Opinion
G052986
06-29-2017
DONALD SOLSBY, Plaintiff and Appellant, v. PLAZA BANK, Defendant and Respondent.
Mahoney & Soll and Paul M. Mahoney for Plaintiff and Appellant. Linda Van Winkle Deacon and Stephanie M. Saito for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00564559) OPINION Appeal from a judgment of the Superior Court of Orange County, Craig L. Griffin, Judge. Reversed and remanded. Mahoney & Soll and Paul M. Mahoney for Plaintiff and Appellant. Linda Van Winkle Deacon and Stephanie M. Saito for Defendant and Respondent.
Donald Solsby appeals from a judgment following the trial court's grant of summary judgment in favor of defendant Plaza Bank (the Bank)—Solsby's former employer—on a claim for breach of the Bank's obligation to pay him a bonus.
Solsby originally sued the Bank, which is insured by the Federal Depository Insurance Corporation (FDIC) and is thus subject to its regulation, alleging it had breached the terms of his severance agreement in two ways: first, when the Bank failed to pay him $165,000 owed in connection with the Bank's "change in control;" and second, when it failed to pay him an additional $165,000 owed as a consequence of the termination of his employment. However, in a prior opinion, we affirmed the trial court's summary adjudication of Solsby's claim for the latter payment, which qualified as a prohibited "golden parachute" under title 12 United States Code section 1828(k). (Solsby v. Plaza Bank (Feb. 17, 2015, G049272) [nonpub. opn.] (Solsby I).) Consequently, this appeal involves only Solsby's claim for the "change in control" bonus.
All further statutory references are to this title of the United States Code unless otherwise indicated.
Following remand in Solsby I, the Bank successfully moved for summary judgment, arguing it was not liable for Solsby's "change in control" bonus under section 1831o(f)(4)(A)(i). That provision prohibits an insured institution that is "significantly undercapitalized" from paying any bonus to a senior executive without written FDIC approval. The Bank demonstrated that before the date Solsby's "change in control" bonus became due, the FDIC had notified the Bank it was significantly undercapitalized.
On appeal, Solsby argues the trial court erred in granting summary judgment because (1) the Bank was, in fact, adequately capitalized on the date his bonus became due, and (2) even if the bonus was not payable on the date it became due, the Bank nonetheless became obligated to pay it when the FDIC rescinded its "significantly undercapitalized" designation and deemed the Bank adequately capitalized.
We agree with the second contention, and thus reverse the judgment. Section 1831o(f)(4)(A)(i) applies only to significantly undercapitalized institutions. There is substantial evidence in the record demonstrating the FDIC changed the Bank's capital category, deeming it "adequately capitalized," only two weeks after Solsby's bonus payment became due. Assuming that occurred, the Bank was no longer required to obtain FDIC approval before making the bonus payment. Thus, the trial court erred by granting summary judgment in favor of the Bank.
FACTS
Solsby's complaint states a single cause of action for breach of contract, alleging that in October 2008 the parties entered into a severance agreement, and that the Bank breached the agreement by failing to pay him in accordance with its terms. He sought damages "in excess of $330,000 according to proof."
In January 2013, the Bank moved for summary judgment, arguing FDIC regulations prohibit its payment of the disputed obligations set forth in Solsby's severance agreement. The Bank asserted the payments claimed by Solsby qualified as "golden parachutes" under 12 Code of Federal Regulations parts 359.0(b) - 359.1(f) (2014), and because the Bank had already been determined by the FDIC to be a "troubled institution" when it entered into the severance agreement with Solsby, the agreement required the FDIC's advance written approval before it could be enforced, which approval was never obtained. (Solsby I, supra, G049272, p. 2.)
The underlying facts of the parties' relationship—as well as the circumstances surrounding their dispute—were fleshed out in connection with the Bank's motion for summary judgment. They were essentially undisputed.
Solsby entered into his employment agreement with the Bank in January 2006, agreeing to serve as the Bank's president and chief executive officer (CEO), at a salary of $165,000, plus bonuses. Among other provisions, the agreement contained a Section 12, which governed Solsby's rights in the case of a "merger, consolidation or reorganization" of the Bank. It also defined the term "change in control," which generally applied in situations where a change in ownership results in the Bank's current shareholders owning less than 50 percent of its shares.
