Pgp Inv.S v. And
| Decision Date | 01 February 2011 |
| Docket Number | CASE NO. 3:09CV42 |
| Parties | PGP INVESTMENTS, LLC PLAINTIFF v. REGIONS BANK and REGIONS FINANCIAL CORPORATION DEFENDANTS |
| Court | U.S. District Court — Northern District of Mississippi |
This cause comes before the court on the motion [53] of Defendants Regions Bank and Regions Financial Corporation seeking summary judgment.
PGP Investments is a Mississippi limited liability company comprised of Dr. Hayden Perkins, a pediatric dentist, Dr. Todd Gililland, an orthodontist, and Dr. Michael Perry, a periodontist. PGP planned to invest in a piece of property in Oxford, MS and develop an office park. Principals of PGP met with Taylor Boone of Regions in order to receive a financing quote. At all times PGP sought an interest rate that would be fixed for fifteen years. Two PGP members, Drs. Perry and Perkins, met with Boone where he allegedly presented them with a written offer of a rate of 4.85% fixed for fifteen years. This alleged offer was available to the PGP principals for purchasing fifty basis points and transferring personal accounts to Regions, which they did. PGP then declined offers from other lenders and proceeded with the office project. PGP signed a loan agreement with Regions in the amount of $560,000 and obtained a line of credit. PGP later discovered that Regions would not be able to provide financing at the previously discussed rate. A writing of the alleged offer no longer exists.
PGP filed suit against Defendants alleging a breach of a loan agreement, bad faith andtortitous breach of contract, breach of duties of good faith and fair dealing, breach of fiduciary duties, fraudulent misrepresentation, negligent misrepresentation, and negligence.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed.2d 265 (1986). An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986). In reviewing the evidence, this Court must draw all reasonable inferences in favor of the nonmoving party, and avoid credibility determinations and weighing of the evidence. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110, 147 L. Ed.2d 105 (2000). In so doing, the Court must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves, 530 U.S. at 151, 120 S. Ct. at 2110.
PGP first alleges a claim of a breach of contract for Regions' failure to execute the alleged loan agreement. To prevail on this claim, Plaintiff must establish (1) the existence of a valid and binding contract; (2) that the defendant has broken, or breached it; and (3) that the plaintiff has been thereby damaged monetarily. Favre Prop. Mgmt., LLC v. Cinque Bambini, 863 So. 2d 1037, 1044 (Miss. Ct. App. 2004). The dispute in this case centers around the first prong, in that Defendants claim no valid and binding contract was ever formed.
First, Regions argues that the Statute of Frauds precludes PGP from prevailing on this claim. Mississippi law provides that an "agreement which is not to be performed within the space of fifteen months... shall be in writing, and signed by the party to be charged...." Miss. Code Ann. § 15-3-1 (1999). Regions argues that the contract was never delivered, however, the jury may certainly consider actual physical delivery when determining whether the parties mutually executed and accepted terms.
Regions also contends that PGP's claim fails because the material terms are not sufficiently definite to render the contract enforceable. A contract is sufficiently definite "if it contains matters which will enable the court under proper rules of construction to ascertain its terms." Leach v. Tingle, 586 So. 2d 799, 802 (Miss. 1991) (citing Duke v. Whatley, 580 So. 2d 1267, 1272-74 (Miss. 1991)). PGP maintains that there was a specific interest rate, cited down to the hundredth decimal place, for a term of fifteen years. Price is an essential term that must be stated with specificity. Id. at 803. Both PGP principals and Boone consistently state that the pride range of the project was between $1,860, 000 to $ 2.2 million. This is sufficiently definite for an offer, as the total amount of costs would be finalized at the completion of construction.
PGP argues that even if no contract physically exists, promissory and equitable estoppel should nonetheless warrant an enforceable contract in this case. "An estoppel may arise from the making of a promise, even though without consideration, if it was intended that the promise should be relied upon and in fact it was relied upon, and if a refusal to enforce it would be virtually to sanction the perpetuation of fraud or would result in other injustice." C.E. Frazier Constr. Co. v. Campbell Roofing & Metal Works, 373 So. 2d 1036, 1038 (Miss. 1979). "The law of Mississippi does not regard estoppels with favor...." Walley v. Steeples, 297 F.Supp.2d 884, 888 (N.D. Miss. 1996) (citing PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 206 (Miss. 1984). Promissory estoppel requires (1) a promise; (2) that induces action of a definite or substantial character on the part of the promisee; and (3) that the promisor reasonably should have expectedthe promisee's action. Solomon v. Walgreens, Co., 975 F.2d 1086, 1091 (5th Cir. 1992). Regions argues that PGP cannot prove an offer was made to them. However, Drs. Perkins and Perry, principal members of PGP, will testify that Boone made a promise with specific financing terms and that they recall seeing the written offer. PGP could prevail if a jury believes the testimony of its principal members. A fair-minded jury could also find it reasonable for PGP to expect a vice-president of Regions to follow through with his promise, and that he had the authority to do so.
Further, to prevail on equitable estoppel, PGP must show (1) that it has changed its position in reliance upon the conduct of another; and (2) that it has suffered detriment caused by this change in position in reliance upon that conduct. Id. Equitable estoppel "should only be used in exceptional circumstances and must be based on public policy, fair dealing, good faith, and reasonableness." Eagle Mgmt., LLC v. Parks, 938 So. 2d 899, 904 ¶12) (Miss. Ct. App. 2006) (citing Powell v. Campbell, 912 So. 2d 978, 982 ¶ 12) (Miss. 2005). Certainly, turning down other financial offers to fund the project, purchasing basis points, transferring personal funds to Regions, obtaining a $560,000 loan and a line of credit from Regions signifies that PGP did change its position in reliance on the fact that its members believed Regions to be able to finance at a better rate. It is undisputed Regions did not provide this rate, and PGP maintains it would have used a different lender but for the offer in question. Defendant's motion will be denied on Plaintiff's breach of contract claim.
PGP next alleges that Defendants exhibited bad faith and tortiously breached the loan agreement. "Tortious breach of contract requires, in addition to a breach of contract, some intentional wrong, insult, abuse, or negligence so gross as to constitute an independent tort."
Braidfoot v. William Carey College, 793 So. 2d 642, 655 (¶ 45) (Miss. Ct. App. 2000) (citing Southern Natural Gas Co. v. Fritz, 523 So. 2d 12, 19-20 (Miss. 1987)). Plaintiff has not pled any particular facts that would demonstrate extreme conduct as to establish an intentional tort. PGP's mere allegation that Regions' actions constituted a tortious breach does not satisfy this claim, even accepting the facts as true. Holland v. Peoples Bank & Trust Co., 3 So. 3d 94, 100 (Miss. 2008). This portion of Defendants' motion will be granted.
PGP further contends Regions breached the duties of good faith and fair dealing. To prevail, PGP must prove the existence of a fiduciary relationship by...
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