1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-12-1996

Govt Guarantee Fund v. Hyatt Corporation

Precedential or Non-Precedential:

Docket 96-7288

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Recommended Citation

"Govt Guarantee Fund v. Hyatt Corporation" (1996). 1996 Decisions. Paper 69.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/69
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 96-7288 

 

 GOVERNMENT GUARANTEE FUND OF THE REPUBLIC OF FINLAND; 

 SAASTOPANKKIEN KESKUS-OSAKE-PANKKI (SKOPBANK); 

 35 ACRES ASSOCIATES; 12 ACRES ASSOCIATES; BENEFORI 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 Judges, and 

DEBEVOISE, District Judge 

(Filed: September 12, 1996) 

 

 Edward G. Biester, III 

 Michael M. Baylson (argued) 

 Cecelia L. Fanelli 

 Duane, Morris & Heckscher 

 4200 One Liberty Place 

 1650 Market Street 

 Philadelphia, PA 19103 

 Warren B. Cole 

 Hunter, Colianni, Cole & Turner 

 1138 King Street 

 Christiansted, St. Croix 

 U.S. Virgin Islands 00820 

 Attorneys for Appellees 

 John A. Zebedee 

 Office of James L. Hymes, 

 III 

 P.O. Box 990 

 Charlotte Amalie, Saint Thomas 
 U.S. Virgin Islands 00804 

 Mary A. McLaughlin 

 Michael F.R. Harris

 Dechert, Price & Rhoads 

 1717 Arch Street 

 4000 Bell Atlantic Tower 

 Philadelphia, PA 19103 

 John A. Sopuch, III

 Bickel & Brewer 

 35 West Wacker Drive 

 Suite 3650 

 Chicago, IL 60601 

 William A. Brewer, III 

 James S. Renard (argued) 

 John D. van Loben Sels 

 Michael L. Gaubert 

 Jamil N. Alibhai 

 Bickel & Brewer 

 1717 Main Street 

 Suite 4800 

 Dallas, TX 75201 

 Attorneys for Appellant 

 

 OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 I. INTRODUCTION 

 Hyatt Corporation is the manager of a resort hotel on 

St. John in the U.S. Virgin Islands. Hyatt's management 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 Keskus-OsakePankki ("Skopbank"). After Skopbank foreclosed on the property 

in 1991, 35 Acres Associates purchased the hotel pursuant to a 

judicial sale. Immediately thereafter, 35 Acres purported to 

terminate Hyatt's management of the hotel, propelling the parties 

into this acrimonious litigation. The district court, on crossmotions for summary judgment, entered an order granting 35 Acres' 

motion for partial summary judgment on April 10, 1996, thus 

terminating Hyatt's presence at the hotel, and ordering the 

parties to "work together to effect a smooth transition 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 that 
this appeal focuses only on issues concerning 35 Acres' power to 

terminate Hyatt's agency and 35 Acres' right of possession of the 

hotel and related property together with issues relating to the 

transition of the management of the hotel. The district 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 citizens or 

subjects of a foreign state are additional parties). The amount 

in controversy exceeds $50,000, exclusive of interest and costs. 

We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 

and exercise plenary review over the grant of partial summary 

judgment and abuse of discretion review over the court's 

transition order. 

 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

 A. Factual Background 

 In view of the procedural posture of the case we 

present the facts in a light most favorable to Hyatt. From June 

1988 through March 1990 Skopbank, a Finnish corporation, loaned 

Great Cruz and St. John Virgin Grand Villas Associates 

approximately $120 million for the construction and operation of 

the property which became known as the "Hyatt Regency St. John at 

the Virgin Grand Resort." In 1989 representatives of Great Cruz 

approached Hyatt to enlist its assistance in addressing 

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 proven ability 

in the Caribbean to attract business, so that the resort's value 

and profitability could be maximized. 

 Specifically, Great Cruz proposed that the resort bear 

the "Hyatt" and "Hyatt Regency" registered trademarks and trade 

names; that the resort join the "Hyatt" chain and participate in 

Hyatt's comprehensive and proprietary chain-wide programs and 

services (including, without limitation, Hyatt's global 

reservations system; worldwide marketing, public relations, and 

advertising services; employee training programs; and 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 "Hyatt" name and 

Hyatt's commitment to use its expertise to ensure the success of 

the resort. With the encouragement of Skopbank, Great Cruz was 

looking for a company to maximize the economic potential of the 

resort. 

 Hyatt was reticent to commit the "Hyatt" and "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 quality standards. 

Thus, Hyatt believed that there was substantial economic and 

reputational risk in allowing the resort to be known as a "Hyatt 

Regency." 

 During the negotiations leading to the execution of the 

agreements, Hyatt informed Great Cruz that the "Hyatt" and "Hyatt 
Regency" trademarks, service marks, and trade names were worth 

billions of dollars to Hyatt's owners and represented decades of 

time, effort, and financial risk. Hyatt's reputation as a 

premier resort manager was nowhere higher than in the 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 established 

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 the full 

potential of the location so that Hyatt could derive the level of 

financial benefits justifying its participation. Hyatt informed 

Great Cruz that it only would consider establishing the resort as 

a "Hyatt Regency" if Great Cruz agreed to conditions 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 negotiations 

that it would not permit the hotel to be known as a "Hyatt" or 

"Hyatt Regency" or agree to the inclusion of the resort 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 control the 

quality of the resort facility as well as the quality of services 

provided by the hotel by assuming managerial and operational 

responsibilities for the resort. Hyatt, Great Cruz, and Skopbank 

therefore agreed to structure their contracts deliberately and 

carefully to accomplish those objectives to protect Hyatt. 

