Bettis et al v. Hall et al

Filing 102

MEMORANDUM AND ORDER granting in part and denying in part 86 Defendants' Motion for Partial Summary Judgment; denying 88 Plaintiffs' Motion for Partial Summary Judgment. Signed by District Judge Julie A. Robinson on 2/14/2012. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TONY BETTIS, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
GARY HALL, et al.,
)
)
Defendants.
)
__________________________________________)

Case No. 10-cv-2457-JAR

MEMORANDUM AND ORDER
Plaintiffs Tony Bettis, Eric Comeau, Steven Seat, and National Realty Capital, LLC
(“NRC”) filed this action against Defendants Gary L. Hall, Bentley Investments of Nevada, LLC
(“Bentley”), and the Gary L. Hall Revocable Trust (“Trust”) for breach of contract and quantum
meruit. After the Court’s ruling on Defendants’ earlier dispositive motion, Plaintiffs’ remaining
claims allege breach of contract against Defendant Gary Hall and quantum meruit against
Defendants Bentley and the Trust. Plaintiffs seek damages for unpaid profits that they claim are
owed under the contract they entered into with Hall; Plaintiffs allege that these profits were
instead paid to Bentley, Hall, and the Trust.
This matter is before the Court on Defendants’ Motion for Partial Summary Judgment
(Doc. 86) and Plaintiffs’ Motion for Partial Summary Judgment on the Issue of Contract
Interpretation (Doc. 88). As fully explained below, because the contract states that the full
amount of overhead needed to be repaid before any profits were distributed, the Court denies
Plaintiffs’ motion for summary judgment. But because Plaintiffs may still be entitled to profits
under the proper interpretation of the contract for a number of projects and Plaintiffs’ evidence

shows that Bentley received and retained a benefit from Plaintiffs, Defendants’ motion is granted
in part and denied in part.
I.

Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that there is “no

genuine dispute as to any material fact” and that it is “entitled to a judgment as a matter of law.”1
In applying this standard, the court views the evidence and all reasonable inferences therefrom in
the light most favorable to the nonmoving party.2 A fact is “material” if, under the applicable
substantive law, it is “essential to the proper disposition of the claim.”3 An issue of fact is
“genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve
the issue either way.”4
The moving party initially must show the absence of a genuine issue of material fact and
entitlement to judgment as a matter of law.5 In attempting to meet this standard, a movant that
does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim;
rather, the movant need simply point out to the court a lack of evidence for the other party on an
essential element of that party’s claim.6
Once the movant has met this initial burden, the burden shifts to the nonmoving party to

1

Fed. R. Civ. P. 56(c).

2

Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002).

3

Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001) (citing
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
4

Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

5

Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).

6

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at

671).

2

“set forth specific facts showing that there is a genuine issue for trial.”7 The nonmoving party
may not simply rest upon its pleadings to satisfy its burden.8 Rather, the nonmoving party must
“set forth specific facts that would be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”9 To accomplish this, the facts “must be
identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated
therein.”10 Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge
and shall set forth such facts as would be admissible in evidence.11 The non-moving party
cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by
specific facts, or speculation.12 ” “Where, as here, the parties file cross motions for summary
judgment, we are entitled to assume that no evidence needs to be considered other than that filed
by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to
material facts.”13
Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it
is an important procedure “designed to secure the just, speedy and inexpensive determination of

7

Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
8

Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

9

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir. 2000) (quoting Adler, 144 F.3d at

671).
10

Adams, 233 F.3d at 1246.

11

Fed. R. Civ. P. 56(c)(4).

12

Id.; Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (citation

omitted).
13
James Barlow Family Ltd. P’ship v. David M Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997)
(citation omitted).

3

every action.”14 In responding to a motion for summary judgment, “a party cannot rest on
ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the
mere hope that something will turn up at trial.”15
II.

Uncontroverted Facts
District of Kansas Local Rule 56.1 outlines the proper procedures for stating the material

facts and for addressing the other party’s statement of material facts. When opposing a motion
for summary judgment, a party must begin its memorandum in opposition “with a section
containing a concise statement of material facts as to which the party contends genuine issues.”16
The Rule continues, describing the proper format for the concise statement: “Each fact in dispute
must be numbered by paragraph, refer with particularity to those portions of the record upon
which the opposing party relies, and if applicable state the number of movant’s fact that is
disputed.”17 Additionally, when a non-moving party adds material facts in the response brief, the
moving party must respond to the additional material facts in the same manner—with a concise
statement as to which additional facts the party contends genuine issues.18 Under Federal Rule
of Civil Procedure 56(e), if a party fails to properly address another party’s assertion of fact, the
court may consider the fact undisputed for purposes of the motion. But still, in so doing, the
court must be certain that no undisclosed factual dispute would undermine the uncontroverted

14

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

15

Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

16

D. Kan. R. 56.1(b)(1).

17

Id.

18

D. Kan. R. 56.1(c).

4

facts.19
With the above rules of law and principles of application in mind, the following facts are
stipulated to or uncontroverted.20 In 2004, Defendant Hall was seeking real estate investment
opportunities. Hall became acquainted with Plaintiffs Comeau, Bettis, and Seat when they
approached him with a business plan to employ Hall’s disposable capital by lending money
secured by real estate as well as by investing in equity partnerships involving real estate. Hall
had previously met Comeau because Comeau worked at a bank where Hall had done business.
Hall decided to proceed with the investment plan that Plaintiffs proposed. Under the proposed
investment plan, Comeau, Seat, and Bettis would locate real estate investment opportunities and
present them to Hall. If Hall approved the project, he would provide funds to invest in the real
estate project. In return for Plaintiffs work, Hall would compensate Plaintiffs by advancing them
funds on a monthly basis to cover their overhead costs.
To memorialize the agreement, Comeau, Bettis, Seat, and Hall entered into a written
contract, the Funding Agreement. In accordance with the Funding Agreement, Comeau, Bettis
and Seat formed NRC to locate the real estate investments, including loans and equity
participations, and Plaintiffs began to work for Hall full time. The Funding Agreement also

19

Thomas v. Bruce, 428 F. Supp. 2d 1161, 1163 (D. Kan. 2006).

