Nnn Durham Office Portfolio 1, LLC v. Grubb & Ellis Co.; Nnn Durham Office Portfolio 1, LLC v. Highwoods Realty Ltd. P'ship 2016 Ncbc 93a
This text of Nnn Durham Office Portfolio 1, LLC v. Grubb & Ellis Co.; Nnn Durham Office Portfolio 1, LLC v. Highwoods Realty Ltd. P'ship 2016 Ncbc 93a (Nnn Durham Office Portfolio 1, LLC v. Grubb & Ellis Co.; Nnn Durham Office Portfolio 1, LLC v. Highwoods Realty Ltd. P'ship 2016 Ncbc 93a) is published on Counsel Stack Legal Research, covering North Carolina Business Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NNN Durham Office Portfolio 1, LLC v. Grubb & Ellis Co.; NNN Durham Office Portfolio 1, LLC v. Highwoods Realty Ltd. P’ship, 2016 NCBC 93A.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF DURHAM 10 CVS 4392; 12 CVS 3945
NNN DURHAM OFFICE ) PORTFOLIO 1, LLC; et al., ) ) Plaintiffs, ) ) v. ) ) GRUBB & ELLIS COMPANY; ) GRUBB & ELLIS REALTY ) INVESTORS, LLC; GRUBB & ELLIS ) SECURITIES, INC.; NNN DURHAM ) OFFICE PORTFOLIO, LLC; and NNN ) REALTY ADVISORS, INC., ) ) Defendants. ) ) REVISED ORDER & OPINION AND FINAL JUDGMENT
NNN DURHAM OFFICE ) PORTFOLIO 1, LLC; et al., ) ) Plaintiffs, ) ) v. ) ) HIGHWOODS REALTY LIMITED ) PARTNERSHIP; HIGHWOODS DLF ) 98/29, LLC; HIGHWOODS DLF, LLC; ) HIGHWOODS PROPERTIES, INC.; ) GRUBB & ELLIS|THOMAS ) LINDERMAN GRAHAM; and ) THOMAS LINDERMAN GRAHAM ) INC., ) ) Defendants. ) )
1. THESE MATTERS are before the Court on multiple dispositive motions
filed in the two above-captioned lawsuits: NNN Durham Office Portfolio 1, LLC v. Grubb & Ellis Co., No. 10 CVS 4392 (the “Grubb & Ellis Lawsuit”) and NNN Durham
Office Portfolio 1, LLC v. Highwoods Realty Ltd. Partnership, No. 12 CVS 3945 (the
“Highwoods Lawsuit”).
Stark Law Group, PLLC, by Thomas H. Stark and Sara Pohlman Stark, and Penry Riemann, PLLC, by J. Anthony Penry, for Plaintiffs.
Parker Poe Adams & Bernstein LLP, by Charles E. Raynal IV and Jamie S. Schwedler, for Defendants Grubb & Ellis Company and Grubb & Ellis Securities, Inc.
Harris Sarratt & Hodges, LLP, by John L. Sarratt, for Defendants Grubb & Ellis Realty Investors, LLC, NNN Durham Office Portfolio, LLC, and NNN Realty Advisors, Inc.
Ellis & Winters LLP, by Jonathan D. Sasser, James M. Weiss, Jeremy M. Falcone, and Emily Erixson, for Defendants Highwoods Realty Limited Partnership, Highwoods DLF 98/29, LLC, Highwoods DLF, LLC, and Highwoods Properties, Inc.
Manning, Fulton & Skinner, P.A., by Michael T. Medford and J. Whitfield Gibson, for Defendants Thomas Linderman Graham Inc. and Grubb & Ellis|Thomas Linderman Graham.
Gale, Chief Judge.
I. INTRODUCTION
2. This litigation concerns a commercial-real-estate portfolio of five office
buildings in Durham, North Carolina (the “Durham Property”). Plaintiffs are a
combination of limited-liability companies (“LLCs”) and members of those LLCs who
utilized a tax-deferred exchange under section 1031 of the Internal Revenue Code to
purchase fractional tenant-in-common (“TIC”) interests in the Durham Property.
Plaintiffs claim that they were induced to purchase interests in the Durham Property
by materially false statements or omissions in a private-placement memorandum (“PPM”) concerning the probability that the Durham Property’s primary credit tenant
would renew its leases. The primary credit tenant’s leases were critical to the
Durham Property’s value, as demonstrated when that tenant later terminated its
leases and the Property went into foreclosure.
3. In the Grubb & Ellis Lawsuit, Plaintiffs bring claims against the entity
that issued the PPM and against other related entities allegedly responsible for the
misrepresentations in the PPM. Plaintiffs claim that those Defendants are subject
to primary liability under the North Carolina Securities Act (“Securities Act”).
4. In the Highwoods Lawsuit, Plaintiffs bring claims against the Durham
Property’s prior owner and the prior owner’s selling agent. Plaintiffs contend that
those Defendants had material knowledge that they failed to disclose, which led to
the misrepresentations in the PPM and subjects those Defendants to secondary
liability under the Securities Act.
5. All parties in the two lawsuits have moved for summary judgment on
one or more ground. This Order & Opinion addresses the following motions.
6. The first motion is The Highwoods Defendants’ Motion for Partial
Summary Judgment that the Transaction at Issue Does Not Constitute a Security
Under the North Carolina Securities Act (“Highwoods’ Motion for Partial Summary
Judgment”). This motion presents the question whether the TIC interests that
Plaintiffs purchased in the Durham Property are “securities” within the meaning of
the Securities Act. Highwoods’ Motion for Partial Summary Judgment is DENIED,
and summary judgment is GRANTED for Plaintiffs on this issue. 7. The second and third motions are The Highwoods Defendants’ Motion
for Judgment on the Pleadings (“Highwoods’ 12(c) Motion”) and Thomas Linderman
Graham, Inc.’s Motion for Judgment on the Pleadings (“TLG’s 12(c) Motion”)
(collectively the “12(c) Motions”). The 12(c) Motions present the issue whether any
claims under the Securities Act must be restricted to those Plaintiffs who either
received or accepted an offer for the sale of a security in North Carolina. The 12(c)
Motions are GRANTED, and any claim under the Securities Act brought by Plaintiffs
other than NNN Durham Office Portfolio 13, LLC, Fannie B. Blackwelder, NNN
Durham Office Portfolio 32, LLC, Kenneth Deno McLamb, NNN Durham Office
Portfolio 33, LLC, and Cynthia McLamb are DISMISSED.
8. The next five motions are cross-motions for summary judgment on the
issues of primary and secondary liability under the Securities Act in both lawsuits,
and on additional claims in the Grubb & Ellis Lawsuit. These motions include
(1) Highwoods Defendants’ Motion for Summary Judgment (“Highwoods’ Motion for
Summary Judgment”), (2) TLG’s Motion for Summary Judgment, (3) Defendants’
Joint Motion for Summary Judgment as to All Claims and All Parties (“Grubb & Ellis
Defendants’ Motion for Summary Judgment”), (4) Plaintiffs’ Motion for Partial
Summary Judgment Pursuant to N.C. R. Civ. P. 56 (“Plaintiffs’ Motion for Partial
Summary Judgment Against Highwoods & TLG”), and (5) Plaintiffs’ Motion for
Partial Summary Judgment Pursuant to N.C. R. Civ. P. 56 (“Plaintiffs’ Motion for
Partial Summary Judgment Against the Grubb & Ellis Defendants”). As to these
motions: Highwoods’ Motion for Summary Judgment is GRANTED;
TLG’s Motion for Summary Judgment is GRANTED;
The Grubb & Ellis Defendants’ Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART, and claims against
Grubb & Ellis Company (“Grubb & Ellis Co.”) and NNN Realty
Advisors, Inc. (“NNN Realty Advisors”) are DISMISSED;
Plaintiffs’ Motion for Partial Summary Judgment Against
Highwoods & TLG is DENIED; and
Plaintiffs’ Motion for Partial Summary Judgment Against the
Grubb & Ellis Defendants is DENIED.
9. Finally, the Court addresses Plaintiffs’ Motion to Modify the Court’s
Order with Respect to Their Claims of Punitive Damages Pursuant to N.C. R. Civ. P.
54(b) (“Plaintiffs’ 54(b) Motion”), filed in the Highwoods Lawsuit. This motion is
DENIED AS MOOT.
10. In summary, the Court determines the following:
Defendants have not presented adequate evidence for the Court
to find that Plaintiffs’ TIC interests, clearly marketed as
securities, reserved a sufficient degree of control to the investors
to disqualify the investment as an investment contract subject to
the Securities Act.
Claims under the Securities Act must be restricted to claims
brought by Plaintiffs who received or accepted an offer to sell in North Carolina, and all other Plaintiffs’ Securities Act claims
must be dismissed.
All claims against Grubb & Ellis Co. and NNN Realty Advisors
should be dismissed. There are material issues of fact as to
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NNN Durham Office Portfolio 1, LLC v. Grubb & Ellis Co.; NNN Durham Office Portfolio 1, LLC v. Highwoods Realty Ltd. P’ship, 2016 NCBC 93A.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF DURHAM 10 CVS 4392; 12 CVS 3945
NNN DURHAM OFFICE ) PORTFOLIO 1, LLC; et al., ) ) Plaintiffs, ) ) v. ) ) GRUBB & ELLIS COMPANY; ) GRUBB & ELLIS REALTY ) INVESTORS, LLC; GRUBB & ELLIS ) SECURITIES, INC.; NNN DURHAM ) OFFICE PORTFOLIO, LLC; and NNN ) REALTY ADVISORS, INC., ) ) Defendants. ) ) REVISED ORDER & OPINION AND FINAL JUDGMENT
NNN DURHAM OFFICE ) PORTFOLIO 1, LLC; et al., ) ) Plaintiffs, ) ) v. ) ) HIGHWOODS REALTY LIMITED ) PARTNERSHIP; HIGHWOODS DLF ) 98/29, LLC; HIGHWOODS DLF, LLC; ) HIGHWOODS PROPERTIES, INC.; ) GRUBB & ELLIS|THOMAS ) LINDERMAN GRAHAM; and ) THOMAS LINDERMAN GRAHAM ) INC., ) ) Defendants. ) )
1. THESE MATTERS are before the Court on multiple dispositive motions
filed in the two above-captioned lawsuits: NNN Durham Office Portfolio 1, LLC v. Grubb & Ellis Co., No. 10 CVS 4392 (the “Grubb & Ellis Lawsuit”) and NNN Durham
Office Portfolio 1, LLC v. Highwoods Realty Ltd. Partnership, No. 12 CVS 3945 (the
“Highwoods Lawsuit”).
Stark Law Group, PLLC, by Thomas H. Stark and Sara Pohlman Stark, and Penry Riemann, PLLC, by J. Anthony Penry, for Plaintiffs.
Parker Poe Adams & Bernstein LLP, by Charles E. Raynal IV and Jamie S. Schwedler, for Defendants Grubb & Ellis Company and Grubb & Ellis Securities, Inc.
Harris Sarratt & Hodges, LLP, by John L. Sarratt, for Defendants Grubb & Ellis Realty Investors, LLC, NNN Durham Office Portfolio, LLC, and NNN Realty Advisors, Inc.
Ellis & Winters LLP, by Jonathan D. Sasser, James M. Weiss, Jeremy M. Falcone, and Emily Erixson, for Defendants Highwoods Realty Limited Partnership, Highwoods DLF 98/29, LLC, Highwoods DLF, LLC, and Highwoods Properties, Inc.
Manning, Fulton & Skinner, P.A., by Michael T. Medford and J. Whitfield Gibson, for Defendants Thomas Linderman Graham Inc. and Grubb & Ellis|Thomas Linderman Graham.
Gale, Chief Judge.
I. INTRODUCTION
2. This litigation concerns a commercial-real-estate portfolio of five office
buildings in Durham, North Carolina (the “Durham Property”). Plaintiffs are a
combination of limited-liability companies (“LLCs”) and members of those LLCs who
utilized a tax-deferred exchange under section 1031 of the Internal Revenue Code to
purchase fractional tenant-in-common (“TIC”) interests in the Durham Property.
Plaintiffs claim that they were induced to purchase interests in the Durham Property
by materially false statements or omissions in a private-placement memorandum (“PPM”) concerning the probability that the Durham Property’s primary credit tenant
would renew its leases. The primary credit tenant’s leases were critical to the
Durham Property’s value, as demonstrated when that tenant later terminated its
leases and the Property went into foreclosure.
3. In the Grubb & Ellis Lawsuit, Plaintiffs bring claims against the entity
that issued the PPM and against other related entities allegedly responsible for the
misrepresentations in the PPM. Plaintiffs claim that those Defendants are subject
to primary liability under the North Carolina Securities Act (“Securities Act”).
4. In the Highwoods Lawsuit, Plaintiffs bring claims against the Durham
Property’s prior owner and the prior owner’s selling agent. Plaintiffs contend that
those Defendants had material knowledge that they failed to disclose, which led to
the misrepresentations in the PPM and subjects those Defendants to secondary
liability under the Securities Act.
5. All parties in the two lawsuits have moved for summary judgment on
one or more ground. This Order & Opinion addresses the following motions.
6. The first motion is The Highwoods Defendants’ Motion for Partial
Summary Judgment that the Transaction at Issue Does Not Constitute a Security
Under the North Carolina Securities Act (“Highwoods’ Motion for Partial Summary
Judgment”). This motion presents the question whether the TIC interests that
Plaintiffs purchased in the Durham Property are “securities” within the meaning of
the Securities Act. Highwoods’ Motion for Partial Summary Judgment is DENIED,
and summary judgment is GRANTED for Plaintiffs on this issue. 7. The second and third motions are The Highwoods Defendants’ Motion
for Judgment on the Pleadings (“Highwoods’ 12(c) Motion”) and Thomas Linderman
Graham, Inc.’s Motion for Judgment on the Pleadings (“TLG’s 12(c) Motion”)
(collectively the “12(c) Motions”). The 12(c) Motions present the issue whether any
claims under the Securities Act must be restricted to those Plaintiffs who either
received or accepted an offer for the sale of a security in North Carolina. The 12(c)
Motions are GRANTED, and any claim under the Securities Act brought by Plaintiffs
other than NNN Durham Office Portfolio 13, LLC, Fannie B. Blackwelder, NNN
Durham Office Portfolio 32, LLC, Kenneth Deno McLamb, NNN Durham Office
Portfolio 33, LLC, and Cynthia McLamb are DISMISSED.
8. The next five motions are cross-motions for summary judgment on the
issues of primary and secondary liability under the Securities Act in both lawsuits,
and on additional claims in the Grubb & Ellis Lawsuit. These motions include
(1) Highwoods Defendants’ Motion for Summary Judgment (“Highwoods’ Motion for
Summary Judgment”), (2) TLG’s Motion for Summary Judgment, (3) Defendants’
Joint Motion for Summary Judgment as to All Claims and All Parties (“Grubb & Ellis
Defendants’ Motion for Summary Judgment”), (4) Plaintiffs’ Motion for Partial
Summary Judgment Pursuant to N.C. R. Civ. P. 56 (“Plaintiffs’ Motion for Partial
Summary Judgment Against Highwoods & TLG”), and (5) Plaintiffs’ Motion for
Partial Summary Judgment Pursuant to N.C. R. Civ. P. 56 (“Plaintiffs’ Motion for
Partial Summary Judgment Against the Grubb & Ellis Defendants”). As to these
motions: Highwoods’ Motion for Summary Judgment is GRANTED;
TLG’s Motion for Summary Judgment is GRANTED;
The Grubb & Ellis Defendants’ Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART, and claims against
Grubb & Ellis Company (“Grubb & Ellis Co.”) and NNN Realty
Advisors, Inc. (“NNN Realty Advisors”) are DISMISSED;
Plaintiffs’ Motion for Partial Summary Judgment Against
Highwoods & TLG is DENIED; and
Plaintiffs’ Motion for Partial Summary Judgment Against the
Grubb & Ellis Defendants is DENIED.
9. Finally, the Court addresses Plaintiffs’ Motion to Modify the Court’s
Order with Respect to Their Claims of Punitive Damages Pursuant to N.C. R. Civ. P.
54(b) (“Plaintiffs’ 54(b) Motion”), filed in the Highwoods Lawsuit. This motion is
DENIED AS MOOT.
10. In summary, the Court determines the following:
Defendants have not presented adequate evidence for the Court
to find that Plaintiffs’ TIC interests, clearly marketed as
securities, reserved a sufficient degree of control to the investors
to disqualify the investment as an investment contract subject to
the Securities Act.
Claims under the Securities Act must be restricted to claims
brought by Plaintiffs who received or accepted an offer to sell in North Carolina, and all other Plaintiffs’ Securities Act claims
must be dismissed.
All claims against Grubb & Ellis Co. and NNN Realty Advisors
should be dismissed. There are material issues of fact as to
whether other Defendants in the Grubb & Ellis Lawsuit may be
found primarily liable under the Securities Act.
