Gen. Elec. Capital Corp. v. Tartan Fields Golf Club, Ltd.

2013 Ohio 4875

• Court: Ohio Court of Appeals
• Decided: October 30, 2013
• Docket: 13 CAE 04 0035
• Status: Published

Opinion

[Cite as Gen. Elec. Capital Corp. v. Tartan Fields Golf Club, Ltd., 2013-Ohio-4875.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

GENERAL ELECTRIC CAPITAL : JUDGES: CORPORATION : : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13 CAE 04 0035 : TARTAN FIELDS GOLF CLUB, LTD., : ET AL. : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 09 CVE 05 0709

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: October 30, 2013

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

KENNETH C. JOHNSON BRET A. ADAMS JUSTIN W. RISTAU 5003 Horizons Dr., Suite 200 100 S. Third St. Columbus, OH 43220 Columbus, OH 43215

TIMOTHY J. PATENODE JENNIFER C. RYAN 525 West Monroe St. Chicago, IL 60661 Delaware County, Case No. 13 CAE 04 0035 2

Delaney, J.

{¶1} Defendant-Appellant Tartan Fields Golf Club, Ltd. appeals the March 6,

2013 judgment entry of the Delaware County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

{¶2} On May 23, 2007, Defendant-Appellant Tartan Fields Golf Club, Ltd.

executed and delivered a Note to Plaintiff-Appellee General Electric Capital Corporation

(“GECC”) in the amount of $13,300,000. Under the terms of the Note, Tartan Fields

agreed to pay GECC in the manner and times provided in a related Loan Agreement

signed by the parties on May 23, 2007. As security for the payment of all indebtedness

due under the loan documents, Tartan Fields executed and delivered to GECC an

Open-End Mortgage, Security Agreement and Fixture Filing on May 23, 2007.

{¶3} In early 2009, Tartan Fields sought to renegotiate the Loan Agreement

and a related loan for another golf course business. GECC agreed to engage in

renegotiations regarding the Loan Agreement, but only upon terms and conditions set

forth in a letter dated April 30, 2009. Tartan Fields signed the letter on May 5, 2009.

The parties refer to the letter as the “Pre-Negotiation Agreement.” Relevant to this

appeal, the terms of the Pre-Negotiation Agreement were as follows:

Borrower [Tartan Fields] has requested Lender [GECC] engage in certain

discussions and negotiations concerning the Loan. Lender has agreed to

do so, but only upon the terms and conditions set forth in this letter (this

“Agreement”). When signed by each of us, this Agreement constitutes a

binding agreement between Borrower, Joinder Party and Lender with

respect to the subject matter hereof. * * * The primary purpose of this Delaware County, Case No. 13 CAE 04 0035 3

Agreement is to preserve all parties’ rights, claims and defenses during

such negotiations and discussions so that no party waives or relinquishes

any rights or incurs any obligations unless and until further written

agreement as described in Section 2 hereof is executed and delivered by

all parties.

1. Negotiations. No party will have any obligation to modify or amend the

Loan or any of the Loan Documents in connection with such negotiations

or otherwise; provided, however, Borrower and Joinder Party each

acknowledges and understands that modifications to the Loan Agreement

or the other Loan Documents may be requested or required by Lender in

connection with the negotiations. Any party may terminate the

negotiations at any time in its sole discretion, upon three (3) business

days’ prior written notice to the other party, without liability of any kind.

Unless a written agreement described in Section 2 hereof is executed and

delivered by all parties, no party will have any obligation or liability by

virtue of the commencement or termination of negotiations concerning the

Loan. In no event will any party be deemed to have waived any right,

incurred any liability or assumed any obligation by negotiating or by the

passage of time associated therewith unless and until a written agreement

to such effect as described in Section 2 hereof is executed and delivered

by all parties.

*** Delaware County, Case No. 13 CAE 04 0035 4

2. Only Written Agreements and Amendments. The parties agree that no

party will be bound by any agreement on any issue until reduced to writing

and executed by, and delivered to, all parties (such a written agreement

hereinafter referred to as a “Modification Agreement”). Each party

acknowledges and agrees that the execution of this Agreement by the

parties shall not constitute an agreement, consent, waiver, release, or

modification, oral, express, implied or otherwise, of the Loans, Borrower’s

obligations under the Loan Documents, or the Loan Documents, which

can only be effected by execution of a Modification Agreement.

