Grubb & Ellis Company v. Potomac Medical Building, LLC

Filing 112

AMENDED MEMORANDUM AND OPINION. /S/ by District Judge Gerald Bruce Lee on 9/29/09. (tbul, )

IN THE

UNITED

STATES

DISTRICT

COURT

FOR THE

EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

Grubb & Ellis Company,

)

Plaintiff,

)

v.
Potomac Medical Building,
Defendant.

)
LLC, )
)

Case No.

l:08cv971(GBL)

AMENDED MEMORANDUM OPINION

THIS MATTER is case concerns contract,

before

the

Court & Ellis

for a bench trial. Company's breach of and

This

Plaintiff Grubb

procuring cause,

quantum meruit, Building,

fraud claims for refusing to a

against Defendant pay Plaintiff

Potomac Medical

LLC,

commissions

following the consummation of

commercial Court. The

leasing deal. first issue

There are

five

(5)

issues before

the

is whether the parties' lease was

Exclusive Agency signed on July
expired on on The

Agreement was
14, 2008,

still

in effect when the
express terms,

where, 1, 2007,

by its

the Agreement

November

but Defendant sent which the stated,

Plaintiff the

an email

February 20, second issue

2008, is, if

"Here's

extension." in fact

original Agreement had

expired,

whether the
course

February 20,

2008,

email

and the parties'

subsequent

of dealings with each other created a new,
The third issue is whether Plaintiff

enforceable
the procuring

contract.

was

cause

of

the

Stratford University

lease

where

Plaintiff

negotiated a non-binding

letter of

intent on February,

27,

2008,

ceased work on the

transaction,

and a later brokerage

firm,

Studley,

Inc.,

negotiated additional material

terms

that

ultimately led to a consummated lease.
the absence of an enforceable contract,

The fourth issue is,
whether Plaintiff is

in

entitled to commissions under a quantum meruit

theory where

Plaintiff was not

the procuring cause of

the

Stratford lease but

conducted negotiations
services. The

with Stratford and provided advertising
is whether Defendant fraudulently into

fifth issue intentions

concealed its continuing

and fraudulently Stratford lease

induced Plaintiff where Defendant

to work on the intent

indicated its

to extend the Agreement and continued to on its behalf, but never actually signed

direct Plaintiff

to act

an extension to the Exclusive Agency Agreement.

The Court fact. First,

finds

for Defendant on all finds

five

(5)

issues

of

the Court

that the Exclusive Agency Agreement
1, 2007, because the express

automatically expired on November

terms

of

the Agreement provided that

it

"shall be

renewable upon

mutual written agreement,"
prior to

but no written extension was
Second, the Court finds

executed
that the

its expiration date.

February 20,

2008,

email

and the parties'

subsequent conduct did

not create a new contract because extension,
unresolved

the parties never signed the and
email,

they disputed the
concerns

language contained therein,
after Defendant sent

remained even

the

all

of which indicate

that no meeting of

the minds occurred.

Third,

the

Court

finds

that

Plaintiff was

not

the procuring cause

of

the Stratford lease because

Plaintiff

ceased work on the

Stratford transaction and the

lease materialized only after terms acceptable the Court

Studley intervened and negotiated new material to both Defendant and Stratford University.

Fourth,

finds
meruit

that Plaintiff
theory because

is not entitled to recover under a quantum
Plaintiff presented no evidence at trial

showing that the value. Fifth,

services it actually performed were of any finds that Defendant did not

the Court its

fraudulently conceal continue

intentions or induce Plaintiff to 1) Plaintiff failed to prove that
2) it

its work because:

Defendant never intended to extend the brokerage agreement;

was unreasonable

for Plaintiff

to rely on any representations not

contained in a signed written agreement; to prove
amount as

and 3)

Plaintiff

failed

that it is
damages.

entitled to recover commissions or some other

I.

FINDINGS

OF

FACT

A.

The Exclusive Agency Agreement
Between October of 2006 and December 18, 2006, Plaintiff

Grubb Sc Ellis

Company

("Grubb & Ellis")

and Defendant Potomac

Medical Building,
of

LLC

("Potomac Medical")

exchanged four versions
before reaching a of the

the Exclusive Agency Agreement agreement as to the

("Agreement")

final

terms and conditions 2006, Ms.

representation.

On December 28,

Jessica Padgett of

Grubb & Ellis

sent Mr.

Emad Saadeh,

the principal of

Potomac

Medical,

a final executed copy of the fourth version of the
initials and signatures intact. (PL's Ex.

Agreement with all

1.)

The fully executed and final version of

the Exclusive Agency
to

Agreement contained the
this lawsuit:

following material provisions relevant

i.

H 2 provided that,

"All sale/lease agreements and
sole

prospective purchasers and tenants shall be subject to the approval of the Owner in its discretion."

ii.

U 3(c)

of the Agreement stated:
this

"Notwithstanding other provisions of Agreement, other real G&E shall estate brokerage firms

cooperate with and encourage to secure

purchasers/tenants

for the property."

iii.

H 6 of the Agreement provided:
The Owner agrees rendered pursuant to compensate G&E to this Agreement for services according to

the

following commission schedule:
LEASES

(a)

Where G&E is

the

sole procuring broker

in the
base

transaction,

G&E shall be paid

four percent (4%) of the total aggregate rental stipulated in the fully
leases.

executed

(b)

When a cooperating broker is
named as members

involved,

defined as any broker other than those (as
of the Marketing Team defined in Section 8), G&E shall be

paid six percent
aggregate base
fully executed

(6%)

of

the total
in the
cooperating

rental
leases.

stipulated
The

broker shall be paid three percent
of of the total aggregate paid base rental the proceeds to G&E.

(3%)
out

iv.

11

9 of the Agreement stated:
Exclusive Agency Agreement the
and

This as of
force

shall be effective continue
31, 2007,

above
effect

date

and it

shall

in full
and

through October

shall be

renewable upon mutual

written agreement. for any event to (30) days prior

Either party may terminate this Agreement reason without penalty upon thirty written notice of to the other party. G&E shall have the of bona list must (15) days cancellation, there This date In the right

provide Owner with a list with whom Property. within effective prospect of six

fide prospects in the the be provided after

is an active

interest

fifteen business

the termination. (6) months in which to such registered shall have no of

G&E shall have consummate parties,

an agreement with

after which time

Owner

obligation to pay a commission under the terms

this Agreement.

Termination of this Agreement shall not relieve either party of its financial obligation to pay a commission under the terms of
this (PL's Ex. 1.)
1, 2 007, the date that the Exclusive Agency

Agreement.

By November

Agreement was
renewal

set

to expire,

the parties

had not

executed a

by mutual written agreement.

However,

the parties

continued to work with one provide brokerage services

another.

