12-1896-cv
Trafalgar Power, Inc., et al. v. Algonquin Power Corp. Inc., et al.


                                     UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th
day of March, two thousand thirteen.

PRESENT:
            RALPH K. WINTER,
            JOSÉ A. CABRANES,
            DEBRA ANN LIVINGSTON,
                         Circuit Judges.
_____________________________________

TRAFALGAR POWER, INCORPORATED,

                      Plaintiff-Counter-Defendant-Appellant,

MARINA DEVELOPMENT, INCORPORATED; CHRISTINE FALLS
OF NEW YORK, INCORPORATED,

                      Plaintiffs-Appellants,

CHRISTINE FALLS CORPORATION,

                      Plaintiff-Counter-Defendant,

                      v.                                                    No. 12-1896-cv

ALGONQUIN POWER CORPORATION, INCORPORATED;
ALGONQUIN POWER INCOME FUND; ALGONQUIN POWER
FUND (CANADA), INCORPORATED,

                      Defendants-Counter-Claimants-Appellees,
AETNA LIFE INSURANCE COMPANY,

            Defendant.
_____________________________________

FOR MARINA DEVELOPMENT, INC.:                                      JASON C. CYRULNIK (Edward J. Normand, on
                                                                   the brief), Boies, Schiller & Flexner LLP,
                                                                   Armonk, NY.

FOR TRAFALGAR POWER, INC. &
CHRISTINE FALLS OF N.Y., INC.:                                     David M. Capriotti, Laura W. Smalley, Harris
                                                                   Beach PLLC, Pittsford, NY and Syracuse,
                                                                   NY.

FOR ALGONQUIN POWER CORP., INC.,
ALGONQUIN POWER INCOME FUND &
ALGONQUIN POWER FUND (CANADA),
INC.:                                                              MITCHELL J. KATZ (Teresa M. Bennett, on the
                                                                   brief), Menter, Rudin & Trivelpiece, P.C.,
                                                                   Syracuse, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (David N. Hurd, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s April 3, 2012 judgment is
AFFIRMED.

        As we have stated, this “litigation stem[s] from a loan agreement initially entered into
between [Trafalgar Power, Inc. and Aetna Life Insurance Co.], and Aetna’s subsequent sale of the
debt instruments that agreement created―an ‘A’ and a ‘B’ note―to [Algonquin Power Fund, Inc.;
Algonquin Power Corporation, Inc.; and Algonquin Power Income Fund, Inc.].” Christine Falls Corp.
v. Algonquin Power Fund, Inc., 401 F. App’x 584, 586 (2d Cir. 2010). Although this litigation involves
several consolidated actions and has spanned more than a decade, plaintiffs-appellants Trafalgar
Power, Inc.; Marina Development, Inc.; and Christine Falls of New York, Inc. (jointly, “Trafalgar”),
only ask us to determine whether the District Court erred in granting summary judgment on
counterclaims brought by Algonquin Power Corporation, Inc.; Algonquin Power Income Fund; and
Algonquin Power Fund (Canada), Inc. (jointly, “Algonquin”). In particular, Algonquin’s
counterclaims “seek a declaratory judgment that Trafalgar defaulted with respect to both the A and
B Notes and, accordingly, that Algonquin was entitled to accelerate the balances due.” Id. at 589.1

1   As the District Court properly noted, the A Notes have been paid off, so only the B Notes are at issue.


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        Previously, the District Court had denied summary judgment on and dismissed Algonquin’s
counterclaims, see Trafalgar Power Inc. v. Aetna Life Ins. Co., 396 B.R. 584, 596-97 (N.D.N.Y. 2008), but
we vacated that judgment and directed the District Court to determine “whether (1) an event of
default occurred within the meaning of the parties’ various agreements, and (2) if so, whether
Algonquin properly exercised its rights as the Note holder pursuant to those agreements,” Christine
Falls Corp., 401 F. App’x at 589. On remand, the District Court answered both of these questions
affirmatively and concluded that Algonquin was entitled to the declaratory relief it sought. Trafalgar
Power Inc. v. Aetna Life Ins. Co., Nos. 5:99-CV-1238, 5:00-CV-1246, 2012 WL 1119533, at *6
(N.D.N.Y. Apr. 3, 2012).

