NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CROSSFIRST BANK, a Kansas banking No. 24-7605 corporation; CROSSFIRST D.C. No. INVESTMENTS INCORPORATED, a 2:18-cv-01637-DLR Kansas corporation; MINNESOTA LAWYERS MUTUAL INSURANCE COMPANY, a Minnesota corporation; MEMORANDUM* ALPS PROPERTY & CASUALTY INSURANCE COMPANY, a Montana corporation,
Plaintiffs - Appellants,
and
NANCY HANNA, FRANK HANNA Sr., WESLEY HANNA TRUST, trustee of Frank Hanna , Sr. trustee of Henry H Hanna, III trustee of Wesley Hanna, LEIGH HANNA TRUST, trustee of Frank Hanna , Sr. trustee of Henry H Hanna, III trustee of Leigh Hanna, FRANK HANNA JR TRUST, trustee of Frank Hanna , Sr. trustee of Henry H Hanna, III trustee of Frank Hanna, Jr.,
Plaintiffs,
v.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. VIESTE SPE, LLC, an Arizona limited liability company; VIESTE ENERGY, LLC, an Indiana limited liability company; VIESTE, LLC, an Indiana limited liability company; MARK BRANAMAN, Manager and agent of Vieste Energy, Vieste SPE, and Vieste; MICHAEL A. COMPARATO Sr., Manager and agent of Vieste Energy, Vieste SPE, and Vieste; JOSEPH COOK, previously named as Joseph A Cook, manager and agent of Vieste SPE; DONALD W. CURRISE, Manager and agent of Vieste SPE and Vieste and President and CEO of Vieste; JOSHUA D. ROGERS, Manager and agent of Vieste SPE; HERBERT J SIMS & CO., INC., a Connecticut corporation; TIMOTHY XAN SMITH, Employee and agent of HJ Sims; LAWSON FINANCIAL CORPORATION, an Arizona corporation; ROBERT LAWSON; PAMELA LAWSON, husband and wife,
Defendants - Appellees,
WILLIAM B. SIMS, President, Managing Principal, and CEO of HJ Sims, JANE DOE LYNCH, husband and wife, JERRY G. PETERSON, partner at Peck, Shaffer & Williams, LLP, DINSMORE & SHOHL, LLP, an Ohio limited liability partnership, PECK SHAFFER & WILLIAMS, LLP, a Georgia limited liability partnership, WESLEY HANNA, trustee of: Frank Hanna, Sr, Henry H. Hanna, III, & Wesley Hanna (Wesley Hanna trust), LEIGH HANNA, trustee of Frank Hanna, Sr., Henry H Hanna, III, & Leigh L. Hanna FBO
2 24-7605 Leigh Hanna trust,
Defendants.
Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Argued and Submitted November 18, 2025 Phoenix, Arizona
Before: MURGUIA, Chief Judge, and HURWITZ and COLLINS, Circuit Judges.
In 2012, Defendants-Appellees Vieste1 LLC and affiliated persons
(“Vieste”) engaged with the City of Glendale to construct a materials-recycling
facility. The agreement provided that Glendale would deliver waste to the facility,
the facility would remove recyclables from the waste, and Vieste would send the
remaining waste to a landfill. Defendants-Appellees Herbert J. Sims & Co., Inc.
and Lawson Financial Corporation underwrote bonds issued to fund the
construction of the facility.
However, after the bonds were issued, Vieste and Glendale disputed whether
Glendale could deliver yard waste—such as materials from brush, trees, shrubs,
and lawns—to the facility. The facility was designed and constructed such that it
1 “Vieste” as used herein refers collectively to the three Vieste entities (Vieste LLC, Vieste Energy, LLC, and Vieste SPE, LLC) and four of Vieste SPE’s Board of Managers—Michael Comparato, Don Currise, Joseph Cook, and Mark Branaman.
3 24-7605 would be cost-prohibitive to process yard waste. Due to this dispute, the facility
never achieved commercial operations and the bonds defaulted.
Plaintiffs-Appellants are purchasers of the bonds. They allege that Vieste
and the underwriters (collectively, “Defendants”) made misrepresentations in the
bond’s Official Statement, a document that disclosed information about the bonds
to potential purchasers. Among other allegations, Plaintiffs assert that the Official
Statement misrepresented the facility’s design and its ability to generate revenue
required to repay the bonds.
