Summary
holding that a court "cannot and should not accept an interpretation that ignores the interplay of terms, renders certain terms 'inoperable,' and creates a conflict where one need not exist"
Summary of this case from Yucaipa American Alliance Fund II, LP v. BDCM Opportunity Fund II, LP (In re Allied System Holdings Inc.)Opinion
Argued February 5, 1991
Decided March 27, 1991
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Karla Moskowitz, J.
Douglas B. Mishkin and Warren K. Kaplan, of the District of Columbia Bar, admitted pro hac vice, and Susan L. Sommer for appellant.
Mark L. Kalish for respondent.
Plaintiff Pearce, Urstadt, Mayer Greer Realty Corp. (PUMG) procured a construction loan commitment for defendant Atrium Development Associates (Atrium) and now sues to recover its claimed brokerage commission. PUMG argues that Atrium's abandonment of the entire development project and consequent failure to close on the loan commitment because it did not need the proceeds constituted a "willful default" within the meaning of the brokerage agreement between them and that this triggered PUMG's entitlement to its quarter of a million dollar commission. We hold that PUMG should not have been granted summary judgment because issues of fact exist which require a trial. Thus, the order of the Appellate Division should be reversed.
Atrium is a Virginia partnership which was formed in 1983 to purchase a nine-acre parcel of vacant land in Henrico County, Virginia, and to construct a five-story office and retail building on the site. PUMG was retained to arrange financing for the project. Atrium purchased the parcel in 1983 for $1.5 million and the construction cost of the project was originally estimated at $11.5 million.
On April 24, 1984, the parties executed a loan brokerage agreement which authorized PUMG to negotiate a $15 million loan commitment to Atrium from Carteret Savings and Loan Association, F.A. (Carteret). Paragraph 1 of the agreement provided that PUMG waived its claim to any commission if "such commitment fails to be executed by all parties and delivered, or if such commitment is executed and delivered and the initial disbursement thereunder fails actually to be delivered, received and accepted in accordance with the terms of such commitment for any reason whatsoever, except the willful default of Atrium" (emphasis added). In paragraph 2, PUMG agreed to the 1 1/2% commission ($225,000) "[i]f and only in the event that the Loan closes and the initial disbursement thereunder is actually delivered, received and accepted in accordance with the terms of such commitment". On October 2, 1984, PUMG and Atrium confirmed their brokerage agreement in a second document which repeated and continued these provisions.
By letter dated July 19, 1984, Carteret issued its conditional commitment to lend $13.5 million to Atrium. Atrium accepted the commitment on August 21, 1984 and forwarded a deposit check in the amount of $150,000 to Carteret. The commitment letter was amended on September 12, 1984 to increase the construction loan amount to $14.25 million and to require that the over-all construction budget be under $15.75 million; otherwise, Carteret reserved the right to require additional security.
Revised estimates of the cost of the construction project revealed that the project could not be built within budget and Atrium decided, apparently for business and finance reasons, to abandon it entirely. The need for financing having evaporated, Atrium did not close on the Carteret loan commitment, forfeited the $150,000 deposit, and refused to pay PUMG a brokerage commission. This lawsuit followed.
PUMG emphasizes as the pivotal allegation that Atrium "willfully defaulted" under the terms of the brokerage agreement. The trial court's grant of summary judgment to PUMG sprang from its acceptance of that approach and a conclusion that Atrium's decision not to proceed with the project was a voluntary act, constituting a "willful default" within the meaning of the brokerage agreement. The Appellate Division affirmed and this Court granted leave to appeal. Our reversal and denial of summary judgment are premised on discernible issues of fact regarding the import and effect of key, interrelated provisions and terminology in this brokerage agreement.
PUMG contends that it earned its commission as soon as it did what Atrium retained it to do: procure a loan commitment which Atrium accepted. An initial hitch, as PUMG concedes, is that the brokerage agreement does not state that PUMG's commission would be earned simply upon execution, delivery and acceptance of a loan commitment (compare, Midland Mortgagee Corp. v Kazarnovsky, 128 A.D.2d 595).
On the contrary, the brokerage agreement can be interpreted as imposing certain conditions on PUMG's entitlement to a commission, even after execution and acceptance of the commitment. Paragraph 2 of the brokerage agreement — containing all the brokerage commission terms — provides in specific and restrictive language that PUMG will "accept" its commission "[i]f and only in the event that the Loan closes and the initial disbursement thereunder" is made (emphasis added). This language suggests that PUMG's entitlement to its commission was conditioned on closing the loan and making an initial disbursement — events which did not occur here.