Grubb & Ellis continued to for

and remained listed as the agent

Potomac Medical's property on CoStar,
continued its construction of

while

Potomac Medical
At that time there

the building.

were no active prospective

tenants

for the building.

B.

"Extension"

of

the Exclusive Agency Agreement Mr. Ed Bretz of Grubb & Ellis realized the

In January 2008,

Exclusive Agency Agreement had not been renewed and instructed
Ms. Padgett to follow up with Mr. 2008, Ms. Padgett Saadeh sent Mr. to extend the Agreement. Saadeh an email that

On January 31,

stated,

"The original

listing agreement

for Potomac Medical

Center expired in October of this year

[sic].

We overnighted an 2007, and have

extension letter to your attention on October 5,

not received a fully executed version for our files.
attached both documents for your review." (PL's Ex.

I have
2.) Mr.

Keith Lipton,

Executive Vice

President and Managing Director of

Grubb & Ellis's Washington,
2007,

D.C.,

offices,

signed the October 5,

proposed extension letter just as he had signed the

original Exclusive Agency Agreement.
contained a line for Mr. Saadeh's

The proposed letter also

signature.

Subsequent to Ms.
asked Mr.

Padgett's

email,

Mr.

Bretz

repeatedly

Saadeh by email
2008

for return of
(PL's Ex. 26),

the extension letter,
and again on February

once on February 4,

19,

2008

(PL's Ex.

3).

Mr.

Saadeh never signed or returned the

proposed extension

letter.

Mr.

Saadeh was

concerned about

renewing the Agreement

because he believed that an extension would bind him to working
with Grubb & Ellis
Tr., 152-53, July

for an additional eighteen months.
9, 2009.) Mr.

(Trial

Saadeh wanted a proactive broker

who would take charge to get the building leased despite the slowing economy. however, (Trial Tr., 152-53, July 9, 2009.) He did,

express a willingness to enter into an agreement that
to a commission if Mr. Bretz

would protect Grubb & Ellis's right

drafted an agreement that specifically addressed commissions. (Trial Tr., 145, July 9, 2009.) Mr. Bretz never drafted an the only
2007,

agreement that specifically dealt with commissions;
draft agreement sent to Mr.
proposed extension letter. On February 20, 2008,

Saadeh was
(PL's Ex. at 11:46

the October 5,
2.) Mr.

a.m.,

Saadeh sent Mr.

Bretz an email
the concerns

that
I

stated,
have."

"Here's the extension.
(PL's Ex. 3.)

You remember

that

The attached letter,

however,

stated,

"please accept this

letter as our intent to
the Stratford

extend Grubb and Ellis

listing agreement throughout

University transaction."
contained a place left the for his

(PL's Ex.
signature,

3.)
Mr.

Although the

letter

Saadeh intentionally

letter unsigned to secure (Trial Tr., 175, July 9,

further conversation about his 2009.) Mr. Bretz realized

concerns.

that Mr.
of

Saadeh's letter was
(Trial. at 1:23

insufficient
198-200, Mr.

to act as an extension
July 7, 2009.) On

the Agreement. 2008,

Tr., p.m.,

February 20,

Bretz

replied to Mr.

Saadeh's email and suggested that the parties set a date to
discuss Mr. Saadeh's concerns. (Def.'s Ex. 29.) Importantly, he

also asked Mr.

Saadeh to sign the attached letter.

{Def.'s Ex.

29.)
p.m.,

Just over four hours
Mr. Bretz

later,

on February 20,
Saadeh, this

2008,

at

5:57
to

again emailed Mr.

time

asking him

modify the

language

in the attached letter to read,

"please

accept this letter as an extension of

the

listing agreement

through the conclusion of the current transaction negotiations with the current prospect,
Ex. 31.) Mr.

Stratford University.

..."

(Def.'s

Saadeh neither signed nor modified the letter as
the parties never exchanged a signed

requested.

Furthermore,

extension letter,
October 5, 2007,

either the version produced Mr.
extension letter signed by Mr.

Saadeh or the

Lipton.

Also in February,

Mr.

Saadeh began to seriously consider

bringing in another broker to work on leasing Potomac Medical
because he had concerns about Grubb & Ellis's performance.

{Trial Tr.

146-51,

July 9,

2009.)

Mr.

Saadeh reached out to Mr.

Glen Peacock of Studley,

Inc.,

with whom he maintained contact,

for help in marketing the property. C. Stratford University Negotiations

Meanwhile,

by the end of December 2007 and leading into

early January 2008,

Stratford University

("Stratford")

identified

Potomac Medical Center as a potential site for its Prince William County campus. Stratford is a private educational institution

that offers various associate,
programs with two campuses, one

bachelor,
in Falls

and master degree
Church, Virginia, and

the other in Woodbridge,

Virginia.

Mr.

Craig Estey and Mr.

Junius Tillery of UGL Equis,

a global real

estate

firm that

provides brokerage services for commercial clients,
Stratford University. The Equis brokerage

represented

team contacted Grubb &

Ellis

to express Stratford's

interest in the Potomac Medical

Center.

On February 27,

2008,

Stratford University and Potomac

Medical executed a non-binding proposal to lease,

or letter of

intent

("February LOI").

(PL's Ex.
clause that

6.)

Among other things,
"Neither Landlord

the

February LOI contained a

stated,

nor Tenant

shall have any obligations regarding any provision set is executed by

forth in this proposal unless a lease agreement
both parties." Despite concerns the (PL's Ex. 6.) the February LOI, tenant.

execution of

Mr. Mr.

Saadeh had Saadeh

about

Stratford as

a potential

believed that

Stratford was

financially weak,
level

and questioned why
lacked an financial

a university that

conducted its

of business

accounting program and had only an interim chief

officer.

(Trial Tr.,

162,
for

July 9,

2009.)

He questioned why it
had no retained July 9, 2009.) He was a unique

had been in business earnings to speak of.

thirty years yet Tr., 163,

(Trial.

also concerned because,

as a university,

Stratford was

tenant with unique tenant
July 9, 2009.)

improvement needs.

(Trial Tr.,

85-86,

On Monday,

March 3,

2008,

Mr.

Saadeh read an automated Dun

&

Bradstreet

("D&B")

email

alert

sent

to his work email

account

the

previous

Sunday.

The alert notified him of a drop rating. (Trial Tr., 61,

in Stratford 2009.) Mr.

University's credit

July 9,

Saadeh immediately forwarded the email alert

to his broker at Mr. Tillery.

Grubb & Ellis and to Stratford University's broker,
(PI.'s Ex. 35.)

At some point during that week, Dovi,

Mr.

Saadeh met with Mr. ("CFO")

John

the acting Chief Financial Officer along with Mr.

for Stratford

University,

Chris Bergstrom,

the Regional

President and Chief Credit and Risk Officer of Cardinal Bank.
Bergstrom was Mr. Saadeh's banker in financing the construction

Mr

of

the Potomac Medical

Center.