 During the negotiations among Hyatt, Great Cruz, and 

Skopbank, Hyatt analyzed the resort's highly-leveraged financial 

structure and other issues associated with the resort's financial 

situation. With such considerations in mind, Hyatt informed 

Great Cruz that it was willing to consider a financial structure 

whereby Hyatt invested time and effort and not seek a substantial 

portion of its normal management fees in exchange for an interest 

in the enterprise affording it a return on its investment, to be 

taken in the form of a long-term profit participation. Thus, 

Hyatt explains that, in order "to protect the investments and 

property it would contribute as part of its undertaking to build 

the business of the Resort, [it] required an interest in the 

profits of the `Hyatt Regency St. John.'" Br. at 15. 

Accordingly, Hyatt demanded and Great Cruz consented to a formula 

under which Hyatt potentially would receive a significant 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 parties 

specifically designed to reflect Hyatt's "capital investment in 

the property," id., which included Hyatt's contribution of the 

difference between its typical market rate front-end fees and the 

fees applicable in this case. 

 Further, to protect its interests, Hyatt negotiated for 

and obtained a 30-year term for the management agreement between 

it and Great Cruz which the parties agreed could not be 

terminated except in strict compliance with its express 
termination provisions. Hyatt explains that, given its 

substantial "capital investments" in the hotel and the time 

required to reap a return on its investments, it was 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, and Great Cruz 

assented to Hyatt's approach to, and view of, the transaction. 

 In order to protect the proprietary nature of its 

management methods and to avoid confusion with respect to its 

trademarks and trade names, Hyatt also insisted on the power to 

restrict the owner's right to transfer the management agreement 

to successors or assigns. Thus, to secure the performance of 

duties owed to Hyatt, section 15.2 of the management agreement 

gave it the right and power to block the owner's assignment to 

any assignee "`engaged in the management or operation . . . of a 

chain (that is, five [5] or more locations) of hotels or 

resorts.'" Br. at 18. Further, Hyatt agreed to add 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 contribute involved 

confidential, proprietary, and trade secret information. 

 The parties eventually reached an understanding and on 

March 9, 1990, Great Cruz, Skopbank, and Hyatt executed a series 

of agreements that allow Hyatt to manage and operate the hotel. 

The documents included a management agreement signed by Hyatt and 

Great Cruz giving Hyatt complete control over the operation of 

the hotel for a term of 30 years, essentially limiting the 

owner's right to terminate the agreement to poor performance by 

Hyatt. (Management Agreement at §§ 2, 4.5; app. 1809, 1836). In 

return for managing the hotel, Hyatt would receive a base fee of 

1.5 percent of gross revenue, as well as an incentive fee 

structured on positive cash flow. Id. at 1829. A letter 

agreement signed by Great Cruz and Hyatt directed Hyatt to pay 

Skopbank any sums due to Great Cruz under the management 

agreement. Id. at 113. 

 Hyatt sets forth in its brief that in order "to secure 

its property interests and investments in the business it was to 

create as well as to secure the performance of certain duties 

owed to [it]," br. at 21-22, Great Cruz warranted and guaranteed 

Hyatt's continuous right to manage the resort for the duration of 

the term of the management agreement. Specifically, Hyatt notes 

that section 7.5 of the agreement provides that "this Agreement 

shall not be subject to forfeiture or termination except 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 otherwise, 

required to assure such right of operation to Hyatt." Br. at 22; 

see app. at 1860-61. 

 In addition, a subordination, non-disturbance, and 

attornment agreement set forth the rights of the parties should 

Skopbank foreclose its mortgage to Great Cruz. This agreement 
included a warrant by Skopbank that the management agreement 

would remain undisturbed by any foreclosure or default 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 action in the 

District Court of the Virgin Islands (Civ. No. 91-355) as a 

result of Great Cruz's default on the mortgages. In 1992, during 

the pendency of the foreclosure suit, the Government Guarantee 

Fund of the Republic of Finland ("GGF") obtained a controlling 

interest in Skopbank as part of the Finnish government's bailout 

of the bank. 

 On February 21, 1995, the district court entered a 

consent judgment and put the hotel up for judicial sale. On 

March 20, 1995, 35 Acres Associates, a Virgin Islands general 

partnership consisting of two Finnish corporations, purchased the 

hotel. On March 21, 1995, counsel for 35 Acres wrote to Hyatt, 

stating that "GGF, Skopbank and 35 Acres Associates consider the 

Management Agreement between Hyatt Corporation ('Hyatt') and 

Great Cruz Bay Development Company, Inc. as void, terminated 

and/or expired." Br. at 23; app. at 1401-02. On June 8, 1995, 

35 Acres wrote again, advising Hyatt that it was in wrongful 

possession, and demanding that it surrender possession of the 

hotel: 

 The Hotel belongs to 35 Acres, not 

 Hyatt. Hyatt is trespassing on the property. 

 35 Acres again demands that Hyatt immediately 

 surrender possession of the Hotel and all 

 associated real and personal property and 

 accounts and cooperate in an orderly transfer 

 to 35 Acres. We will have a transition team 

 available on short notice. 

