Fulcrum Financial v. Meridian Leasing ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-2417, 99-2459
Fulcrum Financial Partners,
Plaintiff-Appellant/Cross-Appellee,
v.
Meridian Leasing Corporation,
Defendant-Appellee/Cross-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 C 6074--John A. Nordberg, Judge.
Argued April 17, 2000--Decided October 26,
2000
Before Fairchild, Posner, and Diane P. Wood,
Circuit Judges.
Diane P. Wood, Circuit Judge. Fulcrum
Financial Partners (Fulcrum) and Meridian
Leasing Corporation (Meridian) worked as
partners in the computer leasing
business. When the parties’ relationship
began to break down over a series of
disputes, they entered into a
comprehensive Settlement Agreement. The
question now before us is how much that
Agreement really resolved. Fulcrum took
the position that it did not cover all
disputes between the parties and
accordingly brought an action alleging
that Meridian owed it money arising from
a few discrete business transactions.
Meridian and Fulcrum filed cross motions
for summary judgment, which the district
court granted in part and denied in part.
The parties have filed cross-appeals.
I
Underlying this dispute is a tangled web
of business relationships. Fulcrum is a
general partnership in the business of
leasing computer equipment. Until January
25, 1995, Meridian was a general partner
of Fulcrum. Article 7 of the partnership
agreement appointed Meridian as the
remarketing agent in charge of re-leasing
or selling Fulcrum’s equipment when
equipment leases terminated. Meridian was
also a general partner in another
partnership, FFP Acquisition Partners
(FFPA). The other partner in the FFPA
partnership was T.I.C. Leasing
Corporation (T.I.C.). FFPA, in turn,
owned 98 percent of Fulcrum. (T.I.C.,
which was owned by Turner Broadcasting
System, Inc. (TBS), was eventually sold
to Computer Systems of America (CSA).)
A series of disputes erupted among the
various partnerships, quickly followed by
two lawsuits, one in Georgia and the
other in Illinois. On January 25, 1995,
Meridian, Fulcrum, FFPA, T.I.C., TBS, and
CSA entered into a written Settlement
Agreement that contained the following
language with respect to its coverage:
WHEREAS the parties to this Agreement now
desire to fully and finally settle all
existing disputes and claims among
themselves, including, without
limitation, the matters raised in the
Georgia lawsuit and the Illinois lawsuit
and certain other matters resolved under
this Agreement;
* * *
In consideration of the promises made
herein, CSA, TBS and T.I.C., on its own
behalf and on behalf of FFPA, and for
their administrators, executors,
attorneys, successors, assigns, personal
representatives, agents, servants,
employees, affiliated entities, parents,
officers, directors, shareholders, and
all other persons claiming by, through
and under them, do hereby fully, finally
and forever release, remise, discharge
and forever acquit Meridian and its
administrators, executors, attorneys,
successors, assigns, personal
representatives, agents, servants,
employees, affiliated entities, officers,
directors, shareholders, and all other
persons claiming by, through and under
them, of and from any and all claims or
causes of action for damages or
injunctive relief, expenses, lost
profits, attorneys’ fees, liens, punitive
damages, penalties and/or other potential
legal or equitable relief of every kind
and nature including but not limited to
any claim which was or could reasonably
have been raised in the Georgia lawsuit,
except that this release is not intended
to, and shall not, act as a release of
any claims based in whole or in part on
facts or occurrences which were actively
concealed by Meridian or which arise, in
whole or in part, on or after the date of
this Agreement or under this Agreement or
the exhibits hereto.
In addition to settling claims, the
Settlement Agreement provided that
Meridian would withdraw from its partner
ships with both FFPA and Fulcrum and
transfer its interests in those
partnerships to CSA. But the separation
was not an unqualified one. Instead,
according to the Settlement Agreement,
"Meridian [would] remain remarketing and
lease administration agent to Fulcrum at
no cost to Fulcrum on such terms as set
forth in Exhibit D." Exhibit D, in turn,
said that "these terms shall govern the
remarketing arrangements between Fulcrum
and Meridian."