The parties met

to discuss Mr.

Saadeh's

concerns over Stratford's

financial viability given its

intent to enter into a ten-year lease.

Stratford University's

real estate broker was present with Stratford University
represented. Mr. Bretz was aware that Mr. Saadeh had scheduled

this

important meeting with Stratford University representatives Saadeh about

and their broker but he made no effort to engage Mr.
whether he should attend the meeting.

On March 12,
Bergstrom sent Mr.

2008,

the Wednesday of

the

following week,

Mr.

Saadeh an outline

of concerns with Stratford

University and noted the possibility of taking steps
the security of the deal to include asking

to enhance

for personal

guarantees,

obtaining a substantial

letter of credit,

or having

10

Stratford University

take

responsibility

for the

tenant

improvement

("build-out").

(Def.'s

Ex.

69.)

Mr.

Saadeh

incorporated parts of
and sent the comments

the comments he received from Mr.
to Mr. Bretz and asked that Mr.

Bergstrom

Bretz

forward the

information to Dr.

Richard Shurtz,

the President of
(PL's

Stratford University and to Stratford's brokers at Equis.

Ex.

40.)

Mr.

Saadeh had,

however,

already copied Mr.

Estey,

who

in turn forwarded the draft comments to Stratford University. (Pi's Exs. 40, 41.) Mr. Bretz did not send the letters as

directed by Mr.
D.

Saadeh.

Breakdown in Stratford Negotiations On Friday, March 14, 2008, the Mr. Saadeh met with Dr. Shurtz

and Mr.

Estey to discuss

concerns outlined in the

comments

forwarded to the University by Mr. March 17, 2008, Mr.

Estey.

The

following Monday,

Saadeh requested that Stratford University a change from the terms of the February LOI

fund the build-out,

which provided for $40.00 per square foot in tenant

improvement.

(PL's Exs.

6,

45.)

In return,

Mr.

Saadeh would drop the rental
foot.

rate from $25.00 per square foot

to $22.00 per square

(PL's Exs.
the reasons

6,

45.)

Mr.

Bretz did not do anything to look into
for additional

for Potomac Medical's request

securitization of its investment in build-out or to advocate the
reasonableness of Mr. Saadeh's position to Stratford.

Stratford University and its brokers treated Mr.

Saadeh's

11

request that Stratford fund the build-out as

a rejection of

the

February LOI.

On March 18,

Mr.

Bretz got Mr.

Saadeh's approval

that Potomac Medical was willing to proceed with the February LOI

with the change that it would pay $13.00 per square foot towards
tenant improvement and the lease rate would be
foot. (PL's Ex. 47.) On March 19, 2008, Mr.

$22.3 0 per square
Dovi concluded the

new offer was not acceptable and that Stratford no longer had an

interest
all

in the property.
and purposes,

(PL's Ex.

48.)

At

that point,

for

intents

the non-binding February LOI was a dead

deal.

With the deal dead,

on March 25,

2008,

Mr.

Bretz emailed Mr. for the

Saadeh to confirm he had spoken to a prospective tenant
property and sent Mr. On March 25, Saadeh an attached proposal. Mr. Saadeh forwarded Mr.

2008,

Peacock a copy

of

the

February LOI

to develop a

submission to Potomac

Hospital.

(PL's Ex. proposal
day,

49.)

On March 27,

2008,

Mr.

Peacock completed a draft the following
emailed Ms.

to be hand delivered to Potomac Hospital
2008. On April 2, 2008, Mr.

March 28,

Peacock

Michele Eckhardt of
proposal

Potomac Hospital a financial analysis

for the

for lease with Potomac Hospital.

On April string,
interest

2,

2008,

Mr.

Saadeh and Mr.

Peacock,

in an email

discussed the

importance of keeping Potomac Hospital's
confidential and affirming that G&E was that Mr. still

in leasing space

Saadeh would honor the

two small deals

12

handling.

(PL's

Ex.

57.)

Both Mr.

Saadeh and Mr.

Peacock,

in

their efforts to interest Potomac Hospital,
publicize the Hospital's potential interest

did not want

to

in procuring a

building as the publication of its interest would unduly attract
other brokers with different properties.
2009.)

(Trial Tr.,

49,

July 9,

E.

End of Grubb & Ellis's Six-Month Lease Consummation Period On April 15, 2008, Mr. Saadeh emailed Mr. Bretz, stating

that

the Exclusive Agency Agreement had expired in November 2007

and that any registration period would end shortly.

(PL's Ex.

61.)

Mr.

Saadeh believed that the Exclusive Agency Agreement was
"tail" provision whereby

a 12-month commitment with a six month
any deals

successfully consummated within the six months of commissions. (Trial Tr., 152, July 9,

warranted the payment

2009.)

On April 17,

2008,

Mr.

Bretz responded by email with an

attached letter that

stated,

Grubb and Ellis, at your direction, has continued to market the property until your request for termination of representation on April 15, 2008, this letter shall serve as acknowledgment of termination of the listing. . . . Grubb & Ellis shall be compensated per the terms of the listing agreement if a lease is consummated within six (6) months of the termination of the
listing.

(PL's Ex.

62 at 1952.

Grubb & Ellis failed to acknowledge or Saadeh that the Exclusive

discuss the statement made by Mr.

Agency Agreement had expired and the registration period was also coming to an end. (PL's Ex. 62.)
13

On May

16,

2008,

Mr.

Saadeh wrote

a

letter

to dispute

the

assertion in the April

17

attachment

that

the six-month period

would run from April,
Agency Agreement

repeating his position that

the Exclusive
85.)

expired in November 2007.

(PL's Ex.

Grubb & Ellis had previously acknowledged the expiration of the
Exclusive Agency Agreement. On April 22, 2008, (PL's Ex. 2.) ended Grubb

a week after Potomac Medical

& Ellis's representation,

Mr.

Bretz sent Mr.

Saadeh notice that

Stratford University was off of the

financial watch list and that

the University had resolved an accreditation issue that was a
matter of concern for Mr. Saadeh. (PL's Ex. 69 at 2081.)

Stratford University offered to resume negotiations under the
same terms of the February LOI. (PL's Ex. 69 at 2081.)

Mr.

Saadeh responded by stating that,

"The old deal

is

dead."

(PL's Ex.

69 at 2081.)

Mr.

Saadeh rejected the

Stratford deal at the previously proposed terms contained in the February LOI. (PL's Ex. 69 at 2081.) No lease between Potomac

Medical and Stratford ever came to fruition under those terms.
On April 24, 2008, at 10:22 a.m., when Stratford learned

that Mr.

Saadeh did not consider the terms of the February LOI
Mr. Estey advised Stratford that it was "definitely

acceptable,

time to move on."

(PL's Ex.

71.)

Mr.

Dovi replied that he

would send word that Stratford was no longer considering Potomac

Medical's property,

stating,

"I will communicate on this end that

14

there will be no more

talk of

Emads

[sic]

location."

