Legal & Courts  July 8, 2022

Long-fought Promenade Shops lawsuit finally over

LOVELAND — Court cases over a partnership deal that went sour in the management and ownership of the Promenade Shops at Centerra in Loveland, cases that began 10 years ago in May 2011, have now concluded.

A “satisfaction of judgment” notice was filed in U.S. District Court for the District of Colorado indicating that the judgment, interest and costs have been satisfied “in full.” 

Based on the filing, it would appear that McWhinney Holding Co. LLLP and related McWhinney entities collected $23.4 million plus $12 million in pre-judgment interest, plus $64,149 in court costs, plus $52.90 per day in post-judgment interest. 

BizWest’s calls and emails sent to McWhinney parties to verify amounts were met with a “please defer to public records” response. The notice of satisfaction filed with the court said, “The plaintiffs hereby acknowledge satisfaction of said judgment, as amended, in full and desire to release this judgment and hereby fully and completely satisfy the same.”

The notice references a May 7, 2021, judgment in the amount of $23.4 million against defendant Terry McEwen, which was amended Sept. 8, 2021, with court costs and pre- and post-judgment interest.

Sorting out details of this case with its hundreds of filings and the results of two trials plus appeals becomes a mammoth undertaking.

It began May 27, 2011, in Larimer County District Court when McWhinney sued partners Poag & McEwen Lifestyle Centers LLC over their partnership in the construction and management of the Promenade Shops, the centerpiece of McWhinney’s Centerra development. McWhinney, which didn’t consider itself to be a shopping center developer at the time of the development, partnered with shopping-center specialists Poag & McEwen to build the shops. McWhinney brought money and land to the deal; Poag & McEwen brought money and expertise. They were 50/50 partners.

When things went awry, McWhinney sued and won a $42 million judgment in August 2017, which Poag & McEwen appealed and lost. Poag & McEwen appealed again to the state Supreme Court. That appeal was dismissed in May 2021 when the parties settled for an unknown amount.

But during that first trial, McWhinney learned of other alleged infractions and violations of their partnership deal. In 2017, McWhinney sued again, this time against Terry McEwen, Dan Poag and Josh Poag as individuals. 

At the heart of the second case, McWhinney alleged that as early as 2006, Terry McEwen withdrew from the Poag & McEwen company in order to retire. This retirement was kept secret from McWhinney, which had a clause in the management agreement that it — McWhinney — would assume managerial control over the lifestyle center if McEwen ceased to be a majority stakeholder in Poag & McEwen.

McEwen had negotiated a $40 million buyout from Dan Poag and his son Josh Poag, money that they arranged to leverage from the Promenade development without disclosing it to McWhinney, according to court documents. McWhinney learned of the retirement deal in 2015 during the course of the first trial.

McWhinney sought $92.2 million in the second lawsuit, plus damages of 1.5 times the value of assets that McWhinney alleged had been transferred out of reach of Colorado courts.

The Poags settled with McWhinney just prior to the May 2021 jury trial for an unknown amount. Meanwhile, the jury determined that McWhinney suffered damages of $156 million and assessed 15% or $23.4 million of those damages against the remaining defendant, Terry McEwen.

McEwen appealed. On Sept. 8, 2021, federal Judge R. Brooke Jackson confirmed the judgment and ruled that McWhinney was due interest of $12 million plus $64,149 in court costs plus $52.90 per day in post judgment interest until the debt was paid. 

When the judgments were paid, the appeal itself was dismissed April 19, 2022, “upon consideration of the stipulation of the parties to voluntarily dismiss the captioned appeal…”

The cases were McWhinney Holding Co. LLLP et al versus G. Dan Poag, Joshua D. Poag, Terry McEwen, et al, case number 2017cv30940 originally filed in Larimer County District Court; and the appeal was McWhinney Holding Co. LLLP, et al, versus Terry McEwen, case number 17cv02853 in the U.S. Court of Appeals for the 10th Circuit.

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