Goldstein v. Miles
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Opinions
KRAUSER, Judge.
In this case, tort and contract law converge to produce a tort claim for fraud and negligent misrepresentation coupled with a demand for contract damages, a conceptual composite recognized by Maryland law.1 To assure that this hybrid is not used as a device to obtain contract damages where no enforceable promise or agreement exists or as a means to circumvent standard contract defenses, we join other jurisdictions today in holding that benefit-of-the-bargain damages are obtainable for such tortious conduct but only where there is in fact an enforceable bargain. The failure of appellants to allege, much less to produce, sufficient evidence of that, is fatal to their claim, leading us to conclude, for this and other reasons, that the circuit court did not err in granting summary judgment in favor of appellee.
The tort claim of which we speak was brought by former employees of the Law Offices of Stephen L. Miles,2 appellants Scott B. Goldstein, Esquire, and James K. MacAlister, Esquire. Relying upon the representations of appellee, Steven L. Miles, that he would sell his law firm to them when he retired, both men claim that they turned down other employment opportunities to stay with Miles’s firm. When Miles chose instead to sell his practice to the law firm of Saiontz & [409]*409Kirk, P.A.,3 Goldstein and MacAlister filed suit in the Circuit Court for Baltimore County, accusing him of fraud and negligent misrepresentation and requesting lost profits and benefítof-the-bargain damages.
Claiming that there was no evidence of any actionable promises, reasonable reliance, fraudulent intent, or actual damages, Miles moved for summary judgment as to both counts. The circuit court granted that motion, ruling that appellants had failed to produce sufficient evidence that they had ever struck a “bargain” with Miles to purchase his practice.
Requesting reconsideration of that decision, Goldstein and MacAlister submitted, among other things, the affidavit of Bruce D. Block, an attorney who, at one point, had considered purchasing the firm with Goldstein. The effect of that submission, however, was to convince the court that appellants had little cause to have brought the fraud and negligent misrepresentation claims in the first place: the affidavit flatly contradicted representations made by appellants at the summary judgment hearing concerning a statement Miles purportedly made to Block.
At that hearing, Goldstein and MacAlister represented to the court that Miles had told Block that he never intended to sell his practice to Goldstein and MacAlister. That statement conflicted with the Block affidavit that Goldstein and Miles subsequently produced at the reconsideration hearing. The affidavit stated that what Miles actually said to Block was that “he would not sell his law firm to Scott Goldstein, alone, due to the fact that [he] did not perceive that Mr. Goldstein had the financial backing or wherewithall [sic] to permit him to purchase the law firm.” After reaffirming its earlier decision that Miles was entitled to summary judgment on the benefit-of-the-bargain issue, the court then declared that it was granting [410]*410“Summary Judgment ... in favor of [Miles] on all counts and all issues.”
From that decision, Goldstein and MacAlister noted this appeal. Despite the circuit court’s pronouncement that it was granting summary judgment as to “all counts and all issues,” Goldstein and MacAlister mischaracterize the court’s ruling in their brief by stating, “the trial court properly determined that there were sufficient issues of fact on the issues of liability to submit this case to a jury.” Consistent with this misdescription of the circuit court’s holding, they present only one question for our review, and that question appears to focus principally, as does their argument, on whether there was sufficient evidence of benefit-of-the-bargain damages to survive a summary judgment motion. They frame that question as follows:
Did the trial court, by granting Appellee’s Motion For Summary Judgment and subsequently denying Appellants’ Motion for Reconsideration, abuse its discretion under Rules 2-501, 2-584, and 2-535 and improperly interpret the facts and law regarding the proper assessment of damages arising from ... properly presented and supported counts in fraud and negligent misrepresentation, when it determined that Appellants’ theories of damages, including “benefit of the bargain[,”] were not properly presentable to the trier of fact?
In the course of presenting their argument, however, appellants do touch upon whether Miles made actionable promises and whether they reasonably relied upon them by reciting the facts as they believed the evidence presented them. They did not, however, submit a reply brief though these issues were fully developed and presented in Miles’s brief.
FACTS
The parties present a farrago of facts. Their frequent inability to assign dates to the very statements or actions upon which the principal claims rest, or even, at times, to establish a comprehensible sequence of events, has required us to [411]*411engage in a painstaking review of the record. Complicating matters further, appellants have lumped together material and, according to appellants, false representations that Miles purportedly made, at different times, to different combinations of potential purchasers, to presumably create the impression that all of the alleged misrepresentations are relevant to their claim. Only some are.
In reviewing the facts below, one must keep in mind that, during the roughly fifteen year period they cover, there were at least four different sets of potential buyers: (1) Goldstein and MacAlister; (2) Goldstein and Tom Bernier; (3) Goldstein, MacAlister, and Bernier; and (4) Goldstein and Bruce D. Block. But, for the purposes of this appeal, the only relevant purchasing unit is Goldstein and MacAlister. They are the ones who brought this suit and now this appeal. Consequently, the only representations that are material to the claims of fraud and negligent misrepresentation now before us are those that are relevant to the attempt of Goldstein and MacAlister to buy the firm together. With this in mind, we now turn to the facts of this case as presented in the pleadings, the depositions, and the affidavits submitted both in support of and in opposition to appellee’s motion for summary judgment.
Miles’s law firm, the Law Offices of Stephen L. Miles, concentrated in personal injury law. Miles marketed his firm by appearing in television commercials, and the firm prospered. In 1985, Goldstein joined Miles’s firm as an associate. When he interviewed for that position, Miles told him, “If it worked out to be a marriage between [them], [his] future would be very bright.”
As time passed, Miles began to spend, according to Gold-stein, “less and less time in the practice,” while Goldstein’s “level of responsibility and [his] commitment to the practice in the form of hours and obligations ... drastically increased].” Goldstein maintained that he was largely responsible for managing the firm, and generally worked sixty or seventy hours per week. Consistent with his growing responsibilities, Gold-[412]*412stein’s salary increased during his employment with Miles, reaching a high of $198,000 in 1994 or 1995.4
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KRAUSER, Judge.
In this case, tort and contract law converge to produce a tort claim for fraud and negligent misrepresentation coupled with a demand for contract damages, a conceptual composite recognized by Maryland law.1 To assure that this hybrid is not used as a device to obtain contract damages where no enforceable promise or agreement exists or as a means to circumvent standard contract defenses, we join other jurisdictions today in holding that benefit-of-the-bargain damages are obtainable for such tortious conduct but only where there is in fact an enforceable bargain. The failure of appellants to allege, much less to produce, sufficient evidence of that, is fatal to their claim, leading us to conclude, for this and other reasons, that the circuit court did not err in granting summary judgment in favor of appellee.
The tort claim of which we speak was brought by former employees of the Law Offices of Stephen L. Miles,2 appellants Scott B. Goldstein, Esquire, and James K. MacAlister, Esquire. Relying upon the representations of appellee, Steven L. Miles, that he would sell his law firm to them when he retired, both men claim that they turned down other employment opportunities to stay with Miles’s firm. When Miles chose instead to sell his practice to the law firm of Saiontz & [409]*409Kirk, P.A.,3 Goldstein and MacAlister filed suit in the Circuit Court for Baltimore County, accusing him of fraud and negligent misrepresentation and requesting lost profits and benefítof-the-bargain damages.