3. Loan Documents Still in Force. Borrower acknowledges and agrees

that no agreement has been reached as to the renewal, extension or

modification of any of the Loan Documents. Notwithstanding any other

provisions to this Agreement or any claims of the parties to the contrary,

the Loan Documents and the respective rights and obligations of the

parties thereto are in full force and effect, and will remain in full force and

effect unless and until a Modification Agreement, which, by its terms,

amends or modifies any part of the Loan Documents, is executed and

delivered by the parties.

4. No Waivers. No negotiations or other action, including, without

limitation, acceptance by Lender of any payment due Lender under the

Loan, undertaken pursuant to this Agreement will constitute a waiver of, or

be deemed to prejudice any party’s rights under the Loan Documents,

including, without limitation, any rights or remedies conferred on Lender by Delaware County, Case No. 13 CAE 04 0035 5

any Event of Default or the occurrence of any event that, without the

giving of notice or passage of time or both, would constitute an Event of

Default under any of the Loan Documents, except to the extent specifically

stated in a Modification Agreement. Notwithstanding anything to the

contrary contained in this Agreement and subject to any applicable notice,

grace or cure periods, Lender reserves the right to exercise any right or

remedy available to Lender pursuant to the Loan Documents or by

applicable law or in equity during the pendency of the negotiations,

including, but not limited to, the right to deliver notice to Borrower or

pursue any remedy regarding an Event of Default, and nothing herein will

operate to restrict, inhibit, or prohibit Lender from exercising any such right

or remedy.

***

12. No Special Duty. Borrower acknowledges, for and on behalf of each

Borrower Party, that Lender has no fiduciary, confidential or special

relationship with Borrower or Borrower Party and no such relationship is

created by the execution of this Agreement or the participation by Lender

in the negotiations contemplated by this Agreement.

17. Miscellaneous. This Agreement constitutes our entire agreement

concerning the subject matter hereof and all prior or contemporaneous

understanding, oral representations or agreements had among the parties

with respect to the subject matter hereof are merged in, and are contained

in, this Agreement. The parties expressly state that they did not rely on Delaware County, Case No. 13 CAE 04 0035 6

any representation, oral or written, not contained in this Agreement in

reaching their respective decisions to enter into this Agreement. This

Agreement will inure to the benefit of, and be binding upon, the parties

hereto and their respective heirs, successors and assigns, and will be

governed by, and interpreted in accordance with Ohio law. * * *

{¶4} The referred to loan documents required Tartan Fields to make a loan

payment on May 1, 2009. Tartan Fields did not make the payment on May 1, 2009.

Under Section 10.1 of the Loan Agreement, the failure to pay a regularly scheduled

installment of principal, interest or other amount due under the loan documents within

five days after the date when due, or the borrower’s failure to pay the loan at the

maturity date, constituted an “Event of Default.” In the Event of Default, the unpaid loan

principal balance became immediately due and payable.

{¶5} On May 13, 2009, GECC sent Tartan Fields a letter notifying Tartan

Fields the unpaid principal balance of the loan was immediately due and payable,

including the unpaid interest.

{¶6} GECC filed a complaint in foreclosure on May 29, 2009. Tartan Fields

filed an answer and counterclaim, asserting ten affirmative defenses and

counterclaiming GECC breached the Pre-Negotiation Agreement, breached the duty of

good faith and fair dealing, and fraudulent failure to disclose material information.

{¶7} On January 7, 2013, GECC filed a motion for summary judgment on all its

claims and Tartan Fields’s counterclaims. Tartan Fields responded. The trial court

granted the motion for summary judgment on March 6, 2013. The issue remaining was

the amount due on the Note. The parties negotiated an Entry regarding the amount due Delaware County, Case No. 13 CAE 04 0035 7

on the Note. On April 3, 2013, the trial court granted foreclosure and set the balance

owed to GECC at $17,907,924.32 and ordered the property to be sold.

{¶8} It is from these judgments Tartan Fields now appeals.

ASSIGNMENTS OF ERROR

{¶9} Tartan Fields raises three Assignments of Error:

{¶10} “I. THE TRIAL COURT IMPROPERLY AWARDED SUMMARY

JUDGMENT BECAUSE TRIABLE ISSUES OF FACT EXISTED REGARDING

WHETHER THE PRE-NEGOTIATION AGREEMENT WAS A CONTRACT BETWEEN

GECC AND TARTAN.

{¶11} “II. THE TRIAL COURT ERRED IN FINDING NO FIDUCIARY DUTY

EXISTED BETWEEN GECC AND TARTAN AND THAT GECC BREACHED THE

COVENANT OF GOOD FAITH AND FAIR DEALING.

