Opinion
CIVIL ACTION NO. 01-899.
May 20, 2002
ORDER AND REASONS
Before the Court is an appeal filed by Crescent City Liquidation Trust ("Crescent City") pursuant to 28 U.S.C. § 158 (a) from the final judgment of the United States Bankruptcy Court for the Eastern District of Louisiana ("Bankruptcy Court") in which the Bankruptcy Court granted a Motion for Judgment on Partial Findings made by Mirage Resorts Inc. ("Mirage") at the conclusion of the case in chief presented by Crescent City at trial of this matter on August 31, 2000, and the order awarding attorneys' fees in the amount of $281,850.00 and expenses of $28,895.71 to Mirage dated March 21, 2001. Having reviewed the pleadings, memoranda, exhibits, trial testimony and deposition testimony, the Court finds that the appeal has no merit and the decisions of the Bankruptcy Court will be affirmed.
Standard of Review
Pursuant to § 158 of Title 28, this Court has jurisdiction to hear this appeal from the final judgments, orders and decrees of the Bankruptcy Court. As such it:
may affirm, modify or reverse a bankruptcy court's judgment, order or decree or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.
Bankr. R. 8013; Matter of Killebrew, 888 F.2d 1516, 1519 (5th Cir. 1989). The legal conclusions are subject to de novo review. Matter of Kennard, 970 F.2d 455 (5th Cir. 1991).
Background
The Agreement
Crescent City operated a riverboat gaming business. It filed a Petition for Relief under Chapter 11 of the Bankruptcy Code in July of 1995. On July 24, 1995, Mirage, Crescent City and Capital Gaming International, Inc. ("Capital Gaming"), Crescent City's parent company, entered into a Stock Purchase Agreement (the "Agreement") in which Mirage agreed to purchase the stock of the reorganized Crescent City for $55,000,000. One of the conditions to closing was that the parties would have obtained all licenses, permits, consents and approvals including Crescent City's gaming license, its riverboat and the right to operate the boat in Lake Charles, Louisiana or elsewhere in Louisiana controlled by Mirage and suitable to Mirage. (Agreement, ¶ 6(c)). The Agreement did not restrict Mirage to acquiring only Crescent City's gaming license. In addition, the confirmation of Crescent City's reorganization plan by the Bankruptcy Court was a condition for the closing.
It was also anticipated that the closing of the Agreement would occur within 90 days from the July 24, 1995, execution date. Paragraph 3 of the Agreement provided:
In the event that the Closing shall not have occurred within 90 days following the execution of this agreement due to the failure to satisfy all conditions to the Closing, any party shall have the option to extend the 90-day period on a month-to-month basis for up to 90 additional days by written notice to the other parties.
(Agreement, ¶ 3). Thus, the first ninety-day period was to expire on October 22, 1995, and the additional 90 day period was to expire on January 20, 1995.
Another salient provision at Paragraph 15 of the Agreement concerned the termination of the Agreement. That paragraph provided for either party to terminate the Agreement by written notice upon the occurrence of certain events, including in clause (a) thereof "failure of the Closing to take place within 90 days following the execution of this agreement, as such date may be extended" or in clause (c) "the denial by any governmental entity or authority of any license, permit, consent or approval set forth in Paragraph 6(c) hereof" (Agreement ¶ 15). The Agreement specifically provided "[u]pon termination of this agreement, the parties shall have no further liability to each other, except as otherwise expressly provided in this agreement or except in the event of a material breach of this agreement by the non-terminating party." (Agreement ¶ 15).
At Paragraph 21 of the Agreement, the parties further provided that "in the event of any action to enforce this agreement, the prevailing party or parties in such action shall be entitled to recover its reasonable attorneys' fees and other expenses from the non-prevailing party or parties." Agreement, ¶ 21).
Actions Taken to Close the Sale
On September 21, 1995, the bondholders of Crescent City approved the Mirage stock purchase within the first month of the execution of the Agreement. Mirage, on the same date, filed its Application for Certificate of Preliminary Approval for Golden Nugget-Louisiana, Inc. in which it stated its intention to purchase Crescent City's stock and relocate its boat. Mirage also filed its suitability application with the Louisiana State Police on September 28, 1995.