PUMG counters that the language in paragraph 2 merely states when its commission is payable, and that paragraph 1 of the brokerage agreement — which on its face purports to deal only with waiver of, not entitlement to, the commission — fixes its entitlement to a commission. Thus, PUMG argues that its commission was earned and must be paid because it procured a commitment which Atrium accepted but "the initial disbursement under the commitment [was] not delivered, received or accepted" due to Atrium's "willful default". PUMG's argument, however, highlights the ambiguity of the language in the two key paragraphs of the agreement under analysis. Even assuming Atrium's actions could be deemed a "willful default" within the meaning and usage of that clause in paragraph 1, the loan did not close and the terms of the commission referred to in paragraph 2, which was keyed to the closing of the loan, were not triggered with the kind of certainty and clarity necessary to support a grant of summary judgment. To enjoy that substantial procedural advantage and remedy, the sophisticated parties here, both of them, could surely have specified the timing sequences and events applicable to the earning and the payment of PUMG's commission more plainly and certainly. Taken in its entirety with its related yet unsynchronized provisions, this brokerage agreement does not unambiguously resolve the lawsuit and the question, within a summary judgment framework, of when PUMG would earn its commission.
Further assuming, as did the lower courts, that the closing of the loan was not a condition of PUMG's entitlement to an earned commission, we cannot jump to the further conclusion on this record that Atrium's actions constituted a willful "default" as a matter of law and as that term is used in this brokerage agreement. In Graff v Billet ( 64 N.Y.2d 899), we construed a similar key phrase in a lawsuit to recover a commission under an agreement which provided that the real estate broker's commission from the seller was due and payable when title passed, except for willful default. We held that the seller's refusal to enter into a sales contract with a prospective buyer produced by the real estate broker was not a default within the meaning of the commission agreement because the agreement did not legally commit the seller to enter into a sales contract.
Atrium argues, paralleling the Graff rationale, that as a matter of law prospective borrowers — in this case, Atrium — cannot be charged with "defaulting" from loan "commitments" that do not obligate them to borrow and are unilateral in their juridical nature and effect until a loan closing occurs. Atrium contends that the willful default provision in its brokerage agreement with PUMG, by its usual commercial sense and intendment, applied only in the event the loan commitment PUMG eventually obtained for Atrium obligated Atrium to proceed with the loan. The loan commitment from Carteret did not; therefore, "default" from a nonexistent legal obligation in this context is an alien notion.
We are thus presented here with a seemingly a fortiori application of the principle of Graff with respect to a distinct commercial transaction. However, we emphasize that our ruling and rationale in favor of appellant Atrium does not adopt its broad argument in the abstract. That approach could render properly and plainly used willful default provisions essentially meaningless and write them out of negotiated contracts. This courts should not do. It is important to note that we are not doing that in the context of this case because the inoperability of the default clause here — at least as a matter of law in favor of PUMG — flows from the unusual combination of terms the parties used in the two key provisions of their negotiated agreement. In order for the word "default" to carry meaning and consequences as a commercial transaction term of art, greater clarity reflecting the intent of the contracting parties is required. The significant procedural advantage sought and achieved in the lower courts in this case — summary judgment — was not earned under the terms of this agreement.
Accordingly, the order of the Appellate Division should be reversed, with costs, and plaintiff's motion for summary judgment denied.
Chief Judge WACHTLER and Judges SIMONS and HANCOCK, JR., concur with Judge BELLACOSA; Judge KAYE dissents and votes to affirm in a separate opinion in which Judges ALEXANDER and TITONE concur.
Order reversed, etc.
The majority concludes that ambiguities in the brokerage agreement make summary judgment inappropriate in this suit by a loan broker to recover its commission. In that any ambiguity in the brokerage agreement is unnecessarily created by the majority's interpretation of the contract — an interpretation contrary to established principles of contract law — I dissent.
The first paragraph of the brokerage agreement provides that
"[i]n the event such commitment fails to be executed by all parties and delivered, or if such commitment is executed and delivered and the initial disbursement thereunder fails actually to be delivered, received and accepted in accordance with the terms of such commitment for any reason whatsoever, except the willful default of Atrium, then and in that event the undersigned will waive, and does hereby waive, all claim or demand, in law or in equity, for any commission whatsoever in connection with such commitment, the Loan and all negotiations prior thereto."