App. at 1407. Hyatt, however, did not surrender possession of 

the hotel. 

 B. Procedural History 

 GGF and Skopbank filed suit against Hyatt (Civil No. 

1995-49) on March 16, 1995, seeking a declaratory judgment 

finding Hyatt in breach of the management agreements and alleging 

various claims in tort and contract. GGF and Skopbank, of 

course, sought, inter alia, a judgment declaring the management 

agreement terminated and thus giving it possession of the hotel. 

On November 8, 1995, GGF and Skopbank filed an amended 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 second amended 

complaint, dated June 21, 1995, sought a judgment declaring the 

rights of the various parties under the management agreements, 

recovery for civil conspiracy, and punitive, compensatory, and 

consequential damages. On June 21, 1995, the district court 

consolidated the two cases for trial. 

 At a hearing on November 17, 1995, the court took under 

advisement 35 Acres' motion to dismiss the second amended 

complaint in the Hyatt suit (Civil No. 1995-68) and denied 

without prejudice Hyatt's motion to strike and dismiss the GGF 

parties' first amended complaint in the GGF suit (Civil No. 
1995-49). See Government Guarantee Fund v. Hyatt Corp., 166 

F.R.D. 321, 323 (D.V.I. 1996). Hyatt renewed its motion to 

strike and dismiss on December 22, 1995. 

 On January 8, 1996, the district court granted 35 

Acres' motion to dismiss the second amended complaint 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 Hyatt 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 filing 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 effect granting 

it possession of the hotel. The court directed the parties to 

work together on transferring management of the hotel. App. at 

2157. The court denied without prejudice Hyatt's motion to 

dismiss the first amended complaint in the GGF suit (Civil No. 

1995-49). In the Hyatt suit (Civil No. 1995-68) the court denied 

Hyatt's motion to amend the court's order of January 8, 1996, and 

its motion to be permitted to file a third amended complaint. 

The court issued a written order implementing its March 6, 1996 

rulings on April 10, 1996. The order stated that "[b]oth parties 

shall work together to effect a smooth transition in the 

management and operation of the Hotel," app. at 2199, and allowed 

Hyatt 10 days from the entry of the order to answer the first 

amended complaint in the GGF suit (Civil No. 1995-49) and assert 

any defenses and compulsory counterclaims thereto. Id. at 2199- 

2200. The court further ordered the Hyatt case (Civil No. 1995- 

68) closed and that all other pleadings filed thereafter should 

contain only the caption of the GGF suit (Civil No. 1995-49). 

Id. at 2200. 

 The court issued an opinion and order on April 10, 

1996, explaining its rulings from the bench on March 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 Hyatt 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 Hotel 

 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 provided for in the 

district court's grant of partial summary judgment. On May 3, 

1996, the district court entered such an order and certified the 
order of April 10, 1996, and the order of May 3, 1996, 

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, 1996 Rule 54(b) 

order which included an appeal from the April 10, 1996 order. 

Hyatt also filed an emergency motion in the district court to 

stay enforcement of the judgment without bond or, in 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, the 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 with 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 court's judgment 

pending appeal. A single judge of this court granted the motion 

on a temporary basis until a panel could consider the matter. On 

May 20, 1996, we granted Hyatt's motion to stay enforcement of 

the judgment pending appeal and accelerated the parties' briefing 

schedule. We also directed that following completion of the 

briefing the case be listed before the earliest available 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, one 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 Associates." 

 On June 3, 1996, Hyatt filed a motion in this court to 

set aside or modify the district court's order setting the amount 

of the supersedeas bonds. On July 3, 1996, we granted Hyatt's 

motion, but only "to the extent" that we vacated "so much of the 

order of May 31, 1996, which precluded Hyatt from reopening the 

hotel over the objection of 35 Acres Associates." We denied the 

motion to modify the order with respect to the bonds. We 

understand that Hyatt has posted the bonds. We, however, 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 transition matters, 

irrespective of the ultimate result of the remaining litigation. 

Thus, we do not consider whether 35 Acres wrongfully terminated 

Hyatt's management rights. We now address the merits of Hyatt's 

appeal. 

 III. DISCUSSION 

 A. Burdens of Proof 

 We dispose of Hyatt's first argument summarily. Hyatt 

argues that 35 Acres had the burden of proving the revocability 
of Hyatt's agency as a matter of law in the district court, as 

well as the burden of proving that Hyatt did not have the right 

to occupy or possess the resort. Hyatt asserts that 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 act 

 as the managing agent of 35 Acres pursuant to 

 a Management Agreement dated March 9, 1990, 

 between Hyatt and Great Cruz Bay Development 

 Company, Inc.; (3) Skopbank, GGF, and 35 

 Acres sent a letter to Hyatt dated March 21, 

 1995, in which they stated that they 

 `consider' the Management Agreement `as void, 

 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 partial summary 

judgment thus attempted to "off-load its burden of proof upon 

Hyatt." Br. at 29. Hyatt asserts that 35 Acres failed to meet 

its burden of proving as a matter of law the following necessary 

elements of its claim for relief: (1) the revocability of Hyatt's 

agency; (2) the valid termination of that agency; and (3) the 

absence of any right of Hyatt to manage or occupy the resort. 

 We decline to treat this case as involving merely the 

burdens placed upon parties seeking summary judgment, and 

therefore will address fully the merits of the appeal considering 

the facts presented on the motion for partial summary judgment in 

the district court. After all, the parties submitted extensive 

materials in the district court and we see no reason why we 

should not consider the record as developed. 

