Westbard Apartments, LLC v. Westwood Joint Venture, LLC

DAVIS, Judge. This controversy emanates from the sale of forty acres of land in Bethesda, Maryland by appellee, Westwood Joint Venture LLC (Westwood). Appellant, Westbard Apartments LLC (Westbard or Apartments), a Delaware Limited Liability Company, and Westwood were parties to a lease (the Lease) of one of nine parcels (Park Bethesda) wherein Westbard was granted several rights, including the right of first refusal 1 to buy Park Bethesda, the right to buy Park Bethesda for $35 million in 2022, the right of first offer 2 to buy other parcels and the right of co-development. Westwood owned nine parcels of land including Park Bethesda, which was rented to Westbard in December 1999 by then-owner Laszlo N. Tauber.

Richard Cohen expressed interest in the purchase of parcels for residential development when the Lease was initially negotiated. However, Tauber assured Cohen that he had no interest in developing the remaining parcels; thus, Section 13.4 of the Lease secured the right of first offer in the event Tauber decided to sell or otherwise dispose of any of the parcels for residential development to a third party. The Lease was for a ninety-nine year period. Cohen entered protracted negotiations with Tim Durkin, 3 an employee of National Electrical Benefit Fund (NEBF), in 2000 to enter into a joint venture to develop Park Bethesda.

NEBF is a multi-billion dollar pension fund administered by two trustees who must approve any new investments. Notwithstanding Cohen’s desire to move quickly, the NEBF trustees’ approval process was lengthy and involved numerous steps culminating ⁴¹ in the creation of Westbard’s Operating Agreement (the Agreement). 4 Westbard is a joint venture between NEBF and Westbard Investments LLC (Investments). Westbard’s sole purpose is to invest in and develop the project Park Bethesda or the land and improvements also known as Parcel C of Westwood. Investments, owned and controlled by Cohen, is also the Managing Member of Westbard and holds fiduciary positions of responsibility according to the Agreement.

Cohen has been a real estate developer since 1969 and has holdings in numerous states primarily concentrated on the East Coast. In response to the land purchase, appellants Westbard and NEBF filed a complaint in the Circuit Court for Montgomery County on February 17, 2005 against Westwood, and another, on February 22, 2005, naming Cohen, Investments and CAP Acquisition LLC (CAP Acquisition) as defendants. The actions were consolidated and appellants filed a second amended complaint on April 15, 2005, naming Westwood, Cohen, Investments, Cap Acquisition and six other Cohen-controlled entities 5 as defendants. The Second Amended Complaint for Injunctive Relief and Damages contained seventeen counts.

Counts I through V, XIV and XV were derivative allegations by NEBF on behalf of Westbard against Westwood for declaratory judgments (Counts I and II), breaches of contract (Counts III and IV), breach of implied covenant of good faith and fair dealing (Count V), fraud (Count XIV) and negligent misrepresentation (Count XV). Appellants asserted Counts VI through IX against Investments for declaratory judgment (Count VI), breach of contract ⁴² (Count VII), breach of the implied covenant of good faith and fair dealing (Count VIII) and breach of fiduciary duty (Count IX). Counts X through XII were asserted by appellants against Cohen for breach of contract/guaranty (Count X), breach of fiduciary duty (Count XI) and declaratory judgment (Count II). Count XIII was a derivative allegation by West-bard against Cohen and the Cohen-controlled entities for tortious interference ■ with a contract.

Count XVI was an unjust enrichment claim by appellants against the Cohen-controlled entities. Count XVII was a civil conspiracy count against all defendants. Pursuant to the Delaware Limited Liability Company Act, DeLCode Ann. tit. 6, §§ 18-1001 to 1004, appellants sought specific performance, monetary damages, a declaratory judgment and injunctive relief and, to the extent permitted by law, they demanded a jury trial. The circuit court granted appellees’ motions to strike appellants’ demands for a jury trial on January 26, 2006 and subsequently granted summary judgment to Westwood on May 22, 2006.

