City investing company liquidating trust
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Although the two sections are interrelated, a petition under Section is directed to the restoration of corporate existence once terminated under Section or otherwise by the action of its officers and directors. In tandem, these two statutes insure that whether a corporation is dissolved voluntarily by its shareholders or for nonpayment of taxes, it remains a viable entity authorized to possess property as well as sue and be sued incident to the winding up of its affairs. Addy v. Short, Del.
The Vice Chancellor ruled, however, that City Trust enjoyed a separate existence as a trust created for the purpose of permitting the trustees to extend the liquidating process, apart from the strictures of Section , including its time bar for suit. On appeal, City Trust reasserts its contention that the Section three-year bar protects it from claims to the same extent as City. It argues that Section represents a policy determination by the General Assembly that three years is sufficient time for the creditors of a dissolved corporation to bring suit.
In our view these decisions are distinguishable and do not control the present situation. In Smith-Johnson Steamship Corp. United States, D. The court analogized the Section time bar to a statute of limitations expressing "a legislative policy normally prohibiting the commencement of actions by or against dissolved corporations more than three years after their dissolution" Id. In Johnson v. Similarly, in BLH, Inc. United States, U. These federal decisions interpreting Delaware statutory law are, of course, not binding on this Court or the Court of Chancery.
Moreover, these decisions lack a significant factual element which distinguish them from this case. In none of the federal cases did a corporation as part of its plan of dissolution, and within the statutory winding up period, opt to establish a separate legal entity to further its liquidation efforts. We believe this distinction important in view of the two principles which underlie the dissolution process under Section and the need for a definite period in which a corporation may pursue the ordinary winding up of its affairs; and assurance that the dissolution process not become a method for the avoidance by corporate officers and directors of their duty to satisfy the debts and liabilities of the corporation.
The establishment of a liquidation trust is entirely consistent with the orderly winding up process contemplated by Section provided it does not serve as a basis for the avoidance of corporate liabilities. City Trust's efforts to restrict its liability to claims filed within three years of City's dissolution does not accommodate the statutory method for the assertion of creditors' claims nor the purpose behind its adoption.
Had City elected to seek court approval to continue its existence "for such longer period" beyond the three-year term as necessary to wind up its affairs instead of creating City Trust, there is little question that its assets would be reachable by its creditor and subject to claims at the time Continental filed its claim in We perceive of no prejudice to City's shareholders through recognition of Continental's claims.
A partial, but substantial, distribution to City's shareholders has already been accomplished. In the normal course of dissolution, Delaware law permits such distribution provided a reserve fund for the benefit of creditors is maintained. The liquidating trust established here through a separate legal entity does no more than accomplish that same required end.
The acknowledged purpose for establishment of a liquidating trust is tax avoidance. Under the Internal Revenue Code, trusts receive favorable tax treatment. Subchapter J. While business trusts are treated as corporations, "[i]f it is determined that a trust is a liquidating trust, [it] is treated as a simple trust.
For tax purposes, "[a]n organization will be considered a liquidating trust if it is organized for the primary purpose of liquidating and distributing the assets transferred to it, and if its activities are all reasonably necessary to, and consistent with, the accomplishment of that purpose.
Regardless of tax consequences, however, a liquidating trust is the successor of the corporation whose assets it administers. A liquidating trust is formed to wind up the predecessor corporation's affairs and "operates in the same manner as a dissolving corporation. Here, the liquidating trust was established incident to a Plan of Liquidation which called for the creation of a reserve fund, or an alternative mechanism, for "the payment or discharge of, all of the [subsidiaries'] liabilities and obligations including contingent liabilities.
City Trust was created under a Trust agreement which charged it, inter alia, "to collect and distribute to the Beneficiaries the income and proceeds therefrom is as prompt and orderly a fashion as possible after the payment of, or provision for, expenses and liabilities. The trust was in existence at the time City's contingent liability under the GDC surety bond matured and at the time Continental asserted its counterclaim in the Court of Chancery.
Presumably, it still continues. Since the liquidating trust is a separate entity, but not a corporation, it is not subject to the three-year period imposed by Section However, because it holds assets for the benefit of both the shareholders and creditors under a plan of liquidation, it is subject to creditors' claims. Accordingly, we agree with the Vice Chancellor that Continental's claim, asserted in the form of a counterclaim, was timely under the analogous statute of limitation for claims arising ex contractu.
