Grubb & Ellis Company v. Potomac Medical Building, LLC
Filing
97
MEMORANDUM OPINION FINDING in favor of Defendant, Potomac Medical Building, Inc., on all four (4) of Plaintiff's claims, and ORDERING that a VERDICT IS ENTERED for Defendant on Plaintiff Grubb & Ellis Company's breach of contract, procuring cause, quantum meruit, and fraud claims. The Court will enter a separate Federal Rule of Civil Procedure Rule 58 Judgment Order. /s/ by District Judge Gerald Bruce Lee on 8/21/09. (tbul, )
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
Grubb & Ellis Company,
Plaintiff,
)
)
)
)
VPotomac Medical Building,
Defendant.
)
LLC, )
) )
Case No. 1:O8CV971(GBL)
MEMORANDUM OPINION
THIS MATTER is before the Court for a bench trial.
case concerns Plaintiff Grubb & Ellis Company's breach of
This
contract, procuring cause,
quantum meruit,
and fraud claims
against Defendant Potomac Medical Building, LLC, for refusing to
pay Plaintiff commissions following the consummation of a
commercial leasing deal.
There are five (5)
issues before the
Court.
The first issue is whether the parties' Exclusive Agency
Agreement was still in effect when the lease was signed on July
14,
2008, where, by its express terms,
2007,
the Agreement expired on
November 1,
but Defendant sent Plaintiff an email on
February 20, 2008, which stated,
second issue is,
"Here's the extension."
The
if the original Agreement had in fact expired,
whether the February 20, 2008, email and the parties' subsequent
course of dealings with each other created a new, enforceable
contract. The third issue is whether Plaintiff was the procuring
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 fourth issue is, in
the absence of an enforceable contract, whether Plaintiff is
entitled to commissions under a quantum meruit theory where Plaintiff was not the procuring cause of the Stratford lease but
conducted negotiations with Stratford and provided advertising services. The fifth issue is whether Defendant fraudulently
concealed its intentions and fraudulently induced Plaintiff into
continuing to work on the Stratford lease where Defendant
indicated its intent to extend the Agreement and continued to
direct Plaintiff to act on its behalf, but never actually signed
an extension to the Exclusive Agency Agreement.
The Court finds for Defendant on all five
(5)
issues of
fact.
First, the Court finds that the Exclusive Agency Agreement
2007, because the express
automatically expired on November 1,
terms of the Agreement provided that it "shall be renewable upon
mutual written agreement," but no written extension was executed
prior to its expiration date.
Second, the Court finds that the
February 20, 2008, email and the parties' subsequent conduct did
not create a new contract because the parties never signed the
extension, they disputed the language contained therein, and
unresolved concerns remained even after Defendant sent the email,
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
Studley intervened and negotiated new material terms acceptable
to both Defendant and Stratford University. Fourth, the Court
finds that Plaintiff is not entitled to recover under a quantum
meruit theory because Plaintiff presented no evidence at trial
showing that the services it actually performed were of any
value. Fifth, the Court finds that Defendant did not
fraudulently conceal its intentions or induce Plaintiff to continue its work because: l) Plaintiff failed to prove that
Defendant never intended to extend the brokerage agreement; 2) it
was unreasonable for Plaintiff to rely on any representations not
contained in a signed written agreement; and 3) Plaintiff failed
to prove that it is entitled to recover commissions or some other
amount as damages.
I.
FINDINGS OF FACT
A.
The Exclusive Agency Agreement
Between October of 2006 and December 18, 2006, Plaintiff
Grubb & Ellis Company ("Grubb & Ellis") and Defendant Potomac
Medical Building, LLC ("Potomac Medical") exchanged four versions
of the Exclusive Agency Agreement (Agreement") before reaching a
final agreement as to the terms and conditions of the
representation. On December 28, 2006, Ms. Jessica Padgett of
Grubb & Ellis sent Mr. Emad Saadeh, the principal of Potomac Medical, a final executed copy of the fourth version of the
Agreement with all initials and signatures intact. 22.)
(Def.'s Ex.
The fully executed and final version of the Exclusive
Agency Agreement contained the following material provisions
relevant to this lawsuit:
i.
prospective purchasers and tenants shall be
discretion."
H 2 provided that, "All sale/lease agreements and
subject to the approval of the Owner in its sole
ii.
1 3 ® of the Agreement stated:
"Notwithstanding other provisions of this Agreement, G&E shall cooperate with and encourage other real estate brokerage firms to secure purchasers/tenants for the property."
iii.
f 6 of the Agreement provided: The Owner agrees to compensate G&E for services rendered pursuant to this Agreement according to
the following commission schedule:
LEASES
(a)
base rental stipulated in the fully
executed leases.
Where G&E is the sole procuring broker in the transaction, G&E shall be paid four percent (4%) of the total aggregate
(b)
When a cooperating broker is involved, defined as any broker other than those
(as defined in Section 8), G&E shall be paid six percent (6%) of the total
fully executed leases. The cooperating broker shall be paid three percent (3%) of the total aggregate base rental out
of the proceeds paid to G&E.
aggregate base rental stipulated in the
named as members of the Marketing Team
iv.
H 9 of the Agreement stated: This Exclusive Agency Agreement shall be effective
as of the above date and it shall continue in full force and effect through October 31, 2007, and shall be renewable upon mutual written agreement.
reason without penalty upon thirty (30) days prior written notice to the other party. In the event of cancellation, G&E shall have the right to provide Owner with a list of bona fide prospects with whom there is an active interest in the Property. This prospect list must be provided within fifteen business (15) days after the effective date of the termination.