{¶12} “III. THE TRIAL COURT IMPROPERLY GRANTED SUMMARY

JUDGMENT BECAUSE TRIABLE ISSUES OF FACT EXISTED REGARDING GECC’S

ALLEGED FRAUD IN ISSUING THE PRE-NEGOTIATION AGREEMENT.”

ANALYSIS

Standard of Review

{¶13} The trial court granted summary judgment in favor of GECC on March 6,

2013. The three Assignments of Errors raised by Tartan Fields arise from this

judgment. We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which

provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading,

depositions, answers to interrogatories, written admissions, affidavits, Delaware County, Case No. 13 CAE 04 0035 8

transcripts of evidence in the pending case and written stipulations of fact,

if any, timely filed in the action, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a

matter of law. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation and only from the evidence or

stipulation, that reasonable minds can come to but one conclusion and

that conclusion is adverse to the party against whom the motion for

summary judgment is made, such party being entitled to have the

evidence or stipulation construed most strongly in the party's favor.

{¶14} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶15} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421,

429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996). Delaware County, Case No. 13 CAE 04 0035 9

I.

{¶16} Tartan Fields argues in its first Assignment of Error the trial court erred

when it determined the Pre-Negotiation Agreement was not a contract and found that

GECC did not breach the Pre-Negotiation Agreement by filing a complaint in

foreclosure. The basis of Tartan Fields’s argument is that the Pre-Negotiation

Agreement states the parties cannot terminate the negotiations without three days

business days’ prior written notice. Tartan Fields contends that when GECC filed the

complaint in foreclosure, the filing was an impermissible termination of the loan

modification negotiations between GECC and Tartan Fields. We disagree.

{¶17} In its March 6, 2013 judgment entry, the trial court held:

This Court has a legal duty to construe and enforce unambiguous

documents. In this case, nothing in the Pre-Negotiation Agreement

consents to the Borrower’s failure to make or to delay scheduled

payments during the negotiations or at any other time. Indeed, the Pre-

Negotiation Agreement expressly and unequivocally denies that it

modifies any obligation in the Loan Agreement or any other loan

document.

The parol evidence rule bars the Borrower’s reliance on any

communications during or in anticipation of negotiations, where the Loan

Agreement and the Pre-Negotiation Agreement both state that they are

the entire agreement and that they can be modified only by a writing

signed by both parties. Delaware County, Case No. 13 CAE 04 0035 10

{¶18} A review of the record shows that GECC has never disputed the Pre-

Negotiation Agreement was a binding contract between the parties. The trial court

interpreted the Pre-Negotiation Agreement as a contract. The dispute in this case is

over the terms of the Pre-Negotiation Agreement.

{¶19} When confronted with an issue of contract interpretation, our role is to give

effect to the intent of the parties. Westfield Ins. Group v. Affinia Dev., L.L.C., 2012–

Ohio–5348, 982 N.E.2d 132, ¶ 21 (5th Dist.). We will examine the contract as a whole

and presume that the intent of the parties is reflected in the language of the contract. In

addition, we will look to the plain and ordinary meaning of the language used in the

contract unless another meaning is clearly apparent from the contents of the

agreement. When the language of a written contract is clear, a court may look no

further than the writing itself to find the intent of the parties. “As a matter of law, a

contract is unambiguous if it can be given a definite legal meaning.” Sunoco, Inc. (R &

M) v. Toledo Edison, Co., 129 Ohio St.3d 397, 2011–Ohio–2720, 953 N.E.2d 285, ¶ 37

citing Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003–Ohio–5849, 797 N.E.2d

1256, ¶ 11.

{¶20} Under the unambiguous terms of the Pre-Negotiation Agreement, the

Agreement did not require GECC to formally terminate negotiations before enforcing the

terms of the Loan Agreement. Sections 1 and 3 of the Pre-Negotiation Agreement

unambiguously state GECC did not waive any rights under the loan documents and the

terms of the Loan Agreement remained in full force and effect during the negotiations.

Under the terms of the Loan Agreement, the failure to pay the monthly payment within Delaware County, Case No. 13 CAE 04 0035 11

five days of the due date constitutes an Event of Default. Section 4 of the Pre-

Negotiation Agreement states:

No negotiations or other action, including, without limitation, acceptance

by Lender of any payment due Lender under the Loan, undertaken

pursuant to this Agreement will constitute a waiver of, or be deemed to

prejudice any party’s rights under the Loan Documents, including, without

limitation, any rights or remedies conferred on Lender by any Event of

Default or the occurrence of any event that, without the giving of notice or

passage of time or both, would constitute an Event of Default under any of

the Loan Documents, except to the extent specifically stated in a

Modification Agreement. Notwithstanding anything to the contrary

contained in this Agreement and subject to any applicable notice, grace or

cure periods, Lender reserves the right to exercise any right or remedy

available to Lender pursuant to the Loan Documents or by applicable law

or in equity during the pendency of the negotiations, including, but not

limited to, the right to deliver notice to Borrower or pursue any remedy

regarding an Event of Default, and nothing herein will operate to restrict,

inhibit, or prohibit Lender from exercising any such right or remedy.