 B. Prima Facie Case 

 Hyatt's second argument, that 35 Acres failed to 

establish a prima facie entitlement to relief, likewise lacks 

substance. Hyatt first notes that in ruling upon 35 Acres' 

motion for partial summary judgment, the district court 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 Islands . . . 

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 governing law in 

this area." Government Guarantee Fund v. Hyatt Corp., 166 F.R.D. 

at 327. 

 Hyatt points out that the Restatement recognizes that 

there are two separate and distinct types of agencies: 

 The first type, often called `revocable' 

 agencies, may be revoked by the principal at 

 any time and for any reason. See Restatement 

 (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,' may 

 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 (Second) 

 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 to terminate 

the power. Consequently mere evidence that there is an agency 

neither establishes the revocability of that agency nor disproves 

its irrevocability. Id. Hyatt thus claims that there was a 

"fundamental flaw in 35 Acres' motion for partial summary 

judgment" in the district court. Id. at 32. 

 Further, Hyatt asserts that 35 Acres did not 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 interest is not an 

affirmative defense in an action to terminate an agency. Thus, 

it contends that 35 Acres did not fulfill its burden on its 

motion for summary judgment seeking to terminate the agency 

merely by proving the existence of the agency. Hyatt asserts 

that 35 Acres was required to demonstrate that Hyatt's agency was 

revocable, and thereby preclude the possibility that Hyatt's 

agency was irrevocable. 

 Along the same lines, Hyatt argues that 35 Acres failed 

to demonstrate as a matter of law that it terminated Hyatt's 

agency, as Hyatt claims that the letter of March 21, 1995 "does 

not clearly purport to constitute an act of revocation or 

termination, but suggests that the termination had already 

occurred and that the letter was merely memorializing that 

alleged historic fact." Br. at 33. Hyatt claims that the proof 

of 35 Acres' alleged termination of Hyatt's agency is, at best, 

ambiguous and inconclusive, and that courts frequently hold that 

the intent and effect of purported termination notices raise 

genuine issues of material fact precluding summary judgment. 

Finally, Hyatt attacks the prima facie case presented 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, and are 

satisfied that 35 Acres met its burden in its motion for partial 

summary judgment of presenting a prima facie case that it was 

entitled to possession of the hotel as a matter of law. SeeMatsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

585, n.10, 106 S.Ct. 1348, 1355, n.10 (1986). On the motion 35 

Acres presented the management agreement which on its face merely 

created an agency. We see no reason for 35 Acres to have proven 

at that point in the litigation that the agency itself 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 January 8, 1996 

memorandum that: 

 Hyatt concedes that 35 Acres sent it letters 
 that 35 Acres 'considered Hyatt's management 

 agreement "void, terminated and/or expired"' 

 and demanding Hyatt `immediately surrender

 possession' of the Hotel. (Second Amended

 Complaint at 2.) Indisputably, such letters 

 manifested 35 Acres' dissent to the 

 continuance of the agency relationship with 

 Hyatt -- all that is required for an agency 

 to be terminated under the Restatement. 

 Restatement (Second) of Agency, § 118. 

Government Guarantee Fund v. Hyatt Corp., 1996 WL 165008 at *3. 

Surely, Hyatt cannot argue reasonably that it did not realize the 

March 21, 1995 letter constituted notice of termination, when it 

has referred to the letter as such in its own pleadings. 

Furthermore, on June 9, 1995, Hyatt filed an amended complaint 

referring to 35 Acres' June 8, 1995 letter to Hyatt that we 

quoted in part above which set forth continued written 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 referenced 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 facie case 

presented by 35 Acres was devoid of conclusive proof of 35 Acres' 

present right to exclusive possession of the resort is also 

meritless. Hyatt has admitted that 35 Acres owns the 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 Hyatt raised 

genuine issues of material fact precluding summary judgment. 

First we will discuss the law applicable to the termination of 

agency agreements, and then we will consider Hyatt's specific 

arguments. 

 1. The Applicable Law 

 As the district court correctly noted, agency 

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 principal or the 

agent manifests to the other dissent to its continuance." 

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 principals may 

terminate an agency relationship at any time is when the 

authority granted to the agent is a "power given as security." 
Id. §§ 138, 139. Section 138 of the Restatement states: 

 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 holder 

 or a third person and given to secure the 

 performance of a duty or to protect a title, 

 either legal or equitable, such power being 

 given when the duty or title is created or

 given for consideration. 

 Comment (b) to section 138 of the Restatement explains 

that "[a] power given as security is one held for the benefit of 

a person other than the power giver [i.e. principal]." A 

principal can terminate an agency power given as security "only 

in accordance with the agreement by which the power was created." 

Id. § 139 cmt. a. On the other hand, the power giver can revoke 

the power if it was created only for the benefit of the power 

giver, i.e., when there is a simple agency relationship. If the 

agent has an interest in the exercise of the power only because 

of the compensation to which it is entitled upon its exercise, 

then the power is not given as security and is revocable. 

 A principal may grant an irrevocable agency power for 

the purpose either of furnishing a security to protect a debt or 

other duty, or facilitating the performance, effectuating the 

objects, or securing the benefits of a contract. See id. § 138 

cmt. c. For example, a power given as security arises 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 joint enterprise 

or invests in a business in which another supplies the subject 

matter, a power given it by the other to protect such 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 security cannot be 

terminated at the whim of the power giver. See Restatement 

(Second) of Agency § 14H cmt. a. 