G&E shall have six (6) months in which to
Either party may terminate this Agreement for any
parties,
consummate an agreement with such registered
obligation to pay a commission under the terms of this Agreement. Termination of this Agreement shall not relieve either party of its financial obligation to pay a commission under the terms of
this Agreement.
(PI.'s Ex. 1.)
after which time Owner shall have no
By November 1,
2007,
the date that the Exclusive Agency
Agreement was set to expire,
the parties had not executed a
renewal by mutual written agreement.
However,
the parties
continued to work with one another.
Grubb & Ellis continued to
provide brokerage services and remained listed as the agent for
Potomac Medical's property on CoStar, while Potomac Medical
continued its construction of the building.
At that time there
were no active prospective tenants for the building.
B.
"Extension" of the Exclusive Agency Agreement
In January 2008, Mr. Ed Bretz of Grubb & Ellis realized the
Exclusive Agency Agreement had not been renewed and instructed
Ms. Padgett to follow up with Mr. Saadeh to extend the Agreement.
On January 31, 2008, Ms. Padgett sent Mr. Saadeh an email that
stated, "The original listing agreement for Potomac Medical
Center expired in October of this year [sic].
We overnighted an
2007, and have
I have
23.) Mr.
extension letter to your attention on October 5,
not received a fully executed version for our files.
attached both documents for your review."
(Def.'s Ex.
Keith Lipton, Executive Vice President and Managing Director of
Grubb & Ellis's Washington, D.C., offices, signed the October 5,
2007, proposed extension letter just as he had signed the
original Exclusive Agency Agreement.
contained a line for Mr.
The proposed letter also
Saadeh's signature.
Subsequent to Ms.
Padgett's email,
Mr. Bretz repeatedly
asked Mr. Saadeh by email for return of the extension letter,
once on February 4, 2008 (Def.'s Ex. 26), and again on February
19,
2008
{Def.'s Ex.
27).
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 for an additional eighteen months.
Tr., 152-53, July 9, 2009.)
(Trial
Mr. Saadeh wanted a proactive broker
who would take charge to get the building leased despite the
slowing economy. (Trial Tr., 152-53, July 9, 2009.) He did,
however, express a willingness to enter into an agreement that
would protect Grubb & Ellis's right to a commission if Mr. Bretz
drafted an agreement that specifically addressed commissions.
(Trial Tr., 145, July 9, 2009.) Mr. Bretz never drafted an
the only
agreement that specifically dealt with commissions;
draft agreement sent to Mr. Saadeh was the October 5,
proposed extension letter. {Def.'s Ex. 23.)
2007,
On February 20,
2008,
at 11:46 a.m.,
Mr.
Saadeh sent Mr.
Bretz an email that stated,
"Here's the extension.
You remember
the concerns that I have."
letter, however, stated,
{Def.'s Ex.
28.)
The attached
"please accept this letter as our intent
to extend Grubb and Ellis listing agreement throughout the
Stratford University transaction."
(Def.'s Ex.
28.) Mr.
Although Saadeh
the letter contained a place for his signature,
intentionally left the letter unsigned to secure further conversation about his concerns.
Mr. Bretz realized that Mr.
(Trial Tr.,
175,
July 9,
2009.)
Saadeh's letter was insufficient (Trial. Tr., 198-200,
to act as an extension of the Agreement.
July 7,
2009.)
On February 20,
2008,
at 1:23 p.m., Mr. 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.)
Just over four hours later,
on
February 20, 2008, at 5:57 p.m., Mr. Bretz again emailed Mr.
Saadeh, this time asking him to 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,
Stratford University.
.
.
.»
{Def.'s Ex. 31.)
Mr. Saadeh
neither signed nor modified the letter as requested.
Furthermore, the parties never exchanged a signed extension
letter, either the version produced Mr. Saadeh or the October 5,
2007, extension letter signed by Mr. 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, bachelor, and master degree
programs with two campuses, one in Falls 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, represented
Stratford University.
Center.
The Equis brokerage team contacted Grubb &
Ellis to express Stratford's interest in the Potomac Medical
On February 27, 2008, Stratford University and Potomac
Medical executed a non-binding proposal to lease, or letter of
intent ("February LOI").
{Def.'s Ex. 66.)
Among other things,
the February LOI contained a clause that stated, "Neither
Landlord nor Tenant shall have any obligations regarding any
provision set forth in this proposal unless a lease agreement is
executed by both parties." {Def.'s Ex. 66.)
Despite the execution of the February LOI, Mr. Saadeh had
concerns about Stratford as a potential tenant. Mr. Saadeh
believed that Stratford was financially weak, and questioned why
a university that conducted its level of business lacked an
accounting program and had only an interim chief financial
officer.
(Trial Tr., 162, July 9, 2009.)
He questioned why it
had been in business for thirty years yet had no retained
earnings to speak of. {Trial. Tr., 163, July 9, 2009.) He was
also concerned because, as a university, Stratford was a unique
tenant with unique tenant improvement needs.
July 9, 2009.)
(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 in Stratford
University's credit rating.
(Trial Tr., 61, July 9, 2009.)
Mr.
Saadeh immediately forwarded the email alert to his broker at
Grubb & Ellis and to Stratford University's broker, Mr. Tillery.
