THE SOCIETY OF
LLOYD'S, Plaintiff, v. CARL EVANS ABRAMSON, Defendant.
MISCELLANEOUS CASE NO.
3:03-MC-001-P
UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
March 29, 2004,
Decided
March 29, 2004, Filed
DISPOSITION:
Defendant's motion for summary judgment granted in part.
COUNSEL:
[*1] For The Society of Lloyd's, Plaintiff: Andrew M Edison,
Bracewell & Patterson, Houston, TX.
For Carl Evans
Abramson, Defendant: Jack O Norman, Law Office of Jack O Norman, Dallas, TX.
Carl E Abramson, Law Office of Carl E Abramson, Dallas, TX.
JUDGES: JORGE A.
SOLIS, UNITED STATES DISTRICT JUDGE.
OPINIONBY: JORGE A.
SOLIS
OPINION: ORDER
Now before the Court
are Defendant Carl Evan Abramson's Motion for Summary Judgment Denying
Recognition of Foreign Judgment, filed February 5, 2003, and Plaintiff The
Society of Lloyd's Cross Motion for Summary Judgment Seeking Recognition of
Foreign Judgment, filed March 25, 2003. After a thorough review of the
evidence, the parties' pleadings, and the applicable law, for the reasons set
forth below, the Court DENIES Defendant's Motion for Summary Judgment Denying
Recognition of Foreign Judgment and GRANTS Plaintiff's Cross Motion for Summary
Judgment Seeking Recognition of Foreign Judgment. The judgment awarded The
Society of Lloyd's, being equivalent to $ 370,899.22, is accordingly due upon
issuance of this Order.
DISCUSSION
I. Background
Plaintiff Lloyd's and
Defendant Abramson's summary judgment motions request this Court [*2]
to respectively grant or deny recognition of a foreign judgment obtained by
Lloyd's against Abramson in the High Court, Queen's Bench Division, Commercial
Court ("the English judgment") on March 11, 1998. The parties' motions
and supporting briefs clearly demonstrate that the ultimate disposition of
these motions turns on whether Lloyd's obtained the foreign judgment
fraudulently by concealing documents that were crucial to Abramson's defense
throughout the English proceedings. (Def.'s Br. in Supp. of Mot. for Summ. J.
at 1; PL's Br. In Supp. of Cross Mot. for Summ. J. at 1.) If the judgment was
so obtained, as asserted by Abramson, this Court may refuse to recognize it
pursuant to section 36.005(b)(2) of the Texas Uniform Foreign Country Money-Judgment
Recognition Act ("the Texas Recognition Act"). TEX. CIV. PRAC. &
REM. CODE ANN. ¤ 36.005(b)(2) (Vernon 2000) ("[A] foreign country judgment
need not be recognized if . . . the judgment was obtained by fraud.").
Alternatively, if the judgment was not obtained by fraud, as asserted by
Lloyd's, this Court is obligated to recognize the judgment, pursuant to section
36.004 of the Texas Recognition Act, [*3] as it would a judgment of
a sister state that is entitled to full faith and credit. Id. at ¤ 36.004.
Because the
disposition of both motions turns on the resolution of the same issue, the
underlying recital of facts is tailored specifically to address the question of
whether Lloyd's obtained the foreign judgment by fraud, leaving a more thorough
discussion of the nature and structure of Lloyd's to the multitude of past
cases resolving related disputes. See, e.g., Soc'y of Lloyd's v. Turner, 303 F.3d
325, 326-28 (5th Cir. 2002); Haynsworth v. The Corporation, 121 F.3d
956, 958-60 (5th Cir. 1997); Soc'y of Lloyd's v. Ashenden, 233 F.3d
473, 478 (7th Cir. 2000).
Abramson's
relationship with Lloyd's, as an underwriting member, or "Name," in
Lloyd's venerable insurance market, was the impetus for the English judgment at
issue. Abramson became a Name of Lloyd's in 1985 after being solicited by the
Members' Agency, London Wall Members Agency ("LWMA"). (Abramson Aff.
at 1.) Roughly seven years after Abramson joined Lloyd's, LWMA went into
liquidation and closed its doors in 1992. Id. After LWMA ceased
operations, the Council of [*4] Lloyd's appointed an in-house
Members' Agency, Lloyd's Members' Agency Services Ltd. ("LMASL"), to
administer the accounts that LWMA had previously handled. Id. While
Abramson resigned from Lloyd's in 1992, i.e. prior to LMASL's succession over
LWMA, he remained bound by Lloyd's bylaws in regard to all outstanding
insurance policies that he underwrote during his tenancy at Lloyd's -- policies
that were then being administered by LMASL. Id.
