*1 However, allegations opinion malicious. these We are of the that the in petition are mere conclusions and not admitted not were stant does contain averments by the motion Kan- principles to dismiss. Brisboise v. substantive invoke of law City Co., Mo.Sup., sas Public Service 303 which entitle to relief. 621; 619, S.W.2d Mercantile- Therrien v. Judgment affirmed. Banc, Co., Commerce Bank & Trust 149, 708, Mo. Plain- S.W.2d 711 [3-9]. All concur. allege physical impact bodily
tiff does not
injury.. petition states contends
a claim relief under one of four (1)
theories: as a cause of action for fraud,
trespass, a of action for (2) as cause (3) cause of action for invasion LEUZINGER, Appellant, Leta M. privacy, (4) cause of action v. intentional mental disturbance of LYNCH, PIERCE, FENNER & MERRILL tranquility. and emotional SMITH, INC., corporation, Defendant, Co., In Zuber v. Clarkson 363 Mo. Const. 352, 355, 54, 52, said: “In S.W.2d we City Bank, Respondent. North Kansas State petition determining if a states a claim or action, peti- cause of the averments of the LEUZINGER, Appellant, Leta M. construction, given tion are to be a liberal v. according the averments their reasonable LYNCH, PIERCE, MERRILL FENNER & implication and fair intendment —fair SMITH, INC., corporation, Respondent, indulged should be from the facts stated. considered, petition So be held should City Bank, North Kansas Defendant. if sufficient its averments invoke substan- principles entitle tive of law which 51034, Nos. 51168. A
to relief. is not to be held insuf- Supreme Missouri, Court of merely ficient because of a lack of definite- En Banc. certainty allegation ness or or because 8, informality statement an essen- Nov. 1965. Marble, Boyer Guidicy tial fact. Ter- Modify Rehearing Motion to or for Denied 742; Co., Mo.Sup., razzo & Tile 246 S.W.2d Dee. Co., Inv. 354 Mo. Gerber v. Schutte City 25; Stephens v. Kansas S.W.2d 601; Co., 835, 191 Gas 354 Mo. 509.250,
Section RSMo V.A.M.S.” appropriate set trespass, in an
Forcible circumstances, extreme could constitute Here, however, outrageous conduct. trespass. plead does forcible pleaded constitute what
The facts do not be extreme and out-
could be considered to allegation
rageous There is no conduct. by defendant’s the statements grossly insulting.
employee were *3 Havener, Canfield,
Darrell L. Robert C. City, respondent. Lynch, Kansas Pierce, Smith, Inc., Watson, Ess, & Fenner Enggas, Marshall & Kansas coun- City, sel. Branton,
Wm. Coleman Kent E. Whit- taker, City, respondent, Kansas North Brewer, City Bank, Myers Kansas & Branton, City, Kansas of counsel. HOUSER, Commissioner. Leuzinger against Action Leta M. *4 (hereinafter brokerage firm “Merrill $29,562.82 Lynch”) and a bank to recover for obligations breach of defendants’ Lynch brokers and bankers. Merrill filed a summary motion judgment, for sustained as The defendant. dismiss, filed a motion sus- which was tained Separate appeals as to the bank. were by plaintiff. taken to this court appeals two hearing, were for consolidated and will opinion. be decided in one conceded,undisputed These are the facts: Plaintiff is Leuzinger. the wife of C.W. Early July, plaintiff made a tele- phone call to an account executive of Mer- Lynch. rill plain- After herself identifying tiff employee stated another of Mer- Lynch rill previously conferred with husband, her and her she wanted to open a securities account the broker- with age account, firm. type Asked what plaintiff open said that she wanted purchased, account where securities can paid cash, sold, proceeds for in credited to the account. Plaintiff instructed the account put executive to the account in the name of her and her husband tenants. The executive mailed to home regular address the and cus- firm’s tomary Right Account with Sur- “Joint form, vivorship Cash Transactions” to be signed by husband, both and her dated, and returned so account Langworthy, Cleary, Robert opened. days B. R. could be Several later the John City, appellant, Linde, card, Kansas Thom- new bearing signatures son, VanDyke, Langworthy, Fairchild & W. C. Leuzinger Leuzinger, M. Leta City, July Kansas of counsel. dated was returned to the of- Lynch. reproduced fice Merrill It day, in said account. On that request as follows: written or unwritten or authoriza- by plaintiff, tion request but of W. C. RIGHT ACCOUNT WITH Leuzinger, Lynch “JOINT Merrill sold all of the OF SURVIVORSHIP account, securities in the reduced the cash, same to and received and held for the CASH TRANSACTIONS account of W. C. 16 1959 Stencil Here JUL $59,125.65. the sum of prior On and ( C. LEUZIN- NA-4 WALTER —MR. December 1962 a checking GER standing in the names of LETA MRS. LEUZINGER