OMV Associates Limited Partnership v. Trimont Real Estate Advisors, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14911 JUNE 5, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-01509-RLV
OMV ASSOCIATES LIMITED PARTNERSHIP,
Plaintiff - Appellant,
versus
TRIMONT REAL ESTATE ADVISORS, INC.,
TDA-LB-UBS-2000-C5, LLC,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 5, 2012)
Before EDMONDSON, KRAVITCH and FARRIS,* Circuit Judges.
PER CURIAM:
OMV Associates, L.P. (OMV) sued TDA-LB-UBS 2000-C5, LLC (TDA), a
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
special purpose entity, and TriMont Real Estate Advisors (collectively, TriMont)
for breach of contract. At issue in this appeal is whether certain securities used as
collateral in the transaction that is the source of the dispute between the parties
unambiguously came ultimately to rest with TDA under the several agreements
entered into to accomplish the transaction. The district court held that they did,
and, for that reason, dismissed OMV’s complaint. We agree and therefore affirm.
I.
In 2000, OMV obtained a $70 million loan secured by an office building
that OMV owned. Six years later, OMV sought to obtain a release of the
mortgage on its building. The 2000 loan agreement, however, included
prepayment penalties, and so OMV arranged a defeasance transaction that would
permit it to refinance the loan while avoiding the penalties. To do so, OMV
enlisted the services of TriMont. TriMont prepared, and the parties signed, an
Engagement Letter detailing the services TriMont would provide and outlining the
strategy for the transaction, which would entail a series of contracts and would
involve TriMont’s creation of TDA especially for purposes of this transaction.
In the defeasance transaction, rather than paying off the loan balance early
with the proceeds of a refinancing, OMV would substitute both the collateral
securing the loan and itself as the borrower, thereby avoiding the prepayment
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penalties. TDA stepped into OMV’s shoes as borrower, assuming OMV’s liability
under the loan. And, in place of the mortgage on its office building, OMV
pledged new collateral in the form of United States Treasury Securities (the
Pledged Collateral) to secure the loan.
In the Engagement Letter, TriMont agreed to provide the following
services: “(1) Consulting services with respect to the defeasance of the Loan,
including coordinating the process with the lender and its counsel; (2) establishing
and maintaining [TDA,] the Successor Borrower . . . ; and (3) coordinating the
acquisition of the [Pledged Collateral].” In return for the consulting services,
OMV agreed to pay TriMont a $32,500 fee.
The Engagement Letter also provided that, after TriMont created TDA,
OMV and TDA would enter into a subsequent agreement under which TDA would
assume OMV’s “obligations under the loan documents and defeasance
documents,” including “liability for any shortfall in the Pledged Collateral
Account, in the event the Securities are insufficient to make all scheduled
payments” and “liability for any Events of default under the loan documents until
the maturity date of the loan . . . .” In exchange, OMV agreed that, “to the extent
that any funds remain[ed] in the Pledged Collateral Account at the maturity date of
the Loan (as a result of inefficiencies in the portfolio of Securities, prepayments,
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etc.), such funds shall hereafter remain the property of Successor Borrower.” But
the agreement further provided that “any . . . interest income earned on cash
amounts held in the . . . account” would be shared “at a ratio of 75% to [OMV]
and 25% to [TriMont].”
On July 24, 2006, after TriMont created TDA, coordinated the purchase of
the Pledged Collateral, and established the account into which they would be
placed, OMV, TriMont, and several other entities effectuated the defeasance
transaction through the execution of three agreements.1
First, OMV signed a Defeasance Pledge and Security Agreement (Security
Agreement) with the Lender, Wells Fargo Bank, and Wachovia Bank (as servicer
of related agreements). OMV gave the Lender a first-priority security interest in
the securities and their proceeds as substitute collateral for the refinanced loan.
OMV warranted, among other things, that it was “the owner of good and
marketable title to all of the Pledged Collateral, subject to the terms of [a] certain
Defeasance Assignment, Assumption and Release Agreement [(Assignment
Agreement)],” but recognized that most of its obligations would cease once it
1
OMV attached only the Engagement Letter to its complaint, but does not challenge the
district court’s reliance upon the other agreements involved in the defeasance transaction, which
TriMont submitted along with its motion to dismiss. Although, as a general rule, deciding
whether a complaint states a claim involves examining only its allegations, when another
document is central to the plaintiff’s claims and its authenticity is not in question, we may
consider it. FindWhat Investor Gr. v. FindWhat.com, 658 F.3d 1282, 1297 n.15 (11th Cir. 2011).
