Gay v. State of Maryland Deposit Insurance Fund Corp.

RODOWSKY, Judge. By summary judgment the trial court ordered the appellant, James L. Gay, Jr. (Gay), to transfer his interest in certain corporate stock to the insolvent service company of an insolvent savings and loan association. The appeal potentially raises intriguing issues involving contracts, specific restitution, fiduciary duties, conflict of interests, and ⁷¹⁰ constructive trusts, but we shall reverse primarily based on the rules of summary judgment procedure. Appellee, the plaintiff below, is State of Maryland Deposit Insurance Fund Corporation (MDIF) in its capacity as receiver for Old Court Savings & Loan, Inc. (Old Court). 1 The Circuit Court for Baltimore City had placed Old Court in conservatorship on May 13, 1985, and in receivership on November 8, 1985.

That same date the receiver, MDIF, filed a 142 page amended complaint against the former president of Old Court, Jeffrey A. Levitt (Levitt), and thirty-eight other defendants. This appeal involves one aspect of one transaction embraced in that amended complaint. The subject transaction concerns a partially developed residential community in South Carolina known as Tega Cay. The stock which MDIF seeks from Gay represents two and one-half percent of the outstanding shares in both the private corporation furnishing utility services, and in the corporation owning recreational facilities, at Tega Cay.

To the extent that the receiver has been able to reconstruct the transaction, it generally proceeded in the following manner. Sometime prior to August 9, 1984, Old Court became interested in developing Tega Cay in conjunction with Edward R. Oppel (Oppel), a builder who had apparently been active in that community. The properties comprising Tega Cay, insofar as this case is concerned, were owned by four South Carolina corporations, TC 126, Inc., TC 22, Inc., TCU, Inc. (TCU), and Tega Cay Recreation Company, Inc. (TCRC). TC 126, Inc. owned 471 finished building lots and a large tract of undeveloped land.

TC 22, Inc. had been established in a prior bankruptcy proceeding involving the development. TCU is the private utility company and TCRC owned two golf courses, two swimming pools, and a clubhouse. All of ⁷¹¹ the stock of each of these four corporations was in turn owned by a Netherlands corporation, Stanwick B.V. On August 9, 1984, Stanwick B.V. entered into a written contract with Tega Cay Development Co., Inc. (TCDC) to sell to the latter all of the stock of the four corporations for $5 million, of which $500,000 was paid as a downpayment. TCDC is a South Carolina corporation which was formed on the day its contract with Stanwick B.V. was signed.

The receiver now agrees that Oppel owned and owns forty percent of the stock of TCDC. The remaining sixty percent was and is owned by Old Court’s wholly owned subsidiary, Old Court Investment Company, Inc. (OCIC). The Stanwick B.V. contract was signed for TCDC by Gay, as its vice-president. Gay, according to the allegations of the amended complaint, was vice-president of Bankers Realty, Inc. (Bankers), a wholly owned subsidiary of Meridian Mortgage Investment Corp. (MMIC), which in turn was a wholly owned subsidiary of OCIC.

Closing of the contract with Stanwick B.V. took place on October 2, 1984, in New York City. The settlement sheet reflects that Old Court loaned TCDC $7 million, including the $500,000 deposit. The difference between the $7 million loan and the $5 million purchase price is of general interest to the receiver. Part of that difference consists of two $50,000 disbursements, recorded on the settlement sheet as paid respectively to TCRC and to TCU.

Gerald Katz, Esquire (Katz) was the attorney representing the Old Court interests in the Tega Cay transaction. Katz testified on deposition that the transaction was modified on the buyer’s side from that evidenced by the contract with Stanwick B.V. He said that the decision was made “internally” that Old Court did not want the stock of TCU and TCRC. It was to be assigned to someone else. When the closing was completed on October 2, 1984, nobody knew how the stock in the four entities was ultimately to be held.

Both TCU and TCRC were producing very substantial losses. TCU had not obtained its final rate approval and it ⁷¹² would be many years before it stood on its own. Substantial capital was required for both companies to continue in existence. Further, it might not have been proper for OCIC to own TCU and TCRC.

At some point a decision was made, as Katz described it, that TCU and TCRC would be owned by a “group of individuals and they would agree to make a substantial capital contribution to those entities.” Oppel, who signed the settlement sheet for the $7 million Old Court loan as “General Partner” of TCDC, was also deposed. He had been primarily interested in building homes at Tega Cay and had no desire to be an owner of either the recreation or the utility company. He knew that TCDC would not own TCU and TCRC. He assumed that the significant losses of those two companies were of some benefit to Old Court.

