1 United States Court of Appeals,

Fifth Circuit.

No. 94-40467.

FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff-Appellant,

v.

John HENDERSON, Jr., Defendant-Appellee.

Aug. 21, 1995.

Appeal from t he United States District Court for the Eastern

District of Texas.

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

A cting in its corporate capacity as manager of the Federal

Savings and Loan Insurance Corporation (the FSLIC) Resolution Fund,

plaintiff-appellant the Federal Deposit Insurance Corporation (the

FDIC) appeals from the take-nothing judgment entered against it.

As we agree with the district court's determination, based on a

jury finding, that all the FDIC's claims are time-barred under

Texas law, we affirm.

Facts and Proceedings Below

This action arises out of the failure, in 1988, of two

state-chartered, federally insured financial institutions, Home

Savings and Loan Association (Home) of Lufkin, Texas, and its

affiliate Southland Savings Association (Southland) of Longview,

Tex as. Defendant John Henderson (Henderson) was at all relevant

times president, chief executive officer, and chairman of the board1 The Federal Home Bank Board (FHLBB) declared Southland

insolvent and appointed the FSLIC receiver on August 18, 1988.

The FHLBB did the same to Home on December 22, 1988. After

becoming sole receiver of Southland and Home, the FSLIC, acting

as receiver, sold certain of the institutions' assets to the

FSLIC in its corporate capacity. Among the assets purchased by

the FSLIC in its corporate capacity were the rights and claims

asserted against Henderson in this case. Upon the enactment of

the Financial Institutions Reform, Recovery, and Enforcement Act

of 1989 (FIRREA), Pub.L. 101-73, 103 Stat. 183 (1989), the FSLIC

was abolished and its assets vested in the FDIC. 12 U.S.C. §

1821a(1) & (2). The FDIC is thus the real party in interest; it

sues pursuant to its authority under FIRREA. Id. § 1821(k). See

FDIC v. Shrader & York, 991 F.2d 216, 219-20 (5th Cir.1993),

cert. denied, --- U.S. ----, 114 S.Ct. 2704, 129 L.Ed.2d 832

(1994).

2 These loans, which totaled over $82 million, are as

follows, with claimed damages caused by default in parentheses:

$20 million by Home to Secame Associates ($9.64 million); $17

million by Home and Southland to Phil Mockford ($6.88 million);

$11.2 million by Home and Southland to S.R. Woerner, C.J.

Woerner, and R.L. Woerner ($1.15 million); $8.6 million by Home

and Southland to Jay A. Rosenbaum ($6.44 million); $10.4 million

by Home to Westminster Glen Joint Venture ($3.65 million); $3.37

million by Home to Park Place, Ltd. ($700,000); $7.5 million by

Home and Southland to Vista Crossings, Ltd. ($2.24 million); and

$4.3 million by Home to Corpus Christi Crosstown, also known as

Padre Island Joint Venture ($3.46 million). Some of these

individual amounts were broken down into a series of two or three

smaller loans. Of the $82 million in loans made by Home and

Southland, Southland contributed roughly $5.5 million.

2 of bot h institutions. 1 On August 16, 1991, the FDIC sued

Henderson, complaining that, as an of ficer and director of

S outhland and Home, he had breached legal duties owed to the two

institutions by engaging in unsafe an d unsound lending practices

with respect to eight large, high-risk, commercial real estate and

construction loans made in 1984 and 1985. 2 The FDIC asserted that

these highly spec ulative ventures cost Home and Southland $34.16

million ($29.05 million to Home, $5.11 million to Southland). The

FDIC further alleged that these damages w ere the result of3 Citing FDIC v. Dawson, 4 F.3d 1303, 1307 (5th Cir.1993)

(holding that such claims "sound in tort"), cert. denied,

--- U.S. ----, 114 S.Ct. 2673, 129 L.Ed.2d 809 (1994), the district

court concluded that the FDIC's breach of contract claim sounded

in tort and was therefore also governed by Texas's two-year

statute of limitations. The breach of contract claim, as such,

was never submitted to the jury, and there is no issue on appeal

regarding it.

3 Henderson's ordinary negligence, gross negligence, breach of

fiduciary duty, and breach of contract. The FDIC brought no claim

of fraud or other intentional wrongdoing.

Henderson filed a motion for summary judgment on August 18,

1993, arguing in part that all the FDIC's claims were time-barred

under Texas's two-year statute of limitations for tort actions.