4
“transferred all of its right, title and interest in the Pledged Collateral in
accordance with the terms of the Defeasance Documents . . . .” Wells Fargo and
the Lender agreed, in Section 13, to return to OMV after the loan was paid or the
collateral released, “in accordance with the provisions of the Defeasance
documents, . . . such of the Pledged Collateral” in their possession “as shall not
have been sold or otherwise applied pursuant to the terms hereof . . . .” Finally,
OMV reiterated that it “may assign certain of its rights and obligations under this
Agreement to [TDA,] pursuant to [the Assignment Agreement].”
Second, these same four parties entered into a Defeasance Account
Agreement (Account Agreement), in which Wells Fargo agreed to hold the
Pledged Collateral in a specially designated Pledged Collateral Account. In the
Account Agreement’s recitals, the parties contemplated that, “immediately upon
[its] execution,” OMV, the Lender, Wachovia, Wells Fargo, and TDA, “would
enter into [the Assignment Agreement] . . . pursuant to which, among other things,
[OMV] will transfer all of its right, title and interest in and to the Pledged
Collateral to [TDA], subject to the rights of the [Lender], and the obligations of
[Wells Fargo].” And Wells Fargo agreed, immediately “upon the assumption of
this [Account] Agreement by [TDA] pursuant to the [Assumption Agreement], to
assign to the account TDA’s tax identification number” so that “all taxable income
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earned or gain realized with respect to the Pledged Collateral shall be taxable, as
applicable, of [TDA].” OMV directed Wells Fargo, “[a]fter the contemplated
assignment by [OMV] to [TDA]” was accomplished, to hold “any amounts” in the
account until the “final payment of all amounts required under the [loan] and other
Defeasance Documents . . . , whereupon . . . any amounts remaining in the Pledged
Collateral Account shall be remitted to [TDA], within five (5) Business Days after
the final payment date under the [loan].”
As planned, the parties entered immediately thereafter into the Assignment
Agreement, the last of the three contracts signed that day and the only one to
which TDA was a party. The parties acknowledged that OMV “ha[d] granted to
the [Lender], pursuant to [the]. . . Security Agreement,” a security interest in the
Pledged Collateral. They also acknowledged that they “ha[d] entered into the . . .
Account Agreement, pursuant to which [Wells Fargo] . . . established and will
maintain an account to hold [OMV’s] interest in the Securities and other
collateral.” After acknowledging these prior agreements, the Assignment
Agreement accomplished the central purpose of the whole transaction: placing
TDA into OMV’s shoes with respect to the collateral and loan obligations.
Specifically:
[OMV] hereby sells, transfers and assigns to [TDA]. . . (a) the
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Secured Obligations including, without limitation, all obligations,
rights and duties in, to and under, and subject to the terms of, the
Defeasance Documents and (b) all of [OMV]’s right, title and interest
in and to the Pledged Collateral, subject to the terms of the
Defeasance Documents and to the rights of [the Lender] and the
obligations of [Wells Fargo] pursuant to the Security Agreement and
the Defeasance Account Agreement.
As a condition of TDA’s assumption of OMV’s liability under the loan, OMV
“acknowledge[d] and agree[d] that all proceeds from the Pledged Collateral in
excess of amounts due under the Defeasance Documents” would be used to pay
TDA’s expenses in satisfying the loan obligations “and any balance will be the
sole property of [TDA].”
Ultimately, for reasons not relevant on appeal, the loan was paid in full in
May 2010, six months before the predicted final repayment date. Because the loan
was paid early, over $2,000,000 in securities remained in the Pledged Collateral
Account. TriMont and TDA claimed that they were entitled to keep these excess
securities, and, when they refused to remit the securities to OMV on demand,
OMV sued for breach of contract.
