Mogavero v. Silverstein

• Decision Date: 30 January 2002
• Docket Number: No. 87,87
• Citation: 142 Md. App. 259,790 A.2d 43
• Parties: Samuel MOGAVERO v. Larry SILVERSTEIN, et al.
• Court: Court of Special Appeals of Maryland

790 A.2d 43

142 Md. App. 259

Samuel MOGAVERO v. Larry SILVERSTEIN, et al.

No. 87, Sept. Term, 2000.

Court of Special Appeals of Maryland.

January 30, 2002.

John H. Doud III, Baltimore, for appellant.

Marc R. Engel (Melanie K. Snyder and Lerch, Early & Brewer, Chartered on the brief), Bethesda, for appellees.

Argued before SALMON, DEBORAH S. EYLER and MARVIN H. SMITH (Ret., Specially Assigned), JJ. SALMON, Judge.

The first question presented in this appeal is whether the terms of an employment contract, allegedly entered into between the parties, was definite enough to be enforced. We shall hold that the terms were too indefinite to be enforceable and, accordingly, affirm the trial judge's grant of summary judgment in favor of the defendants on the breach of contract count (Count I).

Another important issue that we must resolve is whether the lower court erred when it granted summary judgment against the plaintiff, Samuel Mogavero, on Count II, in which plaintiff sought damages on the basis of quantum meruit. The answer to that question depends upon whether plaintiff was required to prove what the defendants gained by the services he rendered or whether the plaintiff needed only to show the value of his services. We shall hold that the plaintiff must prove what the defendants gained by his services. Here, plaintiff failed to show what defendants gained. Thus, the court did not err in granting summary judgment as to Count II.

I.

The facts set forth in Part I are presented in the light most favorable to appellant, Samuel Mogavero. See Md. Rule 2-501; see also Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 676, 766 A.2d 617 (2001)

. Appellees, Larry Silverstein ("Silverstein") and Mason Dixon Properties, LLC ("Mason Dixon"), controvert many of those facts.

A. Background

Samuel Mogavero ("Mr. Mogavero") was a successful general contractor from 1972 to 1985. During that period, he owned a construction company called Mogavero and Son, which operated in the Baltimore Metropolitan area. Mr. Mogavero semi-retired in 1985 at age forty-eight. Thereafter, he remained interested in matters relating to construction. Additionally, he devoted a considerable portion of his time to management of his real estate and other investments.

At all times here relevant, Mr. Mogavero possessed expertise in regard to several subjects, including real estate development, estimating construction costs, and management of construction projects. One of the properties that Mr. Mogavero owned was a former rag factory located in the Fells Point section of Baltimore City. The rag factory was converted by Mr. Mogavero into an upscale residential complex known as King George House.

Silverstein resided at the King George House. As a result, he and Mr. Mogavero met and became good friends. Over a period of years, Silverstein sought Mr. Mogavero's advice and guidance concerning the wisdom of making several real estate investments.

In October of 1997, Silverstein, on behalf of Mason Dixon, became interested in purchasing a collection of older, mostly vacant buildings, located across the street from King George House. Those properties were owned by John Raczkowsky and his wife, Reba. By coincidence, Mr. Mogavero had once tried to purchase the Raczkowskys' property (hereafter "the property"), but his offer had been rejected. Mr. Mogavero told Silverstein that he suspected that the Raczkowskys would now accept a lower price than their earlier demand. Silverstein asked Mr. Mogavero to set up a meeting with the Raczkowskys to see if a purchase agreement could be reached. Mr. Mogavero arranged a meeting with the Raczkowskys and Silverstein. This meeting eventually led to Mason Dixon signing an agreement on December 29, 1997, to purchase the Raczkowskys' property.

Mason Dixon's intended use of the property was to rehabilitate and convert the buildings so they could be rented as upscale commercial units. The cost for rehabilitation was anticipated to be roughly three million dollars. The contract granted the purchaser a feasibility period, which allowed Mason Dixon to avoid purchasing the property if it decided that its intended use of the property was not economically feasible.