Claiming that there was no evidence of any actionable promises, reasonable reliance, fraudulent intent, or actual damages, Miles moved for summary judgment as to both counts. The circuit court granted that motion, ruling that appellants had failed to produce sufficient evidence that they had ever struck a “bargain” with Miles to purchase his practice.
Requesting reconsideration of that decision, Goldstein and MacAlister submitted, among other things, the affidavit of Bruce D. Block, an attorney who, at one point, had considered purchasing the firm with Goldstein. The effect of that submission, however, was to convince the court that appellants had little cause to have brought the fraud and negligent misrepresentation claims in the first place: the affidavit flatly contradicted representations made by appellants at the summary judgment hearing concerning a statement Miles purportedly made to Block.
At that hearing, Goldstein and MacAlister represented to the court that Miles had told Block that he never intended to sell his practice to Goldstein and MacAlister. That statement conflicted with the Block affidavit that Goldstein and Miles subsequently produced at the reconsideration hearing. The affidavit stated that what Miles actually said to Block was that “he would not sell his law firm to Scott Goldstein, alone, due to the fact that [he] did not perceive that Mr. Goldstein had the financial backing or wherewithall [sic] to permit him to purchase the law firm.” After reaffirming its earlier decision that Miles was entitled to summary judgment on the benefit-of-the-bargain issue, the court then declared that it was granting [410]*410“Summary Judgment ... in favor of [Miles] on all counts and all issues.”
From that decision, Goldstein and MacAlister noted this appeal. Despite the circuit court’s pronouncement that it was granting summary judgment as to “all counts and all issues,” Goldstein and MacAlister mischaracterize the court’s ruling in their brief by stating, “the trial court properly determined that there were sufficient issues of fact on the issues of liability to submit this case to a jury.” Consistent with this misdescription of the circuit court’s holding, they present only one question for our review, and that question appears to focus principally, as does their argument, on whether there was sufficient evidence of benefit-of-the-bargain damages to survive a summary judgment motion. They frame that question as follows:
Did the trial court, by granting Appellee’s Motion For Summary Judgment and subsequently denying Appellants’ Motion for Reconsideration, abuse its discretion under Rules 2-501, 2-584, and 2-535 and improperly interpret the facts and law regarding the proper assessment of damages arising from ... properly presented and supported counts in fraud and negligent misrepresentation, when it determined that Appellants’ theories of damages, including “benefit of the bargain[,”] were not properly presentable to the trier of fact?
In the course of presenting their argument, however, appellants do touch upon whether Miles made actionable promises and whether they reasonably relied upon them by reciting the facts as they believed the evidence presented them. They did not, however, submit a reply brief though these issues were fully developed and presented in Miles’s brief.
FACTS
The parties present a farrago of facts. Their frequent inability to assign dates to the very statements or actions upon which the principal claims rest, or even, at times, to establish a comprehensible sequence of events, has required us to [411]*411engage in a painstaking review of the record. Complicating matters further, appellants have lumped together material and, according to appellants, false representations that Miles purportedly made, at different times, to different combinations of potential purchasers, to presumably create the impression that all of the alleged misrepresentations are relevant to their claim. Only some are.
In reviewing the facts below, one must keep in mind that, during the roughly fifteen year period they cover, there were at least four different sets of potential buyers: (1) Goldstein and MacAlister; (2) Goldstein and Tom Bernier; (3) Goldstein, MacAlister, and Bernier; and (4) Goldstein and Bruce D. Block. But, for the purposes of this appeal, the only relevant purchasing unit is Goldstein and MacAlister. They are the ones who brought this suit and now this appeal. Consequently, the only representations that are material to the claims of fraud and negligent misrepresentation now before us are those that are relevant to the attempt of Goldstein and MacAlister to buy the firm together. With this in mind, we now turn to the facts of this case as presented in the pleadings, the depositions, and the affidavits submitted both in support of and in opposition to appellee’s motion for summary judgment.
Miles’s law firm, the Law Offices of Stephen L. Miles, concentrated in personal injury law. Miles marketed his firm by appearing in television commercials, and the firm prospered. In 1985, Goldstein joined Miles’s firm as an associate. When he interviewed for that position, Miles told him, “If it worked out to be a marriage between [them], [his] future would be very bright.”
As time passed, Miles began to spend, according to Gold-stein, “less and less time in the practice,” while Goldstein’s “level of responsibility and [his] commitment to the practice in the form of hours and obligations ... drastically increased].” Goldstein maintained that he was largely responsible for managing the firm, and generally worked sixty or seventy hours per week. Consistent with his growing responsibilities, Gold-[412]*412stein’s salary increased during his employment with Miles, reaching a high of $198,000 in 1994 or 1995.4
Goldstein stated that, in 1997, Miles promised to pay him a salary of at least $200,000 that year, but did not. Instead, Miles paid him a salary of $166,000.
On several occasions, Miles discussed with Goldstein agreements that the two might enter regarding the practice, in the event that Miles died while Goldstein was still with the firm. In 1985 or 1986, Miles expressed the wish to enter into a “contingent death agreement,” providing that, upon his death, Goldstein and another associate would have the opportunity to purchase the law firm from his estate. Although a written agreement was drafted, it was never signed because, according to Goldstein, “Miles was [not] satisfied with the final draft.” In 1989 “Miles proposed the drafting and the execution of what he referred to as a nonequity partnership agreement,” Goldstein stated. Although drafted, that agreement was also never executed.
Miles stated, according to Goldstein, that the firm “would be sold to [him] as an acknowledgment of [his] longevity and [his] commitment to the practice[,] for less than what was otherwise perceived to be the market value.” Miles promised, he asserted, that Miles would sell the practice to him “on the terms that he knew that [Goldstein] could afford and make.”
Describing the understanding he purportedly had with Miles, Goldstein stated:
Mr. Miles ... regularly told me that we would hire an appraiser who would come in and would appraise the belongings of the practice ... the furniture or whatever there was, that we would agree on a payout for that, that ... we would agree on a percentage of the fees to be paid to him, that we would have to agree to affix a number for the good will, that he would take back the financing on the ... practice because he knew ... that I wouldn’t be able to ... [413]*413go out and borrow the kind of money necessary, so that he would hold the financing on it because what he was primarily interested in achieving from the sale of the practice was a stream of income....
But Goldstein acknowledged that the deal was also always contingent on Goldstein purchasing the firm with a partner acceptable to Miles. Even when he insisted that Miles “had essentially already guaranteed to [him] by 1993 that the practice would be [his],” he added, “along with co-participants.” Because Miles anticipated that any deal he might strike with Goldstein and MacAlister would require that the purchase price be paid over time, the continued profitability of the firm was of vital importance to him. He therefore stressed that he would only sell to Goldstein if another lawyer, acceptable to him, purchased the practice with Goldstein. To that end, Miles directed Goldstein “to go out to identify a potential [partner] or to identify a person to come in.” The plan, according to Goldstein, was that “that person would come in and they would work as an associate.” He explained that, “if it proved to be a marriage, as [Miles] call[ed] it, then that person would have an opportunity to have a nonequity type of profit sharing position. And then ultimately [Miles] would sell th[e] practice ... to [Goldstein] and that individual.”
