                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 04 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TOM GONZALES,                                   No. 12-16302
                                                No. 13-16015
              Plaintiff - Appellant,
                                                D.C. No. 3:11-cv-00613-RCJ-VPC
  v.                                            D.C. No. 2:13-cv-00931-RCJ-VPC

SHOTGUN CREEK LAS VEGAS,
L.L.C., WELLS FARGO BANK, N.A.,                 MEMORANDUM*
DESERT LAND, L.L.C., DESERT OASIS
APARTMENTS, L.L.C., and DESERT
OASIS INVESTMENTS, L.L.C.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Robert C. Jones, District Judge, Presiding

                       Argued and Submitted April 11, 2014
                            San Francisco, California




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert W. Pratt, Senior United States District Judge
for the Southern District of Iowa, sitting by designation.
Before: SCHROEDER and CALLAHAN, Circuit Judges, and PRATT, Senior
District Judge.**

      Tom Gonzales (“Gonzales”) appeals the district court’s decisions: (1)

granting summary judgment to Specialty Trust, Inc., Specialty Mortgage Corp.,

Specialty Strategic Financing Fund, L.P. (collectively “Specialty Defendants”1),

and Wells Fargo Bank, N.A. (“Wells Fargo”), finding that the parties to the

settlement agreement (“Agreement”) did not intend that the Parcel A Transfer Fee

constitute a lien on Parcel A; (2) granting summary judgment to Desert Land,

L.L.C. (“Desert Land”), Desert Oasis Apartments, L.L.C., and Desert Oasis

Investments, L.L.C. (“Desert Investments”) (collectively “Desert Entities”),

finding that the FLT Option Transactions2 did not give rise to the obligation to pay

the Parcel A Transfer Fee; and (3) denying Gonzales’s motion for a preliminary

injunction, finding that he did not show a likelihood of irreparable harm. We have




      1
               Shotgun Creek Las Vegas, L.L.C. (“Shotgun Creek”) is the successor
in interest to Specialty Defendants. However, for consistency and ease of
reference, we will refer to Specialty Defendants because they were parties to the
district court proceedings, not Shotgun Creek.
      2
            We use the term “FLT Option Transactions” to collectively refer to
Desert Land’s transfer of the FLT Option to Desert Investments and Desert
Investments’ exercise of the Option.

                                         2
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1292(a)(1), and we affirm the

district court’s decisions.



                                            I

      Under Nevada law, when, as in this case, it is claimed that a lien arises out

of an express contract, the parties’ intent to create the lien must be clearly indicated

on the face of the agreement. Union Indem. Co. v. A.D. Drumm, Jr., Inc., 70 P.2d

767, 768 (Nev. 1937) (per curiam). Because the Agreement’s § 1.1(b) provides

that the Parcel A Transfer Fee is not a mortgage, deed of trust, or other lien on

Parcel A, the district court correctly concluded that the parties to the Agreement

did not intend that this transfer fee be a lien on Parcel A. Similarly, the district

court also correctly concluded that the Parcel A Transfer Fee was not a preemptive

property right as the Agreement contains no language suggesting that the transfer

fee was anything but a right to receive a certain sum of money in the event of a

Parcel A Transfer.3



      3
              In the absence of any showing that additional materials would have
potentially affected the case, we find no error in the district court’s decision to
grant summary judgment for Specialty Defendants and Wells Fargo without giving
Gonzales an opportunity to amend his complaint (even though he requested leave
to do so) or to submit any additional materials that he deemed pertinent to the
disposition of his claims on summary judgment.

                                           3
                                           II

      Under the terms of the Agreement, the obligation to pay the Parcel A

Transfer Fee arises only upon the occurrence of a Parcel A Transfer, defined as:

      either: (a) the sale, transfer or other conveyance of any legal or
      beneficial interest in the entity or entities that own Parcel A (a “Parcel A
      Equity Transfer”); or (b) the sale, transfer or other conveyance of all or
      any part of Parcel A, other than (i) a Parcel A Mortgage or (ii) sales,
      transfers or other conveyances of purchases for easements or to realign
      property lines, or condemnations involving less than 5% of the gross
      Parcel A land area.

The FLT Option Transactions do not constitute a Parcel A Transfer because Desert

Land’s conveyance of the FLT Option to Desert Investments was neither a Parcel

A Equity Transfer nor a “sale, transfer or other conveyance of all or any part of

Parcel A.” Nor was Desert Investments’ subsequent exercise of the Option a

qualifying transfer of Parcel A, such that it gave rise to the obligation to pay the

Parcel A Transfer Fee. Accordingly, the district court correctly determined that the

FLT Option Transactions did not trigger the obligation to pay the Parcel A

Transfer Fee.4



      4
              We find no error in the district court’s refusal to consider the evidence
concerning the so-called Shotgun transfers prior to granting summary judgment to
the Desert Entities, given that this issue was not timely raised. Additionally, we
find that the district court did not err in denying Gonzales’s motion for leave to
amend his complaint to include appropriate allegations pertaining to these Shotgun
transfers.

                                           4
                                         III

      The district court denied Gonzales’s motion for a preliminary injunction,

concluding that he had not shown a likelihood of irreparable harm. Even assuming

that Gonzales had shown a likelihood of irreparable harm, he has not demonstrated

the requisite likelihood of success on the merits. See Alliance for the Wild Rockies

v. Cottrell, 632 F.3d 1127, 1133 (9th Cir. 2011). Indeed, his claim that the Parcel

A Transfer Fee was due was premised solely on the FLT Option Transactions. As

explained in Section II, however, these transactions did not trigger the obligation to

pay the Parcel A Transfer Fee to Gonzales because they did not constitute a Parcel

A Transfer, as defined by the Agreement.

      AFFIRMED.




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