20

While Plaintiffs, in their Response to Defendants’ motion for summary judgment, controverted some of
Defendants’ material facts, they did not do so in a concise statement using numbered paragraphs, thereby placing an
additional burden on the Court to determine which facts were controverted. Further, in Plaintiffs’ Reply for their
own motion for summary judgment, Plaintiff failed to address the additional facts in the Defendants’ Response as
required under District of Kansas Local Rule 56.1(c). Normally, under Federal Rule of Civil Procedure 56(e), the
Court would treat the facts that were unaddressed as undisputed. But because Plaintiff already addressed and
controverted some of these facts in their response to Defendant’s motion for summary judgment, the Court will treat
the facts that were previously addressed as controverted for purposes of Plaintiffs’ motion for summary judgment as
well. The Court, however, advises Plaintiffs to consult the District of Kansas Local Rules before making any future
filings with the Court.

5

required the formation of other limited liability companies, or Lending Entities, formed to serve
as the lender and to hold any assets for each real estate investment project. In total, six
individual Lending Entities—each owned 100% by Hall—were formed: Bentley Investments of
Nevada, LLC (“Bentley”), Bentley Investments of Nevada II, LLC (Bentley II”), Bentley
Investments of Nevada III, LLC (“Bentley III”), Bentley Investments of Nevada IV, LLC
(“Bentley IV”), Bentley Investments of Nevada V, LLC (“Bentley V”), and Bentley Investments
of Nevada VI, LLC (“Bentley VI”). Hall formed Bentley for the purpose of providing funding
and receiving payments for the real estate investment projects. Lending Entities Bentley II
through Bentley VI simply held assets acquired in the course of the real estate investments. The
Trust is the sole member of Bentley and the Bentley II through VI entities. Hall is the trustee of
the Trust.
Proceeding under the Funding Agreement, in July of 2004, Hall began to advance
Plaintiffs funds for “Overhead Costs,” which is defined in the Funding Agreement as salaries,
health insurance expenses, travel expenses, phone and facsimile expenses of Comeau, Bettis, and
Seat, as well as supplies and start-up expenses of NRC. In July 2004, Hall advanced Plaintiffs
$40,000. On a monthly basis after that, through December of 2009, Hall advanced Plaintiffs
$58,500 per month. In January and February 2009, Hall advanced Plaintiffs $41,500 per month.
Hall then stopped advancing Plaintiffs funds for Overhead Costs. The Funding Agreement
specified that the Overhead Costs were not considered a loan for which Comeau, Bettis and Seat
were personally liable. Instead, the Overhead Costs were to be repaid from the cash revenues
generated by the Lending Entities.
As Hall was performing this obligation under the Funding Agreement by advancing

6

funds, Plaintiffs performed their obligation under the Funding Agreement by finding real estate
investment opportunities. Hall invested in several real estate projects over a period of five years.
Six of those projects—Terra Bentley I, Terra Bentley II, Stonewall Springs, Morley Bentley,
Morley Cottonwood, and Morley FLP—have either failed to turn a profit or will not be
profitable for many years and are thus not in dispute in this lawsuit. Other projects have
generated cash revenues that were distributed under the Funding Agreement. Those projects are
Weibel-RBND, Morley SWAT, Shorefox, Grand Elk, Morley Companies Family Development
(“MCFD”), SWAT 15, and Porchlight. The parties dispute whether the final project, Grand
Lodge, has generated cash revenues and profits that are distributable under the Funding
Agreement.
Under the Funding Agreement, the cash revenues from these projects would be
distributed by each Lending Entity in a certain order listed in sections 5(a)–(f) of the Funding
Agreement:
(a) Repayment of the Debt Portions which may be paid to a third party institution
or to Hall if he has chosen to replace third party financing;
(b) Return to Hall the aggregate Overhead Costs advanced by him plus the
associated 7% annualized return;
(c) Return to Hall an amount equal to the Equity Portion invested by Hall in each
Lending Entity (including any transaction costs, if applicable);
(d) Return to Hall (and to NRC, Bettis, Seat, and Comeau, if applicable) the preagreed upon preferred return to Hall based on the 30% Equity Portion. Risk
profiles of each transaction shall yield a preferred return between the Prime Rate
plus 6% to the Prime Rate plus 10%. . . ;
(e) Remaining cash revenues and profits shall be allocated and distributed 70% to
Hall and 30% to NRC. NRC shall, after Hall receives the amounts he advances to
NRC pursuant to paragraph 1, including the 7% annualized return specified
thereunder, use its 30% distribution to fund Working Capital Reserve which shall
have a balance of at least $350,000 at all times, to be used for Overhead Costs;

7

(f) Once Hall achieves a 25% annualized rate of return on his equity investment in
a particular Lending Entity, cash revenues, and profits in a particular Lending
Entity shall be allocated and distributed 50% to Hall and 50% to NRC . . . .21
Thus, the cash revenues would first be distributed under section 5(a), and if any cash revenues
remained after satisfaction of section 5(a), the revenues would then be distributed under section
5(b). If any cash revenues remained after satisfaction of section 5(b), the cash revenues would
then be applied to the section 5(c). This process would continue until the cash revenues were
depleted. If a real estate investment project generated enough cash revenues to pay off the
amounts listed in sections 5(a)–(d), Plaintiffs would have the opportunity to earn profits in
sections 5(e) and (f). If, however, a project did not generate enough cash revenues to fully
satisfy sections 5(a)–(d), Plaintiffs would not be entitled to any profits. Any profits Plaintiffs
earned under sections 5(e) and (f) would be in addition to and separate from the Overhead Costs
that Hall already advanced.
Beginning on the date of the Funding Agreement and continuously after, Hall, Hall’s
accountant Keith Noe, and Bentley, together with NRC kept track of all funds advanced and
received by Hall in connection with the Lending Entities and real estate investment projects.
One or more times per year beginning in 2005, NRC provided to Hall and Bentley a bound
summary of investment activity that they created and titled the “Bentley Portfolio Summary”
(“Bentley Books”). The parties met regularly to discuss the investment activities and the
financial records contained in the Bentley Books. In all of the Bentley Books, Plaintiffs
allocated Overhead Costs on a pro-rata basis to each of the Lending Entities based on the
project’s capital investment.

21

Doc 89, Ex. A, § 5.