III We next address City Trust's alternative argument that even if Section 's time requirement, as a matter of law, does not bar Continental's claim, there is a material factual dispute concerning whether the drafters of the Trust Agreement intended to recognize claims asserted beyond the three-year period. The Court of Chancery concluded that the undertaking by City's Board of Directors to provide for all remaining corporate liabilities through the liquidating trust was unambiguously expressed and not subject to modification through parol evidence.
The Trust Agreement executed on September 25, by authority of City's Board of Directors transferred certain assets to designated trustees "for the benefit of the stockholders" of City "subject to the claims, expenses, charges, liabilities and obligations listed thereon. Following a listing of specific items, the statement of liabilities concludes with the following inclusive language: "Any cost, expense, or liability associated with any claim asserted against City with respect to any act or omission attributable to its operations or affairs which has not been discharged in full or adequately provided for.
The Vice Chancellor rejected City Trust's effort to explain the meaning of the "any liabilities" provision through the use of extrinsic evidence in view of the clear and unambiguous terms of the trust instrument, although the court suggested that even if extrinsic evidence were considered as to the meaning of the liability language such evidence would not serve to establish a completely contradictory meaning. We read the Vice Chancellor's ruling as rejecting the application of the parol evidence rule.
We agree that the effort to present parol evidence to vary the clear language of the Trust Agreement is unwarranted in this case. If a writing is plain and clear on its face, i. Citadel Holding Corp. Roven, Del. However, if the words of the agreement "can only be known through an appreciation of the context and circumstances in which they were used" a court is not free to disregard extrinsic evidence of what the parties intended. Klair v. Reese, Del.
In that situation the language used by the parties is subject to different meanings and is, thus, ambiguous, or more precisely, not reflective of the parties shared intent. But the language of an agreement, like that of a statute, is not rendered ambiguous simply because the parties in litigation differ concerning its meaning.
Gonzales, Del. City Trust's attempt to rely upon extrinsic evidence to explain the meaning of the "any liabilities" language must be rejected. Preliminarily, it should be noted that the Trust Agreement is not a writing intended to reflect a previous meeting of the minds by parties to the agreement who now dispute its meaning. Reese, A. The Trust Agreement was, in effect, an ex parte instrument, drafted apparently without negotiation, to advance the common interests of the principal beneficiaries the shareholders and the settlors the management of City Trust.
To be sure, cast in the form of a liquidation trust, City Trust's tax avoidance effort could be achieved only if the assets placed in trusts were subject to provision for claims and liabilities. But City's creditors apparently played no part in the drafting of the trust and their interests were not specifically considered. It was sufficient to insure that the interests of all creditors, present and contingent, were protected by the inclusion of the broad language appearing at the end of Schedule I of the agreement.
For City Trust now to seek to read into that language an unarticulated reservation concerning claims which would be barred two years hence under Section , a provision not mentioned in the Trust Agreement, is imaginative but does violence to the clear meaning of the language selected. We agree with the Vice Chancellor that to imply such a restriction turns the agreement on its head.
The Court of Chancery correctly declined admission of parol evidence to vary the clear meaning of the "any liabilities" language of Schedule I of the Trust Agreement. Since that language conveys an assumption of liability by City Trust for claims to be filed during the pendency of the liquidating trust, Continental's claim, timely filed after its accrual, is properly assertable against the assets of the Trust.
Perretti, Jr. Alan J. Kluger Argued , Steve I. John W. Steven M. Brown and Robert F. Elizabeth J. Peter W. Joseph L. Buckley, Mark E. Wright, Jr. Simons; and Peter R. James J. Hagan, Bruce D. Warren H. Steven H. Louis Mrachek, Roy E. George J. Steven I. Gerald J. Robert L. David T. Edward B. Kevin M. John H. Alan I. Plaintiffs, Jose and Rosa Rolo and Dr. They claim that they were deceived by a fraudulent marketing scheme which induced them to purchase residential lots and homes at inflated prices.
This case and its related proceedings have a long and convoluted history. The present appeal is the third time this Court has considered this case. The district court dismissed plaintiffs' claims in their entirety. Rolo v. City Investing Co.
Liquidating Trust, F. The court held that plaintiffs' RICO claims were time-barred; plaintiffs had failed to plead adequately the existence of a RICO conspiracy; and they had failed to satisfy the essential requirements for pleading aider and abettor liability under RICO. Although the court found that plaintiffs' complaint stated claims under the Land Sales Act for aiding and abetting against some defendants, but not others, all of their Land Sales Act Claims were time barred.
