Radiance Capital Receivables v. Matthew Concannon , 920 F.3d 552 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3447
___________________________
Radiance Capital Receivables Eighteen, LLC
lllllllllllllllllllllPlaintiff - Appellee
v.
Dr. Matthew Jerome Concannon
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: December 11, 2018
Filed: April 4, 2019
____________
Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
Eleven years ago, Matthew Concannon, M.D., signed a general guaranty for a
company that he thought he owned in part with his trusted friend and financial
advisor. What his friend purportedly failed to mention in this otherwise routine
exercise of obtaining his signature was that the guaranty would saddle Concannon
with millions of dollars in debt from loans that his friend had obtained and was
unable to repay. Concannon urges us to conclude that he was defrauded by his friend,
that his friend acted without his authority in delivering the guaranty to the bank, or
that the bank’s successor in interest, Radiance Capital Receivables (Radiance), lacks
a proper chain of title to enforce the guaranty. The district court1 determined that
Concannon was liable, and we affirm.
I.
Concannon graduated from medical school at the University of Missouri in
1987. After training in hand and microsurgery, he returned to the University to join
the medical school faculty. There, Concannon retained the services of José Lindner2
upon the suggestion of a faculty mentor. Lindner served as a financial planner and
tax preparer for several prominent physicians in the area. The two became friends,
and Concannon enlisted Lindner to advise him financially, prepare his taxes, and
generally assist with his various business ventures.
Concannon left the University in late 2006, and Lindner assisted him in
opening his own private medical practice shortly thereafter. Lindner handled the
business’s books and continued assisting with Concannon’s tax and financial matters,
including drafting and preparing the operating agreement for Concannon’s holding
company. Concannon trusted Lindner “more than [he could] describe” and gave
Lindner complete access to his financial and business records. Concannon testified
in an unrelated matter that, in his words, “I paid [Lindner] to act on my behalf. . . . As
a matter of routine, I—when [Lindner] would give me stuff to sign, I would just sign
it.”
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
2
Lindner passed away in 2010.
-2-
Lindner also managed his own commercial real estate developments, one of
which involved an entity named Providence Farms, LLC (Providence). Lindner
offered Concannon an opportunity to obtain a dollar-for-dollar tax credit by investing
in Providence and its various infrastructure construction projects, and Concannon
agreed to invest $600,000. Lindner handled Concannon’s involvement with
Providence and regularly sought his signature on related documents, including those
purporting to add Concannon’s holding company as a member of Providence with a
50% ownership interest. Concannon also signed guaranties permitting Lindner to
obtain and renew, on Providence’s behalf, millions of dollars in loans from various
financial institutions.
Concannon signed a general guaranty for Providence on January 24, 2008. The
document listed Premier Bank as the lender and guaranteed all of Providence’s
“present and future debts” of “every type, purpose and description,” including,
“without limitation, all principal, accrued interest, attorney’s fees and collection
costs.” Unbeknownst to Concannon, Providence teetered on the brink of foreclosure
at the time, and various banks had required Lindner to obtain guarantors and investors
to keep Providence afloat. In subsequent years, Concannon also made personal loans
to Lindner at the latter’s request to enable Providence to make its loan payments.
Concannon insisted on collateral for one such $240,000 loan in late 2009. Around
that time, he attended two meetings between Premier Bank and Lindner, during which
the bank informed Lindner that it needed payment on the loans.
Providence did not make its loan or interest payments and defaulted. The
company and its projects were a sham; Concannon did not receive a tax credit or a
membership interest, and the infrastructure projects which he purportedly funded with
his investments in Providence were never constructed.
Premier Bank failed in 2010. The Federal Deposit Insurance Corporation
(FDIC) took over its assets, which included the right to collect from Providence. The
-3-
FDIC created the entity CADC/RADC Venture 2011-1 (CADC), which the FDIC
owned jointly with a private investment company, and sold Premier Bank’s assets to
it. CADC obtained a consent judgment against Providence in Missouri state court in
September 2014 for $15.7 million plus interest. Concannon had been dismissed as
a defendant in the state action, and he did not object to the consent judgment. CADC
then sold Providence’s debt obligations to Radiance in May 2016 and thereafter
executed and filed an Assignment of Judgment in Missouri state court assigning the
consent judgment against Providence to Radiance.
Radiance filed suit in federal district court against Concannon to collect the
burgeoning amount owing from the consent judgment, which now approaches $22
million. Relevant here, Radiance claimed that Concannon breached his guaranty.
