Burns v. Anderson , 123 F. App'x 543 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2162
DONALD A. BURNS,
Plaintiff - Appellee,
versus
WALTER C. ANDERSON; GOLD & APPEL TRANSFER,
S.A.; REVISION LLC; ENTREE INTERNATIONAL
LIMITED,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CA-02-1326-A)
Argued: September 29, 2004 Decided: December 15, 2004
Before WIDENER, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Michael Joshua Lichtenstein, SWIDLER, BERLIN, SHEREFF,
FRIEDMAN, L.L.P., Washington, D.C., for Appellants. Michael E.
Wiles, DEBEVOISE & PLIMPTON, L.L.P., New York, New York, for
Appellee. ON BRIEF: Steven J. Tave, SWIDLER, BERLIN, SHEREFF,
FRIEDMAN, L.L.P., Washington, D.C., for Appellants. Sean Mack,
DEBEVOISE & PLIMPTON, L.L.P., New York, New York, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
This case involves a dispute arising out of the default by
Appellants Walter C. Anderson, Gold & Appel Transfer, S.A., and
Revision LLC (collectively referred to as “the Borrowers”) on a
$14,310,400 loan by Appellee Donald A. Burns. The district court
awarded Burns $11,633,874.87, as money due under the parties’ loan
agreement. The Borrowers appeal the district court’s award on
three grounds. First, the Borrowers maintain that the district
court erred in concluding Burns disposed of the collateral for the
loan in accordance with the New York Uniform Commercial Code.
Second, the Borrowers challenge the district court’s admission of
the testimony of Burns’s expert witness. Third, the Borrowers
argue that the district court should not have adopted the report
and testimony of Burns’s expert witness as a guide in calculating
Burns’s damages. Finding no error, we affirm.
I.
Burns lent the Borrowers $14,310,400, which was to be repaid
to Burns plus interest on or before December 31, 2001. The parties
memorialized this loan agreement in the Amended and Restated
Promissory Note dated March 1, 2001, and Amendment No. 1 to the
Amended and Restated Promissory Note dated November 1, 2001
(together referred to as “the Note”).
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As collateral for the Note, Anderson, Gold & Appel, Revision,
and one other entity, not a party to this suit (collectively
referred to as “the Pledgors”), signed an Amended and Restated
Pledge Agreement, and pledged certain shares of Covista
Communications, Inc. stock, a thinly traded stock registered on the
NASDAQ. With respect to the Covista stock, the Pledge Agreement
provided that, in the event of the Borrowers’ default on the Note,
Burns may sell the Collateral at a “private sale . . . upon such
terms and conditions as it may deem advisable.” J.A. 1849.
Further, Burns “may be a purchaser of the Collateral . . . at any
sale . . . and may apply against the purchase price the
indebtedness secured hereby.” J.A. 1852.
Under the Pledge Agreement, moreover, the
Pledgors . . . acknowledge that the [Covista stock].
. . is . . . of a type customarily sold on a recognized
market, in each case within the meaning of [New York
Uniform Commercial Code § 9-610] . . . .
. . . .
Pledgor[s] further recognize[] that the market for the
Pledged Stock is illiquid and that a public sale of the
Pledged Stock in a significant quantity could have an
adverse effect on the market price for the Pledged Stock.
Therefore, Pledgor[s] acknowledge[] and agree[] that . .
. no private sale of the Pledged Stock (whether such sale
is to the Pledgee or to a third party) will be deemed to
have been made in a commercially unreasonable manner for
the reason that it was made at a price that reflects a
discount from the then current market price of such
Pledged Stock. Pledgor[s] further acknowledge[] and
agree[] that, to the fullest extent permitted by
applicable law, any such discount that is calculated in
accordance with an appraisal of the Pledged Stock by an
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independent appraiser . . . shall be deemed to be
commercially reasonable.
J.A. 1850, 1852-53 (emphasis added).
Burns later agreed to extend the Note’s maturity date from
December 31, 2001 to February 11, 2002. When the Borrowers failed
to repay Burns by February 11, 2002, however, Burns served the
Borrowers with a “Notice of Default.” J.A. 82. Burns also mailed
the Pledgors a “Notification of Disposition of Collateral” on April
3, 2002. J.A. 1872. The notification stated:
Please be advised that:
(1) The Pledgee will effect a private sale of all or
a portion of the [Covista stock] sometime after April 15,
2002.
