Developers Diversified Realty v. Coventry Real Estate Fund II, L.L.C. , 2012 Ohio 1056 ( 2012 )

[Cite as Developers Diversified Realty v. Coventry Real Estate Fund II, L.L.C., 2012-Ohio-1056.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97231
DEVELOPERS DIVERSIFIED REALTY
PLAINTIFF-APPELLEE
vs.
COVENTRY REAL ESTATE FUND II, L.L.C.,
ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-710372
BEFORE: Blackmon, A.J., Celebrezze, J., and Rocco, J.
RELEASED AND JOURNALIZED: March 15, 2012
ATTORNEYS FOR APPELLANTS
Stephen M. Bales
Nicholas C. De Santis, III
Ziegler & Metzger LLP
925 Euclid Avenue
Suite 2020
Cleveland, Ohio 44115-1441
ATTORNEYS FOR APPELLEE
Robert S. Walker
Nicholas B. Wille
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114-1190
PATRICIA ANN BLACKMON, A.J.:
{¶1} Appellants Coventry Real Estate Fund II, L.L.C., Service Holdings L.L.C.,
Coventry II DDR Buena Park L.L.C., Coventry II DDR Fairplain L.L.C., Coventry II
DDR/Tucker Marley Creek Square L.L.C., Coventry II DDR/Trademark Montgomery
Farm L.P., Coventry II DDR Phoenix Spectrum SPE L.L.C., Coventry II DDR Totem
Lake L.L.C., Thor Gallery at Tri County L.L.C., Coventry DDR II Ward Parkway L.L.C.,
and DDR DB 151 Ventures, L.P. (referred to collectively as “Coventry II”) appeal from
the trial court’s granting of summary judgment in favor of Developers Diversified Realty
Corporation (“DDR”) and assign five errors for our review.1
{¶2} Having reviewed the record and requisite law, we affirm the trial court’s
decision. The apposite facts follow.
Facts
{¶3} DDR is an Ohio corporation with its principal place of business in
Beachwood, Ohio. DDR is in the business of development, ownership, management,
leasing, and property management of open air retail shopping centers and is involved with
about 700 properties in 44 states and several countries. Coventry Real Estate Advisors,
L.L.C. (“CREA”) is a real estate investment manager with offices in New York City and
Chagrin Falls, Ohio.
1
See appendix.
{¶4} DDR and CREA have participated together in two investment platforms
over the past 11 years. In each, CREA and DDR contributed capital to acquire retail real
estate properties whose value could be increased through development, redevelopment, or
resale. DDR would invest 20 percent of the capital, while CREA would find other
investors to contribute 80 percent of the remaining capital. Because of DDR’s
experience and expertise, the deals were structured so that DDR would be retained under
the management and development contracts to supervise the development or
redevelopment of projects and manage the projects that were in operation.
{¶5} The first of these investment platforms, Coventry Real Estate Fund I
(“Coventry I”), existed from 1998 through 2007. Eventually, the projects in Coventry I
were sold, earning a 30 percent return. In 2003, DDR and CREA desired to continue the
investment success of Coventry I through a different pool of capital (Coventry II).
Similar to Coventry I, each property acquired under the investment agreement became
an asset of a separate limited liability company whose members included DDR and
Coventry II. Coventry II consisted of 11 limited liability companies, who are all
defendants in the case, owning 10 different properties. Like in Coventry I, under each
project management agreement, DDR was the exclusive property manager and leasing
agent for the properties.
{¶6} Each management agreement for the properties contained identical
termination provisions allowing for termination of DDR either “without cause” or “for
cause.” If Coventry II terminated DDR’s services without cause, there was a formula for
the amount of additional unearned fees that DDR would receive upon termination, and a
buy-sell provision was triggered, which gave DDR the right to either buy or sell to
Coventry II the property in question. If DDR was terminated for cause, defined as
willful misconduct, fraud, or gross negligence by a DDR executive officer, DDR was not
entitled to the unearned fees and the buy-sell provision would not be triggered.
{¶7} On November 4, 2009, Coventry II, without any notice to DDR, issued a
press release asserting that DDR had engaged in a long pattern of willful and fraudulent
behavior designed to intentionally destroy the value of the parties’ various joint ventures
and announced it was terminating the management agreements with DDR “for cause.”