M. and W. C. Leuzinger, was maintained at 403-Y, BOX ROUTE #6 request defendant bank. On W. C. PARKVILLE MISSOURI en- disbursed the (_653-16974 tire joint brokerage ac- LYNCH, PIERCE, MERRILL “TO: $59,125.65 count its pay- check for FENNER & SMITH INCORPORATED City able to “North Kansas Bank account of W. and Leta M. “Dear Sirs: Leuzinger” and delivered to W. C. respect “With our account with Leuzinger, without written or unwritten right survivorship we confirm that: plaintiff. or consent of “1. In pertaining all matters the ac- *5 presented Leuzinger the check the bank to you may upon count act orders and in- requested and deposited it that in the structions from either of us. joint checking accepted account. The bank us, Upon “2. the death of either of all the check joint checking to' the securities, property funds and in the ac- account, the endorsing bank the check as property count shall he the sole of the follows: survivor. “ foregoing “3. The shall to also extend ‘Credited to the account of successors, your by merger, consolidation THE NAMED PAYEE WITHIN otherwise, assigns. and guaranteed Absence of endorsement KANSAS CITY STATE BANK (Signed) Leuzinger C.W. ” City, North Kansas Missouri’ (Signed) Leuzinger Leta M. Upon proceeds the of the of the crediting 9, July “Date 1959” joint checking check to the account C. W. Leuzinger, without the written or unwritten by Plaintiff instructed tele- the executive plaintiff, im- authorization or consent of phone purchase to certain for the securities mediately the thereafter withdrew from joint account, which instructions were car- proceeds check in account the entire of the Leuzinger ried out. that transaction Mr. $59,125.65, appropriated the and the sum of gave no instructions or directions. From same to own use. his July through December Lynch petition the approximately Merrill Plaintiff’s admitted that bro- handled kerage hundred account maintained the names transactions for the was account. Leuzinger exception Leuzinger Leta M. With the of two W. C. and transactions rights which of survivor- place shortly took “as tenants with after the account opened, ship, was plaintiff and not as tenants in common.” gave which the instructions, theory against Merrill all of the as of these transactions were brokerage firm breached pursuant Lynch the undertaken to instructions from was that agreement with Leuzinger. W. and violated the terms of its C. On December plaintiff Lynch securities, by out the disbursing Merrill held certain the funds by which plaintiff, brokerage Leuzinger and of W. C. Lynch they clearly that Merrill re- establish specifically so as to drawn was judgment. entitled to plaintiff was not personal quire endorsement the Leu- to by delivering and the check W. argument Plaintiff’s runs in this wise: approval zinger the consent or without proceeds resulting the The securities and writ- plaintiff. pleaded the by from their sale were held the Leuzin- required Lynch Merrill agreement ten gers “as or tenants tenants require personal so as to her draw checks entirety.” Each interest endorsement, any such check and to deliver whole, a fact Merrill known to Leuzinger, jointly plaintiff and W. C. Lynch. Lynch right While Merrill had the them, upon of both order upon to act the order of husband the check to delivering securities, agreement to sell the author- did, knowledge it as with Lynch izing Merrill to act orders and pro- plaintiff had a interest in the instructions from either husband or wife ceeds, Lynch possible made it Merrill Lynch did not entitle Merrill to distribute to divert entire amount proceeds jointly did, owned as it without use, deprive proceeds to his acquiescence plaintiff’s knowledge, con- plaintiff therein, thus of her interest Lynch sent. When Merrill received Lynch “in legal effect converted proceeds of the sale of the securities held $59,125.65.” to its own use the said capacity, them a fiduciary owed plaintiff pro- duty, trustee of petition pleaded against Plaintiff’s ceeds, keep plaintiff fully informed of obligations bank breached its pertinent all facts Since transaction. acted without the account was maintained in the proceeds the check to depositing names of “it her husband joint checking personal account without would have been correct” consistent and plaintiff thereon, endorsement of and in pay- for Merrill issue its check paying thereafter the net Instead, able to and her husband. check to W. C. *6 Lynch Merrill check whole made the for the written plain- consent or authorization of proceeds payable of the of the sale charged tiff. Plaintiff con- the bank with knew, bank in a or manner which “it must transferring version negotiating and known, in said have could result Leuzinger