United States District Court, N.D. Oklahoma
1 TMBRS PROPERTY HOLDINGS, LLC, a Utah Limited Liability Company, 2 ZIBALSTAR, L.C., a Utah Limited Liability Company, and 3 GARY BRINTON, an individual, Plaintiffs,
1 ROBERT CONTE, an individual, 2 MARK BEESLEY, an individual, 32140 S. 109TH EAST OK, LLC, a Texas Limited Liability Company, 4 OXFORDSHIRE HOLDINGS, LLC, a Texas Limited Liability Company, 52507 SOUTH 87TH EAST AVE OK, LLC, a Texas Limited Liability Company, 62523 EAST 10TH STREET OK, LLC, a Texas Limited Liability Company, 7 HEATHROW HOLDINGS, LLC, a Texas Limited Liability Company, 8 SCOTT PACE, an individual, 9 NIDIA RUIZ, an individual, 10 ERIC MANRIQUEZ, an individual, Defendants, and TULSA SILVERWOOD APARTMENTS, LLC, Intervenor/Defendant.
OPINION & ORDER
E. DOWDEEL UNITED STATES DISTRICT JUDGE
TMBRS Property Holdings, LLC (“TMBRS”),
Zibalstar, L.C., and Gary Brinton (collectively,
“Plaintiffs”) initially filed their complaint on
August 29, 2017. In this initial complaint, Plaintiffs sought
a preliminary injunction and alleged counts of fraud, breach
of contract and the implied covenant of good faith and fair
dealing, conversion, and conspiracy. The complaint concerned
several properties in Oklahoma, including the Silverwood
Apartments in Tulsa. (Doc. 2 at 4-5). On October 23, 2017,
Tulsa Silverwood Apartments, LLC (“Tulsa
Silverwood”) filed a motion to intervene as defendant,
cross-claimant, and counter-claimant, which this Court
granted. (See Doc. 45, 57).
October 27, 2017, Plaintiffs filed an amended complaint (Doc.
54). The amended complaint contains the same claims as the
original complaint, but it does not include a request for a
preliminary injunction. (See id. at 11-12).
Defendants Oxfordshire Holdings, LLC; 2507 South 87th East
Ave OK, LLC; 2523 East 10th Street OK, LLC; and Heathrow
Holdings, LLC, jointly filed counterclaims against
Plaintiffs, (see Doc. 99), but all claims between
the Plaintiffs and the “Conte
Defendants” have since been dismissed (see
November 2, 2017, Tulsa Silverwood filed claims seeking
quieted title, an accounting, and the recovery of rents
against the Plaintiffs and against all of its co-defendants
except Scott Pace. (See Doc. 64, 65). In its present
Combined Motion for Partial Summary Judgment and Motion for
Writ of Assistance (Doc. 108), Tulsa Silverwood asks the
Court to enter partial summary judgment in its favor against
the Plaintiffs and Conte Defendants with respect to:
1) Tulsa Silverwood's claim that it is the rightful owner
of the Silverwood Apartments;
2) Tulsa Silverwood's claim that it is entitled to
immediate possession and control of the Silverwood
3) Tulsa Silverwood's claim that it is entitled to an
accounting from all parties of their respective collection of
revenues from the Silverwood Apartments from and after August
(Doc. 108 at 2). Tulsa Silverwood also seeks a writ of
assistance directing the United States Marshal to evict TMBRS
and any other person or persons who are presently in
possession of the Silverwood Apartments. (Id. at
14). Lastly, Tulsa Silverwood seeks an award of
attorney's fees and costs. (Id. at 15).
Conte Defendants jointly submitted a Response (Doc. 131), as
did Plaintiffs (Doc. 129). Tulsa Silverwood submitted a Reply
following facts are supported by evidence in the record and
are construed in favor of the non-movants. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
about March 12, 2014, Robert Conte (“Conte”)
purchased the apartment complex known as the Silverwood
Apartments in Tulsa, Oklahoma, and the land on which it sits.
(Doc. 131-1 at 2 [Conte Decl. at ¶ 3]). Theodore L.
Hansen (“Hansen”) assisted Conte with this
purchase and formed, at Conte's direction, an entity to
take title to the Silverwood Apartments called 2507 South
87th East Ave OK, LLC (“2507 South”).
(Id. [Conte Decl. at ¶¶ 4-5, 7]).
Unbeknownst to Conte, Hansen created an operating agreement
for 2507 which listed E Z 159, LLC, an entity owned or
controlled by Hansen, as the sole member of 2507 South.
(Id. [Conte Decl. at ¶ 9]).
March 1, 2015, TMBRS entered into a Master Lease with Option
to Purchase with three entity landlords: 2507 South,
Oxfordshire Holdings, LLC, and 2523 East 10th Street OK, LLC.
(Doc. 129-1 at 2 [Brinton Decl. at ¶ 3]; Doc. 131-1 at 3
[Conte Decl. at ¶ 10]). Under the Master Lease, TMBRS
would be the tenant of three apartment complexes, including
the Silverwood Apartments. (Doc. 129-1 at 6). The Master
Lease was signed by Robert Conte, on behalf of the entity
landlords, and by the members of TMBRS. (Id. at 20;
id. at 2 [Brinton Decl. at ¶ 3]). The Master
Lease contained the following subordination provision:
Tenant [TMBRS] hereby subordinates this Lease to the lien of
any deed of trust, mortgage or mortgages now or hereafter
placed upon Landlord's interest in the Premises and to
all renewals, modifications, consolidations or extensions
thereof. Although no instrument or act on the part of Tenant
[TMBRS] shall be necessary to effectuate such subordination,
Tenant agrees to execute, ...