                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-1128



DALE R. MICHAEL,

                Plaintiff - Appellant,

           v.


WESBANCO BANK, INCORPORATED,

                Defendant - Appellee.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Irene M. Keeley, Chief
District Judge. (5:04-cv-00046-REM)


Argued:   May 14, 2008                     Decided:   July 31, 2008


Before WILKINSON and KING, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.


Affirmed by unpublished opinion.    Senior Judge Kiser wrote the
opinion, in which Judge Wilkinson and Judge King joined.


ARGUED: Robert Gabriel Coury, SMITH & COURY, Woodsfield, Ohio, for
Appellant. Denise Knouse-Snyder, Edward M. George, III, PHILLIPS,
GARDILL, KAISER & ALTMEYER, Wheeling, West Virginia, for Appellee.
ON BRIEF: Gary W. Smith, SMITH & COURY, Woodsfield, Ohio, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.
KISER, Senior District Judge:

       On June 6, 2006, Appellant Dale R. Michael (“Michael”) moved

for partial summary judgment on his claims of breach of fiduciary

duty   and   express    trust      against   Appellee    Wesbanco    Bank,   Inc.

(“Wesbanco”).      The district court, deciding that there was no

express trust or fiduciary relationship between the parties to the

contract at issue, denied that motion in an opinion filed September

1, 2006.     Michael appealed this ruling when that judgment became

final, arguing to this Court that Wesbanco was in fact a fiduciary

or trustee of Michael, and that therefore the district court must

be reversed and judgment entered in Michael’s favor.                 Michael has

also   argued   that    it   was    erroneous   to   exclude   the    videotaped

testimony of a particular witness at trial.                Because there were

disputed issues of material fact regarding what kind of contractual

or fiduciary relationship, if any, existed between the parties, we

must affirm the district court’s denial of summary judgment for

Michael.       We also find that the trial judge was within his

discretion to exclude the challenged testimony.



                                         I

       Appellant Dale R. Michael was a friend of troubled businessman

Ralph Tolbert, owner of an automobile dealership.                      Tolbert’s

business was heavily indebted and he sought Michael’s assistance in

paying   its    debts   to   creditors,      including    Thrifty    Car   Rental


                                         2
Systems, Inc. (“Thrifty”). Michael agreed, and obtained loans from

Wesbanco’s predecessor in interest, Wheeling National Bank, for

Tolbert’s benefit.1

       In February 2001, Michael met with Tolbert and Paul Donahie,

then President of the Bank.           On February 15, 2001, and February 27,

2001, the Bank issued loans to Michael in the amounts of $150,000

and $50,000, respectively.            Immediately upon issue, Michael turned

the loan proceeds over to the Bank, and instructed the Bank to hold

the proceeds and use them to pay off Tolbert’s debts.                The precise

language used by Michael to instruct the Bank on the use of the

proceeds is sharply disputed by the parties.              The Bank claims that

the proceeds were being loaned directly to Tolbert by Michael, and

thereafter it took Tolbert’s direction when deciding how to pay

creditors.       The Bank made disbursements to Thrifty as well as to

Citizens Savings Bank for obligations involving the titles to

vehicles Tolbert had sold to customers.              Nevertheless, Tolbert’s

outstanding debts proved too formidable, such that Michael’s loans

were       insufficient   to   save    the    business.    Tolbert    filed   for

bankruptcy in October 2001.

       On April 9, 2004, Michael filed a complaint in the United

States District Court for the Northern District of West Virginia

against the Bank, alleging breach of contract, willful and wanton


       1
      Wesbanco merged with Wheeling National Bank, effective March
1, 2001, assuming all liability for the latter’s obligations. The
two banks will henceforth be referred to simply as “the Bank.”

                                          3
conduct, and for an accounting related to the reserve bank account

set up in conjunction with the loans.          Later, Michael amended his

complaint to add a fraud claim.

     At the summary judgment stage, Michael asserted a breach of

fiduciary duty claim, or alternatively, breach of an express trust.

United States District Judge W. Craig Broadwater denied Michael’s

motion for partial summary judgment as to liability on his claims

for breach of fiduciary duty or express trust, and simultaneously

granted the Bank’s motion for summary judgment as to those claims,

“as [the Bank] did not undertake fiduciary obligations.”              (J.A.

