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Foxfield Villa Associates, LLC v. Robben

United States District Court, D. Kansas

February 26, 2018




         This matter comes before the court upon defendants RDC Holdings, LLC (“RDC”) and Paul Robben's Motion for Summary Judgment on Plaintiff's Sole Federal Claim and Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 183).

         Also before the court are:

• Defendants' Motion Regarding Plaintiffs' Rebuttal Experts (Doc. 157)
• Defendants' Motion for Summary Judgment On Plaintiff's State Law Claims (Doc. 179)
• Defendants' Motion for Summary Judgment On Defendants' Affirmative Defenses (Doc 181)
• Plaintiffs Bartlett Family Real Estate Fund, LLC, Richard A. Bartlett, Foxfield Villa Associates, LLC, Pres, LLC, and Ernest J. Straub, III's Motion for Summary Judgment on Question of Whether PRES, LLC and Bartlett Family Real Estate Fund, LLC FVA Interests, and Bartlett's FVA Note are Securities (Doc. 185)
• Plaintiffs' Motion for Summary Judgment on Defendants' Mitigation of Damages and Statute of Limitations Affirmative Defenses (Doc. 187)
• Plaintiffs' Motion for Summary Judgment on Plaintiffs' Affirmative Claims (Doc. 189)
• Plaintiffs' Motion to Strike [201] Memorandum in Opposition to Motion, [202] Memorandum in Opposition to Motion, [199] Memorandum in Opposition to Motion, Exhibit A to Doc. 201, Exhibit B to Doc. 202, and Exhibit B to Doc. 199 (Doc. 208)
• Plaintiffs' Motion for Leave to file a Sur-reply in Opposition to Defendants' Motion for Summary Judgment on Plaintiffs' State Law Claims and Suggestions in Support (Doc. 215)
• Plaintiffs' Motion to Exclude and/or Strike Expert Evidence from Shawn D. Fox (Doc. 221) and
• Defendants' Motion to Exclude, Strike and/or Limit Testimony of Plaintiffs' Damages Expert (Doc. 223).

         For the reasons explained more fully below, defendants' motion (Doc. 183) is granted and the court denies all other motions as moot.

         I. Background

         Plaintiffs filed this case on August 10, 2012 against various defendants, not including RDC and Robben (Doc. 1). The case was stayed January 17, 2013, pending the resolution of a related action that was pending in the District Court of Johnson County, Kansas (Doc. 34). In the meantime, on March 8, 2014, plaintiffs filed another federal suit involving the same factual basis as this case and nearly identical parties, adding defendants RDC and Robben. On August 9, 2013, the court consolidated the federal cases (Doc. 50). The stay was not lifted until November 25, 2015, when the court granted plaintiffs leave to file an amended complaint that added RDC and Robben to this case (Doc. 65). On May 25, 2016, the court entered a scheduling order, outlining agreed deadlines and procedures for discovery in this case (Doc. 94). It does not appear that the court ordered mediation in this case, in part because it appeared fruitless to mediate when the parties did not have “something remotely approaching a common understanding of whether defendant RDC Holdings, LLC is judgment-proof.” (Doc. 111.) “[T]he parties have no common understanding of the fairly simple key facts that should drive whether any judgment plaintiffs might obtain against Mr. Robben's company, co-defendant RDC Holdings, LLC, could be satisfied.” (Id.)

         On April 11, 2017, the court entered a pretrial order (Doc. 170). Plaintiffs objected to the order and sought review (Doc. 175). The undersigned denied plaintiffs' motion for review on January 12, 2018 (Doc. 230). The six motions for summary judgment currently before the court were filed on May 5, 2017. (Docs 179, 181, 183, 185, 187, 189.)

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         The party moving for summary judgment has the burden to show “the lack of a genuine issue of material fact.” Ascend Media Prof'l Servs., LLC v. Eaton Hall Corp., 531 F.Supp.2d 1288, 1295 (D. Kan. 2008) (citing Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986))). Once the moving party meets this initial burden, the burden then shifts to the nonmovant to “set forth specific facts showing that there is a genuine issue for trial.” Id. (citing Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))).

         The nonmovant may not rest on his pleadings or “rely on ignorance of the facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)); Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Instead, the nonmovant is required to set forth specific facts, by referencing affidavits, deposition transcripts, or exhibits, from which a rational trier of fact could find for him. Fed R. Civ. P. 56(c)(1); see also Ascend Media, 531 F.Supp.2d at 1295 (citing Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)). Summary judgment is not a “disfavored procedural shortcut” -it is an “integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp., 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

         II. Facts

         A. The Parties and Their Businesses

         The following facts were either uncontroverted or viewed in the light most favorable to plaintiffs. The remaining parties to this suit are: plaintiffs Foxfield Villa Associates, LLC (“FVA”); Richard A. Bartlett; Ernest J. Straub, III; Bartlett Family Real Estate Fund, LLC (“BFREF”); Pres, LLC (“Pres”); and defendants Paul Robben and RDC Holdings, LLC (“RDC”).

