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September 16, 2002


The opinion of the court was delivered by: Vazquez, District Judge.


THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment [Doc. No. 554]. The Court, having considered the motion, briefs, relevant law and being otherwise fully informed, finds that the motion is well taken and will be GRANTED.


First American Savings Bank of Santa Fe, New Mexico ("First American"), formerly Taos Savings and Loan Association of New Mexico, was a chartered state institution that was acquired by a group of Dallas investors, including Defendant Bernard Schuchmann, in February 1985. On August 30, 1990, the Resolution Trust Corporation ("RTC") was appointed Receiver of First American on the grounds that First American had engaged in numerous unsafe and unsound practices and was insolvent. On that same day, the Office of Thrift Supervision created First American Federal Savings Bank ("First American Federal"), which received certain assets of First American, including claims against former directors, officers and attorneys of First American, pursuant to a Purchase and Assumption Agreement, dated August 31, 1990. RTC was then appointed Receiver of First American Federal on November 29, 1990.

In 1993, RTC brought this action against certain former directors, officers, attorneys, and third party transferees of First American for breach of fiduciary duty, gross negligence, negligence, and aiding and abetting. The claims against all of the defendants, except Bernard and Tara Schuchmann, were dismissed prior to trial.*fn1 On January 9, 1996, Plaintiff gave notice to the Court of the statutory succession and substitution by the Federal Deposit Insurance Corporation ("FDIC") for RTC as Receiver of First American Federal and as the plaintiff in this civil action [Doc. No. 246].

On March 6, 1998, Defendants Bernard and Tara Schuchmann moved for partial summary judgment [Doc. No. 293], arguing that certain transactions could not be included in Plaintiff FDIC's cause of action because they were time-barred by the applicable statute of limitations. In opposition to Defendant's motion, Plaintiff argued that the statute of limitations should be tolled under the doctrine of "adverse domination." In his December 2, 1998 Order [Doc. No. 421], Judge Bunton denied Defendant's motion because he found a genuine dispute over a material fact of whether there was "adverse domination." FDIC v. Schuchmann, CIV No. 93-1024, slip op. at 12 (D.N.M. Dec. 2, 1998).

This case then went to trial, and a jury returned a verdict on December 11, 1998, finding Defendant Bernard Schuchmann negligent only with respect to the Custer Road Loan and the Omni Real Estate Loan, but finding no proximate cause between Defendant's negligence and Plaintiff's damages. Therefore, the jury did not award any damages for the negligence regarding these loans. The jury also found no gross negligence or breach of fiduciary duties by Defendant Bernard Schuchmann, and specifically found no "adverse domination." The trial court also granted Defendant Tara Schuchmann's Motion for Judgment as a Matter of Law, dismissing all claims against Ms. Schuchmann with prejudice [Doc. No. 478].

The Tenth Circuit "reverse[d] the district court's judgment with regard to the Omni loan transaction and remand[ed] for further proceedings" due to a faulty jury instruction. FDIC v. Schuchmann, 235 F.3d 1217, 1227-28 (10th Cir. 2000). The Tenth Circuit, however, affirmed all other aspects of the jury trial, including the jury's finding of no "adverse domination." Id. at 1229-30. Thus, Defendant Bernard Schuchmann is the only remaining defendant in this civil matter, and the sole claim against him pertains to the Omni loan transaction.


Summary judgment is an integral part of the Federal Rules of Civil Procedure, which are intended to "`secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1). Under Rule 56(c), summary judgment is appropriate when the court, viewing the record in the light most favorable to the non-moving party, determines that "there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Thrasher v. B & B Chemical Co., 2 F.3d 995, 996 (10th Cir. 1993).

The movant bears the initial burden of showing "there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Once the movant meets this burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324. "Where 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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Although the material submitted by the parties in support of and in opposition to the motion must be construed liberally in favor of the party opposing the motion, Harsha v. United States, 590 F.2d 884, 887 (10th Cir. 1979), the burden on the moving party may be discharged by demonstrating to the district court that there is an absence of evidence to support the nonmoving party's case, see Celotex, 477 U.S. at 325. In such a situation, the moving party is entitled to judgment as a matter of law "because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 322.


Defendant argues that he is entitled to summary judgment as a matter of law concerning the one remaining claim in this dispute — the Omni loan made in August 1985. With regard to the Omni loan, the jury made a finding of negligence, but no damages or proximate cause. This jury verdict was reversed by the Tenth Circuit and remanded for further proceedings due to a faulty jury instruction. However, the jury also made a finding of no adverse domination concerning the Omni loan, and this finding was affirmed by the Tenth Circuit. Thus, Defendant argues that even though the Omni loan claim has been remanded to the district court, summary judgment on that claim is, nevertheless, warranted under the doctrine of "law of the case" because Plaintiff's one defense against the statute of limitations bar — adverse domination — has been found not to exist by a jury, and this finding was subsequently affirmed by the Tenth Circuit.

Plaintiff, on the other hand, relies on the Tenth Circuit's statement that "[w]holesale reversal on the Omni loan transaction is necessary because [it was] unable to speculate as to how a proper instruction would have affected the jury's findings with regard to the issues of gross negligence, breach of fiduciary duties, proximate cause and damages." Schuchmann, 235 F.3d at 1228 n. 8. Plaintiff interprets the Tenth Circuit's directive to require a reversal of all findings pertaining to the Omni loan, including the finding of no adverse domination, thus mandating a new trial on that factual issue. Furthermore, Plaintiff asserts that the Tenth Circuit rejected a similar argument when the panel rejected Defendant's Petition for Panel Rehearing, and that numerous factual issues should be resolved at trial in order to determine whether or not the Omni loan falls within the statute of limitations.

I. Statute of Limitations

The parties have agreed that the statute of limitations for this action is governed by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ...

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