Compass Bank v. King, Griffin & Adamson P.C.
388 F.3d 504
5th Cir.
2004
Check Treatment
Docket

COMPASS BANK, Plaintiff-Appellant, v. KING, GRIFFIN & ADAMSON P.C.; Lawrence D. King, Defendants-Appellees,

No. 03-11234.

United States Court of Appeals, Fifth Circuit.

Oct. 18, 2004.

the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.

Our inquiry into the potential rationale of the first jury, then, may entail an expansive exploration of the record, but must stay within the bounds of a rationale inquiry.3

The act of placing money in the trunk is both an intervening and discrete event. It is intervening in the sense that it produced the effect of relieving Garcia of any concern over possession of the money. It is discrete because it is a definitive action that is factually distinct from the action of killing.

Moreover, the Moran jury reasonably could have believed that Defendants completed the robbery before killing Moran. Garcia and the other Defendants perhaps killed Moran only because he witnessed the robbery and murder of Lynn Garza. After Moran gave Garcia the stolen money, Garcia placed it in the trunk of his car. At that point in time, the robbery was completed, and the subsequent killing of Moran was for the purpose of eliminating him as a witness rather than in furtherance of the theft. Garcia‘s own confession, the state claims, supports this understanding; Garcia stated: “We had no intentions of killing these guys but one got killed so both got killed.” (emphasis added). This statement implies that Garcia believed it necessary to kill Moran, not for the purpose of robbery, but rather because Defendants already had killed Lynn Garza.

Although

requires that this Court view the evidence with “rationality and realism,”
, this standard must be considered under the AEDPA standard for challenging a jury‘s factual finding—i.e., the finding must be “an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2) (West Supp. 2004). The inference that the Moran robbery was completed before Garcia killed Moran does not rise to the level of unreasonableness. Because a reasonable body of evidence supports the this factual inference of the first jury, this Court will not entertain the reversal of the second jury‘s verdict under double jeopardy grounds.

III. CONCLUSION

For the foregoing reasons, we REVERSE the decision of the district court. Garcia‘s petition is remanded to the district court with instructions to DENY.

William Gray Compton, Michael E. Mears (argued), Ryan H. Downton, Andrews & Kurth, Dallas, TX, for Plaintiff-Appellant.

Alan W. Harris (argued), Tania Marie Hepfner, Piper Rudnick, Dallas, TX, for Defendants-Appellees.

Before DeMOSS, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:

Compass Bank appeals the dismissal of its complaint against King, Griffin & Adamson, P.C. and Lawrence King. It also moves this Court to certify the following question to the Texas Supreme Court: whether Texas uses an actual knowledge test or a foreseeability requirement for negligent misrepresentation claims against accountants. Compare RESTATEMENT (SECOND) OF TORTS § 522 (1977) (requiring actual knowledge), with

(requiring foreseeability). While certifying the question would be “determinative” in the sense that it would resolve the case, “we do not use certification as a panacea for resolution of those complex or difficult state law questions which have not been answered by the highest court of the state.”
(quoting
). In light of the recent decision in
, and the cogent and sound arguments of the district court,
, we are persuaded that the Restatement‘s actual knowledge standard applies to accountants in Texas. As a consequence, we deny the motion for certification.1

For those same reasons, the decision of the district court is AFFIRMED.

DeMOSS, Circuit Judge, dissenting:

I respectfully dissent from the denial of Compass Bank‘s motion to certify the question of whether Texas uses an actual knowledge test or a foreseeability test for negligent misrepresentation claims against accountants. The Texas Supreme Court in

, held that attorneys could be subject to a negligent misrepresentation claim under Section 552 of the Restatement (Second) of Torts with no requirement of privity.
. The court stated that “a section 552 cause of action is available only when information is transferred by an attorney to a known party for a known purpose.”
. Thus, the court applied the actual knowledge test to attorney negligent misrepresentation cases.

The main case which Compass Bank relies on for its assertion that foreseeability is the proper standard to use for accountant negligent misrepresentation cases,

, strongly approved of a limited foreseeability test for accountants:

To allow liability to turn on the fortuitous occurrence that the accountant‘s client specifically mentions a person or class of persons who are to receive the reports, when the accountant may have that same knowledge as a matter of business practice, is too tenuous a distinction for us to adopt as a rule of law. Instead, we hold that if ... an accountant preparing audited financial statements knows or should know that such statements will be relied upon by a limited class of persons, the accountant may be liable for injuries to members of that class relying on his certification of the audited reports.

. This Court has also previously acknowledged that
‘s holding indicates that “Texas law is indeed less restrictive than the Restatement.”
(noting “actual knowledge of a particular plaintiff ... is not necessary if the defendant [accountant] should have had this knowledge“).1

However, as sure as the majority feels the Texas Supreme Court would apply the more restrictive actual knowledge standard to accountants, I note that at least one federal district court has gone the other way.

(“Texas courts have expanded the parameters of the tort of negligent misrepresentation in § 552 to include not only those that the defendant actually knows will receive the misrepresentation, but to those the accountant should know will receive it.“) (citing
).

Because this Court has the sound discretion to certify questions,

, and in my judgment there is not sufficient controlling guidance from the Texas Supreme Court in
, I would certify this question. In my view, certifying the question to a state supreme court is a preferable course of action to our trying to make an Erie guess as to the question of state law involved.

Notes

1
1. The dissent argues that this question should be certified to the Supreme Court because there is not “sufficient controlling guidance from the Texas Supreme Court in
.” Dissent at 506 (DeMoss, J., dissenting). However, the Texas Supreme Court has adopted the Restatement for torts of negligent misrepresentation in toto. See
. If that court had fashioned exceptions to the Restatement for different professions, we might be persuaded that there is an open question in this case. It has not done so. Without a clear line of Texas appellate court holdings to the contrary, there is no reason to think that the Texas Supreme Court would deviate from its well-established rule and therefore no reason to certify the question to that court. 1. I acknowledge that in an unpublished opinion, the same appeals court that decided
has now cited
and applied an actual knowledge standard in the context of a negligent misrepresentation claim against accountants.
. I think Tara Capital is a very weak reed for the majority to rely upon.
3
3. The district court rejected the line of reasoning being pursued by this court when the argument was presented by the government, stating that “the timing of Moran‘s murder was not at issue in the Moran trial.” This approach neglects the searching assessment dictated by
.
.