{Def.'s Ex. 67.)
At some point during that week, Mr. Saadeh met with Mr. John
Dovi, the acting Chief Financial Officer {«CFO") for Stratford
University, along with Mr. 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
and their broker but he made no effort to engage Mr. Saadeh about
whether he should attend the meeting.
On March 12, 2008, the Wednesday of the following week, Mr.
Bergstrom sent Mr. Saadeh an outline of concerns with Stratford
University and noted the possibility of taking steps to enhance the security of the deal to include asking for personal
10
guarantees, obtaining a substantial letter of credit, or having
Stratford University take responsibility for the tenant
improvement {"build-out").
(Def.'sEx. 69.)
Mr. Saadeh
incorporated parts of the comments he received from Mr. Bergstrom
and sent the comments to Mr. Bretz and asked that Mr. Bretz
forward the information to Dr. Richard Shurtz, the President of
Stratford University and to Stratford's brokers at Equis.
(Def.'s Ex. 70 at 1746.)
Mr. Saadeh had, however, already copied
Mr. Estey, who in turn forwarded the draft comments to Stratford
University.
(Def.'s Ex. 71.)
Saadeh.
Mr. Bretz did not send the letters
as directed by Mr. D.
Breakdown in Stratford Negotiations
On Friday,
March 14,
2008, Mr. Saadeh met with Dr. Shurtz
and Mr. Estey to discuss the concerns outlined in the comments
forwarded to the University by Mr. Estey.
March 17,
The following Monday,
2008, Mr. Saadeh requested that Stratford University
fund the build-out, a change from the terms of the February LOI
which provided for $40.00 per square foot in tenant improvement.
(Def.'s Ex. 74.) in return, Mr. Saadeh would drop the rental
rate from $25.00 per square foot to $22.00 per square foot.
(Def.'s Ex. 74.)
Mr. Bretz did not do anything to look into the
reasons for Potomac Medical's request for additional
securitization of its investment in build-out or to advocate the
reasonableness of Mr. Saadeh's position to Stratford.
11
Stratford University and its brokers treated Mr. Saadeh's
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 $22.30 per square
foot.
(PL's ex. 47.)
on March 19, 2008, Mr. Dovi concluded the
new offer was not acceptable and that Stratford no longer had an
interest in the property.
(PL's Ex. 48.)
At that point, for
all intents and purposes, the non-binding February LOI was a dead
deal.
With the deal dead, on March 25, 2008, Mr. Bretz emailed Mr.
Saadeh to confirm he had spoken to a prospective tenant for the
property and sent Mr. Saadeh an attached proposal.
On March 25, 2008, Mr. Saadeh forwarded Mr. Peacock copy of
the February LOI to develop a submission to Potomac Hospital.
(PL's Ex. 49.)
on March 27, 2008, Mr. Peacock completed a draft
proposal to be hand delivered to Potomac Hospital the following
day, March 28, 2008.
On April 2, 2008, Mr. Peacock emailed Ms.
Michele Eckhardt of Potomac Hospital a financial analysis for the
proposal for lease with Potomac Hospital.
On April 2, 2008, Mr. Saadeh and Mr. Peacock, in an email
string, discussed the importance of keeping Potomac Hospital's
interest in leasing space confidential and affirming that Mr.
12
Saadeh would honor the two small deals that G&E was still
handling.
(Pl.'s Ex. 57.)
Both Mr. Saadeh and Mr. Peacock, in
their efforts to interest Potomac Hospital, did not want to publicize the Hospital's potential interest 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. (Def.'s Ex.
91.)
Mr. Saadeh believed that the Exclusive Agency Agreement was
a 12-month commitment with a six month "tail" provision whereby any deals successfully consummated within the six months warranted the payment of commissions. (Trial Tr., 152, July 9,
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
of the listing agreement if a lease is consummated within six (6) months of the termination of the
listing.
serve as acknowledgment of termination of the listing. . . . Grubb & Ellis shall be compensated per the terms
(Def.'s Ex. 92 at 1952.
Grubb & Ellis failed to acknowledge or
discuss the statement made by Mr. Saadeh that the Exclusive
Agency Agreement had expired and the registration period was also
13
coming to an end.
(Def.'s Ex.
92.)
On May 16, 2 008, Mr. Saadeh wrote a letter to dispute the
assertion in the April 17 attachment that the six-month period would run from April, repeating his position that the Exclusive
Agency Agreement expired in November 2007.
On June 9,
(Def.'s Ex. 32B.)
2008, Mr. Lipton wrote back to Mr. Saadeh and
acknowledged that the Exclusive Agency Agreement had expired and
was not renewed but asserted that continued representation by
Grubb & Ellis entitled it to claim a commission.
33.)
{Def.'s Ex.
On April 22,
2008,
a week after Potomac Medical ended Grubb
& 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
14
acceptable, Mr. Estey advised Stratford that it was "definitely
time to move on."
(Defi.'s Ex. 103.)
Mr. Dovi replied that he
would send word that Stratford was no longer considering Potomac
Medical's property, stating, «l will communicate on this end that
there will be no more talk of Emads [sic] location."
103.)
(Def.'s Ex.
At that point, Stratford University no longer considered
Potomac Medical Building to be a viable option for Stratford.