The English judgment
obtained by Lloyd's accounts for past due reinsurance premiums owed by Abramson
to Lloyd's pursuant to the Reconstruction and Renewal plan ("the R&R
plan"), a bylaw enacted by the Council of Lloyd's in 1996. In response to
a potentially debilitating crisis in the insurance market in the late 1980s and
early 1990s, the Council of Lloyd's adopted the R&R plan to ensure that
Lloyd's survived the insurance crisis and that its policyholders were paid. Turner, 303 F.3d
at 327. The R&R plan obtained reinsurance, through Equitas Reinsurance
Ltd., for all of the Names' pre-1993 outstanding policies and allocated the
liability for the policy's premiums among the individual Names, in relation to
the value of their [*5] outstanding liabilities. Id. In the
instant case, Lloyd's assessed Abramson's portion of the reinsurance premiums
at £ 218,720.00. (Def.'s Ex. 4 at 29-30.) After Abramson failed to pay the
premiums, Lloyd's filed suit in 1996 and obtained the English judgment that
Lloyd's now seeks to have recognized by this Court.
In response to Lloyd's
suit for recognition of the English judgment, Abramson asserts that the
judgment was obtained by fraud and thus should not be recognized by this Court.
Specifically, Abramson asserts that Lloyd's obtained the English judgment by
concealing a £ 181,709.00 claim that he had against his former Members' Agent,
LWMA. (Def.'s Mot. for Summ. J. at 2.) The documents which purportedly support
his assertion are contained in Defendant's Exhibits 5-8. Defendant's Exhibits
5, 6 and 7 consist of three letters written to Abramson by Lloyd's in 1997 and
1998, informing him that LMASL had discovered a £ 250.00 accounting error in
Abramson's LWMA account after it took control over LWMA's books and records.
Alternatively, Defendant's Exhibit 8 contains two letters written to Abramson
in 2001 and 2002 from Ernst & Young and Arthur Anderson, the joint
liquidators [*6] of LWMA, informing him of a £ 181,709.00 claim that
he may have against LWMA for negligent accounting practices. Taken together,
Abramson asserts that these five letters prove that "Lloyd's knew the
account sued on was false and concealed that fact [from him and the English
Court]." (Def.'s Br. in Supp. of Mot. for Summ. J. at 2.) Due to the
alleged concealment, Abramson argues that the English judgment should not be
recognized because he was unable to make a full and fair defense in the English
proceeding. Id. at 3-4.
In short, Lloyd's
disputes Abramson's assertions by claiming that there is no evidence that
Lloyd's either knew about the errors in his account with LWMA or that the
errors were concealed in order to obtain the English judgment by fraud. (PL's
Cross-Mot, for Summ. J. at 9.) Lloyd's also asserts that the English judicial
system provided Abramson with a fair and impartial forum in which to make a
full and fair defense to Lloyd's claims. Id. at 8. Numerous
documents are provided by Lloyd's to support these assertions. (Pl.'s Ex. A, B,
& C.)
In the remainder of
this opinion, the Court considers the merits of the parties' arguments in light
of the legal standard [*7] that governs motions for summary
judgment. Because the legal issues underlying the parties' motions are
intimately intertwined, the Court consolidates its discussion on the respective
motions seeking and denying recognition of the English judgment. Furthermore,
following this discussion, the Court considers and rules on Abramson's
alternative argument that the English judgment should be converted at a rate of
1.51 U.S. dollars to 1 English pound as opposed to the rate proffered by Lloyd's
in its original petition seeking recognition of the English judgment.
II. Summary
Judgment Standard
Lloyd's and Abramson
both move this Court for summary judgment pursuant to Federal Rule of Civil
Procedure 56(c). Rule 56(c) provides for summary judgment when the pleadings,
depositions, answers to interrogatories and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265,
106 S. Ct. 2548 (1986). The moving party [*8] bears the burden of
informing the district court of the basis for its belief that there is an
absence of a genuine issue for trial, and of identifying those portions of the
record that demonstrate such an absence. Id. at 323. However, all
evidence and the reasonable inferences to be drawn therefrom must be viewed in
the light most favorable to the party opposing the motion. United States v.
Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993
(1962).