Even assuming that Plaintiffs can prove that any of the
Defendants in the Grubb & Ellis Lawsuit are primarily liable
under the Securities Act, Plaintiffs have failed to demonstrate a
basis for imposing secondary liability on Defendants in the
Highwoods Lawsuit.
Defendants in the Grubb & Ellis Lawsuit are not liable as a
matter of law on Plaintiffs’ claims of breach of contract,
negligence, negligent misrepresentation, breach of fiduciary duty,
constructive fraud, unfair and deceptive trade practices, civil
conspiracy, or punitive damages under chapter 1D.
This Order & Opinion resolves all claims against all parties in the
Highwoods Lawsuit. The issues arising from the surviving claims
in the Grubb & Ellis Lawsuit overlap with, and are common to,
the issues arising from claims dismissed by this Order & Opinion
in both the Grubb & Ellis Lawsuit and the Highwoods Lawsuit.
Thus, the Court concludes, pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, that this Order & Opinion shall
constitute a final judgment as to all parties and all claims except
for the remaining claims brought by the North Carolina Plaintiffs
in the Grubb & Ellis Lawsuit, and there is no just reason for delay
in entering a final judgment. To the contrary, a delay in entering
final judgment as to the dismissed parties and claims in the
Grubb & Ellis Lawsuit would cause substantial injustice to all
parties.
II. THE PARTIES
A. Plaintiffs
11. Plaintiffs in this litigation are thirty LLCs formed under Delaware law,
and a combination of thirty-one individuals, trusts, and corporations that are the sole
owners of those LLCs.1 Both the investment device—tenancy in common—and the
1 Plaintiffs in this litigation are NNN Durham Office Portfolio 1, LLC; James Osmond; NNN
Durham Office Portfolio 2, LLC; James Sun Yu Lam; NNN Durham Office Portfolio 3, LLC; Gary F. Turtle; NNN Durham Office Portfolio 4, LLC; Sherry L. Turtle; NNN Durham Office Portfolio 5, LLC; Gregory R. Maloney; NNN Durham Office Portfolio 6, LLC; Sharon I. Maloney; NNN Durham Office Portfolio 7, LLC; Jack Miller and Patricia M. Miller, Trustees for the Ray and Patricia M. Miller Trust; NNN Durham Office Portfolio 9, LLC; PCL Property, LLC; NNN Durham Office Portfolio 10, LLC; Frances H. Kieffer, Trustee for the Frances H. Kieffer 2000 Trust; NNN Durham Office Portfolio 11, LLC; Frank A. Norman, Jr.; NNN Durham Office Portfolio 12, LLC; St. Kitts Investments, LLC; NNN Durham Office Portfolio 13, LLC; Fannie B. Blackwelder; NNN Durham Office Portfolio 14, LLC; Samuel Davidson, Trustee for the Revocable Living Trust of Barbara L. Davidson; NNN Durham Office Portfolio 15, LLC; Frederick J. Hornbacher, Trustee for the Frederick J. Hornbacher Living Trust; NNN Durham Office Portfolio 16, LLC; Roberta MacGregor Masson, Trustee for the Roberta MacGregor Masson 2005 Trust; NNN Durham Office Portfolio 17, LLC; William B. Wachter II, Trustee for the William B. Wachter II Trust; NNN Durham Office Portfolio 18, LLC; Susan B. Wachter, Trustee for the Susan B. Wachter Trust; NNN Durham Office Portfolio 19, LLC; Pell/Cruz Investments, Inc.; NNN Durham Office Portfolio 20, LLC; Jack R. Brown; NNN Durham Office Portfolio 21, LLC; Patricia A. Brown; NNN Durham holders of TIC interests—tenants in common—are referred to as “TICs” in this Order
& Opinion.
12. As a prerequisite to investing in the Durham Property, each TIC owner
qualified as an accredited investor by meeting certain income and net-worth
requirements. Only three TIC owners—Fannie B. Blackwelder, Kenneth Deno
McLamb, and Cynthia McLamb—are North Carolina residents. Those TIC owners
and their respective LLCs—NNN Durham Office Portfolio 13, LLC, NNN Durham
Office Portfolio 32, LLC, and NNN Durham Office Portfolio 33, LLC—are collectively
referred to as the “North Carolina Plaintiffs.” The other Plaintiffs (the “Out-of-State
Plaintiffs”) received and accepted offers to purchase their TIC interests outside of
North Carolina.
B. The Highwoods Defendants
13. Defendants in the Highwoods Lawsuit are four entities that comprise a
publicly traded real-estate investment trust: (1) Highwoods DLF 98/29, LLC,
(2) Highwoods DLF, LLC, (3) Highwoods Properties, Inc., and (4) Highwoods Realty
Limited Partnership (collectively “Highwoods”). Highwoods owns, develops, acquires,
leases, and manages properties in the Southeast.
Office Portfolio 22, LLC; Jack D. La Flesch, Trustee for the JDL Trust; NNN Durham Office Portfolio 24, LLC; James K. Merrill and Muriel Sample, Successor Trustees for the John Irvin Montgomery Trust; NNN Durham Office Portfolio 26, LLC; C.G.B.M.T. Enterprises, Inc.; NNN Durham Office Portfolio 27, LLC; Susan E. Wagner; NNN Durham Office Portfolio 28, LLC; Federic J. Van Dis; NNN Durham Office Portfolio 29, LLC; Lawrence A. Wattson and Stephanie T. Wattson, Trustees for the Lawrence A. and Stephanie T. Wattson 2006 Trust; NNN Durham Office Portfolio 30, LLC; DAS Unlimited, Inc.; NNN Durham Office Portfolio 32, LLC; Kenneth Deno McLamb; NNN Durham Office Portfolio 33, LLC; Cynthia L. McLamb; NNN Durham Office Portfolio 34, LLC; Mark B. Pista; and Carol E. Pista. 14. Highwoods owned the Durham Property from March 15, 1999, to March
8, 2007.
C. Thomas Linderman Graham Inc.
15. Thomas Linderman Graham Inc. (“TLG”) is a former North Carolina-
based commercial-real-estate company. TLG conducted business under the trade
name Grubb & Ellis|Thomas Linderman Graham as a member of a network of
independently owned and operated real-estate brokerage businesses that grant
permission to use the Grubb & Ellis brand name.
16. TLG was Highwoods’ exclusive selling agent for the sale of the Durham
Property.
D. The Grubb & Ellis Defendants
17. Defendants in the Grubb & Ellis Lawsuit are Grubb & Ellis Co., Grubb
& Ellis Realty Investors, LLC (“GERI”), Grubb & Ellis Securities, Inc. (“Grubb & Ellis
Securities”), NNN Durham Office Portfolio, LLC (“NNN Office”), and NNN Realty
Advisors (collectively the “Grubb & Ellis Defendants”). For simplicity, in this Order
& Opinion, the Court refers to GERI as “Triple Net,” and to Grubb & Ellis Securities
as “NNN Capital.”
(1) Grubb & Ellis Co.
18. Grubb & Ellis Co. is a Delaware corporation that was founded in 1958,
and by the mid-1980s, had become the third largest commercial-real-estate firm in
the United States. 19. Grubb & Ellis Co. was not directly involved with the sale or purchase of
the Durham Property. On December 10, 2007, Grubb & Ellis Co. completed a reverse
triangular merger with NNN Realty Advisors, which caused NNN Realty Advisors
and its affiliates to become wholly owned subsidiaries of Grubb & Ellis Co. Through
the merger, Grubb & Ellis Co. acquired NNN Realty Advisors’ 1031 TIC-managed
portfolio, which included the portfolio for the Durham Property.
20. Plaintiffs now concede that all claims against Grubb & Ellis Co. should
be dismissed.
(2) Triple Net
21. Founded in 1998, Triple Net Properties, LLC (“Triple Net”) acquired,
syndicated, and managed commercial properties for TIC ownership, and sponsored
more than 150 TIC programs. Triple Net was the manager of both NNN Office and
Triple Net Properties Realty, Inc. (“Triple Net Realty”), the property manager for the
Durham Property, which is not named as a defendant in this litigation.
22. Triple Net’s name changed to GERI in 2007 when NNN Realty Advisors
merged with Grubb & Ellis Co. The company’s name changed to NNN Realty
Investors, LLC in August 2011.
(3) NNN Capital
23. NNN Capital Corp. (“NNN Capital”) was the managing broker–dealer
that offered TIC interests in the Durham Property to Plaintiffs. After the Grubb &
Ellis–NNN Realty Advisors merger in December 2007, NNN Capital’s name changed
to Grubb & Ellis Securities. (4) NNN Office
24. NNN Office is a Delaware LLC formed by Triple Net in 2007 for the sole
purpose of acquiring the Durham Property.
25. After forming NNN Office, Triple Net prepared the PPM that was
utilized in offering TIC interests in the Durham Property, and issued the PPM
through NNN Office. NNN Office owned a 15.773% TIC interest in the Durham
Property and is referred to as “TIC 0” in its capacity as a TIC owner.
(5) NNN Realty Advisors
26. NNN Realty Advisors was formed in September 2006 as the parent
company of Triple Net, Triple Net Realty, and NNN Capital. NNN Realty Advisors
became a subsidiary of Grubb & Ellis Co. when those companies merged in 2007.
III. FACTUAL BACKGROUND
27. The Court does not make findings of fact when it rules on a motion for
summary judgment, but it may summarize the underlying facts to provide context for
its ruling. See, e.g., In re Estate of Pope, 192 N.C. App. 321, 329, 666 S.E.2d 140, 147
(2008). Contested facts are construed in favor of the party opposing the motion.
Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001).
A. The Durham Property
28. The Durham Property includes five office buildings in Durham, North
Carolina, located at 3414 Duke Street, 4117 North Roxboro Road, 3404 North Duke
Street, 4101 North Roxboro Road, and 4020 North Roxboro Road. 29. In 2006, when Highwoods first determined that it would sell the
Durham Property, approximately 99% of the office space in the Property was under
lease. Two primary tenants were Duke Pediatrics and Duke’s Patient Revenue
Management Organization (“PRMO”), both which are affiliated with Duke University
Health System, Inc. (collectively “Duke”). Duke leased 52% of the Durham Property.
PRMO occupied three of the five buildings in the Property, including a sublease with
Qualex, Inc. in half of one building. PRMO’s sublease was due to expire in February
2009, and its leases in the other two buildings were set to expire in June 2010.
B. The Confidential Offering Memorandum
30. In spring 2006, Highwoods approached TLG about selling the Durham
Property. Highwoods and TLG entered into an exclusive listing agreement in October
2006 for TLG to market and sell the Durham Property. TLG prepared a Confidential
Offering Memorandum (“COM”) for prospective buyers, dated December 6, 2006. (See
Highwoods’ Dep. Ex. 66 (“COM”).) The COM targeted primarily large real-estate
holding companies and real-estate investment trusts. There has been no assertion
that Highwoods or TLG marketed the Durham Property as a security.
31. Based on information provided by Highwoods, TLG prepared an ARGUS
software model to accompany the COM. (Merklein Dep. vol. II, 364:7–13.) An
ARGUS model creates a future cash flow based on certain assumptions, such as
renewal probabilities for current tenants, market rental rates, and tenant-
improvement costs. (Merklein Dep. vol. II, 363:6–365:12.) The COM disclosed that
the leases for the Durham Property’s tenants were set to expire in 2009 and 2010 and contained no renewal options. (COM 34–38.) The assumptions in TLG’s ARGUS
model showed a tenant-renewal probability of 75% for four buildings in the Durham
Property, and a 90% renewal probability for one building. (Merklein Dep. vol. II,
366:12–14.) Prospective purchasers were able to prepare their own projections based
on modified assumptions. (Merklein Dep. vol. II, 366:20–367:6, 370:2–16.)
32. The record demonstrates that no Plaintiff directly relied on the
information in the COM to make their investment. In its Order & Opinion on motions
to dismiss in the Highwoods Lawsuit in 2013 (“February 2013 Decision”), the Court
rejected any claim based on indirect reliance stemming from Triple Net’s reliance on
the COM. See NNN Durham Office Portfolio 1, LLC v. Highwoods Realty Ltd. P’ship,
No. 12 CVS 3945, 2013 NCBC LEXIS 11, at *62–63 (N.C. Super. Ct. Feb. 19, 2013).
C. Prior Developments Not Disclosed in the COM
33. Before the COM was issued, Duke had taken preliminary steps to
prepare for potentially relocating its PRMO operations, including issuing a public
request for proposal (“RFP”) for a build-to-suit building. (Selig Dep. vol. II, 212:14–
213:13, June 4, 2015.) In September 2006, in response to the RFP, Highwoods made
an initial informal proposal for a build-to-suit building for Duke to be ready by July
2008. (See Selig Dep. Ex. 4, at 2.) Highwoods made a formal build-to-suit proposal
for Duke on December 6, 2006. (See Selig Dep. Ex. 1289.) By January 2007,
Highwoods had offered to pay Duke’s remaining lease obligations if PRMO chose to
vacate the Durham Property before its leases expired. (Massey Dep. Ex. 545.) The
COM did not disclose this information. 34. TLG was aware that Duke saw significant limitations with PRMO’s
space in the Durham Property. In a November 21, 2006 e-mail from TLG
representative Jim McMillan to Highwoods’ management, McMillan said that Scott
Selig, Duke’s associate vice president of capital assets, had advised him that Duke
was looking at potential relocation options, in part because PRMO’s space in the
Durham Property had significant inefficiencies, including excessive square footage
per person. (McMillan Dep. Ex. 773.)
35. Several days earlier, McMillan had shared with Highwoods a valuation
that varied from the ARGUS-based valuation reflected in the COM. Whereas the
COM included a projection based on a 75% probability of Duke renewing its leases in
four of the five office buildings, TLG separately shared with Highwoods valuations
based on a 25% and a 0% probability of renewal, using different discount rates to
compare those valuations with the 75% valuation. (See McMillan Dep. Ex. 771.) In
a cover e-mail, McMillan stated,
[b]ottom line is if a buyer does not buy into this Duke renewal then you are looking at a higher present value calc and ultimately a valuation around $25.6 to $26.6 million. Most will end up in the middle around $28–$29 million with our top and ultimate buyer buying into it and ending up to our pricing we discussed today.
(McMillan Dep. Ex. 760.)
36. In April 2006, McMillan, aware that Duke’s leases would expire in 2009
and 2010, had settled on a “fairly conservative” valuation of $30.2 to $31.3 million.
(McMillan Dep. Ex. 732.) McMillan recognized that, “[a]ll in all, a big part of th[e] sale will be the environment the properties sit in and the likelihood an[ ] investor
believes Duke is there for the long run.” (McMillan Dep. Ex. 732.)
D. Triple Net Submits the High Bid on the Durham Property
37. TLG received eleven initial bids on the Durham Property. Triple Net
submitted the winning bid of $34.2 million on December 21, 2006, conditioned on a
fifteen-day due-diligence period that would commence upon Highwoods providing
due-diligence materials to Triple Net. (McMillan Dep. Exs. 799, 801.) The offer
disclosed that Triple Net was contemplating a syndication through which it would
offer fractional interests. Triple Net was well known for offering TIC syndications.
38. Highwoods delivered the due-diligence materials to Triple Net on
January 9, 2007. (McMillan Dep. Ex. 814.) Highwoods and Triple Net executed a
Purchase and Sale Agreement with an effective date of January 24, 2007. (See Grubb
& Ellis Defs.’ Summ. J. Ex. 2 (“Purchase & Sale Agreement”).) The Purchase and
Sale Agreement acknowledged Triple Net’s option to structure the sale as a 1031
exchange, and recognized that Triple Net could assign the purchase contract to a
publicly registered company required to make filings with the SEC. (Purchase & Sale
Agreement ¶¶ 14, 29.)
39. The offer acknowledged Triple Net’s “intention of making and relying
upon its own investigation of the physical, environmental, economic use, compliance,
and legal condition of the Property,” with an agreement that Triple Net would “not
later rely . . . upon any representations and warranties made by [Highwoods or
Highwoods’ agents].” (Purchase & Sale Agreement ¶ 11.6.) Triple Net’s obligation to close was conditioned on, among other things, no major tenant having defaulted
under their lease or giving written notice to Highwoods of their intent to default.
(Purchase & Sale Agreement ¶ 28.)
E. The PPM
40. Triple Net intended to sell TIC interests as securities pursuant to a
Regulation D private placement when it made its offer to purchase the Durham
Property. Triple Net began undertaking efforts necessary to solicit TIC investors to
purchase the Property in early January 2007, after it had submitted its purchase
offer to Highwoods, but before it had completed its due diligence and executed the
final purchase agreement.
41. On January 5, 2007, Triple Net prepared the PPM and other offering
materials for prospective investors. (See Grubb & Ellis Defs.’ Summ. J. Ex. 19
(“PPM”).) The PPM disclosed the objectives, risks, and terms associated with
investing in the Durham Property. The PPM also included the proposed LLC
Agreement, Subscription Agreement, TIC Agreement, and Management Agreement.
