AES-Apex Employer Servs. v. Dino Rotondo
AES-Apex Employer Servs. v. Dino Rotondo
Opinion
*861 Dino Rotondo serves as a consultant for AES-Apex. This case is a dispute about who gets the money that he makes consulting. The IRS says that it should get the money because Rotondo is behind on his taxes. Akouri Investments says it should get the money instead because Akouri loaned Rotondo money that he has not paid back yet. And finally, AES-Apex says that it should get to keep some of the money pursuant to its contract with Rotondo. The district court granted summary judgment in favor of the IRS, and we affirm.
I.
As relevant here, Dino Rotondo was the sole owner of Apex Administrative Services ("Apex"). Apex, in turn, wholly owned four limited liability companies: Apex HR Services, LLC, Pinnacle HR Services, LLC, AS Holdings Group, LLC, and AS South, LLC (collectively, the "Directional Entities"). Together with these Directional Entities, Apex provided a variety of services, such as human resources, to different clients.
Eventually Rotondo opted to sell the Directional Entities' key asset-their customer lists, essentially lists of who their clients were. He sold the customer lists in a deal with two firms, AES-Apex Solutions, Inc. and AES-Apex Employer Services, Inc. (collectively, "AES"). As part of that deal, AES agreed to pay Rotondo a share of its gross profits in the form of "Consulting Fees."
Yet the bad news for Rotondo is that he will not keep the Consulting Fees because he owes a lot of money and is behind on his payments. Two entities have claims to collect Rotondo's Consulting Fees. First, a firm named Akouri Investments, LLC ("Akouri") loaned money to one of Rotondo's other companies. 1 In return for that loan, Akouri gained a security interest in Apex's assets. When Rotondo failed to pay back his loan, Akouri obtained a judgment against Rotondo and Apex for $ 1.4 million.
Second, Rotondo owes the IRS. Over the years, Rotondo failed to pay his taxes, so the IRS has assessed various tax penalties against him. As of 2015, Rotondo owed the IRS $ 3.4 million. To try and get that money, the IRS filed several notices of tax liens against Rotondo, Apex, and the Directional Entities.
Once Rotondo started earning his Consulting Fees, both the IRS and Akouri saw an opportunity to get what they were *862 owed. The IRS contacted AES directly, claiming it was entitled to the Consulting Fees because of its tax liens. Then, several months later, Akouri claimed that it was entitled to the Consulting Fees. Facing conflicting claims to the Consulting Fees-and the possibility of having to pay twice-AES filed this interpleader action in state court. Interpleader permits a party facing claims "that may expose [it] to double or multiple liability" to join all claimants as defendants in a single action. Fed. R. Civ. P. 22(a)(1). The IRS removed the case to federal district court, and the district court granted summary judgment in its favor. The parties now appeal several of the district court's decisions. We review each in turn.
II.
Before determining whether the IRS or Akouri gets the Consulting Fees, we must first figure out the size of the pot-i.e., how much money does AES owe Rotondo? That turns on two sets of agreements between AES and Rotondo: the Consulting Agreement and the Asset Purchase Agreement.
2
AES claims that both of those agreements allow it to deduct the costs and attorneys' fees that it incurs in this case from what it owes Rotondo in Consulting Fees. The district court disagreed and found instead that AES must pay the "full value" of those Consulting Fees. This is a matter of contract interpretation that we review de novo.
Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.
,
A.
AES first claims that the Consulting Agreement allows it to deduct litigation expenses. In AES's Consulting Agreement with Rotondo, AES agreed to pay Rotondo a percentage of gross profits as Consulting Fees. But the agreement permits it to deduct two types of costs from those gross profits: the taxes that AES owes on its own profits and "direct expenses attributable to the employees leased under [a client's] account." R. 1, Pg. ID 52. AES claims that the costs of this litigation (including related state court actions) are such "direct expenses." In interpreting the Consulting Agreement, we apply the "plain and ordinary meaning" of these terms.
Rory v. Cont'l Ins. Co.
,
This "direct expenses" argument does not go very far. Even assuming the meaning of the phrase "direct expenses" could include the costs of this litigation, we do not interpret contract language in isolation. We must read "direct expenses" in context.
See
Mich. Twp. Participating Plan v. Pavolich
,
AES counters by saying that the purpose of this provision was to enhance its profitability. Thus, anything that lowers its profitability should be deducted from the Consulting Fees. But such an expansive definition does not fit the language to which the parties agreed. Again, that language expressly limits AES's deductions to only two categories-not anything that could "significantly diminish[ ]" profit. 17-2068 Appellant Br. 20. We "honor the intent of the parties" by enforcing their agreement "as written"-not based on whatever vague purposes can be supplied after the fact.
Superior Commc'ns v. City of Riverview
,
B.
Next, AES contends that the Asset Purchase Agreement allows it to deduct litigation expenses. AES relies on two interwoven provisions in this Agreement: the Indemnification Provision and the Offset Provision. Our analysis again rests on the plain and ordinary meaning of these provisions.
