Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

TMBRS Property Holdings, LLC v. Conte

United States District Court, N.D. Oklahoma

April 16, 2018

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,
v.
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

          JOHN E. DOWDEEL UNITED STATES DISTRICT JUDGE

         Plaintiffs 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).

         On 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”[1] have since been dismissed (see Doc. 132).

         On 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[2] 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 Apartments; and
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 15, 2017.

(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).

         The Conte Defendants jointly submitted a Response (Doc. 131), as did Plaintiffs (Doc. 129). Tulsa Silverwood submitted a Reply (Doc. 133).

         I. Background

         The 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).

         On or 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]).[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]).

         On 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, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.