Thereafter, on November 5, 2009, Coventry II filed a breach of contract suit against DDR
in New York.2
{¶8} On November 6, 2009, DDR received a single-page letter from Coventry II
stating it was terminating the management agreement with DDR “for cause,” effective
December 5, 2009. The letter did not explain what constituted the grounds for the “for
cause” termination but alluded to the allegations in its complaint filed in New York.
{¶9} On November 18, 2009, DDR filed a complaint for declaratory judgment in
the Cuyahoga County Court of Common Pleas, seeking to have the court declare
Coventry II’s termination for cause invalid because there was no evidence that DDR
engaged in fraud or willful misconduct. DDR also requested a temporary restraining
Coventry Real Estate Advisors, LLC v. Developers Diversified Realty Corp.,
2
N.Y. S.Ct. No. 1155909.
order (“TRO”) and a preliminary injunction, requesting the court allow DDR to remain
the property manager while the litigation was pending so that the status quo could be
maintained, especially during the busy holiday shopping season, and to prevent further
harm to its reputation. The trial court conducted a TRO hearing and granted the TRO,
stating in pertinent part:
DDR is likely to succeed on the merits, that immediate and irreparable
injury, loss, or damage will result to DDR in the absence of restraint,
that DDR has no adequate remedy at law, that the balance of equities
favors injunctive relief in favor of DDR, and that the public interest
will not be harmed by injunctive relief in favor of DDR.
{¶10} Coventry II, thereafter, stipulated to the restraining order continuing to be
enforced until the litigation concluded.
{¶11} DDR filed a motion for summary judgment regarding its declaratory
judgment. DDR argued that Coventry II’s sole justification for the “for cause”
termination was its speculation that DDR’s senior management, Executive Chairman
Scott Wolstein and Chief Executive Officer and President Daniel Hurwitz, were
purposely undermining the success of Coventry II. DDR argued that there was no
evidence, beyond speculation, of such a scheme and that Coventry II was not successful
because of the severe economic problems experienced by the entire country. DDR
further argued that it was illogical to argue that DDR wanted the venture to fail when
DDR, itself, was a 20 percent owner of the properties.
{¶12} In its brief in opposition, Coventry II argued an injunction should not be
ordered even if DDR was not terminated for cause. It also set forth a new justification
for its “for cause” termination. Coventry II argued that DDR fraudulently concealed its
relationship with Oxford Building Services (“Oxford”). Oxford is a vendor DDR uses to
help manage all of its properties, not just the properties it owns with Coventry II. Oxford
in turn uses a nationwide computer system and DDR’s buying power due to its ownership
of over 700 properties to bid the contracts out to individual vendors for the most cost
effective price. Oxford charges the vendors a 3 percent surcharge fee of which DDR
receives 75 percent.
{¶13} Coventry II claimed that DDR’s nondisclosure of its relationship with
Oxford was fraudulent. It also argued, without supporting evidence, that the 3 percent
fee that Oxford charged its vendors increased Coventry II’s maintenance costs. Coventry
II also argued that DDR’s receipt of 75 percent of the 3 percent fees resulted in fraudulent
kick-backs to DDR.
{¶14} After conducting a summary judgment hearing, the trial court, in a
15-page opinion, granted summary judgment as a matter of law in favor of DDR,
concluding there was no evidence of fraud or willful misconduct that would support a
termination “for cause.” The court concluded that the conduct complained of was
governed by the management contract; thus, any alleged wrongdoing by DDR would
constitute a breach of contract and not fraudulent or willful misconduct. The trial court
also denied Coventry II’s motion to stay or dismiss the case in favor of the New York
case.
Summary Judgment
{¶15} In its first, second, and third assigned errors, Coventry II argues the trial
court erred by granting summary judgment in favor of DDR.
{¶16} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any
material fact exists, (2) the party moving for summary judgment is entitled to judgment as
a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving
party, reasonable minds can reach only one conclusion that is adverse to the non-moving
party.
{¶17} In the instant case, the trial court concluded summary judgment was
appropriate as a matter of law because the evidence did not show that DDR’s conduct
constituted fraud or willful misconduct. The court concluded that DDR’s conduct, if
indeed wrong, constituted a breach of the contract, which is not one of the listed bases in
the agreement for termination for cause. In so holding, the trial court cited to Textron
Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 684 N.E.2d 1261 (9th
Dist.1996), which held that a breach of a contract could not constitute fraud.