(See PPM Exs. A (“LLC Agreement”), B (“Subscription Agreement”), C (“TIC
Agreement”), D (“Management Agreement”).) Also on January 5, 2007, NNN Capital
issued the Soliciting Dealer Agreement to broker–dealers. (See Grubb & Ellis Defs.’
Summ. J. Ex. 40.)
42. The Court summarizes key provisions of the PPM below. (1) Limited to accredited investors who were to rely solely on the PPM
43. To participate in the investment, each investor was required to complete
a TIC purchaser questionnaire, which cautioned them to carefully read the PPM.
(See Grubb & Ellis Defs.’ Summ. J. Ex. 18, at 1.)
44. The PPM named Triple Net as the manager of NNN Office, Triple Net
Realty as the property manager for the Durham Property, and NNN Capital as the
managing broker–dealer. (PPM i.) The PPM states that it was to serve as the
exclusive basis for any purchase decision, and that a purchaser should not rely on
any outside information or representations. (PPM iv.)
(2) Risk factors
45. The PPM contains eighteen pages of risk factors, including warnings
that there was a large dependence on one tenant and that Duke’s leases were set to
expire. (PPM 9.)
46. Under the risk factor “Large Dependence on One Tenant,” the PPM
explains the following:
Duke University and its affiliates directly lease approximately 149,078 square feet in three buildings . . . . This accounts for approximately 54% of the available space in the Property. Of the leased space, 42,080 square feet expires in 2009 with the remaining 106,998 square feet expiring in 2010. In addition, the PRMO group has subleased . . . approximately 12% of the entire Property[ ] in the 3404 North Duke Street building from Qualex, Inc. and occupies most of this space. Qualex has subleased this space to Duke at a favorable rental rate as an incentive to sublease the entire second floor. The leasing broker who placed Duke within this space indicated that the PRMO group intends to grow into this space over time and may stay following the expiration of the Qualex lease. However, no assurance can be given that the PRMO group will lease this space following the Qualex expiration in 2010. Additionally, there are no renewal options on the Duke leases covering the [4117 North Roxboro Road], 4020 North Roxboro Road and 4101 North Roxboro Road buildings. Based on conversations with local leasing brokers, Duke is price-sensitive to their space and may attempt to negotiate for below market rental rates in connection with a potential renewal of the space they currently occupy. Consequently, no assurance can be given that then-market rental rates could be attained should Duke choose to renew their respective leases in 2009 and 2010. Any large-scale departure by Duke would significantly affect the cash flow and fair market value of the Property and the economic viability of the Property would be jeopardized due to the loss of rental revenue and the substantial cost for capital improvements and leasing commissions that may be required to retenant the Property. In a worst case scenario, the rental income from the Property would not be sufficient to make debt service payments on the Loan. . . . [and] the Lender would have the ability to exercise its rights under the Loan documents, including foreclosure. If the Lender were to foreclose, the investors could suffer a complete loss of their investment and certain material adverse tax consequences.
(PPM 9.)
47. Under the risk factor “Expiration of Leases,” the PPM further states the
following:
Unless extended, leases with all of the tenants, representing 100% of the Property, will expire within the next 3 calendar years. . . . The Property Manager will use its good faith commercially reasonable efforts to retain existing tenants and/or to re-lease and re-tenant vacant premises in the Property. However, no assurance can be given that the Property Manager will be able to do so. . . . [I]f the tenants do not renew their leases or downsize the space leased, the Property would suffer vacancy when the leases expire and no assurance can be given that the Property Manager would be successful in re-leasing the vacant space. If the Property Manager were unable to re-lease this space, the Property would not perform as contemplated . . . .
48. These risks were further reiterated in an addendum to the PPM. (See
Grubb & Ellis Defs.’ Summ. J. Ex. 21, at 4–10.) (3) The Business Plan
49. The PPM contains a Business Plan. (See PPM 39.) The PPM
acknowledges that certain background information in the PPM was provided by TLG,
but states that the Business Plan “is based solely on [Triple Net’s] investigation of
the Property, its location in the Durham, North Carolina office market and the
tenants,” and is subject to the risk factors listed in the PPM. (PPM 39.)
50. The Business Plan incorporates a financial analysis entitled “Projection
of Income, Cash Flow and Loan Amortization of the Property,” attached as an exhibit
to the PPM. (PPM Ex. F.)
51. Regarding Duke’s leases, the Business Plan states that, “[b]ased on
Duke’s longevity as a tenant at the Property, [Triple Net] believes that Duke will
continue to renew each of their leases.” (PPM 40.) It further states that,
[b]ased upon the importance of Duke’s tenancy to the Property, [Triple Net] intends to engage Duke regarding extending their respective leases. This will help reduce the uncertainty surrounding the expiration of their leases over the first three years of the projected five year holding period. However, there can be no assurance that Duke . . . will in fact extend their leases at the Property.
(PPM 40.)
(4) Forward-looking statements
52. The PPM warns that the assumptions and future projections in the PPM
and the Addendum “may contain forward-looking statements”:
You can identify such statements by the use of forward-looking words such as “may,” “will,” “anticipate,” “expect,” “estimate,” “continue,” or other such words. These types of statements discuss future expectations or contain projections or estimates. When considering such forward- looking statements, you should keep in mind the risk factors set forth in [the PPM]. These risk factors and other unidentified factors could cause actual results to differ materially from those contained in any forward- looking statement.
(PPM 92.)
(5) The Management Agreement and management control reserved to the TICs
53. The Management Agreement for the Durham Property gave the TICs
the ability to hire and fire the property manager, the leasing agent, and the asset
manager. (Management Agreement §§ 10.1, .2.) It also allowed the TICs to control
the Durham Property’s expenditures by approving budgets. (Management
Agreement §§ 2.5.1, 2.9, .10.)
54. The TICs were granted the right to terminate the Management
Agreement in a manner that gave all or any one of the TICs on an annual basis the
individual right to terminate the Management Agreement without cause. However,
the termination right was also conditioned on a separate provision, which states that
the exercise of that right would trigger other obligations, such as requiring a TIC who
exercises the termination right to pay a pro rata share of a significant setup fee.
Additionally, the exercise of that right would create a default in the loan agreement.
The property manager was granted a right to preclude termination by purchasing a
TIC’s interest. (Management Agreement § 10.1.) A separate provision in the TIC
Agreement restricts a TIC’s right to act on behalf of the other TICs or bind the other
TICs. (TIC Agreement ¶ 1.5.)
55. The Management Agreement required the TICs’ unanimous consent to
approve all proposed leases. (Management Agreement § 2.6.2.) The Management Agreement provides that the TICs approved all existing leases when they closed on
their purchase. (Management Agreement § 2.6.1.) However, any new lease terms
generally had to be approved by unanimous consent of the TICs, but would be
considered approved absent an express notice of rejection. (Management Agreement
§ 2.6.2.) If a TIC rejected a proposed new lease, the new lease would not be
authorized, and the property manager would have no authority to execute the
proposed lease. (Management Agreement § 2.6.2.)
F. Triple Net’s Post-Offer Due Diligence
56. Triple Net continued its due-diligence efforts in the fifteen-day period
between January 9, 2007, when Highwoods provided the due-diligence materials, and
January 24, 2007, when it executed the final purchase agreement. Triple Net’s due-
diligence efforts included at least securing a due-diligence report and an appraisal,
and interviewing the Durham Property’s tenants.
57. Triple Net consultant Joseph D. Steffe prepared a Due Diligence Report,
dated January 16, 2007. (Prosky Dep. Ex. 1144 (“Due Diligence Report”).) Like the
initial PPM, the Due Diligence Report acknowledges that all leases in the Durham
Property would expire within three years, and that there was a large dependency on
Duke as a tenant. (Due Diligence Report at GE000167.) The report states that
Duke’s leases “carr[ied] the usual 75% renewal probability.” (Due Diligence Report
at GE000167.)
58. A few days after the Due Diligence Report was executed, Triple Net
executive Mike Waddell interviewed all tenants in the Durham Property, including Selig, who was in charge of negotiating Duke’s off-campus real-estate leases.
McMillan attended Waddell’s January 19, 2007 meeting with Selig. Both Waddell
and Selig prepared contemporaneous memoranda from the interview. Selig, Waddell,
and McMillan each provided testimony about the meeting.
59. Selig recalled advising Waddell that Duke had issued an RFP for new
space and had received several proposals in response, but Waddell did not recall being
advised of this information. (Compare Selig Dep. 56:19–57:2, 59:1–4, July 3, 2012,
with Waddell Dep. vol. II, 414:11–415:8, 418:13–19.) Duke retained Corporate Realty
Associates (“CRA”) to solicit proposals for a new building as an alternative to
renewing its leases in the Durham Property. There is no evidence that Waddell
specifically learned that Highwoods had submitted a build-to-suit proposal to Duke.
It does not appear that Waddell interviewed CRA.
60. Selig further testified that Duke had not made a decision on whether to
relocate as of 2007. (Selig Dep. vol. II, 96:10–11, June 4, 2015.) An internal January
16, 2007 Highwoods e-mail quoted Selig as stating that PRMO was uncertain about
its plans. (Massey Dep. Ex. 548.) Selig testified that he told Waddell that Duke had
not ultimately decided whether to renew PRMO’s leases. (Selig Dep. vol. II, 95:20–
96:5, June 4, 2015; see also Waddell Dep. vol. I, 116:14–16; Merklein Dep. Ex. 193.)
61. Waddell prepared a memo that summarized his interview with Selig.
(Waddell Dep. Ex. 1083.) He acknowledged that Selig had expressed concerns about
the efficiency of PRMO’s space and had retained a firm to conduct a space-utilization
study. (Waddell Dep. Ex. 1083; see also Selig Dep. vol. II, 98:3–18, June 4, 2015; Waddell Dep. vol. I, 116:1–25.) Waddell testified that he ultimately concluded that
Duke was not ready to address its renewal options in January 2007. (Waddell Dep.
vol. I, 116:14–118:4.)
62. On January 24, 2007, Triple Net obtained an independent appraisal
from Robert A. Stanger & Co., Inc. (See Grubb & Ellis Defs.’ Summ. J. Ex. 6 (“Stanger
Appraisal”).) The appraisal valued the Durham Property at $34.25 million—slightly
higher than Triple Net’s purchase price of $34.2 million. (Stanger Appraisal 10.) The
appraisal noted that Duke Pediatrics had already inquired about renewing its lease
in the Property. (Stanger Appraisal E-1.) The appraisal assigned an overall lease-
renewal probability of 80% for all tenants, a 90% renewal rate for Duke, and a 40%
renewal rate for the Qualex sublease. (Stanger Appraisal iii.)
G. The Final Purchase and Sale Agreement
63. The final Purchase and Sale Agreement between Highwoods and Triple
Net went into effect on January 24, 2007.
64. Highwoods did not make any warranty as to whether existing leases in
the Property would be renewed, but the sale was conditioned on Highwoods having
not received notice that any tenant intended to default on their lease. (Purchase &
Sale Agreement ¶¶ 12.1.7, 28.)
65. Triple Net was granted the right to designate up to thirty-five entities
as grantees of the deed. (Purchase & Sale Agreement ¶ 22.) Pursuant to that
provision, Highwoods issued deeds directly to the TICs at closing on March 12, 2007.
Collectively, the Durham Property’s investors paid Triple Net more than $40 million, including roughly $15 million in cash, with a $26 million mortgage to finance the
remaining balance. (See Highwoods’ Mot. Compel Produc. Docs. Ex. 7.)
H. Supplements to the PPM
66. After Highwoods and Triple Net executed the final Purchase and Sale
Agreement, Triple Net issued three PPM supplements detailing information that
Triple Net learned after it issued the original PPM.
67. The first supplement, dated January 26, 2007, gives an updated cash-
flow projection with assumptions regarding lease-renewal probabilities that differ
from the assumptions listed in the original PPM. The first supplement lists a
probability of 50% for one building, and a probability of 75% for three buildings.
(Waddell Dep. Ex. 1084, at NNN021003.)
68. The second supplement, dated February 20, 2007, describes a revision
to the TIC Agreement but contains no further discussion of the leases or renewal
probabilities. (Waddell Dep. Ex. 1085.)
69. The third supplement, dated April 9, 2007, reflects that Triple Net
closed on the Durham Property on March 12, 2007. (Waddell Dep. Ex. 1086.)
70. Aside from the revised cash-flow projection in the first supplement, the
risk factors and the Business Plan in the original PPM were unchanged by the PPM
supplements.
71. Triple Net took further actions that evidenced its intent to sell the TIC
interests as securities pursuant to a Regulation D private offering. On February 22,
2007, between the issuance of the first and second PPM supplements, NNN Office filed a Form D for the sale of securities with the SEC. (Pls.’ Resp. Mem. Opp’n to
Highwoods’ Mot. Partial Summ. J. Ex. 1.) That same day, Triple Net’s counsel,
Hirschler Fleischer, sent letter notifications of the anticipated sale of securities to
regulators in the various states in which the securities were to be offered. (Pls.’ Resp.
Mem. Opp’n to Highwoods’ Mot. Partial Summ. J. Ex. 1.)
I. Duke’s Ultimate Decision to Relocate PRMO’s Operations
72. As noted, Waddell had concluded that Duke was not ready to discuss
lease renewal in January 2007. In August 2007, Duke advised that it was prepared
to discuss lease renewal. Around that time, Duke’s possible relocation was reported
in local news stories. See, e.g., Jack Hagel, RTP Beckons Duke, News & Observer,
Aug. 6, 2007. As part of lease-renewal negotiations, Plaintiffs hired Little Diversified
Architectural Consulting to consider a space redesign to address Duke’s concerns
regarding space inefficiencies for PRMO’s operations in the Durham Property. (See
Merklein Dep. Ex. 147.)
73. When lease-renewal negotiations began, cost proposals for PRMO’s
potential relocation substantially exceeded the rents for PRMO’s leases in the
Durham Property. In late-October 2007, Hock Development Group (“Hock”) reduced
the cost of its relocation proposal to Duke by approximately $1 million.
74. In November 2007, Duke announced its decision not to renew PRMO’s
leases beyond the expiration date in June 2010. On December 28, 2007, Duke entered
into a new lease with T.W. Alexander Properties, LLC for a new office building in South Durham that was built by Hock. PRMO vacated the Durham Property on
December 12, 2008.
75. Duke Pediatrics renewed its lease in the Durham Property for another
seven years, and is still a tenant in the Property today.
J. Triple Net Suspends Dividend Distributions
76. Part of the TICs’ investment in the Durham Property included monthly
dividend distributions. Those distributions were suspended when economic
conditions worsened in December 2008. (See Highwoods’ Dep. Ex. 253.) According
to Triple Net, it was necessary for the company to suspend distributions “in order to
begin conserving cash to mitigate the loss of revenue and to fund future leasing costs
associated with the loss of key tenancies in 2009 and 2010.” (Highwoods’ Dep. Ex.
253.)
K. The TICs’ Control over the Durham Property’s Management
77. Conflict between the TICs and the Durham Property’s management
heightened in 2009, as adverse economic conditions continued. For instance, in
August 2009, several of the TICs sent a list of demands to the Property’s manager.
Those demands included requests to lower the fee structure, fire the onsite manager,
eliminate accounting fees, present proposed capital improvements in detail for the
TICs’ approval, and provide monthly reporting instead of quarterly reporting. ( See
Highwoods’ Mot. Partial Summ. J. Exs. D, E.)
78. Throughout 2009, Triple Net—whose name had changed to GERI by
that time—and TLG continued working to find new tenants for the Durham Property. In fall 2009, Triple Net asked the TICs to approve a signed eight-year lease with
Durham Dermatology Associates, LLP. Plaintiff James Merrill rejected the lease.
That rejection may have been the trigger for TLG’s resignation as leasing broker for
the Durham Property. In its resignation letter on December 16, 2009, TLG noted
that the TICs’ “ability to reject negotiated terms with a prospective tenant place[d]
[TLG] in a very precarious and reputation-damaging position.” (Highwoods’ Mot.
Partial Summ. J. Ex. V.)
79. In mid-2009, the TICs contacted National Asset Services, Inc. (“NAS”),
an outside management company located in California, and began efforts to replace
Triple Net as asset manager. The TICs worked together to create a list of TICs who
approved Triple Net’s removal. Their efforts included Mr. Merrill contacting the
lender to ask that it become “immediately involved in the termination of Triple Net
and the hiring of a new asset manager.” (Highwoods’ Dep. Ex. 899, at 5.) The TICs
unanimously approved and delivered a notice of termination to Triple Net in
December 2009. Triple Net ultimately agreed to transition management to NAS in
January 2010.
L. Plaintiffs Execute a Settlement Agreement
80. In March 2010, Plaintiffs entered into a Confidential Mutual Settlement
Agreement and Mutual Release (“Settlement Agreement”) that allowed NAS to take
over as asset manager for the Durham Property. (See Grubb & Ellis Defs.’ Summ. J.
Ex. 34 (“Settlement Agreement”), at 1.) 81. Further details of the Settlement Agreement are summarized in the
analysis section of this Order & Opinion regarding the Grubb & Ellis Defendants’
Motion for Summary Judgment, in which the Grubb & Ellis Defendants contend that
the Settlement Agreement released all claims in the Grubb & Ellis Lawsuit.
