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Ward v. Resolution Trust Corp.

decided: July 22, 1993; As Amended July 29, 1993.


Appeal from the United States District Court for the Southern District of Texas. D.C. DOCKET NUMBER CA H 92-1463. JUDGE Norman Black

Before Goldberg, Garwood and Wiener, Circuit Judges.

Author: Per Curiam

Per Curiam:

In this appeal we review the continued efforts of Plaintiff-Appellant Terry S. Ward to purchase the Katy Plaza Office Building (the "Building") in Houston, Texas, from Defendants-Appellees Resolution Trust Corporation (RTC) which had acquired the Building as a result of the failure of a thrift. Despite Ward's earlier efforts to buy the Building, it had been sold by the RTC to Defendant-Appellee Patriot American Investors, L.P. (PAI). The Building was just one of a number of properties included in a nationwide assemblage conveyed by RTC to PAI in a so-called "portfolio" sale. Ward had sought unsuccessfully to enjoin that transaction to the extent the Building was included among the properties to be sold in globo to PAI. Despite that fait accompli, Ward now seeks rescission of the sale of the Building to PAI; he does not seek monetary damages or other relief.

Concluding that the district court reached the right result in dismissing Ward's action, we affirm. Moreover, given our consideration of the briefs of counsel and their oral arguments, and our review of the record in this case, we would be inclined to affirm the district court without writing an opinion, much less publishing it, but for the need we perceive to disabuse Ward and others "out there" who might be similarly situated and similarly inclined to instigate and prosecute litigation grounded on the same flawed theories. We refer to Ward's legal Conclusion that the RTC's proposed Disposition of property may be enjoined, or its actual Disposition rescinded, on allegations of inadequate price, inadequate competition, unequal treatment of potential offerors, or failure of the RTC to make a determination that the proposed sale will "maximize" the net present value return on the property in question.

More specifically we are constrained to refute Ward's contentions that the RTC's final orders awarding the sale of the Building to PAI exceeded that agency's statutorily authorized powers and functions, in violation of Congressional restrictions set forth in subsections (3)(C) and (11)(D)(ii) of 12 U.S.C. § 1441a(b). In so positing, Ward insists that neither his initial action for an injunction nor his post-sale action for rescission was barred by the anti-injunction provision of FIRREA.*fn1 Like the district court before us, however, we find that Ward's theory was conceived in flawed logic and therefore dies aborning.



A. Background

The Building was previously owned by a now-failed thrift institution which operated under RTC conservatorship from June 15, 1990, until July 26, 1991, when the RTC-Receiver was appointed to serve as receiver for that institution, thereby succeeding to ownership of the Building. Prior to being placed in conservatorship and later in receivership, the subject thrift had negotiated with a number of prospective purchasers of the Building, including Ward. In December 1990, he submitted a purchase offer, contingent on acquiring some adjacent property. That offer was rejected by the RTC, but Ward and others were subsequently notified that the Building would be re-offered.

In June 1991, Ward again offered to buy the Building and the same adjacent land, but the RTC rejected this offer too. Nevertheless, Ward was invited to submit yet another, higher offer for the seller to consider. Although Ward ultimately did so, it was not until well after the RTC and PAI had contracted for the portfolio sale in question. The contract between the RTC and PAI ("Master Agreement of Sale") contemplated the sale of numerous properties scattered throughout the United States and having an aggregate value between $300 and $500 million. Both the Building and the adjoining land were included among the properties constituting the portfolio assemblage.

The Master Agreement of Sale was the product of extensive negotiations between PAI and the RTC, which began in February 1991. Independent experts were retained to evaluate the economic viability and structure of such a transaction, the qualifications of PAI, and the recommended controls and protections. In May 1991, the Board of Directors of the RTC approved such a portfolio sale in principle. In August 1991, the Master Agreement of Sale was executed by the RTC. That agreement provided for the affected properties to be sold to PAI at 100% of current market value, as determined by expert appraisers. It also provided that the aggregate sales proceeds of all properties (as distinguished from the individual sales proceeds of each separate property) should not be less than the total for which the individual properties could be sold under pre-existing, applicable policies of the RTC. Following initial negotiations, a package of five properties, including the Building, was agreed upon by the RTC and PAI. A closing was tentatively scheduled for June 1992, at an aggregate price of approximately $30 million.

B. Litigation

Ward instituted the instant action on May 12, 1992, after the RTC failed to agree to his amicable demand for rescission of the Master Agreement of Sale to the extent it covered the Building. In the district court Ward sought review under the Administrative Procedure Act.*fn2 Specifically, he sought to enjoin PAI, Defendant-Appellee Albert V. Casey, and the RTC in its corporate capacity, from consummating the sale of the Building and transferring its title during the pendency of the litigation. As noted, he sought no monetary damages. On June 2, 1992, the district court denied the injunction and dismissed Ward's complaint.*fn3 In so doing, the court found numerous problems of substance and procedure in Ward's litigation, including principally the one we address today: the anti-injunction ...

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