{¶18} Coventry II maintains Textron is distinguishable because it is not
attempting to bring a fraud claim as the plaintiff in Textron was. Instead, Coventry II is
contending DDR’s fraudulent conduct constituted grounds for terminating the contract for
cause pursuant to the management agreement. We conclude this is a distinguishment
without a difference. By citing Textron, the court was acknowledging that when a
relationship is contractual and one party fails to perform to the other’s expectations, the
result is a breach of contract; thereby making it difficult, if not impossible, to support an
allegation of fraud.
{¶19} Although Coventry II on appeal defines fraud and willful misconduct as set
forth in Black’s Law Dictionary, at the summary judgment hearing, Coventry II stipulated
that because the terms were not defined in the agreement that the parties intended to use
the legal meaning of the terms. Thus, the parties agreed that a “for cause” termination
must be founded on conduct that satisfies the legal requirements of an action for fraud or
willful misconduct.
{¶20} To prove DDR’s conduct constituted fraud, Coventry II had to show (a) a
representation or, where there is a duty to disclose, concealment of a fact, (b) which is
material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with
such utter disregard and recklessness as to whether it was true or false that knowledge
may be inferred, (d) with the intent of misleading another into relying upon it, (e)
justifiable reliance upon the representation or concealment, and (f) a resulting injury
proximately caused by the reliance. Gaines v. Preterm–Cleveland, Inc., 33 Ohio St.3d 54,
55, 514 N.E.2d 709 (1987).
{¶21} To prove “willful misconduct,” it is necessary to show “an intentional
deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to
discharge some duty necessary to safety, or purposely doing some wrongful acts with
knowledge or appreciation of the likelihood of injury.” Brenner v. Cuyahoga Cty. Dept.
of Children & Family Servs., 8th Dist. No. 91712, 2009-Ohio-1253, 2009 WL 713014, ¶
24.
{¶22} Coventry II contends DDR committed fraud by entering into an agreement
with Oxford to perform the duties DDR was obligated to provide under the contract. We
agree with the trial court that DDR had no duty to disclose its agreement with Oxford.
The management agreement explicitly gives DDR the ability to delegate management
duties as it deems necessary. According to the agreement, DDR has the “sole and
exclusive authority to take such actions, and perform such duties as [DDR] deems
necessary and desirable for the care, protection, operation, maintenance, repair,
replacement, and leasing of the Properties.” Management Agreement, Art. II. DDR
may also “enter into such contracts and other agreements for utilities and other services
either required or deemed as desirable by the Property Manager in connection with the
operation of the Properties.” Management Agreement, Section 2.8. The only limitation
to DDR’s power to enter into contracts is that Section 2.8 requires that DDR “respect its
fiduciary duty” owed to Coventry II. Thus, any breach of that duty would constitute a
breach of the contract, not an intentional tort.
{¶23} Interestingly, the New York court dismissed Coventry II’s breach of
fiduciary duty claim against DDR, which was based on DDR’s relationship with Oxford.
In refusing to reconsider its dismissal of the claim, the New York court held:
Although the Management Agreement § 2.8 requires DDR to “respect
its fiduciary duty” to the Property Owner REIT in the execution of
contracts for services and supplies, DDR’s failure to do so with respect
to the contract with Oxford would result in a breach of contract claim,
not a tort claim for breach of fiduciary duty. New York Journal Entry,
Dec. 8, 2010.
{¶24} Coventry II also claimed that DDR acted fraudulently by concealing the
details of its contract with Oxford. However, as the trial court concluded, the
Management Agreement does not require disclosure of the contracts DDR enters into on
behalf of the property. Any disclosure requirements would be contained in Section 2.5
of the Management Agreement, which basically requires DDR to maintain records of
income and expenses and give Coventry II this information monthly, along with tax
information Coventry II may need. If DDR had a duty pursuant to Section 2.5 to disclose
the details of the Oxford contract, such conduct would amount to a breach of contract, not
tortious conduct.