(PL's Ex.

71.)
At that point,
Potomac Medical

Stratford University no longer considered
to be a viable option for Stratford.

Building

The previous day, and Dr. Shurtz

Mr.

Dovi had stated in an email thought that Mr. Saadeh was

to Mr.

Flaggert

that he

simply using

Stratford as

leverage

to negotiate a better deal with Potomac

Hospital.

(PL's Ex.

72.)

Stratford began to examine other (Trial Tr., 7, July 8, 2009.) On

alternatives

for office space.

April 25,

2008,

Mr.

Bretz notified Mr.

Saadeh that Stratford
(PL's Ex.

University had "moved on to another opportunity."
75.)

Grubb and Ellis made no effort options with Stratford University.
the Equis brokers, Tr., 217, July 7, with Dr. 2009.) Shurtz, Bretz

to explore alternative Mr. Bretz did not meet with
Dovi. (Trial Saadeh

or with Mr.

Mr.

did not meet with Mr.

because he found Mr.
7, 2009.)

Saadeh

"difficult."

(Trial Tr.,

215,

July

F.

.Resuscitation of the Stratford Negotiations
On May 6, 2008, Mr. Peacock emailed Mr. Saadeh and stated,

"I think we may be able to resuscitate this deal." 79.) On May 6, 2008, Mr.

(PL's Ex.

Peacock contacted the brokers for
2007 tax

Stratford University asking for Stratford University's

returns.

(PL's Ex.

79.)

From May 9,

2008

through May 12,

2008,

15

Mr.

Peacock provided Mr.

Saadeh with financial summaries relating
(PL's Exs. 81-82.) He relied on his

to the Stratford deal.

preexisting business relationship with Mr.

Estey to acquire

financial information about Stratford University to better inform
Mr. Saadeh of July 9, the University's 2009.) financial 2008, standing. Mr. (Trial Tr.,

89-90,

On May 13,

Peacock emailed a that increased the

proposal

("May LOI")

to Stratford's brokers

security deposit from $650,000 to $1,142,307.00.

(PL's Ex.

12.)

Stratford University accepted the May LOI and the parties
eventually entered into a lease.

In June 2008,

Grubb & Ellis

knew Stratford University was

in

talks with Potomac Medical,

and that

the parties were
Despite

in

negotiations and working towards

a lease.

this

knowledge,

Grubb & Ellis made no attempt to reinsert

itself

into

the negotiations process.

A final lease was executed by Potomac Medical and Stratford University on July 14, 2009. (PL's Ex. 15.) The final lease

contained terms different
May LOI (PL's Ex.
(PL's

from the May LOI.

(PL's Ex.

12.)

The

12)
Ex.

contained terms different from the
6) .

February LOI

Potomac Medical paid Stratford's broker approximately

$475,000 in commissions,
commission. (Trial Tr.,

which reflected a four percent
16, July 8, 2009.)

(4%)

Potomac Medical paid

Studley approximately $261,000

in commissions,

which reflected a

16

two percent

(2%)

commission.

(Trial

Tr.,

77,

July

9,

2009.)

Potomac Medical did not pay Grubb & Ellis a commission.

II.

STANDARD

OF

REVIEW

A plaintiff alleging breach of contract, quantum meruit must prove each element of its preponderance of the evidence.
Energy Techs., Inc., 63 Va. Cir.

procuring cause, claim by a v.
Cir.

or

See MDM Assocs.
113, 115 (Va.

Johns Bros.
Ct. 2003)

(breach of contract);

Atkinson v.

S.

L.

Nusbaum & Co.,

59

S.E.2d

857,

860

(Va.

1950)

(procuring cause)

(internal citations

omitted);
71, *1

WVC3 Group v.
Cir. Ct.

Plexus Scientific,
7, 2006)

2006 Va.

Cir.

LEXIS

(Va.

Apr.

(quantum meruit).

A party

alleging fraud must prove each element of the fraud claim by
clear and convincing evidence.
S.E.2d 207, 209 (Va. 1994).

See Van Deusen v.

Snead,

441

III.

ANALYSIS

A.

Breach of Contract

The Court finds in favor of Defendant on Plaintiff's breach of contract claim because the Exclusive Agency Agreement automatically expired on November 1, and because the February 20, 2008, 2007, by its express terms

email and the parties'

subsequent conduct did not create a new enforceable agreement

since no meeting of

the minds occurred.

17

1.

Breach of

Exclusive Agency Agreement

The Court finds

that Defendant did not breach the
the Agreement was not

Exclusive

Agency Agreement because

renewed in the

required manner and therefore expired on November 1,
A contract is
creates

2007.

"an agreement between two or more persons that
to do a particular thing."

an obligation to do or not

Buchanan v.

Doe,

431 S.E.2d 289,

292,

(Va.

1993)

(internal

citations omitted).
looks to the

To determine a contract's terms,
of the agreement

a court

"four corners"

to construe or

interpret Amoco Oil
Transp.

the parties' Co., 487 F.
Co.,

intentions. Supp.
650

Double Diamond Props., 744 (E.D.
702

LLC v. Heron v.

2d 737,
S.E.2d

Va.

2007);

Cas.

Ins.

699,

(Va.

2007).

"A court

is not at

liberty to rewrite a contract

simply
Rogers

because a contract may appear to reach an unfair result." v. Yourshaw, 448 S.E.2d 884, 888 {Va. Ct. App. 1994)

(internal

citations omitted).
in its
the

Where the agreement is plain and unambiguous
of the parties are
and the

terms,

the rights
the

to be determined from
impose an

terms of

agreement

court may not

obligation not found in the agreement itself.
450 S.E.2d 762, 764 (Va. Ct. App. 1994)

Jones v.

Jones,

(internal

citations

omitted). Here, the Court finds 1, that the Exclusive Agency Agreement express terms, the Agreement

expired on November

2007.

By its

was to continue in full

force and effect

through October 31,

18

2007,

unless

renewed in writing prior

to

its

expiration.

{PL's

Ex.

1,

K 9.)

The Agreement stated that it was
(PL's Ex. 1, fl 9.)
1,

"renewable upon
Therefore,
2007, unless

mutual written agreement."

the
the

Agreement automatically expired on November parties mutually agreed to extend it expiration date. Furthermore,

in writing prior to the the Agreement

because

automatically expired on November 1,
consummation period expired on May 1,

2007,
2008.

the six-month lease

At trial,

however,

Mr.

Bretz

testified that

the parties
2007,

never executed a written extension prior to the November 1,

expiration date.

In fact,

the only written instrument
the email

that
from

purported to extend

the Agreement,

and attachment

Mr.

Saadeh,

was executed on February 20,
expired. (PL's Ex.

