REVISED FEBRUARY 18, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2009
No. 07-20740 Charles R. Fulbruge III
Clerk
RANDOLPH D GALE; DEBRA E GALE, Co-Trustees of the Gale 2000 Trust
Plaintiffs - Appellees
v.
ALAN G CARNRITE; CARNRITE REAL ESTATE HOLDINGS LLC
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Alan G. Carnrite and Carnrite Real Estate Holdings, LLC (“Carnrite”)
appeal the district court’s grant of summary judgment in favor of Randolph D.
Gale and his wife, Debra E. Gale, as Co-Trustees of the Gale 2000 Trust (“the
Gales”), on the Gales’ breach of contract claim. The Gales cross-appeal the
ruling on attorneys’ fees. For reasons we explain below, we REVERSE and
RENDER judgment for Carnrite and his company and deny the cross-appeal.
No. 07-20740
I. Factual and Procedural Background
In 1999, the Gales expressed interest in purchasing for the Gale 2000
Trust a condominium unit located in San Jose del Cabo, Baja California Sur,
Mexico. The condominium was owned by Villa Rayos Del Sol, LLC, a Nevada
limited-liability company. Carnrite owned all of the outstanding membership
interest in Villa Rayos.
Upon making an offer, the Gales were informed that due to legal
restrictions on non-Mexican ownership of real property in the area,1 they would
not be able to purchase the condominium directly. Instead, they would be
required to purchase the outstanding membership interest in Villa Rayos, which
was the beneficial owner of a leasehold interest in the condominium under a
Mexican Bank Trust arrangement known as a fideicomiso.2 Villa Rayos’s sole
asset was the beneficial interest in the condominium. Its only purpose was to
serve as the beneficiary of the fideicomiso.3
In December 1999, the Gales, as buyer, and Carnrite, as seller, executed
an agreement, entitled “Joint Escrow Instructions of Seller and Buyer, and
Agreement for Sale of Membership Interest in Villa Rayos Del Sol, LLC” (the
“Agreement”). The Gales agreed to purchase all of the membership interest in
1
Under Article 27 of the Constitution of Mexico, only Mexicans by birth or
naturalization or Mexican companies may “acquire direct ownership of lands or waters within
a zone of one hundred kilometers along the frontiers and of fifty kilometers along the shores
of the country.”
2
A fideicomiso is a property-ownership arrangement complying with Article 27 of the
Mexican Constitution under which a Mexican Bank Trust obtains legal title to a piece of real
property within a prohibited zone, and a foreigner, as the beneficiary of the trust, enjoys the
beneficial interest in the property, including all the usual rights of ownership.
3
Villa Rayos was formed in 1996. Its original members and owners were the
Sonenshine Family Trust and Sheila Prell Sonenshine, Trustee UWO Milton Prell. The
Sonenshine entities had previously purchased the beneficial interest in the fideicomiso from
the condominium’s developer in 1991 for $715,000, and subsequently transferred the beneficial
interest to Villa Rayos upon its formation in 1996. In February 1999, Carnrite purchased all
of the outstanding membership interest in Villa Rayos for $1,725,000.
2
No. 07-20740
Villa Rayos for $2,125,000. The Agreement included a warranty by Carnrite
that as of the date of closing, “the LLC has and will have no liabilities of any
nature[,] . . . including without limitation tax liabilities due or to become due.”
The Gales and Carnrite completed the purchase in January 2000. Neither
Carnrite nor anyone else reported the transaction to the Mexican government;
no Mexican income or capital gains taxes were paid on the transfer.
The Gales used the condominium for a number of years before deciding to
place it back on the market. In 2005, the Gales attempted to sell the
outstanding membership interest in Villa Rayos to James S. Vaudagna and the
Josephine Vaudagna Trust, but the Vaudagnas were not willing to purchase the
membership interest in Villa Rayos. Accordingly, in September 2005, Villa
Rayos, through the Gales, sold the Vaudagnas the beneficial interest in the
fideicomiso itself for $2,400,000. A substantial Mexican capital gains tax
liability resulted, determined by using the basis of the fideicomiso from 1991.
The Gales first filed and then dismissed a suit against Carnrite in the U.S.
District Court in Nevada. In December 2005, the Gales filed suit in the United
States District Court for the Southern District of Texas, asserting a cause of
action for breach of contract. The Gales alleged that Carnrite breached their
contractual warranty by failing to report to the Mexican authorities and pay
taxes on the Carnrite-Gale transaction. Carnrite filed two separate motions for
summary judgment, both of which the district court denied.