On October 13, 1995, Crescent City submitted to the Louisiana Riverboat Gaming Commission ("LRGC" or "the Commission") a Motion for Modification to Certificate of Final Approval seeking approval for the transfer of ownership of the reorganized Crescent City and its gaming license to Mirage. In that filing, Crescent City stated specifically that the Mirage proposal was to move Crescent City's boat to either Calcasieu Parish (Lake Charles) or, if unable to secure two sites and licenses, then to a site in Bossier Parish. The budgets for either proposed site were substantial, and Mirage proposed completion of either project within 18 to 24 months after securing regulatory approvals and plan confirmation.
While these activities proceeded, Mirage also sought the so-called "15th license" for riverboat gaming by filing on August 30, 1995, and September 14, 1995, applications to the LRGC and the State Police. As stated previously, the Agreement contained no prohibition against taking such action.
The first LRGC hearing occurred on November 11, 1995, when Crescent City's Motion for Modification was considered. Crescent City, represented by William Papazian, testified before the LRGC that the Mirage sale was the best option for the estate. He also noted that the Mirage applications had been filed and that Mirage did not need to attend this first meeting. As noted in the Bankruptcy Court's Findings of Fact, William Papazian, counsel for Crescent City, indicated to the LRGC that Mirage had developed more interest in the Bossier Parish site because they had been unable to negotiate for another license in Lake Charles and felt that economics dictated having two boats in Lake Charles for profitability.
Amendment No. 1 to the Agreement
On December 5, 1995, Crescent City, Mirage and Capital Gaming entered into an Amendment to the Agreement ("the Amendment") which changed important terms of the Agreement. Amendment Paragraph 4 modified Paragraph 6(c) of the Agreement to substitute Bossier City for Lake Charles. Amendment Paragraph 7 changed Paragraph 15, clause(a) into a "drop-dead date" of January 24, 1996, for the closing to take place. Finally Amendment Paragraph 11 provided:
[Mirage], on the one hand, and [Capital Gaming] and [Crescent City], on the other hand, hereby release each other from and waive any and all breaches of or claims arising under the Agreement which may have occurred prior to the date of this Amendment.
Amendment at ¶ 11.
As the Bankruptcy Court found, the Agreement was Exhibit A to the Debtor's First Amended Plan of Reorganization and was clearly an integral part of the Plan's provision. The Plan was filed on December 8, 1995. Paragraph V of an Immaterial Modification to the Debtor's Plan clarified any doubt that the Mirage Agreement referred to in the Plan was the Agreement as amended by the Amendment.
The next meeting of the LRGC was on December 9, 1995. At the request of Papazian, Barry Shier, Vice-President with Mirage and other Mirage representatives, made a presentation to the Commission of the Mirage project that was proposed for Bossier Parish. The deposition and live testimony of the Commissioners that was offered to the Bankruptcy Court indicated that the Commissioners thought the Mirage proposal "was exciting and very impressive. Nevertheless, the LRGC voted unanimously to defer action on Crescent City's Motion for Modification despite Papazian informing the Commissioner of the January 24, 1996, closing deadline in the Agreement as amended.
The LRGC met again on December 21, 1995, but it did not act on Crescent City's motion. Instead it heard presentations from Mirage and others regarding the 15th license. Two commissioners stated in their testimony that the applications of Mirage for the 15th license were completely separate and that the LRGC could have acted on the Debtor's Motion for Modification at any time. Furthermore, Mirage told the LRGC at this meeting that if Mirage were awarded both licenses, it would simply increase its project budget scope from $175 to $275 million.
The next relevant LRGC meeting was scheduled for January 6, 1996 but was canceled. On January 12, 1996, the Bankruptcy Court confirmed Crescent City's Plan, which included the Agreement as amended by the December 5, 2002 Amendment.
On January 19, 1996, a hearing before the State Police on Mirage's suitability application was held. At the end of the hearing, the State Police took the application under advisement. David Rubin, counsel for the State Police testified at trial that Mirage had not submitted information needed. Nonetheless, on January 23, 1996, prior to the deadline the State Police issued written approval of the proposed transaction and Mirage's suitability.