B. The Oral Contract—According to Mr. Mogavero.

In early December 1997, which was prior to the execution by Mason Dixon of the sales contract for the property, Silverstein and Mr. Mogavero had a conversation that Mr. Mogavero contended amounted to an oral contract. An affidavit, sworn to by Mr. Mogavero, sets forth his recollection of the terms of the agreement, viz:

[Silverstein] told me that he needed my help for the project [renovating the property] and asked me what I wanted out of the project. I responded as I have previously testified. Basically I agreed to help him with the construction end of the project in return for a fee of 5 percent of the estimated construction contract. He agreed to these terms and from that time until late July 1998 I worked closely with [d]efendants on the [property].

At deposition, Mr. Mogavero was asked by defense counsel to spell out what was said when he and Silverstein entered into the oral agreement here at issue. Mr. Mogavero's response was as follows:

[I]n early December, [Silverstein] asked me, well, what was my, what was I interested in[,] in the contract or in the building. And I basically told him that—he more or less asked me, that (sic) he needed my help, what [was] I... looking for. And I told him that I would be looking for 5% of the contract and possibly some tax credits, and I was interested in purchasing some tax credits.¹ And I basically told him what I would do. I told him that the fee that other people would charge him would be... more in the line of 10 to 15 percent plus cost, and I more or less explained to him what I would do for my fee.

Mr. Mogavero was then asked, "what did you explain to him" that you would do for your fee? He answered:

I told him that I would help him with the construction, I told him I would get him the architect, I told him I would get him the contractor to do the job, I would check on the construction. I would advise him in reference to the system and the design of the architect.... I told him I would monitor the construction phase of the project. And that is basically it.

C. Post "Agreement" Events

In March 1998, Silverstein hired Frank Gant as the project's architect. According to Mr. Mogavero's deposition testimony, an architect was needed to "guide us as to the most productive use of the property." Mr. Gant was recommended to Silverstein by Mr. Mogavero. A surveyor was also hired by Silverstein based upon Mr. Mogavero's recommendation.

During the early planning stages of the project, the question arose as to whether it would be more prudent to put the rehabilitation project out for competitive bids rather than to have a negotiated, fixed-fee contract. Mr. Mogavero voiced the opinion that the most economical way to rehabilitate the property was to select a general contractor and have the general contractor sign a fixed-fee contract. He also advised Silverstein that the best contractor to do the job under a fixed-fee contract was Marlund Contracting Company ("Marlund").

At that time, one of Marlund's project managers was John Mogavero ("John"). John was appellant's son.

Appellant explained in the following words the reasons for his recommendations:

Well, because rehabilitations are unique. They are not like new construction, and there are a lot of unforeseens that you have to deal with. I knew construction, I knew I could handle John [Mogavero] and his boss's construction company to more or less comply with, basically, my demands. I knew that I could nail them down to a solid, no-extra contract, and it was going to be a fixed fee, but that fee was going to be fixed. There was not going to be another dollar involved in changes of, on anybody's part in reference to additional cost unless they were requested by the owner.

There was a lot of investigation that had to be done in reference to putting the job together. You just could not go out and pick up a set of drawings like Silverstein gave out for bid and give a good price and a solid price that neither he [n]or the contractor could honestly live with, in my opinion, and come and get the job done in a good and orderly fashion, as Silverstein, I am sure, would have wanted....

Silverstein, on behalf of Mason Dixon, accepted Mr. Mogavero's suggestion and contacted Marlund. Silverstein told Marlund's representatives that he wanted to work with them so that they could come up with a fixed-fee contract that would spell out the work to be done and the cost. With that goal in mind, Silverstein also asked Marlund to work with Mr. Mogavero and with the architects. On several occasions Silverstein told Marlund's representatives that Mr. Mogavero was to be "in charge of construction" and that Mr. Mogavero was "his construction guy" whom they should contact if they had any questions or problems regarding construction. It was understood by Marlund, however, that before Marlund could commence construction work on the rehabilitation project a written contract between Mason Dixon and Marlund would have to be executed. Mark Marquardt, president of Marlund, testified at deposition as follows:

He [Silverstein] indicated that he felt that while, ultimately, a contract would be between Marlund Contracting and Mason Dixon Properties, and he would certainly want to be involved in ultimately what was going to be built and so on because, as any developer, you need to make sure that what you are building suits your tenants and your overall development needs, he indicated that any day-to-day construction interface, oversights dealing with construction issues and getting answers and so on would be done through Sam [Mogavero].

Between January and July, 1998, Mr. Mogavero met with John and other representatives of Marlund on numerous occasions to...