The court conducted a bench trial pursuant to Federal Rule of Civil
Procedure 44.1 to determine the applicable Mexican law. The court heard
testimony from expert witnesses for both sides. The court later ruled that the
Carnrite-Gale transaction gave rise to a tax liability under Mexican law.
The district court then granted summary judgment to the Gales. The
court held that Carnrite breached the Agreement’s warranty provision because
“at the time of closing, Villa Rayos had a built-in capital gains tax liability equal
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No. 07-20740
to the difference between the Gales’ purchase price and the original adjusted
basis.” The court further rejected Carnrite’s argument that even if there was a
breach, the Gales’ claim should fail because the Gales’ damages were caused by
their decision to sell the beneficial interest in the fideicomiso rather than the
membership interest in Villa Rayos. The court explained that in its Rule 44.1
ruling, it held, as a matter of law, that the sale of the shares in a fideicomiso is
a taxable event; thus, the Gales would have been subjected to Mexican taxes
regardless of the manner in which they structured the transaction.
Carnrite now appeals, arguing that the district court erred in denying its
motions for summary judgment, granting the Gales’ motion for summary
judgment, finding as a matter of law that the Carnrite-Gale transaction gave
rise to Mexican tax liability, and denying its post-trial motions. 4 The Gales
cross-appeal the district court’s order on their motion for attorneys’ fees.
II. Discussion
We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court. Noble Energy, Inc. v. Bituminous Cas.
Co., 529 F.3d 642, 645 (5th Cir. 2008). Summary judgment is proper when the
“pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A. Standing
4
Carnrite’s notice of appeal also stated that the appeal was from the district court’s
order denying its motion to compel production of the Gales’ tax returns and proof of payment
documents from the United States and Mexico for the time periods relevant to this suit. Other
than mentioning this motion and its denial in the facts section of its brief, Carnrite does not
present any argument or authority on this issue. As such, Carnrite has waived this issue.
Jason D.W. ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir.
1998) (“We have held that the failure to provide any legal or factual analysis of an issue on
appeal waives that issue.” (citations omitted)).
4
No. 07-20740
As a threshold matter, we must determine whether the Gales have
standing to pursue their claim. Questions of jurisdiction, like standing, are
reviewed de novo. Bonds v. Tandy, 457 F.3d 409, 411 (5th Cir. 2006). Carnrite
argues that because Vaudagna directly purchased the beneficial interest in the
fideicomiso from Villa Rayos rather than purchasing the outstanding
membership interest in Villa Rayos from the Gales, the Gales were not liable for
the capital gains taxes about which they are complaining. Instead, the entity
Villa Rayos, which is not a party to this suit, was accountable for the taxes
assessed as a part of the Gale-Vaudagna transaction. Consequently, Carnrite
maintains that the Gales have not suffered an injury in fact, and therefore do
not have standing to pursue their claim.
The Gales respond by asserting that after the lawsuit was filed, on
January 17, 2007, Villa Rayos executed a written agreement assigning to the
Gales all of the claims presented in this lawsuit. The assignment stated it was
effective as of September 9, 2005. Carnrite does not dispute the usual propriety
of this type of assignment. However, it argues that because Nevada revoked
Villa Rayos’s right to transact business effective May 1, 2004, for its failure to
pay its franchise taxes and filing fees and to file its annual reports, Villa Rayos’s
purported assignment was ineffective. The district court ruled that the Gales
had standing to bring this suit because they were parties to the Agreement upon
which the suit is based.
Article III standing requires, at a minimum, that “the plaintiff personally
suffered some actual or threatened injury that can fairly be traced to the
challenged action and is redressable by the courts.” Doe v. Tangipahoa Parish
Sch. Bd., 494 F.3d 494, 496 (5th Cir. 2007). “‘The gist of the question of standing
is whether the party seeking relief has alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
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No. 07-20740
illumination of difficult . . . questions.’” Texas v. United States, 497 F.3d 491,
496 (5th Cir. 2007) (quoting Flast v. Cohen, 392 U.S. 83, 99 (1986)) (additional
internal quotation marks and citation omitted).
Although the Gales were clearly a party to the agreement allegedly
breached in this case, Carnrite argues that Villa Rayos incurred the injury
caused by such breach. In documents entitled “Seller’s Settlement Statement”
and “Disbursement Instructions for Funds Held in Escrow,” which list
substantial capital gains taxes as one of the fees to be paid as a part of the Gale-
Vaudagna transaction in 2005, the seller of the beneficial interest in the
fideicomiso is listed as “Villa Rayos del Sol, LLC represented by Randolph D.
