Tuesday, November 19, 2013

Prospect Capital Corporation v. Adkisson, Sherbert & Associates (4th Circuit)

Filed: November 7, 2013 (unpublished)
Opinion by: Judge Andre Davis 

Held: the United States District Court for the Western District of North Carolina was not clearly erroneous and did not abuse its discretion  in ruling that (1) the parties reached a binding and enforceable oral settlement agreement; and (2) plaintiff did not proceed in bad faith, so neither a dismissal with prejudice nor an award of attorney's fees was appropriate.

Facts: Plaintiff made a $12 million commercial loan to a third party. After the third party borrower filed a voluntary Chapter 11 petition (which was converted to a Chapter 7 liquidation), plaintiff sued several defendants for the gross misconduct of their officers and directors.  Plaintiff entered into settlement negotiations with one such defendant, the third party borrower's accounting firm.  Even though counsel for plaintiff and defendant exchanged several draft settlement agreements, plaintiff refused to execute the agreement.  Defendant moved to enforce the purported agreement, to dismiss the complaint, and for an award of attorney's fees. 

Plaintiff alleged that defendant was negligent in providing inaccurate information about borrower's financial condition.  Counsel for the parties exchanged several emails and telephone conversations, during the last of which they agreed that defendant would pay plaintiff a sum certain in exchange for a dismissal of the action with prejudice.  Plaintiff stated in a court filing that the parties "have agreed to the principal terms of the settlement agreement, but require additional time to complete the drafting and execution of the settlement agreement." 

In November and December of 2011, the parties exchanged a total of six drafts, each containing the same material terms, including merger and integration clauses.  The parties eventually negotiated a "final" Confidential Settlement Agreement.  Defendant emailed an executed copy of the written agreement to plaintiff, followed a week later by the settlement check.  The day after defendant mailed the settlement check, plaintiff filed additional papers with the court requesting an extension of time and again representing that the parties "have agreed to the principal terms of the settlement agreement, but require additional time to complete the drafting and execution of the settlement agreement."  "Alas," the Fourth Circuit lamented, "the new year brought a refusal by [plaintiff] to execute the Confidential Settlement Agreement."  Plaintiff returned the settlement check to defendant and stated that it would not be executing a settlement agreement with defendant. 

Defendant moved to enforce the purported agreement, to dismiss the complaint, and for an award of attorney's fees.  After a hearing, the district court ruled that the parties agreed on the material and essential terms of a settlement.  The district court reasoned that several months of emails between counsel demonstrated an enforceable agreement because the material terms were settled.  Those terms included payment price and costs per side, mutual releases, and a confidentiality requirement.  The district court found that choice-of-law and venue provisions were not material terms because plaintiff accepted them willingly and without demanding additional consideration.  It found further that plaintiff's apparent dissatisfaction with the settlement amount was "simply a risk of litigation and the nature of its investment business . . . which are insufficient to set aside the remaining agreement."  Finally, the district court ruled that plaintiff was estopped from denying the existence of the agreement, after it had twice represented to the court that the parties had reached a settlement. 

The district court granted in part defendant's motion, ordering the parties to file a notice of settlement within 30 days.  The court denied defendant's motion for dismissal with prejudice, ruling that plaintiff had not acted in bad faith as required to support a dismissal with prejudice other than on the merits by FRCP 41(b).  Absent bad faith, the district court also declined to award attorneys' fees to ASA. 

Analysis: The Fourth Circuit held that the district court was not clearly erroneous in finding that the parties had settled on the material terms of the settlement agreement during a telephone conversation on November 22, 2011. The Fourth Circuit noted that plaintiff never made the agreement contingent on approval by its senior management, that there was no record evidence that the agreement depended on the execution of a writing, and that plaintiff represented to both defendant and to the district court that the parties had reached a settlement.  The Court declined to consider as moot defendant's cross appeal on the issue of bad faith and attorney's fees. 

The Fourth Circuit held further that the district court was not clearly erroneous in identifying the material terms of the agreement, and classifying as immaterial the choice of law, venue, and release provisions.  Plaintiff accepted quickly and without further consideration defendant's change of the choice of law and venue provisions from New York to North Carolina, demonstrating that these terms were not of "paramount importance" to Plaintiff.  The release provision was not a material term because defendant disputed it only once and ultimately accepted it.  Unlike a case cited by plaintiff, Chappel v.Roth , 548 S.E. 2d 499 (N.C. 2001), the parties did not condition their settlement on the negotiation of a specific release provision. 

