                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                          JAN 25 2016

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




CHARLESTON ASSOCIATES, LLC,                      No. 13-16698

              Plaintiff-Appellant,               D.C. No. 2:11-cv-2023-MMD-PAL

v.
                                                 MEMORANDUM*
CITY NATIONAL BANK, and RA
SOUTHEAST LAND COMPANY, LLC,

             Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                    Argued and Submitted November 17, 2015
                            San Francisco, California

Before: McKEOWN, RAWLINSON, and DAVIS,** Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **    The Honorable Andre M. Davis, Senior Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
      Appellant Charleston Associates, LLC (“Charleston”) filed an adversary

proceeding in bankruptcy court against Appellees City National Bank (“CNB”) and

RA Southeast Land Company, LLC (“RA Southeast”), seeking a declaration that it

owned the Declarant’s Rights associated with a forty-one-acre parcel of land in Las

Vegas, Nevada. The bankruptcy court entered summary judgment in favor of

Charleston. On appeal, the district court concluded that Charleston had retained

possession of the Declarant’s Rights until 2007, at which point the Declarant’s

Rights transferred to CNB via a Trustee’s Sale executed pursuant to a Charleston-

CNB Settlement Agreement. Accordingly, the district court reversed the judgment

of the bankruptcy court and remanded with instructions for the bankruptcy court to

award summary judgment in favor of CNB and RA Southeast. Charleston now

appeals. For the reasons stated below, we affirm the judgment of the district court.

      1. We review “de novo the district court’s decision on an appeal from a

bankruptcy court.” In re AFI Holding, Inc., 525 F.3d 700, 702 (9th Cir. 2008).

Accordingly, we apply the same standard of review as the district court applied and

give no deference to the decision of the district court. Id. “The bankruptcy court’s

findings of fact are reviewed for clear error.” In re JTS Corp., 617 F.3d 1102, 1109

(9th Cir. 2010). This means we accept the bankruptcy court’s findings of fact

unless we are “left with the definite and firm conviction that a mistake has been


                                          2
committed.” Id. (quoting In re Greene, 583 F.3d 614, 618 (9th Cir. 2009)). Mixed

questions of law and fact and conclusions of law are reviewed de novo. Id.

      2. The district court correctly determined that Charleston retained possession

of the Declarant’s Rights into 2007 and pledged the Declarant’s Rights to CNB as

part of a Deed of Trust, Assignment of Rents, Security Agreement and Fixture

Filing (“Deed of Trust”). While Charleston argues that it transferred the

Declarant’s Rights to one of its affiliates in 2002 via an oral transfer agreement, the

purported oral transfer did not comport with the unambiguous terms of the Grant of

Reciprocal Easements and Declaration of Covenants (“REA”), which governs the

Declarant’s Rights and the development of the forty-one-acre property.

      3. Section 11.8 of the REA provides that the Declarant’s Rights may be

transferred “[u]pon sale or transfer by the Declarant of its interest in the Shopping

Center with a concurrent or subsequent transfer of its obligations as Declarant to

the purchaser or transferee and the purchaser’s or transferee’s assumption of such

obligations . . . .” The REA defines “Shopping Center” as “[a]ll of the real

property” covered by the REA. Charleston did not adhere to the requirements of

§ 11.8 when it purported to transfer the Declarant’s Rights with a concurrent

conveyance of far less than its interest in all the real property governed by the

REA. Because Charleston did not assign the Declarant’s Rights subsequently or


                                           3
concurrently to a sale or transfer of its interest in all of the real property governed

by the REA, the district court correctly found that Charleston’s purported oral

transfer of the Declarant’s Rights did not comport with the REA and was therefore

invalid and unenforceable.

      4. The district court also correctly determined that the Settlement Agreement

executed by Charleston and CNB upon Charleston’s default under the Deed of

Trust unambiguously provided for the transfer of the Declarant’s Rights from

Charleston to CNB via a Trustee’s Sale.

      5. The Deed of Trust expressly provided that “[a]ll rights that [Charleston]

may have as declarant under any covenants, conditions or restrictions affecting the

Property” were included as part of the Trust Estate. And, under the terms of the

Settlement Agreement, CNB agreed to “foreclose or cause the occurrence of a deed

of trust sale with respect to the Deed of Trust, in accordance with applicable state

law.” Because the Settlement Agreement is not “susceptible to more than one

interpretation,” Shelton v. Shelton, 78 P.3d 507, 510 (Nev. 2003), and its plain

language unambiguously provided for the Declarant’s Rights to transfer to CNB

via a Trustee’s Sale, the district court correctly concluded that Charleston’s interest

in the Declarant’s Rights automatically passed to CNB at the conclusion of the

Trustee’s Sale, Charmicor, Inc. v. Bradshaw Fin. Co., 550 P.2d 413, 415 (Nev.


                                            4
1976). We hold, therefore, that the district court properly instructed the bankruptcy

court to award summary judgment in favor of CNB and RA Southeast.

      AFFIRMED.




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