The circuit court denied the Cohen Defendants’ Motion for Summary Judgment and a bench trial commenced on June 5, 2006. During the trial, the court granted the Cohen Defendants’ motion for judgment as to civil conspiracy, declaratory judgment against Investments, breach of implied covenant of good faith and fair dealing against Investments and declaratory judgment against Cohen. 6 Subsequent to the trial’s conclusion on June 19, 2006, the trial court entered judgment on July 27, 2006 in favor of the Cohen Defendants on all other counts. Appellants noted this timely appeal and present the following issues for our review: I. Whether the circuit court erred in dismissing [appellants’] jury demand, where claims for money damages presented questions as to which the right to trial by jury is protected by the Maryland Constitution. ⁴³ II. Whether the circuit court erred in determining that, in the absence of language in the Operating Agreement clearly and unambiguously relaxing fiduciary duties, the Cohen Defendants did not breach any contract or fiduciary duty in purchasing the Westwood Complex to the exclusion and detriment of [Westbard] and NEBF?

III

Whether the circuit court erred in granting West-wood’s [MJotion for [S]ummary [J]udgment on all counts? FACTUAL AND PROCEDURAL BACKGROUND Tauber died on July 28, 2002 and his son, Alfred Tauber (Alfred), decided to sell the nine parcels of land that made up the forty acres of the Westwood Complex (Complex), including Park Bethesda. The Complex contained a 1950’s era strip shopping center (Westbard Shopping Center), a retail/office building (Westwood Center II), a bowling alley (Strike Bethesda), two apartment buildings (Park Bethesda and Westwood Towers), two gas stations (Citgo and Texaco), and a retirement community (Manor Care). Alfred engaged Eastdil Realty Company, LLC (Eastdil) as the broker representing the interest of Westwood.

In November 2003, Cohen and NEBF began discussions about exercising the rights contained in the Lease to purchase the Complex. As noted, Westbard is a Delaware Limited Liability Company that has two members, NEBF and Investments. Cohen controls Investments and Investments is the “Managing Member” of Westbard. Cohen also provided a personal guaranty of Investments’ fiduciary duties to NEBF (“Cohen Guaranty” or “Guaranty”).

Cohen is the designated representative to speak, bind and act on behalf of Investments. The Agreement states in section 5.1.3: The Managing Member [7] shall exercise the power and authority granted it under this Agreement and shall per ⁴⁴ form its duties as Managing Member under this Agreement in good faith, in a manner the Managing Member reasonably believes to be in the best interests of the Company [8] and with such care as a prudent real estate professional in a like position would use under similar circumstances. The Managing Member acknowledges to and agrees with each of the Company and the other members that it is undertaking fiduciary duties and responsibilities to the Company and each of its Members identical to those a general partner undertakes to a limited partnership and its limited partners under the status and case law of the State of Delaware applicable to a limited partnership form of business organization. The Agreement continues in section 5.1.4: The Managing Member shall be required to manage the Company as its sole and exclusive function and shall not have any other business interests or engage in activities other than those relating to the Company; provided, however, that each other Member (and its partners, shareholders, members or Affiliates) may have other business interests and may engage in other activities in addition to those relating to the Company, including the making or management of other investments.

Neither the Company nor any Member shall have any right, by virtue of this Agreement or the Company created hereby, in or to such other ventures or activities or the income or proceeds derived from unrelated activities of the other Members or their Affiliates. Each Member hereby Consents to the pursuit of such ventures by the other Members (other than the Managing Member, but not Affiliates of the Managing Member), even if competitive with the business of the Company, and acknowledges that such ventures shall not be deemed wrongful or improper. Except as otherwise expressly provided in this Agreement or in any other written agreement between the Members, no Member or any Affiliate of a Member shall be obligated to present any particular investment opportuni ⁴⁵ ty to the Company even if such opportunity is of a character which, if presented to the Company, could be taken by the Company; and each Member and each Affiliate of a Member shall have the right to take for its own account, or to recommend to others, any such particular investment opportunity. By the summer of 2004, Alfred Tauber had concluded that the sale of the Complex to a holder of the rights contained in the Lease was preferable to a third party because it avoided complications of overlapping rights.

