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LP v. Flamingo West, Ltd.

United States District Court, D. Colorado

October 23, 2015

BOXER F2, LP., a Texas limited partnership, Plaintiff,
v.
FLAMINGO WEST, LTD., d/b/a Legalwiz Publications, BRONCHICK & ASSOCIATES, WILLIAM BRONCHICK, and BRONCHICK & ASSOCIATES, P.C., Defendants.

ORDER

PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE.

This matter is before tine Court on plaintiff Boxer F2, L.P.'s Motion for Partial Summary Judgment [Docket No. 95] and defendants William Bronchick and Bronchick & Associates, P.C.'s Renewed Motion for Partial Summary Judgment [Docket No. 96]. This Court has jurisdiction pursuant to 28 U.S.C. § 1332.

I. BACKGROUND[1]

This case arises out of an alleged breach of a lease agreement. Defendant Flamingo West, Ltd. ("Flamingo West") entered into and executed a lease agreement with RMC/Pavilion Towers in April 2003. Docket No. 95 at 2, Statement of Undisputed Material Fact ("SUMF") 1. At all relevant times, both Flamingo West and Bronchick & Associates PC ("Bronchick PC") occupied tine leased premises, id. at 4, SUMF 12, though Bronchick PC states that it occupied only a small part of the space. Docket No. 105 at 3, ¶ 12. In June 2011, plaintiff replaced RMC/Pavilion Towers, LLC as Flamingo West’s landlord. Docket No. 95 at 4, SUMF 13. In 2012, Flamingo West made late and partial payments to plaintiff and, after August 2012, stopped paying altogether. Id. at 6, SUMF 22-23. On November 2, 2012, Flamingo West vacated the leased premises. Id. at 6, SUMF 25. Plaintiff did not consent to Flamingo West’s abandonment of the Leased Premises. Id. at 6, SUMF 26. Section 11.1 of the Lease Agreement provides that abandonment of the leased premises or failure to pay rent constitutes default. Id. at 6, SUMF 27.

Plaintiff asserts breach of contract claims against Flamingo West, Bronchick & Associates, Mr. Bronchick, and Bronchick PC as successor to Bronchick & Associates. Docket No. 65 at 10-13. Plaintiff also asserts an unjust enrichment claim against Bronchick PC and a fraudulent transfer claim against Flamingo West and Mr. Bronchick. Id. at 14-15. Plaintiff moves for summary judgment on its breach of contract claim against Flamingo West and its unjust enrichment claim against Bronchick PC. Docket No. 95. Mr. Bronchick and Bronchick PC filed a response to the motion, Docket No. 105, but Flamingo West has not responded.

Defendants William Bronchick and Bronchick PC move for summary judgment on plaintiff’s breach of contract claims. Docket No. 96. Defendants state that one party, Flamingo West, signed the lease and successive amendments, and that Mr. Bronchick signed the lease solely in his capacity as a representative of Flamingo West. Docket No. 96 at 4. Defendants also argue that Bronchick PC cannot be liable under the Lease Agreement as a successor entity to Bronchick & Associates because Bronchick & Associates is not a standalone entity but merely a trade name for Flamingo West. Docket No. 96 at 3.

II. STANDARD OF REVIEW

Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (internal quotation marks omitted)). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115 (citation omitted). When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.; see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).

The Court may not grant a motion for summary judgment simply because the nonmovant has failed to respond. See Galvin v. McCarthy, No. 07-cv00885-PAB-BNB, 2009 WL 890717, at *2 (D. Colo. March 31, 2009) (citing Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002)). The Court must apply the usual Rule 56 analysis and consider whether the moving party has met its burden. Id. (citing Reed, 312 F.3d at 1194); see also Fed.R.Civ.P. 56(e)(3) (providing that if the opposing party does not respond, summary judgment should be entered if “the movant is entitled to it”). The Court must “accept as true all material facts asserted and properly supported in [defendants’] summary judgment motion” and grant summary judgment if, based on those facts, the moving party is entitled to judgment as a matter of law. Reed, 312 F.3d at 1195.

III. ANALYSIS

A. Boxer’s Breach of Contract Claim Against Flamingo West

Although plaintiff pursues breach of contract claims against Flamingo West, Mr. Bronchick, Bronchick & Associates, and Bronchick PC, plaintiff seeks summary judgment solely against Flamingo West.

To succeed on its breach of contract claim, [2] plaintiff must show there is no genuine dispute of material facts regarding (1) the existence of a binding agreement between Flamingo West and Boxer, (2) that Boxer performed its contractual obligations, (3) Flamingo West’s failure to perform its obligations, and (4) damages to Boxer therefrom. See Xtreme Coil Drilling Corp. v. Encana Oil & Gas (USA), Inc., 958 F.Supp.2d 1238, 1243 (D. Colo. 2013) (citing Western Distributing Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992)).

Regarding the first element, plaintiff attaches the April 14, 2003 lease, signed by William Bronchick on behalf of Flamingo West and R. Maurice Crowe, Jr. on behalf of plaintiff. Docket No. 95 at 2, SUMF 1. As to the second element, plaintiff asserts that it provided the leased premises that Flamingo West occupied. Id. at 9, ¶ 39. As to the third allegation, plaintiff asserts that Flamingo West breached the Lease Agreement by abandoning the entire premises prior to the expiration of the term of the Lease Agreement, and by failing to make rent and other payments due under the lease agreement. Id. at 10, ¶¶ 42, 44. Regarding its damages allegations, plaintiff claims that Flamingo West owes $2, 428, 625.03. Id. at 14, ¶ 62. This total consists of $27, 873.52 for past-due rent and late fees that accrued between April 1, 2012 and October 31, 2012 (id. at 12, ¶ 55), $2, 141, 735.04 for rent, late fees, and interest thereon for the period between November 1, 2012 through April 30, 2015 (id. at 13, ¶ 58), $75, 664.00 for rent payments due between May 1, 2015 and September 30, 2016 (Id. at 13, ¶ 59), $183, 351.30 in costs to repair the Leased Premises. Id. at 13, ¶ 61. The damages figure of $2, 428, 625.03 provided by plaintiff has been reduced by plaintiff’s ...


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