Fargo Partners v. Dain Corp.

• Citation: 540 F.2d 912
• Decision Date: 04 August 1976
• Docket Number: No. 76-1053,76-1053
• Parties: Fed. Sec. L. Rep. P 95,682 FARGO PARTNERS, a North Dakota Partnership, Appellant, v. DAIN CORP., Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 912

540 F.2d 912

Fed. Sec. L. Rep. P 95,682

FARGO PARTNERS, a North Dakota Partnership, Appellant, v. DAIN CORP., Appellee.

No. 76-1053.

United States Court of Appeals,

Eighth Circuit.

Submitted June 17, 1976.

Decided Aug. 4, 1976.

Stephen W. Plambeck, Fargo, N. D., for appellant; Frank Magill, Nilles, Hansen, Selbo, Magill & Davies, Ltd., Fargo, N. D., on briefs.

Lawrence C. Brown, Minneapolis, Minn., for appellee; Gregory R. Howard, Minneapolis, Minn., and E. T. Conmy, Jr., Conmy, Feste & Bossart, Ltd., Fargo, N. D., on briefs.

Before ROSS, STEPHENSON and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

This action was brought by Fargo Partners alleging fraud and deceit in violation of the Federal Securities Act of 1933 and the Federal Securities Exchange Act of 1934. Pendent claims under state law were also alleged. After a Fed.R.Civ.P. 12(d) preliminary hearing, the district court ¹ dismissed the complaint for want of jurisdiction, holding that the transaction did not involve a security as defined in the Acts, 15 U.S.C. §§ 77b(1), 78c(a)(10). Fargo Partners v. Dain Corp., 405 F.Supp. 739 (D.N.D.1975). We agree with this conclusion and affirm the judgment of dismissal.

Defendants below were Candletree, a Kansas partnership; its partners individually; Viking Investment Corporation; and Dain Corporation. Candletree's partners are also the officers of Viking Investment. All of the original defendants have been dismissed except Dain Corporation.

The transaction is described in the opinion of the district court:

Fargo Partners (hereinafter "Fargo") entered into an agreement with Candletree, whereby Fargo purchased an apartment development in Blue Springs, Missouri. Dain Corporation functioned in the role of broker. Specifically, Candletree conveyed by warranty deed and bill of sale the project to Fargo in return for a promissory note for $3,375,000.00, with interest. The note was secured by a trust deed and an assignment of rents, leases and profits. Pursuant to the agreement, Fargo has paid Candletree the sum of $265,650.00.

Viking Investment and the three individual partners of Candletree guaranteed Candletree's performance, and further agreed to indemnify Fargo and hold Fargo harmless from any costs, expenses or damages, including reasonable attorney fees caused by any default of Candletree.

As part of the transaction, Fargo signed a management agreement granting back to Candletree or its agents or representatives under its control, exclusive right to management of the property consisting of the apartment project with 248 dwelling units. This grantback, among other things, included Candletree's right to handle marketing for rent-up; to offer for rental not only the dwelling units but any other concessions, including preparation for initial rent-up; to set up tenant selection policy; to show the premises to prospective tenants; to process applications for rental; to prepare dwelling leases and execute same in its own name; to collect, deposit and disburse security deposits; to collect rent, charges and other accounts receivable to be deposited in an account in its own name; to secure full compliance by each tenant with the terms of the lease; to comply with local codes; to investigate service requests of tenants; to make arrangements for utilities; and from said funds collected and deposited, make disbursement for wages, taxes, assessments and payments on debt service on the financing with any remaining balance not required for working capital purposes to be paid monthly to Fargo.

Id. at 740-41. The management agreement could be cancelled by Fargo upon 30 days notice, and Candletree had the right to delegate its management responsibilities upon obtaining Fargo's consent. ²

The land beneath the apartment complex was leased by Candletree to Fargo for 75 years, with purchase options.

In deciding the jurisdictional question the district judge recognized that Fargo's allegations must be taken as true, and all doubts should be resolved in favor of a trial on the merits. Id. at 741, 743.

Fargo contends that its role was that of an investor who merely supplied capital, relying upon the managerial expertise of Candletree for a return. In its view the sale coupled with the management agreement constituted an investment contract: a security within the meaning of the federal statutes.

In SEC v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), the Supreme Court defined investment contract:

(A)n investment contract for purposes of the Securities Act ³ means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by the nominal interests in the physical assets employed in the enterprise.

Id. at 298-99, 66 S.Ct. at 1103. In that case the Howey Company had induced small investors to buy tracts of land planted in orange groves coupled with a service contract under which the company cultivated, harvested and marketed the crop. The service contract was for a ten year period without any option to cancel. The Court noted that the buyers had no right of entry to market the crop, and lacked the knowledge, skill and equipment necessary in the citrus fruit business. The only way these investors could hope for a return on their investments was by absolute reliance on the effort and abilities of the Howey organization. See also Tcherepnin v. Knight, 389 U.S. 332, 338-39, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967); SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 346-47, 64 S.Ct. 120, 88 L.Ed. 88 (1943).

We agree with the district court that the transaction here is not an investment contract under the Howey definition. We recognize that the statement in Howey that in an investment contract the investor relies solely on the efforts of the promoter...