Regrettably, the Settlement Agreement
did not provide the global peace that
parties usually hope for. Instead, new
problems arose over Meridian’s
remarketing responsibilities, which led
to Fulcrum’s decision to file the present
action on August 29, 1997. Its complaint
alleged three separate claims. The first
two involved the proper distribution of
sales proceeds from one of Meridian’s
remarketing transactions. The third
alleged that Meridian improperly usurped
a business opportunity from its former
partner. The parties filed cross-motions
for summary judgment. Fulcrum prevailed
on Count I and Meridian on Counts II and
III. We review a grant of summary
judgment de novo, Silk v. City of
Chicago, 194 F.3d 788, 798 (7th Cir.
1999); the same standard of review also
applies to contract interpretation, as it
too is a question of law. River v.
Commercial Life Ins. Co., 160 F.3d 1164,
1169 (7th Cir. 1998). For the reasons
given below, we affirm in part and
reverse in part.
II
A. Allocation of Proceeds of September
1996 Remarketing Transaction
Under the Settlement Agreement, Meridian
was to serve as a remarketing agent for
Fulcrum’s equipment. Some of this
equipment was subject to subordinated
debt owed to Meridian; some was not. In
September 1996, Meridian remarketed four
groups of equipment, referred to in this
case as Schedule #4, Schedule #4A,
Schedule #4A-UP, and Schedule #4D (or
"the Escon channels"). The parties agree
that Schedule #4 was "Equipment" as
Exhibit D to the agreement defined the
term, and that Schedules #4A and #4A-UP
were "Upgrades," also as defined in
Exhibit D. The parties therefore agreed
that Meridian should receive the proceeds
of the sale of the Schedule #4 Equipment
and Fulcrum should receive the proceeds
of the sale of the Schedules #4A and #4A-
UP Upgrades. (We discuss in part C who
should receive the proceeds for the Escon
channels.)
The total sale price for all four groups
was $770,000. The parties agreed that the
fair market value of the Escon channels
was $80,000. They could not, however,
agree on a valuation of the remaining
Schedules (#4, #4A, and #4A-UP), which
meant that it was impossible at that
point to allocate the proceeds of the
sale between them. Meridian initially
proposed a valuation of Schedule #4 of
$345,000, leaving the value of Schedules
#4A and #4A-UP at $345,000. Fulcrum
disagreed and valued Schedule #4 at
$230,000. Meridian went ahead with its
valuation and sent Fulcrum a check for
$340,000, representing its valuation of
Schedules #4A and #4A-UP minus a $5,000
remarketing fee. Fulcrum disputed both
the allocation amount and the payment of
the fee; it therefore refused to cash the
check.
At an impasse, the parties invoked
Section IX of Exhibit D, which was
designed to deal with remarketing
transactions taking place after the
Settlement Agreement in which both
Equipment Subject to Subordinated Debt
and regular Equipment and/or Upgrades are
at issue:
Allocations. In connection with any
Remarketing involving both Equipment
Subject to Subordinated Debt and
Upgrades, any Remarketing proceeds (both
sales price and lease rentals) shall be
allocated between the Equipment Subject
to Subordinated Debt and Upgrades on the
basis of fair market value of the
respective components as of the effective
date of such Remarketing. If Fulcrum and
Meridian are unable to agree upon the
respective fair market values, the
allocation shall be settled by submission
of the dispute to four (4) nationally
recognized computer dealers . . . .
Appraisal reports shall be submitted by
each appraiser within seven (7) days
after his appointment and the respective
fair market values of the Equipment and
Upgrade at issue shall be the arithmetic
mean of all appraisals; provided,
however, if any appraisal deviates from
the arithmetic mean by more than twenty
percent (20%), said appraisal shall be
disregarded. . . .
Unfortunately for all involved, hindsight
reveals that this provision left a good
deal to be desired. Indeed, it is not
even clear how it should be
characterized. The parties refer to it as
the "arbitration" provision, but this
does not seem quite right. Rather than
provide for binding arbitration of the
allocation issue as a whole, the
provision merely lays out a means of
appraising the value of individual items
in those cases where the parties disagree
about fair market value. Moreover, the
four "arbitrators" do not come to a
decision; instead, each of them merely
appraises the value of the Equipment
and/or Upgrades and a mathematical
formula takes care of the rest. In the
end, however, it is not the terminology
that matters for this case; because the
parties have referred to this as the
"arbitration" provision, we will do so as
well.