 The Restatement provides illustrations of a power given 

to protect the property interest of the power holder (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 agent. While 

the illustrations focus on the protected interest as held by the 

agent or power holder, it is clear that the agency is also 

irrevocable if made for the benefit of a third person, although 

the agency can be terminated with the consent of the third-party 

beneficiary. Moreover, agency powers granted both for the 

benefit of the principal and the agent are irrevocable. SeeRestatement 

(Second) of Agency § 138 cmt. d ("A person authorized 

to act as agent may also hold a power for his own benefit."). 

 An indispensable feature of a power given as security 

is that the agent have a proprietary interest in the res or 

subject matter of the agency independent of the agency 

relationship itself. As the district court noted, Professor 
Williston's comments on this subject are instructive: 

 In order that a power may be irrevocable 

 because it is coupled with an interest, it is 

 necessary that the interest be in the subject 

 matter of the power and not in the proceeds 

 which will arise from the exercise of the 

 power . . . . 

 . . . [T]he person clothed with the authority 

 must derive a present or future interest in 

 the subject itself on which the power is to 

 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 does 

 the interest or estate accrue by or after the 

 exercise of the power conferred? 

 If the former, it is an agency coupled 

 with an interest . . . if the latter, it is 

 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 does not create 

the interest; the agency merely serves to protect the separately 

granted or created interest when the two are coupled." Id. at 

328. 

 2. The District Court's Disposition

 In its memorandum of January 8, 1996, granting 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 obligation 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 second 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 district court 

first noted that Hyatt's own pleadings established that 35 Acres 

had terminated the agency: 

 Hyatt concedes that 35 Acres sent it letters 

 that 35 Acres 'considered Hyatt's management 

 agreement "void, terminated and/or expired"' 

 and demanding Hyatt `immediately surrender

 possession' of the Hotel. (Second Amended

 Complaint at 2.) Indisputably, such letters 

 manifested 35 Acres' dissent to the 

 continuance of the agency relationship with 
 Hyatt -- all that is required for an agency 

 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 the 

 complaint are true, the relationship between 

 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 considered Hyatt's 

contentions that the management agreement created an irrevocable 

agency coupled with an interest: "Hyatt wants to argue 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 basis 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 was 

 granted to secure the performance of any duty 

 owed to it. Hyatt's only asserted interest 

 is in the compensation due it as manager of 

 the hotel, the benefit to its reputation, and 

 an enhanced presence in the Caribbean. Such 

 interests are ordinary incidents of an agency 

 relationship and standing alone do not 

 support an inference that the agreements were 

 entered into for the benefit of Hyatt as 

 opposed to the benefit of the owner. In sum, 

 Hyatt simply does not allege any interest in 

 the hotel aside from its interest in reaping 

 the benefits from acting as 35 Acres' agent. 

Id. 

 Moreover, the district court noted that the management 

agreement did not even recite that it created an agency coupled 

with an interest. Id. at *3 n.7. The court concluded 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 continue acting as 

manager of the Hotel." Id. at *4. 

 Later, at the hearing on March 6, 1996, the district 

court addressed 35 Acres' motion for partial summary judgment, 

the grant of which led to this appeal. At the conclusion 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 anything 

 in Hyatt's proposed amended complaint that

 when it's read together with the management 

 agreement and the other facts that are 
 undisputed in this case -- and those are 

 basically as 35 Acres has stated, that they 

 own the property, that Hyatt has no title 

 ownership, no right of possession as a result 

 of any ownership. It is an agent of 35 Acres 

 only. The management agreement was the only 

 instrument which gives them the right to be 

 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 suggest 

 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 order 

 won't be imposed on Hyatt; it will simply be 

 an agreed-upon to the extent they can agree 

 upon it and maybe if you can get together 

 with Judge Barnard. And if you can't resolve 

 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 revocable agency, not 

an irrevocable agency coupled with an interest. Government 

Guarantee Fund v. Hyatt Corp., 166 F.R.D. at 329-30 (citing 

Pacific Landmark Hotel, Ltd. v. Marriott Hotels, Inc., 23 Cal. 

Rptr. 2d 555 (Cal. Ct. App. 1993); Woolley v. Embassy Suites, 

Inc., 278 Cal. Rptr. 719 (Cal. Ct. App. 1991)). Further, the 

court addressed Hyatt's argument that the management agreement 

created some sort of "joint enterprise" between itself 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 agreement could not 

be construed as creating a new business entity because, 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 security to protect 

its intellectual property, which was to be used by Hyatt in 

carrying out its duties on behalf of the owner. The court held 

that Hyatt's contentions regarding protecting its reputation and 

its trade name did not warrant a result any different from that 

in prior cases concerning chain hotel management contracts that 

created revocable agencies. Id. at 329 & n.21 (citing Pacific 

Landmark Hotel, 23 Cal. Rptr. 2d 555; Woolley v. Embassy 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 its 

 right to compensation. As such, the 

 Management Agreement was a personal services 

 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 inappropriate to order 

specific performance of the management agreement, the district 

court found the rationale stated in Woolley v. Embassy 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 passing 

 judgment on the quality of performance. It 

 would also run contrary to the Thirteenth 

 Amendment's prohibition against involuntary 

 servitude. Courts wish to avoid the friction 

 and social costs which result when the 

 parties are reunited in a relationship that 

 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 calls 
 for special knowledge, skill, or ability. 

