Doe Mountain Enterprises, Inc. v. Jaffe

908 A.2d 644, 171 Md. App. 1, 2006 Md. App. LEXIS 228
CourtCourt of Special Appeals of Maryland
DecidedSeptember 28, 2006
DocketNo. 2199
StatusPublished
Cited by2 cases

This text of 908 A.2d 644 (Doe Mountain Enterprises, Inc. v. Jaffe) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe Mountain Enterprises, Inc. v. Jaffe, 908 A.2d 644, 171 Md. App. 1, 2006 Md. App. LEXIS 228 (Md. Ct. App. 2006).

Opinion

WOODWARD, Judge.

From September through November 1998, appellant, Doe Mountain Enterprises, Inc. (“Doe Mountain”) sought to refinance its mortgage loan, which was then in default. Doe Mountain negotiated with appellee, Gary R. Jaffe, for such financing, and the negotiations culminated in a loan agreement, dated November 20, 1998, between Doe Mountain and JHR Funding, LLC (“JHR”). Within approximately six [4]*4months, Doe Mountain was in default of the new loan agreement, and, as a result, JHR took possession of Doe Mountain’s property and obtained a confessed judgment for the unpaid balance of the promissory note. On December 8, 2000, Doe Mountain filed a complaint in Circuit Court for Montgomery County, alleging a variety of contract and tort claims against Jaffe, JHR, (which later merged into appellee, Bear Creek Mountain Real Estate, LLC (“Bear Creek”),1) appellee, Southern Management Corporation Retirement Trust (“Southern Management”),2 appellee, David Hillman, and Michael D. Rubin.3 By order dated November 5, 2004, the circuit court granted appellees’ motions for summary judgment as to all claims of Doe Mountain, which ruling is the subject of this appeal. For the reasons set forth herein, we shall affirm the decision of the circuit court.

BACKGROUND

Preliminarily, we shall identify the parties in this complex civil action. Doe Mountain is a Pennsylvania corporation that owned and operated a ski resort in Berk’s County, Pennsylvania. William Buzbee bought stock in Doe Mountain in 1983 and became Doe Mountain’s president and sole shareholder in 1990. He is an attorney licensed to practice law in Maryland, with ten years’ experience as a real estate settlement attorney. JHR was a Maryland limited liability company created by Jaffe on October 1, 1998, to facilitate the loan transaction with Doe Mountain. Southern Management is a retirement trust, with Hillman as its trustee. Southern Management provided funds to JHR so that JHR could make the loan in question to Doe Mountain.

[5]*5In the spring of 1998, Doe Mountain had a mortgage loan with CoreStates Bank, N.A. (“CoreStates”), which had been in default for several months. Indeed, throughout the 1990’s, Doe Mountain was operating at a loss and had a history of defaulting on its mortgage obligations. The vice president of the bank, C.B. Cook, met with Buzbee to notify him that, because CoreStates was being bought out by First Union National Bank, CoreStates no longer wanted Doe Mountain in its portfolio and intended to sell the Doe Mountain mortgage loan. Cook informed Buzbee that the bank would give Doe Mountain a discount if it paid off its outstanding debt with CoreStates. Buzbee estimated that Doe Mountain needed $2,000,000.00 to pay off the mortgage loan and continue operating the ski resort.

In the summer of 1998, Buzbee sought financing from various sources to pay off the mortgage loan, but his efforts were fruitless. He stated in deposition testimony that he felt “desperate” because Doe Mountain was “behind the eight ball ... for pre-season.” Just before Labor Day 1998, Buzbee met with real estate broker Ray Romanick, who suggested that his father-in-law, Hillman, might give Doe Mountain a loan. Romanick reported back to Buzbee that Hillman was willing to loan him $1,000,000.00. Romanick then arranged for Buzbee to meet with Jaffe, as a source of financing for the other $1,000,000.00.

The first meeting between Buzbee, Jaffe, and Romanick took place in Jaffe’s office in early September 1998.4 Buzbee stated in his answers to interrogatories:

When we first met with Gary R. Jaffe in the fall of 1998, we advised him of our opportunity to pay our bank off at a substantial discount. We told him that it was important to keep this information confidential and that if others found out about this we could lose this opportunity. Jaffe agreed with us.

[6]*6In his deposition testimony, Jaffe confirmed that he understood Doe Mountain could pay off its mortgage loan at a substantial discount. The meeting concluded with Jaffe advising Buzbee that his investment company would investigate the status of the sM resort and the desirability of giving Doe Mountain a loan.

In the following days, Buzbee provided Jaffe with information on the ski resort, including tax returns, operating statements, inventory reports, and a property appraisal. Representatives of Doe Mountain met with Jaffe at least two more times before Romanick prepared two documents for Jaffe, Hillman, and Buzbee’s execution.

The first document was entitled “COMMERCIAL MORTGAGE LOAN COMMITMENT” and it stated that Doe Mountain “hereby applies ... for a loan commitment ... based upon the terms and conditions set forth herein.” Those terms provided for Jaffe and Southern Management, as the “Lender,” to loan Doe Mountain $1,000,000.00 for a term of five years with a yearly interest rate of twenty percent. The stated purpose of the loan was for “the acquisition of existing first mortgage lien from First Union National Bank in the approximate amount of $3,000,000.” The document imposed a duty of confidentiality on Doe Mountain and gave the Lender “the exclusive right to issue a commitment until the date which is 60 days from the date of submission of a complete loan package to Lender.”

The second document mirrored the first one, with identical terms for a $1,000,000.00 loan, the duty of confidentiality on Doe Mountain, and the right of exclusivity for the Lender. The only difference was that the stated purpose for this loan was “Second Mortgage Financing.” Apparently, Buzbee intended to use this money to pay vendors and open the resort in time for the upcoming ski season.

The parties agreed in the trial court that these two documents did not evidence loans themselves, but rather, only the [7]*7possibility of loans.5 This was indicated by the language contained in the documents that Doe Mountain was applying for mortgage loan commitments and by the language that the Lender had the exclusive right to issue the loans within sixty days. In this Court, appellees describe the documents in their brief as “conditional loan applications [that] constituted letters of intent or preliminary term sheets outlining possible loan terms.” Doe Mountain concedes this point when it writes in its reply brief that the documents “may not have constituted commitments to provide the financing described therein.”6

Buzbee brought the documents to two different attorneys, one in Pennsylvania and one in Maryland, both of whom advised him not to sign the documents. Notwithstanding the advice of his attorneys, Buzbee signed them. Jaffe and Hill-man signed also, and the date of execution was noted as September 22,1998.

An important turn of events occurred the following day, September 23, 1998. Jaffe telephoned Cook at CoreStates and offered to buy Doe Mountain’s mortgage loan directly from the bank for $1,000,000.00. Buzbee was not aware of this phone call. The next day, however, while meeting with Jaffe in Jaffe’s office, Buzbee learned that Jaffe intended to buy the loan directly from the bank. This arrangement, of course, differed from the original plan of loaning money to Doe Mountain so that it could pay off the loan with the bank.

[8]

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908 A.2d 644, 171 Md. App. 1, 2006 Md. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-mountain-enterprises-inc-v-jaffe-mdctspecapp-2006.