Professional Documents
Culture Documents
No. 11-1704
R. VLAHCEVIC; G.
M. JONES; STEPHEN
Defendants.
No. 11-1707
EVANS,
an
individual;
STEPHEN
CONNOR,
an
Defendants.
Appeals from the United States District Court for the District
of South Carolina, at Anderson.
Joseph F. Anderson, Jr.,
District Judge. (8:09-cv-00415-JFA; 8:09-cv-01739-JFA)
Argued:
Decided:
July 2, 2012
ARGUED: Thomas G. Foley, Jr., FOLEY BEZEK BEHLE & CURTIS, LLP,
Santa Barbara, California, for Appellants.
Cory Hohnbaum, KING
& SPALDING, LLP, Charlotte, North Carolina, for Appellees.
ON
BRIEF: Cheryl F. Perkins, WHETSTONE MYERS PERKINS & FULDA, LLC,
Columbia, South Carolina, James R. Gilreath, GILREATH LAW FIRM,
Greenville, South Carolina, for Appellants Gerald R. Terry, Ann
T. Robbins, Jane Evans; Robert L. Brace, HOLLISTER AND BRACE,
Santa Barbara, California, for Appellants Angela M. Arthur,
Vivian R. Hays, Leapin Eagle LLC, Denise J. Wilson.
these
diversity
actions,
consolidated
for
pre-trial
with
prejudice
pursuant
to
Federal
Rule
of
Civil
filed
petition
in
bankruptcy)
acted
as
qualified
Appellants
(the
Exchangers)
are
the
named
members
that
engaged
LES
as
QI
between
February
and
November
2008.
The
district
court
ruled
LES
did
not
assume
I.
First, we address the claim of aiding and abetting breach
of
fiduciary
pursuant
to
duties.
Rule
We
review
12(b)(6)
de
district
courts
novo.
Nemet
Chevrolet,
dismissal
Ltd.
v.
550
plausibility
allows
the
U.S.
when
court
544,
the
to
570
(2007)).
plaintiff
draw
the
pleads
claim
factual
reasonable
has
facial
content
inference
that
that
the
begin
with
an
explanation
of
the
statutory
and
circumstances,
recognition
of
however,
capital
gains
property
if
the
owner
property
may
defer
the
is
held
for
owner
property)
exchange[s]
for
the
another
property
property
(known
of
like
as
relinquished
kind
(known
as
harbors
available
to
ensure
determination
of
non-
intermediary,
or
certain
security
or
guarantee
B.
The Exchangers chose the qualified intermediary option, and
engaged LES as a QI between February and November 2008. As IRS
regulations
require,
relinquished
property
LESs
from
role
the
was
to
acquire[]
the
taxpayer,
transfer[]
the
the
replacement
property
to
the
taxpayer.
Id.
rights
LES
with
would
respect
to
the
receive
upon
Exchange
selling
Funds
the
--
the
relinquished
funds
in
an
account
at
SunTrust
and
to
unconditionally
A sample Exchange
citations to sections of
agreement.
Agreement is at J.A.
the agreement are to
822-32. All
that sample
Funds
during
the
course
of
the
exchange,
and
that
the
Funds
Exchangers
after
also
LES
purchased
acknowledged
that
replacement
LES
would
property.
The
invest[]
the
Exchange Funds, and that the amount of the Exchange Funds may
be in excess of the maximum amount of deposit insurance carried
by
[SunTrust].
As
compensation
for
LESs
services,
the
Section
6(b)
recites
that
LES
was
entering
into
this
contains
the
entire
understanding
between
and
property,
and
received
the
net
proceeds.
LES
other
hundreds
property
of
owners
millions
of
exchange
dollars
funds
of
in
auction
part
rate
to
buy
securities
rates
or
dividends
that
are
reset
at
frequent
intervals. Most of the ARS held by LES had been sold to LES by
SunTrust
entity.
Robinson
In
Humphrey,
February
2008,
Inc.
(STRH),
the
auctions
SunTrust-related
through
which
ARS
interest rates were set began to fail, and the ARS market froze.
LES held ARS with a par value of $290.5 million, but the frozen
market left those securities with a liquidation value of only a
small percentage of par. With those assets frozen, LESs liquid
assets were insufficient to acquire replacement properties for
the property owners under existing exchange agreements. While
LES
eventually
immediately.
declared
Rather,
bankruptcy,
apparently
hoping
it
did
the
ARS
not
do
market
so
would
those
with
the
Exchangers,
allegedly
using
new
estate,
or
(b)
remained
the
property
of
the
property,
distribution
in
LandAmerica
1031
and
therefore
bankruptcy.
