United States District Court, D. Colorado
GENESIS CAPITAL VENTURES, LLC, a Colorado limited liability company, Plaintiff,
RESTORE WITH APEX, INC., d/b/a APEX RESTORATION DKI, a Tennessee corporation, and GREGORY DRIVER, an individual, Defendants.
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE.
contract dispute is before me on a motion to dismiss by
Defendants Restore With Apex, Inc. (“Apex”) and
its CEO Gregory Driver. Mr. Driver moves to dismiss several
of the claims against him under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, arguing that he is not a party to
the contract, that he did not personally guarantee Apex's
performance, and that the claims violate Colorado's
statute of frauds and its parol evidence rule. Both Apex and
Mr. Driver move to dismiss the fraud in the inducement claim
under Rule 12(b)(6), arguing it is barred by Colorado's
economic loss rule, impermissible because the contract is
fully integrated, and not pleaded with adequate particularity
under Rule 9(b) of Federal Rules of Civil Procedure.
Plaintiff Genesis Capital Ventures LLC (“Genesis)
opposes the motion.
describe below, I disagree with Mr. Driver and Apex's
arguments. The form of Mr. Driver's signature on the
contract indicates he may be personally liable on the
contract to the same extent that Apex is, and neither the
parol evidence rule nor the statute of frauds alter this
conclusion. And Colorado law permits a fraud in the
inducement claim despite its economic loss rule, even if the
parties signed a fully integrated contract, because a fraud
in the inducement claim arises from the independent tort duty
to refrain from making material misrepresentations, not from
the terms of the contract itself. I accordingly DENY the
motion to dismiss.
following allegations are taken from the Complaint (ECF No.
3), unless otherwise noted.
funds the roofing and restoration industries. Essentially,
Genesis pays a contractor up front for the costs of a
project, and in exchange, it, rather than the contractor,
receives payment for work completed on the project. Genesis
funded Apex's restoration of a facility in Alabama owned
by Giles & Kendall, Inc. But Apex never got the proper
licenses to conduct the restoration of the Alabama facility,
and Giles & Kendall refuses to pay for the unlicensed
work Apex completed, which means that Genesis has not been
repaid for the funding it provided for the Alabama facility.
terms of the funding agreement between Apex and Genesis are
described in a “Platinum Receivable Management
Program” contract (the “PRMP contract”),
which was drafted by Genesis. (PRMP contract at 1, ECF No.
1-5.) The contract itself states it is between “Genesis
Capital Ventures, LLC” and “Restore with Apex
Inc. DBA Apex Restoration DKI.” (Id. at 1.)
The signature lines on the PRMP contract (id. at 7)
are as follows:
contract itself does not mention either Jeffrey Posey, who
presumably signed for Genesis, or Mr. Driver, who twice
signed above the word “Contractor.” The contract
does define “Contractor” as “Restore with
Apex Inc. DBA Apex Restoration DKI.” (Id. at
brought this suit against Apex and Mr. Driver in Colorado
state court for breach of contract, breach of implied
warranties, breach of personal guarantee, fraud in
inducement, and unjust enrichment. Apex removed the case to
this Court based on diversity jurisdiction, and Genesis moved
to remand the case back to the Colorado state court. (ECF No.
20.) I denied the remand motion. (ECF No. 36.)
turn to Apex and Mr. Driver's pending motion to dismiss
several claims. (ECF No. 18.)
RULE 12(B)(6) STANDARD
Rule 12(b)(6), “[d]ismissal is appropriate only if the
complaint, viewed in the light most favorable to plaintiff,
lacks enough facts to state a claim to relief that is
plausible on its face.” United States ex rel.
Conner v. Salina Regional Health Center, 543 F.3d 1211,
1217 (10th Cir. 2008) (quotation omitted). A claim is
plausible on its face “when the plaintiff pleads
factual content that enables the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007)). ...