Gale and Debra Gale.” Additionally, in his affidavit testimony, Randolph Gale
discusses the 2005 tax liability in somewhat ambiguous terms, stating “we,
through the LLC, became liable for additional capital gains taxes . . . ,” and “we
were required to pay Mexican capital gains taxes . . . .”
Regardless of these technical issues, it is clear that the payment of such
taxes inevitably fell on the Gales. It is uncontested that Villa Rayos had no
assets or income from which to pay the taxes. Villa Rayos’s sole asset was the
beneficial interest in the fideicomiso being transferred. The Gales were Villa
Rayos’s sole members.
Moreover, Carnrite’s argument that Villa Rayos’s assignment was
ineffective is foreclosed by Nevada law regarding permissible conduct by a
limited-liability company whose right to transact business has been revoked.
One Nevada statute provides that after the charter of a limited-liability company
is revoked, “the property and assets of the defaulting company must be held in
trust by the managers,” and dissolution proceedings under other statutes should
be pursued. Nev. Rev. Stat. § 86.274. Another statute allows a dissolved
limited-liability company to dispose of its property and wind up its affairs:
6
No. 07-20740
The dissolution of a limited-liability company does not impair any
remedy or cause of action available to or against it or its managers
or members arising before its dissolution and commenced within 2
years after the date of the dissolution. A dissolved company
continues as a company for the purpose of prosecuting and
defending suits, actions, proceedings and claims of any kind or
nature by or against it and of enabling it gradually to settle and
close its business, to collect and discharge its obligations, to dispose
of and convey its property, and to distribute its assets, but not for
the purpose of continuing the business for which it was established.
Id. § 86.505. A final relevant provision is that after dissolution, the assets may
be distributed to its members. Id. § 86.521.
Accordingly, when Villa Rayos’s right to transact business was forfeited
in May of 2004, the Gales held its property and assets in trust. Among the
assets unimpaired by the dissolution was any cause of action against Carnrite.
Moreover, the Gales were permitted to transfer those assets to themselves as the
company’s only remaining members.
As the parties inevitably injured by the alleged breach, and the assignees
of Villa Rayos’s claims, the Gales have standing to pursue this action.
B. Breach of the Agreement
The Gales maintain that Carnrite breached the warranty provision of the
Agreement when it failed to report to the Mexican authorities and pay taxes on
the Carnrite-Gale transaction in January 2000. The argument continues that
the tax liability then passed to Villa Rayos, which ultimately had to pay the
taxes as a part of its 2005 sale to Vaudagna. Carnrite responds, however, that
the 2000 sale was not a taxable event under then-applicable Mexican tax law.
Even if it was a taxable event, any resulting tax liability would fall solely upon
Carnrite and not upon Villia Rayos, as required for liability under the language
of the Agreement. We find our issues thus to be (1) whether the 2000
transaction was a taxable event under the then-existing Mexican tax law, and
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No. 07-20740
if so, (2) whether Carnrite’s failure to pay such taxes created a tax liability for
Villa Rayos within the language of the Agreement.
1. Was the 2000 transaction a taxable event under then-existing
Mexican tax law?
After conducting a hearing on this issue under Rule 44.1 of the Federal
Rules of Civil Procedure, the district court concluded that the Carnrite-Gale
transaction in 2000 was a taxable event under Article 190 5 of the Mexican tax
code applicable at the time of the transaction. Carnrite maintains that the
court’s interpretation of Mexican law is incorrect. According to Carnrite, the
exchange of a nonresident limited-liability company’s shares did not generate tax
liability under the version of Article 190 in effect at the time of the 2000
transaction if the value of the shares derived from an indirect interest in
Mexican real property, as through a fideicomiso. The provision was amended in
2004 to create tax liability in such situations.
We do not resolve this issue. As we will discuss, even if the transaction in
2000 was a taxable event, the Gales have not shown that Carnrite’s failure to
pay such taxes resulted in a liability for Villa Rayos. As such, the Gales’ breach
of contract claim fails under either interpretation of the Mexican tax law.
2. Did Carnrite’s failure to pay taxes on the 2000 transaction create a
tax liability for Villa Rayos within the language of the Agreement?
Because we have assumed in our analysis that the 2000 transaction was
a taxable event, we must determine whether Carnrite’s failure to report or pay
taxes on the transfer created a tax liability for Villa Rayos. The district court
did not answer this particular question. Instead, the court focused on a different
potential breach. Relying on Fifth Circuit caselaw, the court concluded that
“Villa Rayos had a liability because it had an interest in an asset that had
5
The Mexican statute was at some point codified as Article 151 and then was officially
renumbered as Article 190. Our reference to Article 190 will include, as appropriate, the prior
version of the statute.
