Opinion
No. A-11-015.
10-04-2011
DAVENPORT LIMITED PARTNERSHIP, APPELLEE, v. 75TH & DODGE I, L.P., APPELLANT.
Heather Voegele-Andersen and Kristin M.V. Farwell, of Koley Jessen, P.C., L.L.O., for appellant. Joseph E. Jones and Nicole R. Hanson, of Fraser Stryker, P.C., L.L.O., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
DAVENPORT LTD. PARTNERSHIP V. 75TH & DODGE I, L.P.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge. Affirmed.
Heather Voegele-Andersen and Kristin M.V. Farwell, of Koley Jessen, P.C., L.L.O., for appellant.
Joseph E. Jones and Nicole R. Hanson, of Fraser Stryker, P.C., L.L.O., for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Davenport Limited Partnership (Davenport) filed an action against 75th & Dodge I, L.P. (Dodge I), for conversion of rent. The Douglas County District Court entered summary judgment in Davenport's favor and ordered Dodge I to pay damages. Because we find no error in the district court's grant of summary judgment for conversion of rent against Dodge I, we affirm.
BACKGROUND
ORIGINAL ACTION
In a previous action commenced in December 2007, Davenport sought a declaratory judgment against Dodge I; 75th & Dodge II, L.P. (Dodge II); and Dodge Mortgage, L.L.C. (collectively Dodge). The facts of that case are set forth in Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780 N.W.2d 416 (2010), from which we summarize. Davenport sought a declaration that Dodge had no rights in a lease property near 75th and Dodge Streets in Omaha, Nebraska. Through various assignments and transfers, Davenport and Dodge became parties to a "Ground Lease" and a "Space Lease." Davenport was the landlord of the Ground Lease, with Dodge I as lessee. Dodge I was landlord of the Space Lease, with Dodge II and Dodge Mortgage as lessees. The Ground Lease was originally for a 32-year term, expiring in 1998, and it allowed for renewal in a minimum of 10-year increments, not to extend past 2059. As to extending the lease, the Ground Lease stated:
On or before one (1) year . . . prior to the expiration date of any then existing term (including the original term hereof or any extended or renewed term occurring after the termination date of the original term hereof), Tenant shall execute and deliver in writing to Landlord, notice of its desire to so extend or renew, and said notice shall set forth the beginning and ending date of any such extended or renewal term.
Henry Singer, the president and sole owner of a corporation which is the general and managing partner of Dodge II, testified he had a telephone conversation in 1995 with a predecessor in interest to Davenport's rights and stated that he would be renewing the Ground Lease to be coterminous with Dodge II's Space Lease, which ran at least until 2017. No written evidence memorialized the conversation, and there was no written notice of a desire to extend or renew the lease for a 10-year period. Davenport continued to accept rent from Dodge I after the end of the original lease term. Dodge I did not notify Davenport of its desire to extend or renew the lease for an additional 10-year period prior to May 31, 2007. In late 2007, Davenport advised Dodge I it had not received timely written notice from Dodge I regarding its intent to exercise its right to renew the Ground Lease for 10 years, and it was Davenport's understanding that Dodge I's possessory interest would expire on May 31, 2008.
On March 10, 2009, the district court entered judgment on Davenport's December 2007 complaint. The district court stated Dodge I and Dodge II were run by the same general partner of which Singer was the president and sole owner. The district court found Dodge had no continuing rights to the property, Dodge I failed to give written notice to renew, Davenport did not waive the written notice requirement, and Davenport's acceptance of rent from Dodge I after 1998 operated as an extension of the lease for the 10-year minimum period. Dodge appealed, and on March 26, 2010, the Nebraska Supreme Court affirmed the district court's judgment.
DAVENPORT LTD. PARTNERSHIP V. 75TH & DODGE II, L.P.