Having dismissed all of plaintiffs' federal claims, the court declined to exercise pendent jurisdiction over plaintiffs' common law fraud claims. Finally, the district court denied plaintiffs' Motion to file a Second Amended Complaint that would have restructured and reformulated their action.
Following a remand for reconsideration of plaintiffs' claims in light of our decision in Jaguar Cars, Inc. Royal Oaks Motor Car Co. The present appeal is from the district court's decision on remand. Plaintiffs assert that the district court erred in dismissing their RICO claims and abused its discretion by denying them leave to amend their complaint. We conclude that there were adequate grounds to dismiss each of plaintiffs' RICO claims and that the district court did not abuse its discretion by denying plaintiffs further leave to amend their complaint.
Accordingly, we will affirm the district court's decision on remand in its entirety. The Fraudulent Scheme Plaintiffs allege that GDC and GDV engaged in a fraudulent marketing scheme to sell real estate in violation of several federal criminal and civil statutes. The First Amended Complaint alleges that GDC improved only a small portion of the 1, square mile tract of land that it owned in Florida and that it had no intention of developing the land further.
Prospective purchasers were told, however, that the entire tract would be developed. According to plaintiffs, GDC targeted unsophisticated purchasers, particularly those who spoke English only as a second language. Prospective purchasers were invited to attend lavish "investment seminars" at which GDC represented that the value of the real estate continually appreciated, that there was a good resale market for the lots and houses, and that the real estate was an excellent investment.
The Complaint further alleges that much information was concealed from prospective purchasers, including the very low resale value of the lots, the artificial nature of the original sale prices of the lots, and the fact that most purchasers defaulted within two years, allowing GDC to cancel their contracts and resell the same lots over and over again.
According to plaintiffs, similar tactics were also used to sell homes to those who already owned lots. The Defendants The Amended Complaint names thirty-five defendants and classifies them according to the nature of their participation in the allegedly fraudulent scheme, placing some defendants in more than one category. Ormsby also acted as GDC's secretary from After the sales fraud was initially discovered, the City Defendants attempted to distance themselves from GDC.
Askew, Howard L. Simons, and Peter R. Brinkerhoff, are persons who served as "outside directors" of GDC for various periods dating from September Also included in this category are David F. Ehrling, who served as both officers and directors of GDC during this period. Both Brown and Ehrling were convicted of criminal charges in connection with their involvement in the fraudulent scheme. Their convictions were subsequently reversed on appeal.
See infra. The Complaint alleges that the Inside Director Defendants along with the Director Defendants controlled the City Defendants and used them in furtherance of the fraudulent scheme. The Financing Defendants include banks and financial institutions, 4 who provided a variety of financial services to the other defendants. Others loaned GDC money and extended credit to the company. Another "warehoused" new GDV mortgages until they could be pooled and sold, while also lending GDV money using these mortgages as collateral.
The Complaint alleges that these defendants knew or should have known of GDC's sales fraud. The Complaint alleges that these defendants knew or recklessly disregarded information that the GDC mortgages were overvalued.
The Complaint also alleges that Fannie Mae and Freddie Mac stopped purchasing GDV mortgages in because GDV's practices did not meet their standards, but that these defendants permitted GDV to repurchase the mortgages through a confidential agreement. Some of these defendants authorized GDC to service their contracts, including collection from and negotiations with the lot owners. Others collected their payments from owners directly. Under GDC's agreements with these defendants, substitution pools were used as a security.
When a contract or note went into default, GDC would replace it with a performing contract. Thus, these defendants incurred no losses from defaults and had no incentive to ensure that loans reflected the true value of the property. The Complaint alleges that these defendants had conducted extensive financial review of GDC and knew or should have known of GDC's fraudulent scheme, but chose to remain silent in order to protect their own interests.
The defendants must also be divided into two additional categories, the primary and secondary defendants. The primary defendants are those defendants who, plaintiffs allege, participated in the operation and management of the affairs of GDC through a pattern of racketeering activity. Brown, and Robert F. All of the remaining defendants are categorized as secondary defendants, who, it is alleged, aided and abetted the pattern of racketeering activity devised and controlled by the primary defendants.
The plaintiffs allege that the actions of the secondary defendants are also in violation of RICO. On September 7, , plaintiffs filed an amended complaint, adding claims for breach of contract and fraud. Defendants moved to dismiss the First Amended Complaint, and in January the district court dismissed the case in its entirety finding that plaintiffs had failed to plead fraud with the particularity required by Fed.
Plaintiffs were given days in which to file a second amended complaint. Before plaintiffs filed their amended complaint, on April 16, , the case was administratively terminated because GDC had filed a petition for bankruptcy under Chapter In November , plaintiffs filed the present action.