2008,
3 at

nearly four months
1576.) In

after

the Agreement

addition,

the parties did not enter into

the Stratford lease

until July 14,
ended.

2008,

over two months after the

six-month period

(PL's Ex.

15.)

Plaintiff argued at trial agreed to an extension, but

that

the parties had verbally identified no contract

Plaintiff

modification that allowed a verbal extension to substitute for
the written extension expressly required under the Agreement.
Furthermore, Plaintiff presented no evidence indicating that the
As such, the

parties had even discussed such a modification.

Court finds that Defendant could not have breached the Exclusive

19

Agency Agreement because
2. Breach of

it

expired on November 1,

2007.

a New Enforceable Agreement

The

Court finds

that Defendant did not breach a new

enforceable agreement because neither the

February 20,

2008,

email nor the parties
agreement. To create

subsequent conduct operated to create a new
a contract there must be an offer and

acceptance,
Inns, Inc.,

with valuable consideration.
269 S.E.2d 838, 844 (Va.

Montagna v.

Holiday

1980).

To be valid and

enforceable,

a contract must be certain and the minds of the in mutual agreement on every material phase
agreement. "The minds of Belmont v. McAllister, 81 S.E. 81, not

parties must meet
constituting the 87 (Va. 1914).

the parties must wholly meet,

partially meet.
The unity of the

The agreement must be

integral,

not

fractional.
not

concordance must be reached by the parties,
A court is no oracle to divine assent 235

imposed by the where assent is

court.

wanting."

Dickerson v.

Conklin,

S.E.2d 4 50,

455

{Va.

1977)
as

(internal
to the

citations omitted).
20, 2008, email, the Court finds

Here,

February

that no contract

formed because no meeting of

the minds

occurred

for two

(2)

reasons.

First,

the parties never executed a signed,

written agreement.

On October 5,

2007,

Ms.

Padgett sent Mr.
(PL's
Mr. Saadeh

Saadeh an extension letter to sign via overnight mail.
Ex. 2 at 1384.) On January 31, 2008, Ms. Padgett sent

a follow-up email which again asked him to sign an extension

20

letter.

(PL's Ex.

2

at

1384.)
& Ellis,

However,
Mr.

instead of

signing

the

letter drafted by Grubb

Saadeh drafted his own

letter and attached
Ex. 3 at 1577.)

it to the February 20,
February 20,

2008,
2008,

email.
email

(Pl.'s
stated,

Although the

"Here's

the extension,"

the attachment

stated,

"please accept listing

this letter as our intent
agreement throughout (Pl.'s Ex. 3 at 1577)

to extend Grubb and Ellis

the Stratford University transaction." (emphasis added). Mr. Bretz responded by

email hours later,

stating,

"One small detail.

[C]ould you sign

the extension please[?]
2236.) Mr.

The attached wasn't."

(Def.'s Ex.
That

29 at
Mr.
to

Saadeh never signed the extension.

evening,
language

Bretz emailed Mr.
read

Saadeh and asked him to amend the
this letter as an extension of Ex. 31 at 147) A (emphasis

"please accept . . ."

the listing added). future Mr.

agreement

(Def.'s

Saadeh never amended the

language.

letter

stating

intent does not create a presently enforceable agreement.
Second, the parties never agreed on all of the material

terms governing their new relationship. match the precise S.E.2d 3, 7 (Va. terms of the offer. 1957) . If

An acceptance has to See Smith v. Farrell, 98

there are differences

then the

response is a counteroffer and a rejection of the offer,
creates no contract because there
to every material term. See

which
as

is no meeting of the minds
First Colonial Sav.

Chang v.

Bank,

410

S.E.2d 928,931

(Va.

1991);

Virginia Hardwood Lumber Co.

v.

21

Hughes,

124

S.E.2d 283, 70 S.E.

285

(Va.

1924);

Gibney &

Co.

v.

Arlington

Brewery Co.,

485,

487

(Va.

1911).

Plaintiff argued at

trial

that

the

February 20,

2008,

email

and attachment adopted the
Agreement, but the parties

terms of
were not

the original
in agreement

Exclusive Agencyon all aspects

of

their brokerage relationship.

Mr.

Saadeh stated in the email,
(PL's Ex. 3 at 1576.) Mr.

"You remember the concerns

I have."

Bretz replied stating,
a date

"I understand the concerns.
(Def.'s Ex. 29 at

We

should set
These

for that discussion."

2236.)

concerns,

although unspecified,

must have arisen from the parties

relationship originally created by the Exclusive Agency
Agreement. Yet it is clear that at least some of the terms

remained a source of concern for Mr.
nor Mr.

Saadeh.

Neither Mr.

Bretz

Saadeh testified that a meeting ever took place to

address the concerns or that the concerns were actually resolved. At trial, the parties did not agree as to precisely which terms
the 2008,

the parties had mutually agreed upon and which terms were source of outstanding concern. As such, the February 20,

email did not create an enforceable agreement because no meeting
of the minds occurred as to all of the material terms.
Hardwood Lumber Co., 124 S.E.2d at 285.

Virginia

Plaintiff's claim for breach of an oral contract fails for
similar reasons. Plaintiff failed to establish at trial that the

parties mutually agreed that Defendant would pay Plaintiff

22

commissions even if
lease.

Plaintiff was not

the procuring

cause

of

a

Plaintiff's breach of one

contract claim appears Plaintiff seeks

instead to be

for promissory estoppel.

to hold Defendant

liable

for breach of

contract based on Defendant's unilateral However, Virginia does not

representations and conduct.

recognize promissory estoppel as an affirmative cause of action.
W.J. Schafer Assocs. v. Cordant, Inc., 493 S.E.2d 512, 516 (Va.

1997).
of

As a result,

the Court

finds

for Defendant on the breach

contract claim because

the original Agreement expired and
occurred to create a new

because no meeting of enforceable agreement. B. Procuring Cause

the minds

The Court

finds in favor of Defendant on Plaintiff's
there was a break in continuity in

procuring cause claim because

Plaintiff's services and because Stratford University was not
ready to proceed with the transaction on Defendant's terms until after Plaintiff had already ceased work on the deal.

Under Virginia law

"a real estate broker is

the procuring

cause of a sale when it has

'originated or caused a series of

events which,

without break in their continuity,

result

in the

accomplishment of the prime object of
usually, to procure a purchaser ready,

[its]

employment,

which is,
to buy on

willing and able

the owner's terms."

Shalimar Dev.,

Inc.

v.

FDIC,

515 S.E.2d 120,

23

123 Real

(Va.

1999)

(quoting Edmonds 377

v.

Coldwell 445 (Va.

Banker Residential 1989)) (emphasis

Estate Servs.,

S.E.2d 443,

added).