Meanwhile, on April 28, 2009, Davenport filed a first amended complaint for forcible entry and detainer and for rent against Dodge II. Davenport alleged that because Dodge I's leasehold interest under the Ground Lease expired as of May 31, 2008, as ordered by the district court in its March 2009 judgment, Davenport was the landlord under the Space Lease and Dodge II was the tenant. Davenport alleged Dodge II failed to pay monthly rent and other fees and charges under the Space Lease. Davenport alleged that on March 12, 2009, it mailed to Dodge II, via registered mail, return receipt requested, a written notice of default as required under the Space Lease. On March 30, Davenport mailed a second notice to Dodge II. On April 9, Davenport served upon Dodge II a written 3-day notice to quit. Although more than 3 days had elapsed, Dodge II continued to occupy the premises. Davenport alleged it was entitled to immediate possession of the premises. Davenport's second cause of action sought damages for unpaid rent of $400,716.30 for June 2008 through April 2009. Davenport further alleged rent and other charges continued to accrue under the Space Lease.
On June 23, 2009, the district court entered an order of restitution. The district court found that under the Space Lease, Davenport was the landlord and Dodge II was the tenant. It further found Dodge II failed to pay rent to Davenport under the terms of the Space Lease, the premises were being unlawfully occupied by Dodge II, and Davenport had provided all notices required by the Space Lease and by law.
Davenport thereafter moved for summary judgment on its cause of action for damages. During a hearing on the motion, the district court received Dodge II's responses to Davenport's request for admissions in which Dodge II admitted it had not paid any rent to Davenport under the Space Lease. In an affidavit, Singer stated Dodge II never received notice to make direct payments to Davenport prior to March 12, 2009. In Dodge II's answers to interrogatories, Dodge II stated that it had paid a total of $438,883 from June 2008 through June 2009 to Dodge I, to whom it was obligated to pay rent.
Steven W. Seline, the attorney and registered agent for Davenport, stated in an affidavit that under the terms of the Space Lease, Dodge II was required to pay Davenport's share of the cost of determining the amount of the rent adjustment that went into effect in July 2008; that Davenport's share was $3,850; that Davenport made demand upon Dodge II for payment of $3,850; but that Dodge II had not paid Davenport.
The district court sustained Davenport's motion. It found the four-party agreement incorporated into the Space Lease specifically provided that if Dodge I's interest in the Ground Lease expired, then Davenport became the landlord under the Space Lease and Dodge II would be obligated to pay rent to Davenport. The district court found that after the Ground Lease expired, Davenport became the landlord under the Space Lease until the June 2009 order of restitution. Because the district court found the Ground Lease expired on May 31, 2008, it determined Dodge II was obligated under the Space Lease to pay Davenport from May 31, 2008, through June 22, 2009. The district court ordered that Davenport was entitled to past due rent of $464,820.79 from Dodge II and that its share of expenses was $3,850, for a total judgment of $468,670.79 plus taxable costs. Dodge II appealed that order, and we affirmed the district court's entry of summary judgment in favor of Davenport. Davenport Ltd. Partnership v. 75th & Dodge II, L.P., No. A-10-246, 2010 WL 4680177 (Neb. App. Nov. 16, 2010) (selected for posting to court Web site).
THIS ACTION
On April 16, 2010, Davenport filed an action against Dodge I for conversion of rent. Davenport alleged that it has the immediate right to possession and control over the rents paid by Dodge II to Dodge I discussed in the previous actions, Dodge I intentionally and wrongfully exercised dominion and control over Davenport's money by accepting rents from Dodge II, and Dodge I's acceptance of rent owed to Davenport permanently deprived Davenport of the rents. Davenport alleged that the district court's order finding that Dodge I's interest in the Ground Lease had expired on May 31, 2008, was fully enforceable during the previous appeal because Dodge I did not file a supersedeas bond. Davenport requested as damages the amount of rent collected from Dodge II by Dodge I after the expiration of the Ground Lease.
Dodge I filed an answer, alleging the following affirmative defenses: failure to state a claim on which relief can be granted, prohibition of double recovery for a single injury, res judicata, the doctrine of election of remedies, and the litigation in Davenport Ltd. Partnership v. 75th & Dodge II, L.P.