8
No. 07-20740
appreciated significantly over the original, adjusted basis for which it faced
capital gains tax liability.” The court thus held that “[b]ecause the Gales were
assured by the contract that Villa Rayos had no liability ‘of any nature,’ that
contract was breached.” 6 We see some difficulties with the district court’s
approach. No party argues that the court’s specific reasoning should be
sustained. The Gales expressly abandoned the district court’s low-cost basis
theory at oral argument, explaining that they were relying solely on their
contention that a breach occurred when Carnrite failed to pay taxes on the 2000
transfer. Because of its abandonment by the parties, we do not review the
district court’s legal analysis.
To understand what is argued, we examine Section 3.01(h) of the
Agreement, which contains the warranty provision at issue:
ARTICLE 3. WARRANTIES OF SELLER
Section 3.01. Seller hereby warrants, represents and covenants to
Buyers and each of them, and this agreement is made in reliance on
the following, each of which is deemed to be a separate covenant,
representation and warranty:
....
(h) As of the date of these Instructions, and at the date of the
Closing the LLC has and will have no liabilities of any nature,
whether accrued, absolute, contingent, or otherwise, and whether
due or to become due, known or unknown, including without
limitation tax liabilities due or to become due, and incurred in
respect of or measured by the LLC’s income for any period up to
such date, or arising out of transactions entered into, or any state
of facts existing prior thereto, except as set out on Exhibit “C”
attached hereto.
6
Presumably, Carnrite could have avoided liability under this theory by including a
representation regarding Villa Rayos’s cost basis in the fideicomiso as Exhibit C to the
Agreement. Though the warranty provision mentions an Exhibit C, there was apparently no
such exhibit attached to the Agreement in its final form.
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No. 07-20740
As just quoted, what has been warranted is that the “LLC” will not have
liabilities. Section 1.01 of the Agreement defines the “LLC” as Villa Rayos del
Sol, a Nevada Limited Liability Company, and the term is never given a more
expansive definition. Thus, although Carnrite and the Gales were the
signatories, the Agreement warranted only that Villa Rayos itself would have no
tax liabilities at the time of the transfer. Accordingly, we must determine, under
Mexican law, whether the LLC was obligated to pay taxes on the 2000
transaction and the effect of any taxes not being paid.
Carnrite and the Gales agree that any tax liability initially fell on
Carnrite; their disagreement centers on the effect of Carnrite’s failure to report
and pay taxes on the transfer. The parties offered conflicting expert testimony
on this issue. Mitchell Creekmore, an expert for the Gales regarding capital
gains tax liability for foreign buyers of Mexican residential property, testified as
follows in his deposition regarding the tax liability resulting from the 2000
transaction:
Q. Okay. Now, let’s talk about the capital gains tax. The capital
gains tax then, you believe, would be owed by Carnrite Real Estate
Holdings, LLC?
A. Yes, or Villa Rayos.
Q. Well – and that’s my next question. Would Villa Rayos del
Sol, LLC, also owe the capital gains tax?
A. No. Villa Rayos is the one that sold or transferred to the
Carnrites. So that would be the entity. That’s the actual
beneficiary of the trust[,] right?
Q. Correct.
A. Okay.
Carnrite argues that Creekmore’s testimony is an admission that if Carnrite
failed to pay capital gains taxes in 2000, any liability would fall solely upon
Carnrite, not upon Villa Rayos or the Gales. Creekmore’s testimony does not
take Carnrite where it would like to go. First, Creekmore’s testimony concerns
only the party obligated for the tax in the first instance, not what happens if
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No. 07-20740
Carnrite, the initial obligor, fails to pay. Second, Creekmore’s statements are
confusing at best. Creekmore made at most a passing reference to Villa Rayos
as being potentially liable for the taxes. Creekmore then explicitly stated that
Villa Rayos would not owe any taxes, as it was “the one that sold or transferred
to the Carnrites.” Actually, Villa Rayos never sold or transferred anything to
Carnrite, but its ownership was the subject of the transfer.
Jonathan Pikoff, another expert for the Gales, also testified regarding this
issue. During the Rule 44.1 hearing before the district court, Pikoff maintained
that the effect of Carnrite’s failure to pay Mexican taxes at the time of the sale
to the Gales was that “[i]t passe[d] on a liability to the LLC, to the Gales.” Pikoff
explained that his conclusion flowed from this language in Article 190 itself:7
In the case of acquisitions by nonresidents of shares or
security instruments representing the ownership of property to
which the first paragraph of this article refers, the tax authorities
may perform an appraisal of the transaction in question, and if such
appraisal exceeds the contractual consideration for the alienation by
more than 10%, the total difference shall be considered income to
the alienee, in which case the acquisition cost of the property shall
be increased by said total difference.