Tex.Civ.Prac. & R em.Code Ann. § 16.003 (1986). Henderson argued

that this limitations period also applied to the FDIC's breach of

contract claim, which was wholly grounded on his alleged violation

of the oath of office (by which he swore to e xecute his duties

diligently and in compliance with federal law). Finally, Henderson

argued that the limitations period was not tolled by the state

common law doctrine of adverse domination, as the FDIC had alleged

in its second amended complaint.

The district court granted in part Henderson's motion on March

10, 1994, dismissing as time-barred the FDIC's claim of ordinary

negligence, but concluding that there remained a genuine issue of

material fact concerning whether the li mitations period on the

remaining claims was tolled by adverse domination. 3 The case thus

went to trial on March 13, 1994, on the issues of liability and

adverse domination only. In response to interrogatories, the jury4 In so doing, the district court did not, as the FDIC

suggests, somehow set aside the jury verdict. The judgment in

this case was based entirely on the jury's express determination

that a majority of the Home and Southland boards did not

adversely dominate the institutions.

4 found that Henderson had been grossly negligent and had b reached

his fiduciary duties to Home and Southland, thereby causing them to

incur $7 million in damages ($5 million to Home, $2 million to

Southland). The jury also found, however, that a majority of the

Home and Southland boards of directors had not adversely dominated

the institutions. Based on this finding, the district court held

all the claims time-barred and entered a take-nothing j udgment

against the FDIC on March 31, 1 994. 4 Thereafter, on April 11,

1994, the FDIC filed a motion for a new trial or to alter or amend

the judgment, which the district court denied on April 18, 1994.

On May 17, 1994, the FDIC filed this timely appeal.

Discussion

Although FIRREA provides a federal statute of limitations for

actions brought by the FDIC as receiver of a failed, federally

insured lending institution, that period begins to run only if the

claims acquired were still good under the applicable state statute

of limitations on the date the FDIC (or the FSLIC) was appointed

receiver. Dawson, 4 F.3d at 1307. In other words, if the claims

acquired by the FDIC were time-barred under state law prior to the

date of receivership, FIRREA will not revive them. S ee Davidson v.

FDIC, 44 F .3d 246, 248 (5th Cir.1995). The FSLIC, the FDIC's

predecessor, was appointed Southland's receiver on August 18, 1988,5 FIRREA's statute of limitations for tort claims acquired by

the FDIC as receiver is either three years or the applicable

state law period, whichever is longer. See 12 U.S.C. §

1821(d)(14). The federal limitations period begins the date the

FDIC (or its predecessor, the FSLIC) is appointed receiver or the

date the cause of action accrues, whichever is later. Id. The

FDIC brought this action on August 16, 1991, two days short of

three years from the date the FSLIC was appointed receiver of

Southland.

6 The claims in this case accrued when the loans were

approved. RTC v. Seale, 13 F.3d 850, 852 (5th Cir.1994).

Although not all the precise approval dates are in the record, it

is undisputed that all eight transactions were approved sometime

in 1984 or 1985.

5 and Home's on December 22, 1988. 5 S ee supra note 1. We must

decide whether, on these two dates, the claims acquired by the

FSLIC were barred under Texas law.

It is undisputed that the unsound banking practices involved

in this suit ended no later than some time in 1985 and that, as a

result, the claims against Henderson accrued at that time. D awson,

4 F.3d at 1308. 6 It is also undisputed that the applicable state

statute of limitations is two years and that the FSLIC became

receiver more than two years after the claims' accrual. S ee

Tex.Civ.Prac. & Rem.C ode Ann. § 16.003(a) (Vernon 1986).

Therefore, unless the statute of limitations was tolled, the FDIC's

claims were time-barred under Texas law when the FS LIC was

appointed receiver, and they cannot be revived by FIRREA. S ee

Davidson, 44 F.3d at 248. The FDIC maintains that, even if the

claims were time-barred under state law, a new federal law has

since resuscitated them. In the alternative, the FDIC asserts that

the claims were not time-barred under Texas law because the

two-year statute of limitations was tolled by adverse domination.6

Specifically, the FDIC complains that the district court erred in

refusing its proposed instruction on a competing theory of adverse

d omination, the so-called complete domination theory, which, the

FDI C contends, was supported by the evidence in this case. We

consider these contentions in turn.

I. Riegle-Neal Act

On September 29, 1994, four months after the FDIC filed its

notice of appeal in this case, President Clinton signed into law

the Riegle-Neal Interstate Banking and Branching Efficiency Act of

1994, Pub.L. No. 103-328, § 201, 108 Stat. 2368 (1994) (the Act).