218-19.)

     After ruling on the cross-motions for summary judgment by the

parties, the case proceeded to a jury trial on the two issues of

whether    the   Bank   had   breached   its   contract   with   Michael   or

defrauded him in its actions.       During the trial, Judge Broadwater

excluded the entire testimony of Edward George, II, Chairman of the

Board of the holding company and President of Wesbanco.             Michael

had hoped to rely on George’s testimony to establish that it was

not standard operating procedure to put the loan proceeds in the

Bank’s general ledger, since this would make a proper accounting

impossible, and that therefore the Bank’s procedures for handling

the transaction at issue were unusual or suspect.            However, from

his deposition testimony, the Bank argued that allowing George’s

testimony would, inter alia, be more confusing than probative for


                                     4
the jury.        George was also introduced as a lay witness, not an

expert.     Judge Broadwater therefore struck the testimony on the

basis     that    George    had   no    personal        knowledge   of     the     loan

transactions, since neither the holding company nor Wesbanco were

involved     with    Wheeling     National       Bank    at   the   time      of    the

transactions.

     On October 5, 2006, the jury found in favor of the Bank on

both counts. Michael’s post-trial motions for judgment as a matter

of law or alternatively for a new trial were denied by District

Judge Irene M. Keeley, who presided over the case after the

untimely death of Judge Broadwater.

     Michael now appeals the district court’s denial of his motion

for partial summary judgment on the theories of breach of fiduciary

duty and breach of express trust by the Bank, as well as the

exclusion of George’s testimony at trial.



                                         II

                                         A.

     We    review    de    novo   a   district    court’s     denial     of   summary

judgment, construing all facts and reasonable inferences in the

light most favorable to the nonmovant.2                 Shaw v. Stroud, 13 F.3d


     2
      Notably, Appellant did not notice an appeal of the district
court’s decision to grant summary judgment to the Bank on the
claims of breach of fiduciary duty and express trust. This affects
our standard of review in this case, since Michael is only
appealing the denial of his own motion for summary judgment, and

                                         5
791, 798 (4th Cir. 1994) (citations omitted), cert. denied, 513

U.S. 813 (1994).     Summary judgment is appropriate when no genuine

issue exists as to any material fact and the moving party is

entitled to judgment as a matter of law.          Fed. R. Civ. P. 56(c).

A genuine issue of a material fact exists “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.”    Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986).     “[T]he mere existence of a scintilla of evidence in

support of the [nonmovant’s] position will be insufficient; there

must be evidence on which the jury could reasonably find for the

[nonmovant].”     Id. at 252.



                                     B.

      Michael claims that the Bank breached its fiduciary duty to

him   by   not   properly   paying   out   the   loan   proceeds   per   his

instructions, self-dealing, and through “conflicting loyalties.”

(App. Br. 8.)      Michael also asserts that the Bank violated its

fiduciary duty to him when it changed the “material terms of the

reserve account3 contract of 1999 on February 28, 2001 and [paid]



not the granting of the Bank’s motion on that issue. Therefore all
reasonable inferences must be construed in favor of the Bank.
      3
      A “reserve account” is an account kept by a bank to secure
against default by a borrower.     The Bank in this case kept a
reserve account for Tolbert’s debts on his retail installment
contracts. Michael maintains that Tolbert had assigned the reserve
account to him as assurance for his loans to Tolbert.

                                     6
him zero dollars out of the $120,000 reserve account that Tolbert

assigned to Appellant Michael.”     (App. Reply Br. 7-8.)

     In order to establish a breach of fiduciary duty, a plaintiff

must first show that a fiduciary relationship was formed, and

second that it was breached.     The fiduciary duty is a “duty to act

for someone else’s benefit, while subordinating one’s personal

interests to that of the other person.”       Elmore v. State Farm Mut.

