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Bazarian International Financial Associates, LLC v. Desarrollos Hotelco, C.A.

United States District Court, District of Columbia

October 24, 2018




         The plaintiff, Bazarian International Financial Associates, LLC, sued the defendants, Desarrollos Hotelco, C.A. (“Hotelco C.A.”), Desarrollos Hotelco Corporation DHC Aruba, N.V. (“DHC”), and Desarrollos Hotelco Corporation Curacao Holding, N.V. (“Hotelco Curacao”), after the defendants refused to pay the plaintiff for investment banking services provided in anticipation of developing Aruba's beachfront Ritz Carlton hotel. Following a five-day trial, a jury found that Hotelco C.A. had breached its written agreement with, and consequently awarded $2, 200, 000 in damages to, the plaintiff. DHC and Hotelco Curacao also were found liable as alter egos of Hotelco C.A. and as its successors in interest.

         The parties have filed several post-trial motions. First, DHC and Hotelco Curacao seek judgment as a matter of law, or alternatively a new trial, repeating arguments made unsuccessfully pre-trial that neither is Hotelco C.A.'s alter ego or its successor in interest. Defs.' Renewed Mot. JMOL or New Trial (“Defs.' Mot. JMOL”), ECF No. 136. Second, all three defendants seek remittitur of the jury's damages award. Defs.' Mot. Remittitur or New Trial (“Defs.' Mot. Rem.”), ECF No. 137. Finally, the plaintiff seeks prejudgment and post-judgment interest on the jury's damages award as well as reasonable attorneys' fees, costs, and expenses. See Pl.'s Mot. Interest & Fees (“Pl.'s Mot.”), ECF No. 134.

         For the reasons explained below, both co-defendants' motions are denied because the defendants have failed to show that the trial evidence did not permit the jury's verdict as to alter-ego or successor-in-interest liability or that the jury's damages award is beyond all reason. Further, the plaintiff's fee motion is granted because the plaintiff is entitled to prejudgment interest under District of Columbia law, post-judgment interest under federal law, and attorneys' fees, costs, and expenses under the terms of the parties' contract.

         I. BACKGROUND

         Set out below is the relevant procedural and factual background.

         A. Dismissal of Plaintiff's 2009 Complaint

         This litigation dates to 2009, when the plaintiff sought a declaratory judgment to establish its right to payment under an agreement, dated February 5, 2007 (“the Agreement”), executed with Desarrollos Aerohotelco, C.A. (“Aerohotelco”). Compl., Bazarian Int'l Fin. Assocs., LLC v. Desarrollos Aerohotelco, C.A., Civ. No. 09-1764 (D.D.C. Sept. 17, 2009), ECF No. 1. Under the Agreement, the plaintiff was to provide financial services to Aerohotelco, in exchange for a “debt fee, ” as Aerohotelco built Aruba's Ritz Carlton hotel. That initial complaint was dismissed, without prejudice, because no justiciable controversy had yet arisen. Bazarian Int'l Fin. Assocs., L.L.C. v. Desarrollos Aerohotelco, C.A., 793 F.Supp.2d 124, 125 (D.D.C. 2011) (“Bazarian I”).

         B. Plaintiff's 2013 Complaint

         The second iteration of this matter dates to 2013, when the plaintiff again sued Aerohotelco, asserting that Aerohotelco had breached the Agreement and been unjustly enriched by receiving, but failing to pay for, plaintiff's services. Compl. at ¶¶ 30-47. The amended operative version of that complaint added several defendants, all affiliated with Aerohotelco, including DHC and Hotelco Curacao. Am. Compl., ECF No. 13. Following a motion under Rule 12(b)(6), the claim for unjust enrichment was dismissed. Order, ECF No. 36. The breach-of-contract claim, however, survived against not only Aerohotelco but also against its affiliated enterprises, including DHC and Hotelco Curacao, because the Amended Complaint plausibly alleged each was an alter ego of Aerohotelco. Bazarian Int'l Fin. Assocs., L.L.C. v. Desarrollos Aerohotelco, C.A., 168 F.Supp.3d 1, 22-24 (D.D.C. 2016) (“Bazarian II”). The role of Walter Stipa, Aerohotelco's President and the Agreement's signatory, Id. at 5, factored heavily in that conclusion, Id. at 23. Stipa allegedly had a prominent role with each defendant-enterprise, serving as the president of some, a representative of others, and an owner or part-owner of all. Id. Moreover, the Amended Complaint alleged that Aerohotelco had freely transferred a valuable asset between defendants. Id. at 24. The alter-ego ruling obviated the need to consider the plaintiff's alternative successor-liability argument. Id. at 22 n.8. Thus, the breach-of-contract claim continued to trial.