Over the course of Goldstein’s employment with Miles, “a series of individuals ... were brought in with that intention.” But these individuals were ultimately either rejected by Miles as potential partners for Goldstein or they left Miles’s firm to pursue other employment opportunities.
Goldstein acknowledged that, as of 1993, the specific terms of the sale had not been agreed upon:
[T]here were not a lot of stone cold specifics that had been agreed upon. It was more a format, an outline within which the acquisition of the firm was to occur. There were certain things that were hard and fast.... That he absolutely would take back the financing, that he recognized that I would have to pay him off over a period of time, that he [414]*414wanted to have someone else involved in the practice in addition to myself.
It was agreed that he would be paid his money over an installment period of time so that he would have an income generated. It was agreed that he would make himself available to assist in the marketing of the law firm by performing on commercials.
Those are things that were clearly essential elements of the deal.
During his employment with Miles, Goldstein believed he did everything Miles asked of him in connection with the practice:
I did everything that this man asked me to do and exceeded that over a period of 15 years. I couldn’t have been more committed. And despite my efforts, my undying efforts, and despite the fact that I sat down and made a significant effort to negotiate with Mr. Miles in good faith, Mr. Miles refused to sell me the firm and Mr. Miles specifically misled me as far as his negotiations with other parties.
MacAlister testified at his deposition that he began working for Miles as an associate on January 8, 1990. Although satisfied with MacAlister’s performance as a trial lawyer, both Miles and Goldstein were deeply concerned about his “organizational skills.” Those concerns were apparently justified, as MacAlister admitted that his disorganized working habits were his “Achilles’ heel.”
In 1996, MacAlister accepted an offer of employment with the Baltimore firm of “Gordon, Feinblatt.”5 When MacAlister told Miles about the offer, Miles purportedly became upset, insisting that MacAlister meet him at his house to talk, while purportedly exclaiming: “I can’t believe you’re leaving me.... [415]*415[W]e can’t operate without you or, ... this is horrible or this is really bad news for us. I know I can talk you into staying.”
MacAlister met with Miles at his home, but upon arriving he cautioned: “I just want to emphasize to you I’m here out of respect for you. I never tell anybody I won’t listen to you, but I am committed to leaving. I’m leaving. I’ve given my word, and that’s the end of the story.” Describing the conversation that ensued, MacAlister stated:
I said okay. I’m not happy with the way you treat me and I’m not happy with the way you treat the staff.
And he said what have I ever done to upset you. And then he said I know, it’s because I yell at you all the time. I said, Steve, you don’t just yell at me all the time. It’s abusive yelling. You threaten to fire me all the time.
I now own two houses. I have a lot of mortgage payments, and I can’t afford an income interruption.
Miles promised not to threaten to fire or yell at MacAlister in the future and to meet the financial terms of the Gordon, Feinblatt offer. When MacAlister told Miles that those promises were not enough to induce him to stay, Miles offered to sell his firm, upon his retirement, to MacAlister, if he purchased it with Goldstein and Tom Bernier, another firm associate. That prompted the following exchange:
[Miles said] what if I offer the business to you. I said what does that mean. And he said when I turn 60, you, Scott and Tom [Bernier] will buy me out....
[T]his would have to be subject to [Goldstein’s] approval, and you guys wouldn’t have to put up any money. We would have the business appraised when I turn 60 or about that time.
You guys would have to guarantee me an income of like [$]175 to 200,000 a year until you paid it off out of firm proceeds. And that way you don’t have to come up with any money. You guys pay me off, I continue to make ads for you the whole time while you guys are running the firm, and, of course, I’d keep some voice on how things were [416]*416going so you guys wouldn’t drive it into the ground, make sure my investment is safe.
Miles told MacAlister that the purchase price of the firm would be based on an appraisal but that it was “all subject to [Goldstein’s] approval.” MacAlister replied that he would think about it overnight, but that Gordon, Feinblatt would have to let him “off the hook” before he could accept Miles’s proposal.
When MacAlister informed Goldstein of Miles’s proposal, Goldstein responded that he already “had a 50/50 deal with Tom Bernier,”6 to purchase the firm. But, he added: “I really want you to stay.” Goldstein and MacAlister then agreed that MacAlister would have a greater role in the management of the firm. And Miles increased MacAlister’s salary while allegedly assuring him: “[W]e’ll put everything in writing. Don’t worry. You know, I’m totally committed. And, you know, I’ll never yell at you again.” |
When MacAlister told Tom Glancy, a partner at Gordon, Feinblatt, about Miles’s offer, Glancy purportedly advised him that, if he accepted Gordon, Feinblatt’s offer, after two or three years he would be “eligible for partnership.” MacAlister claims he replied: “I have an opportunity to own this business. I don’t come from money. I don’t come from a family that has the resources to buy into a partnership. I’ve got a chance in owning half an operation that makes quite a bit a money,” to which Glancy responded that the decision was MacAlister’s. Deciding to stay with Miles, MacAlister told Goldstein that “the deal was on.” That deal, according to MacAlister, was that he, Goldstein, and Bernier, would purchase Miles’s firm, and each would own a one-third interest in that firm. But, before that arrangement could materialize, Bernier left the firm.
[417]*417In oral and written communications, Miles frequently expressed his expectation that Goldstein and MacAlister would eventually purchase his firm. Summarizing the contents of emails sent by Miles, MacAlister stated: “They would say things, for example, ‘when you and Scott buy me out’ or ‘when you and Scott take over the practice’ or ‘when you and Scott some day, you know, when I turn 60, you and Scott come in here and take this place over.’ ” But, as Goldstein himself testified, it was understood by the parties that Miles would not sell his firm to them unless MacAlister made substantial progress in becoming “more organized in his day to day activities as an attorney in the practice” and more “accessible during normal work hours.”
MacAlister claims, however, that in 1997 Miles told him: “I want you to know whatever deal we have is on. You really turned yourself around. I’m very impressed with you. You’re trying a lot of cases. You’re getting great results.” In the summer of 1998, Miles, according to MacAlister, said that the “deal [was] a hundred percent on.”
In September 1998, Miles attended the bat mitzvah of one of Goldstein’s daughters. At that event, he had a conversation with Bruce D. Block, an attorney, in which he raised the subject of Block and Goldstein purchasing his firm. The colloquy lasted “a couple minutes,” but never amounted to more than, in Block’s words: “[M]aybe he was interested in selling and maybe I was interested in buying.” It was, at that time, that Miles told Block that “he would not sell his law firm to Scott Goldstein, alone, due to the fact that [he] did not perceive that Mr. Goldstein had the financial backing or wherewithall [sic] to permit him to purchase the law firm.” Goldstein and Block later discussed with one another, and then with Miles, the possibility of purchasing Miles’s firm. Describing the conversations that he and Block had with Miles, Goldstein stated:
We tried to reach various different agreements. And as a result of various different things that transpired during the course of those negotiations, things changed. At times, the purchase price was discussed at one level. At times, it was [418]*418discussed in another fashion.... There were different prices depending upon what Mr. Miles was willing to do and how it was going to work.