In an affidavit Gay states that during August 1984 Levitt had asked him to devote substantial time to overseeing the Tega Cay project on a fee per lot sold, plus bonus, basis of compensation. He attended the October 2, 1984, closing in New York. Gay further makes oath that [i]n late October, 1984, Jeffrey Levitt stated that the work to be done in Tega Cay was greater than had been anticipated and that in addition to other duties, he wanted me to oversee work for TCRC and TCU. In exchange for my increased work on the overall project and my additional duties for TCRC and TCU, Levitt stated that I would have a ten percent (10%) interest in TCRC and TCU.

Gay affirms that he supervised a $100,000 renovation of the TCRC clubhouse, the redesign of several holes on the golf course, hired a landscape architect, and purchased new golf carts. He states he had “responsibility for upgrading and increasing the capacity of the [TCU] sewage treatment plant; the design and installation of additional sewer and water mains and service lines and securing permission from local government authorities for these and other related activities.” It was his “understanding that the consideration [he] gave for the issuance of shares in TCRC and TCU ⁷¹³ was to have been the services [he] performed for each corporation.” Under cover of a letter dated January 23, 1985, Katz caused to be transmitted to Gay at Bankers’ offices in Baltimore the corporate paperwork on the Tega Cay transaction. Included were the organizational minutes of TCDC. These minutes are in the form of informal action by the directors named in the articles of incorporation.

They were prepared for signature by Levitt, Dennis E. Guidice (Guidice), and Gay. 2 Gay has signed the minutes but Levitt and Guidice have not. The minutes recite that the directors elect Oppel as president and Gay as vice-president of TCDC and an Anne Marie Buscemi as secretary-treasurer. The minutes also contain the following resolution: That the Corporation hereby assigns its rights to purchase the stock of TCU, Inc. and Tega Cay Recreation Company, Inc. to Jeffrey A. Levitt (for himself and for the benefit of James L. Gay, Jr.), Jerome S. Cardin, Allan H. Pearlstein and Edward R. Oppel (and Jeffrey A. Levitt) in return for the favorable commitment it has received from them to invest at least $100,000 in new capital for each corporation^] The statement of informal action concludes: “This written consent signed by all of the members of the Board of Directors of the Corporation, shall be effective as of October 2, 1984[.]” The Katz to Gay letter of January 23, 1985, also enclosed the stock certificates representing all of the shares in each of TCRC and TCU. The certificates were signed by Levitt as president.

Three hundred forty-five shares of each corporation were respectively issued to Levitt and to Allan H. Pearlstein (Pearlstein) who is described in the complaint as effectively owning forty-one percent of Old Court; 160 ⁷¹⁴ shares of each were issued to Jerome S. Cardin (Cardin), described in the complaint as effectively owning eighteen percent of Old Court; 100 shares of each were issued to Levitt and Oppel as tenants in common; and fifty shares of each were issued to Levitt and Gay as tenants in common. After the list of enclosed certificates for stock of TCRC the Katz letter stated: “Please make certain that at least $100,000 has been paid in for new capitalization.” The quoted words are repeated in that letter following its description of enclosed new stock certificates for the outstanding shares in TCU. The letter indicates carbon copies were sent to Levitt, Cardin, Oppel, and Pearlstein, to the Old Court accountant, and to counsel for Oppel. Oppel said on deposition that he did not question anyone about the reference in Katz’s letter to the $100,000 capital contributions.

He “assumed that the $100,000 contribution was by individuals to meet some sort of savings and loan requirement of some nature, and [he] had no idea why that was a requirement.” Gay’s undated affidavit filed January 7,1986, includes the following: I had not recalled that [the TCDC] organization minutes provided for the payment of any funds to TCRC or TCU for issuance of stock. While I am still not certain whether the resolution requires that I make payment, I am prepared to make any pro rata contribution to the capital of each of the companies. [Emphasis added.] F. William Hargrove (Hargrove) made an undated affidavit filed by MDIF in which he describes himself as “project manager of Tega Cay [and] custodian of the books and records of TCRC and TCU.” He affirms that none of Pearlstein, Cardin, Gay, or Oppel paid anything into TCRC or TCU, but that in November 1984 Levitt “deposited $50,-000 into the accounts” of those two corporations by two checks. They are drawn on Levitt’s “Real Estate Escrow Account.” The record does not reflect whether this is the same $100,000 disbursed in two $50,000 increments marked ⁷¹⁵ to TCU and TCRC on the Old Court to TCDC loan settlement sheet. Hargrove’s affidavit states that, in writing on four occasions between August 21, 1985, and November 22, 1985, and orally on more frequent occasions, he made demands “for funding of TCU and TCRC to Mr. Mike Killian as agent for Levitt Pearlstein Management Co., Inc.,” without response.

There is no indication that Killian was an agent for Gay. The conservator for Old Court had disputed Oppel’s claim to forty percent ownership of TCDC. By a written agreement dated October 30, 1985, that dispute was settled. Under that settlement Oppel had ninety days, called the “Paragraph 2 period,” within which to find a purchaser for Tega Cay who would commit to fully repaying Old Court approximately $7,792,000 of principal and $1,200,000 of unpaid interest.