Id. at 329-30 (quoting Woolley v. Embassy Suites, 278 Cal. Rptr. 

at 727). 

 3. Hyatt's Arguments on Appeal 

 For the most part, Hyatt's arguments on appeal are the 

same as those it made in the district court. As we agree both 

with that court's decision and its reasoning, we only need 

discuss the specifics of arguments not addressed by the district 

court. 

 Hyatt argues that it presented competent evidence to 

the district court that demonstrated the irrevocability of its 

agency agreement with Great Cruz. Specifically, Hyatt asserts 

that its agency "exceeds the mere management of physical property 

and extends to the operation of a comprehensive and complex 

business" that is reflected in the scope of its rights under the 

management agreement. Br. at 36. Thus, the subject matter of 

Hyatt's agency is "not limited to the real and personal property 

of the Resort, but includes the operation of the business of the 

Resort." Id. at 37. 

 Hyatt relies on decisions of courts that have held that 

an irrevocable agency is created where "an agent makes a 

substantial contribution to or capital investment in a business 

enterprise while assuming significant managerial responsibilities 

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, 1167-68 (La. Ct. 

App. 1982); MacDonald v. Rosenfeld, 188 P.2d 519, 521, 528 (Cal. 

Ct. App. 1948); Jones v. Williams, 39 S.W. 486, 493-94 (Mo. 

1897)). Hyatt claims that it submitted overwhelming 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 claims that it 

was the catalyst in establishing that business, and that: 

 Its capital contributions and investments to 

 the business included lending the use of its 

 registered trademarks and service marks; 

 providing proprietary and confidential 

 information, programs, and systems with 

 respect to sales, marketing, and operations; 

 and making the resort an integral member of 

 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 assumed control of 

the management of that business as well as the day-to-day 

operations, and thereby was invested with certain powers of 

agency." Id. at 39. According to Hyatt, those powers were 

granted for its benefit and, thus, are irrevocable.

 Like the district court, we decline to accept Hyatt's 

theory that it has "proven the creation of a resort business and 

its contributions to and investments in that business, its 

profits interests therein, and its insistence upon and receipt of 

managerial powers to protect those contributions, investments, 

and interests," br. at 38 n.9, in the face of the clear language 
in the management agreement that: 

 Nothing in this Agreement contained 

 shall constitute, or be construed to be or to 

 create, a partnership, joint venture or lease 

 between Owner and Hyatt with respect to the 

 Hotel. 

Management agreement, § 3.8; app. at 1828. Moreover, none of the 

cases Hyatt cites to support its argument are aligned 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 given the 

management of the business as security for the loans he had 

made."); Jones v. Williams, 39 S.W. at 493 ("Under the contract, 

plaintiff purchased 1,667 shares of stock in the corporation, for 

which he paid $80,000; and, in consideration thereof, he was to 

have the `control and management' of the Post Dispatch for five 

years, at an annual salary of $10,000."); Bowling v. National 

Convoy & Trucking Co., 135 So. at 543 (affirming holding that 

agency was coupled with interest in business founded by agent); 

Montgomery v. Foreman, 410 So.2d at 1167 ("Thus it was 

contemplated that [the agent] would recoup the monies he spent in 

improving the property[.]"); Haft v. Haft, 671 A.2d at 423 

(irrevocable stock voting proxy given as security for note and 

other interests retained in corporation as well as security for 

payment of purchase price of transfer of stock at issue). Thus, 

we reject as a matter of law Hyatt's argument that it possessed 

an irrevocable agency due to its part in the creation of a new 

business enterprise. Hyatt has raised no genuine issue of 

material fact that alters our conclusion. 

 Hyatt next argues that its contribution of its 

trademarks and trade names, chain services, and management 

expertise was and is "an integral and valuable part of the 

business known as the `Hyatt Regency St. John.'" Br. at 41. 

Hyatt claims that the combination of those contributions created 

and continue to add value to the goodwill of the business, and 

that the goodwill in turn is a major factor in the ability and 

capacity of the hotel to generate profits. Hyatt claims that to 

secure and protect those investments, it negotiated and acquired 

rights to manage the business. Therefore, Hyatt asserts that the 

relationship created by the agreements among the parties was an 

irrevocable agency which 35 Acres could not terminate except in 

accordance with the express termination provisions set forth in 

the parties' agreements. 

 As a matter of law, we agree with the district court 

that Hyatt's contribution of its trademarks and trade names, 

chain services, and management expertise to the hotel was merely 

a normal incident of an agency relationship, and did 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 district court 

relied in ruling that Hyatt's agency is revocable. First, Hyatt 

explains that, in Woolley v. Embassy Suites, "Embassy Suites had 

a license agreement which was separate from and independent of 
its management agreement and, therefore, it could not 

successfully argue that the managerial powers were given to it in 

order to protect and secure its intellectual property, which was 

the subject of the separate license agreement." Br. at 42. SeeWoolley, 

278 Cal. Rptr. at 726 ("Embassy says that this agency is 

different because the hotels are franchised with the Embassy name 

and that it therefore has its own interest in their success. But 

the franchise agreements are severable and independent from the 

management contracts[.]"). 