8

The Bentley Books not only accounted for the costs of the real estate investments, but
also detailed the cash generated by those projects. Section 3 of the June 2009 Bentley Books
shows the profits and cash revenues of Weibel-RBND, Morley SWAT, Shorefox, Grand Elk,
MCFD, SWAT 15, Grand Lodge, and Porchlight. This section shows the gross income
distributable under paragraph 5 of the Funding Agreement and the amount of debt of other
income that needed to be repaid under section 5(a). Weibel-RBND generated $107,167 in gross
income with no payments necessary for debt or other expenses, leaving $107,167 distributable
under sections 5(b)–(e) of the Funding Agreement. Morley SWAT generated $605,028 in gross
income with $186,449 paid to debt and other expenses, leaving $418,579 distributable under
sections 5(b)–(e). Shorefox generated $1,146,743 in gross income with $79,418 paid to debt and
other expenses, leaving $1,067,325 distributable under sections 5(b)–(e).22 Grand Elk generated
$1,632,679 in gross income with $406,291 paid to debt and other expenses, leaving $1,226,388
distributable under sections 5(b)–(e). MCFD generated $23,896 in gross income with no
payments necessary for debt or other expenses, leaving $23,896 distributable under sections
5(b)–(e). SWAT 15 generated $209,466 in gross income with no payments necessary for debt or
other expenses, leaving $209,466 distributable under sections 5(b)–(e). Porchlight generated
$68,892 in gross income with no payments necessary for debt or other expenses, leaving $68,892
distributable under sections 5(b)–(e). As for the Grand Lodge project, the final units of the

22

These amounts for Shorefox and Grand Elk conflict with figures provided in Defendants’ statement of
facts, but not with the document that Defendants cited to support their statement of facts. In fact, these amounts are
taken from Defendants’ Exhibit F, at 16, which Defendants used to calculate the amount of revenue and profits
generated by each project. It seems Defendants transposed some amounts when transferring these numbers from
their exhibit to their brief. For example, Defendants state that they earned $204,692 in profits on Shorefox. The
document shows that they were instead allocated $749,459 in profits. The $204,692 was the amount allocated to
Plaintiffs as profits. In Grand Elk, it seems the Defendants accidentally used the amount of profits from Shorefox,
which is on a line directly above the profits for Grand Elk.

9

condominium have been sold, but a judgment entered against the project in excess of $879,000 is
currently on appeal in the Utah court system and is accruing interest.
The Bentley Books also detailed how Plaintiffs accounted for the distribution of the gross
income from each project, showing payments due to Overhead Costs, to Hall for profits, and to
NRC for profits. On the Morley SWAT, Shorefox, Grand Elk, MCFD, SWAT 15, Grand Lodge,
and Porchlight projects, the Bentley Books show that NRC was entitled to profits. With the
exception of Grand Lodge, however, all cash revenues from each project were paid to Hall or
Bentley and no payments were received by NRC. The Bentley Books show that NRC used the
amounts listed as their profits to reduce Overhead Costs. But NRC states that it received
$182,046.80 from the Grand Lodge project, which was not used to reduce Overhead Costs,
though Defendants claim that all money generated by Grand Lodge was paid to Hall under the
Funding Agreement.
In 2009, Hall, disappointed with the overall results obtained by the individual plaintiffs,
advised Comeau, Bettis, and Seat that he was going to stop providing funds under the Funding
Agreement. On November 11, 2009, Comeau sent an e-mail to Hall advising Hall that NRC had
$450,350 of profit allocation under section 5(e) “left in the deals” and that “[i]t was always our
understanding that at some point these monies would be dispersed when profits are available.”23
Hall replied via e-mail on November 12, 2009, stating, “Eric I am sure these numbers are correct
and you will get credit when money is available. . . .”24 Plaintiffs, however, did not receive the
amount they requested. Plaintiffs filed this action against Defendants on August 17, 2010,

23

Doc. 89, Ex. H.

24

Id.

10

seeking the amount listed in the Bentley Books as NRC profits and designated for Overhead Cost
reduction.
III.

Discussion
Defendants move for summary judgment, arguing that, as a matter of law, Plaintiffs have

failed to show any entitlement to profits under the Funding Agreement and thus Plaintiffs cannot
succeed on their breach of contract claim. Defendants further argue that because Defendants
Bentley and the Trust received no benefit from Plaintiffs, Plaintiffs cannot succeed on their
quantum meruit claim. Defendants also add that many of Plaintiffs’ claims are barred by the
statute of limitations or waiver and equitable estoppel. Plaintiffs, on the other hand, seek
summary judgment on the proper interpretation of the Funding Agreement. Both Plaintiffs’ and
Defendants’ motions for summary judgment rely on different interpretations of the Funding
Agreement. And so resolution of both motions necessarily turns on the proper interpretation of
the Funding Agreement between Plaintiffs and Defendant Hall. The Court will first discuss
Defendants’ motion for summary judgment on the breach of contract claim, which will also
resolve Plaintiffs’ motion for summary judgment. The Court will then discuss Defendants’
motion for summary judgment on the quantum meruit claims.
A.

Breach of Contract

1.

Contract Interpretation

Plaintiffs claim that Defendant Hall breached his duties under the Funding Agreement by
failing to pay them profits from various real estate investment projects. All parties agree that the
Funding Agreement is a valid contract and governs the dispute in this case. Both sides also
argue that the contract is clear and unambiguous, but the parties disagree on the clear and

11

unambiguous interpretation of the contract. Thus, the Court must determine the proper
interpretation of the Funding Agreement.
“[A] federal court sitting in diversity must apply the substantive law of the state in which
it sits, including the forum state’s choice-of-law rules.”25 Under Kansas law , the lex loci
contractus doctrine applies, requiring the Court to apply the law of the state where the contract is
made.26 A contract is made where the last act necessary for its formation occurs.27 Although the
parties have not given the Court any information about where the parties entered into the
Funding Agreement, both parties agree that Kansas law should apply. “‘Generally the party
seeking to apply the law of a jurisdiction other than the forum has the burden to present
sufficient facts to show that other law should apply.’”28 Because neither party seeks to apply the
law of another jurisdiction or gives any fact to show that another jurisdiction’s law applies, the
Court applies Kansas law.
Generally, under Kansas law, if the language in a written contract “is clear and can be
carried out as written, there is no room for rules of construction. To be ambiguous, a contract
must contain provisions or language of doubtful or conflicting meaning, as gleaned from a
natural and reasonable interpretation of its language.”29 “‘In considering a contract which is
unambiguous and whose language is not doubtful or obscure, words used therein are to be given
their plain, general and common meaning, and a contract of this character is to be enforced
25

Boyd Rosen & Assocs., Inc. v. Kan. Mun. Gas Agency, 123 F.3d 1351, 1352–53 (10th Cir. 1997).