Section 201(a) of the Act amends section 11(d)(14) of FIRREA, 12

U.S.C. § 1821(d)(14), by providing the following new subsection:

"(C) Revival of expired State causes of action.—

(i) In general.—In the case of any tort claim described

in clause (ii) for which the stat ute of limitation

applicable under State law with respect to such claim has

expired not more than 5 years before the appointment of

the Corporation as conservator or receiver, the

Corporation may bring an action a s conservator or

receiver on such claim without regard to the expiration

of the statute of limitation applicable under State law.

(ii) Claims described.—A tort claim referred to in clause

(i) is a claim arising from fraud, intentional misconduct

resulting in unjust enrichment, or intentional misconduct

resulting in substantial loss to the institution." 12

U.S.C. § 1821(d)(14)(C).

The FDIC argues that this Act revives any claims that were barred

when acquired by the FSLIC. Henderson counters that the statute,

by its terms, is inapplicable to these claims. Thus, although all

the FDIC's claims sound in tort and although none became

time-barred under Texas law more than five years before the FSLIC's

appointment as receiver, we must still decide w hether these tort7

claims are the type described by the Act—whether, in other words,

they are claims "arising from" fraud or intentional misconduct

("resulting in unjust enrichment" or "substantial loss to the

institution"). Id.

The FDIC neither brought nor t ried this case on a theory of

fraud or any other intentional wrongdoing. Not in its original,

first amended, or second amended complaint, nor in the pre-trial

order, did the FDIC ever assert theories of fraud or other

intentional misconduct, nor did it request jury instructions or

obtain a jury finding on any such theory. Indeed, in opposition to

the possible admission of evidence of Henderson's honest character

(or any other character evidence intended to show that he "was not

a crook"), the FDIC expressly disclaimed that it had brought a

claim of frau d. Even if we were to agree with the FDIC that the

"ar ising under" language of section 201 indicates that its

applicability does not strictly depend on "the form of the FDIC's

complaint," we still cannot say that Henderson did in fact engage

in intentional wrong-doing, b ecause the jury made no findings to

that effect. Regarding liability, the jury was instructed only on

the theories of gross negligence and breach of fiduciary duty.

Under either theory, the jury could obviously have found liability

for acts that were neither intentional nor fraudulent.

Nevertheless, the FDIC re lies heavily on evidence that

Henderson used the associations to fund his enjoyment of "luxury7 The first mention of such acts appears in the FDIC's second

amended complaint.

8 automobiles and aircraft." 7 Although some such evidence was

admitted at trial, the FDIC has never asserted to what extent, if

any, these all eged acts damaged Home or Southland. Nor did the

FDIC ever pray—in the pleadings, pre-trial order, or otherwise—for

any relie f from this alleged misconduct. At all times, the FDIC

has focused exclusively on Henderson's acts and omissions relating

only to eight specific loan transactions. Indeed, at trial, an

FDIC witness was asked to testify concerning "the damages that the

FDIC has claimed in this case." As both counsel and the witness

made explicit, these damages were exclusively losses suffered as a

result of the "eight targeted loan transactions

... that we are

here today on." We also note that during closing argument, counsel

for th e FDIC asked the jury to consider in its deliberations an

exhibit that listed the eight loans at issue and the damages, to

the penny, suffer ed as a result of their default. This exhibit

reflects no other dam ages. Finally, the jury interrogatories on

liability asked merely if Henderson had been grossly negligent or

had breached his fiduciary duty "with regard to any of the

transactions at issue in this case"; the only transactions

referred to in the jury instructions are the eight loans. We thus

reject any after-the-fact suggestion by the FDIC that it ever

sought recovery for, or asked the jury to make findings on, these

alleged acts of intentional misconduct.

In short, there is nothing about the jury's verdict which8 The quantum of damages actually awarded in this case ($7

million out of over $34 million sought) also undercuts the FDIC's

suggestion that the jury's verdict on liability implies that it

found Henderson's acts especially culpable or that it awarded

damages not specifically sought.

9 could be said to establish that Henderson acted intentionally. 8 It

is simply not enough for the FDIC to hypothesize th at the jury

could have found that Henderson so acted. The FDIC failed to seek

such a finding, and we reject its suggestion at oral argument that

this failure is justified by the post-trial passage of section 201.

Whatever retroactive effect the Act has, it has it for both sides.

Accordingly, we hold that by its terms section 201 does not apply

to the claims brought by the FDIC in this case. Accordingly, we

need not consider Henderson's alternative contentions : that

section 201 of the Ac t violates the Tenth Amendment and that it

does not apply retroactively to s uits filed before the statute's

enactment.

