements of aiding and abetting are: the primary actor
committed a tort; the defendant had knowledge that the primary
actor's conduct constituted a tort; the defendant had the intent
to assist the primary actor in committing the tort; the defendant
gave the primary actor assistance or encouragement; and, the
defendant's assistance or encouragement was a substantial factor
in causing the tort. Restatement (Second) of Torts,
16
§
876(b).
The parties do not dispute that Tony committed a tort. The
question is whether plaintiff has raised genuine fact issues as
to the remaining elements of aiding and abetting. Clearly, at
some point defendant should have known that Tony's conduct
constituted a tort and arguably there is a fact issue as to
whether it did know. But, plaintiff has not pointed to evidence
to show that defendant had the intent to assist Tony in
committing the tort. Instead, the evidence shows that defendant
acted in its own best interests. The court is not persuaded, and
plaintiff has not pointed to law establishing, that defendant can
be held liable for aiding and abetting because it "allowed [the
Lyons]
to participate in the banking system." Doc. 35 at 54.
Count Eight (Wrongful Garnishment)
In Count Eight, plaintiff alleges that defendant violated
the garnishment statute, Tex. Civ. Prac. & Rem. Code
§
63, by
transferring to itself money from "the Lyons' accounts" to pay
down the remaining balance of their line of credit after it had
been served with a writ of garnishment. Doc. 23 , , 95-99.
Defendant maintains that it had the right to setoff, which it
exercised. Gill v. Oak Cliff Bank & Tr. Co., 331 S.W.2d 832, 834
(Tex. Civ. App.--Amarillo 1959, no writ). It also urges that this
claim is barred by res iudicata as it should have been determined
in the garnishment action.
17
The summary judgment evidence shows that on July 10, 2015,
defendant was served with the writ of garnishment. On July 20,
2015, defendant filed its answer to the garnishment stating that
it was indebted to Owen in the amount of $37.53 and was not
indebted to Tony or Monna. On August 3, 2015, the Decatur
Livestock Market, LLC, issued a check to Owen and defendant for
the sale of cattle in which defendant had a security interest.
Owen endorsed the check and it was deposited into defendant's
general account to reduce Owen's debt to defendant. By letter
dated August 4, 2015, plaintiff inquired into the sale of cattle
and defendant's security interest in them. On April 7, 2017,
final judgment was rendered in the garnishment action, as agreed
and approved by plaintiff.'
Plaintiff argues that defendant violated the garnishment
statute by extending credit of $72,500 to Owen on July 2, 2015,
and further, that a bank cannot circumvent garnishment by
fraudulently offsetting debts before a court can issue a writ of
garnishment. Doc. 35 at 57. But the case cited does not support
those propositions. And, in any event, the evidence does not show
that defendant anticipated the writ of garnishment (for which
application was not made until July 6)
in extending credit on
'The comt notes that the judgment does not mention defendant, which was a patty to the
proceeding. Plaintiff does not dispute that the judgment was final as to defendant.
18
July 2. Whether defendant acted appropriately throughout the
course of events, plaintiff has not raised a genuine fact issue
as to violation of the garnishment statute.
Count Twelve (Exemplary Damages)
In Count Twelve, plaintiff seeks to recover exemplary
damages for injuries resulting from defendant's "malice, fraud or
gross negligence." Doc. 23 ,, 113-14. For the reasons discussed,
plaintiff cannot prevail on its fraud or gross negligence claims.
And, even if there were a genuine fact issue as to those claims,
the evidence does not rise to the level of clear and convincing
needed to support exemplary damages. See Anderson, 477 U.S. at
254.
v.
Order
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted in part; that plaintiff take
nothing on its claims asserted in Counts Two through Twelve of
the amended complaint; and, that such claims be, and are hereby,
dismissed.
19
The court further ORDERS that the motion for summary
judgment be, and is hereby, otherwise denied.
SIGNED May 16, 2018.
20
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