M. Foreclosure Following Loan Default
82. From May to July 2010, the TICs voted for several cash distributions
that totaled more than $1.5 million. (See Highwoods’ Mot. Compel Produc. Docs. Exs.
6, 29, 30.) The purpose of withdrawing the money was to get it “out of . . . the reach
of the lender” so that the funds would not be applied to the outstanding mortgage
balance. (Kennedy Dep. vol. I, 84:1–2; see also Kennedy Dep. vol. I, 117:9–25.) The
TICs knew that by withdrawing money, there would be insufficient funds to make
payments on the mortgage. (Kennedy Dep. vol. III, 741:6–9.) At least some of the
TICs intended to use the distributions to fund the present litigation. (See Highwoods’
Dep. Ex. 340.)
83. In April 2011, the lender initiated foreclosure proceedings on the
Durham Property. NAS’s role as asset manager ended in July 2011, when a court-
appointed receiver took over the day-to-day management of the property. (Kennedy
Dep. vol. I, 76:17–19.) The Durham Property was sold by upset bid at a public
foreclosure sale in October 2011 and conveyed to the high bidder on December 20,
2011. Approximately 72% of the TIC ownership sued to recoup their losses. IV. PROCEDURAL BACKGROUND
A. The Grubb & Ellis Lawsuit
84. Plaintiffs commenced the Grubb & Ellis Lawsuit on July 1, 2010, by
filing a summons pursuant to Rule 3 of the North Carolina Rules of Civil Procedure.
Plaintiffs filed their Complaint on July 21, 2010. On August 24, 2010, Plaintiffs filed
a notice of designation, and the case was designated a mandatory complex business
case by the Chief Justice that same day. The case was first assigned to the Honorable
Ben F. Tennille of this Court on August 25, 2010, and then to the undersigned in
March 2011 following Judge Tennille’s retirement.
85. Plaintiffs filed their First Amended Complaint (“Amended Complaint”)
on March 28, 2011, alleging claims of (1) breach of contract, (2) negligence,
(3) negligent misrepresentation, (4) breach of fiduciary duty, (5) constructive fraud,
(6) Securities Act violations, (7) unfair and deceptive trade practices, (8) civil
conspiracy, and (9) punitive damages.
86. Defendants filed a motion to dismiss under Rule 12(b)(6) on May 27,
2011, which the Court denied on August 18, 2011.
87. Grubb & Ellis Co. and Grubb & Ellis Securities each filed a voluntary
petition for Chapter 11 bankruptcy on February 20, 2012. See Voluntary Petition, In
re Grubb & Ellis Co., No. 12-10685-MG (Bankr. S.D.N.Y. Feb. 20, 2012), ECF No. 1.
Litigation in this Court was automatically stayed as to those Defendants until
October 4, 2012, when the bankruptcy court approved the parties’ stipulation to lift
the stay. See Stipulation & Order Between the Debtors & NNN Durham Office Portfolio 1, LLC & Certain Other Tenant-in-Common Entities to Lift the Automatic
Stay, In re Grubb & Ellis Co., No. 12-10685-MG (Bankr. S.D.N.Y. Oct. 4, 2012), ECF
No. 1813.
88. The parties filed cross-motions for summary judgment on August 17,
2015. Plaintiffs move for partial summary judgment on their Securities Act claim,
and the Grubb & Ellis Defendants move for summary judgment on all claims pending
against them.
B. The Highwoods Lawsuit
89. Plaintiffs first filed a complaint against Highwoods and TLG on April 1,
2010. Plaintiffs voluntarily dismissed that action without prejudice on July 6, 2011,
after the case had been designated a mandatory complex business case and assigned
to the undersigned.
90. Plaintiffs filed their Complaint in the Highwoods Lawsuit on July 6,
2012, alleging claims of (1) fraud, (2) fraud in the inducement, (3) Securities Act
violations, (4) unfair and deceptive trade practices, (5) negligent misrepresentation,
(6) civil conspiracy, and (7) punitive damages. Plaintiffs filed a notice of designation
on July 6, 2012. The Chief Justice designated the case a mandatory complex business
case on July 11, 2012, and the matter was assigned to the undersigned on July 12,
2012.
91. On February 19, 2013, the Court granted Highwoods’ and TLG’s motions
to dismiss Plaintiffs’ claims of fraud, fraud in the inducement, unfair and deceptive
trade practices, negligent misrepresentation, and punitive damages. Highwoods, 2013 NCBC LEXIS 11, at *66. The Court denied the motions to dismiss as to
Plaintiffs’ claims of secondary liability under N.C. Gen. Stat. § 7A-56(c)(2) (2015) of
the Securities Act and conspiracy to violate that Act. Highwoods, 2013 NCBC LEXIS
11, at *66.
92. On November 15, 2013, Highwoods moved for partial summary
judgment on the question whether the TICs’ investment in the Durham Property
qualifies as a sale of securities under the Securities Act. The Court deferred ruling
on that motion until after the conclusion of fact discovery. See Order, Highwoods,
No. 12 CVS 3945 (N.C. Super. Ct. Apr. 27, 2015).
93. On May 29, 2015, Highwoods and TLG filed their 12(c) Motions for
judgment on the pleadings as to the claims of the fifty-five Out-of-State Plaintiffs on
the grounds that those Plaintiffs have not alleged that they received or accepted an
offer to sell a security in North Carolina and thus cannot recover under the Securities
Act. The Court heard oral argument on the 12(c) Motions on July 16, 2015.
94. The parties filed cross-motions for summary judgment on August 17,
2015. Highwoods and TLG filed motions for summary judgment on all remaining
claims pending against them. Plaintiffs move for partial summary judgment on their
claim of secondary liability under the Securities Act.
95. Also on August 17, 2015, Plaintiffs filed their 54(b) Motion, asking the
Court to modify its February 2013 Decision to reinstate Plaintiffs’ punitive-damages
claim. 96. The Court held a joint hearing on the summary-judgment motions in
both lawsuits and on Plaintiffs’ 54(b) Motion on November 23, 2015. All motions have
now been fully briefed, argued, and are ripe for disposition.
V. ANALYSIS
A. Summary of the Issues Presented by the Dispositive Motions
97. Plaintiffs present claims of both primary and secondary liability under
the Securities Act, the latter depending on Plaintiffs’ success under the former. The
motions present two threshold issues as to the application of the Securities Act to
Plaintiffs’ various claims: (1) whether the TIC interests at issue qualify as securities
under the Securities Act, and if so, (2) whether claims under the Securities Act must
be limited to claims brought by Plaintiffs who received or accepted an offer to sell in
North Carolina. An additional threshold issue for the Grubb & Ellis Defendants is
whether the Settlement Agreement between the TICs and the Grubb & Ellis
Defendants released claims asserted against the Grubb & Ellis Defendants in this
litigation. Assuming Plaintiffs survive these threshold issues, the Court must then
consider the parties’ cross-motions to summarily adjudicate the issue of liability.
98. Finally, Plaintiffs move under Rule 54(b) for the Court to reconsider its
earlier ruling in which it dismissed Plaintiffs’ claim for punitive damages against
Highwoods and TLG.
B. Standard of Review
99. Highwoods and TLG present motions for judgment on the pleadings
under Rule 12(c). All parties move for summary judgment under Rule 56. (1) The standard of review for judgment on the pleadings
100. A motion for judgment on the pleadings under Rule 12(c)
“is . . . proper . . . when all the material allegations of fact are admitted in the
pleadings and only questions of law remain.” Ragsdale v. Kennedy, 286 N.C. 130,
137, 209 S.E.2d 494, 499 (1974). The purpose of Rule 12(c) “is to dispose of baseless
claims or defenses when the formal pleadings reveal their lack of merit.” Id. When
the Court reviews a complaint under Rule 12(c), it “is required to view the facts and
permissible inferences in the light most favorable to the nonmoving party.” Id. A
Rule 12(c) motion should be granted “when a complaint does not allege ‘facts
sufficient to state a cause of action or pleads facts which deny the right to any relief.’”
Reese v. Brooklyn Vill., LLC, 209 N.C. App. 636, 641, 707 S.E.2d 249, 253 (2011)
(quoting Robertson v. Boyd, 88 N.C. App. 437, 440, 363 S.E.2d 672, 675 (1988)).
(2) The standard of review for summary judgment
101. Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2015). “Summary
judgment is improper if any material fact is subject to dispute.” Culler v. Hamlett,
148 N.C. App. 389, 391, 559 S.E.2d 192, 194 (2002). The movant bears the burden of
proving the lack of a triable issue. Dalton, 353 N.C. at 651, 548 S.E.2d at 707. Once
the movant has met that burden, the burden shifts to the nonmoving party to produce
a forecast of evidence that demonstrates facts showing that it can establish a prima facie case at trial. Austin Maint. & Constr., Inc. v. Crowder Constr. Co., 224 N.C.
App. 401, 407, 742 S.E.2d 535, 540 (2012). The Court must view all the presented
evidence in the light most favorable to the nonmoving party. Dalton, 353 N.C. at 651,
548 S.E.2d at 707.
102. The Court applies these standards to the pending motions, and
construes facts and inferences in favor of the party opposing the particular motion
under consideration.
C. Evidence that the TICs Retained Sufficient Control over the Durham Property’s Management Is Inadequate to Place the TIC Interests Outside the Scope of the Securities Act.
103. It is clear that Triple Net marketed the TIC interests as securities and
expected that Plaintiffs would consider the purchases securities. In their Motion for
Partial Summary Judgment, Highwoods contends that the TIC interests nevertheless
are not “securities” as defined by the Securities Act because Plaintiffs retained and
exercised control over their investment.
104. The Court initially addressed the question whether the TIC interests
qualify as securities in its February 2013 Decision in the context of motions to dismiss
under Rule 12(b)(6). See Highwoods, 2013 NCBC LEXIS 11, at *20–24. The Court
discussed the unsettled question of whether a TIC exchange is a sale of real estate or
a sale of an investment contract within the scope of the Securities Act. Id. at *21–24.
On this question, the Court denied Highwoods’ and TLG’s Rule 12(b)(6) motions.
105. Considering this issue at the summary-judgment posture under Rule 56,
the Court rejects Plaintiffs’ contention that the Court’s ruling on the motions to dismiss became the law of the case and precludes it from now considering on the
developed record whether the TIC interests qualify as an investment contract and
thus as securities. See Barbour v. Little, 37 N.C. App. 686, 692, 247 S.E.2d 252, 255–
56 (1978) (recognizing that motions under Rule 12 and Rule 56 are governed by
different standards). Likewise, the Court rejects Plaintiffs’ argument that
Highwoods and TLG are estopped from now denying that the TIC interests are
securities. (See Pls.’ Resp. Mem. Opp’n to Highwoods’ Mot. Partial Summ. J. 22–23.)
106. Rather, the Court concludes that the manner in which the facts
developed after the completion of the TIC exchange may bear on the expectations that
the TICs had when they invested in the Durham Property, and that those
expectations are relevant to the final determination of whether the TIC interests are
properly considered an investment contract or a real-estate contract. Based on the
developed record, the Court concludes that there is insufficient evidence for it to
determine that Plaintiffs’ TIC interests do not qualify as securities under the
Securities Act. Accordingly, summary judgment must be denied for Highwoods and
granted in favor of Plaintiffs on this issue.
107. A prerequisite to liability under the Securities Act is that the
transaction must fall within the scope of the Act. The Securities Act defines “security”
to include any “investment contract.” N.C. Gen. Stat. § 78A-2(11) (2015).
108. The Securities Act does not itself define the term “investment contract.”
The North Carolina Administrative Code defines “investment contract” as used in
section 78A-2(11) to include the following: (a) Any investment in a common enterprise with the expectation of profit to be derived through the essential managerial efforts of someone other than the investor. . . . “[C]ommon enterprise” means an enterprise in which the fortunes of the investor are interwoven with and dependent upon the efforts and success of those seeking the investment of a third party; and
(b) Any investment by which an offeree furnishes initial value to an offeror, and a portion of this initial value is subjected to the risks of the enterprise, and the furnishing of this initial value is induced by the offeror’s promises or representations which give rise to a reasonable understanding that a valuable benefit of some kind over and above the initial value will accrue to the offeree as a result of the operation of the enterprise, and the offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise.
18 N.C. Admin. Code 06A.1104(8)(a)–(b) (2016).
109. Highwoods relies heavily on Rule 06A.1104(8)(b) when asserting that
the record makes clear that the TICs collectively exercised practical and actual
control over management decisions for the Durham Property to a degree that defeats
their interests from being classified as an investment contract. (See Highwoods’
Reply Br. Supp. Mot. Partial Summ. J. 1 (“The parties agree that summary judgment
is appropriate on a single issue: Did Plaintiffs have the right to exercise practical and
actual control over the managerial decisions of their investment?”).)
110. Plaintiffs counter that Highwoods improperly conflates subsections (a)
and (b) of Rule 06A.1104(8). While not conceding Highwoods’ argument based on
Rule 06A.1104(8)(b), Plaintiffs contend that Rule 06A.1104(8)(a)’s definition of
“investment contract” is less restrictive and does not demand the same absence of
control that may be argued under Rule 06A.1104(8)(b), as long as the investment was
a common enterprise and Plaintiffs relied on Triple Net’s essential managerial efforts. Plaintiffs contend that their ultimate efforts to salvage value in their
investment do not disqualify their interests as an investment contract, when such
efforts became necessary only because Triple Net’s essential managerial efforts had
failed.
111. The analysis whether a TIC interest is an “investment contract” begins
with a review of the United States Supreme Court’s holding in SEC v. W. J. Howey
Co., 328 U.S. 293 (1946). In Howey, the Supreme Court held that, under federal
securities law, an investment contract contains four elements: “(1) an investment of
money, (2) in a common enterprise, (3) an expectation of profits, and (4) the
expectation that profits will arise solely from the efforts of the promoter or a third
party.” Highwoods, 2013 NCBC LEXIS 11, at *25 (discussing Howey, 328 U.S. at
298–99). The Supreme Court further noted that “investment contract” had not been
earlier defined either by federal securities law or by the various state blue-sky laws,
even though the term had been broadly construed in a way that protected investors
and disregarded form “for substance and . . . placed [emphasis] upon economic
reality.” Howey, 328 U.S. at 298. Each of the four elements of the Howey test has
been addressed in subsequent litigation, and some uncertainty remains as to how the
test should be applied, particularly as to the fourth element’s use of the term “solely.”
112. In SEC v. SG Ltd., the United States Court of Appeals for the First
Circuit noted a significant variance in how courts have determined the meaning of
“common enterprise.” 265 F.3d 42, 49 (1st Cir. 2001). Some courts require a showing
of horizontal commonality, which “involves the pooling of assets from multiple investors so that all share in the profits and risks of the enterprise,” while other
courts have emphasized vertical commonality, which focuses on the degree that an
investor depends on the efforts or expertise of the promoter. Id. The First Circuit
further distinguished “broad vertical commonality” from “narrow vertical
commonality.” Id. Broad vertical commonality requires that the investors’ well-being
be dependent on the promoter’s expertise, while narrow vertical commonality
requires that the investors’ fortunes be “interwoven with and dependent upon the
efforts and success of those seeking the investment or of third parties.” Id. (quoting
SEC v. Glenn W. Turner Enters., Inc., 474 F.2d 476, 482 n.7 (9th Cir. 1973)). Some
courts allow for only one standard of commonality, while others recognize multiple
tests for determining commonality. Id.
113. Subsections (a) and (b) of North Carolina’s Rule 06A.1104(8) reflect
these various approaches and the differing emphasis on the degree to which the
investor is dependent on the efforts of the promoter or third party.
114. Rule 06A.1104(8)(a) requires both a “common enterprise” and “the
expectation of profit to be derived from the essential managerial efforts of someone
other than the investor.” 18 N.C. Admin. Code 06A.1104(8)(a) (emphasis added).
“Essential” management does not necessarily connote “exclusive” management. Rule
06A.1104(8)(b) does not expressly require a “common enterprise,” but it contemplates
a scenario where at least a portion of the value provided by the investor is subjected
to the risk of an enterprise in which the investor “does not receive the right to exercise
practical and actual control over the managerial decisions of the enterprise.” 18 N.C. Admin. Code 06A.1104(8)(b). Rule 06A.1104(8)(a)’s emphasis on the “essential”
managerial efforts of a common enterprise reflects a relaxation of Howey’s fourth
element, which directs that profits result “solely from the efforts of the promoter or a
third party.” Howey, 328 U.S. at 299.
115. The nature in which TIC interests are marketed prevents a bright-line
rule on whether a TIC interest is a security or a syndicated real-estate interest.
