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Flagship v. Cypress Equities Southeast LLC

United States District Court, N.D. Alabama, Western Division

February 26, 2015

PATE FLAGSHIP, LLC, and, SEALY, LLC, Plaintiffs,
v.
CYPRESS EQUITIES SOUTHEAST, LLC, CHRISTOPHER C. MAGUIRE, SCOTT HARRINGTON, and CARLYLE-CYPRESS TUSCALOOSA I, LLC, Defendants

Page 1272

For Pate Flagship LLC, Sealy LLC, Plaintiffs: David B Anderson, Deanna L Weidner, LEAD ATTORNEYS, ANDERSON WEIDNER LLC, Birmingham, AL; Patricia Clotfelter, LEAD ATTORNEY, D Keith Andress, Kristopher O Anderson, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ PC, Birmingham, AL.

For Cypress Equities Southeast LLC, Christopher C Maguire, Defendants: Carol C Payne, ESTES OKON THORNE & CARR PLLC, Dallas, TX; Lee E Bains, Jr, MAYNARD COOPER & GALE PC, Birmingham, AL.

For Scott Harrington, Defendants: Carol C Payne, LEAD ATTORNEY, ESTES OKON THORNE & CARR PLLC, Dallas, TX; Lee E Bains, Jr, MAYNARD COOPER & GALE PC, Birmingham, AL.

For Carlyle-Cypress Tuscaloosa 1 LLC, Defendant: James Conrad Lester, James L Mitchell, Lee E Bains, Jr, Thomas W Thagard, III, LEAD ATTORNEYS, MAYNARD COOPER & GALE PC, Birmingham, AL; .

Page 1273

MEMORANDUM OPINION

JOHN E. OTT, Chief United States Magistrate Judge.

Before the court are the defendants' motions to dismiss the plaintiffs' amended complaint. (Docs. 24, 26, 32).[1] The motions have been fully briefed. Upon due consideration, the court finds that the motions are due to be granted.

BACKGROUND

Plaintiffs Pate Flagship, LLC (" Pate Flagship" ) and Sealy, LLC (" Sealy" ) entered into a Purchase Agreement[2] with Cypress Equities Southeast, LLC (" Cypress Equities" ), Christopher C. Maguire (" Maguire" ), and Scott Harrington (" Harrington" )[3] for approximately 35 acres of real property in Tuscaloosa, Alabama, on May 28, 2005. The Purchase Agreement was later amended on September 27, 2005. Some time after the execution of the Purchase Agreement, Cypress Equities assigned all rights under the Purchase Agreement to Carlyle-Cypress Tuscaloosa I, LLC (" Carlyle Cypress" ).

Page 1274

The Purchase Agreement, as amended, provided:

(e) Enhancement Interest. As additional part of the purchase price[,][Cypress Equities] agrees to pay [plaintiffs] a sum equivalent to one-half of the Enhancement Interest created on the Property as and when received by [Cypress Equities]. For all purposes of this Agreement, " Enhancement Interest" shall be all TIFF[4] money or any other funds received by [Cypress Equities] from any governmental entity or agency for, or TIFF money or any other funds spent by any governmental entity or agency (in lieu of the receipt by [Cypress Equities] of TIFF money or any such other funds from any governmental entity or agency), directly or indirectly on, the proposed ...

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