{¶21} The plain language of the Pre-Negotiation Agreement states the terms of

the Loan Agreement remained in full force and effect during the negotiation process.

There is no dispute of fact that Tartan Fields did not make a monthly payment required

under the terms of the Loan Agreement. The unambiguous language of the Pre-

Negotiation Agreement stated GECC could enforce its rights under the terms of the Delaware County, Case No. 13 CAE 04 0035 12

Loan Agreement during the negotiations. A formal termination of the negotiations was

not required to enforce the terms of the Loan Agreement. Reasonable minds can only

conclude the enforcement of the terms of the Loan Agreement was not a breach of the

Pre-Negotiation Agreement.

{¶22} Tartan Fields’s first Assignment of Error is overruled.

II., III.

{¶23} We consider the second and third Assignments of Error of Tartan Fields

together because they require similar analysis. Tartan Fields argues in its second

Assignment of Error the trial court erred when it found there was no fiduciary

relationship between the parties and GECC did not breach the covenant of good faith

and fair dealing. In its third Assignment of Error, Tartan Fields argues GECC engaged

in fraudulent misrepresentation during the negotiation process. Tartan Fields contends

there was a genuine issue of material fact whether GECC truly intended to renegotiate

the terms of the original Loan Agreement when it entered into the Pre-Negotiation

Agreement.

{¶24} Count Three of Tartan Fields’s complaint is fraudulent concealment. It

stated that when GECC agreed to modification of the Loan Agreement, it did not intend

to present the loan modification for approval to its loan committee. In order to

demonstrate fraud, Tartan Fields must show (a) a representation, or where there is a

duty to disclose, concealment of a fact, (b) which is material to the transaction at hand,

(c) made falsely, with knowledge of its falsity, or with such utter disregard and

recklessness as to whether it was true or false that knowledge may be inferred, (d) with

the intent of misleading another into relying upon it, (e) justifiable reliance upon the Delaware County, Case No. 13 CAE 04 0035 13

representation or concealment, and (f) a resulting injury proximately caused by the

reliance. Strategy Group for Media, Inc. v. Lowden, 5th Dist. Delaware No. 12 CAE 03

0016, 2013-Ohio-1330, ¶ 26 citing Developers Diversified Realty v. Coventry Real

Estate Fund II, LLC, 8th Dist. Cuyahoga No. 97231, 2012–Ohio–1056, ¶ 20.

{¶25} This Court has held that fraud is committed by a failure to disclose only

when the person is under a duty to disclose, and the duty to disclose arises when one

party has information that the other party is entitled to know because of a fiduciary or

another similar relation of trust and confidence between them. Strategy Group for

Media, Inc. at ¶ 28 citing Advanced Production Center, Inc. v. EMCO Maier Corp., 5th

Dist. Delaware No. 2003CAE03020, 2003–Ohio–6206, ¶ 14 citing Fed. Mgt. Co. v.

Coopers & Lybrand, 137 Ohio App.3d 366, 383–384, 738 N.E.2d 842 (10th Dist.2000).

A “fiduciary relationship” is a relationship in which special confidence and trust is

reposed in the integrity and fidelity of another and there is a resulting position of

superiority or influence, acquired by virtue of this special trust. Ed Schory & Sons, Inc.

v. Soc. Natl. Bank, 75 Ohio St.3d 433, 442, 662 N.E.2d 1074 (1996). In business

transactions where parties deal at arm's length, each party is presumed to have the

opportunity to ascertain relevant facts available to others similarly situated, and

therefore, generally neither party has a duty to disclose material information to the

other. Advanced Production Center, Inc., supra, citing Blon v. Bank One, 35 Ohio St.3d

98, 101, 519 N.E.2d 363 (1988).

{¶26} Generally, the relationship between a creditor and debtor is not a fiduciary

one, but is governed by freedom of contract. Kohl v. Natl. City Bank, 5th Dist.