The district court granted Radiance’s summary judgment motion in part, concluding
that Radiance had a valid assignment of Providence’s debt. Following a bench trial
in October 2017, the district court determined that Lindner had acted with
Concannon’s actual authority to deliver the signed guaranty to Premier Bank and that
Concannon failed to establish a fraud-in-factum defense. The court ordered
Concannon to pay the full amount owing on the consent judgment and granted
Radiance’s motion for attorneys’ fees. After denying Concannon’s request to amend
the findings and judgment, the court entered final judgment. The parties agree that
Missouri law applies in this diversity action.
II.
Concannon contends that Radiance lacks the right to enforce the consent
judgment because the assignment of Providence’s debt from the FDIC to CADC was
invalid. As a party seeking to collect a debt owed another, Radiance must prove valid
each assignment serving as a “link in the chain between the party to which the debt
was originally owed and the party trying to collect the debt.” CACH, LLC v. Askew,
358 S.W.3d 58, 62 (Mo. 2012). We review de novo the district court’s determination
-4-
that the chain of assignments was valid. Hanson v. FDIC, 113 F.3d 866, 869 (8th Cir.
1997) (standard of review).
Concannon claims that the FDIC exceeded its statutory authority by creating
and co-owning CADC and by entering into structured transactions between CADC
and private investors. He contends that because the FDIC acted without authority in
doing so, its transfer of Premier Bank’s assets to CADC was void as a matter of law.
“[A]n agency may only exercise those powers Congress has given it.” Saxton
v. Fed. Hous. Fin. Agency, 901 F.3d 954, 960 (8th Cir. 2018) (Stras, J., concurring).
In response to the 1980s savings-and-loan crisis, Congress enacted the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) to enable the
FDIC to act as a receiver for failed institutions. Pub. L. No. 101-73, 103 Stat. 183
(codified as amended in scattered sections of 12 U.S.C.). FIRREA grants the FDIC
“unprecedented powers so that it may function efficaciously as a receiver or
conservator of insolvent financial institutions.” Sunshine Dev., Inc. v. FDIC, 33 F.3d
106, 111 (1st Cir. 1994); see also Hanson, 113 F.3d at 871 (“As a receiver, the FDIC
has substantial powers over [a failed institution’s] assets.”).
We conclude that the FDIC’s creation of CADC and its sale of Premier Bank’s
assets thereto fall within its broad power. Under FIRREA, the FDIC has authority to
act as a receiver, 12 U.S.C. § 1821(c)(2)(A)(ii), and to assume “all rights, titles,
powers, and privileges of the insured depository institution,” § 1821(d)(2)(A)(i).
Accordingly, the FDIC was authorized to assume Premier Bank’s right to collect
Providence’s debt. Because the FDIC also had the authority under § 1821(d)(2)(E)
to dispose of Premier Bank’s assets, we conclude that it acted within its incidental
powers when it created CADC and sold Premier Bank’s assets to it. Id.
§ 1821(d)(2)(G)(i)(II) (permitting the FDIC to transfer assets); § 1821(d)(2)(J)(i)-(ii)
(permitting the FDIC to “exercise . . . such incidental powers as shall be necessary to
carry out [specifically granted] powers” and “take any action authorized by this
-5-
chapter, which the [FDIC] determines is in the best interests of the depository
institution, its depositors, or the [FDIC]”). Section 1821(d)(2)(K) authorized the
FDIC to use the services of a private entity to dispose of Premier Bank’s assets. The
district court therefore properly determined that the assignment of rights from the
FDIC to CADC was valid. Concannon does not dispute the validity of the assignment
from CADC to Radiance, and thus we conclude that Radiance may enforce the
consent judgment.
In so concluding, we reject Concannon’s argument that the FDIC’s incidental
powers are limited to acts strictly necessary to dispose of the bank’s assets. His
theory is not supported by case law, and a reasonable reading of FIRREA’s text
authorizes the FDIC to act as it did here. We further reject Concannon’s claim that
§ 1821(d)(2)(F)’s express grant of authority to organize depository institutions
precludes the FDIC from creating non-depository entities like CADC. Concannon’s
reading would frustrate both FIRREA’s text, which permits the use of incidental
powers, and its purpose, which grants the FDIC broad discretion to dispose of a failed
institution’s assets. See Watt v. GMAC Mortg. Corp., 457 F.3d 781, 783 (8th Cir.
2006) (“[C]ourts will construe the details of an act in conformity with its dominating
general purpose.” (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n.
23 (1983))).
III.
