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. e du/thir dc ir c uit_1996/69UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-7288

GOVERNMENT GUARANTEE FUND OF THE REPUBLIC OF FINLAND; SAASTOPANKKIEN KESKUS-OSAKE-PANKKI (SKOPB ANK); 35 ACRES ASSOCIATES; 12 ACRES ASSOCIATES; BEN EFORI OY

v.

HYATT CORPORATION,

Appellant

On Appeal from the District Court of the Virgin Islands

Division of St. Thomas and St. John (D.C. Civil Action No. 95-cv-00049)

Argued August 16, 1996

BEFORE: GREENBERG and ALITO, Circuit Judge s, and DEBEVOISE, District Judge

(Filed: September 12, 1996)

Edward G. Biester, III Michael M. Baylson (argued)

Cecelia L. Fanelli Duane, Morris & Hec kscher 4200 One Liberty Pl ace 1650 Market Street Philadelphia, PA 1 9103

Warren B. Cole Hunter, Colianni, C ole & Turner 1138 King Street Christiansted, St. Croix U.S. Virgin Islands 00820

Attorneys fo r Appellees

John A. Zebedee

Office of James L. Hymes,

III

P.O. Box 990 Charlotte Amalie, S aint ThomasU.S. Virgin Islands 00804

Mary A. McLaughlin

Michael F.R. Harris Dechert, Price & Rh oads

1717 Arch Street

4000 Bell Atlantic Tower Philadelphia, PA 1 9103

John A. Sopuch, III

Bickel & Brewer

35 West Wacker Driv e Suite 3650 Chicago, IL 60601

William A. Brewer, III James S. Renard (ar gued)

John D. van Loben S els

Michael L. Gaubert

Jamil N. Alibhai

Bickel & Brewer

1717 Main Street

Suite 4800 Dallas, TX 75201

Attorneys fo r Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION Hyatt Corporation is the manager of a reso rt hotel on St. John in the U.S. Virgin Islands. Hyatt's manag ement powers arise from agreements executed in March 1990 among Hyatt, Great Cruz Bay Development Co., Inc. ("Great Cruz"), the owner of the hotel, and Great Cruz's lender, Saastopankkien Kesk us-OsakePankki ("Skopbank"). After Skopbank foreclosed on the property in 1991, 35 Acres Associates purchased the hotel pu rsuant to a judicial sale. Immediately thereafter, 35 Acres pu rported to terminate Hyatt's management of the hotel, propelli ng the parties into this acrimonious litigation. The district cou rt, on crossmotions for summary judgment, entered an order gran ting 35 Acres' motion for partial summary judgment on April 10, 19 96, thus terminating Hyatt's presence at the hotel, and orde ring the parties to "work together to effect a smooth transi tion in the management and operation of the Hotel." The court certified its order as a final judgment pursuant to Fed. R. Civ. P. 54(b) on May 3, 1996. Hyatt now appeals from the district court' s grant of partial summary judgment to 35 Acres. The parties agree thatthis appeal focuses only on issues concerning 35 Ac res' power to

terminate Hyatt's agency and 35 Acres' right of pos session of the hotel and related property together with issues rel ating to the transition of the management of the hotel. The dis trict court had subject matter jurisdiction under either 28 U.S .C. § 1332(a)(2) (action between citizens of a state and citizens or subjects of a foreign state) or 28 U.S.C. § 1332(a) (3) (action

between citizens of different states in which citiz ens or subjects of a foreign state are additional parties) . The amount in controversy exceeds $50,000, exclusive of intere st and costs. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and exercise plenary review over the grant of parti al summary judgment and abuse of discretion review over the co urt's

transition order.

II. FACTUAL BACKGROUND AND PROCEDURAL HIS TORY A. Factual Background In view of the procedural posture of the c ase we present the facts in a light most favorable to Hyat t. From June 1988 through March 1990 Skopbank, a Finnish corpora tion, loaned Great Cruz and St. John Virgin Grand Villas Associa tes approximately $120 million for the construction and operation of the property which became known as the "Hyatt Regen cy St. John at the Virgin Grand Resort." In 1989 representatives of Great Cruz approached Hyatt to enlist its assistance in addres sing operational and financial problems of the resort. Great Cruz sought a professional, experienced, and financially able hotel company with a strong global brand identity and a p roven ability in the Caribbean to attract business, so that the r esort's value and profitability could be maximized. Specifically, Great Cruz proposed that the resort bear the "Hyatt" and "Hyatt Regency" registered trademar ks and trade names; that the resort join the "Hyatt" chain and p articipate in Hyatt's comprehensive and proprietary chain-wide pr ograms and services (including, without limitation, Hyatt's gl obal reservations system; worldwide marketing, public re lations, and advertising services; employee training programs; a nd home office and regional sales office convention, business, and promotion services); and that Hyatt manage the resort. Great Cruz particularly sought the use of the prestigious "Hya tt" name and Hyatt's commitment to use its expertise to ensure t he success of the resort. With the encouragement of Skopbank, Gr eat Cruz was looking for a company to maximize the economic pote ntial of the

resort. Hyatt was reticent to commit the "Hyatt" a nd "Hyatt Regency" names to the resort because of the resort' s historically poor performance, its financial structure, and the fact that the quality and consistency of service, facilities, and amenities provided by Great Cruz fell far below Hyatt's quali ty standards. Thus, Hyatt believed that there was substantial eco nomic and reputational risk in allowing the resort to be know n as a "Hyatt Regency." During the negotiations leading to the exe cution of the agreements, Hyatt informed Great Cruz that the "Hya tt" and "HyattRegency" trademarks, service marks, and trade names were worth

billions of dollars to Hyatt's owners and represent ed decades of time, effort, and financial risk. Hyatt's reputati on as a premier resort manager was nowhere higher than in t he Caribbean, where it had established itself as the predominant chain. Moreover, Hyatt informed Great Cruz that, even with Hyatt's special knowledge of resort-building and its establ ished relationships with customers and vendors, it would take three to five years from the opening of the resort under the Hyatt name to stabilize its operations and to begin to realize th e full potential of the location so that Hyatt could deriv e the level of financial benefits justifying its participation. H yatt informed Great Cruz that it only would consider establishing the resort as a "Hyatt Regency" if Great Cruz agreed to condition s that would ensure Hyatt both the power to control the resort's business and an adequate share in the resort's long-term profits that Hyatt believed its contributions could generate. Hyatt informed Great Cruz during these neg otiations that it would not permit the hotel to be known as a "Hyatt" or "Hyatt Regency" or agree to the inclusion of the re sort in its worldwide chain unless it also was given powers to protect its contributions to the resort. Hyatt decided that it was absolutely necessary for it to have the power to co ntrol the quality of the resort facility as well as the quali ty of services provided by the hotel by assuming managerial and op erational responsibilities for the resort. Hyatt, Great Cruz , and Skopbank therefore agreed to structure their contracts delib erately and carefully to accomplish those objectives to protect Hyatt. During the negotiations among Hyatt, Great Cruz, and Skopbank, Hyatt analyzed the resort's highly-levera ged financial