Any break in the string of continuous events precludes a the sale. Id. at 123.

broker from being the procuring cause of The Fourth Circuit requires that a
the following conditions:

"procuring cause"

broker meet

It is not enough that the broker has devoted his time, labor, or money to the interest of his principal, as unsuccessful efforts, however meritorious, afford no ground of action. And it matters not that after his failure and the termination of his agency what he has done proves of use and benefit to the principal. ... He may have introduced to each other parties who otherwise would never have met; he may have created impressions which under later and more favorable circumstances naturally lead to and materially assist in the consummation of a sale; he may have planted the very seed from which others reaped the harvest; but all that gives him no claim. It was part of his risk that, failing himself, not successful in fulfilling his obligation, others might be left to some extent to avail themselves of the fruit of his labor. To entitle a broker

to commissions upon a sale or transaction which is actually
consummated,

the primary,

he must show that his efforts and services were proximate, and procuring cause thereof,

Tahir Erk v.
1944)

Glenn L.

Martin Co.,

143

F.2d 232,

236

(4th Cir.

(emphasis added).

Here,

the Court finds

that Plaintiff's procuring cause claim

fails because there was a break in continuity and because
Stratford was not ready to proceed with the transaction on Defendant's terms until after the break in continuity occurred.

24

1.

Break in Continuity

The

Court

finds

that

the

break

in continuity

in the

series

of

events

caused by Plaintiff prevents

Plaintiff

from being the

procuring cause of

the Stratford lease.

Virginia law recognizes
claim. See Where

that a break in continuity defeats a procuring cause Shalimar,
more

515

S.E.2d at
is

123

(internal citations omitted).

than one broker

involved,

[t]he broker who
of the customer

first directed the attention
to the property may relax his

efforts, with the result that a second broker may step in and by efficient and persistent work induce the customer to buy. Thus the
efforts of the second broker are the sale. To the the first risks of procuring cause of

broker this is one of the business. Atkinson,
Here,

the

inevitable

59

S.E.2d at

861-62

(internal citations omitted).
than relax its efforts; it

Plaintiff did more

completely ceased its attempts

to secure a lease with Stratford.

On April 23,
stated that,

2008,

Mr.

Bretz sent Mr.

Saadeh an email which
forward under the terms

"Stratford is

ready to move

of

the previously agreed upon letter of intent (PL's Ex. 69 at 2081.) Mr.

[the

February

LOI]." that,

Saadeh responded by stating

"[t]he old deal is dead,"

and continued to express concerns (PL's Ex. 69 at 2081.) On April
"Stratford
Mr.

about Stratford's financials.
25,
-

2008,

Mr.

Bretz emailed Mr.

Saadeh and stated that
(PL's Ex.

has moved on to another opportunity."

75.)

Bretz made no attempt

to meet with Mr.

Dovi,

the Equis brokers,

25

or Mr.

Saadeh after Mr.

Saadeh stated

that

the deal

was

dead.

(Trial Tr.,
not make 2008,

217,

July 7,

2009.)

Mr.

Bretz

testified that he did
after April 25,

further attempts

to negotiate a

the deal

because Mr.

Saadeh was

"difficult

landlord"

and because

he believed that Mr. considerations."

Saadeh was not Tr., 215,

"willing or open to make any 2009.) It is clear to

(Trial

July 7,

the Court that Plaintiff gave up on the
April 25, 2008.

Stratford deal after

It was Mr.

Peacock's efforts after Plaintiff gave up that

resuscitated the Stratford deal and led to the consummated lease.
Resuscitate is defined as
House Webster-s

"to revive
1126

from apparent death."
2000) . As to

Random

College Dictionary

(2d ed.

the

Stratford negotiations,

Mr.

Peacock did just

that.

Mr.

Peacock

testified at trial
learned that

that he met with the Stratford brokers and
security deposit.

their primary issue was with the

(Trial Tr.,

85,

July 9,

2009.)

He also met with Mr.

Saadeh on

several occasions to address his stated concerns regarding the

financial aspects of the deal and the sufficiency and level of
securitization. (Trial Tr., 85-87, July 9, 2009). Mr. Peacock

met with the parties

face-to-face as opposed to relying on email

communications because he found "communication much more

effective in a face-to-face environment to get to the root of a
problem." (Trial Tr., 87, July 9, 2009.) He further testified

that he relied on his preexisting business relationship with Mr.

26

Estey to acquire
to better standing.

financial

information about

Stratford University
financial the May

inform Mr.

Saadeh of 89-90,

the University's July 9, 2009.)

(Trial Tr.,

Finally,

LOI negotiated by Mr.
of the February LOI

Peacock proposed terms

that were not part

and that both parties

ultimately found

acceptable,

including

the

form and amount of

the

security

deposit.

(Trial Tr.,

84-85,

July 9,
lease if

2009.)
not

In fact,

the parties

would not have consummated a

for Mr.

Peacock's

efforts

following Plaintiff's

decision to cease work on the

transaction.
occurred,
cause of

As

such,

the

Court

finds
& Ellis

that a break in continuity
from being the procuring

thus preventing Grubb
the Stratford lease.

2.

Ready.

Willing, Terms

and Able

to Proceed on Potomac

Medical's

The Court also finds that Plaintiff was not
cause of the

the procuring

Stratford lease because Stratford University was not

ready to proceed with the

transaction on Defendant's terms until transaction. To receive willing and 515 S.E.2d

after Plaintiff ceased work on the commissions,

a broker must produce a tenant

ready,

able to proceed on the owner's terms.
at 123.

See Shalimar,

At trial Plaintiff argued that Stratford University was
always prepared to go through with the lease because it

ultimately did so.

Plaintiff also argued that,
to stall
27

but

for Mr.

Saadeh's bad faith efforts

the deal,

the

lease would

have

been consummated under

the

terms

of

the

February LOI.

The

Court

is unpersuaded by Plaintiff's arguments

for two

(2)

reasons.

First, with the

although Stratford was willing and able it was not ready to do so until

to go

through Peacock

lease,

after Mr.

negotiated the
Stratford was it was

transaction.
not

Mr.

Dovi

testified at trial

that

ready to proceed with the the form of the

transaction because as stated

concerned about

security deposit

in the
further

February LOI.
testified that

(Trial Tr.,

127,

July 8,
the

2009.)

Mr.

Dovi
to

Stratford understood

February LOI

require a cash security deposit,
instead provide a 8, 2009.) Mr. letter of

but

that Stratford preferred to
(Trial Tr., 123 & 127, July

credit.

Peacock

testified that he discussed with Stratford of the risk that Mr. Saadeh faced by

the nature

and extent

leasing the
(Trial Tr.,

facility to a university instead of a medical
85, July 9, 2009.) Mr. Peacock also

tenant.

testified that,

through these discussions, the amount of the

he was able

to negotiate

the

form and

security deposit as

reflected in the May LOI.

(Trial Tr.,
the

85-87,

July 9,

2009.)