Two months after Miles first spoke with Block, Miles sent Goldstein an e-mail stating: “I want you and [Block] and me to know by no later than February 1st what we are doing because if you decide to leave, I want to start running an ad as soon as possible.” Goldstein replied by e-mail: “I will inform [Block] of your deadline of February 1st and he will try to put an offer together. If we don’t succeed, in light of your email, I imagine that I will not otherwise have an opportunity to buy you out.” Despite the February 1, 1999, deadline, Goldstein and Block did not submit an offer by that date.
In April 1999, Miles stated that he would accept a purchase price of $1.75 million to be paid over time at a five percent interest rate. He proposed that the entire purchase price would be paid to him as salary, making it tax deductible to what would be a new firm consisting of Goldstein and Block. That proposal was not accepted, and negotiations continued.
In May 1999, Goldstein and Block first mentioned a possible purchase price of $1.3 million and a downpayment of $100,000. Although Miles eventually said “okay” to both, he did not believe that Goldstein and Block had made “a firm offer,” because “they kept changing” the terms of their offer and never committed it to writing.
According to Goldstein, they “had been inching closer and closer to the deal,” but he acknowledged that, as of May 1999, no “agreement had been reached.” Miles characterized the discussions with regard to a purchase price, down payment, and interest rate, as “an ongoing thing.”
In the meantime, Goldstein had apparently left MacAlister in the dark as to his plans to buy the firm with Block. Sensing that something was amiss, MacAlister asked Gold-stein what was going on. Goldstein declined to discuss the matter with him and suggested he speak with Miles. When he did, Miles told him:
[419]*419I’m not going to lie to you. I’m looking to sell the firm. And I said we have a deal. And he said the deal was contingent on you being able to buy me out. You and [Goldstein] can’t buy me out. The business isn’t doing well. So, I’m looking to sell it to somebody else.
At some point, during the 1999 negotiations with Goldstein and Block, Miles disclosed that he was also negotiating with someone else. That disclosure prompted Goldstein and Block to present Miles with a written proposal to purchase his firm for $1.3 million. MacAlister testified that he “wasn’t involved” in the Goldstein and Block offer and that he “only found out afterwards once their offer had been rejected.”
In a handwritten note attached to that proposal, Goldstein wrote: “[Pjlease give this proposal genuine consideration. I want this opportunity. I hope that in weighing it against the other alternative, you always consider my loyalty.... ” In response, Miles told Goldstein that he would consider the offer over the weekend. According to Goldstein, Miles said “he wouldn’t reach a decision before Monday and that he would let me know.”
The other party, with whom Miles was negotiating, was the law firm of Saiontz & Kirk. At a meeting on May 15, 1999,7 Miles agreed to accept Saiontz and Kirk’s offer of $1.75 million for his firm. Although Miles informed Goldstein and Block that he was negotiating with someone else, he did not advise them that he had accepted an offer from Saiontz & Kirk. In fact, Goldstein only learned of that deal the weekend that Miles was supposed to be considering his and Block’s offer. Goldstein stated:
[0]n that Friday, he left the office and told me he wouldn’t reach a decision before Monday and that he would let me know. I would be the first person to know ultimately what his decision was. And Saturday morning, I picked up the [420]*420newspaper and found that he had consummated a deal with [the law firm of] Saiontz & Kirk prior to that time.
Goldstein and MacAlister produced expert testimony that they could have earned $9,510,068 from the firm had Miles sold it to them. They also claimed they were entitled to the difference between the value of the firm, which they allege was $2 million,8 and the $1.3 million that Miles allegedly agreed to accept from them as the purchase price.
MOTION TO DISMISS
Miles filed a motion to dismiss with this Court, which was denied without prejudice. Miles then renewed the motion in his brief to this Court, arguing that Goldstein and MacAlister’s appeal should be dismissed because they
(a) failed to order necessary transcripts timely, (b) failed to have the transcripts included in the Record transmitted to this Court, (c) misled the Court by claiming—contrary to the transcript—that they were unaware that a private court stenographer was used for the February 10 hearing, (d) never consulted [him] concerning the preparation of the Record Extract, and (e) unilaterally filed a 1200-page Record Extract that does not comply with the Rules and that contains obviously extraneous material.
In sum, Miles requests that this Court dismiss Goldstein and MacAlister’s appeal because the record extract did not comply with Maryland Rule 8-501, the rule governing the filing of record extracts. But Rule 8-501 states that, “[ordinarily, an appeal will not be dismissed for failure to file a record extract in compliance with this Rule.” Md. Rule 8-501(m).
The February 10, 2003 transcript, which Miles alleges was omitted from the record extract, was in fact included in the record extract. Other possible gaps in the record extract [421]*421were cured by Miles’s appendix to his brief, which included additional documents that he believed were improperly omitted. And while we agree with Miles that the record extract was voluminous and was not presented in the format required by Rule 8-501, it does not warrant dismissal of the appeal. Miles’s motion to dismiss is therefore denied.
MOTION TO STRIKE
Goldstein and MacAlister moved to strike Miles’s appendix, claiming that the documents in the appendix were not properly before the circuit court. They further claimed, in a separate motion to strike certain portions of Miles’s brief, that Miles’s brief addresses issues that are not before this Court, notably, whether they presented sufficient evidence of fraud or negligent misrepresentation.
The documents contained in Miles’s appendix were either pleadings filed in the circuit court, this Court, or the Court of Appeals, or they were exhibits to those pleadings. Furthermore, because the circuit court ultimately granted summary judgment in favor of Miles “on all counts and all issues,” the issue of whether the circuit court correctly ruled that Gold-stein’s and MacAlister’s claims for fraud and negligent misrepresentation did not survive Miles’s motion for summary judgment is before this Court. We therefore deny Goldstein and MacAlister’s motion to strike Miles’s appendix and their motion to strike and/or dismiss certain portions of Miles’s brief.
DISCUSSION
Goldstein and MacAlister contend that the circuit court erred in granting Miles’s motion for summary judgment on the ground that no bargain ever existed between the parties and that they were therefore not entitled to lost profits or benefit of the bargain damages. But that was not the only ground relied upon by the circuit court in granting summary judgment. Ultimately, as we noted in the introduction to this opinion, the court, on appellants’ motion for reconsideration, granted summary judgment in favor of Miles “on all counts [422]*422and all issues.” We shall nonetheless begin our analysis by first considering the benefit-of-the-bargain issue as that was the principal issue upon which the circuit court relied in granting summary judgment in favor of Miles.
Because this issue, and ultimately the case itself, were disposed of on a motion for summary judgment, our task is to “determine if there is a genuine dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.” Crews v. Hollenbach, 126 Md.App. 609, 624, 730 A.2d 742 (1999), aff'd, 358 Md. 627, 751 A.2d 481 (2000). We begin by resolving all inferences that may be drawn from the facts presented against the moving party. See Gross v. Sussex Inc., 332 Md. 247, 256, 630 A.2d 1156 (1993). If, after doing so, there is still not enough evidence from which a jury could reasonably find for the plaintiff, we affirm the circuit court’s grant of summary judgment for the defendant. See Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738-39, 625 A.2d 1005 (1993). In this instance, we agree with the circuit court that appellants failed to produce evidence from which a jury could reasonably find that the parties had entered into a bargain, the sine qua non of a claim for benefit-of-the-bargain damages in tort or contract, and shall therefore affirm the lower court’s decision.