The district court dismissed Plaintiffs’ Arizona Securities Act (“ASA”)
claim, A.R.S. § 44-1991(A), as barred by the statute of limitations. Subsequently,
the district court granted summary judgment to Defendants on the remaining
common law fraud, negligent misrepresentation, and aiding and abetting fraud
claims for Plaintiffs’ failure to establish reliance on misrepresentations when they
purchased the bonds.
On appeal, Plaintiffs challenge these two rulings. We have jurisdiction
under 28 U.S.C. § 1291. We review a dismissal for failure to state a claim de
novo. Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). “We
accept all factual allegations in the complaint as true and construe the pleadings in
the light most favorable to the nonmoving party.” Id. (internal quotations and
citation omitted). We also review a summary judgment de novo. Desire, LLC v.
4 24-7605 Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021). On review, we must
determine, viewing the evidence in the light most favorable to the nonmoving
party, “whether there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.” Soc. Techs. LLC v.
Apple Inc., 4 F.4th 811, 816 (9th Cir. 2021) (citation omitted). We affirm.
1. The district court did not err in dismissing Plaintiffs’ ASA claim as
barred by the two-year statute of limitations. See A.R.S. § 44-2004(B). Under
Arizona law, a cause of action accrues when “the plaintiff knows or with
reasonable diligence should know the facts underlying the cause.” Satamian v.
Great Divide Ins. Co., 545 P.3d 918, 925 (Ariz. 2024) (internal quotations and
citation omitted). Plaintiffs need not know all of the facts underlying their ASA
claim to trigger accrual. See id. Rather, the statute of limitations begins to run
when Plaintiffs, exercising reasonable diligence, “suspected” that Defendants had
misrepresented material facts in the Official Statement. See Aaron v. Fromkin, 994
P.2d 1039, 1043 (Ariz. Ct. App. 2000).
Between October 14, 2024 and July 24, 2015, Plaintiffs received five
bondholder disclosures.2 These disclosures establish that Plaintiffs’ ASA claim
2 The district court did not abuse its discretion in taking judicial notice of a Standard & Poors (“S&P”) notice from December 17, 2014, and a notice from Vieste to bondholders on July 24, 2015. Both notices are matters of public record and the district court did not rely on the veracity of their contents. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (holding that courts may
5 24-7605 began to accrue no later than July 24, 2015.
On October 14, 2014, Vieste informed bondholders that there was a “delay
in achieving full scale Commercial Operation” because the waste delivered by
Glendale “had substantial amounts of yard waste,” which Vieste believed was
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CROSSFIRST BANK, a Kansas banking No. 24-7605 corporation; CROSSFIRST D.C. No. INVESTMENTS INCORPORATED, a 2:18-cv-01637-DLR Kansas corporation; MINNESOTA LAWYERS MUTUAL INSURANCE COMPANY, a Minnesota corporation; MEMORANDUM* ALPS PROPERTY & CASUALTY INSURANCE COMPANY, a Montana corporation,
Plaintiffs - Appellants,
and
NANCY HANNA, FRANK HANNA Sr., WESLEY HANNA TRUST, trustee of Frank Hanna , Sr. trustee of Henry H Hanna, III trustee of Wesley Hanna, LEIGH HANNA TRUST, trustee of Frank Hanna , Sr. trustee of Henry H Hanna, III trustee of Leigh Hanna, FRANK HANNA JR TRUST, trustee of Frank Hanna , Sr. trustee of Henry H Hanna, III trustee of Frank Hanna, Jr.,
Plaintiffs,
v.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. VIESTE SPE, LLC, an Arizona limited liability company; VIESTE ENERGY, LLC, an Indiana limited liability company; VIESTE, LLC, an Indiana limited liability company; MARK BRANAMAN, Manager and agent of Vieste Energy, Vieste SPE, and Vieste; MICHAEL A. COMPARATO Sr., Manager and agent of Vieste Energy, Vieste SPE, and Vieste; JOSEPH COOK, previously named as Joseph A Cook, manager and agent of Vieste SPE; DONALD W. CURRISE, Manager and agent of Vieste SPE and Vieste and President and CEO of Vieste; JOSHUA D. ROGERS, Manager and agent of Vieste SPE; HERBERT J SIMS & CO., INC., a Connecticut corporation; TIMOTHY XAN SMITH, Employee and agent of HJ Sims; LAWSON FINANCIAL CORPORATION, an Arizona corporation; ROBERT LAWSON; PAMELA LAWSON, husband and wife,
Defendants - Appellees,
WILLIAM B. SIMS, President, Managing Principal, and CEO of HJ Sims, JANE DOE LYNCH, husband and wife, JERRY G. PETERSON, partner at Peck, Shaffer & Williams, LLP, DINSMORE & SHOHL, LLP, an Ohio limited liability partnership, PECK SHAFFER & WILLIAMS, LLP, a Georgia limited liability partnership, WESLEY HANNA, trustee of: Frank Hanna, Sr, Henry H. Hanna, III, & Wesley Hanna (Wesley Hanna trust), LEIGH HANNA, trustee of Frank Hanna, Sr., Henry H Hanna, III, & Leigh L. Hanna FBO
2 24-7605 Leigh Hanna trust,
Defendants.
Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Argued and Submitted November 18, 2025 Phoenix, Arizona
Before: MURGUIA, Chief Judge, and HURWITZ and COLLINS, Circuit Judges.
In 2012, Defendants-Appellees Vieste1 LLC and affiliated persons
(“Vieste”) engaged with the City of Glendale to construct a materials-recycling
facility. The agreement provided that Glendale would deliver waste to the facility,
the facility would remove recyclables from the waste, and Vieste would send the
remaining waste to a landfill. Defendants-Appellees Herbert J. Sims & Co., Inc.
and Lawson Financial Corporation underwrote bonds issued to fund the
construction of the facility.
However, after the bonds were issued, Vieste and Glendale disputed whether
Glendale could deliver yard waste—such as materials from brush, trees, shrubs,
and lawns—to the facility. The facility was designed and constructed such that it
1 “Vieste” as used herein refers collectively to the three Vieste entities (Vieste LLC, Vieste Energy, LLC, and Vieste SPE, LLC) and four of Vieste SPE’s Board of Managers—Michael Comparato, Don Currise, Joseph Cook, and Mark Branaman.
3 24-7605 would be cost-prohibitive to process yard waste. Due to this dispute, the facility
never achieved commercial operations and the bonds defaulted.
Plaintiffs-Appellants are purchasers of the bonds. They allege that Vieste
and the underwriters (collectively, “Defendants”) made misrepresentations in the
bond’s Official Statement, a document that disclosed information about the bonds
to potential purchasers. Among other allegations, Plaintiffs assert that the Official
Statement misrepresented the facility’s design and its ability to generate revenue
required to repay the bonds.
The district court dismissed Plaintiffs’ Arizona Securities Act (“ASA”)
claim, A.R.S. § 44-1991(A), as barred by the statute of limitations. Subsequently,
the district court granted summary judgment to Defendants on the remaining
common law fraud, negligent misrepresentation, and aiding and abetting fraud
claims for Plaintiffs’ failure to establish reliance on misrepresentations when they
purchased the bonds.
On appeal, Plaintiffs challenge these two rulings. We have jurisdiction
under 28 U.S.C. § 1291. We review a dismissal for failure to state a claim de
novo. Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019). “We
accept all factual allegations in the complaint as true and construe the pleadings in
the light most favorable to the nonmoving party.” Id. (internal quotations and
citation omitted). We also review a summary judgment de novo. Desire, LLC v.
4 24-7605 Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021). On review, we must
determine, viewing the evidence in the light most favorable to the nonmoving
party, “whether there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.” Soc. Techs. LLC v.
Apple Inc., 4 F.4th 811, 816 (9th Cir. 2021) (citation omitted). We affirm.
1. The district court did not err in dismissing Plaintiffs’ ASA claim as
barred by the two-year statute of limitations. See A.R.S. § 44-2004(B). Under
Arizona law, a cause of action accrues when “the plaintiff knows or with
reasonable diligence should know the facts underlying the cause.” Satamian v.
Great Divide Ins. Co., 545 P.3d 918, 925 (Ariz. 2024) (internal quotations and
citation omitted). Plaintiffs need not know all of the facts underlying their ASA
claim to trigger accrual. See id. Rather, the statute of limitations begins to run
when Plaintiffs, exercising reasonable diligence, “suspected” that Defendants had
misrepresented material facts in the Official Statement. See Aaron v. Fromkin, 994
P.2d 1039, 1043 (Ariz. Ct. App. 2000).
Between October 14, 2024 and July 24, 2015, Plaintiffs received five
bondholder disclosures.2 These disclosures establish that Plaintiffs’ ASA claim
2 The district court did not abuse its discretion in taking judicial notice of a Standard & Poors (“S&P”) notice from December 17, 2014, and a notice from Vieste to bondholders on July 24, 2015. Both notices are matters of public record and the district court did not rely on the veracity of their contents. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (holding that courts may
5 24-7605 began to accrue no later than July 24, 2015.