26

Found. Prop. Invs., LLC v. CTP, LLC, 159 P.3d 1042, 1046 (Kan. Ct. App. 2007).

27

Id. (citing Novak v. Mut. of Omaha Ins. Co., 28 P.3d 1033 (Kan. Ct. App. 2001)).

28

Id. (quoting Layne Christensen Co. v. Zurich Can., 38 P.3d 757 (Kan. Ct. App. 2002)).

29

Gore v. Beren, 867 P.2d 330, 336 (Kan. 1994) (quotation omitted).

12

according to its terms.’”30 “‘The cardinal rule of contract interpretation is that the court must
ascertain the parties’ intention and give effect to that intention when legal principles so allow.’”31
“Where a contract is complete and unambiguous on its face, the court must determine the
parties’ intent from the four corners of the document, without regard to extrinsic or parole
evidence.”32 Even if the parties interpretations of the contract differ, the Court need not resort to
parol evidence to interpret the contract meaning if the contract is complete and unambiguous.33
Here, the dispute between Plaintiffs’ and Defendants’ interpretation of the contract
surrounds the provision for distribution of the cash revenues of each real investment project.
Paragraph 5 of the Funding Agreement governs the distribution and allocation of cash revenues
and profits of each Lending Entity, which holds the funds for each real estate investment project.
Paragraph 5 is divided into sections 5(a)–(f).34
Both parties agree that under the Funding Agreement, Plaintiffs are not entitled to
payment of profits until sections 5(a)–(d) are satisfied. Where the parties differ in their
interpretation of the contract is the proper application of section 5(b)—“Return to Hall the
aggregate Overhead Costs advanced by him plus the associated 7% annualized return.”
Plaintiffs contend that section 5(b) requires the repayment of the Overhead Costs that they
allocated to each real estate investment. But they argue that section 5(b) does not require the

30

Wagnon v. Slawson Exploration Co., 874 P.2d 659, 666 (Kan. 1994) (quoting Barnett v. Oliver, 672 P.2d
1228, 1238 (Kan. Ct. App. 1993)) (internal quotation omitted).
31

Kay-Cee Enter., Inc. v. Amoco Oil Co., 45 F. Supp. 2d 840, 843 (D. Kan. 1999) (quoting Ryco Packaging
Corp. v. Chapelle Int’l, Ltd., 926 P.2d 669, 674 (1996)).
32

Id. (citing Simon v. Nat’l Farmers Org., Inc., 829 P.2d 884, 887–88 (Kan. 1992)).

33

See Decatur Cnty. Feed Yard, Inc. v. Fahey, 974 P.2d 569, 575 (Kan. 1999).

34

See supra pp. 7–8.

13

repayment of all Overhead Costs advanced by Hall throughout the entire Funding Agreement
relationship. Thus, under Plaintiffs’ interpretation of section 5(b), paragraph 5 contemplates the
payment of profits under sections 5(c)–(f) while some Overhead Costs remain unpaid.
Defendants interpret section 5(b) differently. Defendants state that because section 5(b)
requires the repayment of “aggregate Overhead Costs,” the total amount of the Overhead Costs
advanced by Hall must be repaid before any revenues are distributed under sections 5(c)–(f).
Defendants argue that the contract does not allow parties to allocate Overhead Costs to each
project. Under Defendant’s interpretation, the contract does not contemplate any payment of
profits to NRC until all Overhead Costs are repaid.
By applying the principles used to interpret contracts under Kansas law, the Court finds
that Defendants’ interpretation is correct because the contract clearly and unambiguously
requires a return of all Overhead Costs advanced by Hall (plus the 7% annualized return) before
any remaining revenues may be distributed under sections 5(c)–(f). This interpretation is clearly
and unambiguously demonstrated in section 5(b), the entirety of paragraph 5, and the entirety of
the Funding Agreement.
The Court first focuses on the language in section 5(b): “Return to Hall the aggregate
Overhead Costs advanced by him plus the associated 7% annualized return.” Plaintiffs’
argument that only those Overhead Costs allocated to a specific project needed to be repaid
under section 5(b) directly contradicts the plain language of that section. Section 5(b) does not
mention any allocated Overhead Costs. On the contrary, it specifies that aggregate Overhead
Costs must be repaid. Aggregate in its plain, common meaning is a collection, sum, or total. For
the Court to interpret section 5(b) in the manner that Plaintiff suggests, it would have to interpret

14

the term aggregate to have a meaning completely antonymous to its common usage. Instead, the
Court will interpret the contract so that “aggregate” retains its common meaning, requiring the
repayment of the total Overhead Costs under section 5(b).
The entirety of paragraph 5 also supports the interpretation that all Overhead Costs must
be repaid under section 5(b) because when the parties intended to allocate costs, they did so
explicitly. Plaintiffs argue for the opposite conclusion by pointing to all of the instances in
paragraph 5 that reference each Lending Entity or each transaction. Plaintiffs state that these
references suggest that Overhead Costs were also allocated to each transaction. The Court
disagrees and finds instead that the references to each Lending Entity or transaction in paragraph
5 bolster the Court’s conclusion that all Overhead Costs had to be repaid under section 5(b). No
reference to a specific project or Lending Entity is ever made when discussing Overhead Costs.
That the parties explicitly identified and allocated the Equity Portion for “each Lending Entity”
in section 5(c), the risk profiles for “each transaction” in section 5(d), and the 25% annualized
rate of return on Hall’s equity investment “in a particular Lending Entity” in section 5(f)
suggests that when the parties intended to allocate a repayment amount to a particular Lending
Entity or transaction, they did so.35 That the parties omitted such language from section 5(b)
when they used it elsewhere in sections 5(c), (d), and (f) shows that the parties did not intend to
allocate Overhead Costs to a particular project or Lending Entity.
Further, Plaintiffs’ argument that the language in section 5(e) supports their interpretation
of the contract is similarly unavailing. Section 5(e) states that the cash revenues and profits
remaining after payment of sections 5(a)–(d) should be allocated and distributed 70% to Hall and

35

See Doc. 89, Ex. A, § 5.