II. Adverse Domination

We turn now to the FDIC's alternative contention—that the

district court erred in refusing its proposed instruction on a

competing theory of adverse domination. We review with deference

a trial court's refusal to give a proposed instruction. T readaway

v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5th Cir.1990).

As a threshold matter, the complaining party must show that its

proposed instruction correctly states the law. I d. If it does, we

must then determine whether the charge as given was accurate or

misleading. A judgment will be reversed only when the charge as a

whole leaves us with a "substantial and ineradicable doubt whether9 In Dawson, we held that state tolling principles control

federal courts' application of state statutes of limitation. 4

F.3d at 1308-09.

10 the jury has been properly guided in its deliberations." FDIC v.

Mijalis, 15 F.3d 1314, 1318 (5th Cir.1994) (citations and quotation

marks omitted). If we are convinced, after reviewing the record as

a whole, that the dis trict court's failure to include the

instruction did not affect the outcome of the case, then the

judgment will not be reversed. Id.

The proposed instruction in this cas e concerns the FDIC's

asserted state law rule of adverse domination. Adverse domination

is a common law doctrine used to toll limitations on a corporate

action while the corporation is c ontrolled by those culpably

involved in the wrongful conduct on which the action is ba sed. 9

See RTC v. Fleischer, 826 F.Supp. 1273, 1276 (D.Kan.1993); s ee

generally J. Wilkie, Jr., FDIC v. Dawson: T he Fifth Circuit Reins

in Bank Regulators' Enforcement Rights Under FIRREA, 69 Tul.L.Rev.

288, 290-92 (1994). It is often said that the doctrine "rests on

the theory that if the wrongdoers controlled the corporation ...,

there would consequently be no one to sue them." 3A Stephen M.

Flanagan & Charles R.P. Keating, Fletcher Cyclopedia of the Law of

Private Corporations § 1306.20 (Supp.1994) [hereinafter Fletcher ].

We have emphasized that one rationale for the doctrine is "that a

wrongdoing corporate officer or director will seek to hide his or

her wrongful conduct from the corporation." S hrader & York, 991

F.2d at 227; see Dawson, 4 F.3d at 1310, 1312-13.

Relying on the only Texas case to address this issue, Allen v.10 We note that a Texas corporation may sue a culpable

officer or director if a majority of the board of directors

"present at a meeting in which a quorum is present" agrees to

bring suit (unless a greater number is required by the articles

of incorporation or bylaws). Tex.Bus.Corp.Act Ann. art. 2.34

(West Supp.1995). A quorum represents a majority of the total

directors unless the articles of incorporation or bylaws provide

otherwise. In no event, however, may a quorum be less than

one-third of the total number of directors. Id. Texas-chartered

banks, moreover, must at all times have at least five directors.

Tex.Rev.Civ.Stat.Ann. art. 342-404 (West 1973 & Supp.1995).

Finally, we note that an officer of the corporation may be

authorized to sue on behalf of the corporation if the bylaws or

the directors grant him such authority. Id. art. 2.42(B);

Valley v. International Properties, Inc. v. Brownsville Savings

and Loan Association, 581 S.W.2d 222, 227 (Tex.Civ.App.—Corpus

Christi 1979, no writ) (an officer has no authority "to conduct

litigation for the corporation" absent a grant of such authority

by the bylaws or a directors' resolution).

11 Wil kerson, 396 S.W.2d 493 (Tex.Civ.App.—Austin 1965, writ ref'd

n.r.e.), this Court in Dawson determined that adverse domination

has been recognized in Texas as an equitable tolling doctrine that

suspends the running of limitations while the corporation continues

under the domination of the wrongdoers, who are the adversaries of

the action. 4 F.3d at 1309-10. Observing that the doctrine is

"very narrow," id. at 1312, we determined that Texas follows the

"majority test," one of two general versions of the adverse

domination doctrine. Id. at 1310. Under the majority test, if a

majority of the board of directors are culpably involved in the

alleged wrongdoing, then we assume that the corporation was

adversely dominated and was thus unable to pursue a direct action

against the w rongdoing directors. 1 0 In other words, although the

law usually presumes that directors will exercise their fiduciary

duties and sue on behalf of the corporation when it is wronged,

that presumption is reversed when a majority of the board is11 The law in Texas on derivative actions reflects the

presumption that directors will, when appropriate, sue on behalf

of the corporation. Tex.Bus.Corp.Act.Ann. art. 5.14 (West 1980).

12 culpably involved in the alleged wrongdoing. D awson, 4 F.3d 1309-

11. The statute of limitations is thereby tolled until a majority

of the directors is disinterested and informed of the wrongdoing.

Id.