structure and other issues associated with the reso rt's financial situation. With such considerations in mind, Hyatt informed Great Cruz that it was willing to consider a financ ial structure whereby Hyatt invested time and effort and not seek a substantial portion of its normal management fees in exchange f or an interest in the enterprise affording it a return on its inve stment, to be taken in the form of a long-term profit participati on. Thus, Hyatt explains that, in order "to protect the inves tments and property it would contribute as part of its underta king to build the business of the Resort, [it] required an intere st in the profits of the `Hyatt Regency St. John.'" Br. at 1 5. Accordingly, Hyatt demanded and Great Cruz consente d to a formula under which Hyatt potentially would receive a signi ficant return on its investment. Although, in Hyatt's assessment , the formula contained a low front-end fixed management fee, it also included a substantial back-end share of profits that the pa rties specifically designed to reflect Hyatt's "capital i nvestment in the property," id., which included Hyatt's contribu tion of the difference between its typical market rate front-en d fees and the fees applicable in this case. Further, to protect its interests, Hyatt n egotiated for and obtained a 30-year term for the management agre ement between it and Great Cruz which the parties agreed could no t be terminated except in strict compliance with its exp resstermination provisions. Hyatt explains that, given its

substantial "capital investments" in the hotel and the time required to reap a return on its investments, it wa s not willing to assume the risk that Great Cruz (or a subsequent owner) could revoke and terminate the agreement for reasons, or on grounds,

other than those set forth in the contracts. Id. Hyatt informed Great Cruz that it deemed its participation in the enterprise as the clear equivalent of a cash equity investment, a nd Great Cruz assented to Hyatt's approach to, and view of, the t ransaction. In order to protect the proprietary nature of its management methods and to avoid confusion with resp ect to its trademarks and trade names, Hyatt also insisted on the power to restrict the owner's right to transfer the manageme nt agreement to successors or assigns. Thus, to secure the perf ormance of duties owed to Hyatt, section 15.2 of the managemen t agreement gave it the right and power to block the owner's as signment to any assignee "`engaged in the management or operati on . . . of a chain (that is, five [5] or more locations) of hote ls or resorts.'" Br. at 18. Further, Hyatt agreed to ad d the resort to its worldwide hotel chain and agreed to provide its comprehensive and proprietary chain services to the resort. Many of the services that Hyatt thus committed to contri bute involved confidential, proprietary, and trade secret informa tion. The parties eventually reached an understa nding and on March 9, 1990, Great Cruz, Skopbank, and Hyatt exec uted a series of agreements that allow Hyatt to manage and operat e the hotel. The documents included a management agreement signe d by Hyatt and Great Cruz giving Hyatt complete control over the o peration of the hotel for a term of 30 years, essentially limit ing the owner's right to terminate the agreement to poor pe rformance by Hyatt. (Management Agreement at §§ 2, 4.5; app. 18 09, 1836). In return for managing the hotel, Hyatt would receive a base fee of 1.5 percent of gross revenue, as well as an incenti ve fee structured on positive cash flow. Id. at 1829. A letter agreement signed by Great Cruz and Hyatt directed H yatt to pay Skopbank any sums due to Great Cruz under the manag ement agreement. Id. at 113. Hyatt sets forth in its brief that in orde r "to secure its property interests and investments in the busin ess it was to create as well as to secure the performance of cert ain duties owed to [it]," br. at 21-22, Great Cruz warranted a nd guaranteed Hyatt's continuous right to manage the resort for t he duration of the term of the management agreement. Specifically , Hyatt notes that section 7.5 of the agreement provides that "th is Agreement shall not be subject to forfeiture or termination e xcept in accordance with the provisions hereof," id. at 22; see app. at 1795, and that "Hyatt shall be entitled to operate the Hotel for the Term, and Owner shall, at no expense to Hyatt, undertake and prosecute all appropriate actions, judicial or othe rwise, required to assure such right of operation to Hyatt ." Br. at 22; see app. at 1860-61. In addition, a subordination, non-disturba nce, and attornment agreement set forth the rights of the pa rties should Skopbank foreclose its mortgage to Great Cruz. Thi s agreementincluded a warrant by Skopbank that the management agreement

would remain undisturbed by any foreclosure or defa ult and would continue in full force and effect as long as Hyatt was not in default. (Subordination Agreement at §§ 2, 3; app . at 548). In 1991, Skopbank filed a foreclosure acti on in the District Court of the Virgin Islands (Civ. No. 91-3 55) as a result of Great Cruz's default on the mortgages. I n 1992, during the pendency of the foreclosure suit, the Governmen t Guarantee Fund of the Republic of Finland ("GGF") obtained a controlling interest in Skopbank as part of the Finnish governm ent's bailout

of the bank. On February 21, 1995, the district court e ntered a consent judgment and put the hotel up for judicial sale. On March 20, 1995, 35 Acres Associates, a Virgin Islan ds general partnership consisting of two Finnish corporations, purchased the hotel. On March 21, 1995, counsel for 35 Acres wro te to Hyatt, stating that "GGF, Skopbank and 35 Acres Associates consider the Management Agreement between Hyatt Corporation ('Hy att') and Great Cruz Bay Development Company, Inc. as void, t erminated and/or expired." Br. at 23; app. at 1401-02. On J une 8, 1995, 35 Acres wrote again, advising Hyatt that it was in wrongful possession, and demanding that it surrender possess ion of the

hotel: The Hotel belongs to 35 Acres, not Hyatt. Hyatt is trespassing on the proper ty. 35 Acres again demands that Hyatt immediat ely surrender possession of the Hotel and all associated real and personal property and accounts and cooperate in an orderly trans fer

to 35 Acres. We will have a transition te am available on short notice. App. at 1407. Hyatt, however, did not surrender po ssession of

the hotel. B. Procedural History GGF and Skopbank filed suit against Hyatt (Civil No. 1995-49) on March 16, 1995, seeking a declaratory j udgment finding Hyatt in breach of the management agreement s and alleging various claims in tort and contract. GGF and Skopb ank, of course, sought, inter alia, a judgment declaring th e management agreement terminated and thus giving it possession of the hotel. On November 8, 1995, GGF and Skopbank filed an amen ded complaint adding additional entities as plaintiffs, including 35 Acres. On April 25, 1995, Hyatt sued 35 Acres (Civil No. 1995 -68), and thereafter filed two amended complaints. The secon d amended complaint, dated June 21, 1995, sought a judgment d eclaring the rights of the various parties under the management agreements, recovery for civil conspiracy, and punitive, compen satory, and consequential damages. On June 21, 1995, the distr ict court

consolidated the two cases for trial. At a hearing on November 17, 1995, the cou rt took under

advisement 35 Acres' motion to dismiss the second a mended complaint in the Hyatt suit (Civil No. 1995-68) and denied without prejudice Hyatt's motion to strike and dism iss the GGF parties' first amended complaint in the GGF suit (C ivil No.1995-49). See Government Guarantee Fund v. Hyatt C orp., 166