The

initial

form and amount of

security deposit prevented Stratford from being ready to

proceed with the
and Mr.

transaction until after Plaintiff ceased work
for the security deposit.
to move forward

Peacock negotiated new terms
even if

Second,

Stratford had been ready

with the February LOI,

Defendant's decision to modify its terms

28

did not

reflect

bad

faith.

The

owner,

Mr.

Saadeh,

is

always

the

ultimate

authority about

under what

terms

and at

what price

it

will power

lease or sell property. is at all Mr.
the

Brokers may advise but As

the ultimate

times with the owner.

Potomac Medical's the terms
that

principal,
or lease of

Saadeh was entitled to set
property. Mr. Saadeh

for the

sale

thought

Stratford was

financially weak,

and questioned why,

despite

the

fact

that

it

did millions of dollars

in business,

the university had an (Trial Tr., 162, July 9,
financial

interim CFO and no accounting program.
2009.) He became even more

concerned about

Stratford's

strength because of
161-64, July 9,

the D&B report
He also

that he received.
it risky

{Trial Tr.,
to

2009.) as

thought it

to lease

Stratford because,

a university,

had unique build-out

needs.

(Trial Tr.,

85-86, the

July 9,

2009.)

Mr.

Saadeh was

entitled to change concerns. The

leasing terms

in order to alleviate these

February LOI was a non-binding agreement to agree

and the parties understood that neither was had executed a lease. For that reason, Mr.

obligated until

they

Saadeh's decision to

reject the terms of

the February LOI given the risk involved and As such, the

the prospective tenant was not made in bad faith.

Court finds in favor of Defendant on the procuring cause claim.

29

C.

Quantum Meruit

The Court

finds

in

favor of

Defendant on

Plaintiff's

quantum

meruit claim because it

Plaintiff

failed to prove

that

the services

rendered were of value.

To prevail on a claim for quantum

meruit,

a plaintiff must prove that (2)

it

(1)

conferred a benefit on

the plaintiff;

the defendant knew of or appreciated a benefit and (3) that the defendant accepted or
that render it

that was being conferred;

retained the benefit under circumstances

inequitable for the defendant
paying for its value. 403, 405-406 (Va. Cir.

to retain the benefit without
v. Prologis Trust, 70 Va. a Cir.

T & M Elec. Ct. 2006).

Under quantum meruit,

plaintiff is only entitled to recover the reasonable value of its
services performed. (2009). Recovery, See Mongold v. then, but Woods, 278 Va. 196, 203

is not measured by the benefit conferred the services (Va. 1942);

on the defendant, performed.

rather by the actual value of v. Sumler, 19 S.E.2d 889, 891

See Ricks

Hendrickson v. Here,

Meredith,

170 S.E.

602,

605

(Va.

1933) .

Grubb & Ellis

is not entitled to recover under quantum

meruit because there was no evidence presented at trial that the
services actually rendered by Grubb & Ellis were of any value.

As discussed above,
the Stratford lease.

Grubb & Ellis was not the procuring cause of
Consequently,
is

Grubb & Ellis

is not entitled
the value

to commissions and therefore

limited to recovery of

of the services it rendered to Potomac Medical.

The very nature

30

of

the commercial real

estate broker-principal claim here.

relationship & Ellis entered

precludes an implied contract

Grubb

into this relationship with Mr. Ellis serving as

Saadeh contingent upon Grubb & The owner, Mr.

the procuring cause of a lease.

Saadeh,

is not liable

for time spent and marketing costs because
such costs and the law will not

the owner never agreed to pay

imply such terms here where payment contemplated by the parties. Mr.

for these

services was never

Bretz

testified that Grubb &

Ellis posted listings other

for Potomac Medical Center on CoStar and created marketing materials,
{Trial Tr., 51-53,

listing services,

and set up
2009.)

an email advertising system.

July 7,

He also testified that Grubb & Ellis provided Mr. weekly reports of listing inquiries. (Trial Tr.,

Saadeh with 53, July 7,

2009.)
showing

But brokers often perform this type of work;
that the work performed had value of itself.

there was no

Furthermore,

Grubb and Ellis did not present any expert

witnesses,

produce any evidence of the

independent value of

its

services at trial,

or identify any documents in its exhibit list
the proper basis As such, for the

that establish such value or give the Court

estimating the value of the services it performed.

Court finds in favor of Defendant on the quantum meruit claim.

31

D.

Fraudulent Inducement

and Concealment

Finally,
fraudulent

the Court

finds

in favor of Defendant on the
claim because Plaintiff

inducement

and concealment

failed to prove that

it reasonably relied on any purported

misrepresentations made by Defendant or that commissions as damages.
1)

it

is entitled to

In Virginia the elements of fraud are:
2) of a material fact, 3) made

a false representation,

intentionally and knowingly,

4)

with intent

to mislead,

5)

reliance by the part misled,
misled.
Here,

and 6)

resulting damage to the party
203 (Va.
its

Bryant v.

Peckinpaugh,
that

400 S.E.2d 201,

1991).

the Court

finds

Plaintiff

failed to prove

fraudulent inducement and concealment claim for the following three (3) reasons: 1) Plaintiff did not prove a false fact; 2) Plaintiff did not

representation of a material

reasonably rely on Defendant's alleged misrepresentations;

and 3)

Plaintiff did not prove that it was entitled to commissions as
damages.

1.

False Representation of a Material

Fact

The Court finds that Plaintiff

failed to prove a false

representation of a material fact because Plaintiff did not prove that Defendant had no intention of extending the Exclusive Agency
Agreement at the time that he purportedly promised Plaintiff an extension. "Because fraud must
fact,

involve a misrepresentation of a
fraud ordinarily cannot be

present or a preexisting

32

predicated on unfulfilled promises

or

statements

regarding

future

events."

SuperValu,

Inc.

v.

Johnson,

666

S.E.2d 335,

342

(Va.

2008)

(internal citations omitted).

To prevail on an actual
a plaintiff must prove
the promise at

fraud claim based on unfulfilled promises,
that the defendant

had no intention of upholding

the time the promise was made.
v. McDevitt St. Bovis, Inc., 507

See id.;

Richmond.
348

Metro.

Auth.

S.E.2d 344,

(Va.

1998).

Here,

Plaintiff argued at trial

that Defendant

fraudulently

induced Plaintiff

to continue work on the Stratford transaction Exclusive Agency Agreement. Plaintiff

by promising to extend the

failed to prove,

however,
time

that Defendant did not intend to honor
it was made. Mr. Saadeh testified

the promise at the
that he but 9, told Mr.

that

Bretz

that he was

thinking about an extension, (Trial Tr., time 145, July

that he was 2009.) He

"considering his options."

testified that he was

taking his

to reach a

decision because some of

the promises made by Grubb & Ellis

that

led him to initially choose it as his exclusive broker never came to fruition. (Trial Tr., 147-49, July, 9, 2009.) The Court

finds that Mr.

