* Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30941

GEORGE R. TRANCHINA, JR.; 

ZELLA M. TRANCHINA; GEORGE 

R. TRANCHINA, SR. FAMILY 

TRUST; RAPP’S ENTERPRISES, 

Plaintiffs-Appellants, 

versus

HOWARD, WEIL, LABOUISSE, 

FREDERICHS, INCORPORATED; 

LEGG MASON WOOD WALKER, INC. 

LEGG MASON HOWARD WEIL DIVISION, 

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of Louisiana

(95-CV-2886)

May 11, 1998

Before WIENER, BARKSDALE and DEMOSS, Circuit Judges. 

PER CURIAM:*

This is an appeal from the district court’s grant of a

judgment as a matter of law (j.m.l.) that reversed a jury verdict
2

favorable to Plaintiffs-Appellants, George R. Tranchina, Jr, Zella

M. Tranchina, George R. Tranchina, Sr. Family Trust, and Rapp’s

Enterprises (collectively, “Plaintiffs”), who had sued DefendantsAppellants, Howard, Weil, Labouisse, Frederichs, Incorporated, and

Legg Mason Wood Walker, Inc. Legg Mason Howard Weil Division

(collectively, “Howard Weil”) for losses incurred by Plaintiffs as

a result of criminal defalcation by their friend and relative,

Michael Sealey (“Sealey”) while he was a stockbroker affiliated

with Howard Weil. Although Plaintiffs characterize the district

court’s j.m.l. as error committed “by substituting its judgment of

the facts for the judgment of the jury which decided the case,” the

discrete facts of this case are essentially undisputed. Thus the

issue here, as in every appeal from the grant of a j.m.l. reversing

a jury verdict, is whether the legal conclusions reached by the

trial court on the basis of facts found by the jury or uncontested

by the parties constitute legal error. 

For reasons on which we can only speculate —— tactical,

strategic, family harmony, recognition that one cannot get blood

from a turnip, or something else —— Plaintiffs chose not to sue

Sealey (who was headed to prison for the actions on which

Plaintiff’s civil claims are based) and to sue only Howard Weil.

In so doing, Plaintiffs sought to recover on several legal

theories, including breach of fiduciary duty, respondeat superior,

“controlling person,” and direct negligence for failing to maintain

an adequate system to detect malfeasance such as Sealey’s. Howard
1 See, e.g., FDIC v. Abraham, et al., 137 F.3d 264 (5th Cir.

1998); FDIC v. Barton, 96 F.3d 128 (1996). 

2 114 S. Ct. 1439 (1994). 

3 Fed.R. Civ.P. 50(a)(1). 

3

Weil countered that in Louisiana a claim of breach of fiduciary

duty of ordinary care (simple negligence) prescribes in one year,

thus barring the claim here,1 and that claims of liability as a

“controlling person” under the securities laws preempts claims of

respondeat superior, at least since the Supreme Court decided

Central Bank of Denver, N.A. v. First Interstate Bank of Denver.

2

Additionally, Howard Weil stressed that the claims for losses in

connection with the so-called M Group did not involve a “security”

within the intendment of the securities laws and, most centrally,

that Plaintiff’s failure to exercise due diligence in the face of

substantial notice and admonition from Howard Weil, choosing

instead chose to have trust —— more accurately, blind faith —— in

their friend and relative with whom they had done business prior to

his association with Howard Weil and during a hiatus in his

association with Howard Weil, must preclude recovery against Howard

Weil. 

Mindful of the role of the jury and its findings in this case,

as well as the requirement that the trial court not grant a j.m.l.

disturbing a verdict of the jury unless there is no “legally”

sufficient evidentiary basis for a reasonable jury to find for the

nonmoving party (here, Plaintiffs),3 we review the district court’s
4 1997 WL 472664. 

4

judgment in this case de novo. In conducting such a review today,

we have read and carefully considered the arguments of Plaintiffs’

counsel as advanced in their appellate briefs and in oral argument,

and have given equal attention to the appellate brief and arguments

of counsel for Howard Weil. It is in light of those arguments and

of the applicable law thus brought to bear on the district court’s

j.m.l. that we have scrutinized the Order and Reason penned by the

district court in support of its judgment. As a result, we come to

the same conclusion as did the district court and do so for

essentially the reasons so ably explicated by the court in its

lengthy, well-crafted opinion.4 Rather than gild this lily by

writing separately, we adopt the district court’s Order and Reason

in its entirety and incorporate it herein by reference. 

AFFIRMED.