United States District Court, D. New Mexico
SHARIF A. and SAMIA RABADI, Plaintiffs,
D R HORTON, INC., Defendant.
PROPOSED FINDINGS & RECOMMENDED
MATTER is before the Court on Defendant D R Horton,
Inc.'s Motion for Summary Judgment, filed on March 9,
2018. Doc. 20. Having considered the record,
submissions of counsel, and relevant law, the Court
recommends that Defendant's motion be granted in
both residents of New Mexico and doing business as Star Trust
of New Mexico, “were the owners and developers of a
certain approved subdivision” called Paradise View in
Albuquerque. Doc. 1-A (“1st Am.
Compl.”) ¶ 1; Doc. 35
(“Rabadi Aff.”) ¶ 3; Doc.
21 Undisputed Material Fact (“UMF”) 1.
Plaintiffs owned building lots in Paradise View that the City
of Albuquerque had platted and approved for residential home
construction. Rabadi Aff. ¶ 3. Defendant
“is a Delaware Corporation transacting business in the
State of New Mexico as a home builder.” 1st Am.
Compl. ¶ 2. In April 2017, the parties “began
negotiations for the purchase and sale of”
Plaintiffs' building lots. Rabadi Aff. ¶ 4.
Plaintiffs owned 40 lots and were asking $60, 000 per lot.
Plaintiffs preferred to sell all 40 lots together, Defendant
only wanted to buy 24 of the lots. Rabadi Aff.
¶ 6. Plaintiffs agreed to sell Defendant 24 lots and
believed that “Defendant would also purchase certain
impact fee credits[, ]” worth $71, 401.13, that
Plaintiffs also owned. Id. ¶ 8. The parties signed
the Purchase Agreement for the 24 lots on May 11, 2017.
See Docs. 22-1 at 17; 21 UMF 2. The
Purchase Agreement is silent on any purported agreement for
Defendant to purchase impact fee credits. See Doc.
16, 2017, Mr. Patrick B. (“Brent”) Lesley, Land
Manager for Defendant, “prepared and sent [to
Plaintiffs] a draft conditional agreement to purchase the
impact fee credits . . . .” Doc. 21 UMF 5;
see also Doc. 22 (Lesley Aff.) at 1 &
¶¶ 1, 8. Under the terms of the proposed agreement,
Defendant offered to purchase up to $50, 000 of
Plaintiffs' impact fee credits at 75% of their face
value. Doc. 22-2 at 3. Plaintiffs assert that
certain restrictions in the proposed agreement meant that
Defendant would only actually purchase approximately $6, 000
in impact fee credits. Rabadi Aff. ¶ 11.
with Defendant's offer, Plaintiffs sent a counteroffer on
July 19, 2017. Lesley Aff. ¶ 9; Rabadi
Aff. ¶ 11; Doc. 21 UMF 6. Plaintiffs'
counteroffer required Defendant to purchase the whole of
Plaintiffs' $71, 401.13 in impact fee credits at 75% of
their face value. Lesley Aff. ¶ 9; Rabadi
Aff. ¶ 11; Doc. 21 UMF 6; Doc.
22-3. Plaintiffs assert that in a phone call, Mr. Lesley
told Mr. Rabadi that “it ‘was a done
deal.'” Rabadi Aff. ¶ 12; see
also Doc. 21-A at 2 (an August 31, 2017 email from Mr.
Rabadi to Mr. Lesley, noting that after Plaintiffs sent the
counteroffer, Mr. Lesley “advised [Plaintiffs] that
everything was approved and we had a deal”).
August 14, 2017, Plaintiffs learned that they had
approximately $10, 000 more in impact fee credits and sent
Defendant an offer to purchase these additional credits at a
deeper discount. See Rabadi Aff. ¶ 14;
Doc. 22-4. In both of their proposed counteroffers,
Plaintiffs included a provision that provided, “[t]he
parties acknowledge that this closing must take place before
the closing of any other lots sold and closed to the
Purchaser in the [Paradise View] subdivision.”
