Brandewiede v. Emery Worldwide

• Decision Date: 24 November 1992
• Docket Number: Civ. No. 5-90-504 (WWE).
• Citation: 815 F. Supp. 60
• Parties: George C. BRANDEWIEDE v. EMERY WORLDWIDE.
• Court: U.S. District Court — District of Connecticut

815 F. Supp. 60

George C. BRANDEWIEDE v. EMERY WORLDWIDE.

Civ. No. 5-90-504 (WWE).

United States District Court, D. Connecticut.

November 24, 1992.

Gary L. Johansen, Scheffler & Johansen, Westport, CT, Frank P. Luberti, Jr., Stamford, CT, for plaintiff.

Carol K. Young, Schatz & Schatz, Ribicoff & Kotkin, Stamford, CT, Stephen J. Fearon, Condon & Forsyth, New York City, for defendant.

RULING ON MOTION FOR SUMMARY JUDGMENT

EGINTON, Senior District Judge.

Defendant Emery Worldwide ("Emery"), a Delaware Corporation, brings this motion for summary judgment under Fed.R.Civ.P. 56(b) on the grounds that plaintiff's contract claim is governed by New York law and, thus, is barred by the New York Statute of Frauds governing oral fee agreements. Emery also contends that plaintiff fails to state a claim under the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn.Gen.Stat. § 42-110g(f). For the reasons stated below, summary judgment will be denied.

Facts

In accordance with the standard for determining a motion for summary judgment as set forth below, the court accepts the facts as alleged by Plaintiff George C. Brandewiede and recited below to be true solely for the purposes of this motion. Brandewiede is a New York based finder, in the business of representing purchasers, sellers, lessors, and lessees of new and used commercial aircraft. Brandewiede's relationship with Emery began in 1987, when Emery was completing its acquisition of Purolator Courier Corporation ("Purolator"). Through his contacts at Salomon Brothers, Emery's investment advisor on the Purolator acquisition, Brandewiede learned that Emery was interested in selling or leasing some of its aircraft fleet in order to pay off some of the debt incurred in the acquisition.

Through his contacts at Polaris Aircraft Leasing Corporation ("Polaris"), a California-based corporation, Brandewiede also knew that Polaris was interested in leasing or buying several aircraft of the kind owned by Emery. Therefore, Brandewiede was well-positioned to arrange a deal between Emery and Polaris. In July 1987, Brandewiede telephoned Richard Ball, the person responsible for any sale-leaseback of aircraft in Emery's fleet, and told him that he knew of a potential purchaser for some of Emery's aircraft and could arrange a deal. Brandewiede did not give Ball the name of the purchaser at this time. Brandewiede and Ball scheduled a meeting at Emery's then corporate head-quarters in Wilton, Connecticut for August 12, 1987 to discuss Brandewiede's proposal.

On August 12, 1987, Ball was unable to meet with Brandewiede and asked Thomas Zuber to attend the meeting. Zuber was Emery's Assistant Treasurer and had been responsible for several prior aircraft sale-leaseback deals. At the August 12th meeting, Zuber confirmed Emery's interest in using its aircraft fleet to pay down the company's outstanding debt, gave Brandewiede a list of the aircraft available for a sale-leaseback transaction, and provided Brandewiede with relevant financial information about Emery. Brandewiede then described his fees and/or commissions for arranging a transaction between Emery and the still undisclosed purchaser. Zuber stated that Brandewiede's fee was acceptable and encouraged him to arrange a meeting between Emery and the undisclosed purchaser in order to determine whether a sale-leaseback transaction was feasible. Zuber later informed Ball about everything that had taken place at the meeting, including Brandewiede's fee.

After the August 12th meeting, Emery sent Brandewiede certain technical and financial information regarding the condition of its fleet, which Brandewiede forwarded to B.W. Baldwin, an officer of Polaris. Brandewiede then sent Zuber a follow-up letter regarding his efforts in arranging a meeting between Emery and Polaris, who was still unknown to Emery. After making numerous telephone calls to Polaris in California and to Emery in Connecticut, Brandewiede set up a meeting between Polaris and Emery to be held on September 10, 1987, which Brandewiede also planned to attend.

Prior to the September 10th meeting, Baldwin asked Brandewiede if he could contact Emery directly regarding the September 10th meeting. Brandewiede agreed and gave Baldwin Ball's telephone number at Emery. Baldwin then called Ball to discuss certain issues regarding the possible sale-leaseback transaction. During that telephone call, Baldwin stated that Polaris would send Emery a written proposal.

After the Baldwin-Ball telephone call and with knowledge that Baldwin had contacted him because of Brandewiede's efforts, Ball called Brandewiede and requested that he not attend the September 10th meeting between Emery and Polaris. Brandewiede complied with Ball's request. At their initial face-to-face meeting in Connecticut, Ball acknowledged to Baldwin that Brandewiede had put Polaris and Emery in contact with each other.

A second meeting was scheduled between Polaris and Emery for October 8, 1987 in order to negotiate the structure of a sale-leaseback transaction. Brandewiede did not attend this meeting, again in compliance with Ball's wishes. During the meeting, Ball and Baldwin discussed fees owed to Brandewiede for his role in arranging the transaction. Baldwin stated that Polaris did not pay commissions and told Ball that typical finder's fees and commissions ranged from $10,000 to $100,000 per aircraft. At all times Polaris expected Emery to pay Brandewiede's commission.

After the October 8th meeting, when it was clear that a sale-leaseback transaction was taking place, Brandewiede attempted to contact Ball to resolve the precise amount of compensation owed by Emery. Ball, however, denied that Brandewiede had brought Polaris and Emery together for purposes of conducting the sale-leaseback transaction.

A third meeting between Polaris and Emery took place at Emery's Connecticut headquarters on October 29, 1987, during which the parties executed the term sheet regarding the sale-leaseback transaction. Although Baldwin wanted to include Brandewiede's name in the term sheet as broker of record, Ball insisted that the term sheet not include Brandewiede's name and instead read, "neither Polaris nor Emery shall be responsible for any brokers' fees or commission incurred by the other party."

The sale-leaseback transaction was finalized in December 1987, and Emery was able to alleviate its debt and avoid seeking relief through bankruptcy proceedings. Although Brandewiede continued to make demands on Emery for payment of his fee pursuant to the terms discussed at the August 12th meeting, Emery refused to pay — other than offering Brandewiede $50,000 to go away. Consequently, Brandewiede filed the instant action to recover his fees.

Discussion

Standard for Summary Judgment

A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351 (2d Cir.1981). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

After careful review, when resolving all ambiguities and drawing all reasonable inferences against Emery, it is clear that summary judgment must be denied.

Choice of Law

The threshold issue in this case is...