(2) You are entitled to an accounting of the unpaid
indebtedness secured by the shares that the Pledgee
intends to sell for a fee of $2,500. You may request an
accounting by calling Gary E. Murphy . . . .
J.A. 1873 (emphasis added).
Burns then contacted John Rachlin, Senior Vice-President of
Merrill Lynch, to seek advice on “how to handle the transfer of the
pledged Covista [stock].” J.A. 554. Based upon the advice and
information he received, Burns retained Valuation Services, Inc.,
an independent appraiser, to issue a report regarding the value of
the Covista stock. Russell Bregman, an employee of Valuation
Services, prepared a report on April 15, 2002, and valued the
shares of Covista stock subject to the Pledge Agreement at
$7,924,332.
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Shortly after the mailing of the Notice of Disposition,
however, Anderson sent Burns an e-mail message, advising Burns that
“[y]ou will not get a good price per share by selling the shares
now. [Covista] has just merged . . . and the results of that
merger along with the other activities of the [Covista] management
will on[l]y become apparent in the next few quarters.” J.A. 1544-
45. Based on this advice, Burns delayed selling the Covista stock
in April.
At Burns’s request, Bregman updated the April 15, 2002 report
on August 12, 2002, and valued the Covista stock at $5,635,403.
That same day, Burns, with the assistance of John Rachlin,
submitted to American Stock Transfer the original stock
certificates and powers of the pledged Covista stock. A transfer
agent issued the replacement Covista stock certificates in Burns’s
name, and based on the August 12, 2002 report produced by Valuation
Services, $5,635,403 was deducted from the amount the Borrowers
owed under the Note. Burns memorialized this transaction by filing
a Schedule 13D with the Securities and Exchange Commission, stating
in pertinent part:
On September 6, 2002, pursuant to an exercise of remedies
under [the Pledge Agreement], . . . [Burns] took title to
[the pledged Covista stock]. . . . As consideration
therefor, the Borrowers received a credit toward
repayment of their outstanding obligations under the
Current Note . . . in the approximate amount of
$5,635,403.
J.A. 566.
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Because the Covista stock satisfied only a portion of the
amount due under the Note, Burns commenced suit against the
Borrowers seeking monetary damages in the amount remaining due
under the Note. Burns filed a motion for summary judgment,
maintaining that there was no dispute as to the amount of the loan;
that the Borrowers were in default on the loan; that Burns properly
took ownership of the Covista stock; and that the valuation of the
Covista stock was commercially reasonable as a matter of law. The
district court granted partial summary judgment in favor of Burns,
finding that Burns had properly “exercised his rights to the
collateral in accord with [New York Uniform Commercial Code]
section 9-610.” Mem. Op. of Mar. 31, 2003, J.A. 708. As to
whether the sale price of the collateral was commercially
reasonable, the district court found disputed issues of material
fact remained for trial.
At trial, Burns produced the Valuation Services report and
offered the testimony of Russell Bregman, the author of the report,
to demonstrate the commercial reasonableness of the sale price.
The district judge qualified Bregman as an expert and admitted his
testimony regarding the value of the Covista stock under Rule 702
of the Federal Rules of Evidence. The Borrowers failed to proffer
any theory of their own as to the stock value, but instead relied
solely on attacking the Valuation Services report and Bregman’s
testimony. The district court found Bregman’s testimony of
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sufficient weight to guide the court in its determination of
damages and adopted, as commercially reasonable, the Valuation
Services report, calculating the worth of the Covista stock at
$5,635,403. The district court deducted this amount from the
amount due under the Note and entered judgment against the
Borrowers, jointly and severally, in an amount of $11,633,874.87,
plus fees, costs, and interest.
II.
The Borrowers first argue that Burns failed to dispose of the
Covista stock in accordance with section 9-610 of the New York
Uniform Commercial Code (“NY UCC”). Whether Burns’s conduct
complied with section 9-610 is a question of statutory
interpretation. We review a district court’s statutory
interpretation de novo. See WLR Foods, Inc. v. Tyson Foods, Inc.,
65 F.3d 1172, 1178 (4th Cir. 1995).
In the event of a debtor’s default, section 9-610 of the NY
UCC permits a secured party to sell collateral and apply the
proceeds of the sale towards the outstanding debt. N.Y. U.C.C. §
9-610. A secured party may purchase the collateral himself “at a
private disposition . . . if the collateral is of a kind that is
customarily sold on a recognized market.” Id. § 9-610(c)(2)
(emphasis added).