Thus, the viability of the timely closing of the sale between Mirage and Crescent City rested in the hands of the LRGC. On January 20, 1996, another meeting of the LRGC was held at which Shier again appeared for Mirage. At that meeting, Shier confirmed that Mirage would perform its obligations under the Agreement if the Debtor's Motion was approved on or before January 24, 1996, including opening a temporary facility if the LRGC required it, but without the Golden Nugget name. He also stated that Mirage would not agree to extend the January 24th deadline, which request was made by the LRGC. At trial, through the testimony of Randall Treadaway, one of the commissioners, it is clear that the LRGC understood the consequences of the failure of the Commission to grant Crescent City's Motion before January 24, 1996. Nonetheless, the LRGC deferred action on the Debtor's Motion for Modification, thereby guaranteeing that a salient condition for the closing was not realized.
On January 25, 1996, Mirage notified Crescent City of its election to terminate the Agreement. On January 10, 1997, Crescent City Liquidation Trust filed the instant suit, alleging breach of the Agreement. The Bankruptcy Court synopsized the allegations of Crescent City's complaint as follows:
1. The Complaint alleges that the closing deadline of January 24, 1996 was not a material condition of the Agreement and, accordingly, need not have been enforced and/or that the date was implicitly modified due to Mirage's representations to the LRGC. It also alleges that the conditions of the Agreement requiring transfer of the license and change of the berthing site should be deemed fulfilled because it was Mirage's fault that approval failed. The Complaint further alleges that Mirage was not in good faith in terminating the Agreement because their dilatory actions and lack of cooperation in the process showed their intention not to fulfill their contract obligations.
2. Specifically, [Crescent City] asserts that Mirage's lack of good faith in satisfying the conditions to closing is proven by its: dilatory efforts to file for regulatory approval; dilatory efforts to provide the State Police with information; application for the 15th license after the Agreement was entered into; unilaterally changing the berthing site to Bossier Parish; and belatedly raising issues of license term, local option referenda and temporary facilities before the LRGC and the State Police. [Crescent City] further maintains that the impressions of "backpedaling" and "waffling" that some of the commissioner got from Mirage and Mirage's own reluctance to further extend the closing date show that Mirage's intention to close the deal was waning.
(Findings of Fact and Conclusions of Law, pp. 9-10.).
Trial was conducted on March 15-16, 2000. Crescent City called four witnesses live and five witnesses by deposition. At the close of Crescent City's suit, Mirage moved for an involuntary dismissal of the Complaint pursuant to Fed.R.Civ.P. 52(c). After the Bankruptcy Court reviewed the relevant deposition testimony, it granted Mirage's Motion for Involuntary Dismissal and dismissed Crescent City's claims.
Mirage then sought reimbursement of its attorneys' fees and expenses as the prevailing party pursuant to the previously cited Paragraph 21 of the Agreement. Crescent City opposed the claim on a number of bases; nonetheless, the Bankruptcy Court awarded Mirage attorneys' fees in the amount of $281,850.00 and expenses in the amount of $28,895.71 through July 31, 2000.
Crescent City filed the instant appeal.
ISSUES PRESENTED ON APPEAL
While Crescent City has filed a 45-page memorandum of law concerning the issues it raises on appeal, this Court finds that the myriad of arguments and points of contention distill into the following issues which it will address in turn:
I. Burden of Proof
Mirage has contended that it rightfully terminated the Agreement based on the failure to obtain the necessary regulatory approval by January 24, 1996. As such, Crescent City argues that because Mirage relied on that suspensive condition as grounds for termination, it bore the burden of proof to show Mirage used its good faith best efforts to obtain regulatory approval as promptly as possible. As such, Crescent City maintains that the Bankruptcy Court erroneously granted the Rule 52 motion. Crescent City relies on Sam's Style Shop v. Cosmos Broadcasting Corp., 694 F.2d 998 (5th Cir. 1982) for this proposition.
In that opinion, the Fifth Circuit stated:
One who relies on a suspensive condition has the burden of proving the existence of the condition and nonoccurrence of the event on which the obligation was conditioned. F.C. Williams Real Estate v. Haydel, 364 So.2d 171, 172 (La.App. 1978); Dales Jewelers, Inc. v. Rice, 316 So.2d 416, 417 (La.App. 1975). This allocation of the burden is based on the rationale that the existence of a suspensive condition is in the nature of an affirmative defense, even though the nonfulfillment of such a condition prevents the very formation of a contract.Id. at 1004.