Exch.
were
Frontier
Serv.
(In
re
subject
Peppers
to
pro
Ferry,
LandAmerica
rata
LLC
Fin.
v.
Group
funds
were
held
in
segregated
rather
than
commingled
accounts at SunTrust).
After that issue was resolved in favor of LESs trustee,
the
trustee
ratably
distributed
9
LESs
remaining
assets
among
LESs
creditors,
including
the
Exchangers.
The
Exchangers
California
and
the
Terry
plaintiffs
filed
suit
in
South
SunTrust
Exchange
knew
about
Litigation,
LESs
716
F.
[a]ctivities,
Supp.
2d
415,
In
428
re
(D.S.C.
1031
2010)
two
of
which
are
at
issue
on
appeal:
aiding
and
their
Exchangers
aiding-and-abetting
allege
that
LES
claim
owed
against
fiduciary
SunTrust,
duties
to
the
the
10
Exchangers
and
that
SunTrust
knowingly
assisted
LES
in
in
the
frozen
ARS
market,
but
also
that
neither
[LESs
exchanges
other
than
the
daily
influx
of
new
Exchange
civil
conspiracy.
representatives
of
They
SunTrust,
allege
that
including
certain
its
agents
Deputy
or
General
11
Counsel
and
representatives
Senior
Samuel
Vice
President
Ballesteros,
Brian
Kris
Edwards,
Anderson,
and
Bill
principal
question
presented
in
this
appeal
is
the
the
purchase
of
replacement
properties,
as
well
as
We
are
not
persuaded
by
any
of
those
theories
that
reversal is warranted.
1.
(a)
The Exchangers first argue LES was a fiduciary because the
Agreement created either an express or resulting trust, with LES
as the trustee. 5 An express trust is created when the parties
affirmatively manifest an intention that certain property be
held in trust for the benefit of a third party. In re Dameron,
155 F.3d 718, 722 (4th Cir. 1998). A resulting trust is an
indirect trust that arises from the parties intent or from the
nature
of
declaration
the
of
transaction
trust.
1924
and
does
Leonard
not
Rd.,
require
LLC
v.
an
express
Roekel,
636
S.E.2d 378, 383 (Va. 2006). When a trust has been created, the
beneficiary remains the equitable owner of the trust property.
In re Dameron, 155 F.3d at 722 (quoting Broaddus v. Gresham, 26
5
13
S.E.2d 33, 35 (Va. 1943)). 6 The Exchangers argue that under the
Agreement they reserved an equitable interest in their exchange
proceeds and limited LESs role to hold[ing] those funds and
applying
them
toward
the
purchase
of
replacement
property;
therefore, they argue, LES held the funds in trust. 7 They rely on
three categories of evidence to show that LES held the funds in
trust: (1) the language of the Agreement; (2) custom and usage
in the QI industry; and (3) extrinsic evidence of the parties
intent.
As for the language of the Agreement, the Exchangers point
to four terms or phrases:
(1)
(2)
14
by
the
(3)
(4)
for
the
because
they
direct[]
that
the
Funds
be
used
and
52.
For
example,
the
Code
of
Ethics
and
Conduct
of
the
qualified
intermediaries,
provides
that
exchange
in
Standard,
investments
shall
not
which
meet
knowingly
the
Prudent
commingle[]
Investor
exchange
funds
15
although
they
concede
that
some
provisions
run
an
Executive
stated
that
LES
Summary
serves
in
that
a
LES
provided
fiduciary
to
capacity
SunTrust
for
its
with
the
funds
ultimately
belonging
to
the
retail
Nebraska
exchange
Department
agreements
as
of
a
Insurance,
specialized
which
form
described
of
escrow.
LESs
(SAC
its customers, until the funds (with the related earnings) are
returned to customers to complete the 1031 exchange. (SAC 94;
J.A. 1056.)
The district court rejected these arguments, as had the
bankruptcy
court
that
oversaw
the
LES
bankruptcy,
where,
as
courts
reasoned,
to
the
contrary,
that
by
entering
the
of
trust
would
retain
in
trust
property,
an
that
Virginia
law
would
not
impose
fiduciary
Virginia
law,
contract
must
be
construed
as
Westmoreland-LG&E
Partners
v.
Virginia
Elec.