F.R.D. 321, 323 (D.V.I. 1996). Hyatt renewed its m otion to strike and dismiss on December 22, 1995. On January 8, 1996, the district court gra nted 35 Acres' motion to dismiss the second amended complai nt in the Hyatt suit. See Government Guarantee Fund v. Hyatt Corp., 1996 WL 165008, at *6 (D.V.I. Jan. 8, 1996). On January 3, 1996, 35 Acres moved for partial summary judgment against Hy att in the GGF suit, arguing that it was entitled to possession of the hotel as a matter of law. On January 23, 1996, Hyatt moved to amend the court's order of January 8, 1996, to permit the fil ing of a third amended complaint in its suit. On March 6, 1996, the district court held a hearing on the consolidated cases. Ruling from the bench, the court granted 35 Acres' motion for partial summary judgment, in e ffect granting it possession of the hotel. The court directed the parties to work together on transferring management of the hot el. App. at 2157. The court denied without prejudice Hyatt's m otion to dismiss the first amended complaint in the GGF suit (Civil No. 1995-49). In the Hyatt suit (Civil No. 1995-68) th e court denied Hyatt's motion to amend the court's order of Januar y 8, 1996, and its motion to be permitted to file a third amended complaint. The court issued a written order implementing its M arch 6, 1996 rulings on April 10, 1996. The order stated that " [b]oth parties shall work together to effect a smooth transition i n the management and operation of the Hotel," app. at 219 9, and allowed Hyatt 10 days from the entry of the order to answer the first amended complaint in the GGF suit (Civil No. 1995-4 9) and assert any defenses and compulsory counterclaims thereto. Id. at 2199- 2200. The court further ordered the Hyatt case (Ci vil No. 1995- 68) closed and that all other pleadings filed there after should contain only the caption of the GGF suit (Civil No. 1995-49).

Id. at 2200. The court issued an opinion and order on A pril 10, 1996, explaining its rulings from the bench on Marc h 6, 1996. See Government Guarantee Fund v. Hyatt Corp., 166 F .R.D. 321. In the opinion the district court noted first that "35 Acres seeks a determination that its agency relationship with Hya tt has been terminated as a matter of law, and Hyatt must leave the premises," id., at 326, and then concluded that: Applying the controlling law to the undisputed facts of this case establishes that the Management Agreement created a revocable agency that ended once 35 Acres gave notice of its termination. As terminated agent, Hyatt must leave the premises and surrender control of the Hote l to 35 Acres, its rightful owner. Id., at 327. Hyatt's challenge to this conclusion is at the heart of its appeal. On April 12, 1996, 35 Acres filed a motion for entry of an order seeking the transition of management provi ded for in the district court's grant of partial summary judgment. On May 3, 1996, the district court entered such an order and certified theorder of April 10, 1996, and the order of May 3, 19 96,

effectuating the order of April 10, 1996, as final judgments pursuant to Fed. R. Civ. P. 54(b). On May 6, 1996, Hyatt filed a notice of appeal from the district court's May 3, 1 996 Rule 54(b) order which included an appeal from the April 10, 1 996 order. Hyatt also filed an emergency motion in the distric t court to stay enforcement of the judgment without bond or, i n the alternative, for a hearing to set the amount of the supersedeas bond pursuant to Fed. R. Civ. P. 62. Following oral argument on May 9, 1996, th e district court denied Hyatt's emergency motion for a stay. See Government Guarantee Fund v. Hyatt Corp., 1996 WL 308865, at * 1 (D.V.I. May 15, 1996). The court thereafter entered a written order denying the motion and providing that Hyatt must comply wit h the order of May 3, 1996, by May 14, 1996. On May 13, 1996, Hyatt filed an emergency motion in this court to stay enforcement of the district cour t's judgment pending appeal. A single judge of this court grant ed the motion on a temporary basis until a panel could consider t he matter. On May 20, 1996, we granted Hyatt's motion to stay enf orcement of the judgment pending appeal and accelerated the par ties' briefing schedule. We also directed that following completi on of the briefing the case be listed before the earliest ava ilable panel. Finally, we remanded the case to the district court to fix the amount of the supersedeas bond pursuant to Fed. R. App. P. 8(a), while retaining jurisdiction over the appeal. On May 29, 1996, the district court held a hearing on the remand and required Hyatt to post two bonds, on e in the amount of $2 million (to be posted by June 4, 1996) , and the other in the amount of $11 million (to be posted by July 30, 1996), for a total bond obligation of $13 million. The district court also held that this court's stay "should not allow Hyatt to reopen the Hotel over the objections of 35 Acres As sociates." On June 3, 1996, Hyatt filed a motion in t his court to set aside or modify the district court's order sett ing the amount of the supersedeas bonds. On July 3, 1996, we gran ted Hyatt's motion, but only "to the extent" that we vacated "s o much of the order of May 31, 1996, which precluded Hyatt from r eopening the hotel over the objection of 35 Acres Associates." We denied the motion to modify the order with respect to the bond s. We understand that Hyatt has posted the bonds. We, ho wever, are uncertain as to whether the hotel is open. The parties agree that this appeal focuses only on 35 Acres' power to terminate the agency and its right to possession of the hotel and related property, as well as trans ition matters, irrespective of the ultimate result of the remainin g litigation. Thus, we do not consider whether 35 Acres wrongfull y terminated Hyatt's management rights. We now address the meri ts of Hyatt's appeal.

III. DISCUSSION

A. Burdens of Proof We dispose of Hyatt's first argument summa rily. Hyatt argues that 35 Acres had the burden of proving the revocabilityof Hyatt's agency as a matter of law in the distric t court, as

well as the burden of proving that Hyatt did not ha ve the right to occupy or possess the resort. Hyatt asserts tha t the only evidence 35 Acres offered with respect to these two issues consisted of the following four allegations: (1) 35 Acres is the owner of a hotel known as the Virgin Grand Hotel on the island of St

. John, U.S. Virgin Islands; (2) Hyatt Corporation purports to claim a right to a ct as the managing agent of 35 Acres pursuant to a Management Agreement dated March 9, 1990

, between Hyatt and Great Cruz Bay Developme nt Company, Inc.; (3) Skopbank, GGF, and 35 Acres sent a letter to Hyatt dated March 2 1, 1995, in which they stated that they `consider' the Management Agreement `as vo id, terminated and/or expired'; and (4) Hyatt refuses to vacate the premises. Br. at 28-29 (some internal quotations omitted). Hyatt argues that 35 Acres' motion for par tial summary judgment thus attempted to "off-load its burden of proof upon Hyatt." Br. at 29. Hyatt asserts that 35 Acres fa iled to meet its burden of proving as a matter of law the follow ing necessary elements of its claim for relief: (1) the revocabil ity of Hyatt's agency; (2) the valid termination of that agency; a nd (3) the absence of any right of Hyatt to manage or occupy t he resort. We decline to treat this case as involving merely the burdens placed upon parties seeking summary judgmen t, and therefore will address fully the merits of the appe al considering the facts presented on the motion for partial summa ry judgment in the district court. After all, the parties submitt ed extensive

materials in the district court and we see no reaso n why we should not consider the record as developed.

