Mogavero v. Silverstein

²⁶³ SALMON, Judge. The first question presented in this appeal is whether the terms of an employment contract, allegedly entered into between the parties, was definite enough to be enforced. We shall hold that the terms were too indefinite to be enforceable and, accordingly, affirm the trial judge’s grant of summary judgment in favor of the defendants on the breach of contract count (Count I). Another important issue that we must resolve is whether the lower court erred when it granted summary judgment against the plaintiff, Samuel Mogavero, on Count II, in which plaintiff sought damages on the basis of quantum meruit.

The answer to that question depends upon whether plaintiff was required to prove what the defendants gained by the services he rendered or whether the plaintiff needed only to show the value of his services. We shall hold that the plaintiff must prove what the defendants gained by his services. Here, plaintiff failed to show what defendants gained. Thus, the court did not err in granting summary judgment as to Count II.

I. The facts set forth in Part I are presented in the light most favorable to appellant, Samuel Mogavero. See Md. Rule 2-501; see also Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 676 , 766 A.2d 617 (2001). Appellees, Larry Silverstein (“Silverstein”) and Mason Dixon Properties, LLC (“Mason Dixon”), controvert many of those facts. A. Background Samuel Mogavero (“Mr. Mogavero”) was a successful general contractor from 1972 to 1985.

During that period, he owned a construction company called Mogavero and Son, which operated in the Baltimore Metropolitan area. Mr. Mogavero semi-retired in 1985 at age forty-eight. Thereafter, he remained interested in matters relating to construction. ²⁶⁴ Additionally, he devoted a considerable portion of his time to management of his real estate and other investments. At all times here relevant, Mr. Mogavero possessed expertise in regard to several subjects, including real estate development, estimating construction costs, and management of construction projects.

One of the properties that Mr. Mo-gavero owned was a former rag factory located in the Fells Point section of Baltimore City. The rag factory was converted by Mr. Mogavero into an upscale residential complex known as King George House. Silverstein resided at the King George House. As a result, he and Mr. Mogavero met and became good friends.

Over a period of years, Silverstein sought Mr. Mogavero’s advice and guidance concerning the wisdom of making several real estate investments. In October of 1997, Silverstein, on behalf of Mason Dixon, became interested in purchasing a collection of older, mostly vacant buildings, located across the street from King George House. Those properties were owned by John Raczkowsky and his wife, Reba. By coincidence, Mr. Mogavero had once tried to purchase the Raczkowskys’ property (hereafter “the property’), but his offer had been rejected.

Mr. Mogavero told Silverstein that he suspected that the Raczkowskys would now accept a lower price than their earlier demand. Silver-stein asked Mr. Mogavero to set up a meeting with the Raczkowskys to see if a purchase agreement could be reached. Mr. Mogavero arranged a meeting with the Raczkowskys and Silverstein. This meeting eventually led to Mason Dixon signing an agreement on December 29, 1997, to purchase the Raczkowskys’ property.

Mason Dixon’s intended use of the property was to rehabilitate and convert the buildings so they could be rented as upscale commercial units. The cost for rehabilitation was anticipated to be roughly three million dollars. The contract granted the purchaser a feasibility period, which allowed Mason Dixon to avoid purchasing the property if it decided ²⁶⁵ that its intended use of the property was not economically feasible. B. The Oral Contract — According to Mr. Mogavero.

In early December 1997, which was prior to the execution by Mason Dixon of the sales contract for the property, Silver-stein and Mr. Mogavero had a conversation that Mr. Mogave-ro contended amounted to an oral contract. An affidavit, sworn to by Mr. Mogavero, sets forth his recollection of the terms of the agreement, viz: [Silverstein] told me that he needed my help for the project [renovating the property] and asked me what I wanted out of the project. I responded as I have previously testified. Basically I agreed to help him with the construction end of the project in return for a fee of 5 percent of the estimated construction contract.