 Next, Hyatt attempts to distinguish Pacific Landmark 

Hotel by stating that in that case an irrevocable agency would 

have existed had there been a legal identity between the Marriott 

entity that managed the hotel and the Marriott entity that held 

an interest in the hotel business. Since that was not the case, 

Hyatt states that the legal separateness between the two was the 

sole factor in the court's refusal to find an irrevocable agency. 

Br. at 42; see Pacific Landmark Hotel, 23 Cal. Rptr. 2d at 563 

("[T]he trial court was disregarding the separate corporate 

entities . . . when it found MHI had an interest in the subject 

of the agency. . . . [T]he trial court erred in failing to treat 

MHI as separate from its parent corporation Marriott."). 

 Hyatt argues that the facts in this case are materially 

different from those in Woolley v. Embassy Suites and in Pacific 

Landmark Hotel. Hyatt asserts that it permitted its intellectual 

property (including its registered trademarks and trade names) to 

be used in connection with the hotel only because it insisted 

upon and received agency powers to manage the resort. Moreover, 

the entity that owns the "Hyatt" and "Hyatt Regency" trademarks 

and trade names and that holds an interest in the resort business 

known as the "Hyatt Regency St. John" is the same entity that 

obtained for its benefit the right to manage the resort -- 

namely, Hyatt Corporation. Hyatt thus claims that the two 

California cases are distinguishable. 

 We do not agree with Hyatt's reading of the two 

California cases. While it is true that the specific facts of 

the cases differ from the case before us, their legal holdings 

are instructive here. In Pacific Landmark Hotel even though a 

Marriott affiliate had invested loans of $15 million and $8 

million in capital contributions, pursuant to which the affiliate 

received a five percent ownership interest in the limited 

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 agency with an 

interest in favor of Marriott Hotels, Inc., which was the 

manager. 23 Cal. Rptr. 2d at 557, 560-63. 

 Moreover, even though Marriott's management contracts 

provided for Marriott Hotels, Inc. to receive 30% of available 

cash flow for 60 years as part of its management fee 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 not an 

irrevocable agency. 23 Cal. Rptr. 2d at 557, 562-63. Given 

provisions that unambiguously provided that the agreements were 

between principal and agent and did not create a lease, 
partnership or joint venture, as a matter of law the agency could 

be terminated. Id. at 560-63. The court held that the absence 

of a specific present property interest was dispositive. 

 In addition, the dispute in Woolley v. Embassy Suitesinvolved 

termination of Embassy Suites' management of nine hotels 

that were under management contract, not termination of a 

franchise or license agreement. 278 Cal. Rptr. at 721 & n.1. 

Like Hyatt, Embassy Suites argued that the court should ignore 

the express contractual provisions negating any partnership 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 contentions for 

the lack of any specific present property interest. Id. at 726. 

The district court accurately analyzed the effect of 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 fact 

 that the use of the Embassy Suites trade name 

 in that case was secured by a separate 

 franchise agreement. In our view, this fact 

 militates against the presence of an 

 irrevocable agency here. If the use of 

 Hyatt's intellectual property were protected 

 by a franchise agreement then the Owner 

 potentially could use Hyatt's trademarks and 

 trade names even after the agency ended. 

 Arguably, a separate clause linking the 

 franchise agreement to the agency 

 relationship might be needed to protect the 

 agent's interest. Here, termination of the 

 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 that, as a 

matter of law, Hyatt's interest in protecting its trademarks and 

service specialties is not sufficient to form an irrevocable 

agency. Hyatt has raised no genuine issue of material fact to 

alter our decision. 

 Hyatt next claims that it has raised genuine issues of 

disputed fact with regard to the "effectiveness of 35 Acres' 

purported termination letter of March 21, 1995." Br. at 43. As 

we already have indicated the district court noted that: 
 Hyatt concedes that 35 Acres sent it letters 

 that 35 Acres `considered Hyatt's management 

 agreement "void, terminated and/or expired"' 

 and demanding Hyatt `immediately surrender

 possession' of the Hotel. (Second Amended

 Complaint at 2.) Indisputably, such letters 

 manifested 35 Acres' dissent to the 

 continuance of the agency relationship with 

 Hyatt -- all that is required for an agency 

 to be terminated under the Restatement. 

 Restatement (Second) of Agency, § 118. 

Government Guarantee Fund v. Hyatt Corp., 1996 WL 165008, at *3. 

We find here no genuine issue of material fact to alter our 

decision. 

 Hyatt finally claims that 35 Acres materially 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 obligations." 

Br. at 45. Hyatt claims that it therefore has submitted 

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 termination of Hyatt's 

management agreement deserves our attention. It is true that a 

subordination, non-disturbance, and attornment agreement set 

forth the rights of the parties should Skopbank foreclose its 

mortgage from Great Cruz, including a warrant by Skopbank that 

the management agreement would remain undisturbed by any 

foreclosure or default and would continue in full force and 

effect as long as Hyatt was not in default. (Subordination 

Agreement at §§ 2, 3; app. at 548). Hyatt's seeking of this 

subordination agreement indicates impressive foresight on its 

part; indeed, the subordination agreement even could be construed 

to indicate intent among the parties that the management 

agreement itself be irrevocable. 

 However, as noted by the district court, "management 

agreements between the owner of a hotel and a managing 

corporation do not create an agency coupled with an interest, 

even if the agreements state that they do." Government Guarantee 

Fund v. Hyatt Corp., 1996 WL 165008 at *3 n.7 (citing Woolley v. 