W. C. the proceeds of the check deprivation of plaintiff’s property”; did, as it endorsement thereby Lynch thus and Merrill “breached approval, by and “wrongfully” enabling agreement”; its “exercised unauthorized Leuzinger W. C. divert entire amount of acts” dominion over the and funds proceeds of use the check his own “wrongfully misappropriated” or “caused deprive plaintiff and of interest therein. her misappropriate allowed another to proceeds,” consequently Lynch Merrill Defendants’ answers admitted the facts is liable to for breach of its fidu- pleaded, legal consequences but denied the ciary duty. plaintiff attributed to them. support In of her thesis appeal judgment summary On the from cites 12 Brokers 27 and Martin § Lynch: C.J.S. Merrill for Hieken, Mo.App., 161, 340 for the S.W.2d general relationship rule broker point: Plaintiff’s sole Error in sustain- that the of summary fiduciary to his customer ing judgment; for and confiden the motion character; obliga tial pleadings that the broker’s on file did affidavits imposed upon Lynch’s showing exacting tions are as those sustain Merrill burden trustee, duty keeping summary judgment that it include was entitled to fully facts law; contrary as a customer informed of all matter of that on the 576
pertinent transaction; A, signed writing, Feltz v. Pav Exhibit lik, simple, Mo.App., propo plain, unequivocal language for the S.W.2d joint deprive sition Lynch that one tenant cannot she confirmed that Merrill could act upon jointly the other interest in orders and instructions from his owned either it; property by appropriation his or Leta M. John 898, all McCluney, Mo.App., pertaining ston v. matters S.W.2d to the account. “All term, embracing for the rule where a matters” is an trust arises all-inclusive broker sells his the termination customer’s bonds without of the account and including ap method, knowledge directions as to the and man- latter’s or consent and mode propriates ner in disposes for which the final disbursement of funds accomplished his should be purposes, closing Brokers out § C.J.S. general grant authority for the rule that a is liable account. The contained broker limitations, exceptions wrongfully provisos. as for a no conversion where he particular, require misappropriates, it did not sells or exercises disbursements otherwise from ownership pay- the account to unauthorized be made acts of dominion or over able to recognize a customer’s and Leta M. Leu- funds. We zinger, both, general authorities, or to rules stated in the order of such these require manner they Leuzinger’s but are as to Leta M. assistance. little None of personal endorsement, by plaintiff the cases contends. cited arises out Neither the petition facts similar nor at- to the situation exhibit now before tached to the indicates by plaintiff Court. No that Merrill is cited decision, question viz., on the Lynch whether approval obligated to obtain the a broker is joint liable to one tenant of a of, inform, consent or to ten- joint brokerage account as for a breach of ant following before the orders and in- trust, misappropriation or conversion of structions rights of the other. Plaintiff’s where, knowledge, funds without the governed by are which she writing acquiescence tenant, or consent of that signed, may complain and she not now tenant, but at the direction of the other did that which she authorized with whom long-con- the broker has had a Haeussler, that firm to do. Esmar v. tinued course dealing under a written Mo.App. agreement authorizing the broker act tenant, instructions from either general duty Pursuant to the aof the broker issues a check to clear the good stockbroker to act in faith with cus payable designated to a making complete tomers and to make a full tenants, both *7 concerning disclosure material of all facts a and deposited after the check is in the transaction, if the knows of stockbroker designated joint bank gave the tenant who and lead facts circumstances which would the wrongfully directions the broker to con- diligent person ordinarily careful verts the whole of the account to his bank joint joint a believe that one tenant of purposes own uses and to the exclusion of brokerage process account was in the of joint the other tenant. wrongfully converting uses to his purposes joint the interest of the other liable, brokerage firm is not for tenant, duty a to inform the latter would three reasons: arise, be and in such case the broker would disbursing