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The Borrowers claim that Burns’s actions are insufficient to
amount to a purchase of collateral at a “private disposition” under
section 9-610. The Borrowers contend that to purchase stock at a
private disposition under section 9-610, the disposition must
demonstrate some “traditional indicia of a sale,” including
solicitation, negotiation, and the presence of a buyer and seller
whose interests with respect to the price are at odds. Reply Brief
of Appellants at 7.
Neither section 9-610 nor any other provision of the NY UCC
points to the limited view of the phrase “private disposition”
suggested by the Borrowers.* The plain language of section 9-
610(b) instructs that so long as “[e]very aspect of a disposition
of collateral, including the method, manner, time, place, and other
terms, . . . [is] commercially reasonable. . . . a secured party
may dispose of collateral by . . . private proceedings . . . at any
time and place and on any terms.” Id. § 9-610(b) (emphasis
added). Section 9-610, therefore, requires that the time, place,
and terms of any disposition of collateral be commercially
reasonable. Except for the requirement of commercial
*
The Borrowers refer to section 2-706 comment 4, which
states that a “‘private’ sale may be effected by solicitation and
negotiation conducted either directly or through a broker.” N.Y.
U.C.C. § 2-706 cmt. 4 (emphasis added). This comment regarding an
Article 2 provision by its own terms provides only one possible
method by which a party may conduct a “private sale.” It does not
purport to establish the exclusive means for conducting a private
sale.
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reasonableness, however, the time, place, and terms of a
disposition of collateral under section 9-610 remain unconstrained
by the NY UCC. Indeed, section 9-601(a) recognizes that the rights
of a secured party after default are those “rights provided in this
part and . . . those provided by agreement of the parties.” Id. §
9-601(a).
In this case, Burns took absolute title to the Covista stock
for an independently appraised value and applied that value to
reduce the debt under the Note. These actions followed precisely
the sale method with respect to the Covista stock afforded to Burns
and agreed to by the parties under the Pledge Agreement. Accord
N.Y. U.C.C. § 2-106 (defining “sale” as the “passing of title from
the seller to the buyer for a price”). We agree with the district
court, moreover, that the time, place, and terms of Burns’s
purchase of the Covista stock was commercially reasonable. Mem.
Op. of Aug. 1, 2003, J.A. 1997-2011. Cf. Cole v. Manufacturers
Trust Co., 299 N.Y.S. 418, 420-29 (Sup. Ct. 1937) (finding no
“private sale” where pledgee made entries on books showing transfer
of collateral and credit upon the pledgor’s notes because, in part,
pledge agreement did not expressly authorize the pledgee to retain
the collateral at a fair value or at an appraised value and apply
the proceeds on the loan). Because Burns adhered exactly to the
stock sale method provided under the Pledge Agreement and the time,
place and terms of the disposition was commercially reasonable, we
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find that Burns purchased the Covista stock by private disposition
as contemplated under section 9-610 of the NY UCC.
The decisions cited by the Borrowers to demonstrate that
Burns’s actions fail to constitute a disposition under section 9-
610 are not persuasive. None of these cases are akin to the
material facts present here. In Sports Courts of Omaha, Ltd. v.
Brower, 534 N.W.2d 317 (Neb. 1995), the secured creditor, unlike
Burns, failed to transfer title to himself for valuable
consideration. Nor did the pledge agreement in Sports Court, as
did the Pledge Agreement here, expressly provide for disposition by
private sale in the manner utilized by the secured creditor.
Unlike this case, moreover, the parties in In re Copeland, 531 F.2d
1195 (3d Cir. 1976), made no agreement as to the method by which
the secured creditor could dispose of the collateral after default.
Finally, Lamp Fair, Inc. v. Perez-Ortiz, 888 F.2d 173 (1st Cir.
1989), is inapposite, because the court simply held that a secured
party’s repossession of a store does not involve collateral of the
kind customarily sold on the recognized market and, therefore,
cannot fall under section 9-610. The Covista stock, in contrast,
is a type of collateral customarily sold on the recognized market.