Benefit-of-the-bargain Damages
In determining “the proper measure of damages in fraud and deceit cases,” Maryland applies the “flexibility theory.” Hinkle v. Rockville Motor Co., 262 Md. 502, 511, 278 A.2d 42 (1971). Under that theory, a victim of fraudulent or negligent misrepresentation may elect to recover either “out-of-pocket” expenses or benefit-of-the-bargain damages. The former will permit the plaintiff to recover his or her actual losses; the latter “put[s] the defrauded party in the same financial position as if the fraudulent representations had in fact been true,” Midwest Home Distrib., Inc. v. Domco Indus. Ltd., 585 N.W.2d 735, 739 (Iowa 1998), by awarding as damages “ ‘the difference between the actual value of the property at the time of making the contract and the value that it would [423]*423have possessed if the representations had been true.’ ” Hall v. Lovell Regency Homes Ltd. P’ship, 121 Md.App. 1, 12, 708 A.2d 344 (1998) (quoting Beardmore v. T.D. Burgess Co., 245 Md. 387, 390, 226 A.2d 329 (1967)). But, as will become evident, the benefit-of-the-bargain rule is not so elastic that every victim of a false representation is entitled to receive the benefit of what he or she was promised.
The flexibility theory is composed of four “conclusions” reached by the Supreme Court of Oregon in Selman v. Shirley, 161 Or. 582, 85 P.2d 384 (1938) and later cited with approval by the Court of Appeals in Hinkle. They are:
“(1) If the defrauded party is content with the recovery of only the amount that he actually lost, his damages will be measured under that rule;
(2) if the fraudulent representation also amounted to a warranty,9 recovery may be had for loss of the bargain [424]*424because a fraud accompanied by a broken promise should cost the wrongdoer as much as the latter alone;
(3) where the circumstances disclosed by the proof are so vague as to cast virtually no light upon the value of the property had it conformed to the representations, the court will award damages equal only to the loss sustained; and
(4) where .., the damages under the benefit-of-the-bargain rule are proved with sufficient certainty, that rule will be employed.”
Hinkle, 262 Md. at 511-12, 278 A.2d 42 (quoting Selman, 85 P.2d at 394).
Those four “conclusions” have been described as “four alternative methods available to an injured party in ascertaining damages arising from an action for fraud and deceit.” Aeropesca Ltd. v. Butler Aviation Int’l, Inc., 44 Md.App. 610, 630, 411 A.2d 1055 (1980). That description is misleading. The third conclusion is not an option for the plaintiff to choose but an instruction to the trial court to “ ‘award damages equal only to the loss sustained’ ” when “ ‘the circumstances ... are so vague as to cast virtually no light upon the value of the property had it conformed to the representations____’ ” Hinkle, 262 Md. at 512, 278 A.2d 42 (quoting Selman, 85 P.2d at 394). In other words, it instructs the court to award damages in accordance with conclusion (1), when the “vague” circumstances described in conclusion (3) prevail.
Conclusion (4) performs the same role for conclusion (2) that conclusion (3) performs for conclusion (1). While conclusion (3) permits the recovery of actual losses under conclusion (1) when “ ‘circumstances disclosed by the proof are so vague’ ” that no value can be assigned to “ ‘the property had it conformed to the representations,’ ” id. (quoting Selman, 85 P.2d at 394), conclusion (4) permits the recovery of benefit-of-the-bargain damages under conclusion (2) when damages [425]*425“ ‘are proved with sufficient certainty.’ ” Id. (quoting Selman, 85 P.2d at 394). In short, while conclusions (1) and (2) spell out two alternative measures of damages—out-of-pocket expenses and benefit-of-the-bargain damages—conclusions (3) and (4) define the evidential circumstances under which either or both may be obtained.
That is also born out by the way in which the Oregon court framed these four conclusions. Conclusions (1) and (2), the two different measures of recovery, are cast in parallel language, indicating that they are alternative choices, but conclusions (3) and (4) are not, signaling that the latter two conclusions are not two different rules of recovery, as conclusions (1) and (2) are, but descriptions of when the two alternative measures of damages, contained in conclusions (1) and (2), are applicable.
And, finally, to treat these four conclusions as “four alternative methods” for “ascertaining damages arising from an action for fraud or deceit” would in effect create two measures for obtaining benefit-of-the-bargain damages within the four conditions, rendering the flexibility theory either repetitious or internally inconsistent.
The flexibility theory thus presents two, not four, types of damages: “actual loss” and “benefit-of-the-bargain.” Its four conclusions instruct when one or both of these measures of damages are available to an injured party. And that construction is consistent with Professors Charles T. McCormick and William L. Prosser’s description of that theory. In describing the flexibility doctrine, Professor McCormick divided the four conclusions into two measures of damages, stating:
In the first place, it seems that in every case the defrauded plaintiff should be allowed to claim under the “out-of-pocket” loss theory if he prefers. In the second place, the plaintiff should be allowed to choose the other theory [benefit-of-the-bargain], and recover the value of the bargain as represented, if the trial judge, in his discretion considers that, in view of the probable moral culpability of the defendant and of the definiteness of the representations and the [426]*426ascertainability of the represented value, the case is an appropriate one for such treatment.
Charles T. McCormick, Handbook on the Law of Damages § 121, at 454 (1935) (footnotes omitted); see also William L. Prosser, Handbook of the Law of Torts § 105, at 752 (3rd ed.1964).
Nonetheless, the flexibility theory has caused some confusion among those state courts that have sought to adopt it. While some courts have embraced the notion that this theory creates only two measures of damages. See, e.g., Edward J. DeBartolo Corp. v. Coopers & Lybrand, 928 F.Supp. 557, 565 (W.D.Pa.1996) (applying Pennsylvania law); Sorensen v. Gardner, 215 Or. 255, 334 P.2d 471, 476 (1959); Staley v. Taylor, 165 Or.App. 256, 994 P.2d 1220, 1225 (2000). Others have not. See, e.g., McConkey v. AON Corp., 354 N.J.Super. 25, 804 A.2d 572, 588-89 (App.Div.2002). The latter case treated conclusions (2) and (4) as if they created separate and distinct kinds of damages, ruling that to obtain benefit-of-the-bargain damages under conclusion (4) does not require proof of a warranty or a promise under conclusion (2). See McConkey, 804 A.2d at 588-89. And that is the position, which Goldstein and MacAlister now urge this Court to adopt.
But this difference of opinion need not divert us. The question of whether Goldstein and MacAlister were required to prove that Miles’s representations constituted a “warranty” under conclusion (2) lies beyond the scope of our review, because Goldstein and MacAlister have not been able to show, as the circuit court held, that they had ever entered into a bargain with Miles to purchase his firm.