Section 12(c) of the agreement then set forth the details of the bonus payments Solsby would be entitled to receive if (1) the Bank underwent a "change in control," and (2) his employment was terminated in connection with that termination. The provision stated Solsby would be paid the equivalent of one year's base salary (the "bonus"), if the Bank underwent a "change in control," without regard to the termination of his employment, but would be entitled to an additional payment equivalent to a year's base salary (the "severance compensation") if his employment was terminated in connection with such a "change in control."
The Bank did not perform as well as Solsby and his colleagues had hoped. Although there is a dispute about whether Solsby bore responsibility for that lackluster performance, that dispute is not relevant for our purposes. What is pertinent, and undisputed, is that the Bank was declared by the FDIC to be in a "troubled condition" in January 2008. Thus, as we explained in Solsby I, "[i]n late 2007 and early 2008, the Bank began seeking additional capital investment. In October 2008, the Bank entered into a stock purchase agreement with a third party, Carpenter Fund, which all parties agreed qualified as a 'change in control' of the Bank. Moreover, the parties agreed that Solsby's employment would be terminated when that 'change in control' became effective; i.e., on the date when the stock purchase transaction Carpenter Fund closed. These agreements were memorialized in Solsby's 'Severance Agreement,' which was signed on the same day as the Carpenter Fund stock purchase agreement. The severance agreement essentially incorporated, without change, the provisions of Solsby's employment agreement which entitled him to be paid the 'change in control' bonus and the severance compensation, specifying that '[s]ubject to the terms of [his] Employment Agreement: (a) [the Bank] will pay to [Solsby] on the Closing Date a cash lump sum Bonus in the amount of . . . ($165,000.00) . . .; and (b) [the Bank] will also pay to [Solsby] Severance Compensation in the total amount of . . . ($165,000.00), payable in twenty four (24) substantially equal and semi-monthly installments over a twelve (12) month period . . . .'" (Solsby I, supra, G049272, pp. 6-7.)
On May 28, 2009, the FDIC issued a "Prompt Corrective Action" letter to the Bank, which notified it that the FDIC had determined its capital category to be "significantly undercapitalized," and that it was subject to various restrictions, including the restriction on "senior executive compensation."
The Carpenter Fund stock purchase transaction closed in June 2009, at which time Solsby's employment terminated in accordance with the terms of his severance agreement. The Bank thereafter declined to pay Solsby either the change in control bonus or the severance compensation provided for in his severance agreement.
The trial court granted the Bank's initial motion for summary judgment, concluding that both Solsby's "change in control" bonus and his severance compensation qualified as prohibited golden parachutes, and that as a consequence, the Bank had no obligation to pay them. In Solsby I, we agreed the severance payment qualified as a golden parachute, but concluded the "change in control" bonus did not because its payment was not contingent on the termination of Solsby's employment with the Bank. (Solsby I, supra, G049272, pp. 16-18.)
Following remand, the Bank again moved for summary judgment, arguing that payment of Solsby's "change in control" bonus was also prohibited under a different statute, section 1831o(f)(4), because the Bank had been declared "significantly undercapitalized" by the FDIC shortly before the bonus payment became due. Under section 1831o(f)(4)(A)(i), a significantly undercapitalized institution cannot pay any bonuses to senior executives absent approval by the regulator, and in this case, no such approval was obtained by the FDIC.
The Bank made the same assertion in its respondent's brief in Solsby I. However, we declined to consider the assertion in that appeal because the Bank had not relied upon it as a basis for summary judgment in the trial court. (Solsby I, supra, G049272, p. 18.)
However, as Solsby pointed out in his opposition to the summary judgment, the Bank's change in control transaction had included a $17 million cash infusion to the Bank, which had funded on the same day the change in control became effective—and the same day Solsby's bonus became payable. Thus, Solsby argued the Bank had actually been adequately capitalized as of that date. He also argued that even if the trial court concluded the Bank qualified as significantly undercapitalized on the date his bonus became payable, there was undisputed evidence the FDIC had rescinded that determination in fairly short order—deeming the Bank "adequately capitalized"—and consequently his bonus was thereafter payable without any requirement of FDIC approval.
