United States District Court, W.D. Oklahoma
BARRY D. DAVIDSON, a resident of and Domiciled in the State of Arkansas, et al., Plaintiffs,
JOAN MEG MORRIS CONINE, a/k/a MEG CONINE, et al., Defendants.
L. PALK, UNITED STATES DISTRICT JUDGE
the Court is Defendants' Rule 12(b)(6) Motion to Dismiss
and Brief in Support or Alternatively, Rule 12(e) Motion for
More Definite Statement [Doc. No. 13]. Plaintiffs have
responded [Doc. No. 16] and Defendants have replied [Doc. No.
The matter is fully briefed and ready for determination.
action involves a dispute arising from a real estate project
in Edmond, Oklahoma. Certain parties to the action formerly
engaged in a real estate development business known as
Davidson Conine Realty Advisors, Inc. and entered into a
contractual agreement concerning the real estate project.
Plaintiffs, Barry D. Davidson and Lou A. Davidson
(Plaintiffs) seek to recover from certain Defendants money
they claim is due to them as a consulting fee and for
reimbursement of costs under the terms of the contractual
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must plead
sufficient factual allegations “to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that they defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
evaluate the sufficiency of the allegations of the complaint
under the “Twombly/Iqbal pleading
standard” the court undertakes a “two-prong
approach.” Alpenglow Botanicals, LLC v. United
States, 894 F.3d 1187, 1195 (10th Cir. 2018) (citation
omitted). Under the first prong, the court determines which
allegations are not entitled to the assumption of truth and
includes “legal conclusions” and
“threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. (citation omitted). The second prong requires
the court to assume the truth of the well-pleaded factual
allegations and determine whether they state a plausible
claim for relief. Id. (citation omitted).
the sufficiency of a complaint must rest on its contents
alone.” Gee v. Pacheco, 627 F.3d 1178, 1186
(10th Cir. 2010). Thus, “[w]hen a party presents
matters outside of the pleadings for consideration . . .
‘the court must either exclude the material or treat
the motion as one for summary judgment.'”
Brokers' Choice of Am., Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (quoting
Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th
Cir. 2004)). Certain exceptions exist, and the court may
consider: (1) documents attached to the complaint as
exhibits; (2) documents referenced in the complaint that are
central to the plaintiff's claims if the parties do not
dispute the documents' authenticity; and (3) matters of
which the court may take judicial notice. Gee, 627
F.3d at 1186.
Factual Allegations of the
claims at issue in this lawsuit arise out of a low-income
housing development complex in Edmond, Oklahoma, known as the
Creekside Project. The parties involved in the Creekside
Project include Meg Conine; Kent Conine; Conine Realty
Advisors, Inc., a Texas corporation (CRA); Barry Davidson;
Lou Davidson; and Davidson Realty Advisors, LLC, a Texas
limited liability company (DRA).
parties executed a Split-Up Agreement on November 27, 2002.
Meg Conine and Kent Conine each signed the Agreement on
behalf of “The Conine Group” and Meg Conine also
signed the Agreement on behalf of CRA. The Agreement provided
for an accounting and settlement of the assets and
obligations related to the interests set forth above. At the
time of execution, the parties believed the Creekside Project
would cease to exist because it would not be able to obtain
certain federal tax credits. Contrary to this belief, the
Creekside Project ultimately did obtain the federal tax
credits. As a result, the Creekside Project was completed and
is currently operating in Edmond, Oklahoma as a residential
to an amendment to the Split-Up Agreement, Plaintiffs allege
they are entitled to a consulting fee in the amount of $246,
500.00 and to reimbursement of costs in the amount of $8,
641.82. Also, pursuant to a Security Agreement signed
contemporaneously with the Split-Up Agreement, Plaintiffs
allege they have a security interest in the Creekside Project
for the monies due and owing to them. The Security Agreement
is signed by Kent Conine as the Debtor and Barry Davidson as
the Secured Party.
further allege that Defendant Creekside Village, L.P.
(Creekside Village) is owned by Meg and Kent Conine.
Plaintiffs allege that the Conines have transferred funds and
assets formerly held by CRA to Creekside Village and that
some or all of those funds and assets are owed to Plaintiffs
under the terms of the Split-Up Agreeement and/or the
Count 1 of the Complaint, Plaintiffs allege a claim for
breach of contract against Defendants Meg Conine, Kent Conine
and CRA pursuant to the terms of the Split-Up Agreement and
Security Agreement. Plaintiffs further allege Defendant
Creekside Village, LP is an indispensable party to this
action because it was created to hold ...