Although it is not necessary to sue a majority of the board to

obtain a finding of adverse domination, the plaintiff still bears

the burden of pro ving the culpability of a majority of the board

members during the relevant time period. D awson, 4 F .3d at 1311

(holding that the majority rule does not shift onto the defendant

"the burden of proving that a majority of the board was n o t

culpable"). In so doing, the FDIC must establish that the culpable

directors are guilty of more than mere negligence or even gross

negligence; it must show that they have actively participated in

fraud or other intentional wrongdoing with regard to the claims at

issue. R TC v. Acton, 49 F.3d 1086, 1091 (5th Cir.1995). Proof

that a majority of the board is actively and purposefully engaged

in the wrongdoing reverses the presumption that informed directors

will induce the corporation to sue culpable ones and thereby

establishes that the institutions are dominated by directors

adverse to the claims in question. Cf. Gaubert v. United States,

885 F.2d 1284, 1291 (5th Cir.1989) (noting the presumption in Texas

that the directors will exercise good busines s judgment in their

management of the corporation); F letcher § 990 (noting the

presumption that directors will properly run the corp oration). 1 1Before suing one or more directors derivatively on behalf of the

corporation, a shareholder must allege in the pleadings that a

demand for suit was made on the board or that such a demand was

futile. See Dodson v. Kung, 717 S.W.2d 385, 390

(Tex.App.—Houston [14th Dist.] 1986, writ. ref'd n.r.e.). The

court will not simply presume that a demand would be futile where

the defendants are on, or even in control of, the board; the

plaintiff must allege specific facts "indicating the futility of

the demand" and prove those facts at trial. Zauber v. Murray

Savings Ass'n, 591 S.W.2d 932, 936-39 (Tex.Civ.App.—Dallas 1979,

writ ref'd n.r.e.); accord Aronson v. Lewis, 473 A.2d 805

(Del.1984); see also Fletcher § 1040. As the court stated in

Zauber, "Only when it can be shown that something beyond un sound

business judgment has been exercised by the board of directors,

resulting in a wrongful refusal to act, will a shareholder be

allowed to institute the suit on behalf of the corporation." 591

S.W.2d at 936 (emphasis added).

13 This is the majority version of adverse domination.

There is, however, a comp eting rule, the so-called complete

domination theory, and it is on this theory that the FDIC sought an

instruction below. Unlike the majority test, the rule of complete

domination may not necessarily depend on whether a majority of the

board of directors is culpable or disinterested; application may

depend instead on the degree of control the culpable individual or

individuals have over the entire board. However, this rule is

considered harder to satisfy than the majority version because it

relies on no presumption of domination. It demands that the

plaintiff pro ve "full, complete and exclusive control in the

directors or officers charged," Dawson, 4 F.3d at 1309, and this at

least means "that once the facts giving rise to possible liability

are known, th e plaintiff must effectively negate the possibility

that an informed stockholder or director could have induced the

corporation to sue." I nt'l Rys. of Cent. Am. v. United Fruit Co.,

373 F.2d 408, 414 (2d Cir.), cert. denied, 387 U.S. 921, 87 S.Ct.12 This conception of adverse domination is also sometimes

termed the "single disinterested director" theory, under which

the plaintiff must establish that there is "no one with knowledge

of facts giving rise to possible liability who could or would

have induced the corporation to bring an action." Hecht, 635

A.2d at 403; see also Bryan, 902 F.2d at 1523.

13 At the time the district court instructed the jury on the

level of culpability required of the wrongdoing directors, we had

not yet decided Acton. In Acton, we determined that, before the

majority test theory of adverse domination will apply, the

plaintiff must prove that the directors actively engaged in

14 2031, 18 L.Ed.2d 975 (1967); see also Dawson, 4 F.3d at 1309-10.

Whether the plaintiff can prove the effective impossibility of suit

is the key in the complete domination theory. 12 Mosesian v. Peat,

Marwick, Mitchell & Co., 727 F.2d 873, 879 (9th Cir.), cert.

denied, 469 U.S. 932, 105 S.Ct. 329, 83 L.Ed.2d 265 (1984).

In this case, the district court gave the jury the following

instruction on adverse domination:

"In order to prevail on any of its claims against

[Henderson], the FDIC must prove that a certain legal doctrine

called "adverse domination' applies in this case. The term

"adverse domination' refers to a situation where a majority of

the board of directors that control a savings and loan, work

together to operate the institution in an improper manner.

As long as the savings and loan is under the control of

these wrongdoing directors, there is little possibility that

anyone could bring suit against the directors in the name of

the savings and loan. In such a situation, the savings and

loan is said to be adversely dominated by its board of

directors.