Reviewing under a deferential clearly erroneous / abuse of discretion standard, the Fourth Circuit appeared to approve of the district court's consideration of the evidence.  The Fourth Circuit stated that it was "entirely proper for the district court to hear the evidence of the sequence of events that took place during the negotiations, as well as the settlement amounts considered and finally agreed upon." It stated further that the district court was correct in looking past the merger and integration clauses in the written settlement agreement.  That agreement was not fully executed because plaintiff did not sign it; "thus, those provisions could not, and did not, guide the district court's inquiry[.]"

The full opinion is available in .pdf.

Friday, November 8, 2013

Dolan v. McQuaide (Ct. of Special Appeals)

Filed: November 5, 2013
Opinion by: Judge Albert J. Matricciani, Jr.

Held: (1) There was no dispute of material fact on plaintiff's breach of contract and promissory estoppel claims where parties had discussed that plaintiff would help to "plan" the opening of the car wash business, but had not discussed or agreed upon the scope of plaintiff's services.

(2) There was a dispute of material fact on plaintiff's claims for unjust enrichment where there was record evidence of the fair market value of her services.

Facts: The plaintiff and defendant, began a romantic relationship in 1997. They were engaged to be married in 2002. Between 2000 and 2002, they decided to open a car wash business. In exchange for her efforts in planning the business, the defendant agreed that the plaintiff was to be an equal partner in the car wash business and share net profits. The plaintiff performed various services for the car wash business, including drafting a business plan, making financial projections, creating a web site, and writing contracts for the defendant to use with investors and service providers. In 2005, shortly before the car wash was to open, the parties ended their personal and professional relationship. The defendant did not compensate the plaintiff as promised. The plaintiff sued for breach of contract, promissory estoppel, accounting and unjust enrichment.The defendant moved for summary judgment on all claims and prevailed.

Analysis: Breach of Contract and Promissory Estoppel Claims: a breach of contract claim cannot stand if terms are vague or uncertain. Robinson v. Gardiner, 196 Md. 213, 217 (1950). A clear and definite promise is required to sustain a claim of promissory estoppel. Pavel Enterprises, Inc. v. A.S. Johnson Co., Inc., 342 Md. 143, 166 (1996). Here, the parties spoke only in general terms about what the plaintiff would do in exchange for a share in the business. There was thus insufficient specificity to determine whether the plaintiff satisfied her obligations under the agreement. See Mogavero v. Silverstein, 142 Md. App. 259, 273 (2002). The plaintiff performed services, but she did so without having discussed them in detail at the time the alleged oral contract was formed.  Conduct alone cannot form an oral contract or bind another party in promissory estoppel. See generally Alternatives Unlimited, Inc v New Baltimore City Bd. of Sch. Comm'rs, 155 Md. App. 415 (2004). Moreover, there was no evidence from which a fact-finder could reasonably infer a definite set of promises sufficient to give rise to contract or promissory estoppel claims. Thus, there was no dispute of material fact on the claims of breach of contract and promissory estoppel, and summary judgment for the defendant was proper.

Unjust Enrichment Claim: an unjust enrichment claim arises where there are three elements present: (1) a benefit conferred upon the defendant by the plaintiff; (2) appreciation or knowledge by defendant of the benefit; and (3) acceptance or retention of benefit such that it's inequitable for defendant to retain without payment of its value.  Hill v. Cross Country Settlements, LLC, 402 Md. 281, 295 (2007). The appropriate remedy for unjust enrichment is restitution for the plaintiff such that the defendant is no better or worse than he was ex ante. Assessing damages requires a computation of the value of the benefit actually received by the defendant. Here, the plaintiff provided evidence of the fair market value of the services she provided. While the fair market value did not conclusively establish the actual value of her services, such evidence created a genuine issue of fact for the fact-finder. Thus, summary judgment for the defendant on the unjust enrichment claim was unwarranted.

The full opinion is available in .pdf.