On October 1, 2004, after consultation with NEBF’s Managing Director for Real Estate, Jeff Kanne, Cohen contacted Eastdil and offered $110 million for the Complex. Upon receiving a favorable response from Eastdil, Cohen related to Kanne that “we got it for 110.” On October 6, 2004, Cohen faxed to NEBF a copy of his Letter of Intent that indicated that Capital Properties, Cohen’s entity, would purchase the Complex. NEBF did not object. In the process of finalizing the deal, Cohen waived any claims Westbard might assert based upon Westbard’s right of first refusal and also obtained the right to allocate the aggregate purchase price among the various parcels.

On November 8, 2004, Westwood and Cap Acquisition signed a purchase and sale agreement (P & S Agreement) for the Complex in its entirety in which $18 million was allocated as the purchase price of Park Bethesda. The P & S Agreement contained language that prevented Westbard from exercising its right of first offer, stating that “Seller and Purchaser agree that there is no intention at this time to develop or re-develop any property into a residential use and each Deed shall contain a provision stating that the applicable Property is being conveyed and accepted subject to all easements, conditions and restrictions of record.” Cohen and NEBF failed to agree on terms for a new joint venture to purchase the Complex. On December 9, 2004, Cohen informed NEBF that he believed the Agreement permitted him to pursue the transactions in his individual capacity and that he intended to do so. On January 18, 2005, ⁴⁶ Westwood entered into a Second Amendment to the P & S Agreement with CAP Acquisition that, in part, increased the allocation of Park Bethesda from $18 million to $29 million.

That same day, Westwood notified NEBF by letter that it had received a bonafide offer from a third party of $29 million for Park Bethesda. Thereafter, NEBF and Westbard filed the complaints that were consolidated and are now the subject of the instant appeal. Westwood moved to strike the jury demand, contending that § 20.17 9 of its lease with Westbard waived the right to jury trial and the Cohen Defendants moved for similar relief, relying on § 10.4 10 of the Agreement. The trial court found that Westbard’s waiver of jury trial against Westwood applied to claims brought derivatively by others.

Subsequently, the trial court entered summary judgment in favor of Westwood and denied Cohen’s Motion for Summary Judgment. The court dismissed all claims and, with respect to the breach of contract, good faith and fair dealing claims related to the right of first refusal under § 13.2 of the Lease, it found that, in the absence of an agreement between Cohen ⁴⁷ and NEBF with respect to the acquisition of the property, Westbard was unable to exercise its rights. Beginning with the May 22, 2006 Order, the court found that section 5.1.4 of the Agreement was “ambiguous as to the extent to which it modifies the parties’ fiduciary duties, in particular, whether it allowed the managing member to compete directly with [Westbard] in the conduct of its business activities.” After the conclusion of the bench trial, the court ruled on July 27, 2006 that, “insofar as whether [section 5.1.4] permits direct as opposed to indirect competition, § 5.1.4 is ambiguous.” The court found that NEBF encouraged Cohen’s conduct because NEBF could not “chase the deal,” and, thus, NEBF allowed Cohen to “chase the deal” and if he was successful, NEBF could then decide whether to participate in the acquisition. The court found that, “having encouraged Cohen’s conduct, NEBF cannot now complain about such conduct.” The language added to the P & S Agreement was found by the trial court to have been inserted with Kanne’s knowledge and without objection.

As additional grounds, the court found that the rights of first offer under § 13.4 of the Lease were not triggered by the sale because Westwood did not sell the property to be developed for residential housing. The court found that application of the right was triggered only in the event that the “seller intend[ed] that the property be developed for residential use.” Finally, the court ruled that Cohen reasonably set the value of Park Bethesda because the development rights were valued at $10 million and the property was valued at $22-24 million. In addition to Cohen’s attempt to explain to NEBF how he arrived at the figure, the court found credible the testimony by Edward Saxe, Esquire that Cohen also offered to submit the question of value to a neutral expert, but that appellants rejected that offer. Additional facts will be provided as warranted. ⁴⁸ STANDARD OF REVIEW Pursuant to the Maryland Rules, [w]hen an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.