         C. Pre-Trial Motions

         In anticipation of trial, the defendants filed two motions in limine. The first sought exclusion of testimony from the plaintiff's expert on hotel financing, William Clover. See Defs.' Mot. Lim. Expert, ECF No. 65. The second sought to preclude references to the defendants' foreign status. See Defs.' Mot. Lim. Foreign Status, ECF No. 67. The first motion was granted only in part and Clover was allowed to testify about industry standards and understandings regarding certain documentation used in hotel financing and the meaning of certain terms, including “structuring” and “commitments.” See Order, ECF No. 104. The second motion also was granted in part, prohibiting unfairly prejudicial references to the defendant-entities' foreign status. See Order, ECF No. 96.

         D. Evidence at Trial

         At the five-day trial, the plaintiff presented the testimony of seven witnesses: Carl Bazarian, the plaintiff's President and Owner; Stipa; Willem Broekaart, a Vice President of Corporate Finance for the Aruba Investment Bank (“AIB”); Frendsel Giel, the Managing Director of AIB; Pedro Vera, a representative of the various defendant-entities; Gregory Zorella, the plaintiff's employee from 2004-2016; and Clover, the plaintiff's expert. The testimony of Stipa, Broekaart, and Giel was in the form of their pre-trial depositions, with most objections resolved pre-trial. See Min. Orders (May 2, 2018) (ruling on the parties' objections to designations in deposition transcripts of Giel, Stipa and Broekaart, respectively). The defendants presented a single witness: William Nicholson, an expert in real estate brokering, financing, and investing. The plaintiff introduced 93 exhibits into evidence, see Exhibit Log, ECF No. 121, and the defendants introduced 17, see Exhibit Log, ECF No. 122. Relevant to the now-pending motions, the evidence at trial revealed the following facts.

         In 2003, the Aruban government inquired of the plaintiff's interest in bringing a Ritz Carlton hotel to the island, based on the plaintiff's specialty in developing resorts in underdeveloped parts of the world. Day 1 PM at 11:7-12:14.[1] The plaintiff was interested and as a result purchased the exclusive option to develop the hotel. Id. at 12:15-25; Day 2 AM at 41:9- 15. While holding that option, the plaintiff prepared a market study and worked with Scotiabank and the AIB to secure financing. Day 1 PM at 14:16-15:5.

         Toward the end of 2006, Bazarian met Stipa, who was introduced as someone who had experience financing and constructing hotels, for the first time. Id. at 20:17-21, 23:5-24:16. Barzarian and Stipa, and their respective business partners, Zorella and Vera, emailed about financing the potential hotel as 2006 came to a close. Id. at 25:16-27:16. Ultimately, the plaintiff could not arrange financing needed to begin development and, in 2006, let the exclusive option expire. Id. at 13:1-14:21, 27:11-19; Day 2 AM at 41:18-21.