Tuscarawas No. 05AP05033, 2006-Ohio-2031, ¶ 23 citing Stone v. Davis, 66 Ohio Delaware County, Case No. 13 CAE 04 0035 14

St.2d 74, 78, 419 N.E.2d 1094 (1981). In this case, the Pre-Negotiation Agreement

addresses the relationship of the parties. Section 12 of the Pre-Negotiation Agreement

states:

Borrower acknowledges, for and on behalf of each Borrower Party, that

Lender has no fiduciary, confidential or special relationship with Borrower

or Borrower Party and no such relationship is created by the execution of

this Agreement or the participation by Lender in the negotiations

contemplated by this Agreement.

There is no genuine issue of material fact that no fiduciary relationship or relationship of

special confidence exists between the parties in this case, either by contract or by law.

{¶27} Tartan Fields’s next argument is GECC breached the covenant for good

faith and fair dealing when it initiated foreclosure proceedings during the negotiation

process. This Court has held that the enforcement of the terms of a mortgage, even

during the pendency of negotiations, is not an act of bad faith. In CitiMortgage Inc. v.

Parrish, 5th Dist. Delaware No. 12 CAE 02 0011, 2012-Ohio-3778, we held:

In this case, the loan modification discussions, which were never

accepted by Appellants, did not bar the bank from seeking foreclosure.

The Ohio Supreme Court said in one foreclosure case that “[the lender]'s

decision to enforce the written agreements cannot be considered an act of

bad faith.” Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433,

662 N.E.2d 1074, 1996–Ohio–194. The Court then quoted the Seventh

Circuit Court of Appeals: “ ‘firms that have negotiated contracts are

entitled to enforce them to the letter, even to the great discomfort of their Delaware County, Case No. 13 CAE 04 0035 15

trading partners, without being mulcted for lack of “good faith.” ’ ” Id.,

quoting Kham & Nate's Shoes No. 2, Inc. v. First Bank of Whiting, 908

F.2d 1351, 1357 (7th Cir.1990). “Indeed,” said the Court, “[the lender] had

every right to seek judgment on the various obligations owed to it by [the

borrower] and to foreclose on its security.” Id.

In a recent Tenth District foreclosure case, U.S. Bank Natl. Assn. v.

Mobile Assoc. Natl. Network Sys., Inc., 195 Ohio App.3d 699, 961 N.E.2d

715, 2011–Ohio–5284, before the bank filed a foreclosure action, it and

the borrowers had agreed in a letter to negotiate about the borrowers'

obligations. The borrowers asserted that the letter agreement was a

binding contract that modified the loan to require the parties to negotiate.

They contended that the bank failed to negotiate, breaching the modified

loan. Until the bank negotiated, argued the borrowers, it should be

estopped from foreclosing. The Tenth District rejected this argument for

several reasons. Pertinent among them, the court said that the bank had

the right to initiate foreclosure proceedings. The court found that a

provision in the loan documents provided that “the bank was entitled to

immediately initiate foreclosure proceedings in the event of default.” U.S.

Bank at ¶ 1. “The bank's decision to pursue its contractual remedies,”

said the court, “cannot be considered to be an act of bad faith.” Id., citing

Ed Schory at 443, 662 N.E.2d 1074.

Also, in a Fifth District foreclosure case, Key Bank Natl. Assoc. v.

Bolin, 5th Dist. Stark No.2010 CA 00285, 2011–Ohio–4532, the trial court Delaware County, Case No. 13 CAE 04 0035 16

granted summary judgment for the lender on its foreclosure complaint.

The borrower argued that the trial court erred and abused its discretion by

doing so because the lender acted in bad faith and misrepresented to the

borrower that she could participate in a loan modification program. This

Court rejected this argument, finding no provision in the mortgage

document “prevent[ed] the lender from insisting on the strict performance

of the mortgage obligations.” Key Bank at ¶ 37.

Id. at ¶ 26-28.

{¶28} As we held above, the plain language of the Pre-Negotiation Agreement

states the terms of the Loan Agreement remained in full force and effect during the

negotiation process. There is no dispute of fact that Tartan Fields did not make a

monthly payment required under the terms of the Loan Agreement. The unambiguous

language of the Pre-Negotiation Agreement stated GECC could enforce its rights under

the terms of the Loan Agreement during the negotiations. There is no genuine issue of

material fact the enforcement of the terms of the Loan Agreement was not a breach of

the Pre-Negotiation Agreement.

{¶29} The second and third Assignments of Error of Tartan Fields are overruled. Delaware County, Case No. 13 CAE 04 0035 17

CONCLUSION

{¶30} The first, second, and third Assignments of Error of Defendant-Appellee

Tartan Fields Golf Club, Ltd. are overruled.

{¶31} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Farmer, J., concur.

HON. PATRICIA A. DELANEY

HON. WILLIAM B. HOFFMAN

HON. SHEILA G. FARMER