The previous day, Mr. Dovi had stated in an email to Mr. Flaggert
and Dr. Shurtz that he thought that Mr. Saadeh was simply using
Stratford as leverage to negotiate a better deal with Potomac
Hospital.
{Def.'s ex. 102.)
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 University had "moved on to another opportunity."
75.)
(Pl.'S Ex.
Grubb and Ellis made no effort to explore alternative
options with Stratford University.
Mr. Bretz did not meet with
{Trial
the Equis brokers, with Dr. Shurtz, or with Mr. Dovi.
Tr., 217, July 7, 2009.)
Mr. Bretz did not meet with Mr. Saadeh
because he found Mr. Saadeh "difficult."
7, 2009.)
{Trial Tr., 215, July
15
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." 132.)
(Def.'s Ex.
On May 6, 2008, Mr. Peacock emailed the brokers for
Stratford University asking for Stratford University's 2007 tax
returns. {Def.'s Ex. 133.) From May 9, 2008 through May 12,
2008, Mr. Peacock provided Mr. Saadeh with financial summaries
relating to the Stratford deal.
{Def.'s Ex. 135.)
He relied on
his preexisting business relationship with Mr. Estey to acquire financial information about Stratford University to better inform
Mr. Saadeh of the University's financial standing. July 9, 2009.) On May 13, (Trial Tr.,
89-90,
2008, Mr. Peacock emailed a
proposal
("May LOI")
to Stratford's brokers that increased the (Def.'s Ex.
security deposit from $650,000 to $1,142,307.00.
139.)
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 in
negotiations and working towards a lease.
Despite 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. {Def.'s Ex. 162.) The final lease
contained terms different from the May LOI.
{Def.'s Ex.
13 9.)
16
The May LOI (Def.'s Ex. 139) contained terms different from the
February LOI (Def.'s Ex. 66).
Potomac Medical paid Stratford's broker a total of
$495,708.13 in commissions, which reflected a four percent (4%)
commission. {Def.'s Ex. 167.) Potomac Medical paid Studley a
total of $261,817.47 in commissions, which reflected a two
percent (2%) commission. (Def.'s Exs. 166 & 169.) Potomac
Medical did not pay Grubb & Ellis a commission.
II.
STANDARD OF REVIEW
A plaintiff alleging breach of contract, procuring cause, or
quantum meruit must prove each element of its claim by a
preponderance of the evidence. Energy Techs., Inc.,
See MDM Assocs. 115
v. Johns Bros.
63 Va. Cir. 113,
(Va. Cir. Ct. 2003)
(breach of contract); Atkinson v. S. L. Nusbaum & Co., 59 S.E.2d
857, 860 (Va. 1950) (procuring cause) (internal citations
omitted); NVC3 Group v. Plexus Scientific, 2006 Va. Cir. LEXIS
71, *1 (Va. Cir. Ct. Apr. 7, 2006) (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
17
Ill.
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, 2007, by its express terms and because the February 20, 2008, email and the parties'
subsequent conduct did not create a new enforceable agreement
since no meeting of the minds occurred.
1jBreach of Exclusive Agency Aareemenh
The Court finds that Defendant did not breach the Exclusive
Agency Agreement because the Agreement was not renewed in the
required manner and therefore expired on November 1, 2007.
A contract is "an agreement between two or more persons that
creates an obligation to do or not to do a particular thing."
Buchanan v. Doe, 431 S.E.2d 289, 292,
(Va.
1993)
(internal
citations omitted).
To determine a contract's terms, a court
looks to the "four corners" of the agreement to construe or
interpret the parties' intentions. Double Diamond Props., LLC v.
Amoco Oil Co., 487 F. Supp. 2d 737, 744
Transp. Cas. Ins. Co., 650 S.E.2d 699,
(E.D. Va. 2007); Heron v.
702 (Va. 2007).
"A court is not at liberty to rewrite a contract simply
because a contract may appear to reach an unfair result."
v. Yourshaw, 448 S.E.2d 884, 888 (Va. Ct. App. 1994)
Rogers
(internal
citations omitted).
Where the agreement is plain and unambiguous
18
in its terms, the rights of the parties are to be determined from
the terms of the agreement and the court may not impose an
obligation not found in the agreement itself.
450 S.E.2d 762, 764 (Va. Ct. App. 1994)
omitted).
Jones v. Jones,
(internal citations
Here, the Court finds that the Exclusive Agency Agreement
expired on November 1, 2007.
By its express terms, the Agreement
was to continue in full force and effect through October 31,
2007, unless renewed in writing prior to its expiration.
{PL's
Ex. l, \ 9.)
The Agreement stated that it was "renewable upon
(PL's Ex. 1, fl 9.) Therefore, the
mutual written agreement."
Agreement automatically expired on November 1, 2007, unless the parties mutually agreed to extend it in writing prior to the expiration date. Furthermore, because the Agreement
automatically expired on November 1, 2007, the six-month lease
consummation period expired on May 1, 2008.
At trial, however, Mr. Bretz testified that the parties
never executed a written extension prior to the November 1, 2007,
expiration date.
In fact, the only written instrument that
purported to extend the Agreement, the email and attachment from
Mr. Saadeh, was executed on February 20, 2008, nearly four months
after the Agreement expired. (PL's Ex. 3 at 1576.) In
addition, the parties did not enter into the Stratford lease
until July 14, 2008, over two months after the six-month period
19
ended.
(Def.'s Ex.
162.)