On October 14, 2014, Vieste informed bondholders that there was a “delay
in achieving full scale Commercial Operation” because the waste delivered by
Glendale “had substantial amounts of yard waste,” which Vieste believed was
“specifically excluded as ‘unacceptable’ waste” in its agreement with Glendale.
Vieste acknowledged that the “most prudent course of action” would be “to retrofit
the facility to include yard waste.” On December 12, 2014, notices were sent
seeking bondholder consent for Vieste to secure debt financing to retrofit the
facility for yard waste. The notice informed bondholders that Glendale would not
remove yard waste from the waste stream and that this dispute had “serious
adverse effects on the project.” On December 17, 2014, S&P notified the
bondholders that it had downgraded the bonds from A+ to BBB-, citing the yard
waste dispute.
On April 24, 2015, after the bonds went into payment default, Vieste
disclosed to bondholders that Glendale had filed a lawsuit against Vieste in state
court seeking, among other things, a declaration that Glendale did not have to
remove yard waste from the waste stream before delivering it to the facility.
judicially notice that statements in public records were made, without noticing the correctness of those statements), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002).
6 24-7605 Finally, on July 24, 2015, Vieste disclosed to bondholders that the state court had
denied Vieste’s motion for judgment on the pleadings, finding that there was no
provision in the relevant agreement that explicitly required Glendale to remove
yard waste. Rather, the state court observed that “certain provisions of the
[agreement] arguably suggest a different meaning and intent than that advanced by
[Vieste].”
Taken together, these notices were sufficient to put Plaintiffs on notice of a
claim that Vieste had misrepresented the facility’s design and its ability to generate
revenue to repay the bonds.3 Thus, Plaintiffs’ ASA claim began to accrue no later
than July 24, 2015. Because Plaintiffs did not file their complaint until April 27,
2018, the district court did not err in dismissing the ASA claim as barred by the
two-year statute of limitations.
2. The district court also did not err in finding that Plaintiffs failed to
establish reliance for their common law claims. Under Arizona law, reliance is an
essential element of both fraud and negligent misrepresentation claims.4 See
3 Glendale made no representations in the Official Statement. 4 Because Plaintiffs’ aiding and abetting claim is derivative of their fraud and negligent misrepresentation claims, if Plaintiffs’ fraud and negligent misrepresentation claims fail, their aiding and abetting claim also fails. See Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund, 38 P.3d 12, 23 (Ariz. 2002) (claims of aiding and abetting tortious conduct require proof that the primary tortfeasor committed a tort that caused injury to the plaintiff).
7 24-7605 Echols v. Beauty Built Homes, Inc., 647 P.2d 629, 631 (Ariz. 1982) (fraud); St.
Joseph’s Hosp. & Med. Ctr. v. Rsrv. Life Co., 742 P.2d 808, 817 (Ariz. 1987)
(negligent misrepresentation). None of Plaintiffs’ witnesses involved in the
decision to purchase the bonds—Paul Jungquist, Erik Nelmark, and David
O’Toole—had a recollection of which statements they read and relied upon in the
Official Statement. Nevertheless, Plaintiffs contend that the district court erred by
not considering that each witness had a habit of reviewing and relying on official
statements to make investment decisions.
However, the testimonies of Jungquist, Nelmark, and O’Toole were
insufficient to establish reliance. First, Jungquist admitted that he never read the
Official Statement before the bonds were purchased. Second, Nelmark did not
testify to a habit of reviewing official statements. Rather, Nelmark testified that
his review of a bond transaction depended on the bond rating and its business
sector. Nelmark could not say for sure if he would even look at the revenue or
projections of an A+ rated bond. Finally, O’Toole did testify that he conducts a
“high-level review” of official statements, and he had a “specific recollection of
reviewing the Official Statement” at issue in the instant case, but he could not
recall the “depth of [his] review” or identify a “single false or affirmative fact” or
8 24-7605 even a section in the Official Statement that he relied upon.5 The district court thus
did not err in granting summary judgment to Defendants for Plaintiffs’ failure to
establish reliance.
AFFIRMED.
5 Subsequently, O’Toole supplied a declaration in support of Plaintiffs’ opposition to Defendants’ motion for summary judgment in which he identified for the first time several purportedly false statements from the Official Statement on which he allegedly relied in deciding to purchase the bonds. But because this declaration contradicts O’Toole’s own prior testimony, the district court did not abuse its discretion in excluding O’Toole’s declaration as a sham affidavit. See Yeager v. Bowlin, 693 F.3d 1076, 1079–80 (9th Cir. 2012).
9 24-7605