{¶25} Coventry II also claimed that DDR committed fraud by leading Coventry II
to believe that the costs of the Oxford program were borne solely by DDR. The evidence
indicated that Oxford charged vendors a 3 percent fee and that DDR was given 75 percent
of these fees. However, there is no evidence that the 3 percent fee resulted in an added
expense to Coventry II or that Coventry II did not receive value by achieving a cost
savings. Coventry II attached the affidavit of Loren F. Henry, the vice president of
CREA, in which he stated that DDR’s relationship was fraudulent and created additional
costs to Coventry II. However, as the trial court concluded, Henry’s allegations
constituted breach of contract claims. As the trial court found:
There is no record evidence to support an inference that DDR’s
contract with Oxford amounts to stealing from Coventry. First, DDR
has entered into the contract with Oxford for all its properties, not just
those that are co-owned with Coventry. That fact does not allow a
reasonable inference that the Oxford vendor management program
amounts to stealing from the property owner, since it would never be
reasonable to infer that DDR would steal from itself on properties it
owns. Second, there is no evidence that Coventry did not approve
budgets for 2008 and 2009, the first two years of the Oxford program.
Since the disputed 3% surcharge was ultimately included in those
budgets, Coventry’s approval suggests either that even with the 3%
surcharge the budgets were reasonable and acceptable to Coventry, or
that the program achieved the cost savings it was designed for.
Finally, Coventry has produced no evidence that the 3% charge
actually increased its property management expense by that amount or
that it didn’t generate value to the properties that was worth the
expense. Indeed, the stated goals fo the Oxford program are “to
recognize the value of critical mass and purchasing power” of DDR’s
portfolio to allow “cost savings” — i.e., to get better deals from
contractors — and to “enable our property managers to spend more of
their valuable time” servicing tenants. Judgment Entry, Aug. 2, 2011 at
11.
{¶26} Although Henry claimed the contract with Oxford resulted in more
expenses, Coventry II failed to present evidence of budgets and expenses of prior years to
compare with the current expenses. Instead, Henry alluded to records of Coventry II’s
that were not part of the record.
{¶27} In addition to the lack of evidence that the Oxford contract or 3 percent
surcharge constitutes stealing, any failure by DDR to give Coventry II part of the rebate
would constitute a breach of contract. Section 2.8 of the Management Agreement states
in pertinent part that DDR “shall attempt to secure for, and credit to, [Coventry II] any
discounts, commissions or rebates obtainable as a result of such contracts or orders.”
Thus, DDR’s failure to give Coventry II a portion of the rebates would constitute a breach
of contract.
{¶28} Finally, Coventry II contended that DDR purposefully did not lease
various properties in an effort to sabotage Coventry II’s efforts to be successful.
However, the only evidence of this that Coventry II provides is the statement of Peter
Henkel, the president and chief executive officer of Service Holdings, LLC, in which he
compared the success of the first Coventry venture compared to the poor performance of
the second venture. His comparison did not take into account the fall-out of the real
estate market that occurred during the second venture, which created a difficult market to
obtain retail tenants. Moreover, there was no evidence that the DDR senior executive
officers intended to make the venture unsuccessful. Henkel merely speculates that “this
was a plan carried out under the direction” of the senior management team. In addition,
it is illogical to argue DDR wanted the venture to fail when it was 20 percent invested in
the venture. Accordingly, Coventry II’s first, second, and third assigned errors are
overruled.
Trial Court’s Failure to Stay or Dismiss the Case
{¶29} In its fourth assigned error, Coventry II argues the trial court erred by
refusing to stay or dismiss the Ohio case. Specifically, Coventry II argues that because
New York acquired jurisdiction first, the Ohio case should have been stayed or dismissed.
{¶30} The rule of jurisdictional priority applies only to “actions pending in
different Ohio courts that have concurrent jurisdiction.” Nationwide Mut. Fire Ins. Co.
v. Modroo, 11th Dist. No. 2004-G-2557, 2004-Ohio-4697, 2004 WL 1960087, ¶ 12,
citing Hoppel v. Greater Iowa Corp., 68 Ohio App.2d 209, 210, 428 N.E.2d 459 (9th
Dist.1980). “[I]t does not apply when an action is pending in another state as in this
case.” Nationwide at ¶ 12. See also Carlin v. Mambuca, 96 Ohio App.3d 500, 645
N.E.2d 737 (8th Dist.1994).