....

In order for you to find that the board of directors of

[Southland] and [Home] adversely dominated the two financial

institutions, you must find that, in conducting business for

the savings and loans, a majority of the directors (1) were

grossly negligent, (2) breached their fiduciary duties of due

care, loyalty, or allegiance, or (3) intentionally or willfully engaged in wrongful conduct. It is not enough to

conclude that the directors were merely negligent." 13intentional wrongdoing; gross negligence, in other words, does

not rise to the level of culpability required to raise the

presumption of domination under the majority test. 49 F.3d at

1091.

14 The jury was required to answer the following two

questions:

"Do you find, from a preponderance of the evidence,

that a majority of the board of directors adversely

dominated [Home] from 1984 to December 26, 1986?"

"Do you find, from a preponderance of the evidence,

that a majority of the board of directors adversely

dominated [Southland] from 1984 to August 18, 1986?"

The December 26, 1986, and August 18, 1986, dates represent

two years exactly from the date of the FSLIC's appointment

as receiver of Home and Southland, respectively.

15 This charge was clearly modeled on our decision in Dawson, where we

stated that Texas law was in accord with the majority version of

adverse domination. The district court's charge tracks Dawson by

turning the applicability of adverse domination on the culpability

vel non of a majority of the corporation's board of directors.

After this charge, and in respo nse to interrogatories, the

jury found that a majority of the directors of Home and Southland

had not adversely dominated the institutions during t he relevant

period. 14 The FDIC, however, does not dispute the accuracy of the

district court's give n instruction on adverse domination or the

jury's findings in response to it. Instead, the FDIC maintains

that the charge was incomplete because it did not allow the jury to

consider, in the alternative, the following instruction proposed by

the FDIC:

"The adverse domination doctrine may also apply if a defendant

exercised full, com plete, and exclusive control of the

financial institution so as to prevent it from pursuing its15 On the basis of this instruction, the FDIC apparently

proposed the following jury interrogatory:

"Did [Henderson] exercise such full, complete, and

exclusive control of Southland so as to prevent it from

pursuing its legal rights against [Henderson] through

at least August 18, 1986?"

The FDIC makes no mention of this interrogatory in its brief

nor anywhere indicates how it may affect the legitimacy of

its proposed instruction. We therefore confine our analysis

to the text of the instruction as cited and relied on by the

parties.

16 legal rights against the defendant. F DIC v. Dawson, 4 F.3d

1303 (5th Cir.1993); s ee also RTC v. Seale, [13 F.3d 850 (5th

Cir.1994) ]. If [Henderson] adversely dominated Southland or

Home so as to exercise full, complete, and exclusive control

over the associations up until at least two years before the

respective association failed, the FDIC's lawsuit was timely."

(citations omitted).

This proposal purports to state the complete domination theory of

adverse domination. 15

We begin by noting that the FDIC has not cited, nor can we

find, any Texas decision in which the court has tolled limitations

because of a single director's complete domination of the wronged

corporation. Indeed, in Dawson, after reviewing the only Texas

case ever to consider adverse domination, we determined that Texas

followed the majority rule, suggesting that it did not follow this

competing theory. 4 F.3d at 1310; a ccord FDIC v. Howse, 736

F.Supp. 1437, 1441 (S.D.Tex.1990). Moreover, a recent,

well-reasoned district court opinion, RTC v. Brig ht, 872 F.Supp.

1551, 1562 (N.D.Tex.1995) , determined on summary judgment that

Texas law required the plaintiff to prove the culpability of a

board majority, rejecting the RTC's attempt to establish adverse

domination by showing actual control of the three defendants, who,17

although together a numerical minority of the board, collectively

controlled 96% of the bank's stock.

Nor do we find persuasive support for a theory of complete

domination in Allen, the decision of the Texas court of appeals

interpreted in Bright and Dawson. There, the defendant was the

single culpable director and only one of four board members, but

controlled 80% of the corporation's capital stock and was alone

considered the owner of the bank by its bookkeeper. A llen, 396

S.W.2d at 496, 499. The court stated that running of the statute

of limitations on a corporate claim against a director concerning

his corporate actions required that a majority of the board have

notic e (in the sense of knowledge of facts sufficient to put one

under a duty to inquire) of, and be disinterested in, the

challenged transactions. I d. at 500. Although there is broadly

worded language in Allen that might be read to support a theory of

complete domination, that language is dicta because the court

clearly did not consider evidence of Allen's complete con trol of

the corporation adequate to warrant tolling the limitations period.