It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Md. Rule 8 — 131(c) (2007). 11 We review the findings of fact of the trial court, not to determine whether, its findings were correct, but whether, by a preponderance of the evidence, its conclusions were supported by the evidence adduced at trial. Urban Site Venture II Ltd. P’ship v. Levering Assocs. Ltd. P’ship, 340 Md. 223, 230 , 665 A.2d 1062 (1995) (citing State Ins.

Comm’r v. Nat’l Bureau of Cas. Underwriters, 248 Md. 292, 305 , 236 A.2d 282 (1967)). The deference shown to the trial court’s findings as to evidentiary rulings does not apply to its conclusions of law. Nesbit v. GEICO, 382 Md. 65, 72 , 854 A.2d 879 (2004).

Where the order “involves an interpretation and application of Maryland statutory and case law, [the appellate court] must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.” Id. (quoting Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609 (2002)) (quotations omitted). LEGAL ANALYSIS The Agreement is subject to the Delaware law because section 10.6 provides that “[t]his Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts of law.” Appellants contend that Cohen, in derogation of his fiduciary duties to and to the exclusion of appellants, use Westbard’s right of first refusal and right of first offer to acquire West- ⁴⁹ wood for himself and the entities he controlled, the Cohen-controlled entities, supra. Jury Trial Appellants initially assign error to the trial court’s finding that they waived their right to a jury trial as guaranteed by the United States and Maryland constitutions because legal claims were asserted to money damages.

Appellants continue that, because Counts XIII and XVII were brought against Cohen-controlled entities that were in no way part of the Agreement or Lease, the Cohen-controlled entities could be neither bound by the contracts between Westwood and appellants, nor derive any benefits therefrom. Similarly, contend appellants, because NEBF was not a party to the Lease, the jury trial waiver does not apply to NEBF’s civil conspiracy claim against Westwood. According to appellants, the alternative arguments advanced by appellees, i.e., that equitable claims are outside of the right to trial by jury, were not relied upon by the court and are without merit. Further, appellants contend that equally without merit is appellees’ assertion that any legal claims are outweighed by equitable claims and, thus, do not require a jury because factual disputes on legal claims are still tried to a jury and must precede a bench trial at which equitable issues are resolved.

The circuit court granted defendants’ motions, striking the jury demand as to all claims against all defendants, ruling: THE COURT: Okay. It seems to me from a reading of the pleadings that have been filed, and from listening to the arguments of counsel here at the hearing, the defendants are correct. I think in each instance the claims that are asserted by the plaintiffs basically derive from their relationship to the tenants. The tenants had waived in their contracts the right to trial by jury, which they acknowledge.

And I think that to the extent that the plaintiffs’ claim derives strictly from that relationship, that they also have waived the claim to trial by jury. ⁵⁰ In the alternative, to the extent that the claims seek specific performance relief, it’s equitable relief, which would not be triable to the jury. If you assumed for the sake of argument that you could incorporate the claim for general damages under count 6 into count 17, and so it was a claim for money damages, not specific performance, it would still be barred because of the fact that the claim derives from the plaintiffs’ relationship to the tenant. And the tenant, by entering into the agreement with the defendant, had waived their trial by jury. With respect to the claim about the tortious interference and the fact that defendant, one of the defendants isn’t party to the agreement, perhaps if the defendant wanted to demand trial by jury because they hadn’t been a party to the agreement, the defendant might have been able to do that.

But the fact that the defendant wasn’t a party to the agreement doesn’t allow the plaintiff, who was either a party to the agreement or derives their standing from the fact of their relationship to the party to the agreement, does not give, in my view, the plaintiff a right to demand trial by jury. So the demand for trial by jury as to those counts is stricken. The right to trial by jury can be contractually waived. Anne Arundel County v. Fraternal Order of Anne Arundel Detention Officers & Pers., 313 Md. 98, 109 , 543 A.2d 841 (1988) (quoting Park Constr.

Co. v. Indep. School Dist. No. 32, 209 Minn. 182 , 296 N.W. 475, 477 (1941) (stating that, in arbitration agreements, “[s]uch waiver may be the result of contract or unilateral action”)). Analogous to an agreement to arbitrate, the Lease and Agreement contractually provide for waiver of trial by jury.

Appellants’ reliance on Curtis G. Testerman Co. v. Buck, 340 Md.