Ambrosia Coal & Construction v. RECP San Juan Investors, LLC (In Re Green Isle Partners Ltd., S.E.)

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 28, 2006
No. 05-16953 THOMAS K. KAHN
________________________ CLERK
D. C. Docket Nos.
05-60566-CV-DTKH
01-24693-BKC-RB
In Re: GREEN ISLE PARTNERS LTD, S.E.,
Debtor.
_______________________________________________________________
AMBROSIA COAL & CONSTRUCTION,
Plaintiff-Appellant,
versus
RECP SAN JUAN INVESTORS, LLC,
OFFICIAL COMMITTEE OF UNSECURED CREDITORS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 28, 2006)
Before PRYOR, FAY and REAVLEY,* Circuit Judges.
PER CURIAM:
Ambrosia Coal & Construction Company (“Ambrosia”) appeals the order of
the district court that affirmed the findings of fact and conclusions of law of the
bankruptcy court regarding its claim against the debtor, Green Isle Partners Ltd.,
S.E. (“Green Isle”), based on an extant lawsuit in which Ambrosia was attempting
to rescind several agreements on the ground of fraud. Green Isle was purchased
out of bankruptcy by its largest creditor RECP San Juan Investors, LLC, which
now litigates on its behalf. We affirm.
“As the second court of review of a bankruptcy matter, the Court of Appeals
reviews the district court’s decision entirely de novo,” reviewing the findings of
fact of the bankruptcy court for clear error and the legal conclusions of the
bankruptcy court de novo. In re Gamble, 168 F.3d 442, 444 (11th Cir. 1994).
At oral argument, counsel for Ambrosia conceded that Ambrosia failed to
raise in the district court and, therefore, waived any appeal of the final order of the
bankruptcy court that dismissed its RICO claims, its claim for damages based on
an unconsummated 1999 agreement, its conspiracy claim, and its tortiuous
interference claim. See Sterling Fin. Inv. Group, Inc. v. Hammer, 393 F.3d 1223,
*
Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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1226 (11th Cir.2004).
Ambrosia appealed only two aspects of the order of the bankruptcy court to
the district court and we address those issues. First, Ambrosia argues that the
bankruptcy court misapplied the law of Puerto Rico regarding its dolo claims.
Second, Ambrosia argues that the bankruptcy court erred by adopting verbatim the
proposed findings of fact and conclusions of law proffered by RECP.
The bankruptcy court concluded that Ambrosia could not state a claim for
dolo against Green Isle based on the 1994 settlement agreement because Green Isle
was not a party to the contract. Ambrosia contends that the bankruptcy court
misapplied Puerto Rico law, but we agree with the bankruptcy court. The Puerto
Rico Civil Code provides that a claim for dolo arises from the “words or insidious
machinations on the part of one of the contracting parties” or from the parties’
failure to “fulfil[] their [contractual] obligations.” 31 L.P.R.A. § § 3408, 3018.
Therefore, a claim for dolo may only be brought against a party to the contract.
See IV JOSE R AMON V ALES T ORRES, C URSO D E D ERECHO C IVIL 58 (1990).
“[D]olo induced by an employee or representative of a contracting party” may also
give rise to claim, Ocaso, S.A. Compania de Seguros y Reaseguros v. Puerto Rico
Maritime Shipping Authority, 915 F.Supp. 1244, 1257 n.6 (D.P.R. 1996), but there
is no evidence that Pages signed the settlement as a representative of Green Isle.
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Because we agree with the bankruptcy court that Ambrosia cannot state a dolo
claim against Green Isle as a matter of Puerto Rico law, we will not address the
alternative ground regarding the statute of limitations.
Second, Ambrosia argues that the bankruptcy court committed reversible
error when it adopted verbatim the proposed findings of fact and conclusions of
law of Green Isle. This argument fails. Although we have condemned the
practice of adopting a party’s proposed order verbatim because of the “temptation
to overreach and exaggerate,” In re Colony Square Co., 819 F.2d 272, 275 (11th
Cir. 1987), “such orders will be vacated only if a party can demonstrate that the
process by which the judge arrived at them was ‘fundamentally unfair.’” In re
Dixie Broadcasting, Inc., 871 F.2d 11``023, 1030 (11th Cir. 1989). The bankruptcy
court allowed both parties to submit proposed findings of fact and conclusions of
law. Neither the legal conclusions nor findings of fact of the bankruptcy court are
unsupported.
The order of the district court is AFFIRMED.
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