See Bright, 872 F.Supp. at 1565. We therefore cannot say that

Texas has adopted the theory here advanced by the FDIC.

Even assuming that Texas would follow a complete domination

theory of adverse domination in addition to the majority test, we

believe that the FDIC's proposed instruction represents an

inadequate and incomplete statement of the rule as we understand

it. It is inadequate partly because it is too abstract, and such

instructions are disfavored. S ee Turlington v. Phillips Petroleum16 A parsing of the instruction's language exposes additional

defects. The critical portion of the instruction is its second

sentence, in which the FDIC posed the following test: "If

[Henderson] adversely dominated the institution so as to exercise

full, complete, or exclusive control over the associations up

until at least two years before the respective associations

failed, the FDIC's lawsuit is timely." This instruction is

somewhat confusing, almost tautological, as it essentially states

that, if Henderson adversely dominated the institutions during

this time, the claims are timely. The issue for the jury,

however, is not the legal conclusion that the claims are or are

not timely, but the factual issue whether domination occurred;

the instruction should therefore have focused on the factual

findings that predicate a conclusion of adverse domination—an

issue we discuss in more detail below.

18 Corp., 795 F.2d 434, 443 (5th Cir.1986); 9A Charles A. Wright and

Arthur R. Miller, Federal Practice and Procedure § 2556 (1995)

("[A]bstract charges typically are not favored by the federal

court s.... [T]he courts have shown a distinct preference,

particularly in complex cases, for instructions that relate the law

to the evidence presented by the parties.").

At the very least, the proposed inst ruction is misleading

because it fails to instruct the jury that it must find, and that

the FDIC must prove, that Henderson not only exercised full and

complete control over the directors, but also that but for this

control the directors would have pursued a direct action against

him on the transactions at issue. 16 Total control alone—essentially

the only required finding under the critical portion of the FDIC's

proposed instruction—does not "negate the possibility that an

informed stockholder or director could [or would] have induced the

corporation to sue." I nt'l Rys. of Cent. Am., 373 F.2d at 414;

see Dawson, 4 F.3d at 1309-10. It is presumed that board members

will adhere to their fiduciary duties. S ee Dawson, 4 F.3d at 1311.17 The FDIC's general and overly abstract conception of

complete domination is implicit in its pleadings on this issue,

in which it alleged that Henderson, as the chief officer and

director of Home and Southland and as the major stockholder of

Home, "picked other members of the boards of directors and hired

employees[,] supervised virtually every aspect of the business

affairs of both [Southland and Home], including their day-to-day

activities[, and] supervised commercial loan approval." Although

a jury could find, if these allegations were proved, that

Henderson's authority at Home and Southland was full and

complete, it does not follow that he used this authority to

negate the possibility of a corporate action against him. In

other words, the fact of a director's complete control as a

general matter is not so critical as how he actually exercised it

in respect to barring possible recovery on the particular claims

at issue.

19 In the absence of a majority of sufficiently culpable dir ectors,

this presumption cannot be ov ercome without a finding, which the

F DIC's proposed instruction failed to require, that clearly ties

Henderson's control of the boards spe cifically to the directors'

effective inability to bring suit on the particular transactions at

issue—without a finding in other words that the directors would

have brought an action but for the defendant's complete exercise of

control over them. 17

The FDIC argues, however, that either of two theories supports

the adoption of a complete domination rule of adverse domination,

pointing to t wo situations in which a director with complete

control could use his authority to negate the possibility of suit.

The first is the concealment of the wrongdoing from the other

directors. Significantly absent, however, from the FDIC's

pleadings are allegations that Henderson used his authority to

conceal from the board the facts concerning his wrongdoing on the18 Indeed, the evidence at trial strongly undercuts the

assertion that Henderson deliberately concealed such information.

At various times during the relevant period, the directors at

both Southland and Home received and considered numerous

indications from bank examiners that the institutions were

engaging in high-risk loans in violation of federal regulations,

such as loans-to-one-borrower lending limits and loan

underwriting controls.

20 eight loans a t issue 1 8 —even though, at oral argument, the FDIC

asserted that the adverse domination in this case mainly resulted

from Henderson's control over the facts concerning his wrongdoing

and his consequent ability to conceal them. Although we recognize

that the risk of concealment is a principal rationale behind the

general theory of adverse domination, see Shrader & York, 991 F.2d

at 227, Texas law already adequately prevents a dominant director

from benefiting from such deliberat e acts under the tolling

doctrine of fraudulent concealment. Texas courts have recognized

fraudulent concealmen t as an affirmative defense to limitations

that the plaintiff must plead and prove. M atter of Placid Oil Co.,

932 F.2d 394, 399 (5th Cir.1991); W eaver v. Witt, 561 S.W.2d 792,

793 (Tex.1977) (per curiam). S ee also J. C. Kinley Co. v. Haynie

Wire Line Serv., Inc., 705 S.W.2d 193, 198 (Tex.App.—Houston [1st

Dist.] 1985, writ ref'd n.r.e.).