As in their earlier action, plaintiffs allege that the defendants participated in a fraudulent marketing scheme in violation of several federal criminal and civil statutes. General Development Corp. General Dev. Action No. April 26, Rolo, F. About two weeks after the filing of this case, plaintiffs filed a proof of claim with the bankruptcy court, on behalf of all members of the NPA, a group of more than 5, individuals who had purchased property from GDC and its agents.
In support of their claim, plaintiffs reiterated the allegations detailed in their complaint, which was attached to their proof of claim. During the bankruptcy proceedings, the bankruptcy judge denied class treatment of plaintiffs' claims and approved settlements in which over 60, homesite and house purchasers participated.
Proceedings in this case were stayed by the district court from December until March , pending disposition of GDC and GDV's bankruptcy proceedings. In April the district court denied reconsideration of its stay order and "further directed that the action be stayed on the terms set forth in the December Order pending the resolution of the criminal cases against Brown and Ehrling. The following month, the district court also stayed plaintiffs' request for a preliminary injunction to bar Ambase and City Investment from liquidating and distributing their assets.
These stay orders were the subject of the first appeal before this Court. This complaint also dropped plaintiffs' claim for breach of contract. Later the same month, the defendants moved to dismiss the First Amended Complaint pursuant to Rule 12 b 2 and 12 b 6.
In June, plaintiffs voluntarily withdrew their claims for breach of an implied covenant of good faith, negligence and negligent misrepresentation. Although this argument raised allegations not contained in the amended complaint, the plaintiffs did not formally request further leave to amend the complaint. In a lengthy Opinion and Order dated December 27, , the district court granted defendant's motions to dismiss under Rule 12 b 6 , and granted the motions to dismiss pursuant to Rule 12 b 2 for lack of personal jurisdiction of Scharffenberger, Manley, Hatch, Pyne, Askew, Brinkerhoff, Clark and Simons.
The dismissal of all of plaintiffs' claims rendered the Motion for Class Certification moot. The court dismissed the plaintiffs' complaint without granting leave to file a further amended complaint. Plaintiffs appealed the dismissal of their claims to this Court. Following oral argument, on November 8, , we issued a Judgment Order affirming the decision of the district court for "substantially the reasons" set out in the district court opinion.
Liquidating Trust, 66 F. See, e. Enright Refining Co. This holding endorsed the position taken by plaintiffs in their Petition for Rehearing. By Order dated April 4, , we granted plaintiffs' Petition, vacated our earlier Judgment Order, vacated the order of dismissal issued by the district court, and remanded the case to the district court for reconsideration in light of the decision in Jaguar Cars.
Liquidating Trust, No. We did not retain jurisdiction over the case. Following the remand, the parties disputed whether reconsideration in light of the holding in Jaguar Cars was necessary as there were other, independent grounds to support dismissal of all of plaintiffs' claims.
Plaintiffs also advised the district court that they intended to seek leave to file a further amended complaint, to add and drop parties, and to restate their claims in light of Jaguar Cars. By letter dated April 12, , the district court requested briefing from the parties regarding the appropriate actions for the court to take on reconsideration. As requested by the district court, the parties filed their initial briefs on June 1, The following day, plaintiffs also served their formal motion for leave to serve a proposed Second Amended Complaint 10 and to add and drop parties.
By letter dated June 8, , the district court adjourned the Motion for leave to serve an amended complaint until the court had completed the reconsideration mandated by this Court. On August 24, , the district court once again dismissed this case in its entirety, holding all other grounds for dismissing plaintiffs' claims were unaffected by Jaguar Cars.
The district court also dismissed plaintiffs' Motion to file a Second Amended Complaint and to add and drop parties. Following oral argument on the motion, on October 23, , the district court ruled from the bench, denying relief pursuant to Rule 60 b. On November 1, , plaintiffs filed their notice of appeal from the district court's decisions dismissing the complaint and denying postjudgment relief pursuant to Rule 60 b.
Specifically, plaintiffs appeal from the dismissal of their RICO claims and from the denial of leave to amend the complaint. The district court had subject matter jurisdiction over plaintiffs' federal claims pursuant to 28 U. Rule 4 of the Federal Rules of Appellate Procedure provides that a notice of appeal must be filed within 30 days after the date of entry of the order appealed, but that if a party files a "timely motion" for relief under Rule 60 b , the time for appeals runs from the entry of the order disposing of the motion.