{¶31} In Hoppel, the court stated that “[t]he fact that an action is pending in
another state does not constitute a defense to an action between the same parties over the
same cause of action in Ohio.” Hoppel, 68 Ohio App.2d at 210; see also Long v. Grill,
155 Ohio App.3d 135, 2003-Ohio-5665, 799 N.E.2d 642, at ¶ 27 (10th Dist.) (holding
that “the pendency of the action in California, involving the same subject matter and the
same parties, does not preclude the Ohio trial court’s exercise of jurisdiction to adjudicate
plaintiff’s complaint”). An Ohio trial court in such a situation retains jurisdiction over
the matter and has several options: it can grant a stay in the Ohio proceedings pending the
resolution of the earlier action outside of Ohio, or it can go forward with the action in
Ohio. Hoppel, 68 Ohio App.2d at 210, 428 N.E.2d 459. The Ohio Supreme Court has
also held the court can dismiss the action pursuant to the doctrine of forum non
conveniens. Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123, 519
N.E.2d 370 (1988). The Chambers court stated that the doctrine “allows a court having
proper jurisdiction to dismiss an action when to do so would further the ends of justice
and promote the convenience of the parties * * *.” Id. at 125. Furthermore, Chambers
held that the ability of a court to dismiss an action under forum non conveniens is an
inherent power of the court and within its sound discretion. Id.
{¶32} We conclude the trial court did not abuse its discretion by refusing to stay
or dismiss the case. The Ohio case was filed within weeks of the New York case.
Therefore, not much discovery had occurred in the New York case. The New York court
also stayed the issues before it that may have been impacted by the Ohio court’s decision.
{¶33} Also, the New York court seemed to agree that there was not a danger of
inconsistent verdicts. DDR filed a motion in the New York court to dismiss Coventry’s
complaint because of a potential conflict with the Ohio case. However, the New York
court concluded:
In this action, there in no danger of inconsistent verdicts. The only
issue in the first Ohio case3 is whether Coventry properly terminated
DDR’s Management Agreements for cause. Termination for cause
relates to the fourth cause of action for breach of the Management
Agreements and the sixth cause of action for fraud, as fraud is a
ground for termination for cause. The court has contacted the Staff
Attorney for the Ohio Court of Common Pleas for Cuyahoga County
and has been advised that the pretrial conference is scheduled for
August 31, 20[10] and the trial is scheduled for September 27, 20[10].
As discovery has hardly begun in this action, this court can refrain
from making decisions on those two causes of action until after the
Ohio trial is concluded. The second Ohio action has been stayed in
favor of this one, which eliminates the possibility of inconsistent
verdicts. New York Journal Entry, June 23, 2010.
{¶34} The parties also agreed in the management agreements that an Ohio court
would hear and decide all disputes regarding the agreement. See Info. Leasing Corp. v.
3
DDR also filed a complaint for payment of management fees, which the trial
court stayed in favor of the New York litigation. Thus, there is a second case in the
Cuyahoga County Court of Common Pleas.
Jaskot, 151 Ohio App.3d, 549, 2003-Ohio-566, 784 N.E.2d 1192 (1st Dist.) (holding that
trial court abused its discretion in dismissing the complaint on forum non conveniens
grounds where contract at issue contained an Ohio Forum selection clause).
Accordingly, we conclude the trial court did not abuse its discretion by denying Coventry
II’s motion to stay or dismiss the case. Coventry II’s fourth assigned error is overruled.
Temporary Restraining Order
{¶35} In its fifth assigned error, Coventry II argues the trial court erred by
granting DDR’s motion for a TRO.
{¶36} “A temporary restraining order makes no final adjudication for any issue.
Such orders merely prevent designated parties from exercising their claimed rights
pending a determination of the merits.” Gessler v. Madigan, 41 Ohio App.2d 76, 322
N.E.2d 127 (3d Dist.1974). Such is the case here. The order purported to maintain the
status quo until the litigation concluded. Moreover, once the trial court issued its
judgment on the complaint for declaratory judgment, the restraining order was rendered
moot. Black v. Hall, 8th Dist. No. 94113, 2010-Ohio-4677, 2010 WL 3814586.
Accordingly, Coventry II’s fifth assigned error is overruled.
{¶37} Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR
APPENDIX
Assignments of Error
I. The trial court erred by granting plaintiff-appellee’s motion for
summary judgment as: (a) genuine issues of material fact existed
warranting a trial of the matter; and (b) plaintiff-appellee was not
entitled to judgment as a matter of law.
II. The trial court misconstrued the management and leasing
agreements as a matter of law.
III. The trial court erred as a matter of law by determining that
defendant-appellant’s termination “for cause” of plaintiff-appellee
under the management and leasing agreements was invalid.
IV. The trial court erred by denying defendants-appellants’ motion to
dismiss or alternatively motion to stay proceedings.
V. The trial court erred by granting plaintiff-appellee’s motion for
temporary restraining order.