derelict the whole account Lynch suspicion, (1) gen- joint Merrill had tenant under broad the authority upon obtaining informing eral to act the instructions first the other and alone; approval Leuzinger of which consent and to the disbursement. why reasons sufficiently dis- This leads us into the other was inclusive to cover the Lynch is not liable. joint bursement of the fund the account. Merrill of joint is Lynch acting the no (2) The in which Merrill business. There manner showing Lynch actual or Leuzinger’s instructions that Merrill had executed W. C. any or circum- notice of fact inconsistent with interest constructive was not reasonably put which stance would have a in the diligent fiduciary notice or careful and on nothing facts (3) is in the admitted there suspicion instruc- Leuzinger’s that W. C. did said to indicate that W. respect part tions with to the were of check anything which under the circumstances plan part on or scheme his to sever the suspicions aroused the of an would have or that funds from the estate his ordinarily diligent careful and stockbroker. operandi wrong- was calculated to modus deprive plaintiff fully her in the of interest by Lynch The check issued Merrill fact funds. The that W. was payable City was made Kansas funds, “North withdrawing all of the alone and of Bank account of W. C. itself, duty sufficient would not be to raise Leuzinger.” con and Leta M. Lynch Plaintiff notify plaintiff. on Merrill It is proceeds cedes that “The was made check significant plaintiff and we observe that ap payable to the Bank for the benefit of deprived was her interest in funds husband,” pellant and her and that the check any not by wrongful misappropria- act or proceeds on showed its face that the part Lynch tion on Merrill while the cheek constituted owned jointly funds its were under control ac- and it was plaintiff had an countable, interest. Plaintiff by wrongful plain- but act of specifically was named Her in the check. joint property tiff’s husband after proceeds interest was Lynch been Merrill disbursed to W. C. clearly recognized sufficiently Leuzinger, person defined authorized to receive preserved. Considering the form safely the funds had been them—after which -the check was ordered to transferred a bank account in which payable it Lynch was reasonable for Merrill had a interest. to conclude that being funds were withdrawn from On the dismissal: appeal the bank’s from transfer this device to another point: sustaining account. truth and fací that Plaintiff’s sole Error exactly happened. what For all intents and motion dismiss for failure purposes, viewpoint any from the upon rea state facts which relief could be sonably stockbroker, granted. careful the facts diligent argues Lynch petition impress withdrawal from the Merrill ac stated on the position trust appeared count wholly to be consistent with check; the check as bank received wishes, purposes intention both husband, trustee for both and her owners of the account. duty insure” imposing the bank “to
Nothing deprived her Leuzingers not be interest indicates any difficulties, jointly proceeds; were its having marital or that owned that on payment gave face the bank apprised the form of lack *8 harmony as actual notice the funds constituted joint between the tenants. W. that Leuzinger plaintiff jointly en- owned in which had gaged interest; in had that this notice the period 98 with transactions over a years “negotiated proceeds check Leuzinger in bank the said all W. C. consent, obtaining” plaintiff’s wife, acted alone without or and not in concert with his endorsement, advising her her nothing during and there is and without to indicate that pre- plaintiff that the. check had been dealing this considerable course the fact payment. the bank any exception had sented for Therefore taken whatever authority acted and in violation of manner in which without her husband was trans- concerning inquiry the duty making check depositing in the duty its to every trans- account; background bona ob- joint it should have fides for checks de- the action out of which offered authority deposit to tained arise, stop notify the other posit in- or to can be money. Plaintiff claims it makes depositor of them when one check in which the ferred from the manner account, seriously deposit in would Leuzinger intended was drawn that W. C. transactions. interest; interfere commercial with deprive plaintiff her to was named The form in which the bank payable check ordering the made a trustee payee did not constitute the bank ini- the bank W. “was able did assume the nor the bank Leuzingers, for plot with- tiate and consummaté his devious accepted the the duties of trustee when it bank, by knowledge,” out her and that the terms, effect, although deposit. not its the to be failing duty, allowed scheme special was a Furthermore, contends that this plaintiff, says consummated. posi- deposit, the the statute, 362.470, whereby bank assumed joint