Rory
,
Indemnification Provision.
This provision states that Rotondo and the Directional Entities must "indemnify" AES from the costs of litigation in a variety of circumstances, including "any claim, litigation or other action of any nature arising out of any act ... prior to the date" the deal closed. R. 1, Pg. ID 19. The provision further requires Rotondo to indemnify AES for litigation expenses incurred in "enforc[ing] the indemnification obligations."
While Rotondo may owe AES money, it does not follow that AES can automatically deduct what it thinks Rotondo owes from the Consulting Fees. The Indemnification Provision does not create an automatic right for AES to be paid. Instead, this provision qualifies Rotondo's indemnification obligation by stating that Rotondo must pay after AES has made a "demand." Id . Without a demand, there is no right to payment under the contract. But there is no evidence that AES made such a demand-and thus no evidence that the Indemnification Provision has even been triggered.
Offset Provision
. AES alternatively suggests that the last line of the Indemnification Provision, called the Offset Provision, proves that it has an automatic right to deduct costs and attorneys' fees. The Offset Provision states that AES "shall have a right to offset such losses, damages, liabilities, deficiencies, costs, expenses and attorneys' fees against any sums owed by [AES] to [Rotondo]."
*864
AES's argument once again falls short because it failed to consider the
full
context of the Offset Provision. The Offset Provision only provides that an "offset" can occur for "
such
losses, damages, liabilities, deficiencies, costs, expenses and attorneys' fees."
Applying this canon, we look to what came before the Offset Provision in the Asset Purchase Agreement. Immediately preceding the Offset Provision is a reference to costs incurred when "enforc[ing] the indemnification obligations." R. 1, Pg. ID 19. Perhaps "such" refers only to these enforcement costs. If that is the case, then AES is out of luck; no enforcement costs currently exist because AES has not sought to enforce Rotondo's indemnification obligations. But the text of the Offset Provision cuts against interpreting "such" as referring exclusively to costs incurred in enforcing the Indemnification Provision. The Offset Provision refers not merely to "such ... costs, expenses and attorneys' fees"-losses that could be incurred trying to enforce the Indemnification Provision-but also "such ... damages, liabilities, [and] deficiencies." It is hard to imagine how AES could incur the latter sort of losses-e.g., "damages"-by trying to enforce the Indemnification Provision. And the mention of "damages, liabilities, [and] deficiencies" in the Offset Provision likely refers back to "damage[s], liabilit[ies] or deficienc[ies]" mentioned in the opening sentence of the Indemnification Provision. In other words, the Offset Provision is best read as referring to both the costs of enforcing the Indemnification Provision and the total costs that could be indemnified. 3
But the broad coverage of the Offset Provision does not help AES here. Although the Offset Provision allows AES to offset any sums Rotondo is obligated to pay under the Indemnification Provision, Rotondo is not obligated to pay anything under that provision until AES has made a demand. Because there is no evidence in the record that AES has made such a demand, Rotondo is not currently obligated to pay under the Indemnification Provision. And there is thus no outstanding payment obligation to trigger the Offset Provision.
As there is no basis in either the Consulting Agreement or the provisions of the Asset Purchase Agreement for AES to deduct its costs and attorneys' fees from this litigation, we affirm the district court's contract interpretation. AES owes Rotondo the full amount of the Consulting Fees, without deductions.
III.
Although AES owes the full value of the Consulting Fees, Rotondo will not get to keep that money. Instead, the
*865
Consulting Fees will go to one of the two entities to whom he owes money: either Akouri or the IRS. Both have a claim to Rotondo's money. We must decide which one has seniority, i.e., who gets paid. The district court granted summary judgment in favor of the IRS. Akouri challenges this conclusion, and we review de novo.
1st Source Bank v. Wilson Bank & Tr.
,
Federal law controls the priority of a federal tax lien vis-à-vis other property interests.
United States v. Dishman Indep. Oil, Inc.
,
The IRS was first. The United States filed its notices of tax liens against Rotondo's assets between October 2007 and September 2013. Akouri, in contrast, did not receive a state judgment against Rotondo until December 2013. Thus, the IRS's liens have priority.
Akouri does not dispute this analysis. Instead, Akouri tries to get around the IRS's clear priority in two ways. Both are an attempt to recategorize the customer list assets as originally belonging to Apex rather than the Directional Entities. If Apex really sold those customer lists to AES, then Akouri says it can take priority over the IRS because of its purportedly senior security interest in Apex.
First, Akouri claims Apex
actually
owned the customer lists that Rotondo sold to AES. In order to survive summary judgment on this theory, Akouri needed to first raise a genuine dispute of material fact as to the ownership of the customer lists.
See
Celotex Corp. v. Catrett
,
While this may not be the strongest conceivable evidence, summary judgment is first and foremost about dispute resolution; facts must be disputed by the
*866
party, like Akouri, that opposes summary judgment.