         Notwithstanding the plaintiff's relinquishment of the option, Aruba's government remained interested in opening a Ritz Carlton and to this end, in February 2007, requested proposals for the right to develop the luxury hotel. Pl.'s Trial Ex. 18; see also Day 1 PM at 27:21-28:4. Stipa, on behalf of Aerohotelco, contacted Bazarian about the request for proposals (“RFP”) because Bazarian, on behalf of the plaintiff, already had commissioned studies relevant to building the beachfront hotel. Day 1 PM at 31:8-19. Aerohotelco intended to bid, and on February 5, 2007, the plaintiff executed the Agreement with Aerohotelco “and/or its successor companies or any related entities which intend to invest in and/or develop the Project.” Pl. Trial Ex. 17 at preamble. Under the Agreement, the plaintiff would “perform exclusive investment banking services in connection with [the] RFP process and development of a luxury hotel … on the island of Aruba.” Id. § 1. Among other forms of compensation, the plaintiff was slated to receive a debt fee “[u]pon the settlement of binding loan and/or guarantee commitments for the Project obtained directly or indirectly by Bazarian International, ” the amount of which would be “a flat two percent (2%) of the gross amount of the debt fee financing provided to the Project, net of VAT and all wiring/bank fees, except for Scotiabank at one percent (1%) of the gross amount of debt financing.” Id. § 2.C. The debt fee would be paid “upon the earlier of the first drawdown of funds and/or first infusion of equity capital, provided that financing has been committed to the Project as a result of the efforts of Bazarian International.” Id. § 2.D.

         Bazarian signed the Agreement on behalf of the plaintiff and Stipa signed on behalf of Aerohotelco. Id. at 5; see also Day 2 AM at 125:14-17. Though Stipa entered the agreement on behalf of Aerohotelco, Aerohotelco was a Venezuelan company and Stipa testified that he was aware that if Aerohotelco's bid succeeded, “it would have to be a company in Aruba” that held the option on the beachfront property. Day 2 AM at 123:25-124:6. Vera, who worked alongside Stipa in negotiating the Agreement on behalf of Aerohotelco, also knew at the time of executing the Agreement that should Aerohotelco's bid prevail Aerohotelco would need to structure an Aruban entity to receive the leasehold. Day 3 PM at 52:19-53:11; Day 4 AM at 25:22-26:4. At his deposition, Stipa was asked, “[D]id you intend for, at the time you signed [the Agreement], if the project were successful, for that Aruban entity to also be bound by this agreement?” Day 2 AM at 124:16-19. Stipa answered: “Of course.” Id. at 124:20.

         Sometime between the formation of the Agreement and the end of March 2007, Aerohotelco merged into Hotelco C.A. See Joint Stipulation Regarding Substitution and Voluntary Dismissal of Parties at 1, ECF No. 55. The parties agree that Hotelco C.A. is Aerohotelco's successor in interest and assumed all Aerohotelco's liabilities under the Agreement. Id. at 1-2. Stipa and his family were Hotelco C.A.'s largest shareholders. Day 3 PM at 80:10-16.

         Meanwhile, Bazarian and Zorella introduced Stipa and Vera to representatives from AIB, including Giel and Broekhart. Day 1 PM at 74:20-78:22; Day 2 PM at 91:5-92:15; Day 3 AM at 93:16-18; Day 3 PM at 18:6-15; Day 4 PM at 15:13-16:3. Bazarian and Broekhart each recalled that during the initial introduction, Broekhart, representing AIB, expressed interest in serving as a syndicate arranger for Hotelco C.A.'s funders. Day 1 PM at 78:23-79:8; Day 3 AM at 35:12-19. According to Bazarian and Zorella, after the meeting, the plaintiff did all the due diligence for AIB as the bank prepared an indicative term sheet, and the plaintiff ultimately secured an indicative term sheet from AIB for the defendants. Day 1 PM at 48:6-49:14, 69:23- 70:2, 71:6-16, 74:4-14, 80:16-81:14; Day 4 AM at 93:16-24; Pl.'s Trial Exs. 25, 26, 27. AIB's indicative term sheet was then included in the proposal that Stipa submitted to the Aruba government, in March 2007, on behalf of Hotelco C.A. for the right to develop the luxury hotel. Day 1 PM at 48:6-21, 85:6-21; see also Pl.'s Trial Ex. 35.