The contract contemplates that the
respective fair market value of each item
of sold Equipment and Upgrades will be
determined independently. Although it
would have made logical sense for it also
to stipulate that the fair market value
of the individual items should add up to
the total sale price, nothing in the
Agreement so states. Naturally, as
believers in Murphy’s Law would say, that
omission proved to be exactly the problem
here.
As required by Section IX of the
Agreement, the four arbitrators appraised
the separate fair market values of
Schedule #4, Schedule #4A, and Schedule
#4A-UP. (The parties did not request a
fair market valuation for the Escon
Channels (Schedule D), because they had
already agreed that their fair market
value was $80,000.) The parties did not
instruct the arbitrators to adjust their
appraisals of the individual schedules
such that the total would equal $690,000
(the amount of the sale minus the value
of the Escon channels). The arithmetic
means of the four arbitrators’ valuations
for each Schedule were: Schedule #4:
$337,500; Schedule #4A: $161,667;
Schedule #4A-UP: $221,667. The total of
the means of the three fair market
valuations is $720,834. Taking into
account the $80,000 for the Escon
Channels, the total fair market valuation
for the sale is $800,834. This valuation
presents an obvious problem: it exceeds
the actual total sale amount of $770,000
by $30,834, or about 4%.
The district court read Exhibit D to
provide that any proceeds from the sale
of Equipment Subject to Subordinated Debt
would be paid to Meridian up to the
amount of the debt. The balance, if any,
would go to Fulcrum and any proceeds from
the sale of Equipment not subject to
subordinated debt would be paid to
Fulcrum. To figure out the amount of sale
proceeds from Equipment Subject to
Subordinated Debt, the district court
focused on the language in Section IX
that provides that sale proceeds from
mixed sales are to be "allocated between"
Equipment and Upgrades "on the basis of"
the fair market value of each. The
district court interpreted this language
to require that proceeds from the 1996
sale be allocated on a pro-rata basis. To
determine the pro-rata shares, the
district court took the mean fair market
valuation of each Schedule (including the
Escon channels) and divided the
individual Schedule value by the total of
the fair market valuation means (i.e.,
$800,834). The district court then took
these percentages and multiplied them by
the $770,000 actual sale price in order
to determine how much of the actual sale
price should be allocated to each
Schedule. Under this approach, the
district court arrived at the following
adjusted allocations: Schedule #4:
$324,506; Schedule #4A: $155,442;
Schedule #4A-UP: $213,132; Escon Channels
(Schedule D): $76,920.
Meridian raises three objections to the
district court’s procedure. First,
Meridian interprets the contract to
provide that it should receive the fair
market valuation of the Schedule #4
Equipment and that Fulcrum should receive
whatever is left over. In support of its
interpretation, Meridian argues that the
arbitrators were supposed to allocate the
purchase price "between" Equipment
Subject to Subordinated Debt and Upgrades
and that the district court erroneously
allocated the proceeds "among" Equipment
Subject to Subordinated Debt and each
particular Upgrade. We are not persuaded.
In fact, this argument clashes with the
plain language of the "arbitration"
provision, Section IX. According to
Section IX, the allocation shall be made
"on the basis of" the fair market
valuations; importantly, it does not say
that the fair market valuation must be
the actual amount either party would
receive. Why providing fair market
valuations of each particular Upgrade
makes any difference is mystifying;
whether the Upgrades are valued as a
group or whether they are valued
individually and then totaled makes no
difference.
The definitions of "between" and "among"
are not different enough to carry the day
for Meridian. "Between" can mean "shared
by," such as "by giving a portion of the
total to each." Webster’s Third New
International Dictionary (1993). "Among"
can mean "for distribution to" and "to be
shared by." Id. The part of the agreement
we are considering is titled
"Allocation," and it refers to an
"allocation between" Equipment and
Upgrades. "Allocation" is defined as "the
act of apportioning," id., and
"apportion" is defined in turn as "to
divide and assign in proportion" or "to
divide and distribute proportionately."