To recover beneflt-of-the-bargain damages, Goldstein and MacAlister must first show that they entered into a bargain with Miles for the purchase of his firm. See Hall, 121 Md.App. at 12, 708 A.2d 344 (describing damages under the benefít-of-the-bargain test as “ ‘the difference between the actual value of the property at the time of making the contract and the value that it would have possessed if the representations had been true’ ” (quoting Beardmore, 245 Md. at 390, [427]*427226 A.2d 329)); 37 Am.Jur.2d Fraud & Deceit § 416, at 408 (2001) (defining benefit-of-the-bargain as “the difference between the actual value of the property at the time of making the contract and the value that it would have possessed if the representations had been true”). But what is a bargain? That transactional contrivance can be best understood if we place it in a conceptual context. When we do, we discover that it is narrower in scope than an agreement but broader in scope than a contract.
“A contract is defined as ‘a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.’ ” Kiley v. First Nat’l Bank of Md., 102 Md.App. 317, 333, 649 A.2d 1145 (1994) (quoting Williston, supra, § 1.1, at 2-3). An “agreement,” on the other hand, is “a manifestation of mutual assent on the part of two or more persons.” Rest (Second) of Contracts § 3 (1981). It has “a wider meaning than contract, bargain or promise;” unlike a contract, it “contains no implication that legal consequences are or are not produced.” Id. cmt. a.
In between those two concepts lies a “bargain.” A bargain is “[a]n agreement between parties for the exchange of promises or performances.” Black’s Law Dictionary 143 (7th ed.1999) [hereinafter Black’s ]; see also Rest (Second) of Contracts, supra, § 3 (“A bargain is an agreement to exchange promises or to exchange a promise for a performance or to exchange performances.”). “By definition, therefore, the term bargain is both narrower than the term agreement in that it is not applicable to all agreements, and yet broader than the term contract, since it includes a number of promises that in themselves are not properly definable as contracts.” 1 Williston, supra, § 1.4, at 16-17 (footnote omitted).
“But a bargain is always an agreement for an exchange.” 1 Arthur Linton Corbin, Corbin on Contracts § 1.10, at 27 (Joseph M. Perillo ed., rev. ed.1993). “Since a bargain requires an agreement to exchange promises or performances, it is obvious that many agreements (that is man[428]*428ifestations of mutual assent) which do not contemplate an exchange do not fit within the definition of bargain.” 1 Williston, supra, § 1.4, at 17. But a “bargain is not necessarily a contract because the consideration may be insufficient or the transaction may be illegal.” Black’s, supra, at 143. Despite this theoretical distinction, however, the term “bargain,” when employed in the phrase “benefit-of-the-bargain damages,” has almost always referred to an “enforceable contract.”
While our appellate courts have not expressly required the existence of a “bargain” to obtain benefit-of-the-bargain damages in fraud and negligent misrepresentation cases, they have done so impliedly by only recognizing the legitimacy of such damages in fraud and negligent misrepresentation cases in which there was an actual contract between the parties. See, e.g., Downs v. Reighard, 265 Md. 344, 345, 349, 289 A.2d 299 (1972) (contract to complete a survey of a parcel of land); Hinkle, 262 Md. at 503, 513, 278 A.2d 42 (contract for sale of automobile); Hall, 121 Md.App. at 5-7, 708 A.2d 344 (contract to purchase newly-constructed homes); Ward Dev. Co. v. Ingrao, 63 Md.App. 645, 650, 660, 493 A.2d 421 (1985) (contract to purchase homes). And that appears to be the position of other jurisdictions. See, e.g., Am. Family Serv. Corp. v. Michelfelder, 968 F.2d 667, 671-72 (8th Cir.1992) (applying Iowa law); Edward J. DeBartolo Corp., 928 F.Supp. at 565 (applying Pennsylvania law); Sorensen, 334 P.2d at 476 (applying Oregon law).
What is more, in each of Maryland’s cases—Downs, Hinkle, Hall, and Ward—the deal authorized by the contract was consummated, which at least .one state court, see Gold v. Dubish, 193 Ill.App.3d 339, 140 Ill.Dec. 9, 549 N.E.2d 660, 667 (1989) (concluding that the benefit-of-the-bargain rule was “designed for situations where the transaction between the parties has actually been consummated based on the fraudulent representation”), as well as the official comments to section 549 of the Restatement (Second) of Torts, see Rest. (Second) of Torts § 549 cmts. g-1 (1977), has suggested is a [429]*429prerequisite to recovering benefit-of-the-bargain damages in a contract or tort action. That, of course, did not occur here. Moreover, while all of the Maryland “benefit-of-the-bargain” tort cases involved enforceable contracts, the instant case did not.
Nonetheless, Goldstein and MacAlister seek in tort that which they would have been denied in contract: benefit-of-the-bargain damages. Goldstein and MacAlister admit that they never had a contract to purchase Miles’s firm. Indeed, their counsel took it a step further by conceding, at the reconsideration hearing, that they did not even have an “agreed-to bargain.” Despite that stunning, though wholly warranted admission, Goldstein and MacAlister now they claim that they did in fact have a bargain with Miles: “the sale of [Miles’s] law firm to [them] at a specific price below market value.” The specific price, they claim, was $1,300,000.
Yet, it was undisputed that Miles never offered to sell the firm to Goldstein and MacAlister for that amount. That figure was first mentioned, not by Goldstein and MacAlister, but by Goldstein and Block, during their negotiations with Miles to purchase his firm. When Goldstein and Block later learned that Miles was negotiating with another party, the two of them placed that amount in a written proposal and submitted it to Miles. Attached to that proposal was a note from Goldstein urging Miles to accept what was the Goldstein and Block offer. Miles responded that he would have to think about their proposal over the weekend. But, while Goldstein and Block were waiting to hear from him, they learned that Miles had accepted an offer from Saiontz & Kirk to purchase his firm under more generous terms.
Because MacAlister was never a party to the proposal submitted by Goldstein and Block, and, in fact, did not even know of their offer until after it was rejected by Miles, he and Goldstein cannot claim that offer as theirs. In the end, there were two different purchasing units: Goldstein and Block and Goldstein and MacAlister. That Goldstein was a member of both sets of buyers may confuse but does not blur that [430]*430important distinction. Indeed, he and Goldstein cannot now complain that Miles rejected an offer that they, as a purchasing unit, never made. The only evidence of a “bargain” between Goldstein and MacAlister and Miles were statements by Miles that he would sell his firm to them, at a “below market value” price, when he retired. Those representations hardly constituted a bargain.
A bargain is “[a]n agreement between parties for the exchange of promises or performances.” Black’s, supra, at 143. But that definition requires further explication, as the term “promise,” has two different meanings: lay and legal. While the lay meaning of “promise denotes a pledge to which the law attaches no obligation,” Bryan A. Garner, A Dictionary of Modem Legal Usage 701 (2d ed.1995) (emphasis omitted), the legal meaning of the word “is synonymous with contract.” Id. (emphasis omitted).