If Oppel obtained that commitment, the conservator agreed, inter alia, to “[a]ssign to Oppel any rights [Old Court might] have against the alleged stockholders of” TCRC and TCU. 3 The settlement agreement with Oppel additionally provides in relevant part: 5. After the Paragraph 2 period, Oppel grants to Old Court the right to sell all or substantially all of the property owned by TCDC and its subsidiaries^] 10. This Agreement does not abrogate any of Old Court’s claims against the miscellaneous defendants in MDIF v. Levitt or Oppel with respect to the ownership of [TCRC or TCU]. Oppel agrees that within 10 days after this Agreement is signed, he will promptly assign to Old Court all of his stock in [TCRC and TCU].

If Oppel exercises his rights under Paragraph 2, Old Court will reassign that stock to him____ Old Court agrees not to join Oppel in MDIF v. Levitt with respect to any matters arising out of the Tega Cay transactions. ⁷¹⁶ By the vehicle of a summary judgment granted on the foregoing record, MDIF obtained an affirmative injunction directing Gay to execute stock powers assigning to OCIC, separate from the certificates, all of his interest in the fifty shares respectively held by him with Levitt, as tenants in common, in TCU and TCRC. Because it was undisputed that the $100,000 contributions to the capital of TCU and TCRC had not been made, the circuit court concluded that summary judgment was appropriate on the following analysis: [T]here is no doubt that the recreation company and the utility company were part and parcel of the planned development and needed for the planned development of the Tega Cay community, you can’t sell lots without having utilities. And since it was supposed to be basically a recreational community, many of the lots being waterfront lots, the need for a recreation company is also fairly essential in order to properly market the lots. So, Old Court, through [TCDC] gave up the opportunity to acquire these two essential communities of the development so that people who would have the resources to make these two units functional should do so.

They gave up their opportunity to acquire these units directly because of that. And the defendants were to put in, in order to get stock in the utility company or the rec company, they were to put $100,000 into each. It is undisputed that the defendants had put nothing into the utility company or into the rec company, and the whole premise upon which Old Court allowed the acquisition of these two companies has been negated by the nonperformance of the defendants. In short, the basis upon which the diversion was allowed has not taken place.

And you end up with, therefore, an improper diversion of corporate opportunity by Mr. Gay. Gay appealed from the injunction issued against him and we granted certiorari on our own motion prior to consideration of the matter by the Court of Special Appeals. ⁷¹⁷ Gay submits two issues which spawn subissues. Broadly they are that the claim asserted by MDIF is that of TCDC which is not a party to the action and that the record does not support a summary injunction for alleged diversion of corporate opportunity. I A fundamental obstacle to summary judgment in this case is the conflict over the terms of the contract relevant to Gay’s acquisition of his interest in the subject stock.

MDIF proceeds on the theory that the TCDC minutes, intended to be effective as of October 2, 1984, and signed by Gay after January 23, 1985, are conclusive on that question. Underlying this position is the premise that the minutes unambiguously make Gay a promisor, presumably jointly and severally with others, to pay $100,000 to each of TCU and TCRC. Gay on the other hand makes oath that he agreed, apparently orally, with Levitt to undertake duties at Tega Cay for TCU and TCRC in consideration of the promise of stock in each of those companies. Inasmuch as Gay is the party opposing summary judgment, permissible inferences most favorable to Gay from the known facts should ordinarily be drawn.

From Katz’s testimony it could be found that sometime after October 2, 1984, the individuals who would acquire the stock were determined. Based on Gay’s testimony, as reflected by his affidavit, a fact finder could infer that, in the conversation of late October 1984 between Levitt and Gay concerning stock for services, Levitt was speaking either individually, as a stockholder in TCRC and TCU, or as agent for all the then stockholders of TCRC and TCU, a group which did not then include Gay. It is inferable that that group took the subject stock from TCDC in consideration of contributions to capital, while Gay, in turn, took his interest from one or more members of that group for his promise of services to the corporations. ⁷¹⁸ MDIF argues that Gay cannot create a genuine issue of material fact by filing an affidavit which contradicts the minutes distributed on January 23, 1985, and thereafter signed by him. We choose not to rest our answer to MDIF’s argument exclusively on the ground that it raises a credibility issue which cannot be resolved on summary judgment.

In addition, we find the minutes ambiguous. The TCDC directors’ resolution recites present assignment by TCDC of “its rights to purchase the stock of TCU, Inc. and [TCRC] to Jeffrey A. Levitt (for himself and for the benefit of James L. Gay, Jr.), Jerome S. Cardin, Allan H. Pearlstein and Edward R. Oppel (and Jeffrey A. Levitt) in return for the