Docs. 22-3 at 4; 22-4 at 2. Despite this
provision, the parties closed on the Purchase Agreement for
the 24 lots on August 18, 2017, without signing or closing on
an agreement regarding the impact fee credits. See Lesley
Aff. ¶ 12; Doc. 21 UMF ¶ 8.
Plaintiffs assert that they “closed on the real estate
purchase agreement with the understanding the impact fee
agreement would be closed later.” Rabadi Aff.
September 19, 2017, Mr. Rabadi emailed Mr. Lesley and stated:
I sent you my thoughts on the impact fee deal wherein you
would agree to take all my impact fees, i.e. all eighty some
thousand. I believe you offer [sic] to take the seventy one
thousand, but wished to pay only 50K for them. I made a
counter offer, but have not heard from your. [sic] Please let
me know one way or other asap.
Doc. 37-B. Defendant expressly declined
Plaintiffs' second counteroffer (regarding the additional
$10, 000 in impact fee credits). Id.; see also
Rabadi Aff. ¶ 22. Plaintiffs responded,
“Okay, will you let me know what you [w]ill do right
away.” Doc. 39-2 at 3. Mr. Lesley shared this
email thread with Mr. Dean Anderson, Division President for
Defendant. Doc. 39-2; see also Lesley
Affidavit ¶ 6. Mr. Lesley said that he had
been pretty much ignoring [Plaintiffs'] impact fee issue
in favor of more important matters. Here's an email [Mr.
Rabadi] sent last week. He emailed a follow up message
earlier this week . . . . Every time he has attempted to
re-negotiate “the deal” serves as evidence there
is no deal, as I see it.
Doc. 39-2 at 1. Mr. Anderson advised Mr. Lesley to
stop responding to Mr. Rabadi's emails. Id. at
Plaintiffs' understanding that “[j]ust prior to
closing on the” Purchase Agreement for the 24 lots, Mr.
Lesley reneged on the parties' oral agreement for
Defendant to buy $71, 401.13 in impact fee credits at 75% of
face value, because he had not secured corporate approval.
See Doc. 21-A at 2; Rabadi Aff. ¶ 15.
Plaintiffs assert that they would not have sold Defendant the
24 lots, which were the biggest lots Plaintiff owned, if
Plaintiffs knew that Defendant would not purchase the impact
fee credits. Rabadi Aff. ¶ 23. Before Defendant
decided to buy only 24, as opposed to 40, lots, Plaintiff
“advised the other builders in the subdivision who had
options for first refusal on the balance of the lots . . .
that they were all sold . . . .” Id. ¶
24. Consequently, the builders “sold their models and
moved out of the subdivision, forcing . . . Plaintiffs to
close on the 24 larger lots and to find other buyers for the
balance of the unsold lots” at a reduced price.
Id. Plaintiffs are now stuck with over $81, 000 in
impact fee credits and have no other subdivisions on which to
use them. Id. ¶ 25.
Summary Judgment Standard of Review
judgment is appropriate when the Court, viewing the record in
the light most favorable to the nonmoving party, determines
“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 also Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact
is “material” if it could influence the
determination of the suit. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute over a
material fact is “genuine” if a reasonable trier
of fact could return a verdict for either party. Id.
The moving party bears the initial responsibility of
“show[ing] that there is an absence of evidence to
support the nonmoving party's case.” Bacchus
Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891
(10th Cir. 1991) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986)).
the moving party meets this burden, Rule 56(e)
“requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.” Celotex, 477 U.S. at 324 (quoting
Fed.R.Civ.P. 56(e)) (quotation marks omitted). The party
opposing a motion for summary judgment “must set forth
specific facts showing that there is a genuine issue for
trial as to those dispositive matters for which it carries
the burden of proof.” Applied Genetics Int'l,
Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241
(10th Cir. 1990) (citing Celotex, 477 U.S. at 324).
Rule 56(c) provides that “[a] party asserting that a
fact . . . is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials . . .
.” Fed.R.Civ.P. 56(c)(1)(A). The respondent may not
simply “rest on mere allegations or denials of [her]
pleadings.” Anderson, 477 U.S. at 259; see