Gilmore v. Century Bank and Trust Co.

CourtAppeals Court of Massachusetts
Citation477 N.E.2d 1069,20 Mass.App.Ct. 49
Decision Date15 May 1985

Page 1069

477 N.E.2d 1069
20 Mass.App.Ct. 49
Richard S. GILMORE, Trustee,
Appeals Court of Massachusetts,
Argued Jan. 9, 1985.
Decided May 15, 1985.

Page 1070

Patrick F. Brady, Boston, for defendant.

Stephen D. Walsh, Danvers, for plaintiff.


KAPLAN, Judge.

Defendant Century Bank and Trust Company appeals from a judgment of the Superior Court awarding damages for breach of contract to the plaintiff, trustee for subcontractor-creditors. The trustee cross-appeals from the judge's [20 Mass.App.Ct. 50] refusal to increase the interest award on the judgment or to find for the trustee on additional theories of recovery. We accept that the judge's findings, after trial without a jury, are supported by the detailed record and are not "clearly erroneous." Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). In that view we affirm the judgment, rejecting both the appeal and cross appeal (see note 11, infra ). Upon the findings, elaborated only as far as necessary by references to the record evidence, the case stands thus.

1. Breakdown of condominium construction project. In 1980, Grant-Morgan, Ltd., a company owned in equal shares by Conal C. Doyle and George Cuker, acquired an abandoned brick warehouse on Richdale Avenue, Cambridge, 1 with the purpose of reconstructing it in the form of sixteen units suitable for sale as condominiums. In July, 1980, Century Bank and Trust Company (Century) made a construction loan to Grant-Morgan of $800,000 with interest at 17%, secured by a first mortgage on the property, 2 and guaranteed personally by Doyle, Cuker, and Cuker's wife Rita. Construction had begun about April, 1980, with Grant-Morgan using Kent Corporation, owned by Cuker, as manager, to deal with and make payments to subcontractors. 3 In Fall, 1980, it appeared that the $800,000 would not suffice. Century in November in effect enlarged the loan by $200,000 upon the same security and with the same guarantors.

Around December, 1980-January, 1981, the loan money was exhausted, work was halted some twenty percent short of completion, and subcontractors were unpaid in an amount over $300,000. In the few months following, several unpaid subcontractors filed mechanics' liens on the property. Moreover, frictionhad[20 Mass.App.Ct. 51] developed between Doyle and Cuker; Doyle charged that Cuker had "skimmed" money from the Richdale enterprise for his own purposes. With the mortgage loan in default, Century, consulting with Doyle and Cuker and some subcontractors, prepared a number of

Page 1071

variant rescue plans for the project. The plan finally arrived at, described below, could succeed only if the subcontractors were brought into it in a body. Century evidently reviewed a circular letter of information and solicitation sent by Grant-Morgan to the subcontractors. Doyle kept Century posted as to the names and numbers of subcontractors willing to give their assent or remaining hesitant. In some cases Doyle referred subcontractors to Century (especially to a senior vice-president, Martin Daley) for information and persuasion, and Century advised these subcontractors as well as others who made inquiries direct. At times Century counseled Doyle on the tactics to be used with reluctant subcontractors: they might be reminded that Century could foreclose; perhaps a particular convinced subcontractor should be asked to talk to one who still doubted.

2. Rescue agreements. The final plan was embodied in two documents, both dated April 8, 1981. 4 The first, referred to as the "workout" agreement, was drafted by Century and signed by Century, Grant-Morgan, and the three individuals. Century undertook to add $250,000 to the mortgage loan (the personal guaranties being extended accordingly) 5 in order to assist in completing the project. From the $250,000 advance, however, $75,000 would be deducted by Century for interest due to it, and a further $3000 deducted to cover legal fees, leaving a balance of $172,000 for working purposes. The interest rate on the entire loan, now to be in the principal amount of $1,250,000, was increased to prime rate plus 3%, with a "floor" of 17%. As a condition of the advance, the 42 subcontractors with accrued claims for work already done, amounting in the aggregate to more than $330,000, must assent to a trust mortgage of junior rank in which their claims would be consolidated. 6 [20 Mass.App.Ct. 52] 6 The project was to be completed, the loan progressively paid, and the accrued claims of subcontractors deferred but finally liquidated, as follows.

Century was to receive $90,000 principal plus interest from each of the first thirteen units sold, and $80,000 plus interest from the fourteenth. The balances from the sales of the first six units, expected to amount to $165,000, together with the net of $172,000 from Century's advance, a total of $337,000, would be used to complete the construction, with the subcontractors being paid for their current work. From the proceeds of the seventh through the fourteenth sale, the subcontractors, through their trustee, were to receive as much as $23,000 per unit in liquidation of their accrued claims; from the fifteenth sale, $40,000; and from the sixteenth, all the net proceeds. If a shortfall should occur in the funds needed to complete the project, Cuker was undertaking to contribute up to $225,000, as to which, the agreement stated, he had already given mortgages on two of his houses as collateral; in respect to this obligation, the agreement further stated, Cuker was already furnishing $25,000.

David Dionne was to supervise the project as agent for Grant-Morgan but Century, represented by Daley, was to have the right of ultimate decision. Century must approve the sale prices of the condominium units. Daley, for Century, was to make all decisions as to distribution of the funds whether applied to the Century loan or to the subcontractors' claims; and no funds were to be allocated toward the subcontractors' accrued claims until the then accrued interest, principal, and expenses

Page 1072

due Century on its loan had been paid. Signatures of both Daley and the trustee were required for disbursements from the trustee's account.

[20 Mass.App.Ct. 53] The second instrument was entitled "Trust Indenture" and was signed by Grant-Morgan, the trustee named in the instrument (he had been named as the trustee in the workout agreement), and each of the assenting subcontractors. Century had furnished a model agreement for the drafting of the indenture. The subcontractor-creditors agreed with Grant-Morgan that, as long as the latter carried out its obligations under the indenture, they would forbear prosecution of their existing claims, and those with mechanics' liens would release them. The obligations of Grant-Morgan comprised payment of the $23,000 per unit, and so forth, on the terms set forth in the workout agreement as outlined above. There was provision for the trustee's junior mortgage, and also for distribution of funds by the trustee pro rata (with a certain exception) among the subcontractors.

3. Breach. Money was not actually forthcoming to the project from Century out of its advance until April 30, 1981. Mechanics' liens were released, the subcontractors went back to work, and they were paid for their current work. It was essential to the plan that construction proceed rapidly to completion. In fact, the work ceased in mid-June, again for lack of funds, and did not resume until...

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