TriMont filed a motion to dismiss, arguing that the securities ultimately
came to rest with TDA under the plain language of the Assignment Agreement. In
response, OMV conceded that “[t]he Assignment Agreement did pass all right,
title and interest in the securities to TDA,” but contended that, read in conjunction
7
with the other agreements, there was an ambiguity as to whether OMV retained
some right to them under a theory of equitable title or the implied duty of good
faith and fair dealing. Applying Georgia contract law, the district court reasoned
that OMV unambiguously transferred to TDA in the Assignment Agreement all of
its rights in the Pledge Collateral, including to any remainder when the transaction
concluded. That conclusion was bolstered by the Engagement Letter’s provision
that any funds remaining in the Pledged Collateral Account after repayment of the
loan would remain TDA’s property. Because the agreements between the parties
unambiguously gave TDA the right to the leftover securities, the district court
dismissed OMV’s complaint. OMV appeals.
II.
We review de novo a district court’s dismissal of a complaint for failure to
state a claim, accepting the allegations in the complaint as true. Powell v. Thomas,
643 F.3d 1300, 1302 (11th Cir. 2011). To survive a motion to dismiss, a
complaint must “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).
Under Georgia law, an issue of contract construction is, at the outset, a
8
question of law. Livoti v. Aycock, 590 S.E.2d 159, 164 (Ga. Ct. App. 2003).2 The
first step is to determine the intent of the parties based solely on the language
employed in the four corners of the document. Id. When, as here, multiple
contracts are used to effect the same transaction, the documents must be viewed as
a whole. See Maiz v. Virani, 253 F.3d 641, 568-59 (11th Cir. 2001) (applying
Georgia law). If the agreements’ language is ambiguous, the court must apply
applicable rules of construction. Livoti, 590 S.E.2d at 164. Only if the ambiguity
is not resolved by application of these rules does the agreements' interpretation
become a jury question. Id.Further, “[t]his Court has repeatedly held that an issue not raised in the
district court and raised for the first time in an appeal will not be considered by
this court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004) (internal quotation marks and citations omitted). A mere recitation of the
2
We rely upon Georgia law throughout this opinion. All of the defeasance agreements
contain choice-of-law provisions indicating that they are to be interpreted according to New York
law. But in its motion to dismiss, TriMont relied exclusively upon Georgia law even though it
discussed all of the contracts at issue in this case. OMV relied exclusively on Georgia law in
response. And, although TriMont flagged the choice-of-law issue in its reply brief to the district
court, its analysis relied, with no meaningful exceptions, on Georgia law. Likewise, both parties’
briefs on appeal essentially rely only upon Georgia law. Both parties have waived any objection
they may have had to our application of Georgia law in this case. See Daewoo Motor Am., Inc. v.
Gen. Motors Corp., 459 F.3d 1249, 1256–57 (11th Cir. 2006) (holding that choice-of-law
arguments, if not properly presented to the district court, are waived). Moreover, TriMont
concedes that, “the choice of law should not affect the outcome of this appeal.”
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factual allegations “is insufficient to preserve an argument; the argument itself
must have been made . . . .” Ledford v. Peeples, 657 F.3d 1222, 1258 (11th Cir.
2011). Nonetheless, we have exercised discretion to consider newly raised
theories under certain circumstances. Wright v. Hanna Steel Corp., 270 F.3d
1336, 1342-43 (11th Cir. 2001).
III.
After examining the series of agreements that accomplished this transaction,
the district court concluded that there was no real ambiguity about TDA’s
ownership of the leftover securities. We are inclined to agree. Our review of the
contracts reveals a sequence of agreements under which various rights and
obligations moved between five different parties in a process to accomplish a
mutually agreed-upon result. At the end of that sequential process, all right, title,
and interest in the securities rested with TDA along with all rights and obligations
under the defeasance documents “without limitation,” including the right to any
securities remaining in the account after the loan was paid off.
In the Engagement Letter, the parties set out their plans to substitute TDA
for OMV as borrower and the securities for the mortgage on OMV’s building as
collateral. When TriMont completed the preparation, OMV gave its Lender in the
Security Agreement a security interest in the securities, but otherwise retained all
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rights to them. Next, in the Account Agreement, OMV directed Wells Fargo to
hold the collateral, to which it still retained all rights, in a designated account, but
once TDA assumed OMV’s rights and obligations in an agreement the parties
“would enter” into, to mark the securities and account as taxable property of TDA.
OMV also directed Wells Fargo after the “contemplated” assumption to hold all
funds in the account until the loan was payed off and then remit “any amounts
remaining” to TDA within 5 days.