Once the party has
made an initial showing, the party opposing the motion must come forward with
competent summary judgment evidence of the existence of a genuine fact issue. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586,
89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The party defending the motion for
summary judgment cannot defeat the motion unless he provides specific facts
that show the case presents a genuine issue of material fact, such that a
reasonable jury might return a verdict in his favor. Anderson v. Liberty
Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Mere assertions of a factual dispute unsupported by probative evidence will not
prevent a summary [*9] judgment. Id. at 248-50; Abbott
v. Equity Group, 2 F.3d 613, 619 (5th Cir. 1993). In other words,
conclusory statements, speculation and unsubstantiated assertions will not
suffice to defeat a motion for summary judgment. Douglass v. United Servs.
Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party
fails to make a showing sufficient to establish the existence of an element
essential to his case, and on which he bears the burden of proof at trial,
summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington
v. Armstrong World Industries Inc., 839 F.2d 1121, 1122 (5th Cir. 1988).
A motion for summary judgment cannot be granted simply because there is no
opposition, even if the failure to oppose it violates a local rule. Hibernia
Nat'l Bank v. Adminstracion Central Sociedad Anonima, 776 F.2d
1277, 1279 (5th Cir. 1985). However, when the nonmovant fails to provide a
response identifying the disputed issues of fact, the Court is entitled to
accept the movant's description of the undisputed facts as prima facie evidence
of its entitlement [*10] to judgment. Eversley v. MBank Dallas, 843 F.2d
172, 173-174 (5th Cir. 1999).
Finally, the Court has
no duty to search the record for triable issues. Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party
opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise matter in which the evidence supports his
or her claim." Id. A party may not rely upon
"unsubstantiated assertions" as competent summary judgment evidence. Id.
III. Discussion
As discussed, both
parties acknowledge that the Texas Recognition Act governs the disposition of
their respective motions. In support of its Motion for Summary Judgment,
Lloyd's relies on section 36.004 of the Texas Recognition Act. (Pl.'s Br. in
Supp. of Cross Mot. for Summ. J. at 7.) Pursuant to section 36.004, a foreign
country judgment that is final, conclusive and enforceable where rendered, is
enforceable in Texas in the same manner as the judgment of a sister state that
is entitled to full faith arid credit. ¤ 36.004. Alternatively, Abramson relies
on section 36.005(b)(2) of the Texas Recognition Act to
support [*11] his Motion for Summary Judgment. (Def.'s Mot. for
Summ. J. at 1.) Pursuant to section 36.005(b)(2), it is within a court's
discretion to recognize foreign judgments that were "obtained by
fraud." Id. at ¤ 36.005(b)(2).
The Texas Recognition
Act essentially codifies the leading Supreme Court decision regarding
recognition and enforcement of foreign judgments. See Hilton v. Guyot, 159 U.S.
113, 40 L. Ed. 95, 16 S. Ct. 139 (1895). In Hilton, the
Supreme Court held that the judgment of a foreign country constituted prima
facie evidence of the matters that had already been adjudicated in
the foreign court. Id. at 123. Following from this language, it has
been noted that the conditions enumerated in section 36.005(b) are
"phrased as affirmative defenses." Hennessy v. Marshall, 682
S.W.2d 340, 344 (Tex. App. -- Dallas 1984, writ ref'd n.r.e.). Thus, because
Abramson relies on section 36.005(b)(2) to defeat Lloyd's petition for
recognition of the English judgment, he has the burden of proving "beyond
peradventure" all of the essential elements of that defense to warrant
summary judgment in his favor. Chaplin v. NationsCredit Corp., 307 F.3d
368, 372 (5th Cir. 2002) [*12] ("To obtain summary judgment,
'if the movant bears the burden of proof on an issue . . . because . . . as a
defendant he is asserting an affirmative defense, he must establish beyond
peradventure all of the essential elements of the . . .
defense to warrant judgment in his favor.'"); see also Banque Libanaise
Pour Le Commerce v. Khreich, 915 F.2d 1000, 1005 (5th Cir. 1990) (stating
that a party seeking to avoid recognition of a foreign judgment pursuant to
section 36.005(b) of the Texas Recognition Act, has the burden of proving
grounds for non-recognition). n1
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- - - Footnotes - - - - - - - - - - - - - - -
n1 At this stage in
the analysis, the Court feels compelled to note that both the success of
Abramson's motion and the demise of Lloyd's motion (and vice
versa) are concomitantly conditioned on Abramson's ability to prove
"beyond peradventure" that Lloyd's obtained the English judgment by
fraud. In the event that he fails to do so, the Court must recognize the
English judgment as it would a judgment from a sister state that is entitled to
full faith and credit. This supposition follows from the parties' respective
burdens at the summary judgment stage. To wit, because the parties do not
dispute that the English judgment satisfies the conditions articulated in
section 36.004 of the Texas Recognition Act, Abramson's burden of rebutting
Lloyd's motion for summary judgment is one in the same with his burden of
establishing his affirmative defense that Lloyd's obtained the English judgment
by fraud.