deposit the V.A. § in reference tion of a bailee trustee M.S., permit or did not authorize the bank spe- This, however, deposit. was not the funds withdraw the pleaded deposit, that there cial for it not account, the under facts of from the agreement, express implied, any be- was or this case. bank, the or tween W. C. bank, deposit bank not We have determined that the direction to the that the accepting its the assets the bank and rights commingled was within lawful the with intact, deposit, depositing kept distinct endorsing the check and as its but be used account, apart it to the without funds the bank securing from purpose. plaintiff. separate deposit specific endorsement of The check was for a bank, payable having not to the bank such con- Not been made with attached, deposit Leu Leuzinger and Leta M. and W. C. ditions or limitations notwithstanding deposit, The names of zinger. general awas appeared may on the check her husband bank known of the source vr have payees, apparently pur deposited. money Hershey not as but for the character of the pose directing payee Co., bank as to the Northern Trust 342 Mo. identity persons general of the who owned the In the case of a [5]. represented by for deposit relationship funds the bank between depositor whose it was It was issued. and the is that of debtor and cred- necessary notify plaintiff itor, que for the bank to trust. and not trustee and cestui deposit Butler, Mo.App. that this check had been offered for Butcher v. husband, 564; de her that the or bank Banks S.W. § Am.Jur.2d posited it and credited it ac to their could be No claim which relief nothing count. There form of was against the bank granted is stated pre or the check in the fact that it was wrongfully of the accepting deposit, otherwise, sented for would or check. charge the Leu bank with notice of W. C. zinger’s appropriate wrongfully intention to Finally, a claim state does the of the sale of the securities allowing joint de- against the bank brokerage “ini that he was deposited, positor to the funds withdraw tiating consummating” plot.” a “devious de- of the other When check was offered to the bank for positor?
deposit the presume, bank bound solely action defends its contrary,
the absence of
notice to
statute,
issued,
joint deposit
basis
the check had
on the
been
and that was
§
*9
V.A.M.S.,
provides in
362.470,
effect
being deposited,
prop
which
good
faith and for
deposit
in the name
purposes.
charge
er
when a
is made
of
To
bank with
depositor
term.
It
is
person
general
and in
and often erroneous
another
either,
applied
ac
paid
indiscriminately
form be
to
or the survivor
often and
common,
them,
deposit
any
of
such
counts
are held as
additions
tenants
by
persons,
entirety,
joint
as
tenants with
by
thereto made
either
such
as tenants
of
persons
survivorship,
property
right
shall become the
and to accounts which
of such
of
joint
may
simply
Harrell
paid
carry authority
tenants and
be
either
to check.”
during
both,
Barks, Mo.App.,
the lifetime
v.
360.
or to the sur-
son
S.W.2d
of
joint
may
may
vivor of them after the
of
of A
bank account
or
not be a
death
one
depending
deposit
purview joint tenancy,
them. A
intention
made within
instance,
parties.
regardless
presumptively
362.470 is
of the
For
§
depositors
tenants,
deposit,
joint tenancy
a
not
joint
subject
the form
is
of a
by
joint
withdrawal
created
made
either without the consent
where the account is
purely
of the other.
and without intent
convenience
any property
to create
interests.
C.J.S
applicable
Whether
362.470is
§
Tenancy
3, p. 920.
is not
§
Joint
depends upon
form,
manner and circum
simply
to be
because she alleged
foreclosed
stances
joint
under which the
bank account
a “joint
that this
account.”
was
was established and
peti
The
maintained.
plead
tion does not
or attach as an exhibit
Eliminating
consideration
from
any
printed
written
depositors’
362.470,
form
statute,
or
rec
we
joint deposit
§
agreement.
Clabbey
All
pleading
we
from the
know
lately announced
the rule
ognize
is that the checking
Bank, Mo.App.,
account “stood in the
First National
v.
joint
names of
C. Leu
and duties
rights
[3], that
S.W.2d 738
zinger.”
nothing
There is
further to indi
names
those in whose
bank and
as between a
cate the exact form
ordinarily
or manner in which the
deposit is
is
joint
credit
stood, except
bank account
implied;
contract, express or
governed by
“joint checking
plead
account.” From the
de
persons make a
several
and that where
ing we conclude that the
on
account stood
must have
the bank
posit to their
credit
the bank records in the
names
appended
“W.
them
signatures
all of
Leuzinger and Leta
Leuzinger.”
M.
fund,
There
the risk
or take
against
a check
nothing
or in
attached
[4];
payment.