Id. Thus both the title of the provision
and its plain language imply that there
is a fixed pie that needs to be divided
proportionately--and that is precisely
what the district court did by using the
appraisers’ fair market valuations as the
basis for its determination of the pro-
rata shares of the sale proceeds. (We
imagine that were the circumstances
different--if, for example, the total
sales proceeds exceeded the total of the
means of the fair market valuations--
Meridian would not be urging such a
construction, for in that case, any
excess, under Meridian’s theory, would go
to Fulcrum.)
Second, Meridian argues that Fulcrum is
bound by the arbitration and that this
issue is not properly before the court.
But we are not sure what that means,
given the fact that the appraisals were
neither intended to nor did they resolve
the allocation question. There is thus no
"award" that can be enforced on the only
critical point. If Meridian believed that
the appraisers had not completed their
work, it should have sent the job back to
them.
Third, Meridian argues that even if the
district court was correct to make the
allocation on a pro-rata basis, the court
erred in including the $80,000 for the
Escon channels in determining the pro-
rata shares. But this argument runs
counter to a pro-rata methodology. The
$770,000 sales price represented the
value received for all four schedules;
the $80,000 figure was nothing more or
less than a private agreement on the
appraisal of one of them. In determining
what the pro-rata shares should be, it is
necessary to include every item.
Excluding some and including others would
distort the percentages.
The district court gave this part of the
contract the only logical reading that
was available. It allocated the sales
price on the basis of the fair market
values of each component, whether that
value was ascertained by agreement of the
parties or through the appraisal
procedure in the contract. We therefore
affirm the district court’s ruling on
Count I that Meridian is entitled to
$324,506 for Schedule #4 and Fulcrum is
entitled to $368,574 for Schedules #4A
and #4A-UP. As Meridian has already paid
Fulcrum $340,000, at this point Meridian
need only pay Fulcrum the balance:
$28,574.
B. Sprint Lease Upgrade
In Count II, Fulcrum claims that
Meridian overcharged it in the sale of an
upgrade for a lease to Sprint. Meridian
counters that Count II is barred by the
release of claims in the January 25,
1995, Settlement Agreement.
The history of this dispute is as
follows. On July 12, 1994, Meridian
offered Fulcrum the opportunity to
acquire an upgrade to the Sprint lease.
Section 9.9 of the FFPA partnership
agreement provided that before Meridian
could sell any upgrades to equipment
leased by Fulcrum’s customers, Meridian
had to offer Fulcrum the opportunity to
purchase and lease the upgrade. T.I.C.
accepted the offer by letter on July 14,
1994, indicating that it wanted Fulcrum
to acquire the upgrade as proposed by
Meridian. The gist of the complaint is
that Meridian erroneously estimated the
amount of the equity contribution Fulcrum
would have to make, resulting in an
overpayment of $52,278. Although the par
ties agreed (in writing) to the deal in
July 1994, the sale was not consummated
until January 27, 1995--two days after
the settlement agreement was signed.
The district court saw this as a
misrepresentation claim; Fulcrum argues
that it is an unjust enrichment claim. We
agree with the district court that the
better way to frame the claim is one for
misrepresentation or fraud, particularly
as under Georgia law, "[t]he theory of
unjust enrichment applies when as a
matter of fact there is no legal
contract." Brown v. Cooper, 514 S.E.2d
857, 860 (Ga. App. 1999); see also
Stowers v. Hall, 283 S.E.2d 714, 716 (Ga.
App. 1981). As there was a contract,
Georgia law rules out unjust enrichment
as a theory. In any event, the
distinction between misrepresentation and
unjust enrichment is one without a
difference in this context. As we explain
below, the claim turns on when it
accrued, and under Georgia law either
type of claim would not accrue until
there are damages, which in this case
would be Fulcrum’s payment to Meridian.
Meridian argues that the Settlement
Agreement released Fulcrum’s claim,
because the claim arose "in whole or in
part, on or after the date of this
[Settlement] Agreement." Fulcrum first
argues it is not bound by the Settlement
Agreement because it is not listed as one
of the parties in the release provision.
The district court found that this
argument made little sense, because (1)
it would be illogical for the critical
provision of the Settlement Agreement--
the release--not to apply to one of the
key parties; (2) Fulcrum is listed as one
of the parties entering into the
Settlement Agreement more generally; and
(3) the final "whereas" clause states
that "the parties" to the Agreement want
to "finally settle all existing disputes
among themselves."