B. Prima Facie Case Hyatt's second argument, that 35 Acres fai led to establish a prima facie entitlement to relief, like wise lacks substance. Hyatt first notes that in ruling upon 3 5 Acres' motion for partial summary judgment, the district c ourt applied Virgin Islands law, which provides that the "rules of the common law, as expressed in the restatements of the law . . . shall be the rules of decision in the courts of the Virgin I slands . . . in the absence of local laws to the contrary." V.I . Code Ann. tit. 1, § 4 (1967). Thus, the district court held that, "The Restatement (Second) of Agency (1958) is the govern ing law in this area." Government Guarantee Fund v. Hyatt Cor p., 166 F.R.D.

at 327. Hyatt points out that the Restatement reco gnizes that there are two separate and distinct types of agenci es: The first type, often called `revocable' agencies, may be revoked by the principal at any time and for any reason. See Restatem ent (Second) of Agency, § 118 and Comment b. The second type, often called `irrevocable'agencies, agency powers `given as security ,'

or agencies `coupled with an interest,' ma y not be terminated at the whim of the principal, but may be terminated only `in accordance with the agreement by which the power was created.' See Restatement (Seco nd) of Agency, § 139 and Comment a. Br. at 31. Hyatt therefore argues that mere proof of the existence of a power in the form of an agency does not establish the absolute and unqualified right of the grantor t o terminate the power. Consequently mere evidence that there i s an agency neither establishes the revocability of that agency nor disproves its irrevocability. Id. Hyatt thus claims that th ere was a "fundamental flaw in 35 Acres' motion for partial s ummary judgment" in the district court. Id. at 32. Further, Hyatt asserts that 35 Acres did n ot negate conclusively the continued existence of a principal -agent relationship with Hyatt. Hyatt argues that a claim that an agency is irrevocable or is coupled with an interes t is not an affirmative defense in an action to terminate an ag ency. Thus,

it contends that 35 Acres did not fulfill its burde n on its motion for summary judgment seeking to terminate th e agency merely by proving the existence of the agency. Hya tt asserts that 35 Acres was required to demonstrate that Hyat t's agency was revocable, and thereby preclude the possibility tha t Hyatt's agency was irrevocable. Along the same lines, Hyatt argues that 35 Acres failed

to demonstrate as a matter of law that it terminate d Hyatt's agency, as Hyatt claims that the letter of March 21 , 1995 "does not clearly purport to constitute an act of revocat ion or termination, but suggests that the termination had already occurred and that the letter was merely memorializi ng that alleged historic fact." Br. at 33. Hyatt claims t hat the proof of 35 Acres' alleged termination of Hyatt's agency is, at best, ambiguous and inconclusive, and that courts frequen tly hold that the intent and effect of purported termination noti ces raise genuine issues of material fact precluding summary judgment. Finally, Hyatt attacks the prima facie case present ed by 35 Acres as devoid of conclusive proof of a present right in 35 Acres to exclusive possession of the resort. We find this line of argument meritless, a nd are

satisfied that 35 Acres met its burden in its motio n for partial summary judgment of presenting a prima facie case t hat it was entitled to possession of the hotel as a matter of law. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 57 4, 585, n.10, 106 S.Ct. 1348, 1355, n.10 (1986). On t he motion 35 Acres presented the management agreement which on i ts face merely created an agency. We see no reason for 35 Acres t o have proven at that point in the litigation that the agency its elf was not irrevocable. As to Hyatt's claim that the March 21 , 1995 letter "[did] not clearly purport to constitute an act of revocation or termination," the district court noted in its Janua ry 8, 1996

memorandum that: Hyatt concedes that 35 Acres sent it lette rsthat 35 Acres 'considered Hyatt's manageme nt

agreement "void, terminated and/or expired "' and demanding Hyatt `immediately surrender possession' of the Hotel. (Second Amended Complaint at 2.) Indisputably, such lette rs manifested 35 Acres' dissent to the continuance of the agency relationship wit h Hyatt -- all that is required for an agenc y to be terminated under the Restatement. Restatement (Second) of Agency, § 118. Government Guarantee Fund v. Hyatt Corp., 1996 WL 1 65008 at *3. Surely, Hyatt cannot argue reasonably that it did n ot realize the March 21, 1995 letter constituted notice of termina tion, when it has referred to the letter as such in its own plead ings. Furthermore, on June 9, 1995, Hyatt filed an amende d complaint referring to 35 Acres' June 8, 1995 letter to Hyatt that we quoted in part above which set forth continued writ ten demands that Hyatt quit the property, provide an accounting , and cease acting as agent for 35 Acres because its agency had been terminated. App. at 1170, 1180, 1034. In addition , on June 21, 1995, Hyatt filed a Second Amended Complaint that r eferenced a June 19, 1996 letter (app. at 1186, 1195) demanding that Hyatt cease acting as agent for 35 Acres. App. at 1043. Finally, Hyatt's argument that the prima f acie case presented by 35 Acres was devoid of conclusive proo f of 35 Acres' present right to exclusive possession of the resort is also meritless. Hyatt has admitted that 35 Acres owns t he hotel. App. at 390. This argument deserves no further comment. We proceed now to Hyatt's more substantial arguments. C. The Agency Relationship Hyatt's main argument is that the district court erred in granting judgment in favor of 35 Acres because H yatt raised genuine issues of material fact precluding summary judgment. First we will discuss the law applicable to the ter mination of agency agreements, and then we will consider Hyatt' s specific

arguments. 1. The Applicable Law As the district court correctly noted, age ncy principles as expressed in the Restatements govern this case. Section 118 of the Restatement (Second) of Agency ( 1958) states that an agent's "[a]uthority terminates if the prin cipal or the agent manifests to the other dissent to its continu ance." Comment (b) explains: The principal has power to revoke . . . although doing so is in violation of a contract between the parties and although the authority is expressed to be irrevocable. A statement in a contract that the authority cannot be terminated by either party is effective only to create liability for its wrongful termination. The only exception to the rule that princi pals may terminate an agency relationship at any time is whe n the authority granted to the agent is a "power given as security."Id. §§ 138, 139. Section 138 of the Restatement st ates:

A power given as security is a power to affect the legal relations of another, created in the form of an agency authority