Plaintiff argued at trial that the parties had verbally agreed to an extension, but Plaintiff identified no contract
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
parties had even discussed such a modification.
As such, the
Court finds that Defendant could not have breached the Exclusive
Agency Agreement because it expired on November 1, 2007.
2_s. Breach of 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 subsequent conduct operated to create a new
agreement. To create a contract there must be an offer and
acceptance, with valuable consideration.
Montagna v. Holiday
Inns, inc., 269 S.E.2d 838, 844 (Va. 1980).
To be valid and
enforceable, a contract must be certain and the minds of the parties must meet in mutual agreement on every material phase constituting the agreement. Belmont v. McAllister, 81 S.E. 81,
87 (va. 1914).
«The minds of the parties must wholly meet, not
partially meet.
The agreement must be integral, not fractional.
The unity of the concordance must be reached by the parties, not
imposed by the court. A court is no oracle to divine assent
where assent is wanting."
Dickerson v. Conklin, 235 S.E.2d 450,
20
455
(Va.
1977)
(internal citations omitted).
2008, email, the Court finds
Here,
as to the February 20,
that no contract formed because no meeting of the minds occurred
for two (2)
reasons.
First,
the parties never executed a signed,
2007, Ms. Padgett sent Mr.
(PL's
Saadeh
written agreement.
On October 5,
Saadeh an extension letter to sign via overnight mail.
Ex. 2 at 1384.) On January 31, 2008, Ms.
Padgett sent Mr.
a follow-up email which again asked him to sign an extension
letter.
{PL's Ex.
2 at 1384.)
However,
instead of signing the
letter drafted by Grubb & Ellis, Mr.
Saadeh drafted his own
letter and attached it to the February 20,
Ex. 3 at 1577.) Although the February 20,
2008,
2008,
email.
(PL's
email stated,
"Here's the extension,"
the attachment stated,
"please accept
this letter as our intent to extend Grubb and Ellis listing
agreement throughout the Stratford University transaction."
(PL's Ex. 3 at 1577)
(emphasis added).
Mr. Bretz responded by
[C]ould you sign
(Def.'s Ex. 29 at
email hours later, stating,
the extension please [?]
"One small detail.
The attached wasn't."
2236.)
Mr. Saadeh never signed the extension.
That evening, Mr.
Bretz emailed Mr. Saadeh and asked him to amend the language to
read "please accept this letter as an extension of the listing
agreement . . ." (Def.'s Ex. 31 at 147) (emphasis added). Mr.
Saadeh never amended the language.
A letter stating future
intent does not create a presently enforceable agreement.
21
Second, the parties never agreed on all of the material
terms governing their new relationship.
An acceptance has to
match the precise terms of the offer.
S.E.2d 3, 7 (va. 1957).
See Smith v. Farrell, 98
if there are differences then the
response is a counteroffer and a rejection of the offer, which
creates no contract because there is no meeting of the minds as
to every material term.
See Chang v. First Colonial Sav. Bank,
410 S.E.2d 928,931 (Va. 1991); Virginia Hardwood Lumber Co, v.
Hughes, 124 S.E.2d 283, 285 (Va. 1924); Gibney & Co. v. Arlington
Brewery Co., 70 S.E. 485, 487 (Va. 1911).
Plaintiff argued at trial that the February 20, 2008, email
and attachment adopted the terms of the original Exclusive Agency
Agreement, but the parties were not in agreement on all aspects
of their brokerage relationship.
Mr. Saadeh stated in the email,
(Def.'s Ex. 28 at 1022.)
"You remember the concerns I have."
Mr. Bretz replied stating,
"I understand the concerns.
We should These
set a date for that discussion."
(Def.'s Ex. 29 at 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. Saadeh.
Neither Mr. Bretz
nor Mr. 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
22
the parties had mutually agreed upon and which terms were the
source of outstanding concern. As such, the February 20, 2008,
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 commissions even if Plaintiff was not the procuring cause of a
lease.
Plaintiff's breach of contract claim appears instead to be
one for promissory estoppel. Plaintiff seeks to hold Defendant
liable for breach of contract based on Defendant's unilateral
representations and conduct. However, Virginia does not
recognize promissory estoppel as an affirmative cause of action.
W.J. Schafer Assocs. v. Cordant, Inc., 493 S.E.2d 512, 516 (Va.
1997).
As a result,
the Court finds for Defendant on the breach
of contract claim because the original Agreement expired and
because no meeting of the minds occurred to create a new
enforceable agreement.
23
B.
Procuring Cause
The Court finds in favor of Defendant on Plaintiff's
procuring cause claim because there was a break in continuity in 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,
[its]
employment, which is,
to procure a purchaser ready, willing and able to buy on
Inc. v. FDIC, 515 S.E.2d 120,
the owner's terms." Shalimar Dev., 123 (Va. 1999) {quoting Edmonds v. 377 S.E.2d 443,
Coldwell Banker Residential 445 (Va. 1989)) (emphasis
Real Estate Servs.,
added).
Any break in the string of continuous events precludes a Id. at 123.
broker from being the procuring cause of the sale.
The Fourth Circuit requires that a "procuring cause" broker meet
the following conditions:
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,
24
failing himself, not successful in fulfilling his obligation, others might be left to some extent to avail
consummated,
themselves of the fruit of his labor. To entitle a broker to commissions upon a sale or transaction which is actually
the primary, proximate, and procuring cause thereof.
he must show that his efforts and services were
Tahir Erk v. Glenn L. Martin Co., 143 F.2d 232, 236
1944) (emphasis added).