&
its
parts
can
be
read
together
without
conflict,
Doswell Ltd. PShip v. Virginia Elec. & Power Co., 468 S.E.2d
84, 88 (Va. 1996). If a contracts parts can be read together
without
conflict,
court
must
construe
the
language
as
written. Id.
Unlike
such
parol
evidence,
[e]vidence
that
contract
ordinary
use
is
admissible
even
though
the
phrases
or
specific
qualify
the
terms
terms
of
of
the
the
agreement,
agreement,
and/or
Va.
supplement
Code
Ann.
or
8.1A-
as
supplement[ed]
18
or
qualif[ied]
by
relevant
evidence
of
trade
usage,
Va.
Code
Ann.
8.1A-303(d),
trust;
the
language
above
actually
evidences
an
Funds
after
LES
purchased
replacement
property.
The
herein,
and
provided
that
no
additional
duties
or
6(c)).
the
hereto
The
entire
(
11).
Agreement
understanding
For
these
19
also
stated
between
reasons,
and
the
that
it
among
the
Agreement
the
funds
susceptible
to
fiduciary;
the
toward
replacement
interpretations
unavoidable
that
properties
impact
LES
of
was
the
or
is
was
provisions
equally
not
quoted
complex,
algorithm.);
see
also
Victor
Brudney,
does
not
alter
this
conclusion.
According
to
the
Exchangers, they may not have been required to grant LES sole
and
exclusive
possession,
dominion,
control
and
use
of
all
that
exchangers
grant
QIs
such
replete
bundle
of
(finding
different
that
accommodator
different
was
exchange
ambiguous
as
agreement
to
by
whether
a
the
safe
qualified
regulations
harbor
under
intermediary.
allow
1031,
As
exchangers
were
mentioned
to
use,
not
required
above,
among
the
other
to
use
Treasury
things,
sum,
we
hold
that
the
parties
Exchange
Agreement
Funds.
complete
and
Accordingly,
and
unconditional,
because
Virginia
the
law
Agreement
precludes
is
our
Appellants
Br.
at
35.
An
agency
relationship
principal-agent
relationship
exists,
the
agent
is
agents]
necessarily
owed
fiduciary
duty
to
[the
out
the
agents
undertaking
implicates
fiduciary
evidence
Exchangers
argue
that
LES
LES
was
was
the
subject
to
Exchangers
[their]
agent,
direction
the
in
because
LES
explicitly
did
not
Exchangers
argue,
implies
that
LES
was
their
agent
for
all
response,
contractually
SunTrust
obligated
to
argues
that
facilitate
although
Appellants
LES
was
purchase
of
agree.
contracts,
In
like
wide
the
variety
Agreement
of
here,
contexts,
that
parties
allow
one
execute
party
to
automatically
create
fiduciary
relationships.
Only
those
to
the
principals
control
does
fiduciary
of
these
provisions,
LES
cannot
be
said
to
have
been
requires
that
controls,
and
result
that
either.
language
The
is
language
of
inconsistent
the
with
Agreement
LES
having
Exchangers
third
argument
is
that
LES
was
real
definition
performance
executors;
of
the
following:
their
auctioneers;
duties;
attorneys
trustees,
property
acting
in
administrators
management
companies;
the
or
and
the
Exchangers
call
statutory
fiduciary
duties,
manner
for
all
money
and
property
received
by
the
Ann.
54.1-2131(A)(5),
(2)
25
must
disclose
all
material
received
compensation
for
its
role
as
an
exchange
the
statutory
definition
of
real
estate
brokers.
We
as
importantly,
the
the
term
is
commonly
Exchangers
agreed
understood.
to
limit
Moreover,
LESs
duties
and
to
not
district
impose
court
fiduciary
properly
duties
on
dismissed
the
LES,
and
claim
therefore
seeking
to
the
hold
II.
We now turn to the Exchangers claim alleging common law
civil conspiracy, judging the sufficiency of the SAC by the same
standard. See supra at 4. Under Virginia common law, [a] civil
conspiracy is [1] a combination of two or more persons, [2] by
some
concerted
action,
[3]
to
accomplish
some
criminal
or
Appellants Reply Br. at 22-23 (citing Fairfax Gas & Supply Co.
v. Hadary, 151 F.2d 939, 940 (4th Cir. 1945); All Bus.
Solutions, Inc. v. NationsLine, Inc., 629 F. Supp. 2d 553, 560
(W.D. Va. 2009)). Because we conclude LES was not a real estate
broker under Virginia law, we need not resolve this issue.
