Eckelman v. Marina Resorts Group, Inc.

43 Va. Cir. 537, 1997 Va. Cir. LEXIS 432

• Court: Fairfax County Circuit Court
• Decided: November 6, 1997
• Docket: Case No. (Law) 161092
• Status: Published

Opinion

By Judge Gerald Bruce Lee

This matter is before the Court on Plaintiff’s Motion to Reconsider the Court’s Order of September 5,1997, which sustained Defendant’s Flea in Bar. The issue is whether the newly-discovered evidence, a deed of trust note, senders Defendant, Mr. Emery Boudreau,¹ personally liable for a finder's commission fee on a corporate loan. Defendant has asserted a Plea in Bin* m Me grounds Mat an oral contract to answer Me debt of another is not enforceable under Me Statute of Frauds, Va.. Code §11-2(4). Plaintiff contends Mat Me deed of trust note shows Mat Mr. and Mrs. Boudreau were co-makers of Me Promissory Note securing Me corporate loan to Defendant Marina Resorts Group, Inc. Plaintiff contends Mat this writing takes Me oral agreement outside of the Statute of Frauds. Defendant contends Mat Me deed of trust note is evidence of Mr. and Mrs. Boudreau’s guarantee of a corporate obligation. However, Defendants argue this document does not personally obligate Me Boudreaus to pay a finder’s commission fee. The Court, after reviewing Plaintiffs Motion to Reconsider and Defendant’s Memorandum in Opposition to Plaintiffs Motion to Reconsider, denies Me motion. The Plamtiffs Motion is denied for Me reasons that follow.

Facts

Defendant, Emery Boudreau, President and Director of Marina Resorts Group, Inc., contacted Plaintiff Mr. Eckelman, a commercial loan finder or “factor” to request assistance in locating commercial financing for a project They agreed that Mr. Eckelman would receive a finder’s commission fee for placing the loan. Defendant Boudreau signed a fee agreement on Marina Resorts Group, foe., stationery agreeing to pay a fee for the services.

Thereafter, Plaintiff Eckelman arranged for Defendant Boudreau and Marina to place a loan with First Capital Services. Defendant Eckelman demanded his finder’s fee on the loan. Defendant Boudreau and Marina did not pay the fee. Plaintiff Eckelman filed a. Motion for Judgment against Defendant Mr. Boudreau^ in his individual capacity, and against Marina Resorts Group, foe., seeking monetary damages for the unpaid finder’s commission fees on the loan. Defendant Boudreau filed a Plea in Bar to Plaintiffs claim based on the Statute of Frauds.

On September 5, 1997, the Court, after hearing evidence, sustained Defendant’s Plea in Bar on foe grounds that foe Plaintiff did not have a writing evidencing that M. Boudreau personally agreed to pay foe finder’s commission fee debt of Marina Resorts, foe. Va. Code § 11-2(4).

Plea in Bar

At foe evidentiary hearing on foe Defendant’s Plea in Bar, foe Court considered foe letter agreement signed by M. Boudreau on corporate stationery and foe exhibits attached to foe Motion for Judgment

The February 23, 1995, finder’s commission fee agreement is on Marina Resorts Group, foe., stationery and signed by M. Boudreau. Plaintiffs Exhibit 1. The lender’s commitment letter states, “Pursuant to our meeting and our conversations regarding your request for funding foe Marina Projects, I am pleased to provide a formal Letter of Commitment to fund.” Additionally, foe letter requires that “A personal guarantee shall be provided by you and your wife ... .” Plaintiffs Exhibit 2. The court held that foe documents presented by Plaintiff did not show that M. Boudreau was personally obligated for foe corporate loan finder’s commission fee. The court held that foe documents showed that foe loan and finder’s commission fee agreement was made for foe benefit of foe corporation, Marina Resorts Group, Inc., and that M. Boudreau agreed to personally guarantee foe loan. As to foe finder’s commission fee, foe Court found that M. Boudreau had not signed a writing evidencing his personal agreement to pay a finder’s commission fee. Therefore, (he Court held that the action is barred by the Statute of Frauds, Va. Code § 11-2(4), because a contract to answer for die debt of another must appear in writing.

This case is similar to Janus v. Sproul, 250 Va. 90 (1995). In Janus, the defendant, an officer of fete corporate debtor, wrote plaintiff a letter on corporate letterhead acknowledging that a fee was due. The Supreme Court of Virginia held (hat the mere feet that the defendant signed the letter in his capacity as an officer of die corporation did not obligate him personally to pay for the corporation’s debt Therefore, in applying Janus to this case, Mr. Boudreau’s signature on the finder’s commission fee agreement on corporate letterhead did not constitute a personal obligation.

The newly-discovered evidence submitted by the Plaintiff is a deed of trust note signed by Mr. and Mrs. Boudreau, Chesapeake Marinas Limited Partnership, Club On Fishing Bay, and Marina Resorts Group, Inc. In considering the effect of this deed of trust note, the Court must weigh the new evidence in conjunction with the other documents previously submitted. The Court finds that this deed of trust note is evidence of Mr. and Mrs. Boudreau’s personal guarantee for the corporate loan as requited by the lender’s commitment This note does not show that Mr. Boudreau undertook to personally pay the commercial loan finder’s commission fee. The Plaintiff’s claim is barred by the Statute of Frauds, Va. Code § 11-2(4).

The Court’s Order of September 5, 1997, sustaining the Plea in Bar is reaffirmed. The Motion to Reconsider is denied.

1 Mr. Boudreau passed away, and tiie suit has continued against his estate.