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Hommel v. George8/16/1990
No partnership agreement to the contrary was included in the record; therefore, each investor's interest consists only of his or her contributions, which ultimately are distributable on the basis of the value of the contribution made by each partner. Section 7-62-504, C.R.S. (1986 Repl. Vol. 3A). Similarly, any profits or losses are allocated on the same basis. Section 7-62-502, C.R.S. (1986 Repl. Vol. 3A). Although the nature of a limited partner's contribution is not necessarily restricted, unless otherwise agreed, any distribution of contributions or profits must be in cash. Section 7-62-605, C.R.S. (1986 Repl. Vol. 3A). Furthermore, the trial court found, and each investor admits, that he or she does not individually hold any fee title interest in any of the condominium units or in the Sellers Landing Project itself.
The cases cited by investors in support of their argument that they have sufficiently alleged a loss of use of tangible property are inapposite. In contrast to the circumstances at issue, the plaintiff in each of those cases owned the injured property and used it directly in its business. See First Newton National Bank v. General Casualty Co., 426 N.W.2d 618 (Iowa 1988) (farm); Federated Mutual Insurance Co. v. Concrete Units, 363 N.W.2d 751 (Minn. 1985) (grain silos); Western Casualty & Surety Co. v. Budrus, 112 Wis.2d 348, 332 N.W.2d 837 (Wis. App. 1983) (seed); Geurin Contractors, Inc. v. Bituminous Casualty Corp., 5 Ark. App. 229, 636 S.W.2d 638 (Ark. App. 1982) (store).
Because investors here were neither owners nor occupants of the condominiums, they did not lose their property. Moreover, we do not consider that any loss of any ostensible right to have the condominiums sold and the proceeds applied to repay their investments is a loss of use of the condominiums "in any ordinary sense of the word." See Bank of Montana v. Travelers Insurance Co., 870 F.2d 1504 (9th Cir. 1989) (construing policy provisions identical to those here, court rejected plaintiffs' argument that their economic losses which resulted from the loss of their right to claim a security interest in certain property constituted a loss of use of tangible property).
Second, an examination of the investors' underlying complaint belies their contention that they are claiming more than mere economic injury ; nowhere in the complaint is there an allegation of damages or injury to the condominiums. Instead, through theories of implied contract, misrepresentation, breach of fiduciary duty, and promissory estoppel, their complaint shows that investors are seeking relief for the loss of use, not of the condominiums, but of their investments and profits, specifically, repayment of their respective capital contributions and lost profits. Also, we note in each investor's responses to discovery, the only damage claimed is "the portion of the investment not returned," and each investor defines the alleged "loss of use" of the Sellers Landing Condominium Project as the "[expectation that] an investment returned from the sale of the project."
Thus, the trial court correctly characterized the injury alleged as injury to the investments, not to the condominiums. See Lamar Truck Plaza v. Sentry Insurance Co., supra.
Accordingly, the judgment is affirmed.
Disposition
JUDGMENT AFFIRMED.
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