         Defendant Robben is an experienced single-family and multi-family developer and formed RDC. Defendant Robben was involved with a prior company called Foxfield Associates, LLC, that was formed in 2000. Robben owned Woodstone, Inc., a Kansas corporation that was a 10 percent owner of Foxfield Associates, LLC. The other 90 percent was owned by parties not involved in this litigation. Foxfield Associates, LLC owned the 9.16 acre tract that FVA eventually purchased. It also had millions of dollars of debt liability to Bank of Blue Valley that defendant Robben personally guaranteed.

         Defendant RDC has been out of business since 2013, but it had a single member, Development Services Corporation, which was owned by defendant Robben, who was the sole officer, director, and shareholder. RDC's charter was forfeited in 2014 for failing to file an annual report.

         Plaintiff Bartlett has started, owned, served as CEO or chairman for, and sold various technology companies earning millions. Plaintiff Bartlett was also involved in several other real estate development projects with defendant Robben in the 2000s, including the Olathe Condo project, the Maple Crest project, and the Foxfield Villa project. Plaintiff BFREF is owned by plaintiff Bartlett and his wife Dena Bartlett, who are the only members.

         Plaintiff Straub owns Straub Construction Company, Inc., which was incorporated in Kansas in 1988. He also owns Straub Homes, LLC, which primarily specializes in residential construction. Straub has owned and constructed other real estate development projects over the years, including Town & Country Villas in Shawnee, Kansas, in which he and his father each had a 50 percent interest; and Chapel Ridge Multifamily, LLC, in which Straub had a 50 percent interest.

         In 2006, plaintiff Straub and defendant RDC formed Pres to acquire and develop the Mission Cliffs townhome subdivision in Kansas City, Kansas. Straub's company, Straub Construction, was the contractor on the Mission Cliffs project. RDC was manager of Pres until it resigned on January 1, 2009 because it could not meet required financial contributions. It relinquished its ownership interest in Pres on December 31, 2012. Straub is currently the only member of Pres.

         FVA was organized in 2007, and the operating agreement was signed by Robben and Straub on behalf of Pres, and Bartlett on behalf of BFREF. Its members are still Pres and BFREF, but defendant Robben owns no interest.

         B. The Foxfield Villa Project and Operating Agreement

         In October 2007 defendant Robben sent plaintiffs Bartlett and Straub a copy of a proposed operating agreement for FVA. In 2008, plaintiffs Bartlett and Straub signed the agreement, which granted BFREF and Pres each a 50 percent ownership interest in FVA. At the time, defendant RDC had a 50 percent ownership in Pres, which granted RDC a 25 percent interest in FVA. BFREF and Pres each made a $200, 000 capital contribution prior to closing in March 2008. Pres's contribution consisted of $100, 000 contributions from plaintiff Straub and defendant RDC.

         The language in the operating agreement provides that action may be taken by a majority in interest, meaning any member or combination of members holding more than 50 percent interest in the company, unless otherwise specified. Some specific actions, such as modifying the business purpose by engaging the company in other business, requires unanimous written consent of all members or a supermajority. The agreement allowed any member with at least a 10 percent interest to request a special meeting at any time and for any member with a majority in interest to request periodic meetings.

         Officers were to be elected by a majority in interest, and include a president and secretary. The members were allowed to elect a treasurer, vice presidents, treasurer(s), and secretaries in their discretion. Initially, the officers were defendant Robben serving as president and treasurer; plaintiff Straub serving as vice president; and plaintiff Bartlett serving as secretary. A majority determined salaries, if any, of officers. The president was the CEO and COO of the company and had general management of the day-to-day operations of the company. He was to “cause all decisions of the Members to be carried into effect.” (Doc. 198-3, at 18.) The vice president acted in the president's absence. The secretary recorded proceedings of meetings. And the treasurer was to keep accounts and prepare financial statements. Defendant Robben was removed as president and treasurer of FVA in early 2009.

         Additionally, each member could designate the names of two officers, directors, partners, members, managers, employees, or other affiliates to serve as the designated representatives of the member at meetings. Each member was an agent for FVA and each was vested with management of the company.

         The agreement required a majority in interest to make business decisions as set out by the agreement. The list included, but did not limit, actions requiring a majority to: contracting with FVA's legal, accounting and professional advisors; purchasing property; borrowing from banks; decisions on suppliers and contractors; establishing prices and selling lots; forming and ...

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