So far so good. But we still need to
decide whether Fulcrum is bound by the
release term of the agreement. The
parties have devoted considerable energy
to arguments over the question whether
the language of the release provision
itself demonstrates that Fulcrum is (or
is not) so bound. We find it unnecessary
to resolve this somewhat messy question,
because there is an independent reason
for concluding that Fulcrum is not bound
for purposes of the claims at issue here.
Fulcrum argues that even if it is
covered by the release provision, the
provision does not apply to its claim
against Meridian, because the cause of
action accrued after the date of the
release. Citing no case law, the district
court disagreed and found that the
Settlement Agreement released Fulcrum’s
claim, because "the elements of any of
Fulcrum’s claims were present before the
date of the Settlement Agreement." The
district court also found that the
exception for claims "which arise, in
whole or in part, on or after the date of
this Agreement" did not apply.
We do not agree with the district
court’s reading of the release provision.
The Settlement Agreement’s exception
provides "this release is not intended
to, and shall not, act as a release of
any claims based in whole or in part on
facts or occurrences which were actively
concealed by Meridian or which arise, in
whole or in part, on or after the date of
this Agreement." (Emphasis added.)
Under Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941), we look to
the forum state’s (here, Illinois’s)
choice-of-law rules to determine the
applicable substantive law. In contract
disputes such as this one, Illinois
respects the contract’s choice-of-law
clause as long as the contract is valid
and the law chosen is not contrary to
Illinois’s fundamental public policy.
Vencor, Inc. v. Webb, 33 F.3d 840, 844
(7th Cir. 1994); Keller v. Brunswick
Corp., 369 N.E.2d 327, 329 (Ill. Ct. App.
1977). Therefore, we look to Georgia law,
which is the law expressly chosen in the
Settlement Agreement, Hugel v.
Corporation of Lloyd’s, 999 F.2d 206, 211
(7th Cir. 1993), to determine when
Fulcrum’s claim accrued.
Under Georgia law, Fulcrum’s claim--
whether characterized as one for fraud
(or misrepresentation) or
unjustenrichment--did not accrue until
January 27, 1995, after the date of the
Settlement Agreement. One element of a
fraud claim is damages. A fraud claim
does not accrue until suit on the claim
can be successfully maintained, see
Limoli v. First Georgia Bank, 250 S.E.2d
155, 156 (Ga. App. 1978), and damages are
required before a plaintiff can maintain
a fraud action. See Garcia v. Unique
Realty & Property Mgmt. Co., 424 S.E.2d
14, 16 (Ga. App. 1992); Pickelsimer v.
Traditional Builders, Inc., 359 S.E.2d
719, 721 (Ga. App. 1987). Similarly, "a
claim for unjust enrichment does not
arise until the party accepts the benefit
giving rise to the implied promise to
pay." Akin v. PAFEC Ltd., 991 F.2d 1550,
1558 (11th Cir. 1993), citing Ga. Code
Ann. sec. 9-2-7. Fulcrum experienced no
damages until the sale was consummated
and Meridian cashed Fulcrum’s check. We
therefore reverse the district court’s
finding that this claim was released by
the Settlement Agreement and remand the
claim to the district court for
calculation of the damages.
C. Schedule 4D Equipment ("the Escon
Channels")
Count III of Fulcrum’s complaint alleged
that Meridian breached its duty to
Fulcrum by acquiring and leasing the
Escon Channels (an Upgrade) to one of
Fulcrum’s customers without first giving
Fulcrum the opportunity to provide the
Upgrade. The complaint alleges that
Meridian breached its duty as Fulcrum’s
agent. Fulcrum seeks to recover the
profits Meridian made on this
transaction: $36,000. (The complaint also
made claims to profits Meridian made on
leases of Schedule #4B and #4C equipment.
The district court ruled against Fulcrum
on this aspect of its claim, but Fulcrum
has elected not to challenge this part of
the district court’s ruling on appeal. We
therefore disregard it as well.) As the
Escon Channels were acquired and leased
in February 1995, this transaction is not
covered by the Settlement Agreement’s
release provision. Other terms of the
Settlement Agreement do apply, including
the terms of Exhibit D, because this
remarketing transaction post-dates the
Settlement Agreement.