, but held for the benefit of the power hold er or a third person and given to secure the performance of a duty or to protect a titl e, either legal or equitable, such power bein g given when the duty or title is created or given for consideration. Comment (b) to section 138 of the Restatem ent explains that "[a] power given as security is one held for t he benefit of a person other than the power giver [i.e. principal ]." A principal can terminate an agency power given as se curity "only in accordance with the agreement by which the power was created." Id. § 139 cmt. a. On the other hand, the power giv er can revoke the power if it was created only for the benefit of the power giver, i.e., when there is a simple agency relation ship. If the agent has an interest in the exercise of the power only because of the compensation to which it is entitled upon it s exercise, then the power is not given as security and is revo cable. A principal may grant an irrevocable agenc y power for the purpose either of furnishing a security to prot ect a debt or other duty, or facilitating the performance, effect uating the objects, or securing the benefits of a contract. S ee id. § 138 cmt. c. For example, a power given as security ari ses when a person manifests consent that the one to whom it is given properly can act to protect a title already in the power holder. Id. cmt. a. Moreover, if an agent has an interest in the subject matter of the agency, as where it engages in a join t enterprise or invests in a business in which another supplies the subject matter, a power given it by the other to protect su ch interest is a power given as a security. See id. cmt. b.; see also Bowling v. National Convoy & Trucking Co., 135 So. 541, 543 -44 (Fla. 1931); Haft v. Haft, 671 A.2d 413, 422-23 (Del. Ch. 1995). In any of these circumstances, a power given as a secu rity cannot be terminated at the whim of the power giver. See Res tatement (Second) of Agency § 14H cmt. a. The Restatement provides illustrations of a power given to protect the property interest of the power holde r (i.e., the agent) in the subject matter of the agency, as well as a power given to secure a duty or obligation owed to the ag ent. While the illustrations focus on the protected interest a s held by the agent or power holder, it is clear that the agency is also irrevocable if made for the benefit of a third pers on, although the agency can be terminated with the consent of th e third-party beneficiary. Moreover, agency powers granted both for the benefit of the principal and the agent are irrevoca ble. SeeRestatement (Second) of Agency § 138 cmt. d ("A person authoriz ed to act as agent may also hold a power for his own b enefit."). An indispensable feature of a power given as security is that the agent have a proprietary interest in th e res or subject matter of the agency independent of the age ncy relationship itself. As the district court noted, ProfessorWilliston's comments on this subject are instructiv e:

In order that a power may be irrevoca ble because it is coupled with an interest, it is necessary that the interest be in the subj ect matter of the power and not in the proceed s which will arise from the exercise of the

power . . . .

. . . [T]he person clothed with the author ity must derive a present or future interest i n the subject itself on which the power is t o be exercised . . . . In short, the test is :

Does the agent have an interest or estate in the subject matter of the agency independent of the power conferred, or doe s the interest or estate accrue by or after the exercise of the power conferred?

If the former, it is an agency couple d with an interest . . . if the latter, it i s

not. Government Guarantee Fund v. Hyatt Corp., 166 F.R.D . at 327-28, (quoting 2 Samuel Williston, A Treatise on the Law of Contracts § 280, at 300-02 (3d ed. 1959)). Thus, in the words of the district court, "the agency relationship itself doe s not create the interest; the agency merely serves to protect t he separately granted or created interest when the two are couple d." Id. at

328. 2. The District Court's Disposition In its memorandum of January 8, 1996, gran ting 35 Acres' motion to dismiss Hyatt's complaint in Civil No. 1995-68, the district court indicated that, "[f]or Hyatt to claim that its agency authority is . . . a power given as security , it must have alleged that the agreements were entered into for [ its] benefit . . . either to protect a property interest of Hyatt' s in the hotel or to secure the performance of some duty or obliga tion owed to Hyatt." Government Guarantee Fund v. Hyatt Corp., 1996 WL 165008, at *3. Because Hyatt failed to allege such an interest, the district court dismissed count one of Hyatt's s econd amended complaint at that time. Id. The court thereafter held that any agency under the management agreement was revocable and had been

terminated. Id. In its January 8, 1996 memorandum the dist rict court first noted that Hyatt's own pleadings established that 35 Acres had terminated the agency: Hyatt concedes that 35 Acres sent it lette rs that 35 Acres 'considered Hyatt's manageme nt agreement "void, terminated and/or expired "' and demanding Hyatt `immediately surrender possession' of the Hotel. (Second Amended Complaint at 2.) Indisputably, such lette rs manifested 35 Acres' dissent to the continuance of the agency relationship wit hHyatt -- all that is required for an agenc y

to be terminated under the Restatement. Restatement (Second) of Agency, § 118. Id.. The court held that Hyatt could not continue to manage the

hotel: Thus, assuming all the facts alleged in th e complaint are true, the relationship betwe en Hyatt and 35 Acres is a simple agency; and Hyatt has not demonstrated any legal basis for a declaration that the agency has not been terminated or that Hyatt may continue as manager of the hotel.

Id..

The district court noted that it had consi dered Hyatt's contentions that the management agreement created a n irrevocable agency coupled with an interest: "Hyatt wants to a rgue that the management agreements constitute an agency coupled with an interest which cannot be summarily revoked." Id. The court held, however, that Hyatt failed to present any bas is for such a

conclusion: In its second amended complaint, Hyatt has alleged no property interest in the hotel; nor has Hyatt alleged that the authority w as granted to secure the performance of any d uty owed to it. Hyatt's only asserted interes t is in the compensation due it as manager o f the hotel, the benefit to its reputation, and an enhanced presence in the Caribbean. Su ch interests are ordinary incidents of an age ncy relationship and standing alone do not support an inference that the agreements w ere entered into for the benefit of Hyatt as opposed to the benefit of the owner. In s um, Hyatt simply does not allege any interest in the hotel aside from its interest in reapi ng the benefits from acting as 35 Acres' agen t.

Id. Moreover, the district court noted that th e management agreement did not even recite that it created an ag ency coupled

with an interest. Id. at *3 n.7. The court conclu ded that: "Whether or not Hyatt breached the agreements does not change the reality that under the facts alleged by Hyatt, the agency relationship has terminated and Hyatt cannot contin ue acting as manager of the Hotel." Id. at *4. Later, at the hearing on March 6, 1996, th e district court addressed 35 Acres' motion for partial summar y judgment, the grant of which led to this appeal. At the conc lusion of that hearing the court stated as follows: I do not see any basis for changing the Court's previous ruling. I haven't heard anything and I don't, haven't seen anythin g in Hyatt's proposed amended complaint that when it's read together with the managemen t agreement and the other facts that areundisputed in this case -- and those are

basically as 35 Acres has stated, that the y own the property, that Hyatt has no title ownership, no right of possession as a res ult of any ownership. It is an agent of 35 Ac res only. The management agreement was the on ly instrument which gives them the right to b e there and I don't see any reason to go outside the four corners of the management agreement. It's whatever the negotiations

, whatever the intentions were, whatever the desires were, whoever came up first to me is not, does not help to explain anything in the management agreement.

. . . .

So, I will, say, reduce that to a written order as soon as possible. I would sugges t that counsel get together and you work out whatever is necessary to be able to have Hyatt leave the premises in terms of any items that Mr. Cole mentioned, so that ord er won't be imposed on Hyatt; it will simply be an agreed-upon to the extent they can agre e upon it and maybe if you can get together with Judge Barnard. And if you can't reso lve it, I'll resolve it.

. . . And it should be done within good -- from Hyatt. If you don't want to do that, then you will have to do it the hard way. But I certainly think it would be in your interest to do it cooperatively. So, that is the Court's ruling. App. at 2155-57. In its April 10, 1996 opinion the district court issued a written confirmation of its March 6, 1996 rulings . The court

referenced decisions that have held as a matter of law that chain hotel management contracts create a typical revocab le agency, not an irrevocable agency coupled with an interest. Go vernment Guarantee Fund v. Hyatt Corp., 166 F.R.D. at 329-30 (citing Pacific Landmark Hotel, Ltd. v. Marriott Hotels, In c., 23 Cal. Rptr. 2d 555 (Cal. Ct. App. 1993); Woolley v. Embas sy Suites, Inc., 278 Cal. Rptr. 719 (Cal. Ct. App. 1991)). Fu rther, the court addressed Hyatt's argument that the managemen t agreement created some sort of "joint enterprise" between its elf and the prior owner of the hotel: Hyatt's claim of some sort of joint ventureship or enterprise is foreclosed by the unambiguous language of that document. Section 3.8 of the Management Agreement provides:Nothing in this Agreement contained

shall constitute, or be construed to create, a partnership, joint

venture or lease between Owner and Hyatt with respect to the Hotel.

