                                                     [DO NOT PUBLISH]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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