Concannon next argues that the district court erred in concluding that Lindner
acted as his agent with implied actual authority when delivering the guaranty to
Premier Bank. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 382 (Mo. 1993) (explaining the unconditional delivery element of
a breach of guaranty claim). “Agency is the fiduciary relationship resulting from the
manifestation of consent by an agent to a principal that the agent will act on the
principal’s behalf and subject to his control.” Bach v. Winfield-Foley Fire Prot. Dist.,
-6-
257 S.W.3d 605, 608 (Mo. 2008). Whether this principal-agent relationship exists
is generally a question of fact. See Bus. Bank of Saint Louis v. Old Republic Nat’l
Title Ins. Co., 322 S.W.3d 548, 552 (Mo. Ct. App. 2010). Concannon does not
seriously dispute the district court’s finding that he and Lindner had such a
relationship.3
Instead, he contends that Lindner delivered the guaranty without his authority
and therefore acted outside the scope of any agency relationship. In the context of a
principal-agent relationship, the principal is responsible for his agent’s acts as long
as the agent acts with actual or apparent authority. Id. Actual authority may be
express or implied. Id. The former “exists when the principal explicitly tells the
agent what to do,” and the latter, implied actual authority, “consists of those powers
incidental and necessary to carry out the express authority.” Id. at 552, 554 (quoting
Hardcore Concrete, LLC v. Fortner Ins. Servs., Inc., 220 S.W.3d 350, 355 (Mo. Ct.
App. 2007)). “[T]he relationship of principal and agent cannot be presumed but must
be proved,” and thus, “[i]mplied powers, like any others, must be bottomed on some
act or acquiescence of the principal, express or implied.” Dudley v. Dumont, 526
S.W.2d 839, 843-44 (Mo. Ct. App. 1975). Whether an agent’s actions were incidental
and necessary to carry out the express authority is also a question of fact. See Bus.
Bank of Saint Louis, 322 S.W.3d at 554.
Concannon argues that delivering the guaranty was not reasonably necessary
to carry out any grant of express authority that he had given to Lindner to prepare
various operating agreements, calculate his taxes, and take care of other business
matters. However, the district court found that Concannon signed the guaranty and
understood that he was signing it; that he had admitted in a prior deposition that he
3
Concannon also does not dispute that Lindner physically delivered the
guaranty to Premier Bank, nor that, if Lindner acted as his agent when delivering the
guaranty, the delivery would be his act.
-7-
had paid Lindner to act on his behalf and had thought or assumed that Lindner acted
on his behalf in giving him documents to sign; that he had relied on Lindner for
various tax and financial services, particularly related to Providence Farms; and that
he generally had relied on Lindner to take care of his business matters. Concannon
does not dispute these findings. The record also indicates that Concannon testified
that he and Lindner had previously discussed working together on a deal and that he
had been “looking forward” to partnering with Lindner and investing in Providence.
After signing the guaranty, Concannon twice accompanied Lindner to meetings with
Premier Bank to discuss Providence’s debt. Concannon also claimed $1,370,648 in
nonpassive losses related to Providence during the tax years of 2007, 2008, and 2009.
These facts support a determination that Concannon gave Lindner express authority
to draft and execute all documents related to his involvement in Providence Farms;
that Concannon’s purpose in granting this express authority was both to obtain what
he thought was a tax credit and to join Lindner in financing Providence’s various
infrastructure projects; and that securing guarantors to ensure Providence’s continued
operations was incidental to that express grant of authority. We thus conclude that
the district court did not clearly err in determining that Lindner acted with implied
actual authority in delivering the guaranty to Premier Bank on Concannon’s behalf.
See Wright v. St. Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013) (standard
of review).
Concannon contends that the guaranty is nonetheless unenforceable because
Premier Bank failed in its duty to ensure that Lindner acted with Concannon’s
authority when delivering the guaranty. See, e.g., Erickson v. Civic Plaza Nat. Bank,
422 S.W.2d 373, 380 (Mo. Ct. App. 1967) (“A third person dealing with an agent . . .
has the duty of ascertaining for himself, the agent’s authority.”). Because Lindner
acted with implied actual authority, Premier Bank would have found that Lindner was
acting well within his scope of authority had it inquired. Its failure to so inquire does
not relieve Concannon of liability. See Dalton & Marberry, P.C. v. NationsBank,
N.A., 982 S.W.2d 231, 235 (Mo. 1998) (“In Missouri, a payee bank may avoid
-8-
liability by proving that the agent has actual or apparent authority from the drawer-
depositor.”); see also Luechtefeld v. Marglous, 151 S.W.2d 710, 716 (Mo. Ct. App.
1941) (determining that the plaintiff could “prove the authority of the agent Voss to
deliver the note and deed of trust and collect the proceeds of said sale” by “showing
implied or apparent authority.”). To the extent that Concannon argues that Premier
Bank had a special duty to inquire in the context of a loan guaranty, which he claims
is akin to a contract offer, our conclusion is unchanged: any inquiry by Premier Bank
would have revealed that Lindner acted with implied actual authority when delivering
the guaranty.
IV.