In Sam's Style, Sam's had contracted with Cosmos for Cosmos to air a commercial; however, Cosmos had reserved its right to review the commercial prior to airing it. Cosmos contended that the commercial presented by Sam's Style was confusing and could be construed as deceptive. As such, Cosmos refused to air the commercial. On appeal, the Fifth Circuit explained:
Louisiana usually places the burden of proof on the party with the affirmative [defense] on an issue. The usual test to determine which side has the burden is to ascertain which party would be entitled to a verdict if no evidence were offered on either side of the issue. Rayner v. R.J. Jones Sons, 182 So.2d 353, 359 (La.App. 1966) (opinion on rehearing). See generally, M. Planiol, Treatise on Civil Law vol. 2, No. 51, at 31-32 (11th ed. 1939) (burden of proving rests on party who alleges).
In this case, Sam's bore the burden of proving that a contract existed and that it was breached. In view of this, the district court correctly instructed the jury that Sam's bore the burden of proving the elements of the contract. In short, the judge instructed the jury that, if it found that a contract to televise comparative price commercials existed between Sam's and Cosmos, Cosmos bore the burden of demonstrating that it acted reasonably and in accordance with industry standards, rather than arbitrarily, in rejecting the commercial. Sam's proof of a contract satisfied the judge and the jury. Certainly the fact that the commercial was never shown was sufficient to establish a breach by the station once the jury concluded, as it must have, that a contract existed. Thus, Cosmos' argument that the district court failed to place the burden of proving a breach on Sam's is unavailing.Id. at 1004-05. Thus, the appellate court concluded that Sam's had made out a prima facie case by proving the existence of the contract and a breach of that contract.
Clearly then, in Sam's Style, there was a contract and a breach of that contract demonstrated. In addition, the breach — the refusal to broadcast the commercial — was solely at the discretion of the defendant Cosmos. In the case at bar, the viability of the contract, that is the very nature of what must be proven for Crescent City to make out its prima facie case, is inextricably intertwined with the facts of Mirage's affirmative defense — that is whether the efforts of Mirage were sufficient. In addition, the awarding of the necessary licenses and permits rested in the discretion of a third party, not Mirage, unlike Cosmos. Without Crescent City proving that Mirage caused the failure of the suspensive condition to be met, Crescent City has not proven the contract had become effective. Thus, the Bankruptcy Court did not err in its application of the law.
II. Louisiana Civil Code Article 1772
Article 1772 of the Louisiana Civil Code provides, "[a] condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment." Crescent City claims that the Bankruptcy Court erred by not applying this principle and finding Mirage liable because of its fault for the non-fulfillment of the suspensive condition to obtain the LRGC's approval. As the application of this article depends on the Bankruptcy Court's findings of fact, the Court may only reverse the Court should it find that the Bankruptcy Court was clearly erroneous in so finding. The Court has extensively reviewed the trial testimony and the deposition testimony presented and comes to the inexorable conclusion that no error was made by the Bankruptcy Court.
It is apparent that the fault for the termination of the Agreement lies primarily at the dilatory feet of the LRGC. It is clear that Mirage stood ready to perform under the Agreement, and it is equally pellucid that the Commission had been informed that Mirage intended to exercise its valid right under the Agreement to terminate it should the Commission fail to grant the necessary timely approval; the Commission knew of that intention; and it chose to ignore the consequences. See Transcript, Wednesday, Mar 15, 2000 at 102, 104, 133, 148, 150, 156 and 158. The Court will not disturb the Bankruptcy Court's findings.
III. Abuse of Right Doctrine
Crescent City argues that the Bankruptcy Court erred in its failure to apply the abuse of right doctrine to prevent Mirage from terminating the Agreement. As stated by the Supreme Court for the State of Louisiana, "The Abuse of Rights doctrine is a civilian concept which is applied only in limited circumstances because its application renders unenforceable one's otherwise judicially protected rights." Truschinger v. Pak, 513 So.2d 1151, 1154 (La. 1987). The doctrine is applied only when one of the following conditions is met:
1) the predominant motive for it was to cause harm;
2) if there was no serious or legitimate motive for refusing;
3) if the exercise of the right to refuse is against moral rules, good faith, or elementary fairness;
4) if the right to refuse is exercised for a purpose other than that for which it is granted.Id. citing Illinois Central Gulf Railroad Co. v. International Harvester Co., 368 So.2d 1009, 1013 (La. 1979). Crescent City contends that Conditions 2, 3, and 4 are met by the facts of this case.