The trial court once again agreed with the Bank, ruling it had been prohibited from paying Solsby the "change in control" bonus on the day it became due because the Bank was deemed by the FDIC to be undercapitalized on that date. Additionally, the court rejected Solsby's contention the Bank became obligated to pay his bonus once the FDIC rescinded its "significantly undercapitalized" determination and declared the Bank to be "adequately capitalized." The court concluded instead that once a bonus payment becomes subject to FDIC approval under section 1831o(f)(4)(A)(i), it can never be paid without that approval, even if the institution thereafter repairs its capital deficiency.
DISCUSSION
I. Standard of Review
We apply a de novo standard in reviewing an order granting summary judgment. "Because a motion for summary judgment raises only questions of law, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. [Citations.] In practical effect, we assume the role of a trial court and apply the same rules and standards governing a trial court's determination of a motion for summary judgment. [Citation.] We liberally construe the evidence in support of the party opposing summary judgment [citation] and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under the applicable legal standards." (City of San Diego v. Haas (2012) 207 Cal.App.4th 472, 487.) The de novo standard also applies to issues of statutory and regulatory interpretation. (See Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 ["[s]tatutory interpretation is a question of law that we review de novo"]; Harbor Regional Center v. Office of Administrative Hearings (2012) 210 Cal.App.4th 293, 305 ["Our interpretation of the relevant statutes and regulations . . . is still de novo, even where we determine questions concerning the application of the law to the facts"].) II. The Prompt Corrective Action Statute
The purpose of section 1831o, the statute at issue in this appeal, is "to resolve the problems of insured depository institutions at the least possible long-term loss to the Deposit Insurance Fund" (§ 1831o(a)(1)), and it requires that "[e]ach appropriate Federal banking agency . . . shall carry out the purpose of this section by taking prompt corrective action to resolve the problems of insured depository institutions." (§ 1831o(a)(2).) As the reference to the Deposit Insurance Fund makes clear, the goal of the statute is to resolve an insured institution's capital problems, which might adversely impact its ability to pay its depositors. (§ 1821(a)(4).)
The statute defines the capital categories applicable to insured institutions, which include "well capitalized," "adequately capitalized," "undercapitalized," "significantly undercapitalized," and "critically undercapitalized." (§ 1831o(b)(1), capitalization omitted.) It then sets forth capital restrictions applicable to all institutions, as well as additional restrictions and requirements that are applicable to the various categories of undercapitalized institutions.
Section 1831o(f), applies to "significantly undercapitalized" institutions, and authorizes the banking agency (in this case, the FDIC) to take specific measures to increase the bank's capitalization, including (1) ordering the bank to sell stock, (2) restricting its transactions and the interest rates it pays, (3) dismissing its senior executives and directors, (4) requiring it to divest subsidiaries, and (5) "tak[ing] any other action that the agency determines will better carry out the purpose of this section than any of the actions described in this paragraph." (§ 1830o(f)(2)(J).)
And the specific provision at issue here, section 1831o(f)(4)(A)(i), prohibits the significantly undercapitalized institution from "[p]ay[ing] any bonus to any senior executive officer" unless it has obtained "the prior written approval of the appropriate Federal banking agency." III. The Bank's Obligation to Pay Solsby's Bonus on the Day it Became Due
Solsby's first contention is that the trial court erred in granting summary judgment because there was sufficient evidence the Bank was adequately capitalized on June 5, 2009, the date his change in control bonus became payable. He points to evidence reflecting that (1) as part of the Bank's change in control, it received a $17.6 million capital infusion on that same date, which rendered it adequately capitalized; and (2) the FDIC then "rescinded" its determination that the Bank was significantly undercapitalized.
We cannot agree. The relevant issue is not whether the Bank was actually adequately capitalized on June 5, 2009, but instead whether it remained subject to the restrictions placed on a "significantly undercapitalized" institution under section 1831o(f), as of that date. It did. According to 12 Code of Federal Regulations part 325.102 (2017), a bank is "deemed" to fall within whatever capital category the FDIC has given it notice of: "A bank shall be deemed to be within a given capital category for purposes of section 38 of the FDI Act and this subpart as of the date the bank is notified of, or is deemed to have notice of, its capital category, pursuant to paragraph (b) of this section." (12 C.F.R. § 325.102(a) (2017).)