15

30% to NRC. But it states that NRC must pay its portion of profits received under section 5(e),
after Hall receives his Overhead Costs and 7% return, to fund the Working Capital Reserve until
it is fully funded. Plaintiffs suggest that because section 5(e) states that they should use their
portion of the profits to fund the Working Capital Reserve after Hall receives his Overhead
Costs, they must have been able to receive profits, without funding the Working Capital Reserve,
before Hall receives all of his Overhead Costs. Reading section 5(e) in isolation, Plaintiffs
interpretation is possible. But it is equally, if not more, likely that section 5(e) simply reiterates
the fact that Hall must receive a return of all Overhead Costs and the 7% annualized return
before Plaintiffs can share in profits, adding that those profits must then be used to fund the
Working Capital Reserve until it is fully funded. And the Court must not consider a provision of
a contract in isolation, “but must instead construe the term in light of the contract as a whole,
such that if construction of the contract in its entirety removes any perceived ambiguity, no
ambiguity exists.”36 Section 5(e) does not contradict or create any ambiguity in the clear
language of section 5(b), which requires the payment of aggregate Overhead Costs before any
payments are made under sections 5(c)–(f). And thus the entirety of paragraph 5, including
section 5(e), supports the Defendants’ interpretation of the contract.
Defendants’ interpretation of the contract is also supported by the entire Funding
Agreement. In paragraph 1, Overhead Costs are defined as all funds provided on a monthly
basis to cover “salaries, health insurance expenses, travel expenses and phone and facsimile
expenses of Bettis, Seat and Comeau and other miscellaneous supplies and start up expenses that

36
Simon v. Nat’l Farmers Org., Inc., 829 P.2d 884, 888 (Kan. 1992) (citing Arnold v. S.J.L. of Kan. Corp.,
749 P.2d 64 (1991)).

16

NRC will incur.”37 Nowhere in paragraph 1 does the Funding Agreement refer to a division or
allocation of the Overhead Costs to specific projects or Lending Entities. In fact, paragraph 1
never mentions different projects or Lending Entities at all. Outside of paragraph 1, the Funding
Agreement consistently treats Overhead Costs as a single, aggregate amount. Anytime Overhead
Costs are mentioned in the Funding Agreement, they are mentioned as a total sum, and nowhere
in the Funding Agreement is an allocation or division of Overhead Costs mentioned.
Other provisions of the agreement not dealing with Overhead Costs demonstrate that the
parties knew how to allocate costs when they intended that result. An example of such
allocation is paragraph 2, which deals with the Debt Portion and Equity Investment. Paragraph 2
states in relevant part: “On projects approved by Hall, Hall agrees to advance funds to each of
the Lending Entities as follows . . . .”38 Paragraph 2 then goes on to state that these advances for
each Lending Entity will be called the Debt Portion and Equity Investment. Repayment of each
of these amounts is also addressed in paragraph 5. Paragraph 5 treats those amounts as the
amount advanced for each Lending Entity. Thus, had the parties intended to allocate the
Overhead Costs to each project, they would have explicitly done so in the Funding Agreement as
they did for other amounts.
By interpreting section 5(b), the entirety of paragraph 5, and the entirety of the Funding
Agreement, it is clear that the parties intended all Overhead Costs to be repaid before any
distribution of cash revenues was made under section 5(c)–(f) of the Funding Agreement. This
interpretation precludes payments of profits to Bettis, Seat, Comeau, or NRC before all

37

Doc. 89, Ex. A, § 1.

38

Id. § 2 (emphasis added).

17

Overhead Costs are returned. And thus, the Court must deny Plaintiffs’ motion for summary on
the interpretation of the Funding Agreement.
This denial, however, is not dispositive of Plaintiffs claims and does not automatically
require the Court to grant Defendants summary judgment on the breach of contract claim.
Plaintiffs may still have been owed profits for some of the projects because the aggregate
Overhead Costs may have been repaid in full by some of the projects’ cash revenues. In fact,
contrary to Defendants’ assertions, the Court finds that for some projects, the aggregate
Overhead Costs were repaid in full, allowing for distribution under section 5(c) and possibly
sections 5(d)–(f) of the Funding Agreement.
Defendants claim that the aggregate Overhead Costs were never repaid. Indeed,
Defendants claim that over $3.4 million is still outstanding for Overhead Costs. Although
Plaintiffs did not dispute Defendants’ calculation of outstanding aggregate Overhead Costs, the
Court finds that Defendants, as a matter of law, incorrectly applied the cash revenues from each
project to paragraph 5 of the Funding Agreement. As a result, their calculation of outstanding
aggregate Overhead Costs is incorrect. Defendants’ calculation assumes that Defendant Hall
could receive profits and payments under sections 5(c)–(f) before the aggregate Overhead Costs
were repaid under section 5(b). But as described above, the Funding Agreement clearly and
unambiguously states that until all Overhead Costs are repaid under section 5(b), no revenue will
be distributed to anyone under sections 5(c)–(f), which means that until all Overhead Costs are
repaid, Defendant Hall was not entitled to payment for the Equity Portion under section 5(c),
preferred rate of return under section 5(d), or profits under sections 5(e) and (f). And so,
Defendants’ calculation of outstanding aggregate Overhead Costs is greatly inflated because it

18

does not account for large payments that should have been made to the Overhead Costs but were
instead designated as profits paid to Defendant Hall.
On the Weibel-RBND project, for example, Defendants state that of the $107,167 gross
income, Hall was repaid $79,268 as Overhead Costs and $27,899 as profit. At the time that
Weibel-RBND cash revenues were distributed, the aggregate Overhead Costs were $391,000.39
Thus, the gross income was insufficient to repay the aggregate Overhead Costs, and as a result,
no one could receive profits under the Funding Agreement for Weibel-RBND. This means that
the $27,899 that Defendants state was paid to Hall as profits should have been used to repay the
aggregate Overhead Costs. Applying the Funding Agreement properly, $107,167 of aggregate
Overhead Costs were repaid from the cash revenues of Weibel-RBND, and as a result, after the
Weibel-RBND project, outstanding aggregate Overhead Costs were $283,833.
Defendants made the same mistake for the Morley SWAT project, stating that $178,172
were paid to Hall as repayment of Overhead Costs and $240,407 as profits. At the time Morley
SWAT distributions were made, the outstanding balance of aggregate Overhead Costs was
$459,333.40 Thus, the $240,407 profit figure should have been used to repay the aggregate
Overhead Costs, making $418,579 available for payment of Overhead Costs. Again, those
amounts were insufficient to completely satisfy section 5(b), leaving $40,754 in aggregate
Overhead Costs after Morley SWAT cash revenues were distributed. Yet again, on Morley
SWAT, no one could receive any profits. Proper application of the Funding Agreement thus
clearly shows that neither Weibel-RBND nor Morley SWAT generated enough revenue to repay

39

This amount does not include the 7% annualized return, but is based on Defendants’ calculation of
Overhead Costs advanced. See Doc. 87, Ex. J.
40

Again, this amount does not take in to account the 7% annualized return.