166 F.R.D. at 328. The court noted that the management agreem ent could not be construed as creating a new business entity beca use, even if Hyatt's management fee was construed as a share of the profits, Hyatt never undertook to share in the losses of any such enterprise: "In fact, the Management Agreement was structured so that Hyatt would receive a management fee even when the Hotel

suffered a loss." Id. The court also considered Hyatt's argument that the management agreement created a power given as secur ity to protect its intellectual property, which was to be used by Hyatt in carrying out its duties on behalf of the owner. Th e court held that Hyatt's contentions regarding protecting its r eputation and its trade name did not warrant a result any differe nt from that in prior cases concerning chain hotel management co ntracts that created revocable agencies. Id. at 329 & n.21 (cit ing Pacific Landmark Hotel, 23 Cal. Rptr. 2d 555; Woolley v. Em bassy Suites, 278 Cal. Rptr. 719). Thus, the court held that: The plain language of the Management Agreement shows, and the undisputed facts of this case definitively establish, that the agency was created for the benefit of the owner, not Hyatt, and that Hyatt's sole interest in the Management Agreement is it s right to compensation. As such, the Management Agreement was a personal servic es contract which cannot be specifically
enforced. Restatement of the Law (Second) Contracts, § 367(1) (1981).

166 F.R.D. at 329. In explaining why it would be inappropriat e to order specific performance of the management agreement, t he district court found the rationale stated in Woolley v. Emba ssy Suitesconvincing: There are a variety of reasons why courts are loathe to order specific performance of personal services contracts

. Such an order would impose upon the court the prodigious if not impossible task of passi ng judgment on the quality of performance. I t would also run contrary to the Thirteenth Amendment's prohibition against involuntar y servitude. Courts wish to avoid the frict ion

and social costs which result when the parties are reunited in a relationship tha t has already failed, especially where the

services involve mutual confidence and the exercise of discretionary authority. Finally, it is impractical to require judicial oversight of a contract which cal lsfor special knowledge, skill, or ability.

Id. at 329-30 (quoting Woolley v. Embassy Suites, 2 78 Cal. Rptr. at 727). 3. Hyatt's Arguments on Appeal For the most part, Hyatt's arguments on ap peal are the

same as those it made in the district court. As we agree both with that court's decision and its reasoning, we on ly need discuss the specifics of arguments not addressed by the district

court. Hyatt argues that it presented competent e vidence to

the district court that demonstrated the irrevocabi lity of its agency agreement with Great Cruz. Specifically, Hy att asserts that its agency "exceeds the mere management of phy sical property and extends to the operation of a comprehensive and complex business" that is reflected in the scope of its rig hts under the management agreement. Br. at 36. Thus, the subjec t matter of Hyatt's agency is "not limited to the real and pers onal property of the Resort, but includes the operation of the bu siness of the

Resort." Id. at 37. Hyatt relies on decisions of courts that h ave held that an irrevocable agency is created where "an agent ma kes a substantial contribution to or capital investment i n a business enterprise while assuming significant managerial re sponsibilities over that business." Br. at 38 (citing Bowling v. National Convoy & Trucking Co., 135 So. at 543; Haft v. Haft , 671 A.2d at 423); Montgomery v. Foreman, 410 So.2d 1160, 1167-6 8 (La. Ct. App. 1982); MacDonald v. Rosenfeld, 188 P.2d 519, 5 21, 528 (Cal. Ct. App. 1948); Jones v. Williams, 39 S.W. 486, 493 -94 (Mo. 1897)). Hyatt claims that it submitted overwhelmin g evidence in the district court of its agreement with Great Cruz to use the real property and improvements thereon to create a new business enterprise, the "Hyatt Regency St. John." Hyatt cl aims that it was the catalyst in establishing that business, and that: Its capital contributions and investments to the business included lending the use of i ts registered trademarks and service marks; providing proprietary and confidential information, programs, and systems with respect to sales, marketing, and operation s; and making the resort an integral member o f the `Hyatt' worldwide chain of hotels and

resorts. Br. at 38. Hyatt also claims that "to protect and secure its economic interests in the new business, Hyatt assum ed control of the management of that business as well as the day- to-day operations, and thereby was invested with certain p owers of agency." Id. at 39. According to Hyatt, those pow ers were granted for its benefit and, thus, are irrevocable. Like the district court, we decline to acc ept Hyatt's theory that it has "proven the creation of a resort business and

its contributions to and investments in that busine ss, its profits interests therein, and its insistence upon and receipt of managerial powers to protect those contributions, i nvestments, and interests," br. at 38 n.9, in the face of the c lear languagein the management agreement that:

Nothing in this Agreement contained shall constitute, or be construed to be or to create, a partnership, joint venture or le ase between Owner and Hyatt with respect to th e Hotel. Management agreement, § 3.8; app. at 1828. Moreove r, none of the cases Hyatt cites to support its argument are align ed factually with this case. See, e.g., MacDonald v. Rosenfeld, 188 P.2d at 528 ("The evidence supports the view that defendant was granted `a power coupled with an interest' in that he was g iven the management of the business as security for the loan s he had made."); Jones v. Williams, 39 S.W. at 493 ("Under the contract, plaintiff purchased 1,667 shares of stock in the co rporation, for which he paid $80,000; and, in consideration thereo f, he was to have the `control and management' of the Post Dispa tch for five years, at an annual salary of $10,000."); Bowling v . National Convoy & Trucking Co., 135 So. at 543 (affirming ho lding that agency was coupled with interest in business founde d by agent); Montgomery v. Foreman, 410 So.2d at 1167 ("Thus it was contemplated that [the agent] would recoup the moni es he spent in improving the property[.]"); Haft v. Haft, 671 A.2d at 423 (irrevocable stock voting proxy given as security f or note and other interests retained in corporation as well as security for payment of purchase price of transfer of stock at i ssue). Thus, we reject as a matter of law Hyatt's argument that it possessed an irrevocable agency due to its part in the creati on of a new business enterprise. Hyatt has raised no genuine i ssue of

material fact that alters our conclusion. Hyatt next argues that its contribution of its trademarks and trade names, chain services, and man agement expertise was and is "an integral and valuable part of the business known as the `Hyatt Regency St. John.'" B r. at 41. Hyatt claims that the combination of those contribu tions created and continue to add value to the goodwill of the bu siness, and that the goodwill in turn is a major factor in the ability and capacity of the hotel to generate profits. Hyatt c laims that to secure and protect those investments, it negotiated and acquired rights to manage the business. Therefore, Hyatt as serts that the relationship created by the agreements among the pa rties was an irrevocable agency which 35 Acres could not termina te except in accordance with the express termination provisions set forth in the parties' agreements. As a matter of law, we agree with the dist rict court that Hyatt's contribution of its trademarks and tra de names, chain services, and management expertise to the hot el was merely a normal incident of an agency relationship, and di d not create an irrevocable agency. Again, Hyatt has raised no genuine issue