         While Hotelco C.A's proposal was pending, the plaintiff remained a conduit from AIB to Stipa and Vera, pushing for AIB's inclusion as a financier or syndicate arranger for the hotel. Day 1 PM at 86:10-18, 87:7-88:1, 89:20-90:10; Day 2 AM at 73:22-74:7; Day 4 AM at 95:3- 23; Day 4 PM at 69:10-23; see also Pl.'s Trial Ex. 34. AIB maintained regular communication with the plaintiff. Day 1 PM at 96:8-15, 103:10-15; Day 3 AM at 18:23-19:11, 24:10-14; Pl.'s Trial Exs. 43, 44, 45, 46.

         In June 2008, Aruba issued a letter of intent selecting Hotelco C.A.'s bid for the beachfront hotel and offering Hotel C.A. an exclusive right to the leasehold. Day 3 PM at 49:22-50:24; see also Pl.'s Trial Ex. 65. As expected, the letter of intent instructed Hotelco C.A. “to structure and incorporate a local company … to hold the option right and lease hold.” Pl.'s Trial Ex 65 at 1; see also Day 1 PM at 111:6-21. Within three months, Vera had incorporated DHC in Aruba for purposes of transferring the leasehold. Day 2 AM at 124:3-9; Day 3 PM at 48:19-49:16, 53:12-54:4. Hotel Curacao was incorporated two weeks later. Day 3 PM at 49:11-16. DHC was wholly owned by a non-defendant holding company, which was itself wholly owned by Hotelco Curacao. Id. at 56:16-19, 57:14-20, 58:6-15; see also Pl.'s Trial Ex. 121. Vera acknowledged that Stipa and his family were the largest shareholders of DHC and Hotel Curacao, and that Stipa continued to act on behalf of each defendant. Day 3 PM at 80:17- 81:12; Day 4 AM at 8:21-10:12; see also Pl.'s Trial Ex. 101 at preamble. Hotelco C.A., Vera conceded, then transferred the exclusive right to the leasehold for the beachfront property to DHC at no cost. Day 3 PM at 50:20-52:2.

         On July 21, 2008, Hotelco C.A. and AIB entered into a Syndicate Management Agreement, pursuant to which AIB would act as Hotelco C.A.'s syndicate arranger for the hotel's funders. Pl.'s Trial Ex. 78; see also Day 1 PM at 132:6-15. In August 2008, the defendants, through Stipa, instructed the plaintiff to cease working on the defendants' behalf. Day 2 AM at 23:4-23, 26:20-27:1; Day 3 PM at 28:20-29:20; Day 4 PM at 44:19-45:17; see also Pl.'s Trial Ex. 87. Still, as AIB began its work as the syndicate arranger, the bank continued soliciting and receiving support from the plaintiff. Day 1 PM at 112:7-12, 114:1-9; Day 2 AM at 23:17-23, 82:5-83:18; Day 4 PM at 27:10-25; see also Pl.'s Trial Ex. 86.

         On October 26, 2009, DHC and Hotelco Curacao, but not Hotelco C.A., entered into a Facility Agreement with a syndicate of seven lenders. Pl.'s Trial Ex. 99; see also Day 3 PM at 63:1-11, 72:19-21. The Facility Agreement permitted DHC and Hotel Curacao to borrow up to $110, 000, 000. Day 3 PM at 60:6-62:15; see also Pl.'s Trial Ex. 99 at 1. AIB, according to Broekhart, was instrumental in negotiating that agreement. Day 3 AM at 65:20-66:2. From the money lent through the Facility Agreement, Vera explained, just under $16.5 million went to Hotel Curacao and just over $93.5 million went to DHC. Day 3 PM at 63:12-24, 69:14-72:1; see also Pl.'s Trial Exs. 107, 108. The money was disbursed in stages. The first drawdown was for $78.5 million, and occurred in early 2013, Day 3 PM at 78:25-80:1, while the remainder was disbursed in 2014 after the hotel was in operation, Id. at 61:5-12.

         The following year, Stipa entered into a shareholders' agreement that disbursed shares of Hotelco Curacao and listed Stipa as the representative of Hotelco C.A., DHC, and Hotelco Curacao. Pl.'s Trial Ex. 101 at preamble. That agreement also noted that each entity was “directly or indirectly fully owned by or related to Stipa.” Id.