Historically, TIC transactions have been structured as sales of securities, in some
instances, and as sales of syndicated real-estate interests in others. See Triple Net
Leasing, LLC, SEC No-Action Letter, 2000 SEC No-Act. LEXIS 824 (Aug. 23, 2000);
Nat’l Ass’n of Sec. Dealers, Notice to Members No. 05-18, Private Placements of
Tenants-in-Common Interests 3 & n.5 (2005) (explaining that “[w]hen TIC[ ]
[interests] are offered and sold together with other arrangements, they generally
would constitute investment contracts and thus securities,” but that “TIC interests
in real property standing alone generally are not securities”); (Hanson Dep. 57:23–25
(noting that TIC transactions are structured in “one of two ways . . . . as a real estate
[transaction] or as a security” transaction).)
116. The record here is clear that Triple Net marketed the sale of Plaintiffs’
TIC interests as securities. This is evidenced by the various transactional documents,
the PPM, the broker agreements, and the communications with the SEC and various
state-enforcement agencies. Those documents expressly and specifically refer to the
TIC interests as “securities.” (See, e.g., PPM ii, iv, 1, 23, 50; Pls.’ Resp. to Highwoods’
Mot. Partial Summ. J. Exs. 1, 2, 6.) Of course, that fact does not necessarily end the inquiry, because a TIC interest is not a “security” or an “investment contract” based
solely on the label given to it by the promoter.
117. Howey focuses on the investor’s expectations at the time of investing,
and representations that an investment is a security or an investment contract play
into those expectations. Here, in the risk-factors section of the PPM, a subheading
labeled “Reliance on Management” cautions purchasers that
[a]ll decisions regarding management of the Company’s affairs . . . and the management of the Property, will be made exclusively by the Manager, the Property Manager and their Affiliates, and not by any of the Members or the Purchasers. Accordingly, no person should purchase LLC Units unless that person is willing to entrust all aspects of management of the Company to the Manager and management of the Property to the Property Manager.
(PPM 21.)
118. Taken alone, this language would suggest that the TIC interests satisfy
the definition of an “investment contract” within the meaning of either Rule
06A.1104(8)(a) or Rule 06A.1104(8)(b). But other provisions of the various
transactional documents and agreements also reserve certain powers to the investors
and provide that, under certain circumstances, Triple Net did not have exclusive
control. For example, the TICs were granted the right to terminate the Management
Agreement on an annual basis without cause, albeit with the understanding that
exercising that right would trigger obligations, such as requiring the TICs to pay a
pro rata share of a significant setup fee, creating a default in the loan agreement.
That termination right was also conditioned on the property manager’s right to
purchase any Plaintiff’s TIC interest. (Management Agreement § 10.1.) 119. The transactional documents also provided for a degree of the TIC
owners’ control over potential future leases. The Management Agreement addressed
leasing efforts, and at closing, the TICs approved all existing leases. (Management
Agreement §§ 2.6.1, .2.) However, any new lease terms “generally [had to] be
approved by unanimous consent of the [TICs],” but would be considered approved,
absent an express notice of rejection. (PPM 74.) In the event of such a rejection, the
lease would not be authorized, and the property manager would have no authority to
execute the proposed lease. (Management Agreement §§ 1.2, 2.6.2.) Any unilateral
right under the Management Agreement to refuse a lease must be read in conjunction
with the TIC Agreement, which restricts a TIC’s right to act on behalf of other TICs
or to bind other TICs. (TIC Agreement ¶ 1.5.)
120. The Management Agreement also provided for an annual budget that
would control capital expenditures and would be deemed approved, absent a notice of
objection by a majority of the TICs. (PPM 74–75; Management Agreement § 2.5.1.)
121. The reservation of powers to the TICs in the various agreements does
not alone, however, necessarily mandate a conclusion that the purchases do not
qualify as an investment contract. Case law recognizes that for control to be relevant,
the control must be actual rather than theoretical, and must take economic realities
into consideration. See SEC v. Merch. Capital, LLC, 483 F.3d 747, 755–65 (11th Cir.
2007) (citing and adopting Williamson v. Tucker, 645 F.2d 404, 422 (5th Cir. 1981)
(identifying three instances in which a partnership interest may qualify as an
“investment contract” because of limitations on control otherwise afforded to a general partner)). See generally David Rich, Note, Betting the Farm: The TIC Turf
War and Why TICs Constitute Investment Contracts Under Federal Securities Laws,
1 Wm. & Mary Bus. L. Rev. 451, 481–82 (2010) (noting that potential power can be
“illusory” and may not defeat a finding that an investment qualifies as an investment
contract).
122. When restricting its consideration to the pleadings and documents
attached to or incorporated in the pleadings, the Court properly denied Highwoods’
and TLG’s Rule 12(b)(6) motions in its February 2013 Decision. It is now appropriate
for the Court to further review the effect of the reserved control based on the
developed record, because the manner in which those reserved powers were exercised
may be properly considered in determining the expectations held at the time of
purchase.
123. The securities laws certainly consider the degree of control a relevant
inquiry to their scope and application. See, e.g., Tolentino v. Mossman, No. 6:08-cv-
2027 EJM, 2009 U.S. Dist. LEXIS 99082, at *12 (N.D. Iowa Oct. 23, 2009); First Fin.
Fed. Sav. & Loan Ass’n v. E.F. Hutton Mortg. Corp., 652 F. Supp. 471, 476 (W.D.
Ark.), aff’d, 834 F.2d 685 (8th Cir. 1987); Inforex Corp., N.V. v. MGM/UA Entm’t Co.,
608 F. Supp. 129, 133 (C.D. Cal. 1984). The ultimate determination of whether an
investment is a securities transaction cannot be reduced to a rigid formula; rather, in
making that determination, “form should be disregarded for substance[,] and the
emphasis should be on economic reality.” United Hous. Found., Inc. v. Forman, 421
U.S. 837, 848 (1975) (quoting Tcherepnin v. Knight, 389 U.S. 332, 336 (1967)). 124. Part of the economic reality here is that Plaintiffs made their investment
in 2007, at a time when the Durham Property was fully leased through at least 2009,
and before the economic conditions caused by the Great Recession beginning in 2008
had set in. As a result of the economic conditions and Duke’s decision to relocate,
Plaintiffs sought to minimize their losses by exercising certain rights granted to them
in the transactional documents. Highwoods relies upon the TICs’ exercise of those
rights in contending that the control reserved to the TICs precludes their investment
from being characterized as securities under the Securities Act.
125. Highwoods contends that for Plaintiffs to claim that they purchased an
investment contract, Plaintiffs could not have been afforded, and would not have been
allowed to exercise, the degree of control that they exercised. While Howey measures
a purchaser’s expectations at the time of purchase, cases have recognized that the
later exercise of reserved rights is properly considered in assessing the degree of an
investor’s dependency on the control of the promoter at the time of purchase. See,
e.g., Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 242 (4th
Cir. 1988) (“[T]he partners not only had the authority under the agreement to manage
the business, they exercised this authority and demonstrated that they were not
dependent on the irreplaceable skills of others.”).
126. Without cataloguing every fact that Highwoods contends reflects the
exercise of control by the TICs, in summary, those actions include forming a special
TIC member committee whose agenda included efforts to discharge the property
manager, and making demands on the property manager to implement cost controls, change reporting, modify the overall management structure, and terminate TLG as
the local leasing agent. Highwoods points to the success of those efforts, noting that
the property manager was in fact removed and a new manager put in place.
127. On these facts, the Court finds the decision of the United States Court
of Appeals for the Eleventh Circuit in SEC v. Merchant Capital, LLC particularly
instructive. 483 F.3d 747. There, the court found that general partnership interests
were investment contracts under federal securities laws. Id. at 755–56.
128. In Merchant Capital, two individuals formed Merchant Capital to buy,
collect, or resell charged-off consumer debt, and then sold interests in multiple
registered limited-liability partnerships (“LLP”). Id. at 750. The SEC claimed, and
the founding partners denied, that the interests were investment contracts. Id.
Through those interests, purchasers were general partners in one of the various
LLPs, but were advised that their participation was expected to be limited to
“checking a box” on forms that would be sent to them from time to time. Id. at 752.
Purchasers of a partnership interest in one LLP were not advised that there were
other LLPs and that funds from the various sales would be pooled. Id. While a high
percentage of purchasers claimed to have significant business experience, none had
particular expertise in the debt-collection business. The selling entity was the sole
managing general partner for all the LLPs.
129. The Merchant Capital court acknowledged the presumption that a
general partnership interest is not an investment contract because a general partner
typically takes an active role in management, see Williamson, 645 F.2d at 422, but declined to apply that presumption to the facts of the case before it, Merch. Capital,
483 F.3d at 765. Instead, the court held that “[a]n interest . . . does not fall outside
the definition of investment contract merely because the purchaser has some nominal
involvement with the operation of the business,” and that “the focus is on the
dependency of the investor on the entrepreneurial or managerial skills of a promoter
or other party.” Merch. Capital, 483 F.3d at 755 (quoting Gordon v. Terry, 684 F.2d
736, 741 (11th Cir. 1982)). Accordingly, even “[a] general partnership interest may
qualify as an investment contract if the general partner in fact retains little ability
to control the profitability of the investment.” Id. The court further noted that it
examines not only control that might be provided by the legal documents, but also
representations made to the investor. Id.
130. The Merchant Capital court adopted the Fifth Circuit’s decision in
Williamson v. Tucker, which held that retained control would not prevent an
investment from qualifying as an investment contract in three situations: (1) where
“an agreement among the parties leaves so little power in the hands of the partner or
venturer that the arrangement in fact distributes power as would a limited
partnership,” (2) where “the partner or venturer is so inexperienced and
unknowledgeable in business affairs that he is incapable of intelligently exercising
his partnership or venture powers,” or (3) where “the partner or venturer is so
dependent on some unique entrepreneurial or managerial ability of the promoter or
manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers.” Id. (quoting Williamson, 645 F.2d at
424).
131. Finally, the Merchant Capital court concluded that other factors
supported a finding that the plaintiffs, although nominal general partners, had
purchased investment contracts that were more in the nature of limited partnership
interests. Id. at 757. The following factors negated the control adequate to defeat a
finding that the plaintiffs purchased investment contracts: (1) the partners’ ability to
elect the managing general partner was not meaningful, because the vote had to be
made at the time of investment, and the promoter was the only nominee; (2) the
limitation on removing the managing general partner for cause by unanimous vote
effectively meant that the managing general partner could not be removed; (3) the
various investors were geographically diverse and had no meaningful opportunity to
develop relationships; (4) the investors’ potential liability was limited to the amount
that each investor invested, with no vicarious liability for the acts of other investors;
(5) the right to approve expenditures, while facially significant, was diluted by the
managing general partner’s ability to control information; and (6) the investors had
no particular expertise in the business in which they invested. Id. at 757–59.
132. While Merchant Capital is not binding on this Court, the decision is
instructive in fashioning the nature of the factual inquiry that must be made.
133. Here, the interests sold were nominally limited partnership interests
rather than general partnership interests, which creates a presumption in favor of
finding an investment contract. The promoter, Triple Net, clearly stressed that the TICs were buying securities and investing in reliance on the manager’s efforts. But
Highwoods offers evidence that arguably cuts against that presumption and suggests
that the TICs retained and ultimately exercised a degree of contractual control over
their investment inconsistent with that of a typical limited partner, which weighs
against finding an investment contract. See, e.g., Maritan v. Birmingham Props., 875
F.2d 1451, 1459 (10th Cir. 1989) (recognizing that, while the inquiry under a Howey-
based test focuses on intent at the time of purchase, subsequent facts may “shed[ ]
light on how the [plaintiff] regarded [his or her] rights and status under the
agreement all along”).
134. The Court concludes that the exercise of control by the TICs after the
collapse of the Business Plan is inadequate to prevent their investment from
qualifying as a securities transaction. Accordingly, Highwoods’ Motion for Partial
Summary Judgment is DENIED, and summary judgment is GRANTED for Plaintiffs
on this issue.
D. Claims under the Securities Act Are Limited to Claims Brought by the North Carolina Plaintiffs.
135. The Securities Act applies “to persons who sell or offer to sell [securities]
when (i) an offer to sell is made in this State, or (ii) an offer to buy is made or accepted
in this State.” N.C. Gen. Stat. § 78A-63(a) (2015).
136. In their 12(c) Motions, Highwoods and TLG move for judgment on the
pleadings to dismiss the claims of the fifty-five Out-of-State Plaintiffs in this
litigation on the grounds that those Plaintiffs did not receive or accept an offer to sell
in North Carolina, and because Triple Net is not a North Carolina company. (See Highwoods’ 12(c) Mot. Ex. 1; TLG’s 12(c) Mot. Ex. 1.) The Rule 12(c) Motions do not
challenge the claims of the six North Carolina Plaintiffs.
137. An offer to sell is “made in this State,” regardless of “whether . . . either
party is then present in this State, when the offer (i) originates from this State or
(ii) is directed by the offeror to this State and received at the place to which it is
directed (or at any post office in this State in the case of a mailed offer).” N.C. Gen.
Stat. § 78A-63(c).
138. An offer is accepted “when acceptance (i) is communicated to the offeror
in this State and (ii) has not previously been communicated to the offeror, orally, or
in writing, outside this State.” Id. § 78A-63(d). “[A]cceptance is communicated to the
offeror in this State, whether or not either party is then present in this State when
the offeree directs it to the offeror in this State reasonably believing the offeror to be
in this State and it is received at the place to which it is directed (or at any post office
in this State in the case of a mailed acceptance).” Id.
139. On the purchase side of the transaction, only three TIC owners allege
that they received an offer to purchase in North Carolina. (Compl. ¶¶ 169, 217, 220.)
Each of the other TIC owners who is a Plaintiff in this litigation alleges that they
received the PPM prior to closing, but they do not allege that they accepted any offer
in North Carolina. (Compl. ¶¶ 134–223.)
140. On the sale side of the transaction, the offer to sell originated in
California, where Triple Net and NNN Capital were located. (Compl. Ex. F, at 48–
49.) Plaintiffs do not allege that any offer to sell originated in North Carolina. Other than the North Carolina Plaintiffs, no Plaintiff alleges that an offer to buy was made
or accepted in North Carolina. (See Compl. ¶¶ 134–223.)
141. While Plaintiffs do not allege where they communicated acceptance of
their offers to purchase, the Complaint reveals that Triple Net advised the SEC that
the offers were accepted in California. (Compl. ¶ 100 & Ex. M.) The PPM required
Plaintiffs to send their acceptances to NNN Capital in California. (PPM 3, 48, 49.)
There is no allegation to the contrary.
142. Highwoods and TLG contend that each Plaintiff must independently
satisfy the Securities Act’s offer-or-acceptance requirement. Plaintiffs argue that the
Securities Act’s requirement of a North Carolina-based offer or sale is a jurisdictional
requirement, and that once that jurisdictional requirement is met for one Plaintiff, it
is satisfied for all Plaintiffs. This is because the purpose of section 78A-63, as a
remedial statute designed to protect the integrity of North Carolina’s marketplace, is
to ensure only that a nexus exists between North Carolina and the securities
transaction at issue. Plaintiffs contend that once that nexus is demonstrated, the
Securities Act must be read liberally to afford a statutory claim to any securities
purchaser in that transaction, even if one or more of the purchasers could potentially
pursue an alternative claim under another state’s securities laws.
143. The Court concludes that Defendants correctly construe section 78A-63
to limit claims under the Securities Act to those Plaintiffs that received or accepted
an offer to sell in North Carolina. 144. The Court further concludes that the transfer of title in North Carolina
from Triple Net to the TICs for property located in North Carolina did not itself
constitute a sale of securities within North Carolina, and was neither the offer nor
the acceptance for the sale of a security in North Carolina for any Plaintiff other than
the North Carolina Plaintiffs.
145. The Court finds little guidance in case law or legislative history as to
legislative intent regarding whether the scope of the Securities Act should extend to
out-of-state purchasers if the overall transaction has a North Carolina nexus. The
Court must determine that intent from the language of the statute, considering
relevant policies implicated by that language. The parties each invoke policy
arguments regarding the legislative intent of the Securities Act.
146. Plaintiffs draw on a canon of statutory construction that favors a broad
construction of statutes intended to protect against public harm. They argue that the
Securities Act is a remedial statute intended to protect the integrity of North Carolina
as a marketplace for securities, and that it must follow that any securities offeror
that enters the North Carolina marketplace must be exposed to the full breadth of
the Act’s remedial provisions, such that any purchaser in the transaction has a cause
of action for any misrepresentation, as long as the transaction, as here, has a clear
nexus to North Carolina. The argument is similar to one typically made by a plaintiff
to assert that a defendant should be subject to general as opposed to specific personal
jurisdiction. Plaintiffs contend that Defendants’ narrow construction would allow
fraud with a North Carolina nexus to go without a remedy for anyone other than a North Carolina resident, and that such a narrow holding does not promote the
integrity of North Carolina as a marketplace.