The clear language of the Amendment demonstrates that the closing of Mirage's purchase was conditioned unequivocally upon obtaining regulatory approval for the transfer of Crescent City's license and the transfer of the berthing site from New Orleans by January 24, 1996. Without that regulatory approval, either party had the right to terminate the Agreement. The Court cannot help but postulate that if there had been another purchaser who would have been willing to purchase Crescent City for $60 million, Crescent City would have exercised its right to terminate this contract with alacrity. This right is a legitimate one which this Court will not lightly disturb.
The Bankruptcy Court implicitly found that the facts do not support the exercise of this right, and this Court again finds no manifest error in this decision. To begin, in the Amendment, a mutual release of all parties from "any and all breaches of or claims arising under the Agreement which may have occurred prior to the date" of December 5, 1995 was granted by the parties. Thus, the majority of the alleged grounds and facts upon which Crescent City relies cannot be considered in this suit. Mirage obviously had decided that the time was of the essence with respect to the project, and it was unwilling to continue to "hang on." That decision had a legitimate, economic motive; not one aimed at purposefully harming Crescent City. In addition, there simply was insufficient credible evidence presented of Mirage's bad faith or dilatory practices that affected the timing of the approval. Likewise, Crescent City did not present credible, convincing proof that the right to refuse was exercised for any reason other than its determination that it did not want to extend the period of time any longer with respect to that negotiation. The Court finds no merit in Crescent City's argument to the contrary.
In its Reply Brief, Crescent City contends that the trial court committed an error of law by implicitly determining the Amendment No. 1 was approved by virtue of its incorporation as an exhibit to the First Plan of Reorganization and that therefore all breaches of contract that occurred prior to December 5, 1995, were released. The Court find this contention meritless. The Plan to sell to Mirage was revoked when the license was sold to another entity after the Mirage plan had fallen apart, but the Plan had life until that time. Frankly, this suit would have no basis in law should the Court accept this argument because without the confirmation of the Plan, there would have been no Agreementab initio and thus no suit for breach.
The Court addresses this argument in greater detail in the Attorneys' Fee section of this opinion.
IV. Term v. Condition
Finally, Crescent City argues that because the term concerning obtaining regulatory approval was "intended to protect Crescent City, not Mirage, from unwarranted delay," it is entitled to invoke Article 1780 of the Louisiana Civil Code. That code article provides, "[t]he party for whose exclusive benefit a term has been established may renounce it." As such, relying on Welsh v. Myatt, 164 So.2d 393 (La.App. 2d Cir. 1964), Crescent City contends that it can waive the termination date because the January 24th date "was merely for a term for performance and not a condition suspending the engagement of the parties under the agreement." This argument is misplaced.
In Welsh the court found that a vendor was entitled to specific performance, where a contract was subject to the obtaining of rezoning by the purchaser and gave the purchaser ninety days to obtain rezoning. When that had not been accomplished by the purchaser, the vendor unilaterally extended the deadline by another sixty days. The court characterized the clause at issue as a "term," apparently based on its belief that it "was certain in advance that the rezoning was to occur and could have been timely obtained." Id. at 394. Citing Planiol in his Traite Elementaire de Droit Civil, Vol. 1 Part 1, the Welsh court wrote:
"§ 318. As it is certain in advance that the term will come to pass and that the act will therefore take effect, the right or the obligation suspended by the term is considered as already in existence, even before maturity. It is already a living reality. It is solely its execution that is deferred."
"§ 315 . . . 2nd. When delay has been fixed, the expiration of the delay is then equivalent to default if the condition is still pending when the delay ends."
The above references from our Civil Code and Planiol are ample authority to the effect that Myatt was in default when the ninety-day period ended and rezoning had not been obtained except for the extension granted by Welsh. In granting the sixty-day extension, the act of Welsh was unilateral in character, neither requiring the written consent nor any other action by Myatt, for at that time Myatt's obligation was in default and subject to the will of Welsh who gratuitously gave an exception within which Myatt could easily have accomplished the rezoning.Id. at 395.
In the case at bar, the right of termination upon default was bilateral — either party had the right to terminate the Agreement. As such, there did not exist the right to unilaterally extend the time as there was in Welsh. The Court rejects this argument.
A review of all the evidence shows that Mirage would have discharged its obligation under the contract had the Commission given timely approval. It is not pivotal whether Mirage's enthusiasm for the deal had chilled. Clearly it took the necessary steps to consummate the transaction and clearly the Commission was cavalier about the deadline. Mirage should not be penalized for the Commission's insouciance.
