[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 2, 2011
No. 10-11571 JOHN LEY
________________________ CLERK
D. C. Docket No. 8:08-cv-00611-SCB-TGW
PNC BANK, NATIONAL ASSOCIATION,
Plaintiff-Appellant,
versus
BRANCH BANKING AND TRUST COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 2, 2011)
Before TJOFLAT, CARNES, and HILL, Circuit Judges.
PER CURIAM:
This is Plaintiff PNC Bank, National Association (PNC)’s appeal from the
judgment entered against it and in favor of Defendant Branch Banking and Trust
Company (BB&T), insofar as the judgment dismissed PNC’s breach of contract
and gross negligence claims. Having considered the briefs and the pertinent parts
of the record, and having heard oral argument, we affirm the judgment of the
district court on those claims for the reasons set out in the district court’s March 8,
2010 order, with one qualification.
Our one qualification concerns the district court’s statement that PNC had
failed to present its gross negligence claim as including the allegations that
Colonial Bank (BB&T’s predecessor in certain assets) had allowed the borrower,
Venetian Bay, to use the loan proceeds for golf course expenditures. However, as
BB&T concedes, and we have confirmed, PNC did adequately present that aspect
of its gross negligence claim in the district court. Nonetheless, we affirm the
district court’s rejection of that claim because it lacks merit, which that court
concluded in the alternative. The reason the claim lacks merit is that PNC has
failed to establish that Colonial owed it any legal duty to prevent Venetian Bay
from using the loan proceeds for golf course expenditures, and unless there is a
duty that is breached there can be no negligence. The only basis for such a duty
that PNC asserts is the participation agreement and, for the reasons explained in
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the district court’s order, we conclude that the participation agreement did not
impose that duty on Colonial.
AFFIRMED.
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