19

the aggregate Overhead Costs and therefore Plaintiffs were not entitled to profits on either
project.
The same, however, cannot be said for the remaining projects. The Court cannot
determine on the summary judgment record whether Plaintiffs are entitled to profits for the
remaining projects. In Shorefox, for example, Plaintiffs may have been entitled to profits.
Shorefox generated $1,146,743 in gross income. From that amount, debt and other expenses of
$79,418 were paid under 5(a), which means that $1,067,325 were available to repay Overhead
Costs.41 At the time that funds were distributed for Shorefox, the total Overhead Costs that Hall
had advanced were $976,000, but $525,746 of this amount had been repaid from the WeibelRBND and Morley SWAT project, leaving $450,254 in aggregate Overhead Costs outstanding at
the time the Shorefox revenues were distributed. So the cash revenues from Shorefox were
sufficient to repay the aggregate Overhead Costs with $617,071 in cash revenues left for
distribution. But the Court runs into trouble when attempting to determine the amount of funds
remaining for distribution under sections 5(c)–(f). Section 5(b) not only requires the repayment
of aggregate Overhead Costs, but also the 7% annualized return. The Court does not have
sufficient information to determine the balance remaining to be repaid under 5(b) because
Defendants miscalculated the outstanding Overhead Costs, which in turn inflated 7% annualized
return.42 It is clear, however, that the cash revenues from Shorefox would have been sufficient to
repay the aggregate Overhead Costs plus the 7% annualized return under section 5(b) of the
Funding Agreement, leaving funds available for section 5(c) and possibly sections 5(d)–(f).

41

Defendants stated that $317,867 were repaid to Overhead Costs and $204,692 were paid to Hall as profit.
The exhibit they cite for support shows, however, that he was paid $749,459 in profits.
42

This also does not account for Overhead Costs repaid from any brokerage fees.

20

Thus, Defendants are not entitled to summary judgment on Plaintiffs’ claim for profits on the
Shorefox project.
The Court runs into the same problem with the remaining projects, such that the Court
cannot determine whether Plaintiffs were entitled to profits—and if so, in what amount. The
Court, therefore, directs the parties to meet and confer to determine the correct calculations of
profits using the interpretation of the Funding Agreement as described by the Court above,
where all Overhead Costs and the 7% annualized return under section 5(b) must be repaid before
any distribution are made under sections 5(c)–(f). The Court notes that both parties relied on the
calculations provided in the Bentley Books to determine the gross income and Debt Portion. The
parties merely need to apply these numbers to the Funding Agreement in the manner described
above and provide the Court with a clear and concise explanation of amounts that were repaid
under sections 5(a)—(f) of the Funding Agreement for projects Shorefox, Grand Elk, MCFD,
SWAT 15, and Porchlight, which all survive summary judgment. As stated above, Plaintiffs
were not entitled to profits on Weibel-RBND and Morley SWAT. Plaintiffs did not claim profits
on Weibel-RBND, and thus Defendants’ motion for summary judgment on the Weibel-RBND
project is moot. But Defendants’ motion for summary judgment on the Morley SWAT project is
granted.
This leaves one project for the Court to discuss—Grand Lodge. The Court finds that
there is a genuine issue of material fact as to whether the Grand Lodge project has generated
cash revenues that are distributable under the Funding Agreement. Plaintiffs argue that cash
revenues from Grand Lodge are distributable and have been distributed to both NRC and Hall.
Defendants argue that it is undisputed that the project has not yet closed and therefore any

21

distribution under the Funding Agreement is premature and speculative. At the same time,
however, Defendants list as an undisputed fact that “[w]hen the Grand Lodge money was
received, all money was paid to Hall pursuant to the Funding Agreement.”43 Defendants thus
have themselves created a genuine issue of material fact as to whether Grand Lodge funds are
payable under the Funding Agreement. If funds were distributed under the Funding Agreement,
they should have been distributed using the method that the Court described above for the earlier
projects. Depending on the outstanding aggregate Overhead Costs at the time of distribution,
Plaintiffs may be entitled to profits. But whether funds were distributed under the Funding
Agreement is a genuine issue of material fact, and therefore Defendants are not entitled to
summary judgment on the breach of contract claim for the Grand Lodge project.
2.

Waiver or Equitable Estoppel

Defendants also argue that Plaintiffs’ claims for breach of contract are barred by waiver
and equitable estoppel. Defendants state that because Plaintiffs allowed Defendants to retain all
of the funds from the projects, Plaintiffs have waived their rights to those profits. For similar
reasons, Defendants argue the Court should estop Plaintiffs from claiming those profits.
Waiver is the voluntary and intentional relinquishment of a known right.44 A court may
infer waiver from the conduct of a party to a contract, but a court cannot infer waiver from mere
indulgence or silence.45 “The intent to waive known rights is essential.”46 Here, Plaintiffs

43

Doc. 87, at 6, ¶ 42.

44

Lyon ex rel. Lawing v. Holder, 163 P.3d 343, 349 (Kan. Ct. App. 2007).

45

Id.; Long v. Clark, 135 P. 673 (Kan. 1913).

46
Stratmann v. Stratmann, 628 P.2d 1080, 1087 (Kan. Ct. App. 1981) (quoting Prather v. Colo. Oil & Gas
Corp., 542 P.2d 297 (1975)).