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Abramson asserts that
Lloyd's obtained the English judgment by fraud by concealing, from him and the
English Court, significant accounting errors in his account with LWMA. His
argument is accordingly premised on three separate assertions: (1) that the
errors in his account with LWMA were probative evidence in the English
proceedings, i.e. that they inflated the amount of his liability for the
Equitas reinsurance premiums; (2) that LMASL and Lloyd's became aware of the
errors prior to or during the English proceedings; and (3) that Lloyd's, after
learning of the errors, concealed them from Abramson and the English Court in
order to obtain the judgment against him. Because the first assertion
implicates the merits of the underlying suit and is thus prima facie evidence
in Lloyd's favor that has not been, even minimally, refuted by Abramson's
arguments and exhibits, the remainder of the Court's analysis need only address
whether Lloyd's knowingly concealed the errors in Abramson's LWMA account in
order to obtain the English judgment by fraud.
To prove fraud under
Texas law, a party must show that: (1) a material misrepresentation was made;
(2) the representation was false; (3) the [*14] speaker made the
representation knowing it was false or made it recklessly without any knowledge
of its truth; (4) the speaker made the representation with the intention that
it should be relied upon by the party, (5) the party acted in reliance upon the
misrepresentation; and (6) the party thereby suffered injury. Norman v.
Apache Corp., 19 F.3d 1017, 1022 (5th Cir. 1994). Failure to disclose
a material fact may also constitute fraud if the offending party had a duty to
disclose the fact. Union Pac. Res. Group, Inc. v. Rhone-Poulenc, Inc., 247 F.3d
574, 586 (5th Cir. 2001). A duty may arise for these purposes if, inter alia, a
confidential or fiduciary relationship exists between the parties or if one
party voluntarily discloses a portion of the material facts "so that he
must disclose the whole truth . . . lest his partial disclosure convey a false
impression." Id.
After thoroughly
reviewing the parties' motions, briefs and exhibits, the Court finds that
Abramson has failed to establish that Lloyd's either knew about or fraudulently
concealed LWMA's negligent underwriting activities in order to obtain the
English judgment. Abramson relies [*15] on Defendant's Exhibits 5-8
to show that Lloyd's knowingly concealed LWMA's negligent underwriting
activities in order to obtain the English judgment. (Def.'s Br. at 4.) The
documents contained in Defendant's Exhibits 5, 6 and 7 are three letters
written by Lloyd's in 1997 and 1998, informing Abramson that it had discovered
a £ 250.00 error in Abramson's account with LWMA and offering to reimburse him
for the amount in exchange for an assignment of Abramson's right to claim it
from the liquidator of LWMA. While Abramson alleges that these letters show
that Lloyd's knew about the more significant, £ 181,709.00, error in
Defendant's account, this Court can not see how these letters provide any
evidence that Lloyd's either knew about or purposely concealed LWMA's negligent
underwriting activities. Indeed, if anything, they show Lloyd's good faith
effort to inform Abramson of a negligible error in his account and to
facilitate Abramson's compensation for the amount in arrears. The Court
similarly finds that the documents contained in Defendant's Exhibit 8 are
unavailing to Abramson. Defendant's Exhibit 8 contains two letters from Ernst
& Young and Arthur Anderson, the joint liquidators [*16] of
LWMA, informing Abramson of his £ 181,709.00 claim against LWMA. While these
letters provide evidence that Abramson has a claim against LWMA for negligent
underwriting, they do not provide evidence that, Lloyd's either knew about,
discussed, or concealed his claim in order to obtain the English judgment
against him. Taken together, the Court finds that these five letters, which
constitute the entirety of Abramson's evidence, are insufficient to satisfy his
burden of establishing, "beyond peradventure," that Lloyd's obtained
the English judgment by fraud. n2
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n2 The Court also
finds that Abramson's argument, regarding his inability to make full and fair
defense in the English action, is without merit in the absence of any evidence
of fraud. (Def.'s Br. in Supp. of Mot. for Summ. J. at 3-4.) This finding
follows directly from the precedent cited in Abramson's supporting brief. See
Harrison v. Triplex Gold Mines, 33 F.2d 667, 671 (1st Cir. 1929)
("In any case to justify setting aside a decree for fraud, it must appear
that the fraud practiced . . . prevents him from making a
full and fair defense . . .").
