Charleston Associates, LLC v. City National Bank, and RA SOUTHEAST LAND COMPANY, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLESTON ASSOCIATES, LLC,
Plaintiff-Appellant,
v.
CITY NATIONAL BANK, and RA
SOUTHEAST LAND COMPANY, LLC,
Defendants - Appellees.
No. 13-16698
D.C. No. 2:11-cv-2023-MMD-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted November 17, 2015
San Francisco, California
Before: McKEOWN, RAWLINSON, and DAVIS,** Circuit Judges.
FILED
JAN 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Andre M. Davis, Senior Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.

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Appellant Charleston Associates, LLC (“Charleston”) filed an adversary
proceeding in bankruptcy court against Appellees City National Bank (“CNB”) and
RA Southeast Land Company, LLC (“RA Southeast”), seeking a declaration that it
owned the Declarant’s Rights associated with a forty-one-acre parcel of land in Las
Vegas, Nevada. The bankruptcy court entered summary judgment in favor of
Charleston. On appeal, the district court concluded that Charleston had retained
possession of the Declarant’s Rights until 2007, at which point the Declarant’s
Rights transferred to CNB via a Trustee’s Sale executed pursuant to a Charleston-
CNB Settlement Agreement. Accordingly, the district court reversed the judgment
of the bankruptcy court and remanded with instructions for the bankruptcy court to
award summary judgment in favor of CNB and RA Southeast. Charleston now
appeals. For the reasons stated below, we affirm the judgment of the district court.
1. We review “de novo the district court’s decision on an appeal from a
bankruptcy court.” In re AFI Holding, Inc., 525 F.3d 700, 702 (9th Cir. 2008).
Accordingly, we apply the same standard of review as the district court applied and
give no deference to the decision of the district court. Id. “The bankruptcy court’s
findings of fact are reviewed for clear error.” In re JTS Corp., 617 F.3d 1102, 1109
(9th Cir. 2010). This means we accept the bankruptcy court’s findings of fact
unless we are “left with the definite and firm conviction that a mistake has been
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committed.” Id. (quoting In re Greene, 583 F.3d 614, 618 (9th Cir. 2009)). Mixed
questions of law and fact and conclusions of law are reviewed de novo. Id.
2. The district court correctly determined that Charleston retained possession
of the Declarant’s Rights into 2007 and pledged the Declarant’s Rights to CNB as
part of a Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing (“Deed of Trust”). While Charleston argues that it transferred the
Declarant’s Rights to one of its affiliates in 2002 via an oral transfer agreement, the
purported oral transfer did not comport with the unambiguous terms of the Grant of
Reciprocal Easements and Declaration of Covenants (“REA”), which governs the
Declarant’s Rights and the development of the forty-one-acre property.
3. Section 11.8 of the REA provides that the Declarant’s Rights may be
transferred “[u]pon sale or transfer by the Declarant of its interest in the Shopping
Center with a concurrent or subsequent transfer of its obligations as Declarant to
the purchaser or transferee and the purchaser’s or transferee’s assumption of such
obligations . . . .” The REA defines “Shopping Center” as “[a]ll of the real
property” covered by the REA. Charleston did not adhere to the requirements of
§ 11.8 when it purported to transfer the Declarant’s Rights with a concurrent
conveyance of far less than its interest in all the real property governed by the
REA. Because Charleston did not assign the Declarant’s Rights subsequently or
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concurrently to a sale or transfer of its interest in all of the real property governed
by the REA, the district court correctly found that Charleston’s purported oral
transfer of the Declarant’s Rights did not comport with the REA and was therefore
invalid and unenforceable.
4. The district court also correctly determined that the Settlement Agreement
executed by Charleston and CNB upon Charleston’s default under the Deed of
Trust unambiguously provided for the transfer of the Declarant’s Rights from
Charleston to CNB via a Trustee’s Sale.
5. The Deed of Trust expressly provided that “[a]ll rights that [Charleston]
may have as declarant under any covenants, conditions or restrictions affecting the
Property” were included as part of the Trust Estate. And, under the terms of the
Settlement Agreement, CNB agreed to “foreclose or cause the occurrence of a deed
of trust sale with respect to the Deed of Trust, in accordance with applicable state
law.” Because the Settlement Agreement is not “susceptible to more than one
interpretation,” Shelton v. Shelton, 78 P.3d 507, 510 (Nev. 2003), and its plain
language unambiguously provided for the Declarant’s Rights to transfer to CNB
via a Trustee’s Sale, the district court correctly concluded that Charleston’s interest
in the Declarant’s Rights automatically passed to CNB at the conclusion of the
Trustee’s Sale, Charmicor, Inc. v. Bradshaw Fin. Co., 550 P.2d 413, 415 (Nev.
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1976). We hold, therefore, that the district court properly instructed the bankruptcy
court to award summary judgment in favor of CNB and RA Southeast.
AFFIRMED.
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