{4th Cir.
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.
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
that a break in continuity defeats a procuring cause claim.
See
Shalimar, 515 S.E.2d at 123
more than one broker is
(internal citations omitted).
Where
involved,
of the customer 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 procuring cause of the sale. To the first broker this is one of the inevitable risks of
the business.
[t]he broker who first directed the attention
Atkinson,
Here,
59 S.E.2d at 861-62
(internal citations omitted).
it
Plaintiff did more than relax its efforts;
completely ceased its attempts to secure a lease with Stratford.
25
On April 23,
2008,
Mr. Bretz sent Mr.
Saadeh an email which
stated that,
"Stratford is ready to move forward under the terms
of the previously agreed upon letter of intent
[the February
LOI]."
that,
(PL's Ex. 69 at 2081.)
Mr. Saadeh responded by stating
w[t]he old deal is dead," and continued to express concerns
(PL's Ex. 69 at 2081.) On April
about Stratford's financials.
25, 2008, Mr. Bretz emailed Mr. Saadeh and stated that "Stratford - has moved on to another opportunity." (PL's Ex. 75.) Mr.
Bretz made no attempt to meet with Mr. Dovi,
or Mr. Saadeh after Mr.
the Equis brokers,
Saadeh stated that the deal was dead.
(Trial Tr., 217, July 7, 2009.)
Mr. Bretz testified that he did
not make further attempts to negotiate the deal after April 25, 2008, because Mr. Saadeh was a "difficult landlord" and because
he believed that Mr. Saadeh was not "willing or open to make any
considerations."
(Trial Tr., 215, July 7, 2009.)
It is clear to
the Court that Plaintiff gave up on the Stratford deal after
April 25, 2008.
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 "to revive from apparent death." Random
House Webster's College Dictionary 1126 (2d ed. 2000) . As to the
Stratford negotiations, Mr. Peacock did just that.
Mr. Peacock
testified at trial that he met with the Stratford brokers and
learned that their primary issue was with the security deposit.
26
(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.
Estey to acquire financial information about Stratford University
to better inform Mr. Saadeh of the University's financial
standing.
(Trial Tr.,
89-90, July 9, 2009.)
Finally,
the May
LOI negotiated by Mr. Peacock proposed terms that were not part
of the February LOI and that both parties ultimately found
acceptable, including the form and amount of the security
deposit.
(Trial Tr.,
84-85, July 9,
2009.)
In fact, the parties
Peacock's
would not have consummated a lease if not for Mr.
efforts following Plaintiff's decision to cease work on the transaction.
occurred,
cause of
As such,
the Court finds that a break in continuity
thus preventing Grubb & Ellis from being the procuring
the Stratford lease.
27
2-l.
Ready.
Willing,
and Able to Proceed on Potomac
Medical's Terms
The Court also finds that Plaintiff was not the procuring cause of the Stratford lease because Stratford University was not ready to proceed with the transaction on Defendant's terms until
after Plaintiff ceased work on the transaction.
To receive
commissions,
a broker must produce a tenant ready,
willing and 515 S.E.2d
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,
but for Mr.
Saadeh's bad faith efforts to stall the deal,
the lease would The
have been consummated under the terms of the February LOI.
Court is unpersuaded by Plaintiff's arguments for two
reasons.
(2)
First, although Stratford was willing and able to go through with the lease, it was not ready to do so until after Mr. Peacock
Mr. Dovi testified at trial that
negotiated the transaction.
Stratford was not ready to proceed with the transaction because
it was concerned about the form of the security deposit as stated
in the February LOI. {Trial Tr., 127, July 8, 2009.) Mr. Dovi
further testified that Stratford understood the February LOI to
require a cash security deposit, but that Stratford preferred to
instead provide a letter of credit.
28
(Trial Tr., 123 & 127, July
8,
2009.)
Mr.
Peacock
testified that he discussed with Stratford
the nature and extent of leasing the (Trial Tr.,
the
risk that Mr.
Saadeh faced by tenant.
facility to a university instead of a medical 85, July 9, 2009.) Mr.
Peacock also testified that, to negotiate the form and
through these discussions,
the amount of the
he was able
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 ceased work
proceed with the transaction until after Plaintiff
and Mr. Peacock negotiated new terms even if for the
security deposit. forward
Second,
Stratford had been ready to move
with the
February LOI,
Defendant's decision to modify its
terms
did not reflect bad faith.
The owner,
Mr.
Saadeh,
is always
the it
ultimate authority about under what will lease or sell property.
power is at all
terms and at what price
Brokers may advise but the ultimate
As Potomac Medical's
times with the owner.
principal, or lease of
Mr.
Saadeh was
entitled to set Mr.
the terms
for the sale
the property.
Saadeh thought that Stratford was
financially weak,
and questioned why, in business,
despite the fact
that it
did millions of dollars
the university had an
interim CFO and no accounting program. 2009.)
(Trial Tr.,
162,
July 9,
He became even more concerned about Stratford's financial
of the D&B report that he received. (Trial Tr.,
strength because
161-64,
July 9,
2009.)
He also thought
it risky to lease
to
29
Stratford because, needs. (Trial Tr.,
as a university, 85-86, July 9,
it had unique build-out 2009.) Mr. Saadeh was
entitled to change the leasing terms in order to alleviate these
concerns. The February LOI was a non-binding agreement to agree
and the parties understood that neither was obligated until they
had executed a lease.