of material fact to alter our conclusion. Hyatt next attempts to distinguish the two decisions of the California Court of Appeals on which the distri ct court relied in ruling that Hyatt's agency is revocable. First, Hyatt explains that, in Woolley v. Embassy Suites, "Embas sy Suites had a license agreement which was separate from and ind ependent ofits management agreement and, therefore, it could n ot

successfully argue that the managerial powers were given to it in order to protect and secure its intellectual proper ty, which was the subject of the separate license agreement." Br . at 42. SeeWoolley, 278 Cal. Rptr. at 726 ("Embassy says that this agen cy is

different because the hotels are franchised with th e Embassy name

and that it therefore has its own interest in their success. But the franchise agreements are severable and independ ent from the management contracts[.]"). Next, Hyatt attempts to distinguish Pacifi c Landmark Hotel by stating that in that case an irrevocable a gency would have existed had there been a legal identity betwee n the Marriott entity that managed the hotel and the Marriott enti ty that held

an interest in the hotel business. Since that was not the case, Hyatt states that the legal separateness between th e two was the

sole factor in the court's refusal to find an irrev ocable agency. Br. at 42; see Pacific Landmark Hotel, 23 Cal. Rptr . 2d at 563 ("[T]he trial court was disregarding the separate c orporate

entities . . . when it found MHI had an interest in the subject of the agency. . . . [T]he trial court erred in fai ling to treat MHI as separate from its parent corporation Marriot t."). Hyatt argues that the facts in this case a re materially different from those in Woolley v. Embassy Suites a nd in Pacific Landmark Hotel. Hyatt asserts that it permitted it s intellectual property (including its registered trademarks and t rade names) to be used in connection with the hotel only because i t insisted upon and received agency powers to manage the resor t. Moreover, the entity that owns the "Hyatt" and "Hyatt Regency " trademarks

and trade names and that holds an interest in the r esort business known as the "Hyatt Regency St. John" is the same e ntity that obtained for its benefit the right to manage the re sort -- namely, Hyatt Corporation. Hyatt thus claims that the two California cases are distinguishable. We do not agree with Hyatt's reading of th e two California cases. While it is true that the specif ic facts of the cases differ from the case before us, their leg al holdings

are instructive here. In Pacific Landmark Hotel ev en though a Marriott affiliate had invested loans of $15 millio n and $8 million in capital contributions, pursuant to which the affiliate received a five percent ownership interest in the l imited partnerships that owned the real estate and 95-99% of the tax benefits of those partnerships, the court held as a matter of law that the management agreements did not create an ag ency with an interest in favor of Marriott Hotels, Inc., which w as the manager. 23 Cal. Rptr. 2d at 557, 560-63. Moreover, even though Marriott's managemen t contracts provided for Marriott Hotels, Inc. to receive 30% o f available cash flow for 60 years as part of its management fe e and presumably Marriott, like Hyatt, contracted to use its trade name and trademarks in providing its management services , the court held as a matter of law that the relationship was n ot an irrevocable agency. 23 Cal. Rptr. 2d at 557, 562-6 3. Given provisions that unambiguously provided that the agr eements were between principal and agent and did not create a le ase,partnership or joint venture, as a matter of law th e agency could

be terminated. Id. at 560-63. The court held that the absence of a specific present property interest was disposi tive. In addition, the dispute in Woolley v. Emb assy Suitesinvolved termination of Embassy Suites' management of nine h otels that were under management contract, not terminatio n of a franchise or license agreement. 278 Cal. Rptr. at 721 & n.1. Like Hyatt, Embassy Suites argued that the court sh ould ignore the express contractual provisions negating any par tnership or joint venture, but the court found those provisions dispositive. Id. at 724-26. Embassy Suites, like Hyatt, argued that the use of its trade name turned the management agreements into an agency with an interest, and the court rejected those cont entions for the lack of any specific present property interest. Id. at 726. The district court accurately analyzed the effect o f the case: Like Hyatt, the defendant in Woolley v. Embassy Suites, Inc., 278 Cal. Rptr. 719 (Cal. App. 1991), argued that its interest in the success and prestige of its trade name

was sufficient to create an irrevocable agency. The Court squarely rejected that claim, noting that `the "interest" Embassy has in seeing the hotels succeed so as to enhance its reputation and prestige is not the type of . . . interest necessary to constitute an agency coupled with an interest.' Id. at 726. Hyatt attempts to distinguish Woolley by pointing to the fac t that the use of the Embassy Suites trade n ame in that case was secured by a separate franchise agreement. In our view, this fa ct militates against the presence of an irrevocable agency here. If the use of Hyatt's intellectual property were protect ed by a franchise agreement then the Owner potentially could use Hyatt's trademarks a nd trade names even after the agency ended. Arguably, a separate clause linking the franchise agreement to the agency relationship might be needed to protect th e agent's interest. Here, termination of th e Management Agreement cancels the owner's right to use Hyatt's intellectual property

. Government Guarantee Fund v. Hyatt Corp., 166 F.R.D . at 329 n.21. In short, we agree with the district court that the two

California cases are instructive in this case and t hat, as a matter of law, Hyatt's interest in protecting its t rademarks and service specialties is not sufficient to form an ir revocable agency. Hyatt has raised no genuine issue of mater ial fact to

alter our decision. Hyatt next claims that it has raised genui ne issues of disputed fact with regard to the "effectiveness of 35 Acres' purported termination letter of March 21, 1995." B r. at 43. As we already have indicated the district court noted that:Hyatt concedes that 35 Acres sent it lette rs

that 35 Acres `considered Hyatt's manageme nt agreement "void, terminated and/or expired "' and demanding Hyatt `immediately surrender possession' of the Hotel. (Second Amended Complaint at 2.) Indisputably, such lette rs manifested 35 Acres' dissent to the continuance of the agency relationship wit h Hyatt -- all that is required for an agenc y to be terminated under the Restatement. Restatement (Second) of Agency, § 118. Government Guarantee Fund v. Hyatt Corp., 1996 WL 1 65008, at *3. We find here no genuine issue of material fact to a lter our