At issue here is what sort of a duty, if
any, Meridian owed Fulcrum in its
capacity as remarketing agent after the
Settlement Agreement. Fulcrum argues that
under the FFPA Agreement Meridian owed
Fulcrum a duty of noncompetition.
Meridian responds that because it had
withdrawn from the FFPA partnership at
the time of this transaction, that duty
was no longer applicable. Fulcrum
counters that Meridian’s duty of
noncompetition was carried forward in
both the Settlement and the Remarketing
Agreements. Meridian parries that the
parties impliedly consented to eliminate
that duty because although the FFPA
partnership agreement expressly included
a noncompetition clause, that clause was
not repeated in the Settlement and
Remarketing Agreements. Fulcrum then
falls back on the argument that Meridian
owed Fulcrum the common law duty of
loyalty found in any agent/principal
relationship, and that Meridian breached
its duty as an agent by seizing for
itself an opportunity belonging to its
principal. Fulcrum also points to Ga.
Code Ann. sec. 23-2-59 (prohibiting an
agent from acquiring rights in a property
which are antagonistic to the rights of
the principal) in support of its
contention that Meridian also had a
statutory duty of loyalty. Although
Fulcrum does not mention it, Ga. Code
Ann. sec. 10-6-25 also supports its
argument: "The agent shall not make a
personal profit from his principal’s
property; for all such he is bound to
account."
The district court ruled in Meridian’s
favor. The district court first found
that Exhibit D did not provide for a duty
of noncompetition, because it did not
include an express provision stating as
much. It found the Settlement Agreement’s
reference to the FFPA agreement to be too
indirect to incorporate the FFPA
agreement’s duty of noncompetition. The
district court also found the Georgia
statute inapplicable because it could
ascertain no relationship between the
parties and the State of Georgia. (The
district court did not find the choice of
law provision in the Settlement Agreement
to be relevant.)
This is a close call. On the one hand,
it would be simple to decide the matter
based on the Georgia law of agency (both
statute and common law) and general
agency principles, such as those famously
expounded by Judge Cardozo in Meinhard v.
Salmon, 164 N.E. 545 (N.Y. 1928). Both
provide that when an agent is serving a
principal, the agent cannot usurp
opportunities it comes across in that
relationship for itself. See, e.g.,
Franco v. Stein Steel & Supply Co., 179
S.E.2d 88, 91 (Ga. 1970); Meinhard v.
Salmon, 164 N.E. at 547; Restatement
(Second) of Agency sec. 393 (1958).
Applying these general principles to this
case would lead to the conclusion that
Meridian, as remarketing agent, had an
agent/principal relationship with
Fulcrum; thus, Meridian should not have
taken a business opportunity without
first offering it to Fulcrum.
But we cannot work from sweeping
generalizations about agency law when the
parties have created a more limited
relationship. Meridian did have an agency
relationship with Fulcrum by virtue of
Exhibit D, but it was a limited rather
than a general one. We must therefore
look to the language of Exhibit D to
determine the scope of Meridian’s agency
relationship with Fulcrum, and hence the
nature of the obligations Meridian was
under. See Peachtree Purchasing Co. v.
Carver, 374 S.E.2d 834, 836 (Ga. App.
1988) ("[T]he right of an agent to engage
in competitive business is dependent to a
certain extent upon the character of the
agency, the circumstances surrounding it,
and the agreement, express or implied, of
the parties . . . ."); see also Cutliffe
v. Chesnut, 176 S.E.2d 607, 611 (Ga. App.
1970) ("the existence and extent of the
duties of the agent to the principal are
determined by the terms of the agreement
between the parties") (citing Restatement
(Second) of Agency sec. 376).
To understand Exhibit D, it is helpful
to consider both the language of that
agreement and the way it fits into the
broader context of the other agreements
entered into by the parties.
Section X of Exhibit D provides:
For its services as remarketing and lease
administration agent, Meridian shall not
be entitled to any fee or compensation,
it being understood and agreed that its
services shall be rendered as part of the
consideration of the Settlement
Agreement, and in order to continue its
obligations under the Fulcrum Partnership
Agreement notwithstanding Meridian’s
withdrawal therefrom as a partner;
provided, however, Fulcrum shall
reimburse Meridian for its reasonable
out-of-pocket costs and expenses paid by
Meridian to a third party in furtherance
of its duties and responsibilities as
remarketing and lease administration
agent . . . (emphasis added).