9
27
S.E.2d
277,
281
(Va.
1993).
Further,
claim
for
civil
same
way
as
does
Virginia
law,
although
it
considers
tort
tortfeasors
common
themselves,
plan
or
share
design
with
in
its
the
immediate
perpetration.
Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454,
10
28
457
(Cal.
1994).
By
participation
in
civil
conspiracy,
the
immediate
tortfeasors.
Id.
Like
Virginia
law,
29
extent
fiduciary
the
alleged
duty,
the
underlying
district
tort
court
was
dismissed
LESs
the
breach
of
conspiracy
claim upon concluding that LES was not a fiduciary. See Terry
II, 2011 WL 2444805, at *6. We agree that, because LES did not
owe
the
Exchangers
fiduciary
duty,
that
theory
of
the
to
the
that
Exchangers
SunTrust
conspiracy-to-defraud
engaged
in
concerted
theory,
action
with
they
LESs
the
common
purpose
of
deceiving
the
Exchangers
into
11
The
district
court
reached
that
conclusion
upon
dismissing the Exchangers first amended complaint, before they
filed the second amended complaint. Because upon dismissing the
(Continued)
30
SunTrust
argues
we
should
affirm
the
dismissal
of
the
fraud
Exchangers
failed
to
plead
anything
beyond
conclusory
P.
the
9(b).
circumstances
The
constituting
circumstances
that
fraud.
must
be
Fed.
pled
R.
with
(quoting
Charles
Alan
Wright
and
Arthur
R.
Miller,
31
but
complaint
must
nonetheless
show[],
that
the
556
allegations
U.S.
in
at
the
678,
686-87.
Exchangers
Upon
reviewing
complaint
and
the
the
factual
attached
exhibits, we agree that the Exchangers have not shown that their
factual allegations plausibly give rise to an entitlement to
relief for conspiracy. Iqbal, 556 U.S. at 679.
The second amended complaint alleges that by mid-2008, LES
and its officers knew LES was insolvent, as nearly all of its
assets were tied up in frozen ARS, leaving just $28 million to
cover
pending
exchanges
of
over
$290
million,
and
by
early
to
deceive
so
that
the
Exchange
Clients
continued
to
facts
concerning
the
Exchange
transactions.
(SAC
for
LFG
to
transfer
funds
from
LFG
as
lulling
replacement
properties,
the
individual
defendants
committed fraud.
Those factual allegations, which must be taken as true at
this stage, satisfy the unlawful act element of a conspiracy
claim
under
clearly
and
Virginia
plausibly
or
California
allege
that
law.
The
they
were
Exchangers
harmed
by
also
the
plausibly
and
non-conclusorily
alleged
that
SunTrust
Exchangers
2008
and
do
plausibly
probably
allege
before,
that,
SunTrust
at
least
by
representatives,
President),
were
aware
that
LES
was
facing
severe
imploring
SunTrust
for
financial
assistance
which
funds.
J.A.
847.
during
the
height
of
the
inflows
by
nearly
$400
The
document
also
credit
crisis,
million,
and
34
explained
outflows
that
that
exceeded
although
LES
be
requiring
auction
timing
liquidity
rate
difference
on
between
securities.
portion
Id.
In
of
the
inflows
the
and
$290.5
words
of
outflows,
million
LESs
in
general
LESs
liquidity
plan,
and
thus
sought
to
keep
SunTrust
expressed
her
appreciate[ion]
that
Edwards
and
Bill
fact
that
SunTrust
allegedly
knew
all
the
above
35
The
principal
allegations
of
SunTrusts
actions
are
the
purchases
of
replacement
property
for
LESs
prior
correlation
in
that
regard
plausibly
supporting
concerted
LESs
creditors,
and
indeed
was
the
subject
of
the
the
an
Exchangers
amendment
to
allege
LFGs
that
in
revolving
June
line
2008,
of
in
credit,
business
perpetuate
to
the
continue
known
to
Ponzi
solicit
scheme.
new
Exchange
(SAC
Funds
107.)
As
and
the
13
concerted
action
with
the
individual
defendants,
with
and
complaint
California
and
the
law.
hundreds
Indeed,
of
the
pages
allegations
of
emails
in
and
the
other
with
respect
to
these
customers.
J.A.
837.
these
reasons,
we
conclude
the
Exchangers
have
not
38
III.
For the foregoing reasons, the judgment of the district
court dismissing the Exchangers claims against SunTrust is
AFFIRMED.
39