Associa
_________________
were on brief for appellants.
_____________
_________________
____________________
February 16, 1993
____________________
____________________
*of the Third Circuit, sitting by designation.
commercial
matter
pending
in the
of a
district
failure.
claims
further complicated
Perceiving reasons
against
separate
followed.
one
party,
for
by an
a
prompt resolution
the district
final judgment as to
intervening bank
court
entered
of
a
We affirm.
I.
set
out
to
develop
residential
complex
Realty Trust
in
Mashpee,
("Quinaquisset") conveyed
to Fox
Run 152 acres of land adjoining the Fox Run holding, allowing
the
project
to
be
expanded.
In
exchange,
Quinaquisset
and
of
subdivision
were secured
condominiums
approval.
by a first mortgage
million to
secured by
permits
for
them
after
or
At the
finance Willowbend,
taking back
a note
as to the
152 acres.
In
October 1987,
Fox Run
conveyed to
Quinaquisset 20
-2-2-
on
the 152
acres was
discharged.
The Quinaquisset
Fox
Run then
million
note
to
Quinaquisset.
Then,
depositing with it
in
April
1989,
as collateral the
earlier $1.1
reflecting Fox
Run's debt
to Quinaquisset.
At this
indebted to
Quinaquisset and
both were
indebted to Sentry.
In September 1989 Fox Run fell
to Sentry, and Sentry
April
1990, Sentry
Run entered
agreed to convey
or
wholly
Evergreen Holding
the
note
guaranteed
Willowbend,
however, was
against
Company
two
to Sentry.
not
into a
In
settlement
title in Willowbend
Sentry
claim
to
("Evergreen"),
who
had
Sentry's mortgage on
discharged; rather
to
Evergreen
to the mortgage.
In the meantime, it
August 1989
to make
payments
to Quinaquisset
million note
payable to Quinaquisset
collateral.
In November
payments on
ceased in
on the
$1.1
but held by
Sentry as
behind in
-3-3-
to Sentry.
In
May 1990,
on the
("the
collectively
to the
For
simplicity,
trustee and
but
we will
refer
guarantors, appellants
in
also
proceeded with
Willowbend mortgage,
seeking to
efforts
to
foreclose the
property and
to Quinaquisset
threatened
to
delay
the
mortgage
sale
When
by
released Sentry's
conveyed
certain
agreed
to
Quinaquisset;
reservations
(in
the
foreclosure sale
of
second
"or to
the 20 house
and
rights
lots previously
Quinaquisset,
subject
described
the margin,
paragraph)
not
in
to
enjoin
to
the
action subsequent
[m]ortgages relating
____________________
thereto."1
The foreclosure
sale
proceeded,
there
were multiple
bidders,
and
at the
sale
September 1990,
Sentry
failed and
bank
entity,
entity; the
which
Evergreen.
district
brought
RTC
received
The RTC,
court
became
various
Resolution
conservator of
Sentry
assets
the
against
in Middlesex
Quinaquisset to
new
including
the litigation
by Sentry
the
to the
Superior Court
recover on
the
$950,000 note.
II.
On May
the
district
Evergreen,
named
as
filed a new
including
a
third
for
pleading in
the first
party
time
defendant.
counterclaim and
a lot of litigation.
receiver
for
Sentry
and
conservator of
the
new
entity,
counts,
alleging
multiple
wrongs
and
numerous
legal
____________________
agreed, "with the exception of the foregoing, to reserve
without prejudice their rights, claims or remedies" in the
Middlesex Superior Court action.
-5-5-
As only the
claims against
Evergreen are
at issue
on
concerning
is not
1991, pleading
it.
Describing
easy because
very little
relates directly to
the
it.
claims
in the
There
against
May 22,
are specific
of misrepresentation
led
to
and trickery
Quinaquisset's
reconveyance
of
the
discharge
permit
of
transactions that
its
rights to
mortgage,
Fox
claim that
conveyed to
Evergreen
trust
and
Run,
house lots
constructive
in the
seeks
the
Sentry's
its debt to
to cloud title
Quinaquisset.
holds
The pleading
permit rights
recision
of
the
the
in
original
concluding
that
the
recision
count
sought
to
to proceed.
the
judgment
court
remaining
granted summary
counts.
for
On April
21, 1992,
Evergreen on
the
-6-6-
but
it
appears
that
the
dismissal was
premised
on
the
bank records.
judgment
in
finding pursuant to
favor
just reason
for
history and
stemmed from
that
delay.
the recision
of
pass over
recision claim,
so that
to
separate judgment
the district court
a prompt
seeking immediate
buyer.
appellate review
counts,
procedural
Evergreen needed
all
related
claim against
Willowbend
Quinaquisset was
all
We
on
an earlier determination by
definitive resolution
sale
of Evergreen
the
Since
of the
it suitable that
claims
the
____________________
2The district court relied
on the doctrine in a
memorandum and order of July 19, 1991, granting summary
judgment to the RTC on all counts except the recision
parties remains
in the
district
____________________
3Quinaquisset contests the Rule 54(b) certification but
its argument is unpersuasive. The thread of the argument is
that to enter a judgment facilitating a sale of Willowbend
could impair Quinaquisset's prospects of recovering the
permit rights. If so, Quinaquisset was free to seek a stay
of judgment from the district court or from us. Absent a
showing that would warrant a stay, the desire to facilitate a
sale of assets, in connection with a bank reorganization, is
a perfectly good ground for the Rule 54(b) determination.