Automobile Ins. Co., 202 W. Va. 430, 435, 504 S.E.2d 893, 898

(1998) (quoting Black's Law Dictionary 625 (6th ed. 1990)).             A

fiduciary relationship exists “whenever a trust, continuous or

temporary, is specially reposed in the skill or integrity of

another.”   McKinley v. Lynch, 58 W. Va. 44, 57, 51 S.E. 4, 9

(1905).     "As   a   general   rule,   a   fiduciary   relationship   is

established only when it is shown that the confidence reposed by

one person was actually accepted by the other, and merely reposing

confidence in another may not, of itself, create the relationship."

Id. (quoting C.J.S. Fiduciary at 385 (1961)) (emphasis added).

     The district court, in denying Michael’s motion for partial

summary judgment, found that there were disputed issues of material

facts for the jury to resolve at trial.       Specifically, the parties

disputed what Michael’s specific instructions to the Bank were with

regard to using the loan proceeds to pay Tolbert’s debts.        Michael

contended that he instructed the Bank only to pay off Tolbert’s

debts to Thrifty and wanted the Bank to act as a fiduciary to


                                    7
Michael; the Bank claimed that it understood the arrangement to be

a commercial loan from the Bank to Michael, followed by a loan from

Michael to Tolbert with the Bank acting as an agent of Tolbert,

taking    the    latter’s      direction     in      paying   down    his    business’s

obligations.       Because of this dispute, the jury was required to

resolve precisely what kind of contractual agreement existed among

the   three     parties,    and   so   the      district      court   denied    summary

judgment to Michael.4

      But even assuming arguendo that there was a contractual

relationship between the parties with respect to disbursal of the

loan proceeds, Michael cannot show undisputed facts establishing a

higher duty than contract – that of a fiduciary.                        Instead, from

what few facts are undisputed, it appears that this contract was

nothing more than one made incident to a standard commercial loan

between   creditor       and   debtor.          A    creditor-debtor     relationship

generally does not implicate the higher duty of a fiduciary.                           See

Knapp v. American General Finance, Inc., 111 F. Supp. 2d 758, 766

(S.D. W. Va. 2000).            On review of Michael’s motion for summary

judgment, this Court must take the facts in a light most favorable

to the Bank, as nonmovant.          The promissory note is insufficient to

create    a   fiduciary     relationship            and   because   Michael’s    verbal

instructions      were     disputed    by    the      Bank,   summary       judgment    is


      4
      At trial, the jury found in favor of the Bank that the
contractual relationship at issue was as the Bank alleged and,
therefore, had not been breached.

                                            8
inappropriate.      Therefore, we affirm the district court’s ruling

denying Michael’s motion for summary judgment.



                                       III

                                       A.

      We review a district court’s decision to admit or exclude

evidence for abuse of discretion. General Elec. Co. v. Joiner, 522

U.S. 136, 141-43, 118 S. Ct. 512, 517, 139 L. Ed. 2d 508, 516-17

(1997); Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41

F.3d 182, 188 (4th Cir. 1994).



                                       B.

      The district court excluded the videotaped trial deposition of

Edward George, II (“George”), the former President and Chairman of

the Board of Wesbanco.           Michael argues this was error.            The

district court’s reasoning for disallowing Mr. George’s testimony

was that he had no personal knowledge of the events at issue.              The

Bank argues that George’s testimony, while having some utility by

describing common banking procedures and practices, was cumulative

and of marginal probative value. Banking practices could have been

easily established by other witnesses in the case.           Michael argues

in response that George was competent to testify as a lay witness

as   to   banking   procedures   and    the   irregularity   of   the   Bank’s




                                        9
treatment of Michael’s loan proceeds, both of which were relevant

to the matter in dispute.

     Allowing George’s testimony as to banking procedures would

have been simply cumulative.           George was not designated as an

expert   witness   and   could   not    express   his   opinion   that   the

transaction was non-standard.          There were a number of banking

professionals who had been called as witnesses and who actually had

personal knowledge of the transaction.        They would have been able

to offer precisely the evidence for which Michael claims George was

necessary. George’s testimony adds nothing to the jury’s knowledge

of the case, while potentially distracting from or confusing the

issues for the jury.     The district court was well within the bounds

of its discretion in excluding the testimony.



                                   IV

     For the foregoing reasons, we affirm the district court on

both issues.

                                                                  AFFIRMED




                                   10