Considering the foregoing, having reviewed the findings of fact for clear error and finding none, and having reviewed the conclusions of law de novo and finding no mistake, the Court affirms the Findings of Fact and Conclusions of Law of the Bankruptcy Court in all respects.
The Court will now address the second judgment — that being the award of attorneys' fees and costs.
ATTORNEYS' FEES
Crescent City (also referred to herein as "The Trust") urges four arguments to the effect that the award of attorneys' fees to Mirage by the Bankruptcy Court is in error. As these contentions are legal in nature, the Court will review them de novo. The arguments are as follows:
(1) The Crescent City is not liable because the Agreement was not assumed by the debtor pursuant to section 385 of the Bankruptcy Code and Crescent City is not bound by its terms.
(2) Mirage was found to have terminated the Agreement and Paragraph 21 (the attorney's fee provision) did not survive this termination;
(3) The Complaint did not create litigation to "enforce" the Agreement and thus Paragraph 21 (the attorney fee provision) is inapplicable;
(4) The Award should be reduced because Mirage's efforts to join Capital Gaming were not compensable or required.
The Court will take each argument in turn.
(1) The Crescent City is not liable because the Agreement was not assumed by the debtor pursuant to section 385 of the Bankruptcy Code and Crescent City is not bound by its terms.
Crescent City argues that the Agreement was not assumed within the meaning of § 365 of the Bankruptcy Code. The Court finds this argument to be unduly strained and hyper-technical. The Trust is seeking to recover millions of dollars pursuant to a contract which would be at best in legal limbo if the position of the Trust were adopted. As stated by the Bankruptcy Court in its Reasons for Order dated March 21, 2001, "It [the Trust] cannot choose to use the Agreement and its terms as the basis for suit and then argue non-assumption of the Agreement when it loses the suit." (p. 3 of Order). Simply because the first plan was not confirmed did not negate the Trust's rights under the Agreement. Likewise, it did not negate Mirage's rights. Moreover a plaintiff who sues to enforce a contract assumes all of the burdens of that contract.See generally First Trust Nat'l Assoc. v. First National Bank of Commerce, 220 F.3d 331 (5th Cir. 2000).
(2) Mirage was found to have terminated the Agreement and Paragraph 21; (the attorney's fee provision) did not survive this termination.
Again referring to the Bankruptcy Court's Reasons for Order, it stated: "For the Court to find that the provisions of ¶ 21 did not survive the proper termination of the Agreement by Mirage would be to construe the Agreement in an absurd and unreasonable manner and would result in improper nullification of the ¶ 21 provisions." (p. 3). The Court adopts the Bankruptcy Court's reasoning as to this argument.
(3) The Complaint did not create litigation to "enforce" the Agreement and thus Paragraph 21 (the attorney fee provision) is inapplicable.
Although the Complaint does not seek to force Mirage to specifically perform under the Agreement, rather it sought the difference in the purchase price ultimately received by the Trust. Indubitably the Trust is requesting the Court to enforce certain provisions of the contract even though it is not asking for enforcement of the specific performance provision. Clearly the contract can be enforced by the awarding of damages for non-compliance. Again, the Trust may not rely on the provisions of the Agreement on one hand and then almost metaphysically eliminate any provisions that might weigh against it.
(4) The Award should be reduced because Mirage's efforts to join Capital Gaming were not compensable or required.
The record indicates that the Trust initially opposed Mirage's efforts to have Capital Gaming named as a party on the basis that Capital Gaming did not have any rights under the Agreement although it was a party to the Agreement. The Trust precipitated the expenditure of fees by its failure to name Capital Gaming as a party initially. It should be further noted that Capital Gaming and the Trust were not solidary obligors for the purposes of this litigation as Capital Gaming never asserted any claims against Mirage to enforce the Agreement; therefore, never became a solidary obligor under ¶ 21. Capital Gaming never asserted any claims against Mirage and was merely a bystander in the litigation. Therefore, as stated by the Bankruptcy Court in its Reasons for Order at page 4, "Mirages' efforts in this area sought to bring in all necessary parties, and the Court finds that even though Mirage ultimately settled with Capital, the joining of Capital was not inappropriate and should be compensated for."
For the foregoing reasons, the Court AFFIRMS the Bankruptcy Court.