The district court’s conclusion, furthermore, does not
eviscerate any distinction in the NY UCC between a secured party’s
retention of collateral under section 9-620 and a secured party’s
disposition of collateral under section 9-610. To proceed under
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section 9-620, a secured creditor must obtain a debtor’s consent to
acceptance of the collateral in satisfaction of all or a portion of
the debt, usually by sending a proposal to the debtor setting forth
the terms under which the secured party is willing to accept the
collateral and obtaining the debtor’s consent to the proposal in
writing after default. N.Y. U.C.C. § 9-620(a)(1), (b), (c) & off.
cmts. 3-5. There is no evidence to suggest that Burns retained the
Covista stock under section 9-620. See Chrysler Credit Corp. v.
Mitchell, 464 N.Y.S.2d 96, 97 (Sup. Ct. App. Div. 1983) (finding in
the absence of written notice to the debtor that the court may not
imply the creditor elected to take the collateral in satisfaction
of the debt under section 9-620).
In addition, the proposal and consent prerequisites to
retaining collateral in satisfaction of all or a portion of the
debt under section 9-620 protect a debtor from any commercially
unreasonable determination of the value of the collateral and
corresponding prejudicial reduction of the debt, whereas section
9-610 affords a debtor the protection of the commercial
reasonableness standard. Because the disposition of the Covista
stock was commercially reasonable, the Borrowers cannot establish
that they were prejudiced in any way by Burns’s election to dispose
of the Covista stock under section 9-610 rather than to retain it
under section 9-620.
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Accordingly, we find that Burns purchased the Covista stock at
a private disposition in accordance with section 9-610 of the New
York Uniform Commercial Code.
III.
The Borrowers next claim the district court should not have
admitted the testimony of Burns’s expert, Russell Bregman,
regarding the value of the Covista stock pursuant to Federal Rule
of Evidence 702. This court gives “‘great deference’ to a district
court’s decision to admit or exclude expert testimony,” TFWS v.
Schaefer, 325 F.3d 234, 240 (4th Cir. 2003), reviewing the decision
only for abuse of discretion. See General Elec. Co. v. Joiner, 522
U.S. 136, 143 (1997). Expert testimony is admissible if it is
reliable and “will assist the trier of fact to understand the
evidence or to determine a fact in issue.” Fed. R. Evid. 702. To
determine whether expert testimony is reliable, “a court evaluates
the methodology . . . that the proffered . . . technical expert
uses to reach his conclusion; the court does not evaluate the
conclusion itself.” TFWS, 325 F.3d at 240.
The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), set forth the following nonexclusive
checklist for assessing the reliability of expert testimony: (1)
whether the expert's theory can be or has been tested; (2) whether
the theory has withstood peer review and publication; (3) whether
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there is a known or potential rate of error; (4) whether standards
exist for the application of the theory; and (5) whether the theory
has been generally accepted by the relevant scientific community.
See id. at 593-94; see also Kumho Tire Co. v. Carmichael, 526 U.S.
137, 149 (1999) (extending Daubert to technical experts).
After careful consideration, the district court admitted
Bregman’s expert testimony, pointing out that:
(1) Bregman has obtained specialized training, education
and experience in the technical field of valuation; (2)
the valuation methods used by Bregman have been tested
and can be re-created; (3) the methods used by Bregman
have been peer-reviewed and some of the material subject
to publication; (4) the potential rate of error in
conducting a valuation may be large, and differences in
valuation opinions may be great, however . . . this is a
weight issue . . .; (5) NACVA is a body that maintains
standards used in the stock valuation process and those
standards were employed in this case; and (6) the
techniques used in [Bregman’s] valuation have been
accepted by the relevant technical community.
Mem. Op. of Aug. 1, 2003, J.A. 2001-02 (citations omitted).
On appeal, the Borrowers fail to show that the district court
abused its discretion in admitting Bregman’s expert testimony. The
Borrowers, in fact, “do[] not mount a true Daubert challenge, for
[they] do[] not argue that the[] methods [employed by Bregman] have
not been tested, have not withstood peer-review and publication,
have excessive rates of error, have no standards for their
application, or have not been accepted in their field.” TFWS, 325
F.3d at 240. Instead, the Borrowers claim that Bregman failed to
review certain documents which would purportedly influence the
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valuation of Covista stock. The Borrowers also contend that
Bregman’s “actual sales” valuation was based on unreliable data.