22

allowed Defendants to retain all of the cash revenues from the projects, including the amount
they now claim for profits. But Plaintiffs in their own records, which had been sent to Hall,
showed that these funds would be used to repay the aggregate Overhead Costs that were still
outstanding. Further, nothing in the record shows that Plaintiffs knew that all Overhead Costs
had been repaid in full. As such, the Court cannot find, as a matter of law, that by designating
the share of revenues that they believed they were owed from each project to repayment of
aggregate Overhead Costs, Plaintiffs knowingly and intentionally waived their right to bring a
breach of contract action against Hall for profits owed to them after the aggregate Overhead
Costs were paid in full. Therefore, Defendants are not entitled to summary judgment based on
waiver.
Beyond waiver, Defendants argue that equitable estoppel bars Plaintiffs from bringing
their claim for breach of contract against Defendant Hall. “A party seeking to invoke equitable
estoppel must show that the acts . . . or silence of another party (when it has a duty to speak)
induced the first party to believe certain facts exited. There must also be a showing that the first
party rightfully relied and acted upon such belief and would now be prejudiced if the other party
were permitted to deny the existence of such facts.”47 Defendants claimed that Plaintiffs induced
Hall into believing that he owed Plaintiffs no further profits by allowing him to keep all of the
profits under each project. By inducing him to believe this, Defendants argue, Plaintiffs further
induced Hall into continuing under the Funding Agreement. Defendants, however, have not
produced any evidence to support their claim that Hall was induced to believe that Plaintiffs
were not owed any profits on the projects. Defendants have similarly failed to produce any

47

Toshiba Master Lease, Ltd. v. Ottawa Univ., 927 P.2d 967, 972 (Kan. Ct. App. 1996).

23

evidence that shows that Hall relied on Plaintiffs’ conduct to his detriment. Defendants have
thus failed to meet their burden for this defense because they have not presented any evidence to
show inducement, reliance, or prejudice. As a result, they have not shown that each element is
without a genuine issue of material fact, such that they are entitled to judgment as a matter of
law on Plaintiffs’ breach of contract claim.
3.

Statute of Limitations

Defendants further argue that Hall is entitled to summary judgment on the breach of
contract claim for the Weibel-RBND and Morley SWAT projects because they fall outside of the
five-year statute of limitations. As discussed above, however, Plaintiffs would not have earned
any profits on the Wiebel-RBND and Morley SWAT projects. As such, Defendants’ assertion
that those claims are time-barred is moot.
B.

Quantum Meruit

Defendants also move for summary judgment as to Defendants Bentley and the Trust on
Plaintiffs’ quantum meruit claim. Quantum meruit, or unjust enrichment, “lies in a promise
implied in law that one will restore to the person entitled thereto that which in equity and good
conscience belongs to him.”48 Unjust enrichment creates, on the basis of equity and justice, a
quasi-contract, which is used to enforce noncontractual duties. To succeed on a claim for
quantum meruit, or unjust enrichment, a plaintiff must show, “(1) a benefit has been conferred
upon the defendant, (2) the defendant retains the benefit, and (3) under the circumstances, the
defendant’s retention of the benefit is unjust.”49 Defendants claim that Plaintiffs failed to meet

48

Peterson v. Midland Nat’l Bank, 747 P.2d 159, 166 (Kan. 1987).

49

Estate of Draper v. Bank of Am., N.A., 205 P.3d 698, 706 (Kan. 2009).

24

the requirements for their quantum meruit claims against Defendants Bentley and the Trust.50
Because Bentley and the Trust had different levels of participation in the parties’ dispute, the
Court will discuss their possible liability under quantum meruit separately.
1.

Bentley

The Court will first examine whether Bentley is entitled to summary judgment on the
quantum meruit claim, such that no genuine issue of material fact exists as to any of the required
elements and Bentley is entitled to judgment as a matter of law. Defendants raise a number of
arguments against the quantum meruit claim. Defendants claim that Bentley received no benefit
and Plaintiffs are only using this claim to collect their damages from Hall’s breach of contract.
Further, Defendants argue that if they did receive any benefit, third parties conferred the benefit
and not Plaintiffs. Defendants final assertion claims that Bentley did not know of or appreciate
any benefit.
Defendants first argue that Bentley received no benefit from Plaintiffs, analogizing this
case to Venture Commercial Mortgage, LLC v. FDIC,51 a case applying Arizona law. Under
Venture, a plaintiff had entered into various agreements with a bank to serve as a broker and earn
placement and extension fees.52 Sometime later, after the plaintiff had been performing under
the agreements, the bank closed.53 The FDIC took over as receiver for the bank, and the

50

Defendants cite to slightly different elements because the case they cite for the elements of quantum
meruit applied Arizona Law. Venture Commercial Mortg., LLC v. FDIC, No. 09-2285-KHV, 2010 WL 820711, at
*5 (D. Kan. Mar. 5, 2010). The Court, however, considers Defendants’ arguments within the three requirements
under Kansas Law.
51

Id.

52

Id. at 1.

53

Id. at 2.

25

defendant purchased a loan agreement, under which the bank still owed the plaintiff fees.54 The
plaintiff then sued the purchaser of the loan agreement.55 The court dismissed the case because
the defendant was not a party to the agreement, it assumed no liability, and it received no
benefits.56
Here, Defendants argue that Bentley is just like the purchaser of the loan agreement in
Venture because it was not a party to the Funding Agreement and cannot be sued for damages
arising under obligations of the parties to the Funding Agreement. The Court is unpersuaded by
Defendants’ argument. First, the fact that Bentley was not a party to the agreement does not
affect the application of quantum meruit. As described above, quantum meruit arises in
situations where no contract governs the parties’ relationship. Second, unlike the purchaser of
the loan agreement and the bank broker in Venture, Bentley and Plaintiffs had a direct, ongoing
relationship as Plaintiffs performed their services under the Funding Agreement. Indeed,
Bentley was created to manage the finances from each project and to pay those funds out
according to the Funding Agreement. Bentley, along with the other parties, kept track of all
funds advanced and received under the Funding Agreement relationship. Thus, Bentley is not
merely an unsuspecting third party who entered the dispute late in the game. Nor is Bentley
merely a place where Hall held his share of the payout. Plaintiffs have evidence to show Bentley
entered a relationship with Plaintiffs, actively participated in projects, and retained those benefits
without paying Plaintiffs for the value of the benefit. And therefore, Plaintiffs do not seek

54

Id. at 3.

55

Id. at 4.

56

Id. at 11.