He agreed to these terms and from that time until late July 1998 I worked closely with [defendants on the [property]. At deposition, Mr. Mogavero was asked by defense counsel to spell out what was said when he and Silverstein entered into the oral agreement here at issue. Mr. Mogavero’s response was as follows: [I]n early December, [Silverstein] asked me, well, what was my, what was I interested in[,] in the contract or in the building. And I basically told him that — he more or less asked me, that (sic) he needed my help, what [was] I ... looking for.

And I told him that 1 would be looking for 5% of the contract and possibly some tax credits, and I was interested in purchasing some tax credits. 1 And I basically told him what I would do. I told him that the fee that other people would charge him would be ... more in the line of 10 to 15 percent plus cost, and I more or less explained to him what I would do for my fee. ²⁶⁶ Mr. Mogavero was then asked, “what did you explain to him” that you would do for your fee? He answered: I told him that I would help him with the construction, I told him I would get him the architect, I told him I would get him the contractor to do the job, I would check on the construction. I would advise him in reference to the system and the design of the architect....

I told him I would monitor the construction phase of the project. And that is basically it. C. Post “Agreement” Events In March 1998, Silverstein hired Frank Gant as the project’s architect. According to Mr. Mogavero’s deposition testimony, an architect was needed to “guide us as to the most productive use of the property.” Mr. Gant was recommended to Silverstein by Mr. Mogavero.

A surveyor was also hired by Silverstein based upon Mr. Mogavero’s recommendation. During the early planning stages of the project, the question arose as to whether it would be more prudent to put the rehabilitation project out for competitive bids rather than to have a negotiated, fixed-fee contract. Mr. Mogavero voiced the opinion that the most economical way to rehabilitate the property was to select a general contractor and have the general contractor sign a fixed-fee contract. He also advised Silverstein that the best contractor to do the job under a fixed-fee contract was Marlund Contracting Company (“Mar-lund”).

At that time, one of Marlund’s project managers was John Mogavero (“John”). John was appellant’s son. Appellant explained in the following words the reasons for his recommendations: Well, because rehabilitations are unique. They are not like new construction, and there are a lot of unforeseens that you have to deal with.

I knew construction, I knew I could handle John [Mogavero] and his boss’s construction company to more or less comply with, basically, my demands. I knew that I could nail them down to a solid, no-extra ²⁶⁷ contract, and it was going to be a fixed fee, but that fee was going to be fixed. There was not going to be another dollar involved in changes of, on anybody’s part in reference to additional cost unless they were requested by the owner. There was a lot of investigation that had to be done in reference to putting the job together.

You just could not go out and pick up a set of drawings like Silverstein gave out for bid and give a good price and a solid price that neither he [n]or the contractor could honestly live with, in my opinion, and come and get the job done in a good and orderly fashion, as Silverstein, I am sure, would have wanted.... Silverstein, on behalf of Mason Dixon, accepted Mr. Mo-gavero’s suggestion and contacted Marlund. Silverstein told Marlund’s representatives that he wanted to work with them so that they could come up with a fixed-fee contract that would spell out the work to be done and the cost. With that goal in mind, Silverstein also asked Marlund to work with Mr. Mogavero and with the architects.

On several occasions Sil-verstein told Marlund’s representatives that Mr. Mogavero was to be “in charge of construction” and that Mr. Mogavero was “his construction guy” whom they should contact if they had any questions or problems regarding construction. It was understood by Marlund, however, that before Marlund could commence construction work on the rehabilitation project a written contract between Mason Dixon and Marlund would have to be executed. Mark Marquardt, president of Marlund, testified at deposition as follows: He [Silverstein] indicated that he felt that while, ultimately, a contract would be between Marlund Contracting and Mason Dixon Properties, and he would certainly want to be involved in ultimately what was going to be built and so on because, as any developer, you need to make sure that what you are building suits your tenants and your overall development needs, he indicated that any day-to-day construction interface, oversights dealing with construction issues and ²⁶⁸ getting answers and so on would be done through Sam [Mogavero]. Between January and July, 1998, Mr. Mogavero met with John and other representatives of Marlund on numerous occasions to discuss the project.