         The Ritz Carlton Aruba opened in 2013. Day 3 PM at 79:9-11. Hotelco C.A. and the affiliated enterprises, however, failed to make any payment owed to the plaintiff. Day 2 AM at 34:6-35:5.

         After the plaintiff's presentation of its case, DHC and Hotel Curacao moved for judgment as a matter of law, under Federal Rule of Civil Procedure 50(a), on grounds that neither was liable as an alter-ego of or successor-in-interest to Hotelco C.A. Day 5 AM at 16:24-17:11. That motion was denied. Id. at 35:18-37:18. The case then went to the jury, which returned a verdict in the plaintiff's favor. Verdict Form, ECF No. 125. The jury found that Hotelco C.A. breached the Agreement and awarded the plaintiff $2.2 million in damages. Id. The jury also found that DHC and Hotelco Curacao were both alter egos of and successors in interest to Hotelco C.A. Id. at 2.

         E. Pending Post-Trial Motions

         Now, DHC and Hotelco Curacao again seek judgment as a matter of law, repeating that neither can be found liable as either Hotelco C.A.'s alter ego or as successors in interest. Additionally, all three defendants insist that the jury's damage award is unreasonably high. Separately, the plaintiff, as the prevailing party, seeks prejudgment and post-judgment interest on the jury's award, as well as reimbursements for reasonable fees, costs, and expenses incurred while litigating this matter. Each of these motions is ready for review.


         A. Federal Rule of Civil Procedure 50(b)

         Federal Rule of Civil Procedure 50(a) authorizes a court, once a party has been fully heard on an issue, to enter judgment as a matter of law if “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.Civ.P. 50(a). If a Rule 50(a) motion is denied, the moving party may renew the motion within 28 days of the entry of judgment. Fed.R.Civ.P. 50(b). A defendant seeking relief from a jury verdict through Rule 50 must satisfy an exceedingly demanding standard. “Judgment as a matter of law is appropriate only if the evidence and all reasonable inferences that can be drawn therefrom are so one-sided that reasonable men and women could not have reached a verdict in plaintiff's favor.” Campbell v. District of Columbia, 894 F.3d 281, 286 (D.C. Cir. 2018) (citations omitted). “[A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150-51 (2000) (citations omitted).

         B. Federal Rule of Civil Procedure 59(a)

         After a jury trial, a court may, upon the motion of a party, grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). Other circuits have given meaning to this less than pellucid standard, ruling that a new trial is “warranted when a jury has reached a ‘seriously erroneous' result as evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.” E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir. 2015) (citations omitted); see also Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014) (“A new trial is appropriate if the jury's verdict is against the manifest weight of the evidence or if the trial was in some way unfair to the moving party.”).Whether to grant a motion for a new trial is “entrusted to the sound discretion of the trial court.” Grogan v. Gen. Maint. Serv. Co., 763 F.2d 444, 447 (D.C. Cir. 1985).


         Defendants DHC and Hotelco Curacao have moved for judgment as a matter of law, arguing that the trial evidence does not support the jury's verdict that each is an alter ego of, and successor in interest to, Hotelco C.A. Additionally, all three defendants urge that the jury's damages award is excessive and ask for remittitur or a new trial. Independently, the plaintiff, as the prevailing party, seeks prejudgment and post-judgment interest on the jury's damages award, as well as reimbursement for reasonable fees, costs, and expenses. The respective arguments are taken in turn.

