Gonzales v. Shotgun Nevada Investments, et al

Filing 197

ORDERED that the Motion for Reconsideration (ECF No. 34, filed in case no. 3:15-cv-915) is DENIED. Signed by Judge Robert C. Jones on 5/2/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
______________________________________
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TOM GONZALES,
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Plaintiff,
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vs.
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DESERT LAND, LLC et al.,
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Defendants.
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_____________________________________ )
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TOM GONZALES,
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Plaintiff,
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vs.
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SHOTGUN NEVADA INVESTMENTS,
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LLC et al.,
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Defendants.
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2:15-cv-00915-RCJ-VPC

2:13-cv-00931-RCJ-VPC
ORDER

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This case is the third action in this Court by Plaintiff Tom Gonzales concerning his

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entitlement to a fee under a plan of confirmation the undersigned entered years ago while sitting

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as a bankruptcy judge. In the present case, No. 2:15-cv-915, Gonzales sued the Desert Entities;

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SkyVue Las Vegas, LLC, Howard Bulloch, and David Gaffin for breach of contract, breach of

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the covenant of good faith and fair dealing, and conspiracy. The Court solicited summary

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judgment motions on contractual interpretation issues and ruled that: (1) Defendants were

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entitled to summary judgment against all claims except the claim for breach of contract; (2)

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Plaintiff was entitled to summary judgment on liability for breach of contract; and (3)

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Defendants were entitled to summary judgment on the issue of money damages. The Court

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ordered briefing on equitable remedies. After considering the various suggestions, the Court

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ruled that in the event of a sale, transfer, or other conveyance of Parcel A (or any part of it), the

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proceeds were to be applied as follows: first, to pay the first $25 million in principal secured by

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Parcel A (or any part of it, and only to the extent the relevant obligation was incurred before the

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date of breach) plus interest accruing on any such principal until the date of breach; second, to

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pay the $10 million Parcel A Transfer Fee plus interest accruing from the date of breach; and

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third, to pay any remaining encumbrances in accordance with law and contract. The Court

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ordered Plaintiff to submit a proposed judgment, and he did. Defendants objected and asked the

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Court to reconsider, and the Shotgun Entities moved to intervene. The Court reconsidered (and

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therefore denied the motion to intervene), finding that the re-subordination of some portion of

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the loans to the Parcel A Transfer Fee was not permitted under state law. The Court granted

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Plaintiff a money judgment, instead, and instructed him to file a new proposed judgment, which

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he has.

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Plaintiff has filed an emergency motion, because a foreclosure sale of Parcel A is

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scheduled for May 1, 2018, and he believes Parcel A is over-encumbered such that he will not

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receive any portion of the Parcel A Transfer Fee after the sale (which will trigger the fee). As

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noted at the hearing, the Court finds that it has no jurisdiction to directly interfere with a

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foreclosure sale or to reorder the priority of encumbrances against Parcel A. The Court will

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immediately enter the proposed judgment. Defendants’ objections thereto are overruled for the

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reasons given in Plaintiff’s reply.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Reconsideration (ECF No. 34) is

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DENIED.

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IT IS SO ORDERED.

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2nd day of May, 2018.
Dated this 25th day of April, 2018.

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_____________________________________
ROBERT C. JONES
United States District Judges

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