For that reason,
Mr.
Saadeh's decision to
reject the terms of the February LOI given the risk involved and
the prospective tenant was not made in bad faith. As such, the
Court finds in favor of Defendant on the procuring cause claim.
C. Quantum Meruit
The Court finds in favor of Defendant on Plaintiff's quantum
meruit claim because Plaintiff failed to prove that the services
it rendered were of value. meruit,
To prevail on a claim for quantum (1) conferred a benefit on
a plaintiff must prove that it (2)
the plaintiff;
the defendant knew of or appreciated a benefit
and (3) that the defendant accepted or
that was being conferred;
retained the benefit under circumstances that render it
inequitable for the defendant to retain the benefit without
paying for its value.
403, 405-406 (Va. Cir.
T & M Elec. v. Prologis Trust,
Ct. 2006).
70 Va. Cir.
a
Under quantum meruit,
plaintiff is only entitled to recover the reasonable value of its services performed. (2009). Recovery, See Mongold v. then, Woods, 278 Va. 196, 203
is not measured by the benefit conferred
on the defendant,
but rather by the actual value of the services
30
performed.
See Ricks
v.
Sumler,
19
S.E.2d 889,
891
{Va.
1942);
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, Grubb & Ellis is not entitled
to commissions and therefore is limited to recovery of the value
of
of
the services it rendered to Potomac Medical.
the commercial real estate broker-principal
The very nature
relationship
precludes an implied contract claim here.
Grubb & Ellis entered
into this relationship with Mr.
Ellis serving as is not
Saadeh contingent upon Grubb &
The owner, Mr.
the procuring cause of a lease. for time
Saadeh,
liable
spent and marketing costs because
law will not
the owner never agreed to pay such costs and the
imply such terms here where payment for these services was never
contemplated by the parties. Mr. Bretz testified that Grubb &
Ellis posted listings for Potomac Medical Center on CoStar and
other listing services, created marketing materials, (Trial Tr., 51-53, and set up 2009.)
an email advertising system.
July 7,
He also testified that Grubb & Ellis provided Mr.
Saadeh with
weekly reports of listing inquiries.
2009.) But brokers often perform this
(Trial Tr.,
53,
July 7,
there was no
type of work;
showing that the work performed had value of itself.
31
Furthermore,
Grubb and Ellis did not present
any expert
witnesses,
services at
produce any evidence of the
trial,
independent value of
in its exhibit
its
list for the
or identify any documents or give the Court
that establish such value estimating the value of
the proper basis As such,
the
services
it performed.
Court
D.
finds
in favor of Defendant on the quantum meruit
Inducement the Court and Concealment
claim.
Fraudulent Finally,
finds
in favor of Defendant on the claim because Plaintiff
fraudulent
inducement and concealment
failed to prove that
it reasonably relied on any purported
or that it is entitled to of 3) fraud are: made
misrepresentations made by Defendant commissions 1) as damages.
In Virginia the elements 2) of a material fact,
a false representation,
intentionally and knowingly, reliance by the part misled, misled. Here, Bryant v.
4)
with intent
to mislead,
5)
and 6) 400
resulting damage S.E.2d 201, 203
to the party (Va. its following 1991).
Peckinpaugh,
the Court finds
that Plaintiff
failed to prove
fraudulent
inducement and concealment claim for the
three
(3)
reasons:
1)
Plaintiff did not prove a false
fact; 2) Plaintiff did not
and 3)
representation of a material
reasonably rely on Defendant's alleged misrepresentations;
Plaintiff did not prove that it was entitled to commissions as
damages.
32
1. The
False Court
Representation of finds that
a Material
Fact a false
Plaintiff
failed to prove
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 extension. an
"Because fraud must involve a misrepresentation of a
fraud ordinarily cannot be
present or a preexisting fact,
predicated on unfulfilled promises or statements regarding
events." SuperValu, Inc. v. Johnson, 666 S.E.2d 335, 342
future
(Va.
2008)
(internal citations
omitted).
To prevail on an actual
fraud claim based on unfulfilled promises,
a plaintiff must prove
that the defendant had no intention of upholding the promise at
the time the promise was made.
V. McDevitt St. Here, Bovis, Inc., 507
See id.;
Richmond.
348
Metro.
Auth.
S.E.2d 344,
(Va.
1998).
Plaintiff argued at trial
that Defendant fraudulently
induced Plaintiff
to continue work on the Stratford transaction Plaintiff
by promising to extend the Exclusive Agency Agreement.
failed to prove,
the promise at
however,
that Defendant did not intend to honor
Mr. Saadeh testified
the time that it was made.
that he told Mr.
Bretz that he was thinking about an extension,
but that he was 9, 2009.)
"considering his options."
(Trial Tr.,
145,
July
He testified that he was taking his time 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
33
to fruition. finds that Mr.
(Trial Tr., Saadeh's
147-49,
July,
9, not
2009.)
The Court that he
indecision does
indicate
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.
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 that Mr.
the Exclusive Agency
the
Saadeh never produced a signed extension of
Agreement. To prove 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
the express terms of
Bank, 910
such reliance contradicts
Foremost Guar. Corp. v.
the contract.
F.2d 118, 126
See
(4th
Meritor Sav.
Cir.