         A. Trial Evidence Support Jury Verdict that DHC and Hotelco Curacao are Alter Egos of Hotelco C.A.

         As a default principle, “a corporation is regarded as an entity separate and distinct from its shareholders.” Estate of Raleigh v. Mitchell, 947 A.2d 464, 469 (D.C. 2008) (citations omitted). “Courts apply the ‘alter ego' theory to cast aside the corporate shield and fasten liability on the individual shareholder, ” however, “when substantial ownership of corporate stock is concentrated in one person or a few persons and other factors support disregarding the corporate entity in the interest of equity and fairness.” Id. at 470 (citations and internal quotation marks omitted). Thus, alter ego analysis looks beyond formalism to a transaction's economic substance. See Vuitch v. Furr, 482 A.2d 811, 816 n.8 (D.C. 1984) (“[T]he essential term is to be defined in the act of operation.” (quoting Berkey v. Third Ave. R.R., 155 N.E. 58, 61 (N.Y. 1926) (Cardozo, J.)). As Justice Cardozo explained, and as the D.C. Court of Appeals has endorsed, an entity may be held liable as another's alter ego “though agency in any proper sense is lacking, where the attempted separation between parent and subsidiary will work a fraud upon the law.” Berkey, 155 N.E. at 61; accord Vuitch, 482 A.2d at 816 n.8. “At such times, unity is ascribed to parts which, at least for many purposes, retain an independent life, for the reason that only thus can we overcome a perversion of the privilege to do business in a corporate form.” Berkey, 155 N.E. at 61; accord Vuitch, 482 A.2d at 816 n.8.

         A party may “pierce the corporate veil upon proof that there is (1) unity of ownership and interest, and (2) use of the corporate form to perpetrate fraud or wrong, or other considerations of justice and equity justify it.” Mitchell, 947 A.2d at 470 (citations internal quotation marks omitted). There is neither a “precise formula by which to predict when courts will pierce the corporate veil since each case is sui generis, ” nor “a uniform standard to determine whether the evidence has sufficiently demonstrated unity of interest and ownership.” Vuitch, 482 A.2d at 816 (citations omitted). “[T]he factor which predominates will vary in each case, . . . influenced by considerations of who should bear the risk of loss and what degree of legitimacy exists for those claiming the limited liability protection of a corporation.” Id.

         Before trial, the parties proposed jury instructions as to alter ego liability. The defendants objected generally to the plaintiff's proposal, arguing simply that the proposed instruction was not “tailored to the facts of this case.” Joint Pretrial Statement, App. 9, Pl.'s Proposed Jury Instrs. Defs.' Obj. at 20-21, ECF No. 71-13. At the charging conference, the defendants reiterated their objection to the proposed alter ego instruction, Day 5 AM at 87:2-93:12, 110:11- 115:2, and this time more specifically asked that this instruction include a reference to whether corporate formalities have been disregarded, consistent with Standard Instruction 406. Day 5 AM at 93:1-8; 114:14-18. The defendants' request was adopted, Day 5 PM at 2:23-3:2; Jury Instrs. at 5, ECF No. 119. The Court instructed the jury “[t]o decide whether the Defendants DHC and Hotelco Curacao are alter egos of Aerohotelco and Defendant Hotelco C.A., for purposes of liability under the Agreement, ” by considering “factors such as”: (1) “[w]hether corporate formalities have been disregarded;” (2) “whether corporate assets have been transferred from Aerohotelco or Hotelco, C.A. to Defendants DHC and/or Hotelco Curacao without payment of fair market value therefor;” (3) “whether Defendants DHC and/or Hotelco Curacao were started with inadequate capital;” (4) “whether Defendants DHC and/or Hotelco Curacao were used to protect Aerohotelco and/or Hotelco, C.A., from Plaintiff Bazarian International's claim;” (5) “the extent to which Defendants DHC and/or Hotelco Curacao have the same beneficial owners as Aerohotelco and/or Hotelco, C.A.;” and (6) “the extent to which Defendants DHC and/or Hotelco Curacao are controlled by the same dominating beneficial owner as Aerohotelco and/or Hotelco, C.A.” Jury Instrs. at 5.

         The defendants do not now contend that the instruction on alter ego liability improperly stated the law, and thus have waived that argument. See Defs.' Mot. JMOL at 11-16; Defs.' Reply Pl.'s Opp'n Defs.' Mot. JMOL (“Defs.' Reply JMOL”) at 8-12, ECF No. 150. Instead, the defendants contend that insufficient evidence supports imputing alter ego liability to DHC and Hotelco Curacao. Defs.' Mot. JMOL at 11. Contrary to the defendants' contention, sufficient evidence supports the jury's finding that DHC and Hotelco Curacao are “legally responsible for the damages suffered by Plaintiff as a ...

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