"A bank shall be deemed to have been notified of its capital levels and its capital category as of the most recent date: [¶] (1) A Consolidated Report of Condition and Income (Call Report) is required to be filed with the FDIC; [¶] (2) A final report of examination is delivered to the bank; or [¶] (3) Written notice is provided by the FDIC to the bank of its capital category for purposes of section 38 of the FDI Act and this subpart or that the bank's capital category has changed as provided in § 325.103(d)." (12 C.F.R. § 325.102(b) (2017).)
Thus, once the FDIC notified the Bank, on May 28, 2009, that it fell within the "[s]ignificantly [u]ndercapitalized" category, it retained that capital category—and thus remained subject to the restrictions pertaining to that category—until the FDIC notified it that it fell within a different capital category. As Solsby acknowledges, that notice did not come until June 19, 2009. Consequently, the Bank remained subject to the restrictions applicable to a significantly undercapitalized institution, including the restriction on paying executive bonuses, until the FDIC notified it of its new capital category on June 19, 2009. IV. The Bank's Obligation to Pay Solsby's Bonus Once the FDIC Deemed it Adequately Capitalized
Solsby also argues the summary judgment must be reversed because even if section 1831o(f)(4)(A)(i) prohibited the Bank from paying his change in control bonus on the day the parties' agreement specified it was due, that prohibition no longer applied once the FDIC notified the Bank two weeks later that its capital category had been changed to "adequately capitalized." And once the prohibition was lifted, the Bank was free to pay Solsby's bonus without obtaining FDIC approval. We agree.
"Statutory interpretation requires a three-step process. First, a court should examine the actual language of the statute, giving the words their ordinary, everyday meaning. [Citation.] If the meaning is without ambiguity, doubt, or uncertainty, then the language controls and there is nothing to 'interpret' or 'construe.' [Citation.] If the meaning of the words is not clear, a court must take the second step and refer to the legislative history. [Citation.] The final step, which is to apply reason, practicality, and common sense to the language at hand, should only be taken when the first two steps have failed to reveal clear meaning." (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1143-1144.)
Section 1831o(f)(4)(A)(i) prohibits a significantly undercapitalized institution from paying a bonus to a senior executive; it says nothing about erasing the obligation itself. Moreover, nothing in the statute suggests that the numerous restrictions it imposes on the various categories of undercapitalized institutions would remain in effect even after those institutions had satisfactorily addressed their capital deficiencies.
To the contrary, the statute clearly specifies that the restrictions it imposes are to be applied to insured institutions on the basis of their current capital category—with the goal of promptly correcting a capital deficiency—not on the basis of the worst capital category an institution had ever sunk to in the past. For example, section 1831o(f) states that its restrictions apply to "significantly undercapitalized institutions"; it does not say they apply to "all institutions that have ever been significantly undercapitalized."
The Bank interprets section 1831o differently, concluding that the requirement in section 1831o(f)(4)(A)(i) that the Bank obtain FDIC approval before paying Solsby's change in control bonus would continue to apply even after the Bank's capital had been restored. But this conclusion is based entirely on an analysis of the policies it believed were served by section 1831o, rather than the actual language of the statute. .
Thus, the Bank argues that allowing a bank to pay "previously accrued executive bonuses immediately upon an infusion of capital sufficient to lift a bank out of its undercapitalized status would do nothing to support" the statutory purpose of "resolv[ing] the problems of insured depository institutions at the least possible long-term loss to the Deposit Insurance Fund." But the flaw in this reasoning is its failure to recognize that once a bank has been "lift[ed] out of its undercapitalized status" the statutory purpose of section 1831o has already been fulfilled. An adequately capitalized institution is no longer in need of "prompt corrective action" to resolve its capital deficiency, and it no longer poses any significant risk of loss to the Deposit Insurance Fund. (§ 1831o(a)(2).)
The Bank also pointed out that "requiring a bank to immediately pay off all accrued executive bonuses without FDIC approval could have the effect of jeopardizing the bank's newly recovered 'adequately capitalized' status. Moreover, a large amount of accrued executive bonuses could have a chilling effect on potential investors, who wish their investment to be used toward solidifying the bank's capital situation, not the enrichment of former high level executives who may have placed the bank into its precarious situation to begin with."
