Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Banner Bank v. First American Title Insurance Co.

United States Court of Appeals, Tenth Circuit

February 26, 2019

BANNER BANK, a Washington banking corporation, Plaintiff - Appellee/Cross -Appellant,
v.
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, Defendant-Appellant/Cross -Appellee.

          Appeals from the United States District Court for the District of Utah (D.C. No. 2:16-CV-00200-BSJ)

          Scott E. Gizer (Sophia S. Lau, of Early Sullivan Wright Gizer & McRae LLP; Los Angeles, California, and Sara E. Bouley of Action Law LLC, Salt Lake City, Utah, with him on the briefs), Early Sullivan Wright Gizer & McRae LLP; Los Angeles, California, for Defendant - Appellant/Cross-Appellee.

          Troy L. Booher, (Michael D. Zimmerman, Freyja R. Johnson and Dick J. Baldwin of Zimmerman, Booher, with him on the briefs), Salt Lake City, Utah, for Plaintiff -Appellee/Cross-Appellant.

          Before PHILLIPS, KELLY, and CARSON, Circuit Judges.

          KELLY, Circuit Judge.

         Defendant-Appellant and Cross-Appellee First American Title Insurance Co. appeals from the district court's orders granting summary judgment in favor of and attorneys' fees to Plaintiff-Appellee and Cross-Appellant Banner Bank ("the Bank"[1]). The district court held that First American had a duty to defend and indemnify its insured (the Bank), breached the implied covenant of good faith and fair dealing, and was responsible for attorneys' fees in this case. This resulted in an award of damages ($675, 000) plus attorneys' fees in an underlying lawsuit ($159, 288), and consequential damages of attorneys' fees in this case ($130, 411.50). The Bank cross-appeals in the event that the award of consequential damages was procedurally incorrect. Our jurisdiction arises under 28 U.S.C. § 1291 and we reverse.

         Background

         Wendell Jacobson was an insider of MSI, Inc., through which he controlled two related LLCs. To secure loans from the Bank for his businesses, Mr. Jacobson conveyed deeds of trust to the Bank as collateral. See 1 J.A. 39-69. The Bank then purchased a title insurance policy from First American to cover those deeds of trust. See id. at 71-94. Unfortunately for the Bank, Mr. Jacobson was apparently using his businesses to operate a Ponzi scheme. When the Securities and Exchange Commission filed an enforcement action against Mr. Jacobson, a Receiver was appointed to represent his creditors. Id. at 114-15. The Receiver then filed an action against the Bank challenging the conveyances. Id. at 114-17. Relying on the title policy, the Bank requested that First American defend it in the Receiver's action. Id. at 112. First American refused and explained that the Receiver's action fell outside the coverage of the policy. Id. at 134. The Bank responded to First American's denial and disputed First American's basis for refusing to defend. Id. at 136-38. First American reaffirmed its conclusion that it owed no duty to defend. Id. at 140-41. The Bank and the Receiver eventually entered a settlement for $675, 000. Id. at 100-06. The Bank then brought this diversity action against First American.

         The Bank's complaint contained five claims: (1) breach of contract for failure to indemnify, (2) breach of contract for failure to defend, (3) breach of the implied covenant of good faith and fair dealing, (4) contingent breach of contract or breach of implied covenant, and (5) declaratory relief. Id. at 26-32. On cross-motions for summary judgment, the district court granted summary judgment in favor of the Bank on its claims for (1) breach of contract for failure to indemnify, (2) breach of contract for failure to defend, and (3) declaratory relief. 12 J.A. 2815. The district court held that the claim for breach of the implied covenant of good faith and fair dealing was subsumed into its findings on the breach of express terms, and it found that it did not need to decide the contingent breach of contract claim. Id. The district court entered judgment consistent with those findings, but it did not rule on the Bank's other damages arguments related to prejudgment interest or consequential damages. Id. at 2816.

         First American filed a notice of appeal to this court on June 7, 2017, id. at 2841; the Bank filed its own notice of appeal (along with a motion to extend time to file the notice) on July 13, 2017. Id. at 2859-67. Meanwhile in the district court, the Bank (1) renewed its motion for attorneys' fees from its summary judgment motion; (2) moved, in the alternative, under Rule 54(d) for attorneys' fees; and (3) moved under Rule 60 to set aside the judgment to ensure the district court kept jurisdiction until the damages issue was resolved. Id. at 2868-79.

         On November 7, 2017, we ordered a limited remand for the district court to address the Bank's request for attorneys' fees. Order, Banner Bank v. First Am. Title Ins. Co., Nos. 17-4098 & 17-4112 (10th Cir. Nov. 7, 2017), ECF No. 10511740. On remand, the district court awarded the Bank attorneys' fees under its renewed motion for attorneys' fees and denied the motions under Rule 54(d) and Rule 60. 13 J.A. 3154-56. First American filed another notice of appeal from that decision. Id. at 3158-60.

         Discussion

         We review a summary judgment decision de novo, and we use the same standard the district court applied to determine if summary judgment was warranted. See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). In other words, we ask if the movant demonstrated there was no genuine dispute as to any material fact and the movant was entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The factual record and reasonable inferences that may be drawn from it are viewed in the light most favorable to the nonmoving party. See Birch, 812 F.3d at 1251. Cross-motions for summary judgment are treated as two individual motions for summary judgment and held to the same standard, with each motion viewed in the light most favorable to its nonmoving party.

         A. Breach of Contract ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.