1990)
("there
[can]
be no reasonable reliance in the
face of
plainly contradictory contractual language.").
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,
2007,
34
unless renewed by mutual written agreement.
Some three months later, on January, 31,
(PL's Ex.
Ms.
^
9.)
sent
2008,
Padgett
Mr.
Saadeh an email acknowledging that
"[t]he original
listing this
agreement for Potomac Medical Center expired in October of
year." (PL's Ex. 2 at 1384.) After the expiration of the
Exclusive Agency Agreement,
no brokerage agreement existed
between the parties.
from Mr.
Plaintiff requested a letter of extension
occasions 2 at 1384; from October PL's Ex. 26 2007 at through
Saadeh on several (PL's Ex.
February 2008.
1408.)
Plaintiff never received a signed extension, sophisticated brokerage business, on behalf of
work on the
yet Grubb & Ellis, services ceased
a
continued to provide could have
Potomac Medical.
transaction but
Grubb & Ellis
continued instead to work in the
hopes
that one day it would receive a signed,
written agreement. Inc.
It did so at its own risk. v. Mathews, 38 Vir. Cir. 370
See Virginia Business Exchange, (Va. Cir. Ct. 1996)
(broker's claims
for commission based on allegation of a promise to renew a
listing agreement denied because
".
.
.it is plaintiff which is
in the business of brokering the selling of businesses and which
relies on commissions to stay in business. It should have done a Grubb & Ellis's
better job of protecting its
interests here.").
decision to continue work despite the absence of a signed written
agreement was a risk that it took, but that risk does not
35
constitute
reasonable
reliance.
Therefore,
the
Court
finds
that
Plaintiff's
3.
reliance was unreasonable.
Damages
Even if Defendant did make
finds that Grubb & Ellis damages.
false representations,
an entitlement a
the
to a
Court
failed to prove To recover under
commissions as
fraud claim, detrimental
plaintiff must prove damages on the Hadid, defendant's material 385 S.E.2d 898, 903
caused by his
reliance
misrepresentations. (Va. 1985) (internal
See Murray v. citations
omitted).
party to
The usual remedy for fraud is to restore
the position it held prior to the fraud.
the
See
injured
id. at
904.
A Plaintiff may,
he is
however,
recover prospective profits upon
damages. See 550
a showing that id.
entitled to those profits as Co. v. Owens & Son, 105
{citing Manss-Owens
S.E.2d 543,
(Va.
1921)).
"'It
is well
settled that if
.
.
.
.
prospective profits there
are not recoverable
in any case
.
it
is uncertain that
Id. (quoting
would have been any profits.
.'"
Sinclair v.
Hamilton & Dot son, Here, damages the
178
S.E.
777,
780
{Va.
1935)). fails to prove asserts its it is
Court (2)
finds
that Plaintiff First,
for two
reasons.
Plaintiff
that
entitled to commissions as damages because Defendant
represented that Plaintiff would receive commissions
falsely
if it
continued work on the
Stratford transaction.
As mentioned above,
36
Plaintiff was not the procuring cause of a lease and therefore is
not entitled to commissions as damages.
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 facts
the exact amount of
its damages,
the
and circumstances
to permit
factfinder
to make a reasonable estimate of its damages.
Kaestner,
omitted).
See Goldstein v.
413
S.E.2d 347,
349-50
{Va.
1992)
(internal citations
Here,
Grubb and Ellis did not present any expert
witnesses to testify as to the value of assign in its
its
services,
did not in
initial disclosure a value,
did not produce
discovery evidence of any value,
documents
short,
and did not
identify any
In
such, the
in its
exhibit
list
that establish such value.
fraud damages. As
Grubb & Ellis
failed to prove
Court
finds
in favor of Defendant on Plaintiff's
fraud claim.
IV.
CONCLUSION
The
Court
finds
in favor of Defendant on all First, the Court finds
four
(4)
of
Plaintiff's
claims.
in favor of Defendant
on Plaintiff's breach of
Agency Agreement
contract claim because the Exclusive
2 007, and
automatically expired on November 1,
the parties'
agreement.
subsequent
Second, the
conduct did not create a new enforceable
Court finds in favor of Defendant on
Plaintiff's procuring cause
claim because
a break
in the
37
continuity of Plaintiff's
services occurred and Stratford was not
prepared to proceed on Potomac Medical's terms until after the
break in continuity. Third, the Court finds in favor of
Defendant on Plaintiff's quantum meruit claim because Plaintiff failed to prove that the services it actually performed were of
any value. Fourth, the Court finds in favor of Defendant on
Plaintiff's trial
fraud claim because Plaintiff
failed to prove at
that Defendant never intended to extend the brokerage
agreement;
because it was unreasonable for Plaintiff to rely on
any representations not contained in a signed written agreement; and because Plaintiff
recover damages.
failed to prove that
it is hereby
it is entitled to
Therefore,
ORDERED that a VERDICT IS ENTERED
in favor of Defendant
Potomac Medical Building,
Company's breach of and fraud claims.
LLC,
on Plaintiff Grubb & Ellis
procuring cause, quantum meruit,
contract,
The Court will enter a separate Federal Rule of Civil
Procedure 58 Judgment Order.
The counsel.
Clerk is directed
to
forward a copy of
this
Order to
Entered this 2/J£iday of August, 2009.
Alexandria,
Virginia
' &J4"
.
.
..
Gerald Bruce Lee
United states District Judge
38
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