And, anticipating that Mar-lund would be submitting a written, fixed-fee contract, Mr. Mogavero, in April of 1998, took over two-weeks to do a detailed estimate of the cost to rehabilitate the buildings. He made the estimate so that he could compare his figures with those to be submitted by Marlund when it priced the contract. At the end of June, or the beginning of July 1998, Mr. Mogavero participated in a meeting between Silverstein and Mr. Gant to review the status of the plans for the job and to discuss the architect’s bill, which Silverstein questioned. Mr. Mogavero’s final meeting with Silverstein took place on July 21, 1998, at Silverstein’s apartment.

According to an affidavit signed by Mr. Mogavero, the following transpired at that meeting: Marlund presented its figures to ... Silverstein and me. After reviewing all of the pricing within the concepts of construction we had been following, I directed Marlund to conform its pricing and the concepts we had agreed upon to the existing plans and specifications, so that all parties would understand what was to be done for the money proposed. At the same time, [defendant Silverstein accepted the proposal and the dollar figures presented by Mar-lund, which were within the budget we had been working to meet.

He further directed Marlund to submit a written contract embodying the agreement we had just made, so he could submit it to his bankers on the next day. After months of effort and several hours of intense discussions, we ended the meeting with the understanding that a deal had been struck. A few days after the July 21, 1998, meeting, Silverstein advised Marlund and Mr. Mogavero that he had decided to put the rehabilitation project out for competitive bids rather than accept a fixed-fee • contract from Marlund. Silverstein made ²⁶⁹ this decision without prior notification or consultation with Mr. Mogavero.

Mr. Mogavero interpreted Silverstein’s action as “effectively terminating my services.” According to Mr. Mo-gavero’s affidavit, the reasons for this interpretation were: 7. ... Not only was my authority undermined as far as my future status and authority were concerned, my role was irreparably compromised if I was to be expected to perform the same duties under the new circumstances. After all, I had engaged the contractor, who had worked diligently since January assembling pricing information and responding to other requests that I made upon it. These services were performed with the reasonable expectation that, at the end of the process, it would have a contract to perform the construction work for $3 million dollars.

This was no idle hope. Indeed the very plans we were discussing at the meeting of July 21, 1998 expressly listed Marlund Contractors as the general contractor in the cover page. Throughout their involvement, I worked closely with them and the architect and the [djefendants and others associated with the project to reach the point we did on July 21. In fact, we began that final month with a meeting between the architect and Defendant Silverstein to review the plans being prepared for the job, as well as the architect’s fee, which Defendant Silverstein asked me to contest.

During that month, Marlund even gave me its billing for some tests, which it had conducted at my request to satisfy the architect’s concerns. I passed along the bill to [djefendants who paid it. 8. However, after [djefendants had radically altered the course on which we were proceeding with no input from me and to my absolute surprise, my credibility and authority was destroyed with anyone who would be associated with the job thereafter. Clearly, if [djefen-dants reneged on the prior shared understandings without any prior notice or input from me, I was no more than an afterthought, whom [djefendants had apparently decided they did not want.

I certainly could no ²⁷⁰ longer be an effective representative for developers who had abandoned their confidence in me. 9. Worse, from my personal standpoint, the job was not in a position to be let out for competitive bidding. The plans were not complete. They had been developed • with the understanding that the job would be negotiated with Marlund and consequently reflected the shared perceptions and concepts, which had been developed to that point.

An uninformed bidder simply could not present a realistic bid based upon the state of the plans and specifications as they then existed. The predictable result would be that, instead of having a firm and fixed figure of no more than $3 million dollars, we would then have the prospect of extra-work claims by the new contractor as he encountered necessary work that was not covered in the plans bid on. The first consequence would then be that I would be unable to deliver on one of my fundamental commitments, i.e.[,] to build the project within the budget. Beyond that, the worry would be that I would be. held responsible if the budget were exceeded.

Under the circumstances, that was a liability I was unwilling to accept without the means to control it. Because he believed that he had been “effectively terminated,” Mr. Mogavero did no further work on the rehabilitation project after he was advised that the project was to be put out for bids. Mason Dixon obtained title to the property in late August 1998. CAM Construction Company Inc. (“CAM”) was the low bidder.