We, of course, are only concerned here with the legal meaning of the word. A “legal” promise has been defined as “[t]he manifestation of an intention to act or refrain from acting in a specified manner, conveyed in such a way that another is justified in understanding that a commitment has been made.” Black’s, supra, at 1228. And that is the generally accepted definition. Rest. (Second) of Contracts, supra, § 2 (“A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.”); 1 Corbin, supra, § 1.13, at 35 (defining a promise as “an expression of commitment to act in a specified way ... communicated in such a way that the addressee of the expression may justly expect performance and may reasonably rely thereon”); 1 Williston, supra, § 1.2, at 10 (defining a promise as “ ‘a manifestation of intention to act or refrain from acting in a specified way,’ made in such a way ‘as to justify a promisee in understanding that a commitment has been made’ ” (quoting Rest. (Second) of Contracts, supra, § 2)); 17A Am.Jur.2d Contracts § 3, at 39 (2004) (defining a promise as a “manifestation of intention to act or refrain from acting in [431]*431a specified way, so made as to justify the promisee in understanding that a commitment has been made” (citing Rest. (Second) of Contracts, supra, § 2)).
But a promise is “ ‘illusory when its indefinite nature defies legal enforcement.’ ” Cheek v. United Healthcare of the Mid-Atlantic, Inc., 378 Md. 139, 150, 835 A.2d 656 (2003) (quoting Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 315 (6th Cir.2000)). For a promise to establish “an enforceable contract [it] must express with definiteness and certainty the nature and extent of the parties’ obligations.” Kiley, 102 Md.App. at 333, 649 A.2d 1145. “ ‘Vagueness of expression, indefiniteness and uncertainty as to any of the essential terms of an agreement have often been held to prevent the creation of an enforceable contract.’ ” Id. (quoting 1 Corbin, supra, § 4.1, at 525). “ ‘The parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean.’ ” Id. at 334, 649 A.2d 1145. (quoting Robinson v. Gardiner, 196 Md. 213, 217, 76 A.2d 354 (1950)). If the parties’ agreement is “ ‘so vague and indefinite that it is not possible to collect from it the intention of the parties, it is void because neither the court nor jury [can] make a contract for the parties.’ ” Id. (quoting Robinson, 196 Md. at 217, 76 A.2d 354).
Miles’s statements that he would sell Goldstein and MacAlister his firm for a price below market value, upon his retirement, were not enforceable promises. These assertions did not contain any material terms of the sale such as purchase price, date of sale, interest rate, or terms of payment. Without these terms, it is impossible to determine what “the nature and extent of the parties’ obligations” were, if any. Kiley, 102 Md.App. at 333, 649 A.2d 1145.
Because of the vague and indefinite nature of Miles’s assertions, Goldstein and MacAlister could not have reasonably relied on them. Rather, Miles’s assertions amounted to no more than statements of intention because they were not “communicated in such a way that the addressee of the expression [could] justly expect performance and ... reason[432]*432ably rely thereon.” 1 Corbin, supra, § 1.13, at 35. As Miles made no enforceable promise to Goldstein and MacAlister, the parties did not enter into a bargain.
Goldstein and MacAlister disagree and cite Midwest Home Distributor, Inc. v. Domco Industries Ltd., 585 N.W.2d 735 (Iowa 1998) and American Family Service Corp. v. Michelfelder, 968 F.2d 667 (8th Cir.1992), in support of their claim that they had reached a bargain with Miles. Neither case supports that claim.
In fact, as the claim for benefit-of-the-bargain damages in both cases rested on an enforceable written agreement—a distributorship agreement in Midwest Home Distributor, Inc., and a letter of intent in American Family Service Corp.—they highlight the evidentiary gap in Goldstein and MacAlister’s claim: the absence of an enforceable agreement.
In the former case, Midwest, a floor covering distributor, entered into a distributorship agreement with Domco, a vinyl floor manufacturer. Midwest Home Distrib., Inc., 585 N.W.2d at 737. Relying upon Domco’s representations that Domco “was growing and increasing its market share in the United States” and Domco’s promises that Midwest would be “the only stocking distributor of Domco’s product in Iowa,” Midwest agreed to become a Domco stocking distributor in October 1988. Id. Despite those assurances, Domco then entered into a written agreement with another corporation, Onthank, making Onthank a Domco stocking distributor in Iowa as well. Id. When Iowa’s market could not support both stocking distributors, Domco terminated Midwest’s distributorship. Id.
Midwest sued Domco, claiming,' among other things, that Domco fraudulently misrepresented that it would be Iowa’s only stocking distributor for Domco and that Domco’s market share was growing. Id. at 737-38. A jury awarded Midwest $400,000 in compensatory benefit-of-the-bargain damages together with $750,000 in punitive damages. Id. at 738.
Affirming the decision below, the Supreme Court of Iowa held that a reasonable jury could have found that “had Dom[433]*433co’s statements been true (that is, that Domco was a growing company and Midwest would remain sole distributor), Midwest would have benefitted financially.” Id. at 742. It consequently concluded that “[t]he jury’s award of $400,000 [in benefit-of-the-bargain damages] was supported by the evidence.” Id. It also affirmed the jury’s award of punitive damages. Id. at 743.
In the latter case, while negotiating with Pamela and Ted Michelfelder and Michelfelder, Inc. (“the Michelfelders”) to purchase their child care business, American Family Service Corporation (“AFSC”) learned that the Michelfelders were negotiating with another party. Am. Family Serv. Corp., 968 F.2d at 668. When AFSC demanded “a guarantee of exclusive bargaining rights,” the Michelfelders sent AFSC a letter stating: “LW]e will not negotiate with any other buyer until you have the opportunity to complete your due diligence and a definitive agreement has been achieved.” Id.
AFSC and the Michelfelders then signed a letter of intent wherein the Michelfelders agreed to sell their business to AFSC. Id. at 668-69. The letter included a “no-shop clause,” which stated:
[N]either the Companies nor any shareholder, officer, director, agent or representative or any of them shall, directly or indirectly, solicit any proposal to acquire any or all of the Business Assets, any or all of the stock of the Companies, or negotiate or enter into any discussions with any person concerning such matters.
Id. at 669.
Despite the assurances that the Michelfelders gave AFSC, they entered into a contract to sell their child care business to a third party. Id. at 670. When AFSC learned of this, it filed suit against the Michelfelders10 for fraud and breach of contract. Id. A trial followed, and, at its conclusion, a jury awarded damages to AFSC on both counts, specifically grant[434]*434ing AFSC benefit-of-the-bargain damages on its claim of fraud. Id.
Concluding that the damages that AFSC suffered as a result of the Michelfelders’ fraud were the same as the damages they suffered as a result of the breach of contract, the trial court reduced the fraud award and limited the total damages to those that were originally awarded by the jury on the breach of contract claim. Id. at 671. The United States Court of Appeals for the Eighth Circuit disagreed. It found that “trial evidence demonstrated that if the Michelfelders had dealt exclusively with AFSC as they promised, AFSC would have bought the Michelfelders’ child care business and benefit-fed financially from [that] acquisition.” Id. at 671-72. AFSC was therefore entitled, the court concluded, to benefit-of-the-bargain damages in the amount awarded by the jury because that was the amount the jury determined AFSC would have benefitted under the bargain had “the Michelfelders [not] fail[ed] to live up to their promise of exclusivity.” Id. at 672 & n. 6.