See generally Curtiss-Wright Corp. v. General Electric Co.,
_____________ ___________________
___________________
446 U.S. 1, 8 (1980).
-8-8-
III.
Like
recision
the
district
court
against Evergreen
against
it.
Our reason
recover
property
is
the
we separate
from the
for doing
one
line
the
balance of
claim
for
the claims
so is
that a
claim to
of
attack
made
by
be
circumstances
wrongdoing
on
its
wrongfully taken by
that case,
which
part--became
Evergreen--without
a
holder
of
property
circumstances)
any
whether by
other theory
in
be reached
even though
In
or some
in the
hands of
an
innocent possessor.
The district court foreclosed this possibility by ruling
on September
between
10,
the parties
Evergreen's title
district
subsequent
attack
the June
22, 1990,
agreement
such a
recovery.
Treating
prevented
court interpreted
1991, that
on the
the
agreement
resulting
title
as preventing
and ruled
that
. . .
-9-9-
Subject
in
"or
take
any
further action
to
the
validity
reference
[m]ortgages
"[t]he
of
subsequent
said
foreclosures
clear meaning
of
with
or
. .
is that
action to challenge
of
rights, it
argues,
future
action
affecting
the
the [agreement]
to take any
thereto
were
meant to
or
The
retain
title
to
Willowbend
or
the
does
There
"challenge or
Willowbend."
by
the
is, after
impair
district
foreclosures or
with the
one
express promise
the foreclosure
purchaser's title
court,
with
is
better
than
in
reference
to
the
promise is
any
alternative
read in
validity
of
said
thereto") together
action"
not to
reading, considering
action
all, no
this way,
it is
easy to
-10-10-
construe
the
even
more
general
language
of
the
rights
be more hesitant
to reach this
conclusion if
court
no
such
clause to have
evidence
has
been
been tendered
proffered.
Instead,
in the proviso
read to
we
to have
the
district
court's
interpretation
which
we
at
length, that
recover
the permits
claims,
whether by
it might
otherwise
from Evergreen.
recision or
have a
claim to
Assuming it
had such
constructive trust,
it has
surrendered them
decide
by
the agreement.
Quinaquisset's alternative,
This court
judgment is
was
their acquisition
"illegal");
the
Quinaquisset's claim
claim
not
and facially
(allegedly because
1987
last ditch
need
permits
by Fox
cut
Run in
off by
the
to
recover property
from
not
address property
that
-11-11-
Evergreen.
The judgment
does
dismissal on
See Doe v.
___ ___
against Evergreen,
a ground not
adopted by
the
Both parties
dismissed those
treat
claims in
the district
reliance on
so.
court
as
the D'Oench,
________
But there is no
district
Although
the
applied
to
district court
the
RTC,
in
the
sustaining
foreground
the
did
Quinaquisset
of
this
dismissal--the
a party
permits or the
in
a literal
to
case
failure
to
We
as
distinguish
another
to
basis
state
for
claim
Evergreen is admittedly a
not
the doctrine
seeks
the doctrine.
apparently
discuss
Run's
acquisition of
was
the
such as
ever alleged
acts
described.
that connect
The
complaint
Evergreen with
does
the wrongful
nakedly assert
that
-12-12-
is thereby
conduct.
Yet
Quinaquisset
alleges no
facts that,
if proved,
would even
for
the
See
___
acts of
generally
_________
its parent
under
an alter
ego
theory.
America v.
_______
F.2d 1080,
the
sentence
that Fox
"assumed
by
acquired.
complaint
Run's
Sentry
Nothing
or
asserts
in
obligations to
Evergreen"
one
conclusory
Quinaquisset
when
were
Willowbend
was
to Quinaquisset or remotely
dismiss,
but
this
tolerance
not
extend
to
1977), or to "bald
assertions."
Chongris
________
legal
(1st
v. Board of
________
Cir.),
is, of
litigation
normally
course, true
a party
may not
that at
the start
of complex
have all
the facts,
so courts
at the outset.
R. Civ. P. 12(b)(6)
-13-13-
deficient;
this
litigation
years;
and yet
even
explain
what
exactly
wrongful.
relating
Fox
has persisted
now Quinaquisset
it
is
against Evergreen is
that
is
for almost
two
still unable
to
Evergreen
did that
No amount of
is
those
embellished attack on
description
for unexplained
may be of its
reasons, it released
own making:
a mortgage on
part of
this misstep, if
such it was,
does not
preclude
the
possibility
surrounding events
participants.
claim is
that
out
Whether this
of
the
welter
of
is so, and if so
whether such a
-14-14-
which
Thus the
we affirm the
those
claims.
It will
Duhme
_____
when
the rest
be time enough
of
this
to consider D'Oench,
________
litigation, now
nine-tenths
of
-15-15-