Finally, after acknowledging that the Security and Account Agreements had
already been consummated, OMV assigned to TDA all of its duties under the loan
as well as “without limitation [its] obligations, rights and duties in, to and under,
and subject to the terms of, the Defeasance Documents . . . .” In exchange, OMV
transferred to TDA “all of [OMV]’s right, title and interest in and to the Pledged
Collateral,” without reservation of the right to their return. And this outcome was
consistent with the Engagement Letter’s promise that “any funds remaining in the
Pledged Collateral Account,”3 including as a result of “prepayments” as turned out
3
OMV argues that there are internal ambiguities within the Engagement Letter with
respect to what “funds” and “Maturity date” mean. But OMV and TDA agree that language in
the subsequent defeasance documents would supersede conflicting language in the prior
Engagement Letter. See St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d
815, 821-22 (11th Cir. 1999) (“It is well established under Georgia law that parties have a right
to change the terms of their agreement by subsequent agreements . . . .”). Thus, any ambiguity is
irrelevant in light of OMV’s subsequent grant of all rights to the securities in the Assumption
Agreement and Wells Fargo’s promise to remit “any amounts” remaining in the account within
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to be the case, would “remain the property of [TDA].”
In response, OMV refers us to Section 13 of the Security Agreement under
which it retained the right to request from Wells Fargo and the Lender any
securities remaining in their possession at the close of the transaction. This
language, OMV contends, conflicts with the provisions in the other contracts that
entitle TDA to all rights in the Pledged Collateral. TriMont responds that all of
the agreements plainly anticipate TDA’s eventual assumption in the Assignment
Agreement of all of OMV’s rights in the Pledged Collateral and under the other
defeasance contracts, including to any leftover securities, just as the Engagement
Letter, the only agreement to which TriMont was a party, had anticipated.
We need not address this alleged conflict because OMV waived this theory
by failing to assert it to the district court. “[A]ppellate courts generally will not
consider an issue or theory that was not raised in the district court.” Wright, 270
F.3d at 1342 (citation and internal quotation marks omitted). In their motions to
dismiss, TriMont and TDA referred extensively to the contract language which
provided that all funds in the securities account, except interest income, would
become the property of TDA when the loan was paid. And they argued that, to
plead facts adequate to state a breach of contract claim based upon TDA’s
five days after “final payment of all amounts required under the [loan] . . . .”
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retention of the securities, OMV had to point to “some provision” within the
agreements comprising the transaction “entitling [OMV] to a return of the
securities . . . .” OMV’s response mentioned the Security Agreement only once, in
a list of the titles of each of the contracts. Even that scant reference was simply
part of OMV’s contention that it was not absolutely clear that it retained no
equitable interest, by analogy to trusts and mortgages — a contention markedly
different from that made to us. Nowhere in OMV’s response did OMV direct the
district court’s attention to the language upon which its argument on appeal
hinges. In fact, OMV conceded in its response that the Assignment Agreement
“pass[ed] all right title and interest in the securities to TDA . . . .”
As a general rule, we are reluctant to reverse a district court for reasons that
it never heard. And OMV has given us no persuasive reason to do so in this case.
OMV contends it has not waived its argument because it told the district
court that the agreements were ambiguous when read together. That is true, but it
is not sufficient.4 District courts are under no obligation to distill every potential
4
OMV’s reliance upon SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334(11th Cir. 2010), is misplaced. There, we considered “nearly identical language” from an
agreement that had been elsewhere relied upon by the party raising it on appeal, that simply
confirmed the theory actually asserted to the district court. Id. at 1338. And we did so only for
those “narrow reasons[] and for the sake of completeness . . . .” Id. That is very different from
OMV’s reliance on purportedly conflicting language never mentioned to the district court to
support a theory cut from whole cloth on appeal.