Neither of these claims, however, demonstrate that the valuation
methods employed by Bregman are unreliable. Rather, the Borrowers’
claims address the proper weight to afford Bregman’s testimony, not
its admissibility.
The Borrowers’ challenge to Bregman’s qualifications is
similarly without merit. The Borrowers fail to show that Bregman’s
alleged lack of special expertise in valuing publicly traded,
telecommunications companies prevented him from reliably valuing
the Covista stock. Burns presented ample evidence demonstrating
that Bregman had specialized experience, education, and training in
the field of valuation analysis and, in particular, in performing
valuations of stock similar to the valuation he performed with
respect to the Covista stock. Mem. Op. of Aug. 1, 2003, J.A. 2000
(citations omitted). Accordingly, we find no abuse of discretion
in admitting Bregman’s expert testimony regarding the value of the
Covista stock.
IV.
The Borrowers next argue that the district court should not
have relied on Bregman’s “actual sales” valuation to determine
Burns’s damages. In particular, the Borrowers contend that,
although Bregman conceded a willing buyer or seller is assumed in
15
an “actual sales” valuation, uncontradicted testimony establishes
that at least one of the sales relied upon by Bregman was not
between a willing buyer and seller. In addition, the Borrowers
assert that one of the three sales was never consummated and,
therefore, was not properly relied upon in an “actual sales”
valuation.
Whether the district court properly relied on Bregman’s
valuation in calculating Burns’s damages is a question of fact
reviewed for clear error. Estate of Godley v. Commissioner, 286
F.3d 210, 214 (4th Cir. 2002). “In applying the clearly erroneous
standard . . ., [t]he authority of an appellate court . . . is
circumscribed by the deference it must give to decisions of the
trier of the fact, who is usually in a superior position to
appraise and weigh the evidence.” Jones v. Pitt County Bd. of Ed.,
528 F.2d 414, 418 (4th Cir. 1975) (internal quotation marks
omitted). The court “will not disturb [a district court’s]
findings merely because it may doubt their correctness. . . . [T]he
Court of Appeals [must] be satisfied that the [d]istrict [j]udge is
clearly in error before it will set his findings aside.” Id.(internal quotation marks omitted). Stated another way, “a finding
may be rejected as clearly erroneous when although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has
been committed.” Id. (internal quotation marks omitted).
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The Borrowers’ arguments do not leave us “with the definite
and firm conviction that a mistake has been committed.” Id.(internal quotation marks omitted). Contrary to the Borrowers’
contention, the evidence does not demonstrate that one of the three
sales relied upon in Bregman’s actual sales valuation was between
an unwilling buyer or seller. At trial, Anderson testified that
Revision sold its stock because “Gold & Appel was in a very severe
cash squeeze because of the market decline, and we needed cash. We
needed desperately to get some cash to pay our obligations.” J.A.
1054. However, Anderson’s testimony does not establish that
Revision was an “unwilling seller” in the context of stock
valuation. Anderson was not qualified as an expert in the field
stock valuation, nor did his testimony show that Revision was an
unwilling seller in that context. Notably, the Borrowers cross-
examined Bregman on this point, and Bregman indicated that a seller
is “willing” if the transaction is “arms-length.” J.A. 982-83.
There is no evidence in the record to suggest that Revision failed
to sell its Covista stock in an arms-length transaction.
We likewise reject the Borrowers’ argument that the district
court erred in relying upon a sale that was never actually
consummated. As noted by the district court, Bregman identified
“three transactions in which large blocks of Covista stock were
actually sold or were authorized to be sold in the past twelve to
eighteen months.” Mem. Op. of Aug. 1, 2003, J.A. 2005. Therefore,
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one of the sales relied on by Bregman was approved by the Covista
Board of Directors but was not ultimately consummated. The
Borrowers offer no reason to conclude that reliance on this
“approved” transaction clearly undermines Bregman’s actual sales
valuation. Accordingly, we find no clear error in the district
court’s adoption of Bregman’s actual sales valuation as a guide to
determine Burns’s damages.
V.
Finding no merit in any of the grounds raised by Appellants,
we affirm.
AFFIRMED
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