Embassy Suites, 278 Cal. Rptr. 719; Pacific Landmark Hotel, 23 

Cal. Rptr. 2d 555. Surely, if agreements that by their terms are 

irrevocable, thus manifesting the parties' intent that they be 

so, are not necessarily irrevocable, intent manifested by the 

separate creation of a subordination agreement does not create a 

power coupled with an interest. Thus, while the subordination 

agreement may be very significant in a determination of whether 

35 Acres wrongfully terminated Hyatt's management agreement, it 

does not affect our result here. Whether or not an agency 

agreement is revocable is a matter of law. See Pacific Landmark 

Hotel, 23 Cal. Rptr. 2d at 561 ("[E]ven if the parties intended 

to create an irrevocable agency, one coupled with an interest, 

unless they do so and such an interest does in fact exist, the 

statutory power to revoke may be exercised. If the exercise of 
the statutory revocation power is contractually unjustified, 

damages may be in order."); Woolley v. Embassy Suites, 278 Cal. 

Rptr. at 725 ("Even if the contract did attempt to restrict the 

power of the owner to terminate the manager, such provision would 

be ineffective. The principal's power of revocation is absolute 

and applies even if doing so is a violation of the contract or 

the agency is characterized as `irrevocable.'") (citing 

Restatement (Second) of Agency § 118 cmt. b). 

 Accordingly, we will affirm the district court's grant 

of 35 Acres' motion for partial summary judgment, since Hyatt has 

raised no genuine issue of material fact and 35 Acres is entitled 

to judgment as a matter of law on the issue of the management 

agreement's revocability. 

 D. Remedies Granted by the District Court 

 Hyatt's next argument is that the district court erred 

in granting 35 Acres relief and imposing obligations on Hyatt 

that neither were requested by 35 Acres nor supported in the 

summary judgment record. We review issues regarding the relief 

fashioned by the district court for abuse of discretion only. 

See United States v. Triple A Mach. Shop, Inc., 857 F.2d 579, 583 

(9th Cir. 1988) (affirming district court's grant of 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. 1990). 

 Hyatt notes that paragraph 3 of the district court's 

order of May 3, 1996, requires it, among other things, to turn 

over to 35 Acres: keys, alarm access codes, key cards, other 

means of access and egress thereto, books, records,

correspondence, documents, computer and electronically-maintained 

records, reservations information, furniture, fixtures, 

equipment, vehicles, documents of title and receipts, cash, 

coupons, instruments for the payment of money, certificates of 

deposit, accounts receivable, contract rights, intangible 

personal property, and all other personal property relating to 

the operation of the resort. Br. at 45. Hyatt argues that 35 

Acres did not satisfy the burden imposed upon parties seeking 

mandatory injunctive relief, and that this portion of the 

district court's judgment should be reversed. 

 Further, Hyatt notes that in paragraph 5 of 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, without 

 further order of this Court. 

Hyatt argues that Rule 70 does not authorize the plethora of 

extraordinary personal property remedies that the district court 

granted to 35 Acres, and that we therefore should reverse this 

portion of the judgment. 

 Finally, Hyatt notes that paragraph 3(h) of the May 

3, 1996 order provides that "Hyatt Corporation may not remove any 
personal property from the Hotel Property other than items of 

personal property belonging to individual employees of Hyatt 

Corporation." Br. at 46 (citing app. at 2340). Noting that, in 

paragraph 4, the district court did permit Hyatt to segregate, 

seal, and/or designate its privileged documents, proprietary 

commercial materials, and personal property located on the resort 

premises, but effectively prohibited Hyatt from removing its 

property except "in accordance with further Order of this Court," 

app. at 2341-42, Hyatt argues that nothing in the summary 

judgment record justifies a court order interfering with or 

depriving Hyatt of its rights of use, enjoyment, and possession 

of its own property. Hyatt therefore argues that this 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 complex 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 district court. 

 E. Attorney's Fees 

 Hyatt's final issue is a challenge to the district 

court's statement in the memorandum accompanying its May 3, 1996 

order, that, because of "Hyatt's stubborn refusal to vacate the 

premises," Hyatt would "bear any costs and attorney's fees 

incurred by 35 Acres related to its efforts in securing [the May 

3, 1996 order]." Government Guarantee Fund v. Hyatt Corp., No. 

1995-49, slip op. at 3 (D.V.I. May 3, 1996). Hyatt argues that 

the district court imposed these "sanctions" for the first time 

in its memorandum without any notice or hearing, implicating 

fundamental notions of due process. Moreover, Hyatt argues that 

because the district court did not identify the rule or statute 

under which it imposed these "sanctions," it is impossible for an 

appellate court to determine if the court applied the 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 inasmuch as the 

district court has not quantified the fees and costs there is no 

order with respect to them that is final for the purpose of 

appellate review. Therefore, Hyatt's challenge to the district 

court's statement in its memorandum regarding the bearing of 

costs and attorneys' fees is premature. Accordingly, we will 

dismiss this part of the appeal for lack of appellate 

jurisdiction. 

 IV. CONCLUSION 

 For all the foregoing reasons, we will affirm 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 management and 

will dismiss for lack of appellate jurisdiction the part of 
Hyatt's appeal relating to attorneys' fees and costs. We vacate 

the stay in our order of May 20, 1996. Finally, we will remand 

the case to the district court for further proceedings on the 

remaing aspect of the case.