Mexican Tax, Customs and Foreign Investment Laws ¶4430 (CCH, Inc. 2006)
(English translation). When asked to describe this provision in layman’s terms,
Pikoff explained,
what they’re saying is if the transaction amount is more than 10
percent off from what was declared – in this case nothing was
declared, so it’s 100 percent – if the seller does not declare his taxes
– this is a tough translation here in this version you gave me – but
if the seller doesn’t pay the tax, then the buyer becomes liable for
the tax.
7
As noted above, Article 190 (or Article 151) is the Mexican tax provision through
which the Gales assert that the 2000 transaction was a taxable event.
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No. 07-20740
Rodolfo Sanchez-Arellano, Carnrite’s expert, however, disagreed with Pikoff’s
construction of this provision in reference to this case. He testified during the
Rule 44.1 hearing that
this paragraph is applicable just by the tax authorities, then it is
very clear what it states. Just in the case the tax authorities make
– make a note to the transaction and find out that the operation was
not properly agreed on an arm’s length basis, in other words, that
the fair market value of the stock was higher, and they give a
percentage, 10 percent higher than that was agreed. And it is a
paragraph that can be applied just by the tax authority. That’s the
reason why I fully disagree with [Pikoff’s] testimony.
He further stated that to the best of his knowledge, the Mexican tax authorities
did not audit the 2000 transaction between the Gales and Carnrite. Finally,
Sanchez-Arellano opined that Villa Rayos could not be liable for the taxes on the
2000 transaction: “It’s just the entity issuing the stock. It cannot be jointly
liable. There is no way the tax authorities can claim that it is jointly liable.
There is not that statement and that hypothesis under the income tax law nor
under the federal tax code.”
The applicability of the Article 190 language quoted above to the present
case is unclear. Under the provision, the buyer in a sale of stock may incur a tax
obligation if the purchase price of the stock is more than 10% below the true
value of the stock. The parties have not pointed to any evidence that the Gales
purchased the membership interest in Villa Rayos at a deflated price or that the
Mexican authorities performed an appraisal of the transfer. Perhaps Pikoff is
correct, and some of the seeming inconsistencies between the language of the
provision and the facts of this case can be explained as the result of a “tough
translation” of the Spanish text. Even so, we have some doubts regarding
Pikoff’s explanation of the quoted provision and whether it applied to the
Carnrite-Gale transaction. Nonetheless, this provision is the only vehicle
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No. 07-20740
through which the Gales have asserted that Carnrite’s failure to pay taxes in
2000 created a tax liability for Villa Rayos.
Even assuming Pikoff is correct in his explanation of the provision and its
application to this case, the Gales have not shown that Carnrite’s failure to
report or pay taxes on the transfer created a tax liability for Villa Rayos.
Instead, both under Pikoff’s analysis and the language of the provision itself,
Carnrite’s failure to pay resulted in a tax liability for the Gales (the buyer), not
Villa Rayos. The warranty provision covered only the tax or other liabilities of
the LLC, Villa Rayos. Villa Rayos was neither the buyer nor the seller in the
transaction.8 The 2000 transaction altered the ownership of the membership
interest of Villa Rayos, but there is no factual or legal basis shown by this record
that Villa Rayos itself became liable for anything or that it would become liable
at the default of others.
We find nothing absurd or otherwise deficient in the plain language of the
warranty. The seller provided a warranty that the asset being transferred did
not itself have any liabilities. If the act of transferring created liabilities or
passed on a pre-existing liability of the seller, that risk was not covered by the
warranty. A warranty that the buyer was not getting any liabilities of any
nature from any source would be a valuable one. We conclude, though, that this
warranty did not provide such comprehensive protection.
Because Carnrite’s failure to pay taxes in 2000 is the only breach the Gales
allege, Carnrite is entitled to judgment on the breach of contract claim.9
8
By contrast, in the 2005 transfer, Villa Rayos itself sold the beneficial interest in the
fideicomiso to Vaudagna. Villa Rayos was the seller, which was the basis for our earlier
resolution of the issue of standing. The warranty, though, applied only to the 2000 sale.
9
In light of this ruling, Carnrite’s remaining arguments are moot, including its
contention that proof of justifiable reliance is required to recover for breach of an express
warranty, that the low-cost basis of a limited-liability company’s sole asset does not create a
tax liability for the company itself, and that the Gales’ claim was barred by the applicable
statute of limitations. Similarly, the Gales’ cross-appeal of the district court’s order on
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No. 07-20740
III. Conclusion
For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment and RENDER judgment for Carnrite.
attorneys’ fees is also moot.
14