In September 1998, Mason Dixon entered into a written agreement with CAM to do the rehabilitation work. Mr. Mogavero filed the subject suit in the Circuit Court for Baltimore City one month after the contract with CAM was signed. Additional facts will be set forth in order to answer the questions, presented. ²⁷¹ II. A. THE BREACH OF CONTRACT COUNT In granting summary judgment in favor of appellees as to the breach of contract count, the motions judge opined that the alleged oral contract was too vague to be enforceable.

The court said that one could not determine what agreement, if any, was reached between the parties regarding the nature and extent of the duties that Mr. Mogavero had undertaken. The “extent of duty” problem is most vividly illustrated by what happened after July 21, 1998. There is no evidence, whatsoever, that the parties mutually agreed that Mr. Mo-gavero had the right to object if Silverstein changed his mind and decided to put the rehabilitation project out for competitive bids. Silverstein never promised to even consult with Mr. Mogavero if he decided not to enter into a negotiated, fixed-fee contract with Marlund or if he decided to put the project out for competitive bids.

Additionally, when promises were exchanged between Silverstein and Mr. Mogavero, the parties never reached an agreement as to what would happen if the construction cost exceeded three million dollars. The parties only agreed that Mr. Mogavero would help Silverstein “with the construction end of the project in return for a fee of 5% of estimated construction contract [costs].” Because of the vague wording of the “oral agreement,” there was no basis for Mr. Mogavero to fear that he would be “liable” if costs exceeded three million dollars. It is to be noted that Mr. Mogavero says in his affidavit that Silverstein’s post July 21 actions undermined his (appellant’s) “future status and authority.” This may be true. But the exchange of oral promises did not spell out what authority Mr. Mogavero had in the first place to control important financial decisions such as whether to sign a fixed-fee contract with Marlund.

We have assumed that Mr. Mogavero is correct when he says in his affidavit that in late July 1998 “the job was not in a position to be let out for competitive bidding.” But this allegation is simply another way of saying that Silverstein ²⁷² made a bad business decision. Based on Silverstein and Mogavero’s mutual promises, it is impossible to know whether Mr. Mogavero had the right to override Silverstein’s “bad” business decisions or even to be consulted before decisions of this type were made. What the Court of Appeals said in the seminal case of Robinson v. Gardiner 196 Md. 213, 217 , 76 A.2d 354 (1950), is here apposite: Of course, no action will lie upon a contract, whether written or verbal, where such a contract is vague or uncertain in its essential terms. The parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean.

If the agreement be so vague and indefinite that it is not possible to collect from it the intention of the parties, it is void because neither the court nor jury could make a contract for the parties. Such a contract cannot be enforced in equity nor sued upon in law. For a contract to be legally enforceable, its language must not only be sufficiently definite to clearly inform the parties to it of what they may be called upon by its terms to do, but also must be sufficiently clear and definite in order that the courts, which may be required to enforce it, may be able to know the purpose and intention of the parties. (Emphasis added) (citations omitted).

See also Meyers v. Josselyn, 212 Md. 266, 271 , 129 A.2d 158 (1957) (“There has never been any doubt that when an alleged agreement is so vague and indefinite that the court finds it impossible to determine substantially the full intention of the parties, it must be held unenforceable, because the court cannot make an agreement for the parties.”). We agree with the motions judge that the alleged oral agreement between Mr. Mogavero and Silverstein was too vague and indefinite to be enforceable. As an alternative argument, appellant contends that summary judgment should not have been granted against him as to Count I because, taking the evidence in the light most ²⁷³ favorable to Mm, appellees are prohibited from denying the contract by principles of estoppel. In Pavel Enterprises, Inc. v. A.S. Johnson Company, Inc., 342 Md. 143, 166 , 674 A.2d 521 (1996), Judge Karwacki, for the Court of Appeals, set forth a four-part test to determine whether a party should be deemed estopped from denying the existence of a contract.

To be estopped, all four parts of the test must be met. The four parts are: 1. a clear and definite promise; 2. where the promisor has a reasonable expectation that the offer will induce action or forbearance on the part of the promisee; 3.