In its respondent's brief, the Bank revised this passage from the court's minute order only to the extent of changing the trial court's non-specific (lower case) references to "a bank" and "the bank" to specific (upper case) references to itself; i.e., "the Bank," and by adding the phrase "and could undermine public confidence in the banking industry" before the word "Moreover." --------
In theory, those concerns might impact some cases—although the former seems unlikely as there is a significant financial gap between an "adequately capitalized" bank and one that is "significantly undercapitalized" (which is the capital category that requires FDIC approval for payment of executive bonuses), and the latter is based entirely on speculation. But neither concern is referenced anywhere in section 1831o, and we could not infer the statute was intended to address them merely because they are conceivable. "In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted." (Code Civ. Proc., § 1858.)
In granting summary judgment, the trial court drew an analogy between section 1831o's prohibition against significantly undercapitalized institutions paying executive bonuses and the separate statutory prohibition against "troubled institutions" paying "golden parachutes," which we analyzed in Solsby I. As we explained in that opinion, when a bank has been determined to be a "troubled institution," the FDIC may "prohibit or limit" its payment of a "golden parachute" to a departing insider. (§ 1828(k)(1); 12 C.F.R. §§ 359.2, 359.4 (2014).) And once an individual's "golden parachute" payment is prohibited under that rule, it is prohibited forever, even if the bank later sheds the "troubled institution" designation. (Solsby I, supra, G049272 p. 15.)
In its minute order, the trial court reasoned that because the policy behind both payment prohibitions is "the same: 'to prevent troubled banks from draining their assets through payments to high-ranking employees,'" it made sense to infer that a similarly permanent prohibition would apply to a bonus payment that falls within section 1831o(f)(4). As the court explained, "[n]othing suggests the provisions governing senior executive officer bonuses should be interpreted any differently" than those governing golden parachutes.
Again, we cannot agree. If the policy prohibiting golden parachutes also applies to bonus payments, then one would expect a statutory or regulatory expression similar to the golden parachute prohibition, but none exists. Rather, a comparison of the two statutes, and the regulations supporting them, demonstrates the policies they serve are quite different. The policy behind section 1831o is not to "prevent troubled banks from draining their assets through payments to high-ranking employees." Instead, it serves a much broader policy of resolving the problems of capitally deficient institutions in order to minimize their impact on the Deposit Insurance Fund. (§ 1831o(a).) The statute effectuates that policy by giving the regulator substantial authority to oversee and direct the operations of an undercapitalized institution, with the goal of preserving its capital and overseeing the creation of capital restoration plan. And one of the many things included within that broad authority is the right to restrict the payment of executive bonuses by a significantly undercapitalized institution. In the context of the statute as a whole, it is clear that right is merely one of the available tools in the overall effort to preserve and restore the institution's capital; limiting executive pay in individual cases is not the purpose of the statute.
By contrast, section 1828(k) does limit the payment of certain kinds of executive compensation, including golden parachutes, based on the circumstances of individual cases. It gives the regulator authority to "prohibit or limit, by regulation or order, any golden parachute" (§ 1828(k)(1)), and requires that decision to be based on an analysis of the proposed recipient's performance while affiliated with the institution. (§ 1828(k)(2).) Thus, the regulator's approval or rejection of an individual's golden parachute payment incorporates an assessment of whether the intended recipient deserves the payment.
Moreover, while both a golden parachute payment subject to section 1828(k), and a bonus payment subject to section 1831o(f)(4), can be made with the approval of the FDIC, the approval process is quite different for each. Those differences demonstrate why the permanency of a golden parachute prohibition should not be applied to a bonus payment restricted under section 1831o(f)(4).
As we noted in Solsby I, the FDIC's approval of an otherwise prohibited "golden parachute" payment can be requested by either the institution or the individual (12 C.F.R. § 359.4(a)(4) (2017)). Thus, the executive who has been promised a golden parachute is not dependent upon his or her employer to make the case for approval. By contrast, the prohibition against the payment of an executive bonus by a significantly undercapitalized institution under section 1831o(f)(4), makes no allowance for the individual to seek FDIC approval of the payment. Instead, 12 Code of Federal Regulations part 303.205(a) (2017) states: "Any insured state nonmember bank or insured branch of a foreign bank that is significantly or critically undercapitalized . . . shall submit an application to pay a bonus or increase compensation for any senior executive officer."