On October 1, 2010, Davenport filed a motion for summary judgment. A hearing was held on December 1. Davenport offered in evidence its complaint; Dodge I's answer; the Nebraska Supreme Court opinion in Davenport Ltd. Partnership v. 75th & Dodge I, L.P.; the district court's order of summary judgment in Davenport Ltd. Partnership v. 75th & Dodge II, L.P. ; and Dodge II's answers to interrogatories in Davenport Ltd. Partnership v. 75th & Dodge II, L.P., in which Dodge II admitted paying $438,883 to Dodge I as rent from June 2008 through June 2009. In response, Dodge I offered a copy of Singer's affidavit from Davenport Ltd. Partnership v. 75th & Dodge II, L.P.
On December 7, 2010, the district court granted summary judgment in favor of Davenport and entered a judgment against Dodge I in the amount of $438,883 plus taxable court costs. Dodge I timely appeals.
ASSIGNMENTS OF ERROR
Dodge I asserts that the trial court erred in sustaining Davenport's motion for summary judgment and awarding damages, in finding Dodge I liable for conversion without evidence Davenport made demand prior to filing its claim, and in awarding Davenport a "second award" for the same injury when it received a damages award in an earlier proceeding.
STANDARD OF REVIEW
In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all favorable inferences deducible from the evidence. Maycock v. Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011).
ANALYSIS
At issue in this appeal is whether the district court erred in entering summary judgment in favor of Davenport and against Dodge I for conversion of rent. A prima facie case for summary judgment is shown by producing enough evidence to demonstrate the movant is entitled to a judgment in its favor if the evidence were uncontroverted at trial. Corona de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009). After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. Id.
Conversion is a "distinct act of dominion wrongfully asserted over another's property in denial of or inconsistent with that person's rights." Baye v. Airlite Plastics Co., 260 Neb. 385, 393, 618 N.W.2d 145, 152 (2000). See, also, Zimmerman v. FirsTier Bank, 255 Neb. 410, 585 N.W.2d 445 (1998). The plaintiff must establish a right to immediate possession of the property at the time of the alleged conversion. Id. In other words, "'the essence of conversion is not acquisition by the wrongdoer, but the act of depriving the owner wrongfully of the property.'" Zimmerman, 255 Neb. at 418, 585 N.W.2d at 451, quoting Terra Western Corp. v. Berry and Co., 207 Neb. 28, 295 N.W.2d 693 (1980).
The undisputed facts in this case show that Dodge I wrongfully deprived Davenport of its right to the possession of the rents in question. Thus, Davenport was entitled to judgment as a matter of law.
Dodge I argues Davenport should have first made a demand for the rent prior to filing its claim for conversion. In general, courts have held that demand and refusal may constitute evidence necessary to prove conversion under some circumstances, but need not be shown where there is other evidence of an act of dominion or control over property inconsistent with the rights of the owner. Zimmerman, supra. Dodge I did not put forth evidence in the record before us showing an issue of material fact as to whether the demand was made or was necessary. Nor does it appear from the record that the issue of demand was submitted to or addressed by the district court. Appellate courts do not consider arguments and theories raised for the first time on appeal. Tolbert v. Jamison, 281 Neb. 206, 794 N.W.2d 877 (2011). Therefore, we will not address this argument which was not clearly before the district court.
Finally, Dodge I argues that Davenport is not entitled to judgment as an award for damages will give Davenport double recovery for a single injury. As a general rule, a party may not have double recovery for a single injury, or be made "more than whole" by compensation which exceeds the actual damages sustained. Vowers & Sons, Inc. v. Strasheim, 254 Neb. 506, 516, 576 N.W.2d 817, 825 (1998). See, also, Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637 (2000). Where several claims are asserted against several parties for redress of the same injury, only one satisfaction can be had. Id. This rule does not prevent entry of a second judgment, only collection of the judgment against both entities. Clearly, Davenport is entitled to only one satisfaction. Because payment of the judgment by one Dodge entity shall entitle the other Dodge entity to credit against the judgment against it, this argument is without merit.
CONCLUSION
Because there is no dispute as to a material fact and Dodge I did not rebut Davenport's prima facie case of conversion, we affirm the district court's entry of summary judgment in favor of Davenport and the award of damages against Dodge I.
AFFIRMED.