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Davidson v. Conine

United States District Court, W.D. Oklahoma

June 18, 2019

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.



         Before 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. 18].[1] The matter is fully briefed and ready for determination.

         I. Introduction

         This 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 agreement.

         II. Governing Standard

         To 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 (2009).

         To 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).

         “Generally, 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.

         III. Factual Allegations of the Complaint[2]

         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).[3]

         The 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 housing complex.

         Pursuant 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.

         Plaintiffs 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 Security Agreement.

         In 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 ...

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