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argument in favor of a counseled party’s position. Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (en banc). This is especially so
when, as here, doing so would require combing through well over one-hundred
pages of contractual documents to conjure support for an unarticulated theory
related only at the highest level of abstraction to a party’s contentions. OMV
never pointed the district court to any language that conflicted with the provisions
that TriMont claimed entitled TDA to the excess securities. Instead, it relied upon
conceptions of equitable title derived from trust and mortgage law and contended
that the clauses TriMont relied upon did not indisputably deprive OMV of such
title. That was not adequate to preserve the much different theory it advances on
appeal.5
OMV also argues that, even if it waived its argument about the Security
Agreement, we may nonetheless consider it for the first time on appeal. We may,
5
Because Georgia law requires that a court look to “the whole contract . . . in arriving at
the construction of any part,” O.C.G.A. § 13-2-2(4), OMV argues that this court “cannot ignore
conflicting provisions . . . regardless of whether or how they were” argued to the district court.
In essence, OMV contends a party may never waive an argument based upon a contractual
provision because contract construction looks to the whole contract. But OMV cites no authority
for this proposition and it is plainly not the law. See Bridge Capital Investors, II v. Susquehanna
Radio Corp., 458 F.3d 1212, 1217 (11th Cir. 2006) (holding that, under the law of this court, a
new-on-appeal theory based upon a contractual provision not referenced before the district court
is waived); see also Marvel Enters., Inc. v. World Wrestling Fed’n Entm’t, Inc., 610 S.E.2d 583,
587 (Ga. Ct. App. 2005) (recognizing that, even if based upon contractual provisions, “[i]ssues
never raised at trial will not be considered for the first time on appeal” (citation and internal
quotation marks omitted). OMV’s contention is, therefore, without merit.
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under certain circumstances, exercise our discretion to consider an otherwise
waived argument. Wright, 270 F.3d at 1342-43. Here, OMV asks us to do so
because contract interpretation is a pure question of law and because declining to
consider its contention that Section 13 of the Security Agreement creates
ambiguity with the other defeasance transaction contracts would result in a
miscarriage of justice. See id. (discussing the “miscarriage of justice” exception).
Although OMV is correct on the first point, we disagree on the second.
The miscarriage-of-justice exception does not mean that “we will entertain
all issues first raised on appeal whenever they [may be] outcome determinative,”
as OMV contends its newly asserted theory would be. First Ala. Bank of
Montgomery, N.A. v. First State Ins. Co., 899 F.2d 1045, 1060 n.8 (11th Cir.
1990). Doing so “would swallow our general rule of waiver, further impeding the
efficient administration of justice.” Id. Both parties agree that, had the contract
played out as OMV and TriMont expected it to, there would have been no leftover
securities. A litigant’s inability to inject a new ambiguity into a contract about
who will recoup an unanticipated sum will rarely be a miscarriage of justice when
that party received the benefit of its bargain. And, because it never discussed at all
the contract under which it claims entitlement to the unexpected excess securities,
OMV did not fulfill its obligation to fairly present its theory to the district court.
15
Refusing to relieve OMV of the consequences of that omission by declining to
consider OMV’s newly identified ambiguity will not work the kind of injustice
that would incline us to consider an otherwise waived argument.
Further, OMV’s reliance upon the implied covenant of good faith and fair
dealing is also misplaced. “‘Good faith’ is a shorthand way of saying substantial
compliance with the spirit, and not merely the letter, of a contract.” Fisher v.
Toombs Cnty. Nursing Home, 479 S.E.2d 180, 184 (Ga. Ct. App. 1996). But
“[t]here can be no breach of an implied covenant of good faith where a party has
done what the provisions of the contract expressly give him the right to do.”
Nobel Lodging, Inc. v. Holiday Hospitality Franchising, Inc., 548 S.E.2d 481, 484
(Ga. Ct. App. 2001). As set out above, we agree with the district court’s
conclusion that the contracts unambiguously grant TDA the right to the leftover
securities, and there was no breach of the covenant of good faith.
Finally, we reject OMV’s argument that general notions of equity require us
to reverse the district court. OMV’s argument that its complaint should not be
dismissed because, otherwise, TDA will receive a windfall is a policy contention
with no bearing on the outcome of this case. We are not in the business of
rewriting lawyer-drafted contracts for sophisticated parties when they wish that the
outcome after performance had been different. OMV received the benefit of its
16
bargain, the release of its building from the mortgage without a prepayment
penalty. That TDA may have received a higher-than-anticipated payment for
arranging the accomplishment of that result is no reason to reverse.
IV.
For the foregoing reasons, the judgment of the district court dismissing
OMV’s complaint for failure to state a claim is
AFFIRMED.
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