Saadeh's indecision does not indicate that he

never intended to uphold any purported promises he made to

Plaintiff.

As such,

the Court finds that there was no

misrepresentation of a material fact.

33

2.

Reasonable

Reliance

The Court

finds

that

Plaintiff

did not

reasonably rely on

any oral misrepresentations made by Mr.

Saadeh because

Plaintiff

continued to provide

its

services with full knowledge
signed extension of

that Mr.

Saadeh never produced a Agreement. To prove

the Exclusive Agency the

fraud,

a plaintiff must demonstrate

right to reasonably rely on the misrepresentation.
Delaware v. Continental Cellular Corp., 437

Metrocall
193-94

of

S.E.2d 189,

(Va.

1993).

A plaintiff

cannot prove reasonable reliance where See
(4th

such reliance contradicts the express terms of the contract.
Foremost Guar. Corp. v. Meritor Sav. Bank, 910 F.2d 118, 126

Cir.

1990)

("there

[can]

be no reasonable reliance in the face of
language.").

plainly contradictory contractual

Here,

Plaintiff

failed to prove that it continued to provide

its brokerage services in reasonable reliance on Defendant's assurance of receiving a signed extension. Plaintiff knew that

the original Agreement had already expired before the parties
executed any purported extension. As discussed above, the

Exclusive Agency Agreement was valid through October 31,
unless renewed by mutual written agreement.
Some three months later, on January, 31,

2007,
1 % 9.)

(PL's Ex.
Ms.

2008,

Padgett sent

Mr.

Saadeh an email acknowledging that
for Potomac Medical

w[t]he original listing
this

agreement

Center expired in October of

year."

(PL's Ex.

2

at

1384.)

After the expiration of the

34

Exclusive Agency Agreement,

no brokerage

agreement

existed

between from Mr.

the parties. Saadeh on

Plaintiff

requested a

letter of

extension through

several
Ex. 2

occasions
at 1384;

from October 2007
PL's Ex. 26 at

February 2008.

(PL's

1408.)

Plaintiff

never received a

signed extension,

yet

Grubb

& Ellis, services ceased

a

sophisticated brokerage on behalf of work on the hopes

business,

continued to provide & Ellis could have

Potomac Medical.

Grubb

transaction but continued instead to work it would receive a signed,

in the

that one day

written agreement.

It did so at
v. Mathews,

its own risk.
38 Vir. Cir. 370

See

Virginia Business Exchange,
Cir. Ct. 1996) (broker's

Inc.
claims

(Va.

for commission based on allegation of a promise listing agreement denied because
in the business of brokering to stay the

to renew a

".

.

.it

is plaintiff which is
and which

selling of businesses It

relies on commissions

in business.

should have done a

better job of protecting

its

interests here.").

Grubb & Ellis's

decision to continue work despite the absence of a signed written agreement was a risk that it took, but that risk does not

constitute reasonable reliance.

Therefore,

the Court

finds

that

Plaintiff's reliance was unreasonable.

35

3.

Damages

Even if Defendant did make
finds that Grubb & Ellis

false representations,

the Court
to a

failed to prove an entitlement To recover under a fraud claim,

commissions as damages.

plaintiff must prove damages caused by his detrimental
on the defendant's material misrepresentations.

reliance

See Murray v.

Hadid,

385 S.E.2d 898,

903

(Va.

1985)

(internal citations

omitted).

The usual remedy for fraud is

to restore the injured
fraud. See id. at

party to the position it held prior to the

904.

A Plaintiff may,

however,

recover prospective profits upon See 550

a showing that he is entitled to those profits as damages. id. (Va. (citing Manss-Owens Co. 1921)). "%It is well v. Owens & Son, . . 105 S.E.2d 543, .

settled that if
.

prospective profits there

are not recoverable

in any case
.

it

is uncertain that
Id.

would have been any profits.

.'"

(quoting Sinclair v.

Hamilton & Dotson, Here,

178

S.E.

777,

780

(Va.

1935)). fails to prove its it is

the Court (2)

finds

that Plaintiff First,

damages for two

reasons.

Plaintiff asserts

that

entitled to commissions as damages because Defendant falsely
represented that Plaintiff would receive commissions if it

continued work on the Stratford transaction.

As mentioned above,

Plaintiff was not the procuring cause of a lease and therefore is
not entitled to commissions as damages.

36

Second,

other

than commissions,

Plaintiff presented no

evidence of

fraud damages

that

it

is entitled to.

Although the it must

plaintiff need not prove show sufficient
to make

the exact amount of

its damages, the

facts and circumstances

to permit

factfinder

a reasonable estimate of

its damages.

See Goldstein v.

Kaestner, omitted). witnesses
assign in

413

S.E.2d 347,

349-50

(Va.

1992)

(internal

citations

Here,

Grubb and Ellis

did not present any expert its services, did not
in

to testify as
its

to the value of

initial disclosure a value,

did not produce

discovery evidence of
documents in its

any value,
list

and did not

identify any
In

exhibit

that

establish such value.

short,
Court

Grubb & Ellis
finds

failed to prove
Defendant on

fraud damages.
Plaintiff's

As

such,

the

in favor of

fraud claim.

IV.

CONCLUSION

The Court

finds

in

favor of Defendant

on all

four

(4)

of

Plaintiff's claims.

First,

the Court

finds

in favor of Defendant

on Plaintiff's breach of

contract claim because the Exclusive
2007, and

Agency Agreement automatically expired on November 1,

the parties'
agreement.

subsequent
Second,

conduct did not create a new enforceable
finds in favor of Defendant on

the Court

Plaintiff's procuring cause claim because a break in the
continuity of Plaintiff's services occurred and Stratford was not

prepared to proceed on Potomac Medical's

terms until after the

37

break

in continuity.

Third,

the

Court

finds

in

favor of

Defendant on

Plaintiff's

quantum meruit

claim because

Plaintiff

failed to prove that
any value. Fourth,

the services it actually performed were of
the Court finds in favor of Defendant on

Plaintiff's
trial

fraud claim because

Plaintiff

failed to prove at

that Defendant never because

intended to extend the brokerage for Plaintiff to rely on

agreement;

it was unreasonable

any representations not contained in a signed written agreement;
and because Plaintiff
recover damages.

failed to prove
it is

that

it

is entitled to

Therefore,

hereby

ORDERED that

a VERDICT IS ENTERED in favor of Defendant

Potomac Medical Building,

LLC,

on Plaintiff Grubb & Ellis
procuring cause, quantum meruit,

Company's breach of contract,
and fraud claims.

The Court will enter a separate Federal Rule of Civil
Procedure 58 Amended Judgment Order.

The Clerk is directed to forward a copy of
counsel.

this Order to

Entered this r I day of September, 2009.

Alexandria,

Virginia

09/

^H /09
I

A

Gerald Bruce Lee

United States District Judge

38