Former TCHR, LLC v. First Hand Management LLC

2012 COA 129, 317 P.3d 1226, 2012 WL 3127336, 2012 Colo. App. LEXIS 1251
CourtColorado Court of Appeals
DecidedAugust 2, 2012
DocketNos. 11CA0990, 11CA1081
StatusPublished
Cited by15 cases

This text of 2012 COA 129 (Former TCHR, LLC v. First Hand Management LLC) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Former TCHR, LLC v. First Hand Management LLC, 2012 COA 129, 317 P.3d 1226, 2012 WL 3127336, 2012 Colo. App. LEXIS 1251 (Colo. Ct. App. 2012).

Opinion

Opinion by

Judge GABRIEL.

T 1 Plaintiff, Former TCHR, LLC, appeals the trial court's judgment rejecting its fraudulent concealment and misrepresentation claims against defendants Richard Oneslager, Jr. and Daniel P. Genovese and the trial court's midtrial dismissal of Former TCHR's conversion claim against defendant Balmar Management Group LLC. Former TCHR also appeals the district court's grant of attorney fees to Oneslager, Genovese, and Bal-mar.

(I 2 We conclude that the trial court did not err in finding that Former TCHR's fraudulent concealment and - misrepresentation claims were barred by the economic loss rule. We further conclude, as an apparent matter of first impression in Colorado, that a conversion claim may lie against a defendant who gave value, received delivery, and then sold property with actual knowledge that the plaintiff had an unperfected security interest in that property. Thus, we hold that the [1229]*1229trial court erred in granting Balmar's midtrial motion to dismiss Former TCHR's conversion claim and remand for further proceedings on that claim. Finally, we conclude that we lack jurisdiction to consider Former TCHR's appeal of the attorney fee award because that award is not yet final.

3 Accordingly, we affirm the judgment in favor of defendants Oneslager and Genovese on the fraudulent concealment and misrepresentation claims, reverse the dismissal of Former TCHR's conversion claim against Balmar and remand for a new trial on that claim, and dismiss without prejudice Former TCHR's appeal of the fee award to Oneslager, Genovese, and Balmar.

I. Background

' 4 Through a predecessor in interest, Former TCHR, whose sole member was attorney and sophisticated real estate investor Samuel Brown, signed a Real Estate Sale Agreement with Town Center Investors, LLC (TCI) to purchase a shopping center from TCI. TCI was owned by Oneslager, and Genovese was the shopping center's property manager.

T5 The Sale Agreement required that TCI provide Former TCHR with certain due dili-genee materials within ten business days after the execution of the Agreement. These materials included the leases and rent roll applicable to the property; any contracts affecting the property; environmental, mechanical, structural, soils, and other reports or evaluations concerning the property; rental and operational expense records for the prior twelve months; and the most recent survey of the property. In addition, the Agreement gave Former TCHR extensive investigation rights and allowed it to terminate the Agreement on or before the expiration of a defined investigation period if it was not satisfied with the results of its investigation and testing.

T6 The Agreement also contained a lengthy "as is" clause, which stated, in all capital letters:

[EJxcept as provided expressly herein and in the closing documents, neither Seller nor anyone acting for or on behalf of Seller, has made any representation, warranty, statement or promise to Buyer concerning the real estate, the quality, value, physical aspects or condition thereof, ... the current or projected income or expenses of the real estate, or any other matter with respect to the real estate; that entering into this agreement, Buyer expressly releases Seller from all such matters and acknowledges that it is relying solely on its own investigation and has not relied upon any representation, statement or warranty of Seller or anyone acting for or on behalf of Seller, other than as expressly contained in this agreement or the closing documents and is thereby purchasing the real estate as is; and that Buyer does hereby waive and Seller does hereby disclaim all warranties of any kind or type whatsoever with respect to the real estate, whether expressed or implied.... Buyer has not relied and will not rely on, and Seller is not liable for or bound by, any express or implied warranties, guaranties, statements, representations or information pertaining to the property or relating thereto made or furnished by Seller, property manager, Broker, or any real estate broker or agent representing or purporting to represent Seller, to whomever made or given, directly or indirectly, verbally or in writing, unless specifically set forth herein, and Buyer expressly holds Seller harmless in relation to such matters.

T7 The shopping center's anchor tenant, Willary Town Center LLC, operated a gas station and convenience store on the premises. - Balmar, which was also owned by Ones-lager and which employed Genovese, supplied fuel to Willary.

18 After TCI and Former TCHR signed the Sale Agreement but before the closing, Former TCHR received information that Willary had lost money in the prior year and that, on occasion, it was late in paying rent to TCI. Former TCHR then entered into a "gide letter" with defendant First Hand Management, LLC, another company that Ones-lager owned. Under this side letter, if Wil-lary defaulted on its lease during the first twenty-four months after the date of the letter, Former TCHR could exercise a "Replacement Option" and require First Hand, [1230]*1230among other things, to assume Willary's lease and operate the gas station and convenience store in Willary's stead.

T9 Former TCHR subsequently closed on the shopping center and assumed TCI's lease with Willary. As pertinent here, that lease provided:

In addition to the statutory landlord's lien, Landlord [Former TCHR] shall have at all times a valid security interest to secure payment of all rentals and other sums of money becoming due under the Lease from Tenant, ... upon all goods, wares, equipment, fixtures, furniture, improvements, and other personal property of Tenant presently, or which may hereafter be, situated on the Premises, and all proceeds therefrom. Such property shall not be removed without the consent of Landlord until all arrearages ... shall first have been paid and discharged.

The Willary lease also provided that upon the event of a default by Willary, Former TCHR could, on reasonable notice, enter the premises, take possession of any of Willary's property situated thereon, and sell such property at a public or private sale.

T 10 Soon after Former TCHR closed on the shopping center, Willary defaulted on its lease. Thereafter, Former TCHR served a demand for payment of rent or possession on Willary. Willary subsequently vacated the premises, leaving behind convenience store and fuel inventory. Former TCHR then chose to exercise the Replacement Option, and pursuant to that agreement, First Hand assumed Willary's lease obligation and took over the operation of the gas station and convenience store.

11 Upon its departure from the premises, Willary, through counsel, wrote to Former TCHR and offered to turn over the lease and its then-existing convenience store and fuel inventory to First Hand, provided that Former TCHR release Willary from the lease and pay it fair compensation or give it a credit against its rent deficiency for the inventory. We have seen no indication in the record as to whether Former TCHR responded to this offer. The record, however, reflects that Willary, which had also incurred a substantial debt to Balmar for fuel, constructively transferred the inventory to Bal-mar in exchange for a reduction in Willary's debt to Balmar. Balmar then sold the inventory to its sister company, First Hand (both Balmar and First Hand were owned by On-eslager), for sale to First Hand's customers.

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Bluebook (online)
2012 COA 129, 317 P.3d 1226, 2012 WL 3127336, 2012 Colo. App. LEXIS 1251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/former-tchr-llc-v-first-hand-management-llc-coloctapp-2012.