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Furthermore, even if
Abramson is able to establish that Lloyd's knew about and failed to disclose
the negligent underwriting claim against LWMA, the Court fails to see how those
actions would have impacted the amount of the English judgment. To wit, under
the General Undertaking signed by Abramson on August 22, 1986, Abramson agreed
to comply with the provisions of the Lloyd's Acts of 1871-1982. (PL's Ex. 1.)
These Acts conferred power on the Council of Lloyd's to enact and enforce
byelaws for the purposes therein provided. Id. As the R&R plan
was enacted as a byelaw by the Council of Lloyd's in 1996, Abramson was
accordingly bound by its terms which included, inter alia,
conformity with the Equitas reinsurance contract. (PL's Ex. 4 at 54.) As stated
above, the Names' respective liabilities for the Equitas premiums were derived
pursuant to a formula contained in the Equitas reinsurance contract and, by
virtue of clause 5.5 of the contract, these premiums were payable in full and
not subject to any set offs in respect to claims against third parties. Id. at 66. As
a result, the Court finds that Abramson's claim against LWMA is simply that, a
claim against LWMA -- it havingno [*18] bearing whatsoever on
Abramson's obligation to pay the amount in Equitas premiums that Lloyd's
obtained by means of the English judgment.
For the reasons
stated, the Court finds that Abramson has failed to satisfy the burden of
establishing his affirmative defense that Lloyd's obtained the English judgment
by fraud. Furthermore, the Court also finds that Abramson has failed to satisfy
the burden of rebutting Lloyd's Cross Motion for Summary Judgment. As a result,
the Court DENIES Abramson's Motion for Summary Judgment Denying Recognition of
the Foreign Judgment and GRANTS Lloyd's Cross Motion for Summary Judgment
Seeking Recognition of Foreign Judgment pursuant to Federal Rule of Civil
Procedure 56.
IV. Conversion of
the English Judgment
After determining that
the English judgment will be recognized, the Court must now consider the rate
at which the judgment will be converted from British pounds to U.S. dollars.
The parties' Motions reveal that they are in disagreement over this issue.
Lloyd's asserts that the judgment should be converted at a rate of 1.6467 U.S.
dollars to British pounds, the exchange rate on the date of the
final [*19] English judgment. (Pl.'s Br. in Supp. of Cross-Mot, for
Summ. J. at 12-13.) Alternatively, Abramson claims that the judgment should be
converted at a rate of 1.51 U.S. dollars to British pounds, the rate provided
in the Equitas reinsurance contract. (Def.'s Mot. for Summ. J. at 3.)
In support of its
argument, Lloyd's relies on the principle, articulated in El Universal,
Compania Periodistica Nacional, S.A. de C.V. v. Phoenician Imports, Inc., 802
S.W.2d 799, 803-04 (Tex. App. -- Corpus Christi 1990, writ denied), that Texas
courts are given the discretion to convert foreign judgments to U.S. dollars
based on the rate of exchange applicable on either the date of the initial
breach or the date of the final judgment. (Pl.'s Br. in Supp. of Cross Mot. for
Summ. J. at 12). Unlike the precedents cited by Lloyd's, however, the parties
in the instant case had contractually agreed upon an exchange rate in the
Equitas reinsurance contract. See (Pl.'s Ex. 4 at 83)
("Where any amount payable by a Name hereunder in respect of his Name's
Premium is an amount denominated in U.S. Dollars . . . the name shall instead
pay an amount in sterling being one pound sterling for each [*20] US
$ 1.51.") Thus, in an effort to capture the true intent of the parties,
the Court finds that the rate at which the English judgment should be converted
is the rate articulated in the Equitas reinsurance contract, 1.51 U.S. dollars
to British pounds. n3
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n3 In this regard, the
Court fails to see the significance of Lloyd's argument that the Equitas
reinsurance contract does not contemplate a reciprocal exchange rate. (Pl.'s
Br. in Supp. of Cross-Mot. for Summ. J. at 12-13.)
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The Court accordingly
GRANTS the portion of Abramson's Summary Judgment Motion which alleged error in
the conversion of the English judgment from British pounds to U.S. dollars and
holds that the English judgment of £ 245,628.62, which includes the principal
amount of £ 218,714.73 and £ 26,913.89 in interest, will be performed at a rate
of 1.51 U.S. dollars to British pounds. The judgment awarded Lloyd's by the
English Court, being equivalent to $ 370,899.22, is due upon issuance of this
Order.
It is so ordered.
Signed [*21]
this 29 day of March 2004.
JORGE A. SOLIS
UNITED STATES DISTRICT
JUDGE