Concannon disputes the district court’s findings that Lindner did not
misrepresent the guaranty and that Lindner was not his fiduciary in relation to
Providence Farms. He also disputes the court’s conclusion that he, Concannon, was
generally negligent, all of which led it to reject his fraud in the factum defense. Such
fraud is a misrepresentation as to the nature of the act being done; that is, “the
fraud-feasor intends one thing and the victim intends another thing.” Wolf v. St.
Louis Pub. Serv. Co., 357 S.W.2d 950, 957 (Mo. Ct. App. 1962). A defendant
seeking to invoke such a defense in Concannon’s situation must show (1) that he
signed a document in ignorance of its true character; and (2) that his act was due to
misrepresentations or fraudulent conduct on the part of another party and not to his
own negligence. Rau v. Robertson, 260 S.W. 751, 754 (Mo. 1924). Fraud in the
factum voids a contract ab initio. Id. We review the district court’s factual findings
for clear error and its legal conclusions de novo. See Wright, 730 F.3d at 737. A
factual finding is clearly erroneous “only if it is not supported by substantial evidence
in the record, if it is based on an erroneous view of the law, or if we are left with the
definite and firm conviction that an error was made.” Id. (quoting Urban Hotel Dev.
Co. v. President Dev. Grp., L.C., 535 F.3d 874, 879 (8th Cir. 2008)).
-9-
Concannon contends that he was deceived as to the true nature of the guaranty
and instead believed it to be a “routine and necessary document related to a tax
shelter.” But the district court found as a fact that Concannon understood that he was
signing a guaranty, which, if supported by substantial evidence, refutes his fraud
defense and renders immaterial whether Lindner acted as his agent and whether
Concannon was generally negligent. That is, if Concannon knew he was signing a
guaranty for Providence’s debts, he cannot have believed that his act was “of a
different nature than what it really [wa]s.” Wolf, 357 S.W.2d at 957 (determining that
the plaintiff, induced to sign a release by false representations that his medical bills
would nonetheless be paid, was not deceived as to the nature of the release and
therefore stated a claim for fraud in the inducement, not fraud in the factum).
We conclude that the district court’s finding is not clearly erroneous.
Concannon read and sought legal advice regarding other documents Lindner prepared
for him, including his holding company’s operating agreement. He had signed other
documentation in the past to assist Providence in securing loans. After signing the
guaranty, he attended meetings between Premier and Lindner discussing Providence’s
debt. Moreover, the guaranty is unambiguous; the words “ALL PRESENT AND
FUTURE DEBTS” appear on the first page, and Concannon signed below the clear
label “GUARANTOR.” In light of these facts, the court was free to reject
Concannon’s testimony that he did not understand the guaranty and would not have
signed it if he had. The record is devoid of any evidence that Lindner concealed or
otherwise misrepresented the guaranty. See Rau, 260 S.W. at 755. Any failure by
Lindner to explain the full extent of the guaranty—that Concannon’s signature would
guarantee millions in loans that Lindner had already obtained on Providence’s
behalf—does not negate Concannon’s knowledge of the “true character” of the
guaranty. See id. at 754 (distinguishing fraud in the inducement, which “implies that
plaintiff knew that the document embodied a contract of release, but that she was
induced to sign it through the fraud of the defendant,” from fraud in the factum,
which implies that the plaintiff “believed [the instrument] to be of an entirely
-10-
different character”). Because the district court’s factual finding that Concannon
understood what he was signing and knew it to be a guaranty is supported by
substantial evidence, Concannon’s fraud in the factum defense necessarily fails.
The facts of this case are readily distinguishable from those on which
Concannon relies. In Rau, for example, the defendant offered to pay Rau’s lost wages
after he had hit her with his car, causing her to miss work. He later visited her at the
hospital and, while she was “weak and sick and nervous, and impatient to leave the
hospital to go home,” asked her to sign what he portrayed as a receipt for his payment
of her wages. Id. at 755. He “folded it as to disclose to her merely the place of
signature, concealing apparently even the heading: ‘Release of Claim, Emma Rau
against John M. Robertson.’” Id. Because Rau thought she was signing a receipt
when she signed a release, and in spite of her choice not to read before signing, the
court remanded for the jury to decide “whether through defendant’s fraudulent
conduct and representations she was led to sign without further investigation an
instrument she did not intend to execute.” Id. In contrast, the record here supports
the district court’s finding that Concannon knew that the instrument was a guaranty.
Concannon also relies on language from Liddell v. Lee, 159 S.W.2d 769, 772 (Mo.
1942), which recognizes situations in which a fraud victim “impose[s] trust and
confidence in the [fraud-feasor].” Nevertheless, the defense requires the victim to be
deceived as to the type of document being signing or the terms therein, and
Concannon was not.
The judgment is affirmed.
______________________________
-11-