decision. Hyatt finally claims that 35 Acres materia lly breached and wrongfully repudiated the management agreement by purporting to terminate Hyatt. "The only proof in the summary judgment record showed that Hyatt complied fully with its ob ligations." Br. at 45. Hyatt claims that it therefore has subm itted competent evidence supporting affirmative defenses. In light of our decision that Hyatt's agency was revocable, we find this argument meritless. One final issue with respect to terminatio n of Hyatt's management agreement deserves our attention. It is true that a subordination, non-disturbance, and attornment agre ement set forth the rights of the parties should Skopbank for eclose its mortgage from Great Cruz, including a warrant by Sk opbank that the management agreement would remain undisturbed b y any foreclosure or default and would continue in full f orce and effect as long as Hyatt was not in default. (Subo rdination Agreement at §§ 2, 3; app. at 548). Hyatt's seekin g of this subordination agreement indicates impressive foresi ght on its part; indeed, the subordination agreement even coul d be construed to indicate intent among the parties that the manag ement agreement itself be irrevocable. However, as noted by the district court, " management agreements between the owner of a hotel and a manag ing corporation do not create an agency coupled with an interest, even if the agreements state that they do." Govern ment Guarantee Fund v. Hyatt Corp., 1996 WL 165008 at *3 n.7 (citi ng Woolley v. Embassy Suites, 278 Cal. Rptr. 719; Pacific Landmar k Hotel, 23 Cal. Rptr. 2d 555. Surely, if agreements that by t heir terms are irrevocable, thus manifesting the parties' intent t hat they be so, are not necessarily irrevocable, intent manifes ted by the separate creation of a subordination agreement does not create a power coupled with an interest. Thus, while the su bordination agreement may be very significant in a determinatio n of whether 35 Acres wrongfully terminated Hyatt's management a greement, it

does not affect our result here. Whether or not an agency agreement is revocable is a matter of law. See Pac ific Landmark Hotel, 23 Cal. Rptr. 2d at 561 ("[E]ven if the part ies intended to create an irrevocable agency, one coupled with a n interest, unless they do so and such an interest does in fact exist, the statutory power to revoke may be exercised. If the exercise ofthe statutory revocation power is contractually unj ustified,

damages may be in order."); Woolley v. Embassy Suit es, 278 Cal. Rptr. at 725 ("Even if the contract did attempt to restrict the power of the owner to terminate the manager, such p rovision would be ineffective. The principal's power of revocatio n is absolute and applies even if doing so is a violation of the contract or the agency is characterized as `irrevocable.'") (ci ting Restatement (Second) of Agency § 118 cmt. b). Accordingly, we will affirm the district c ourt's grant of 35 Acres' motion for partial summary judgment, s ince Hyatt has raised no genuine issue of material fact and 35 Acr es is entitled to judgment as a matter of law on the issue of the management agreement's revocability. D. Remedies Granted by the District Co urt Hyatt's next argument is that the district court erred in granting 35 Acres relief and imposing obligation s on Hyatt that neither were requested by 35 Acres nor support ed in the summary judgment record. We review issues regardin g the relief fashioned by the district court for abuse of discre tion only. See United States v. Triple A Mach. Shop, Inc., 857 F.2d 579, 583 (9th Cir. 1988) (affirming district court's grant o f partial summary judgment and permanent injunction enjoining former lessees from remaining on property); see generally McLendon v. Continental Can Co., 908 F.2d 1171, 1177 (3d Cir. 1 990). Hyatt notes that paragraph 3 of the distri ct court's order of May 3, 1996, requires it, among other thin gs, to turn over to 35 Acres: keys, alarm access codes, key car ds, other means of access and egress thereto, books, records, correspondence, documents, computer and electronica lly-maintained records, reservations information, furniture, fixtu res, equipment, vehicles, documents of title and receipt s, cash, coupons, instruments for the payment of money, cert ificates of deposit, accounts receivable, contract rights, inta ngible personal property, and all other personal property relating to the operation of the resort. Br. at 45. Hyatt arg ues that 35 Acres did not satisfy the burden imposed upon parti es seeking mandatory injunctive relief, and that this portion of the district court's judgment should be reversed. Further, Hyatt notes that in paragraph 5 o f the May 3, 1996 order, the district court ordered that: Pursuant to Fed. R. Civ. P. 70, 35 Acres

Associates shall be entitled to All Writs which may be necessary to effectuate the foregoing, whether by Ejectment, Abatement

, Assistance, Sequestration, Execution, Garnishment, or otherwise, and the Clerk shall issue the same, as necessary, withou t

further order of this Court. Hyatt argues that Rule 70 does not authorize the pl ethora of extraordinary personal property remedies that the d istrict court granted to 35 Acres, and that we therefore should r everse this portion of the judgment. Finally, Hyatt notes that paragraph 3(h) o f the May 3, 1996 order provides that "Hyatt Corporation may not remove anypersonal property from the Hotel Property other tha n items of

personal property belonging to individual employees of Hyatt Corporation." Br. at 46 (citing app. at 2340). No ting that, in paragraph 4, the district court did permit Hyatt to segregate, seal, and/or designate its privileged documents, pr oprietary commercial materials, and personal property located on the resort premises, but effectively prohibited Hyatt from rem oving its property except "in accordance with further Order o f this Court," app. at 2341-42, Hyatt argues that nothing in the s ummary judgment record justifies a court order interfering with or depriving Hyatt of its rights of use, enjoyment, an d possession of its own property. Hyatt therefore argues that t his portion of the district court's judgment should be reversed. After a thorough review of the record, we see nothing in the relief fashioned by the district court that we could term an abuse of that court's discretion. Obviously the termination of Hyatt's presence in the hotel raised fairly comp lex practical problems, and we will not fault the district court for effectuating the transition in a common sense way. Therefore, we will affirm in its entirety the judgment of the dis trict court. E. Attorney's Fees Hyatt's final issue is a challenge to the district court's statement in the memorandum accompanying it s May 3, 1996 order, that, because of "Hyatt's stubborn refusal t o vacate the premises," Hyatt would "bear any costs and attorney 's fees incurred by 35 Acres related to its efforts in secu ring [the May 3, 1996 order]." Government Guarantee Fund v. Hyat t Corp., No. 1995-49, slip op. at 3 (D.V.I. May 3, 1996). Hyatt argues that the district court imposed these "sanctions" for th e first time in its memorandum without any notice or hearing, im plicating fundamental notions of due process. Moreover, Hyat t argues that because the district court did not identify the rul e or statute under which it imposed these "sanctions," it is imp ossible for an appellate court to determine if the court applied t he correct standard. Accordingly, Hyatt argues that we should reverse the district court's award of "sanctions" against Hyatt

. The law is clear that awards of costs and attorneys' fees are not appealable until the court determines their amount. See, e.g., Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 935 (3d Cir. 1994); Commonwealth of Pennsylvania v. Flaherty, 983 F.2d 1267, 1276-77 (3d Cir. 1993). Consequently in asmuch as the district court has not quantified the fees and cost s there is no order with respect to them that is final for the pu rpose of appellate review. Therefore, Hyatt's challenge to the district court's statement in its memorandum regarding the b earing of costs and attorneys' fees is premature. Accordingl y, we will dismiss this part of the appeal for lack of appella te jurisdiction.

IV. CONCLUSION For all the foregoing reasons, we will aff irm the district court's order of April 10, 1996, granting 35 Acres' motion for partial summary judgment in its entirety and the order of May 3, 1996, providing for the transition of man agement and will dismiss for lack of appellate jurisdiction the part ofHyatt's appeal relating to attorneys' fees and cost s. We vacate

the stay in our order of May 20, 1996. Finally, we will remand the case to the district court for further proceedi ngs on the remaing aspect of the case.