The second paragraph states that "[i]f and only in the event that the Loan closes and the initial disbursement thereunder is actually delivered, received and accepted in accordance with the terms of such commitment, then, and in that event the undersigned does hereby agree to accept a commission [of $225,000] * * * payable as follows [$125,000 on the date the loan closes and $100,000 on August 31, 1985]."
The broker argues that the first paragraph of the agreement sets out when the commission is earned and the second when it is paid. Clearly this is what the agreement says: the first paragraph deals with legal rights and conditions precedent to entitlement — including the provision that no commission is earned if funds are not taken down, unless Atrium willfully defaults — while the second paragraph refers to time and other details of payment.
The majority concludes that the second paragraph may reasonably be read as revisiting the ground covered by the first, but providing for different rights and liabilities, thereby creating an inconsistency between the two provisions. The "unsychronized" provisions thus make the willful default clause "inoperable" (majority opn, at 494,495).
But reading the agreement as a single integrated contract and giving effect to all its provisions — as we are obliged to do — we cannot and should not accept an interpretation that ignores the interplay of the terms, renders certain terms "inoperable," and creates a conflict where one need not exist (see, Chimart Assocs. v Paul, 66 N.Y.2d 570, 573; Williams Press v State of New York, 37 N.Y.2d 434, 440).
Atrium argues that ambiguity exists — if at all — only with respect to the meaning of "willful default," analogizing this case to Graff v Billet ( 64 N.Y.2d 899). In Graff, this Court held that, until a sales contract was executed, a seller could not "willfully default" under a real estate brokerage agreement that provided that the broker earned its commission when title passed. Mere failure of the seller to enter into a sales contract could not be a "willful default" as that term was used in the brokerage agreement. Although the term "willful default" was susceptible of different interpretations, we resolved any ambiguity against the broker/drafter and granted summary judgment to the seller.
The Graff rule obviously cannot be mechanically applied to a loan brokerage agreement. As exemplified by this case, in loan brokerage agreements (unlike real estate brokerage agreements) there is no sales contract specifying the details of a closing that will take place in the future; the commitment letter itself contains such details. Here, for example, the commitment letter was signed by both parties, required a $150,000 down payment from Atrium, and obligated Carteret to lend $14.25 million, with closing to take place within 60 days. In addition, Atrium settled a subsequent lawsuit brought by Carteret for miscellaneous closing costs incurred by the lender.
The commitment letter thus may be analogized to the sales contract, placing the transaction in a "legally recognizable form" (Graff v Billet, 101 A.D.2d 355, 356, affd 64 N.Y.2d 899, supra). Just as signing a sales contract in Graff was the threshold legal requirement that could trigger a "willful default" by the seller, so execution of the commitment letter is the equivalent event in the lender/borrower context.
A broker ordinarily earns its commission when the ready, willing and able lender delivers a commitment letter to the borrower — unless the parties vary that rule (see, Dubin Weston, Inc. v Capano Sons, 394 F. Supp. 146, 154 [DC Del]). Here the parties did reach a different agreement: the commission was not to be earned until the money was taken down, until title to the funds actually passed. That would be the entire agreement if the "willful default" language had not been adopted. Instead, the parties inserted that term to establish a point in the transaction when the borrower could not willfully refuse to proceed without being obligated to pay the broker. Upon signing the commitment letter, paying the consideration, and locking in the right to borrow, Atrium obligated itself to pay the broker if it closed or if it willfully refused to close. Any other interpretation of the contract would render the "willful default" language utterly meaningless.
In Graff, the "willful default" language of the agreement was strictly construed against the broker/drafter, and summary judgment awarded to the seller. Here, where Atrium — not the broker — drafted the loan brokerage agreement, there is no reason again to read the "willful default" language strictly against the broker. As Graff is now even further extended beyond real estate agreements to loan commitments, this Court's message is plain: brokers should know that commission agreements will be read very strictly against them, whether or not they are the drafters. This is a message to be heeded at the time of contracting, if they are to have any hope of enforcing their bargains and collecting their commissions.
I would affirm the Appellate Division order granting summary judgment to the broker. As both the trial court and Appellate Division concluded, clearly this broker earned its commission.