         We assume the parties’ familiarity with the background of this case and the issues on appeal.

                                                     DISCUSSION

        We review de novo an order granting summary judgment and “resolv[e] all ambiguities and
draw[ ] all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (quoting Wright v. Goord, 554 F.3d 255, 266
(2d Cir. 2009)).

        After reviewing the record, we conclude that Trafalgar’s arguments are without merit.
Although we affirm substantially for the reasons stated by the District Court in its careful and
comprehensive Memorandum Decision and Order dated April 3, 2012, we note briefly the three
principal conclusions underlying our decision.

        First, a close reading of the various contractual documents reveals that Trafalgar’s failure to
pay some of its corporate income taxes constituted an event of default.2 Second, the record
demonstrates that Trafalgar knew about the event of default, received actual and timely notice of the
acceleration, and was not prejudiced in any way.3 See Joint App’x 508-09, 5069-71; see also Twenty-

2 Trafalgar’s argument that Algonquin was required to pay these corporate income taxes on Trafalgar’s behalf is

meritless. While it is true that Algonquin, as operator of Trafalgar’s hydroelectric power plants, was responsible for
paying certain taxes (such as payroll taxes), the Management Agreement specifically and unambiguously states that
Algonquin “shall not be responsible for federal income or state income or franchise taxes of [Trafalgar].” Joint App’x
99.
3 It seems that the District Court confused Algonquin’s notification obligation regarding the existence of an event of

default and its notification obligation regarding the acceleration of the debt because it stated that, pursuant to section 7.2
of the Indenture, “Algonquin should have notified the Security Trustee of the Event of Default.” Section 7.2 of the
Indenture, however, only pertains to Algonquin giving notice to the Security Trustee to accelerate the debt.
Furthermore, Trafalgar’s reliance on section 9.1 of the Indenture to support its assertion that Algonquin should have
notified the Security Trustee about the event of default is misplaced because that provision places no affirmative duty on
Algonquin; instead, it simply requires that “[t]he Security Trustee shall give to [Trafalgar] and [Algonquin] written notice
of each and every Event of Default of which it shall become aware within ten (10) days of becoming aware thereof.” Joint
App’x 471 (emphasis supplied). Accordingly, the existence of an event of default is not dependent upon Trafalgar
receiving notice from the Security Trustee but exists independently of any such notice. See id. at 449 (noting that “[a]n

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Four Merrill St. Condo. Ass’n, Inc. v. Murray, 902 A.2d 24, 29 (Conn. App. Ct. 2006) (noting that under
Connecticut law (which applies to the relevant agreements), “[t]he modern approach to notice-giving
attaches primary importance to actual notice and treats technical compliance with notice procedures
as a secondary consideration”). Third, we agree with the District Court that Algonquin is entitled to
the relief it seeks―namely, recourse to Trafalgar’s stock―because Algonquin has recourse to the
“Indenture Estate,” which includes Trafalgar’s stock. See Joint App’x 417, 915, 4923-25, 4935.

                                                   CONCLUSION

        We have considered all of Trafalgar’s arguments on appeal and find them to be without
merit. For the reasons stated above, we AFFIRM the District Court’s April 3, 2012 judgment
granting summary judgment in favor of Algonquin on its counterclaims.

                                                                   FOR THE COURT:
                                                                   Catherine O’Hagan Wolfe, Clerk




event of default . . . shall exist” in various circumstances) (emphasis supplied). In any event, because Trafalgar had actual
notice regarding the event of default and Algonquin’s decision to accelerate the debt, we conclude that the District Court
correctly granted summary judgment in favor of Algonquin on its counterclaims.

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