Thus, the two cases chiefly relied upon by Goldstein and MacAlister to bolster their claim for benefit-of-the-bargain damages actually undermine that claim by highlighting that, unlike Midwest Home Distributor, Inc., and American Family Service Corp., their claim did not rest on an enforceable agreement.
Fraud and Negligent Misrepresentation Claims
The vagueness and generality of Miles’s statements to Goldstein and MacAlister, concerning the purchase of his law firm, not only undermine Goldstein’s and MacAlister’s demand for benefit-of-the-bargain damages but their claim they were victims of fraud and negligent misrepresentation as well. Just as a plaintiff must show that he reasonably relied upon the defendant’s promises to receive benefit-of-the-bargain damages, so must he show such reliance to recover for fraud or negligent misrepresentation. The statements attributed to Miles did not provide a basis for either.
To prevail on a claim for fraud, the plaintiff must prove:
[435]*4351) that the defendant made a false representation to the plaintiff;
2) that its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth;
3) that the misrepresentation was made for the purpose of defrauding the plaintiff;
4) that the plaintiff relied on the misrepresentation and had the right to rely on it; and
5) that the plaintiff suffered compensable injury resulting from the misrepresentation.
Sass v. Andrew, 152 Md.App. 406, 429, 832 A.2d 247 (2003) (quoting Nails v. S & R, Inc., 334 Md. 398, 415, 639 A.2d 660 (1994)).
Similarly, on a claim lor negligent misrepresentation, the plaintiff must prove:
(1) the defendant, owing a duty of care to the plaintiff, negligently assert[ed] a false statement;
(2) the defendant intend[ed] that his statement [would] be acted upon by the plaintiff;
(3) the defendant ha[d] knowledge that the plaintiff [would] probably rely on the statement, which, if erroneous, [would] cause loss or injury;
(4) the plaintiff, justifiably, [took] action in reliance on the statement; and
(5) the plaintiff suffered] damage proximately caused by the defendant’s negligence.
Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 337, 439 A.2d 534 (1982).
In support of their contention that Miles’s misrepresentations constituted fraud or, at the very least, negligent misrepresentation, Goldstein and MacAlister point to the same assertions that they did to support their claim for benellt-of-thebargain damages, that is, statements that Miles allegedly made that he would sell Goldstein and MacAlister his law firm for less than its market value when he retired. Whether [436]*436Goldstein and MacAlister had “ ‘the right to rely’ ” on those statements, as required by their fraud claim, Sass, 152 Md.App. at 429, 832 A.2d 247 (quoting Nails, 334 Md. at 415, 639 A.2d 660), or could “justifiably take action in reliance” on those statements, as required by their negligent misrepresentation claim, Martens Chevrolet, Inc., 292 Md. at 337, 439 A.2d 534, turns on whether these assertions were more than a “statement of opinion, judgment or expectation.” Buschman v. Codd, 52 Md. 202, 207 (1879).
A statement that is “vague and indefinite in its nature and terms, or is merely a loose conjectural or exaggerated statement, is not sufficient to support” either a fraud or negligent misrepresentation action, because “such indefinite representations ought to put the person to whom they are made, upon the inquiry, and if he chooses to put faith in such statements, and abstained from inquiry, he has no reason to complain.” Id. As the Court of Appeals more recently observed: “Ordinarily ... the representation must be definite, and mere vague, general, or indefinite statements are insufficient, because they should, as a general rule, put the hearer upon inquiry, and there is no right to rely upon such statements.” Fowler v. Benton, 229 Md. 571, 579, 185 A.2d 344 (1962).
Miles’s assertions that he would sell his firm to Goldstein and MacAlister for less than its market value upon his retirement, were not expressions of a firm intention to sell the firm to them; they were, rather, statements of probability or expectation. See Buschman, 52 Md. at 207. The expectation was that if Goldstein and MacAlister were still employed by Miles when he was ready to retire, and if the parties could agree on terms of the purchase, an agreement to sell the practice would be reached, but this expectation does not amount to an actionable misrepresentation, if in fact it was ever a misrepresentation.
Other than a vague and general statement that the firm would be sold to Goldstein and MacAlister at a price below market value and that would occur at an unspecified date in [437]*437the future, namely, Miles’s retirement, the assertions did not contain any material terms of the sale. No purchase price, date of sale, interest rate, or terms of payment were discussed, much less agreed upon. Consequently, those statements were too indefinite, vague, and general to be considered as anything more than expressions of expectation or probability and therefore are not actionable as fraudulent or negligent misrepresentations.
Furthermore, in determining whether the reliance was reasonable, the background and experience of the party that relied upon the representation is relevant. See Parker v. Columbia Bank, 91 Md.App. 346, 362, 604 A.2d 521 (1992) (considering the relying party’s experience in the area of the transaction that occurred). This situation was not one in which one party was a sophisticated business entity and the other an inexperienced consumer. All of the parties in this matter—Goldstein, MacAlister, and Miles—were lawyers with many years of practice under their respective belts. It is not just unreasonable, but inconceivable, that experienced lawyers would have relied on such nebulous representations. Surely, they would have counseled a client that such representations were too vague to be relied upon, especially in the context of a million dollar deal. We therefore conclude that appellants failed to produce sufficient evidence that they reasonably relied upon Miles’s representations.
Goldstein’s Claim for Backpay
Although this issue was not presented, or even alluded to, in the “Question Presented” section of their brief, appellants, in the final paragraph of their brief, tack on the following claim: The circuit court erred because it “failed entirely to address the additional element of damages sought by Mr. Goldstein, in the amount of $33,000 for Miles’ failure to fulfill his obligations to pay Mr. Goldstein concerning his additional income for calendar year 1997.” The brief describes this claim as “an entirely separate claim for a fixed liquidated sum.” “At a minimum” according to the brief, Miles’s “motion for summary [438]*438judgment should have been denied on this aspect of the Appellants’ claims.” No further argument is presented.
But, at the hearing on Goldstein and MacAlister’s motion for reconsideration, the circuit court did address that issue, stating:
With respect to the $33,000 claim, of Mr. Goldstein, the evidence is that in the light most favorable to the Plaintiff that the promise was made in 1997 and it was for wages in 1997. Now, those wages became due, from the Plaintiffs evidence, at the end of 1997 for 1997 wages. It was due then. So that any action to recover on the failure to pay those wages accrued at that time within a reasonable time after the end of the year, after time enough to calculate whether Mr. Miles had earned $666,000 ... and to see how much Mr. Goldstein earned. But certainly more than three years have passed from the time that those wages, if due, were payable.... The Amended Complaint [raising this claim] was filed December 21st, 2001, but anyway, more than three years have passed. The claim is barred by the Statute of Limitations.
The record thus clearly shows that the circuit court did address Goldstein’s claim for backpay at the hearing on the motion for reconsideration. Because Goldstein argued only that the circuit court erred in failing to address the issue, we need not review the propriety of the circuit court’s ruling on that issue.
APPELLEE’S MOTION TO DISMISS DENIED.
APPELLANTS’ MOTION TO STRIKE APPELLEE’S APPENDIX AND MOTION TO STRIKE AND/OR DISMISS DENIED.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
Dissenting opinion by ADKINS, J.
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