147. In making their policy argument, Defendants invoke the canon of
statutory construction that a statute should not be presumed to have extraterritorial
effect without a clear expression of legislative intent. Defendants respond that
Plaintiffs’ broad construction of the Securities Act would lead to an absurd burden on
North Carolina courts, because that construction necessarily means that every
purchaser from any state involved in a multistate transaction would be granted a
statutory claim under the Securities Act, as long as a single offer or purchase was
made in North Carolina. Defendants insist that no such intent is obvious or can be
reasonably inferred from the statutory language. They further argue that their
position is consistent with the fact that North Carolina takes an approach to
secondary liability that varies from the approach taken by other states and the
Uniform Securities Act, and that as a result, Plaintiffs’ construction would allow out-
of-state residents to enjoy a broader remedy than they are given by the securities
laws of their respective home states.
148. Determining the scope of the Securities Act is an undertaking that is
separate from resolving a conflict-of-laws issue. The parties agree that the securities
laws of multiple states may apply to a single transaction. See Simms Inv. Co. v. E.F.
Hutton & Co., 699 F. Supp. 543, 545 (M.D.N.C. 1988). An election of remedies may
be presented when more than one state’s securities laws apply to a single transaction.
Id. at 546. Multiple plaintiffs may be joined in a single lawsuit brought in a state that has a “sufficient territorial nexus” to the transaction. Id. But it does not follow
that all purchasers in a transaction that have a nexus to one state are extended a
remedy under the laws of that state as opposed to the laws of the state where the sale
took place.
149. Plaintiffs seek to bolster their statutory interpretation by referring to
the North Carolina choice-of-law provision that appears in both the TIC Agreement
and the Management Agreement. (TIC Agreement § 12.5; Management Agreement
§ 13.5.) While a choice-of-law provision may control which states’ laws govern
contractual matters, the Court is unwilling to conclude that the parties can
contractually create a cause of action under a state’s statute when the statute does
not by its own terms afford such a cause of action. If the dispute were whether the
overall transaction has some nexus to North Carolina, the choice-of-law provision
might be instructive. But the question whether each purchaser in a securities
transaction has a cause of action under the Securities Act does not turn on whether
the transaction has a nexus to North Carolina; rather, it turns on the statutory
language that requires the cause of action to be grounded on an offer or acceptance
in North Carolina.
150. In sum, the Court concludes that only the six North Carolina Plaintiffs
in this litigation may pursue claims under the Securities Act. Accordingly, the Court
GRANTS the 12(c) Motions and enters judgment in favor of Defendants in this
litigation on the Securities Act claims brought by the fifty-five Out-of-State Plaintiffs. 151. At the hearing on the 12(c) Motions, Plaintiffs argued that they should
be allowed to amend their pleadings to assert claims under the securities laws of
other states if the Court grants Highwoods’ Motion for Partial Summary Judgment.
Defendants countered that an amendment should be denied, not only because of the
prejudice inherent in such a late filing, but because an amendment would be futile
for at least two reasons: (1) claims against Highwoods and TLG are limited to claims
of secondary liability, which would not be recognized under a majority of state
securities laws through which Plaintiffs could bring claims, and (2) an amendment
should not be allowed to relate back, so the various state statutes of limitation would
bar Plaintiffs’ claims. Plaintiffs counter that Highwoods and TLG should be estopped
from asserting prejudice because they did not promptly raise their Rule 12(c)
arguments.
152. Plaintiffs have not followed with a formal motion to amend, nor have
they tendered an amended pleading to assert claims under other states’ securities
acts.
153. The Court now dismisses with prejudice all claims under the Securities
Act brought by anyone other than the North Carolina Plaintiffs. As to the Out-of-
State Plaintiffs, the Court is not satisfied that Plaintiffs’ statements at the hearings
in this matter qualify as an effective motion to amend to assert claims based on the
securities laws of other states. But out of an abundance of caution, in the event that
an appellate court were to determine that the Court is required to consider an
amendment under Rule 15, the Court would then be required to consider a multitude of issues, including but not limited to whether any amendment would be untimely
and prejudicial, if not futile. Considering the number of different state securities
laws that could conceivably be involved, the Court will not further consider the issue
without a formal motion and full briefing. The Court does not here preclude Plaintiffs
from filing a motion to amend, but it certainly intends to express no opinion that leave
to amend should or will be freely given.
E. The Settlement Agreement Did Not Release Claims in this Litigation Against the Grubb & Ellis Defendants.
154. The Grubb & Ellis Defendants move for summary judgment in their
favor on the basis that Plaintiffs released all claims against them. Plaintiffs, in turn,
request summary judgment in their favor on this issue on the grounds that the
conditional-release provision in the Settlement Agreement is not effective as a matter
of law.
155. Plaintiffs and the Grubb & Ellis Defendants entered into the Settlement
Agreement in March 2010. The Settlement Agreement contains provisions that
conditionally agreed to release from liability Triple Net and “any related entity that
has management responsibilities to [Plaintiffs].” (Settlement Agreement 1.)
156. Assuming those conditions were met, the Settlement Agreement
released all claims
including but not limited to, any and all claims arising from or related to the underwriting and acquisition of the [Durham] Property, the securities offering documents and disclosures for the sale of [TIC] interests in the [Durham] Property, the Management Agreement, the [TIC] Agreement, the termination of any such agreements, [or] the management of the [Durham] Property. (Settlement Agreement ¶ 2.1.)
157. The release in the Settlement Agreement was conditioned as follows:
[T]he release . . . [is] subject to and conditioned upon the absence of any claims by [Plaintiffs] asserted against the Grubb & Ellis [Defendants] prior to July 2, 2010 (the “Effective Date of Release”). The [Plaintiffs] shall have until the Effective Date of Release to conduct such inquiries and investigations as they may determine to be necessary or appropriate . . . to determine whether . . . they have a viable claim against any of the Grubb & Ellis [Defendants]. Should any of the [Plaintiffs] discover such a claim, they shall give written notice to Grubb & Ellis of such claim (an “Excluded Claim”) prior to the Effective Date of Release, including a description of the basis of such claim in reasonable detail, and they shall commence an action or arbitration proceeding with regard to such Excluded Claim prior to the Effective Date of Release. Should the [Plaintiffs] duly and timely assert an Excluded Claim prior to the Effective Date of Release . . . the [release] shall be void and of no force and effect with respect to the Excluded Claim . . . .
(Settlement Agreement ¶ 2.4 (stylistic emphasis omitted).)
158. Plaintiffs commenced the Grubb & Ellis Lawsuit on July 1, 2010, by
filing a Rule 3 summons. (Grubb & Ellis Defs.’ Summ. J. Ex. 36.) However, the Rule
3 summons was not served on the Grubb & Ellis Defendants until July 12, 2010.
(Grubb & Ellis Defs.’ Summ. J. Ex. 35, at 1.) The Rule 3 summons provided minimal
detail about Plaintiffs’ claims, and Plaintiffs did not provide written notice of their
claims to the Grubb & Ellis Defendants prior to serving the summons. Plaintiffs’
Complaint was filed on July 21, 2010.
159. The Grubb & Ellis Defendants’ Motion for Summary Judgment is
controlled by the Court’s interpretation of paragraph 2.4 of the Settlement
Agreement. 160. Relying on the first sentence of paragraph 2.4 as an independent
statement, Plaintiffs contend that the filing of the Rule 3 summons was alone
effective to preclude any release from becoming effective. The Grubb & Ellis
Defendants contend that this first sentence cannot be read independently, but that
paragraph 2.4 must be read as a whole, and when read as a whole, the release would
become effective on July 2, 2010, unless each of two things happened before July 2,
2010: (1) Plaintiffs gave written notice of their intent to file a lawsuit, “including a
description of the basis of such claim[s] in reasonable detail,” and (2) Plaintiffs filed
a lawsuit asserting the identified claims. (Settlement Agreement ¶ 2.4.) The Grubb
& Ellis Defendants urge that the filing of the Rule 3 summons may have satisfied the
second condition, but that it manifestly did not satisfy the first condition.
161. The Court concludes that it must interpret paragraph 2.4 restrictively,
and in doing so concludes that the first sentence of that paragraph is an independent
sentence that effectively precluded the release from becoming effective once Plaintiffs
initiated their action on July 1, 2010. See Johnston County v. R.N. Rouse & Co., 331
N.C. 88, 94, 414 S.E.2d 30, 34 (1992) (“[I]t is a fundamental rule of contract
construction that the courts construe an ambiguous contract in a manner that gives
effect to all of its provisions, if the court is reasonably able to do so.”).
162. Accordingly, solely on the issue whether Plaintiffs’ claims against the
Grubb & Ellis Defendants were released by the Settlement Agreement, the Court
denies the Grubb & Ellis Defendants’ request for summary judgment and instead
grants summary judgment for Plaintiffs. F. The North Carolina Plaintiffs’ Claim of Primary Liability under the Securities Act Survives as to Some Grubb & Ellis Defendants, but Not to Others.
163. Having determined that the North Carolina Plaintiffs have standing to
present claims under the Securities Act, the Court now addresses whether those
Plaintiffs have demonstrated a basis to further pursue a claim of primary liability
against the Grubb & Ellis Defendants.
(1) All claims against Grubb & Ellis Co. and NNN Realty Advisors are dismissed.
164. To be held primarily liable under the Securities Act, a defendant must
have offered or sold a security. N.C. Gen. Stat. § 78A-56(a)(1), (2) (2015).
165. Plaintiffs concede that Grubb & Ellis Co. should be dismissed from this
litigation. (Pls.’ Mem. Opp’n to Grubb & Ellis Defs.’ Mot. Summ. J. 24 (“Plaintiffs
concede that they have not discovered evidence in this litigation that Grubb & Ellis
Company assumed the liabilities of its subsidiaries or participated in the
transaction.”).) Accordingly, all claims against Grubb & Ellis Co. are DISMISSED.
166. NNN Realty Advisors contends that it, too, should be dismissed from
this litigation because it was merely the parent company of Triple Net and NNN
Capital.
167. As a preliminary matter, NNN Realty Advisors filed a petition for
assignment for the benefit of creditors on August 14, 2015. See Petition for
Assignment for Benefit of Creditors, In re NNN Realty Advisors, Inc., No. CACE-15-
014636 (Fla. Cir. Ct. Aug. 14, 2015). That case is presently pending in the Complex
Civil Litigation Division of the Seventeenth Judicial Circuit for Broward County, Florida. At this Court’s November 2015 hearing, counsel advised that the claims in
this litigation against NNN Realty Advisors should be stayed due to a Chapter 7
involuntary-bankruptcy filing in the United States Bankruptcy Court for the District
of Delaware. See Involuntary Petition, In re NNN Realty Advisors, Inc., No. 15-
11873-KJC (Bankr. D. Del. Sept. 8, 2015). The bankruptcy case was later transferred
to the United States Bankruptcy Court for the Southern District of Florida, where
that court granted NNN Realty Advisors’ motion to dismiss and motion for
abstention. See In re NNN Realty Advisors, Inc., No. 15-30508-RBR, slip op. at 7
(Bankr. S.D. Fla. Apr. 18, 2016). Therefore, it is no longer necessary for this Court
to stay the litigation against NNN Realty Advisors.
168. NNN Realty Advisors contends that claims against it should be
dismissed because, as the parent company, it did not play any substantive role in
Plaintiffs’ purchases of TIC interests in the Durham Property and thus should not be
considered an offeror or seller of a security purchased by any Plaintiff.
169. Plaintiffs contend that NNN Realty Advisors is subject to liability
because it is a signatory to the Management Agreement, the LLC Agreement, and
the TIC Agreement, and was the indemnitor that executed the Indemnity and
Guarantee Agreement with the lender in connection with the investment. NNN
Realty Advisors signed as an authorized representative of NNN Office in those
agreements. Plaintiffs further contend that NNN Realty Advisors is liable based on
control-person liability as the controlling shareholder of Triple Net and NNN Capital. See N.C. Gen. Stat. § 78A-56(c)(1) (imposing secondary liability on control persons
who materially aid in a securities sale).
170. The record presents no basis for the Court to conclude that NNN Realty
Advisors offered or sold a security, made any statements to Plaintiffs, entered into
contracts with Plaintiffs, or shared contractual privity with Plaintiffs. Accordingly,
NNN Realty Advisors’ liability, if any, must depend on control-person liability.
171. The Court is not persuaded that Plaintiffs have presented an adequate
basis to pursue claims against NNN Realty Advisors based on a theory of control-
person liability. The fact that NNN Realty Advisors affixed its signature to the
various transactional documents is not enough to sustain a claim for control-person
liability under the Securities Act. The record reveals no stronger basis to uphold
Plaintiffs’ claim under a control-person theory of liability—a claim that they raise for
the first time in their response brief to the Grubb & Ellis Defendants’ Motion for
Summary Judgment. Accordingly, all claims against NNN Realty Advisors are
DISMISSED.
(2) Material questions of fact preclude summary adjudication of the North Carolina Plaintiffs’ primary-liability claim against the remaining Grubb & Ellis Defendants.
a. The legal standard for liability based on a stated opinion
172. The Court now addresses the North Carolina Plaintiffs’ claim of primary
liability under the Securities Act against the remaining Grubb & Ellis Defendants—
Triple Net, NNN Capital, and NNN Office. Like with NNN Realty Advisors, an
assignment-for-the-benefit-of-creditors proceeding is pending against Triple Net (now NNN Realty Investors, LLC) in a Florida state court. See In re NNN Realty
Inv’rs, LLC, No. CACE-15-014067 (Fla. Cir. Ct. filed Aug. 6, 2015). In the absence of
a bankruptcy proceeding that would require this action to be stayed, the Court
proceeds to rule on claims pending against Triple Net.
173. The Securities Act imposes primary liability for fraud pursuant to
section 78A-56(a)(1), and for materially false statements or omissions in connection
with the offer or sale of a security pursuant to section 78A-56(a)(2). N.C. Gen. Stat.
§ 78A-56(a)(1), (2); see also Piazza v. Kirkbride, ___ N.C. App. ___, 785 S.E.2d 695,
709 (2016), appeal docketed, No. 181A16 (N.C. May 10, 2016).
174. Subsection (a)(1) is modeled on section 10(b)(5) of the federal 1934
Exchange Act and requires proof of scienter and justifiable reliance. See N.C. Gen.
Stat. § 78A-56(a)(1); see also Piazza, 785 S.E.2d at 709; Highwoods, 2013 NCBC
LEXIS 11, at *29. Subsection (a)(2) is modeled on section 12 of the federal 1933
Securities Act and requires proof of “any untrue statement of a material fact or any
omission to state a material fact,” rather than scienter or justifiable reliance. N.C.
Gen. Stat. § 78A-56(a)(1); see also Piazza, 785 S.E.2d at 709–10; Highwoods, 2013
NCBC LEXIS 11, at *29–30.
175. North Carolina’s appellate courts have defined an omitted fact as
“material” when “there is a substantial likelihood that a reasonable [investor] would
consider [the omitted fact] important in deciding” whether to invest. Ehrenhaus v.
Baker, 216 N.C. App. 59, 88, 717 S.E.2d 9, 28 (2011) (quoting Rosenblatt v. Getty Oil
Co., 493 A.2d 929, 944 (Del. 1985)). That is, “there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable
investor as having significantly altered the ‘total mix’ of information made available.”
Id. at 88, 717 S.E.2d at 28–29 (quoting Rosenblatt, 493 A.2d at 944).
176. When a plaintiff establishes a prima facie case under section
78A-56(a)(2), the burden of proof shifts to the defendant to prove “that he did not
know, and in the exercise of reasonable care could not have known, of the untruth or
omission.” N.C. Gen. Stat. § 78A-56(a)(2); see Piazza, 785 S.E.2d at 711 (holding that
the “reasonable care” standard in section 78A-56(a)(2) “appears to be more similar to
a negligence standard than intentional fraud”); Highwoods, 2013 NCBC LEXIS 11,
at *30.
177. Having thoroughly reviewed the extensive record, and having
considered the arguments and authorities cited, the Court concludes that Plaintiffs
have not demonstrated a basis for any finding of scienter. Accordingly, any Securities
Act claim against the Grubb & Ellis Defendants must be based on subsection (a)(2).
178. Plaintiffs’ claim concentrates on statements or omissions regarding the
likelihood that Duke would renew its leases. The record is clear that both the TICs
and Triple Net considered the income stream from Duke’s lease renewals to be a
significant component of the PPM’s projected Business Plan. Thus, that income
stream was a material component, and any misrepresentation concerning that
income stream was also material.
179. The parties do not appear to disagree as to the income stream that the
Duke leases represent. Rather, the issue of liability turns on whether Plaintiffs have developed or projected evidence on which a conclusion could be made that Triple Net
made a misrepresentation concerning the likelihood of Duke’s lease renewal, either
by affirmatively misstating the likelihood of that renewal or by omitting facts of
which Triple Net was or should have been aware that, when not disclosed, rendered
the statements misleading.
180. The PPM clearly disclosed that Duke’s leases would expire and had no
renewal provisions, and further clearly disclaimed any warranty that Duke would in
fact renew the leases. (PPM 9.) Liability then turns on whether statements made
regarding the leases were misleading because other facts regarding those leases and
circumstances relevant to the probability of their renewal were not disclosed,
including the expressed opinion that Triple Net itself believed that Duke would renew
its leases.