In this case, the district court dismissed plaintiffs' claims on August 24, Plaintiffs moved for relief pursuant to Rule 60 b within the 10 day time limit provided by Rule 4 a 4 F of the Federal Rules of Appellate Procedure. The district court denied their Rule 60 b Motion on October 23, , and plaintiffs filed their notice of appeal on November 1, , within the 30 day time limit provided by the rule.
Defendants assert that plaintiffs' motion was not properly cognizable pursuant to Rule 60 b and therefore the motion did not toll the time for filing a notice of appeal. Defendants argue that the Rule 60 b Motion sought only to persuade the district court to reconsider issues that it had already fully considered and rejected.
Defendants correctly state that a request for relief pursuant to Rule 60 b cannot be used as a substitute for an appeal. Martinez-McBean v. Government of the V. In response, plaintiffs contend that they filed a Rule 60 b Motion rather than an immediate appeal because they believed that the district court had construed this Court's mandate as precluding consideration of their Motion to file a Second Amended Complaint.
Plaintiffs considered the change in the law following the original dismissal of their case coupled with the district court's narrow construction of our mandate to constitute "exceptional circumstances" meriting review pursuant to Rule 60 b 6. Although plaintiffs' Rule 60 b Motion was ultimately unsuccessful, it was not so deficient that it was not cognizable pursuant to Rule Plaintiffs could reasonably believe that the district court had dismissed plaintiffs' Request for Leave to file an amended complaint because the district judge believed that our mandate had limited review to the issues created by the decision in Jaguar Cars and that a Rule 60 motion might offer broader relief.
Plaintiffs' position is buttressed by the fact that within a relatively short time frame, controlling precedent was reversed after the prior dismissal had been affirmed by judgment order, but before completion of their appeal, which concluded when the prior dismissal was vacated on rehearing. Accordingly, plaintiffs' notice of appeal was timely filed and their present appeal is properly before us. We have plenary review over plaintiffs' appeal from the dismissal of their action.
Lorenz v. CSX Corp. We may review the district court's dismissal of their motion for leave to amend the complaint and denial of their motion for post-judgment relief under Rule 60 b for abuse of discretion only. Forest Grove, Inc.
Denial of Leave to Amend Plaintiffs argue that the district court must have misconstrued this Court's April 4, , mandate remanding the case to the district court for reconsideration in light of the decision in Jaguar Cars because, they contend, it refused to consider their motion for leave to serve a Second Amended Complaint. Plaintiffs also argue that the district court abused its discretion when it denied their Rule 60 b Motion seeking leave to amend.
We find that the district court neither misunderstood our mandate nor abused its discretion by denying plaintiffs further leave to amend the complaint. Our mandate was designed to offer the district court broad flexibility to reconsider its earlier ruling in light of our decision in Jaguar Cars. Our April 4, , Order provided in pertinent part: The petition for rehearing is granted, the orders of the district court from which the appeal were taken are vacated, and the matters are remanded to the district court for reconsideration in light of Jaguar Cars, Inc.
We do not retain jurisdiction. Rolo, No. The district court was free to reconsider its original ruling, dismissing the request for leave to amend, and also to consider the new motion for leave to amend, in light of the decision in Jaguar Cars. Plaintiffs contend that the district court thought that under this Court's mandate, it could not consider their Motion for Leave to Amend.
The district court's August 24, , Opinion states that plaintiffs' Motion for Leave to Amend is "dismissed. The court wrote, "the remand order did not contemplate that plaintiffs be allowed to reconstitute and restructure their action through the vehicle of an amended complaint and the addition and deletion of parties" and that "the motion to serve a second amended and supplemental complaint and to add and drop parties should not be considered. On the other hand, the district court discussed the proposed amended complaint, noting that it would fundamentally alter the nature of the claims and concluding that it did "not believe that the Third Circuit intended the reconsideration to be on the basis of an amendment to an already much amended complaint.
The district judge did not "consider the mandate as requiring consideration of the Proposed Complaint or any other proposed amended complaint. Similarly, at oral argument on plaintiffs' Rule 60 b Motion, the Judge stated, "I concluded that the remand order did not require and the circumstances did not warrant hearing a motion for leave to file a further amended and supplemental complaint and to substitute new plaintiffs.
Under these circumstances, we conclude that the actions of the district court are consistent with this Court's mandate. The court considered the impact of Jaguar Cars and determined that, in light of the procedural posture of the case, our mandate did not require that leave to amend be granted when there were other adequate grounds for upholding the decision to dismiss the complaint.
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