Further, the content of such an application does not address the merits of the individual executive's claim for the bonus, as a request for approval of a golden parachute must do. (See 12 C.F.R. § 359.4(a)(4) (2017).) Instead, it addresses only numbers and the state of the institution's capital restoration plan: "Applications shall list each proposed bonus or increase in compensation, and for the latter shall identify compensation for each of the twelve calendar months preceding the calendar month in which the institution became undercapitalized. Applications also shall state the date the institution's capital restoration plan was accepted by the FDIC, and describe any progress made in implementing the plan." (12 C.F.R. § 303.205(b) (2017).)
Given these significant distinctions, we could not conclude that the "forever" ban on paying an individual's prohibited "golden parachute," despite any subsequent improvement in the institution's financial status, should also be applied to the prohibition against paying executive bonuses under section 1831o(f)(4). The regulator's approval or rejection of a "golden parachute" payment can be sought by either the institution or the individual, and will incorporate the merits of the proposed recipient's individual claim. And the fact the institution's financial condition might have improved following the individual's departure—allowing the institution to shed its "troubled" designation—does nothing to improve the merits of that individual's claim. Thus, it makes sense that once an insider's "golden parachute" payment is prohibited under this rule, that prohibition will be final.
But the regulator's consideration of a bonus payment otherwise prohibited by section 1831o(f)(4) has nothing to do with the individual executive to whom that bonus is owed. The executive has no right to even seek the regulator's approval of the payment, and even if he or she could, the regulator's decision is limited to an assessment of the institution's capital situation, rather than the merits of the executive's bonus claim. And given that focus, a subsequent improvement in the institution's capital would have a direct impact on the merits of that assessment. If the institution's capital improves, the justification for withholding the executive's bonus payment falls away.
We consequently reject the suggestion that the prohibition against paying an executive bonus under section 1830o(f)(4), has the same permanent effect as the prohibition of a "golden parachute" payment by a troubled institution.
Finally, the Bank also relies on contract law to argue that because it was required by section 1831o(f)(4), to obtain approval for payment of Solsby's bonus on June 5, 2009, the date the parties' contract specified that bonus became "due," that approval requirement was forever incorporated into the parties' agreement. Not so.
The Bank's argument is grounded on the well-settled legal principle that "'"all applicable laws in existence when an agreement is made, which laws the parties are presumed to know and to have had in mind, necessarily enter into the contract and form a part of it, without any stipulation to that effect, as if they were expressly referred to and incorporated."'" (Swenson v. File (1970) 3 Cal.3d 389, 393.) Further, the Bank points out that the parties' agreement "expressly provided for the fact that the law might change." Based on those principles, the Bank theorizes that because it was significantly undercapitalized on the date Solsby's bonus bec[a]me due, section 1831o's requirement of FDIC approval for Solsby's bonus payment "became part of the contract." Not so.
Stated simply, the Bank's assertion conflates a change in the pertinent law—section 1831o—with a change in the facts. Section 1831o did not change. What did change was the Bank's capital category. As long as the Bank's capital category was "substantially undercapitalized," the application of section 1831o(f)(4) to the parties' agreement required the Bank to obtain FDIC approval before it could pay Solsby's bonus. Absent that approval, the Bank was not contractually obligated to make the payment. But when the facts changed again, and the Bank was deemed to be "adequately capitalized," the application of existing law to the parties' agreement no longer required that the FDIC approve the payment of Solsby's bonus. At that point—assuming no other defenses existed—the Bank's failure to pay became a breach of its agreement.
For all of the foregoing reasons, we conclude the trial court erred by concluding that even after the Bank's capital was restored and it was deemed "adequately capitalized," section 1831o still prohibited the payment of Solsby's bonus in the absence of FDIC approval.
DISPOSITION
The judgment is reversed and the case is remanded to the trial court with directions to vacate its order granting summary judgment in favor of the Bank and enter an order denying that motion. Solsby is to recover his costs on appeal.
O'LEARY, P. J. WE CONCUR: ARONSON, J. THOMPSON, J.