181. In their claim against the Grubb & Ellis Defendants, Plaintiffs
alternatively contend that Triple Net failed to disclose facts of which it was aware,
and that Triple Net further failed to discover and subsequently disclose facts that it
should have discovered. As an example of Plaintiffs’ claim that Triple Net failed to
disclose material facts that it was aware of, Plaintiffs point to Selig’s testimony that
he advised Waddell that Duke had issued an RFP for an alternative build-to-suit
building to relocate PRMO’s operations because of Duke’s dissatisfaction with their
space in the Durham Property. As an example of Plaintiffs’ claim that the Grubb &
Ellis Defendants failed to discover and disclose material facts, Plaintiffs assert that
Triple Net failed to conduct adequate due diligence that would have uncovered Highwoods’ build-to-suit proposal. In their claim of secondary liability against
Highwoods and TLG, Plaintiffs assert that Highwoods and TLG failed to disclose
these facts to Triple Net.
182. The Grubb & Ellis Defendants contend that Triple Net’s statements
regarding the probability that Duke would renew its leases in the Durham Property
are nonactionable forward-looking statements of opinion, and that the additional
facts that Triple Net failed to become aware of are insufficient to make those
statements actionable under the Securities Act.
183. There is little precedent decided under North Carolina’s Securities Act
to guide the Court. Accordingly, the Court properly looks to federal precedent for
guidance. Doing so begins with considering the United States Supreme Court’s
decision in Omnicare, Inc. v. Laborers District Counsel Construction Industry
Pension Fund, 135 S. Ct. 1318 (2015). Before Omnicare, at least some federal courts
of appeals held that a plaintiff could prevail on a misrepresentation claim grounded
on a defendant’s statement of opinion only if the plaintiff could prove both that the
opinion was objectively false and that the defendants did not actually believe the
stated opinion. See, e.g., Fait v. Regions Fin. Corp., 655 F.3d 105, 111–12 (2d Cir.
2011). The Second Circuit Court of Appeals has held that this earlier standard was
modified by Omnicare, because the Supreme Court now recognizes liability based on
an opinion that applies facts on which the opinion is based, if the opinion is proven to
be objectively false and omits information that renders the opinion misleading, even if the party sincerely held the opinion at the time it was made. Tongue v. Sanofi (In
re Sanofi Sec. Litig.), 816 F.3d 199, 210 (2d Cir. 2016).
184. In Omnicare, the United States Supreme Court addressed the question
of liability under section 11 of the Securities Act of 1933 for statements of opinion
contained in a company’s offering documents. Omnicare, a pharmacy-services
company, filed a registration statement in connection with a public offering of
common stock. Omnicare, 135 S. Ct. at 1323. The registration statement contained
a statement that expressed Omnicare’s opinion that the company’s registration
statement complied with federal and state laws. Id. at 1323–24. The respondents
alleged that Omnicare’s statements of legal compliance constituted both untrue
statements of material fact and omissions of material fact. Id. at 1324.
185. The Court’s discussion highlights a distinction between statements of
pure opinion and mixed statements of fact and opinion. The Court established a two-
step process for analyzing potential securities liability. Id. at 1325. First, a court
should inquire whether “an opinion itself constitutes a factual misstatement.” Id.
Second, if so, the court should then determine “when an opinion may be rendered
misleading by the omission of discrete factual representations.” Id.
186. As to the first step, the Supreme Court noted that a statement of opinion
does not constitute an “untrue statement of fact” simply because the stated opinion
ultimately proves incorrect. Id. at 1326. Rather, the Court held that “a sincere
statement of pure opinion is not an ‘untrue statement of material fact,’ regardless
whether an investor can ultimately prove the belief wrong.” Id. at 1327. The Court carefully explained, however, that “liability under § 11’s false-statement provision
would follow . . . if the speaker did not hold the belief she professed” or “if the
supporting fact she supplied were untrue.” Id. The reach of section 11 is limited in
that it “does not allow investors to second-guess inherently subjective and uncertain
assessments.” Id. In other words, the Court explained, section 11’s false-statement
provision is not “an invitation to Monday morning quarterback an issuer’s opinion.”
Id.
187. As to the second step, the Court explained that statements could be
misleading under section 11 if they omitted “material facts about the issuer’s inquiry
into or knowledge concerning a statement of opinion, and if those facts conflict with
what a reasonable investor would take from the statement itself.” Id. at 1329. The
Court expressly rejected the argument that an opinion can never constitute a
misrepresentation. Id. at 1328. Rather, the Court explained that “a reasonable
investor may, depending on the circumstances, understand an opinion to convey facts
about how the speaker has formed the opinion . . . . [a]nd if the real facts are
otherwise, but not provided, the opinion statement will mislead its audience.” Id.
188. The Supreme Court was careful to limit the scope of its holding,
explaining that an opinion “is not necessarily misleading when an issuer knows, but
fails to disclose, some fact cutting the other way.” Id. at 1329. Indeed, the Court
explained, “[r]easonable investors understand that opinions sometimes rest on a
weighing of competing facts,” and “the presence of such facts is one reason why an
issuer may frame a statement as an opinion, thus conveying uncertainty.” Id. 189. Thus, under Omnicare, to state a claim under section 11, the investor
“must identify particular (and material) facts going to the basis for the issuer’s
opinion—facts about the inquiry the issuer did or did not conduct or the knowledge it
did or did not have—whose omission makes the opinion statement at issue misleading
to a reasonable person reading the statement fairly and in context.” Id. at 1332. As
the Supreme Court points out, “[t]hat is no small task for an investor.” Id.
190. The difficulty that a plaintiff faces in meeting the Omnicare standard is
reflected in the Second Circuit’s opinion in Sanofi. Issued in March 2016, Sanofi was
the first federal appellate-court decision to discuss Omnicare in detail.
191. In Sanofi, the plaintiffs alleged that Sanofi, a pharmaceutical company,
made materially false or misleading statements regarding its breakthrough drug
Lemtrada and the chances that the drug would receive FDA approval, when the
company was aware that the FDA had expressed concerns with Sanofi’s reliance on
single-blind studies. Sanofi, 816 F.3d at 202.
192. In affirming the trial court’s dismissal of the plaintiff’s federal securities
claims, the Second Circuit echoed the Supreme Court’s emphasis in Omnicare that
investors must examine the factual context in which an allegedly misleading opinion
is made. Id. at 211. The court was persuaded by the fact that the plaintiffs were
sophisticated investors who were familiar with the customs and practices of the
relevant industry. Id.; see id. at 211–12 (“While a layperson, unaccustomed to the
subtleties and intricacies of the pharmaceutical industry and registration
statements, may have misinterpreted Defendants’ statements as evincing assurance of success, Plaintiffs here can claim no such ignorance.”). However, the court further
noted that the offering materials contained numerous caveats as to the reliability of
the projections that a “reasonable investor” would have considered. Id. at 211. The
court granted the defendants’ motion to dismiss the plaintiffs’ claim at the pleading
stage, amplifying Omnicare’s teaching that “[i]ssuers must be forthright with their
investors, but securities law does not impose on them an obligation to disclose every
piece of information in their possession.” Id. at 214.
b. There are issues of material fact as to whether Triple Net’s opinion constitutes an actionable misstatement.
193. Plaintiffs contend that Triple Net’s statements regarding the probability
of Duke’s lease renewals, although expressed as an opinion, implied facts upon which
the opinions were based, and were misleading because Plaintiffs were not advised of
facts known to—or that should have been known to—Triple Net, thereby causing the
opinions to be misleading. Particularly, Plaintiffs assert that the stated percentage
probabilities in the ARGUS presentation and the stated opinion that Triple Net
believed that Duke would renew based on the lease history were misleading when
Plaintiffs were not advised that Duke had already expressed reservations about the
leased space and had taken actions directed at relocating when the leases expired.
Plaintiffs further claim that the materiality of this information would be even more
obvious if Triple Net had learned but failed to disclose that Highwoods had
participated in those efforts by issuing a build-to-suit proposal at the same time it
was marketing the Property for sale to Triple Net. 194. The Grubb & Ellis Defendants rely heavily on case law developed prior
to Omnicare holding that liability under securities laws should not rest on forward-
looking statements accompanied by cautionary language. See, e.g., Gasner v. Bd. of
Supervisors, 103 F.3d 351, 364 (4th Cir. 1996); Raab v. Gen. Physics Corp., 4 F.3d
286, 290 (4th Cir. 1993); In re Donald J. Trump Casino Sec. Litig.—Taj Mahal Litig.,
7 F.3d 357, 371–73 (3d Cir. 1993). Applying those holdings, the Grubb & Ellis
Defendants highlight that any statement regarding the probability of Duke’s lease
renewal was necessarily forward-looking and was accompanied by abundant
disclaimers cautioning that Plaintiffs should not invest based on any assurances that
the stated assumptions of lease renewal would prove true, and that Duke’s failure to
renew would necessarily undercut the success of the Business Plan. It is important
to focus on the exact language of the critical opinion. In addition to using certain
probability percentages to project a cash-flow analysis, Triple Net expressed the
following opinion:
Based on Duke’s longevity as a tenant at the Property, the Manager believes that Duke will continue to renew each of their leases for a variety of reasons. Most notably is the Property’s location to Durham Regional Hospital and Duke University. Durham Regional Hospital is located approximately one-half mile to the south while Duke University is approximately 7 miles away. The lack of new and existing available office space large enough to handle the square footage needs of the PRMO Group and Pediatric group further supports this.
Based upon the importance of Duke’s tenancy to the Property, the Manager intends to engage Duke regarding extending their respective leases. This will help reduce the uncertainty surrounding the expiration of their leases over the first three years of the projected five year holding period. However, there can be no assurance that Duke University Health Systems, Inc. or Duke University will in fact extend their leases at the Property. (PPM 40.)
195. This statement is offered neither as a pure opinion nor as a
representation that Duke would in fact renew. The language is properly
characterized as an opinion that implies a factual basis. The opinion is accompanied
by clear disclaimers that the opinion was not an assurance, and that if the opinion
proved wrong in the future, the value of the investment would be undercut
substantially, if not totally lost. (See, e.g., PPM i, 19.) While Triple Net committed
to using “good faith commercially reasonable efforts to retain existing tenants and/or
to re-lease and re-tenant vacant premises in the Property,” it expressly advised that
“no assurance can be given that [it would] be able to do so.” (PPM 9.)
196. Because the PPM clearly reveals that Duke’s renewal was uncertain,
Plaintiffs must contend that the omission of additional facts rendered Triple Net’s
opinion misleading, notwithstanding that the opinion was already accompanied by
the caution that the opinion could not be considered as providing any assurance, and
that Plaintiffs were investing based on a future contingency. Their argument is that
additional facts regarding Duke’s consideration of a possible relocation would have
been material to an investor’s consideration of whether the stated contingency would
be more likely to fail. That is, Plaintiffs’ burden is to show that the omitted additional
facts made the expressed opinion “misleading to a reasonable person reading the
statement fairly and in context.” Omnicare, 135 S. Ct. at 1332.
197. Having considered the record, the Court concludes that there is no
adequate basis on which a jury could reasonably conclude that Triple Net misrepresented that Duke had actually decided to renew. First, the PPM does not
make that statement. Further, there is no evidentiary basis to reject Selig’s clear
testimony that no decision to relocate had been made.
198. However, having expressed an affirmative opinion that it believed that
Duke would renew, Triple Net cannot defend its statement solely on the basis that
Duke had not decided otherwise and that Triple Net reasonably held its stated belief.
Liability can rest on an opinion that implies certain facts if there were other facts of
which the offeror knew but did not disclose, or facts of which the offeror would be
presumed to have known from the manner in which the opinion was based. Here,
Plaintiffs highlight that Selig testified that Triple Net was specifically advised that
Duke had begun to consider relocating, evidenced by Duke having issued an RFP—a
fact that the PPM did not disclose. (Selig Dep. vol. I, 56:19–57:2, 59:1–4, July 3,
2012.) Plaintiffs further contend that Triple Net’s due diligence was inadequate, as
a result of which Triple Net failed to learn of additional facts that should have been
disclosed.
199. Admittedly, the burden on an investor who seeks to impose liability
based on an issuer’s statement of opinion remains a high one, and the burden is
particularly high when a plaintiff relies on an opinion regarding a future occurrence
that is accompanied by disclaimers and cautions. Nonetheless, based on this record,
the Court concludes that there are material issues of fact that preclude a grant of
summary judgment either to the North Carolina Plaintiffs or to the Grubb & Ellis
Defendants on the issue of primary liability under the Securities Act pursuant to section 78A-56(a)(2). The Court reserves reconsideration of its holding upon a motion
for directed verdict.
G. The North Carolina Plaintiffs’ Claim of Secondary Liability Against Highwoods and TLG Should Be Dismissed.
200. Having found that the North Carolina Plaintiffs may pursue a primary-
liability claim under section 78A-56(a)(2), the Court turns to whether those Plaintiffs
may proceed with their claim of secondary liability against Highwoods and TLG.
After due consideration of the record, briefs and authorities, and arguments of
counsel, the Court concludes that the secondary-liability claim must be dismissed,
because the evidence of record, viewed in the light most favorable to Plaintiffs, does
not allow for a conclusion that either Highwoods or TLG knew of and then materially
aided or substantially assisted in Triple Net’s expression of the opinion on which the
North Carolina Plaintiffs base their primary-liability claim.
201. The Court first rejects Plaintiffs’ argument that the law-of-the-case
doctrine precludes it from reviewing the secondary-liability claim because the Court
allowed that claim to survive Highwoods’ and TLG’s initial Rule 12(b)(6) motions to
dismiss. See Highwoods, 2013 NCBC LEXIS 11, at *57. That doctrine does not
preclude the Court’s subsequent review of the claim under Rule 56.
202. The Court begins its analysis by examining the relevant portion of the
Act on which the secondary-liability claim is based. Section 78A-56(c)(2) provides in
pertinent part that
[u]nless liable under subdivision (1) of this subsection . . . every other person who materially aids in the transaction giving rise to the liability is also liable jointly and severally with and to the same extent as the person if the employee or other person actually knew of the existence of the facts by reason of which the liability is alleged to exist.
N.C. Gen. Stat. § 78A-56(c)(2). The Securities Act imposes two essential elements for
secondary liability: (1) the “material aid” requirement, and (2) the “actual knowledge”
requirement. See id.
203. In its earlier opinion, the Court determined that “material aid” should
be construed to require conduct that rises “to the level of having contributed
substantial assistance to the act or conduct leading to primary liability under the
[Securities Act].” Highwoods, 2013 NCBC LEXIS 11, at *49. The Court also held
that the undefined term “substantial assistance” should be narrowly construed. Id.
The Court finds a narrow construction appropriate, considering the potential breadth
of secondary liability under section 78A-56(c)(2), which imposes joint and several
liability on every person who materially aids the primary actor. N.C. Gen. Stat.
§ 78A-56(c)(2).
204. Here, Plaintiffs contend that Highwoods and TLG materially aided
Triple Net’s violation of the Securities Act in two ways.
205. First, Plaintiffs contend that Highwoods’ transfer of fractional interests
by deed directly to Plaintiffs was itself “material aid.” The Court concludes that the
transfer by deed alone did not constitute material aid within the scope of the
Securities Act.
206. Second, Plaintiffs contend that Highwoods and TLG materially aided
Triple Net in giving a misleading opinion as to the probability of Duke’s lease renewal
by failing to advise Triple Net of facts that might have led Triple Net either to express a different opinion or to disclose additional facts regarding the basis for the opinion
that it did express. Even assuming, without deciding, that a person’s failure to
disclose facts to an offeror of securities could, under a total mix of information,
constitute material aid or substantial assistance, under the Securities Act, that
material aid or substantial assistance must nevertheless be accompanied by proof
that the party charged with secondary liability acted with knowledge of the facts on
which the claim of primary liability is based. Plaintiffs cannot satisfy that
requirement here, because there is no evidence of record to show that, at the time
Highwoods or TLG allegedly provided material aid or substantial assistance, either
entity knew that Triple Net intended to make—or use the information sought from
Highwoods or TLG to make—the opinion on which Plaintiffs base their primary-
liability claim against Triple Net.
207. Essentially, Plaintiffs claim that Highwoods and TLG are secondarily
liable because Triple Net relied on them when it expressed its own opinion in the
PPM regarding the probability that Duke would renew its leases, and that
Highwoods’ or TLG’s failure to disclose their knowledge of certain facts regarding
Duke’s consideration of that renewal supports secondary liability, regardless of
whether Highwoods or TLG knew that Triple Net intended to use that information to
express an opinion to a securities purchaser who might be influenced by Triple Net’s
awareness or lack of awareness of the facts underlying Triple Net’s opinion. That is,
according to Plaintiffs, Highwoods and TLG are secondarily liable if they misled
Triple Net, as a result of which Triple Net, in turn, misled Plaintiffs, and Plaintiffs need not prove that Highwoods or TLG knew that Triple Net intended to use the
information they provided to mislead Plaintiffs.