The effect of this provision is to
require Meridian, despite its withdrawal,
to continue its duties as remarketing
agent, as spelled out in the Fulcrum
Agreement.
Turning to the Fulcrum Agreement, we see
that its Article 7 appointed Meridian to
be "Remarketing Partner." This provision
said that "[t]he Remarketing Partner
shall not be entitled to any compensation
for performing any of its services
hereunder, except for such reasonable
out-of-pocket expenses as are set forth
[elsewhere in the agreement]." The
Fulcrum agreement also contained the
following clause addressing competition
among the partners:
1.9 Competition. The Partners hereby
acknowledge and agree that each Partner
may engage in any activity whatsoever,
whether or not such activity competes
with or is enhanced by the Partnership’s
business and affairs, and no Partner
shall be liable or accountable to the
Partnership or any other Partner for any
income, compensation, or profit that such
Partner may derive from any such
activity. Further, no Partner shall be
liable or accountable to the Partnership
or any other Partner for failure to
disclose or make available to the
Partnership any business opportunity that
such Partner becomes aware of in such
Partner’s capacity as a Partner or
otherwise. Notwithstanding the foregoing,
nothing contained herein shall in any way
relieve any Partner of liability for any
breach of its fiduciary duties to the
Partnership. (Emphasis added.)
Until one reaches the last sentence,
this paragraph seems straightforward
enough, but at that point it becomes a
bit hard to understand. On the one hand,
it seems to derogate from the common law
duty of noncompetition between agents and
principals (and hence between partners).
On the other hand, it holds as intact the
partners’ fiduciary duty to one another,
which ordinarily might include their duty
not to usurp opportunities that properly
belong to the partnership. But "fiduciary
duty" must mean something narrower than a
competitive behavior, because the
provision seems to anticipate and provide
for competition between the partners.
Furthermore, it is hard to reconcile a
norm of unfettered competition among the
partners with the right of first refusal
that Fulcrum alleges it had.
If, however, Fulcrum had no right of
first refusal, then it is possible to
make sense of the entire paragraph. On
the one hand, it allows the parties to
compete among themselves, but on the
other hand, to the extent that fiduciary
duties unrelated to business
opportunities might be triggered, those
duties remain enforceable. This is just a
way of allowing the specific language of
the paragraph to limit the general
reservation of rights at the end, which
is the approach we believe a Georgia
court would take. See Schwartz v. Harris
Waste Management Group, Inc., 516 S.E.2d
371, 375 (Ga. App. 1999) ("Under general
rules of contract construction, a limited
or specific provision will prevail over
one that is more broadly inclusive.").
Although Fulcrum urges that it had a
right of first refusal, we find that this
position is not consistent with the
governing agreements. A right of first
refusal was created in Section 9.9,
"Conflicts of Interests, Upgrades," of
the FFPA agreement. That section reads,
in pertinent part:
(b) In the case of an upgrade by the
General Partner [Meridian] or any
affiliate thereto to any equipment of the
Acquired Partnership [Fulcrum], the
Acquired Partnership [Fulcrum] shall have
a right of first refusal from Meridian in
regard to owning such upgrade and the
Limited Partner shall determine whether
to cause the Acquired Partnership
[Fulcrum] to exercise such right of first
refusal with respect to such upgrade. . .
.
Section 9.9 of the FFPA agreement is not
incorporated or even mentioned in Exhibit
D. And while it is mentioned in the
Settlement Agreement, it is a mere
passing reference that does not
incorporate the terms of that provision
in any substantive way.
By agreement of the parties, the terms
of Exhibit D governed Meridian’s duties
to Fulcrum with regard to this
remarketing transaction. Because Exhibit
D creates no right of first refusal,
Meridian did not breach any contractual
duty when it did not provide Fulcrum with
a right of first refusal in this
transaction.
III
For the reasons described above, we
Affirm in part and Reverse in part.
Specifically, we Affirm the district
court’s decision on Count I; we Reverse
the district court’s decision on Count II
and Remand to the district court for a
determination of Fulcrum’s damages; and
we Affirm the district court’s decision on
Count III. Each party shall bear its own
costs on appeal.