26

“‘restitution from the other merely because of the failure of performance by the third party.’”57
Plaintiffs quantum meruit claim is based on the direct relationship that they had with Bentley and
not merely Hall’s breach of contract.
Not only have Plaintiffs presented evidence of this ongoing relationship, but they have
presented evidence to show that the relationship directly benefitted Bentley. Plaintiffs worked to
find real estate investments that would become profitable; all cash generated from these projects
went to Bentley before they were distributed under the Funding Agreement. Because Bentley
received the cash revenues as a result of Plaintiffs’ services—even though the cash revenues
came from the projects and not directly from Plaintiffs—Plaintiffs conferred a benefit on
Bentley.
Defendants’ final argument asserts that Plaintiffs have produced no evidence to show that
Bentley knew of or appreciated the benefit conferred by Plaintiffs. The Court finds a genuine
issue of material fact on this element of the quantum meruit claim. Plaintiffs have presented
evidence that the parties had regular meetings to discuss investment opportunities and the
records contained in the Bentley books. In the Bentley Books, Plaintiffs show that they were
entitled to profits. When Plaintiffs requested the payment of those profits, Bentley did not pay
them. This evidence is sufficient to create a genuine issue of material fact as to whether Bentley
knew of or appreciated the benefit conferred by Plaintiffs. Thus, Bentley is not entitled to
judgment as a matter of law on the quantum meruit claim.
2.

The Trust

The Court next examines whether the Trust is entitled to summary judgment on the
57
See J.W. Thompson Co. v. Welles Prods. Corp., 758 P.2d 738, 744 (1988) (quoting Restatement of
Restitution § 110).

27

quantum meruit claim. Unlike the evidence Plaintiffs presented for Bentley, Plaintiffs have not
shown that they conferred any benefit on the Trust. While Plaintiffs have shown that the cash
revenues from each project were received by Bentley for distribution under the Funding
Agreement, the same is not true for the Trust. Defendants have pointed to the lack of evidence
showing that the Trust received any payments from the projects. And indeed, although Plaintiffs
have stated that the Trust was the only member of Bentley, Plaintiffs specifically state that there
is no evidence regarding whether any of the cash revenues held by Bentley were removed by the
Trust. As such, Plaintiffs lack evidence for an essential element of their claim against the Trust.
Therefore, the Trust is entitled to summary judgment on the quantum meruit claim.
3.

Statute of Limitations

Defendants also argue that Plaintiffs’ quantum meruit claim against Bentley is time
barred. Defendants argue that Plaintiffs’ quantum meruit claim began accruing when the cash
revenues for each project were distributed under the Funding Agreement. As a result,
Defendants assert that Plaintiffs’ quantum meruit claim for profits under Weibel-RBND, Morley
SWAT, Shorefox, Grand Elk, MCFD, and SWAT 15 are barred by the statute of limitations
because they closed more than three years before Plaintiffs filed this action on August 17, 2010.
Plaintiffs respond, arguing that the cause of action did not begin to accrue until much later, when
they demanded profits from Defendants.
Under Kansas law, quantum meruit claims are subject to a three-year statute of
limitations.58 “In general, a cause of action accrues, so as to start the running of the statute of
limitations, as soon as the right to maintain a legal action arises. The true test to determine when

58

K.S.A. § 60-512.

28

an action accrues is that point in time at which the plaintiff could first have filed and prosecuted
his action to successful conclusion.”59 Thus, for an unjust enrichment claim, the cause of action
accrues when all three required elements are present, and this generally occurs at the point in
time when the “enrichment becomes unjust.”60 “Often this means that the action accrues when
there is a request for return of the property or when payment is made to or property is received
by the defendant.”61
Here, Plaintiffs have presented evidence to show that Bentley agreed to hold Plaintiffs’
profits for future Overhead Costs. The Bentley Books, which were sent to Defendants, showed
that Plaintiffs were receiving profits on each of the projects in dispute and that those amounts
were allocated to reduce Overhead Cost. Plaintiffs have further shown that the Parties met to
discuss the finances on several occasions and e-mails were exchanged that discussed the amount
of Plaintiffs’ profit that Defendants held for Plaintiffs. While Defendants dispute these facts,
Plaintiffs’ evidence is sufficient to create a genuine issue of material fact as to whether an
agreement to hold funds existed. If the agreement existed, Bentley’s retention of the benefits did
not become unjust until Plaintiffs requested the return of their profits. Plaintiffs made their
request in November 2009. Plaintiff filed this action less than three years after that date. Thus,
the Court cannot find that as a matter of law Plaintiffs’ quantum meruit claim against Bentley is
barred by the statute of limitations.

59

Pancake House, Inc. v. Redmond, 716 P.2d 575, 579 (Kan. 1986).

60

Estate of Draper, 205 P.3d at 715 (citing Vila v. Inter-Am. Inv., Corp, 536 F. Supp. 2d 41, 51 (D.D.C.

2008)).
61
Id. (citing Hartman v. Stumbo, 408 P.2d 693 (Kan. 1965); Desai v. Franklin, 895 N.E.2d 875 (Ohio Ct.
App. 2008)).

29

IV.

Conclusion
The Court grants Defendants summary judgment on some of Plaintiffs’ claims.

Specifically, the Court grants summary judgment to the Trust on Plaintiffs’ quantum meruit
claim and to Hall on Plaintiffs’ breach of contract claim for the Morley SWAT project.
Plaintiffs’ other claims, however, survive summary judgment because the Court cannot find that
Defendant is entitled to judgment as a matter of law. The Court finds that the Funding
Agreement clearly and unambiguously requires repayment of all Overhead Costs before any
payments are made under sections 5(c)–(f) of the Funding Agreement—no one could receive
profits before all Overhead Costs were repaid. The Court directs the parties to meet and confer
to determine what amount of profits, if any, Plaintiffs are owed on the remaining projects using
the interpretation of the Funding Agreement that the Court has described in this Order. The
parties should be prepared to present a clear and concise explanation of the distribution of cash
revenues for each remaining project to the Court at trial.
IT IS SO ORDERED BY THE COURT that Defendants’ Motion for Partial Summary
Judgment (Doc. 86) is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Partial Summary Judgment on
the Issue of Contract Interpretation (Doc. 88) is DENIED.
IT IS SO ORDERED.
Dated: February 14, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

30