The FDIC essentially asks this Court to rule that Texas would

be willing to presume from the director's mere control the fact of

intentional concealment; as Texas law makes plain, however, such

must be pleaded and proved to the satisfaction of the jury. Even

assuming that Texas would supplement its already existent

protections against fraudulent concealment, we bel ieve that the19 The complete domination theory of adverse domination

presumes a board with more than one director. If there is only

one director and that director is culpably involved in the

alleged wrong, then the majority test would apply, and domination

of the corporation would be presumed so long as that director

maintained sole control. Here, Henderson was alleged to be the

only director of Southland for a short period of time until 1985.

The FDIC, however, did not seek a separate jury finding on

adverse domination during this period—presumably because the

tolling of this entire period would still be inadequate to make

the claims timely.

21 jury would still have to find that the defendant in fact used his

complete authority to actually conceal his wrongdoing from the rest

of the board. In this case, however, neither the proposed

ins truction nor the pleadings make any mention of concealment.

See, e.g., Bright, 872 F.Supp. at 1568-70 (RTC's pleadings alleged

that the Texas statute of limitations was tolled by adverse

domination, the discovery rule, and fraudulent concealment). Even

if the state were to adopt some theory of complete domination, we

cannot agree that the proposed instruction would properly state the

law.

According to the FDIC, complete dominati on might also occur

when the directors knew of the culpable director's wrongdoing but,

because of his exercise of control over them, would not bring

suit. 19 Once again, however, if this were the FDIC's theory in this

case, its proposed instruction was deficient for failing to include

a requirement that there be found a factual, causal connection

b etween Henderson's alleged control and the boards' failure to

bring suit. That Henderson generally had full control of the

associations and that the boards failed to bring an action against

him do not, standing alone, show adverse domination; the jury must20 In this case, there was simply no evidence to support

anything but the mere possibility that Henderson could have

exercised such control. There is, for instance, no evidence that

any directors considered suing on these transactions but did not

because Henderson threatened to remove or fire them (or because

the directors feared that).

21 For instance, in this case, the FDIC presented some

evidence at trial that Henderson threatened to fire an employee

and director of Southland, Dennis Newsom, who had questioned his

instructions to make wire transfers from Southland to Home.

Another Southland board member and employee, Kathy Fleming,

testified that she felt it would be "out of place" for her to

question Henderson in front of the board.

22 link these two facts—here with the theory that the director

exercised his control to actually cause informed directors not to

b ring suit against him. 2 0 Moreover, it cannot be enough for the

plaintiff simply to allege that the defendant has, in the past,

threatened individual board members or prevented them from somehow

acting. Nor can it be adequate simply to show that the culpable

director had the ability to control the board because, for example,

of his power to fire or remove informed directors; 21 otherwise,

limitations would never run against a corporation where the

culpable director or officer is also the majority shareholder. The

general subservience or acquiescence of the non-culpable directors

to th e culpable director cannot alone rebut the presumption that

the non-culpable directors will put the i nterests of the

corporation above their own; that is, that they will exercise

independent judgment. At the very least, therefore, the plaintiff

would have to show, and the jury find, that the culpable director

actually caused a board majority to abdicate their responsibility22 When non-culpable directors know of wrongdoing but will

not bring suit against the responsible director or officer, those

directors may have breached fiduciary duties they owe to the

institution. We cannot, however, simply presume from the

culpable director's general full control that informed,

non-culpable directors will not do their duty and sue. To take

advantage of that presumption, the defendant must at least follow

the majority test and adequately prove the culpability of the

board majority. Our reluctance to read the complete domination

theory expansively is informed by Dawson: "[I]t could almost

always be said that when one or two directors actively injure the

corporation, or profit at the corporation's expense, the

remaining directors are at least negligent for failing to

exercise "every precaution or investigation.' If adverse

domination theory is not to overthrow the statute of limitations

completely in the corporate context, it must be limited...." 4

F.3d at 1312.

23 to sue on the particular transactions in question. 22

Finding no reversible error in the district court's refusal to

include the FDIC's proposed instruction in its charge to the jury,

we hold that the district court was correct to enter a take-nothing

judgment on the jury's verdict against the FDIC.

Conclusion

The judgment of the district court is

AFFIRMED.