S.W.2d l. c. 741
exhibit to indicate
334;
that the
account was
10 Am.
Banking
Banks and
§
C.J.S.
payable
form
to either or the survivor of
“Permitting with
Banks
§
Jur.2d
them,
up
or that in setting
this account the
without au
joint account
from a
drawal
parties complied with 362.470.
may
Where no
depositors
thority
§
from all
compliance with 362.470is shown there is
depositor
§
liable to a
render the bank
presumption
no
tenancy.
authorizing
withdrawal.” 10
Jenkins
Am.Jur.2d
Meyer, Mo.Sup.,
v.
absence of a other, spouse some other position bank takes for the or one money so de having alleged arrangement argued contractual only posited paid that she and her either may husband maintained them, ex thereby may not be the bank the funds withdrawn admitted tenancy. signed that this both cept was a This on checks orders does not cannot, expression ‘joint is, wife; follow. that the bank “The husband and account* special authority, pay money continued out long usage, common a rather without *10 580 310, Banking Co. signed Super. also Gish on checks 314. See such a
of
hank
720, 174
Adm’r, Ky.
reason
163
S.W.
spouse
This for
v. Leachman’s
by one
alone.
the
492, L.R.A.1915D,
of a hus
920.
deposit
joint names
a
tenancy
presumed to be
band and wife is
agency or
plead any
Plaintiff did not
McIntyre, Mo.
McIntyre v.
by
entirety.
the
authorizing
arrangement
other contractual
Sup.,
[7];
In re Baker’s
377
421
S.W.2d
or
either
pay
the bank to
on the
of
238;
Estate, Mo.App., 359 S.W.2d
plain-
only
contrary,
the
one of them. On
Coleman, Mo.
Poplar
v.
241
Bank of
Bluff
pleaded
the
“acted without
tiff
188;
600,
Brad
App.
v.
Craig
240 S.W.2d
obligations
of its
and in violation
1081,
586,
ley, Mo.App.
153
134 S.W.
* *
*
paying
in
the said
Savings &
Gosztonyi
See also Madden v.
net
said
the
of
Co.,
476,
624, 117
200 A.
Trust
331 Pa.
au-
written
or
check without the
consent
[12],
904
The same incidents
A.L.R.
plaintiff.”
thorization of
entirety in
tenancy by
affixed
the
are
to a
deposit.
property attach to such
other
plain
As
on
the case now stands
Craig Bradley, supra.
inci
v.
One of the
claim
pleading, plaintiff has
tiff’s
stated a
entirety
tenancy by
the
is that
dents
granted against
be
which relief can
thus
any
affecting
property
act
title to
the
bank,
the
and it
error to sustain
the
Lumber
by joint
Badger
held must be
act.
the bank.
motion to dismiss as to
1203,
Mo.App.
Pugsley,
&
Co. v.
Coal
Accordingly,
judgment
No.
the
in case
alone,
husband, acting
can be it either or one of them HOLMAN, (dissenting). Judge except upon cannot withdrawn checks opinion signed respectfully from the by them, orders I dissent both of “and regard to Merrill pay differently only peril. Judge bank could HOUSER. at its au- agreement put it is power Lynch, my To hold view otherwise would either upon destroy it to orders of either to entireties thorized act estate pur- regard to the by withdrawing applying the fund it to tenants related use, securities and his or her chase and sale of joinder without the spe- However, the absence of acquiescence spouse; the other which is matters. did directly (which otherwise opposed cific authorization and character nature entireties, case), I think disburse- of a true not exist this estate like this one.” re- joint tenants was Co., funds due the Fayette Milano v. Title & Pa. ment of Trust *11 quired to made to both of them and could paid
not be either tenants or
to a party third for their benefit. regard Bank, my view money paid to it “for account of W. Leuzinger” and Leta M. was a
special trust fund and no au-
thority it in existing account
that the Leuzingers may have had in that
bank without the consent and authorization
of both of them. Without such author-
ization, only the bank could hold the funds paid
until to both of said beneficiaries.
I would reverse and remand as to both
defendants for a trial on the merits. Missouri, Respondent,
STATE of GARTON, Appellant.
Charles
No. 51288.
Supreme Missouri, Court of
Division No. 1.
Nov. 1965. Rehearing
Motion for and to Transfer Court En Banc Denied Dec.