208. The Court has earlier rejected the notion that Plaintiffs can assert a
direct fraud-based claim against Highwoods or TLG under a theory of “indirect
reliance,” and that any fraud-based claim fails because neither Highwoods nor TLG
made a direct representation on which any Plaintiff relied in purchasing a TIC
interest. See Highwoods, 2013 NCBC LEXIS 11, at *58–62. The Court likewise
concludes that neither Highwoods nor TLG may be charged with secondary liability,
because there is no proof that they “actually knew of the existence of the facts by
reason of which the [primary] liability is alleged to exist.” N.C. Gen. Stat.
209. The North Carolina Plaintiffs have offered no evidence that either
Highwoods or TLG knew that Triple Net intended to express, or in fact had expressed,
the opinion on which the primary-liability claim is based. There is no evidence that
Highwoods or TLG directly participated in drafting any representation upon which
any North Carolina Plaintiff relied. There is no evidence that Triple Net asked
Highwoods or TLG to review, endorse, or comment on any representation that Triple
Net intended to make, or in fact made, to the North Carolina Plaintiffs. As cautioned
by the United States Supreme Court in Omnicare, allowing a securities-law violation
to rest on the expression of an opinion should not be read so broadly as to impose a
general duty of disclosure. Omnicare, 135 S. Ct. at 1329. This caution is particularly
appropriate where, as here, the duty of disclosure is asserted not against the securities offeror, but against one who expressed a separate opinion to the offeror
during the offeror’s own due diligence.
210. The Court is not required to reach a different conclusion based on
evidence that Triple Net may have directly copied into the PPM some background
information from the COM that TLG had earlier prepared in connection with
Highwoods’ marketing of the Durham Property. TLG contends that any such copying
was prohibited by the terms of the COM, but that, more significantly, Plaintiffs have
not tied any of the reproduced background information to Triple Net’s expression of
the opinions on which they rely to assert their claim of primary liability. The
uncontested evidence is that Triple Net varied its statement of assumptions and
probability projections of lease renewals from those that TLG expressed in the COM.
Moreover, the PPM expressly advises any potential purchaser that statements in the
PPM must be assumed to have been based solely on Triple Net’s own due diligence.
(See PPM 39.)
211. Under the facts of this case, the Court concludes that the uncontested
evidence demonstrates that the North Carolina Plaintiffs have failed to offer proof
that either Highwoods or TLG provided material aid with the requisite actual
knowledge required under the Securities Act. Accordingly, the Court determines that
Highwoods’ Motion for Summary Judgment is GRANTED, TLG’s Motion for
Summary Judgment is GRANTED, Plaintiffs’ Motion for Partial Summary Judgment
Against Highwoods & TLG is DENIED, and any claim of secondary liability against
Highwoods and TLG should be DISMISSED WITH PREJUDICE. H. Plaintiffs’ Remaining Claims Against the Grubb & Ellis Defendants
212. While the various motions have concentrated most heavily on whether
Plaintiffs’ claims based on the Securities Act survive summary judgment, Plaintiffs
have presented other claims on which the Grubb & Ellis Defendants now request
summary judgment, including claims of breach of contract, negligence, negligent
misrepresentation, breach of fiduciary duty, constructive fraud, unfair and deceptive
trade practices, and punitive damages. The Court separately analyzes each of these
claims below.
(1) Breach of contract
213. Plaintiffs allege that the Grubb & Ellis Defendants materially breached
the Purchase Agreement and Escrow Instructions (“Purchase Agreement”) with
Plaintiffs, “and/or caused Defendant NNN Office to materially breach” the
agreement, when NNN Office “represented that it was the record owner” of the
Durham Property, having “recently acquired the property,” and that it would deed
the Property from itself to each TIC, when NNN Office never in fact acquired title to
the Durham Property. (Am. Compl. ¶ 210; Pls.’ Mem. Opp’n to Grubb & Ellis Defs.’
Mot. Summ. J. 19.) Plaintiffs allege that the Grubb & Ellis Defendants “committed
other breaches in structuring the transaction,” but they do not identify those
breaches. (Am. Compl. ¶ 210(e).)
214. The elements of a claim for breach of contract include (1) the existence
of a valid contract and (2) breach of the terms of that contract. Bob Timberlake
Collection, Inc. v. Edwards, 176 N.C. App. 33, 43, 626 S.E.2d 315, 323 (2006). 215. The “as is” provision in the Purchase Agreement states that “BUYER
ACKNOWLEDGES THAT SELLER ONLY RECENTLY ACQUIRED THE
PROPERTY AND HAS LIMITED KNOWLEDGE REGARDING THE CONDITION
OF THE PROPERTY.” (Purchase Agreement § 7.2.) The Purchase Agreement did
not contain a covenant of seisin or any other representation that NNN Office held
title to the Durham Property. The Court agrees with the Grubb & Ellis Defendants
that the fact that Highwoods deeded the Durham Property directly to Plaintiffs and
the deed was not first given to NNN Office does not support a breach-of-contract
claim. Accordingly, summary judgment is GRANTED in favor of the Grubb & Ellis
Defendants on this claim.
(2) Negligence and negligent misrepresentation
216. Plaintiffs allege that the Grubb & Ellis Defendants owed Plaintiffs a
duty to conduct a proper and thorough due-diligence investigation and breached their
duty of care when they made representations regarding Duke’s lease-renewal
probabilities without first determining or disclosing that Duke had issued an RFP.
(Am. Compl. ¶¶ 215–16.) The Grubb & Ellis Defendants move to dismiss this claim
on the grounds that there is no common-law duty of due diligence distinct from the
obligations imposed by the Securities Act. (Grubb & Ellis Defs.’ Mot. Summ. J. 4.)
217. The Court agrees that Plaintiffs may recover, if at all, based on their
claims under a securities act, and that they are not entitled to proceed separately on
a theory of negligence grounded on Triple Net’s failure to complete adequate due diligence. Thus, summary judgment is GRANTED in favor of the Grubb & Ellis
Defendants on Plaintiffs’ claims of negligence and negligent misrepresentation.
(3) Breach of fiduciary duty and constructive fraud
218. A claim for breach of fiduciary duty cannot exist in the absence of a
fiduciary relationship between the parties. Dalton, 353 N.C. at 651, 548 S.E.2d at
707. A fiduciary relationship has been broadly defined by the North Carolina
Supreme Court as a relationship in which “there has been a special confidence
reposed in one who in equity and good conscience is bound to act in good faith and
with due regard to the interests of the one reposing confidence.” Id. (quoting Abbitt
v. Gregory, 201 N.C. 577, 598, 160 S.E. 896, 906 (1931)). The definition requires a
showing of “confidence reposed on one side, and resulting domination and influence
on the other.” Id. at 651, 548 S.E.2d at 708 (emphasis omitted) (quoting Abbitt, 201
N.C. at 598, 160 S.E. at 906).
219. As for NNN Capital’s liability, the Court finds no case law to support
the theory that managing broker–dealers owe fiduciary duties to investors. Indeed,
the North Carolina Supreme Court has declined to find a fiduciary relationship in
arm’s-length borrower–lender transactions. See Dallaire v. Bank of Am., N.A., 367
N.C. 363, 368, 760 S.E.2d 263, 266–67 (2014); see also Berthel Fisher & Co. Fin.
Servs., Inc. v. Larmon, 695 F.3d 749, 753 (8th Cir. 2012) (holding that individual
investors are not the customers of managing broker–dealers); Fekety v. Gruntal &
Co., 595 N.Y.S.2d 190, 190–91 (App. Div. 1993) (“[A] broker does not, in the ordinary
course of business, owe a fiduciary duty to a purchaser of securities.”). While a fiduciary relationship may, in appropriate circumstances, arise as a matter of fact,
see CommScope Credit Union v. Butler & Burke, LLP, ___ N.C. ___, 790 S.E.2d 657,
660 (2016), here, the Court finds no evidence that NNN Capital owed fiduciary duties
to Plaintiffs.
220. As for Triple Net’s liability, Plaintiffs’ only contention is that Triple Net
“was a member and/or officer of each Plaintiff LLC at least as of March 12, 2007.”
(Pls.’ Mem. Opp’n to Grubb & Ellis Defs.’ Mot. Summ. J. 21.) Plaintiffs cite no case
law or record evidence to explain how this fact supports their claim for breach of
fiduciary duty. As the Grubb & Ellis Defendants point out, the addendum to the PPM
makes clear that neither NNN Office, Triple Net, Triple Net Realty, “nor the other
[TICs] will have a fiduciary duty to the [TICs], as would be applicable to an
investment in a corporation, limited liability company or partnership.” (Grubb &
Ellis Defs.’ Summ. J. Ex. 21, at 13.) Further, the LLC Agreement provides that Triple
Net was a vice president with limited responsibilities that extended only to executing
certain closing costs and loan documents for the TICs. (See, e.g., LLC Agreement
§§ 3.1.5, 3.2, .3.) This limited role does not give rise to fiduciary obligations.
221. In the absence of a fiduciary duty, Plaintiffs’ claim of constructive fraud
also fails. See Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215,
224 (1997) (holding that the plaintiffs’ constructive-fraud claim failed because there
was no “relationship of trust and confidence”). Accordingly, summary judgment is
GRANTED in favor of the Grubb & Ellis Defendants on Plaintiffs’ breach-of-
fiduciary-duty and constructive-fraud claims. (4) Section 75-1.1
222. Plaintiffs plead in the alternative that if the Court holds that the
Securities Act does not apply because the TIC interests are not securities, it should
find that the Grubb & Ellis Defendants committed unfair and deceptive trade
practices in violation of N.C. Gen. Stat. § 75-1.1 (2015). The Court concludes that
Plaintiffs’ investment is beyond the scope of chapter 75. See Skinner v. E.F. Hutton
& Co., 314 N.C. 267, 275, 333 S.E.2d 236, 241 (1985) (“[S]ecurities transactions are
beyond the scope of [section] 75-1.1.”); Oberlin Capital, L.P. v. Slavin, 147 N.C. App.
52, 62, 554 S.E.2d 840, 848 (2001) (holding that loan agreements and other capital-
raising devices are not “in or affecting commerce” for purposes of chapter 75); Latigo
Invs. II, LLC v. Waddell & Reed Fin., Inc., No. 06 CVS 18666, 2007 NCBC LEXIS 17,
at *49 (N.C. Super. Ct. June 8, 2007) (Diaz, J.) (holding that chapter 75 did not apply
where “the undisputed purpose of the transaction [at issue] . . . was to raise capital”).
Accordingly, summary judgment is GRANTED in favor of the Grubb & Ellis
Defendants on Plaintiffs’ section 75-1.1 claim.
(5) Civil conspiracy
223. North Carolina does not recognize an independent cause of action for
civil conspiracy. See Shope v. Boyer, 268 N.C. 401, 404–05, 150 S.E.2d 771, 773–74
(1966). Plaintiffs cannot properly “use the same alleged acts to form both the basis
of a claim for conspiracy to commit certain torts and the basis of claims for those
torts.” Jones v. City of Greensboro, 51 N.C. App. 571, 584, 277 S.E.2d 562, 571 (1981),
overruled on other grounds by Fowler v. Valencourt, 334 N.C. 345, 435 S.E.2d 530 (1993). The Court concludes that Plaintiffs’ stand-alone claim for civil conspiracy to
violate the Securities Act should be DISMISSED.
(6) Punitive damages
224. Plaintiffs claim that the Grubb & Ellis Defendants are liable for punitive
damages because their “tortious conduct . . . involved fraud and willful or wanton
conduct.” (Am. Compl. ¶ 271.)
225. Section 78A-56(j) of the Securities Act allows for the recovery of punitive
damages if the proof requirements of chapter 1D are met, meaning that Plaintiffs
must prove by clear and convincing evidence that the facts leading to liability were
accompanied by an aggravating factor. See N.C. Gen. Stat. §§ 1D-15(a), (b) (2015).
226. As an initial matter, because the Securities Act claims brought by the
Out-of-State Plaintiffs have been dismissed, the Court likewise dismisses the
punitive-damages claim brought by the Out-of-State Plaintiffs, because the claim is
premised on an alleged violation of the Securities Act. With some doubt that the
evidence will ultimately demonstrate the existence of an aggravating factor under
section 1D-15(a), the Court defers to the time of trial the determination whether the
North Carolina Plaintiffs may proceed with their claim of punitive damages based on
an alleged violation of the Securities Act.
I. Plaintiffs’ 54(b) Motion Is Denied as Moot.
227. Plaintiffs ask the Court to modify the 2013 Order with respect to their
punitive-damages claims against Highwoods and TLG. See Highwoods, 2013 NCBC LEXIS 11, at *66. Having dismissed all claims against Highwoods and TLG, the
Court DENIES Plaintiffs’ 54(b) Motion as moot.
VI. CONCLUSION
228. For the reasons stated in this Order & Opinion, the Court holds and
orders as follows:
A. The Highwoods Lawsuit
1. Highwoods’ Motion for Partial Summary Judgment on the issue whether
Plaintiffs’ TIC interests constitute “securities” under the Securities Act
is DENIED, and summary judgment is GRANTED in favor of Plaintiffs
2. Highwoods’ 12(c) Motion is GRANTED.
3. TLG’s 12(c) Motion is GRANTED.
4. Highwoods’ Motion for Summary Judgment is GRANTED, and claims
against Highwoods are DISMISSED WITH PREJUDICE.
5. TLG’s Motion for Summary Judgment is GRANTED, and claims against
TLG are DISMISSED WITH PREJUDICE.
6. Plaintiffs’ Motion for Partial Summary Judgment Against Highwoods &
TLG on the issue of liability under the Securities Act is DENIED.
7. Plaintiffs’ 54(b) Motion is DENIED AS MOOT.
8. These rulings resolve all claims against all parties in the Highwoods
Lawsuit and therefore constitute a final judgment. B. The Grubb & Ellis Lawsuit
1. Plaintiffs’ Motion for Partial Summary Judgment Against the Grubb &
Ellis Defendants on claims brought under the Securities Act is DENIED.
2. The Grubb & Ellis Defendants’ Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART as follows:
a) On the issue whether Plaintiffs released all claims against the
Grubb & Ellis Defendants, the Grubb & Ellis Defendants’ request
for summary judgment is DENIED, and summary judgment is
GRANTED for Plaintiffs.
b) Summary judgment is GRANTED in favor of Grubb & Ellis Co.,
and all claims against Grubb & Ellis Co. are DISMISSED WITH
PREJUDICE.
c) Summary judgment is GRANTED in favor of NNN Realty
Advisors, and all claims against NNN Realty Advisors are
DISMISSED WITH PREJUDICE.
d) The Grubb & Ellis Defendants’ request for summary judgment on
the North Carolina Plaintiffs’ claim of primary liability under the
Securities Act is DENIED.
e) Summary judgment is GRANTED in favor of the Grubb & Ellis
Defendants on Plaintiffs’ claims of breach of contract, breach of
fiduciary duty, constructive fraud, negligence, negligent
misrepresentation, civil conspiracy, and unfair and deceptive trade practices under N.C. Gen. Stat. § 75-1.1, and those claims
are DISMISSED WITH PREJUDICE.
f) Claims against the Grubb & Ellis Defendants based on the
Securities Act are DISMISSED WITH PREJUDICE as to the
fifty-five Out-of-State Plaintiffs. The only remaining claims
under the Securities Act are the claims brought by the North
Carolina Plaintiffs: NNN Durham Office Portfolio 13, LLC;
Fannie B. Blackwelder; NNN Durham Office Portfolio 32, LLC;
Kenneth Deno McLamb; NNN Durham Office Portfolio 33, LLC;
and Cynthia McLamb.
g) Summary judgment is GRANTED for the Grubb & Ellis
Defendants on Plaintiffs’ claim for punitive damages under
chapter 1D, and that claim is DISMISSED WITH PREJUDICE.
Any claim for punitive damages under the Securities Act
pursuant to N.C. Gen. Stat. § 78A-56(j) is preserved as to the
North Carolina Plaintiffs, whose claim of primary liability under
the Securities Act survives summary judgment.
3. The Court finds and concludes, pursuant to Rule 54(b), that final
judgment shall be entered as to all claims dismissed by this Order &
Opinion in the Grubb & Ellis Lawsuit, because there is no just reason
for delay. To the contrary, all parties in the Grubb & Ellis Lawsuit may
be prejudiced by a failure to enter final judgment as to the dismissed claims, because the issues involving the North Carolina Plaintiffs’
surviving claims overlap with, and are inextricably interrelated to,
claims dismissed by this Order & Opinion. Further, there are
controlling issues of law common to the Highwoods Lawsuit, in which a
final judgment is being entered, and the Grubb & Ellis Lawsuit.
SO ORDERED, this the 29th day of December, 2016.
/s/ James L. Gale James L. Gale Chief Business Court Judge
Related
Cite This Page — Counsel Stack
Nnn Durham Office Portfolio 1, LLC v. Grubb & Ellis Co.; Nnn Durham Office Portfolio 1, LLC v. Highwoods Realty Ltd. P'ship 2016 Ncbc 93a, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nnn-durham-office-portfolio-1-llc-v-grubb-ellis-co-nnn-durham-office-ncbizct-2016.