See
Williamson v. Aetna Life Ins. Co.
,
Akouri did, however, offer evidence that went to its second and altogether different theory of why Apex should be considered the owner of the customer lists. Even if the Directional Entities technically owned the customer lists, Akouri argues that they did not observe various corporate formalities separating them from Apex. Thus, according to Akouri, the Directional Entities are just sham companies-"alter egos" of Apex. As "alter egos," the Directional Entities would collapse back into one corporate form with Apex. And Akouri says it has a senior security interest in Apex.
But this theory fails as well. As mentioned, a security interest can only defeat an IRS tax lien if it is "choate."
Blachy
,
Moreover, even if a court were to now decide that the Directional Entities are sham companies, that determination would be too late. An interest becomes "choate" at a specific point in time-the federal law of priority does not allow for interests to "relat[e] back" to an earlier time.
Blachy
,
Accordingly, we affirm summary judgment in favor of the IRS.
IV.
Akouri appeals two additional decisions by the district court. First, the district court denied Akouri's motion for supplemental briefing, which included a request that the court consider new evidence on the ownership of the customer lists.
*867
Second, the district court declined to exercise supplemental jurisdiction over Akouri's additional state law fraudulent transfer claim. Akouri concedes that we can only reverse these decisions if they were an abuse of discretion.
Jones v. Northcoast Behavioral Healthcare Sys.
,
Supplemental Briefing
. After the magistrate judge finished his report and recommendation-and nearly three months after briefing concerning that report and recommendation had been completed-Akouri sought permission to file a supplemental brief with new evidence attached. This evidence came from new depositions that Akouri took in a state court action involving Rotondo and AES. Akouri says that the district court should have considered this evidence. Docket control, however, is something that rests in the "sound discretion of the district court."
In re Air Crash Disaster
,
Akouri argues otherwise. Akouri says the district court would have denied an earlier request for discovery as duplicative of its state court discovery. Therefore, it would have been fruitless to ask. But we cannot know what the district court would have done if given the opportunity to review Akouri's request for evidence earlier. All we know is there was nothing barring Akouri from making a good faith request for discovery during the time allotted by the parties, the magistrate judge, and the district court. Akouri made a strategic decision not to make that request. And when it finally got the depositions and sought to introduce them, the district court reasonably explained why it was too late.
Cf.
Landis v. N. Am. Co.
,
In one last argument, Akouri points to an unpublished decision,
Muhammad v. Close
. No. 08-1944,
Supplemental Jurisdiction
. As part of its cross-complaint below, Akouri alleged that the sale of the customer lists from the Directional Entities to AES was a fraudulent conveyance under Michigan law. The district court dismissed this claim after it granted summary judgment in favor of the IRS. Akouri's dispute with the IRS was the basis of the court's jurisdiction; Akouri's Michigan-law claim merely tagged along based on supplemental jurisdiction. This dismissal was not an abuse of discretion. "[I]n the usual case in which all federal-law claims are eliminated before trial," district courts should decline to "exercise jurisdiction over the remaining state-law claims."
Carnegie-Mellon Univ. v. Cohill
,
Akouri claims this is not a usual case. It points out that three years had passed since it filed its state law claim. Therefore, Akouri argues, it was imprudent for the district court to dismiss the state law claim since the litigation was no longer in its "early stages."
Id
. at 350,
* * *
The district court properly interpreted the agreements between AES and Rotondo, properly granted summary judgment in favor of the IRS's claim for the Consulting Fees, and did not abuse its discretion in denying Akouri's requests for supplemental briefing and supplemental jurisdiction.
We affirm.
Another individual, Richard Mark, also loaned money to Rotondo's companies, but Mark's interest is not a subject of this appeal.
AES and Rotondo signed two Consulting Agreements and two Asset Purchase Agreements that the parties treat as having substantially identical terms except for the AES signatory (either AES-Apex Solutions, Inc. or AES-Apex Employer Services, Inc.). We refer to these agreements in the singular.
It would also be strange if AES could offset losses from trying to enforce the indemnification provision but could not offset the losses Rotondo had to indemnify in the first place.
We also follow the district court in declining to decide if a Michigan state court decision has res judicata effect on this question. It is unclear whether the state court decided the ownership question.
New Hampshire v. Maine
,
Reference
- Full Case Name
- AES-APEX EMPLOYER SERVICES, INC.; AES-Apex Employer Solutions, Inc., Plaintiffs-Appellees (17-2068), Plaintiffs-Appellants (17-2211), v. Dino ROTONDO; Richard Mark; United States Department of the Treasury, Internal Revenue Service, Defendants-Appellees (17-2068 & 17-2211), Akouri Investments, LLC, Intervenor-Appellant (17-2068), Intervenor-Appellee (17-2211).
- Cited By
- 33 cases
- Status
- Published