Locke Family Trust, by John Locke and Joan Bruce, its Trustees, Appellant, vs. Bremer Trust, National Association, f/k/a First American Trust Company of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-2173

 

Locke Family Trust,

by John Locke and Joan Bruce, its Trustees,

Appellant,

 

vs.

 

Bremer Trust,

National Association,

f/k/a First American Trust Company of Minnesota,

Respondent.

 

Filed ­­­October 21, 2003

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. CT01009821

 

Joseph W. Dicker, Joseph W. Dicker, P.A., 1406 West Lake Street, Suite 208, Minneapolis, MN 55408 (for appellant)

 

Thomas H. Boyd, Matthew D. Spohn, Winthrop & Weinstine, P.A., 3200 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Respondent Bremer Trust, acting as an investment manager, was granted summary judgment on the ground that it neither breached its contract with appellant, its client, nor violated any fiduciary obligation to appellant.  Because we see no genuine issue of material fact and no error of law, we affirm.

FACTS

            In 1993, Florence Locke created appellant Locke Irrevocable Family Trust, which eventually had assets in excess of $300,000.  The trust beneficiaries were Florence Locke's children, John Locke and Joan Bruce; its sole trustee at all times relevant was John Locke.

Trustee John Locke hired David Welliver to manage the trust's assets and gave him authority to make all trading and investment decisions.  In 1995, a substantial portion of the trust's assets were invested in Technimar, a start-up company of which Welliver was a director.  In 1996, Welliver opened a custodial account for appellant with respondent Bremer Trust, f/k/a First American Trust Company of Minnesota.  The parties entered into a Management Agency Agreement (the agreement), which provided that respondent would have

the following powers, duties, and discretions:

1)        To retain cash and securities; to sell or otherwise dispose of the same; to invest and reinvest in or exchange assets for any securities and properties . . .  as [respondent] deems advisable pursuant to the specific investment policies of [appellant].

 

2)        To sell any assets or make any investment directed by [appellant], assuming funds are available.  In following such instructions of [appellant], [respondent] shall not be liable or responsible for losses or other unfavorable results due to its compliance with such instructions.  In acting on such instructions, [respondent] shall be protected in relying on any communications, written or oral, which it believes to be genuine and to have originated with [appellant].

 

3)        To hold stocks and other securities in bearer form or in the name of [respondent's] nominee or nominees, and deposit cash funds as a general deposit in a special account in its own deposit department without liability for interest thereon, provided, however, that such securities and cash shall at all times appear on its books as part of this Agency Account.

 

4)        To collect, receive and receipt for any principal or income and to enforce, defend against, compromise or settle any claim by or against this Agency Account and . . . to exercise any other rights incident to the ownership of any securities held hereunder as [respondent] deems advisable.

 

5)        To determine all questions regarding allocation between income and principal with respect to both receipts and expenditures.

 

6)        To safekeep all assets, maintain books and records, and render such periodic statements of accounts as may be agreed upon from time to time.

. . . .

 

It is further agreed and understood by and between [appellant] and [respondent] as follows:

 

. . . .

 

2)        . . . [Appellant] agrees to indemnify and hold [respondent] . . . harmless from any and all costs, damages, expenses, and liabilities which it may incur by reason of any action taken or omitted to be taken by [respondent] in connection with this Agreement.  [Respondent] shall not be liable or responsible to [appellant] or anyone whomsoever for any mistake or error undertaken by [respondent]. . . . in the exercise of its discretion but shall be liable only for its gross negligence or dishonesty.

 

            Appellant further instructed respondent:

In regard to the investment management of [my] account, I give you instruction with this letter to accept all trading instructions from Dave Welliver . . . .  He has full authority to make all trading decisions and I absolve you of any investment, performance or suitability responsibility. 

 

On Welliver's instruction, and with John Locke's agreement, appellant's assets were invested in and loaned to Technimar.  When Technimar failed, the assets were lost.

            Appellant then brought this action against respondent, alleging breach of contract and breach of fiduciary duty.  Respondent was granted summary judgment on both claims.  Appellant challenges summary judgment, basing both its claims on the same facts and acknowledging in its brief that "[respondent]'s obligations as a fiduciary are determined, in the first instance, by the Management Agency Agreement."  Accordingly, we need address only the breach of contract claim.[1]

D E C I S I O N

 

            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A genuine issue for trial must be established by substantial evidence.  DLH Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997). 

As a threshold matter, we note that the agreement itself arguably precludes this claim.  In it, appellant agreed "to indemnify and hold [respondent] . . . harmless from any and all costs, damages, expenses, and liabilities which it may incur by reason of any action taken or omitted to be taken by [respondent] . . ." and that " [respondent] shall not be liable or responsible to [appellant] . . . for any mistake or error undertaken by [respondent] . . . in the exercise of its discretion but shall be liable only for its gross negligence or dishonesty."  Appellant alleges neither gross negligence nor dishonesty. 

Appellant contends that genuine issues of material fact exist as to whether  respondent breached the agreement, and accordingly, the district court abused its discretion in awarding summary judgment.  Appellant contends that respondent unjustifiably delayed in acquiring promissory notes purchased with appellant's funds.  But the agreement says nothing about the time frame within which respondent was to acquire notes, and uncontroverted testimony from one of respondent's employees indicated that, for non-electronic transactions such as those with Technimar, "you can make payment, and then it can take anywhere fromthere's really no time framesix to eight weeks, to six months, to whatever, when those assets come in."  Appellant does not refute this testimony.  Notwithstanding, respondent communicated with Welliver in order to obtain documentation. Welliver was appellant's acknowledged agent; by communicating with and notifying Welliver, respondent was communicating with and notifying appellant. See Rognrud v. Zubert, 282 Minn. 430, 436, 165 N.W.2d 244, 249 (Minn. 1969) ("[N]otice given to an agent is notice to the principal.").   Thus, appellant was constructively aware of when respondent provided documentation, and made no objection.  See also Kaiser v. First Hawaiian Bank, 30 F. Supp. 2d 1255, 1261-63 (D. Haw. 1997) (granting summary judgment to a bank accused of failing to notify on the ground that the agreement covering the bank's relationship with the plaintiff did not impose a duty to notify).  We note that respondent eventually received all the promissory notes, and we see no breach of contract based upon the delay in receipt. 

Appellant also argues that respondent failed to obtain the security agreements and financing statements referenced on the notes and to notify appellant that it had not obtained this documentation.[2]  But the agreement does not impose this obligation on respondent.  Either appellant or Welliver, as the lenders or originators of the loans to Technimar, was responsible for deciding on and arranging for the security to be required from Technimar.  Respondent's obligations were  "[t]o retain cash and securities; to sell or otherwise dispose of the same; to invest and reinvest in or exchange assets for any securities and properties" and "[t]o hold stocks and other securities in bearer form or in the name of [appellant's] nominee or nominees."  The agreement required respondent to obtain and keep the promissory notes, but not to obtain the originals of documents referenced on them.  Appellant, having defined respondent's authority and responsibility in the agreement, cannot successfully argue that respondent breached the agreement by failing to perform beyond its terms.

We conclude that no genuine issue of material fact and no error of law preclude the summary judgment.

Affirmed.

[1] Appellant also implies that respondent violated Minn. Stat. § 520.27 (2000), the Uniform Fiduciary Act, but because that argument was not raised prior to this appeal, it is not properly before this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court may not address that which was not presented to the district court). 

[2] Only the promissory notes for smaller sums ($10,000 - $40-000) referred to a security interest; no security interest was mentioned in either the note for $240,000 or the extension of that note.