Vogel v. Estate of Hillman

• Decision Date: 16 June 2021
• Docket Number: No. 1902,1902
• Parties: MARK VOGEL v. THE ESTATE OF DAVID HILLMAN, ET AL.
• Court: Court of Special Appeals of Maryland

MARK VOGEL v. THE ESTATE OF DAVID HILLMAN, ET AL.

No. 1902

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 16, 2021

Circuit Court for Prince George's County

Case No. CAE17-17655

UNREPORTED

Fader, C.J., Zic, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Fader, C.J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This appeal concerns the validity of alleged oral contracts between commercial property developers regarding two hotels near the University of Maryland, College Park. Mark Vogel, the appellant, claims that David Hillman,¹ one of the appellees, promised him a 50 percent equity share in one of the hotels and a 20 percent share (later reduced to ten percent) in the other, for Mr. Vogel's efforts related to developing the hotels. Mr. Hillman acknowledges that Mr. Vogel is entitled to some compensation for his efforts but denies entering any contracts with him.

Mr. Vogel brought a complaint against Mr. Hillman containing counts for breach of contract, negligent misrepresentation, unjust enrichment, quantum meruit, and constructive trust. The Circuit Court for Prince George's County awarded summary judgment in favor of Mr. Hillman on all counts other than unjust enrichment. The court concluded that Mr. Hillman was entitled to judgment on the breach of contract counts because Mr. Vogel failed to generate a genuine dispute of material fact concerning whether the parties had reached agreement as to the essential terms of enforceable contracts. With regard to the quantum meruit and constructive trust counts, the court concluded that to the extent they were viable, they were duplicative of the unjust enrichment count. Finally, the court determined that Mr. Vogel's negligent misrepresentation count failed because his alleged reliance on Mr. Hillman's promises was not reasonable as a matter of law. The court permitted the unjust enrichment count to proceed to trial.

On appeal, Mr. Vogel challenges the circuit court's award of summary judgment on his breach of contract, quantum meruit, and negligent misrepresentation counts. We agree with the court's breach of contract rulings with respect to one of the two hotels, because Mr. Vogel did not present evidence from which a reasonable trier of fact could conclude that the parties had reached mutual assent to the essential terms of an enforceable contract. With respect to the second hotel, however, Mr. Vogel presented evidence that, if believed, could support such a conclusion. We also agree with the circuit court's ruling concerning the quantum meruit count, but conclude that Mr. Vogel presented evidence that created a dispute of material fact sufficient to withstand summary judgment on his negligent misrepresentation claim for both hotels. We therefore will affirm in part and reverse in part the circuit court's judgment and remand for further proceedings.

Mr. Vogel also challenges the circuit court's denial of his motion for leave to amend his complaint to add new parties. In light of our rulings on the summary judgment issues, we will affirm in part and vacate in part the court's order regarding leave to amend and remand for further proceedings consistent with this opinion.

BACKGROUND²

The Conference Center Hotel

Mr. Vogel is an experienced real estate developer based primarily in the Washington, D.C. metropolitan area. Mr. Hillman was a prominent real estate developer,founder and CEO of Southern Management Corporation, and an owner and operator of multifamily real estate properties in Maryland. Although Messrs. Vogel and Hillman first met in the mid-1970s and interacted socially and in connection with charitable and political causes over the years, they did not collaborate on a business venture until approximately 2008 or 2009, when Mr. Hillman approached Mr. Vogel and asked whether he would be interested in pursuing the development of a hotel together. This project would become the Conference Center Hotel,³ which is located at 7777 Baltimore Avenue in College Park and owned by appellee The Hotel at UMCP, LLC.

In a deposition, Mr. Vogel did not recall the timing or location of his discussion with Mr. Hillman, or whether it was in person or by phone, but he testified that Mr. Hillman asked him to identify possible sites for the hotel and "proposed a fifty-fifty deal with the understanding that [Mr. Hillman] would put up the equity . . . and that [Mr. Hillman] would get a preferred return on whatever the equity requirement was." Mr. Vogel's responsibilities, as set forth in an affidavit he submitted in opposition to Mr. Hillman's motion for summary judgment, were to

locate the site of the hotel, identify tenants for the retail space at the hotel, serve as the "goodwill ambassador" for the hotel by educating and working with local officials on the project, work on entitlement issues, and identify and pursue cost-saving mechanisms for the hotel, such as tax credits and fee waivers.

None of the terms of this arrangement were set forth in writing by the parties at any time before the initiation of this litigation.

Mr. Vogel did not identify another conversation with Mr. Hillman about the terms of their alleged deal until December 2016. At that time, having become aware that Mr. Hillman was ill, Mr. Vogel wanted to reduce their oral agreement to writing. Mr. Vogel therefore raised the issue in a meeting that took place at the construction site for the Cambria Hotel, the other hotel that is the subject of this litigation. During that meeting, Mr. Hillman told Mr. Vogel that he "would have to take a much smaller percentage of the Conference Hotel" in light of $70 million in cost overruns that had required Mr. Hillman to bring in additional equity investors. Mr. Vogel "understood" because, as he phrased it, he "knew that it's a different deal at 170 million than it was at a hundred million." Mr. Vogel therefore agreed that he would accept "less."⁴ Mr. Hillman stated that he would need to talk with his other partners before giving Mr. Vogel "a final number for the Conference Hotel." Mr. Hillman, however, never gave Mr. Vogel such a "final number" and so the parties "never finalized the deal."

In January 2017, Mr. Vogel sent an email to Mr. Hillman's attorney containing the following summary of what he believed the parties "need[ed] to address" concerning the Conference Center Hotel:

We left it to where [Mr. Hillman] will respond to me. We talked about a subordinated interest for me in the hotel. I spent a couple of years handling the land acquisition as well as representing both the Spa and Franklin[ Square] restaurant. I also helped on the subsidies and local issues. Because [Mr. Hillman] has so much money in this deal, it does not make s[ense] for me to put any money into this hotel. [Mr. Hillman] needs to give me what he thinks is fair.

In addition to his own testimony regarding his arrangements with Mr. Hillman, Mr. Vogel relies on other evidence that he contends demonstrates that Mr. Hillman or others who interacted with him viewed Mr. Vogel as a partner in the hotel, including:

• In a November 2011 email to a University of Maryland vice president, Mr. Hillman stated that "[t]he partners on my side . . . will be Wayne Curry and Mark Vogel. Mark has extensive experience and good credibility with the College Park people and Wayne has credibility with everyone."

• In a February 2015 email, Mr. Hillman wrote to a potential Conference Center Hotel investor: "[Mr. Vogel] is not a broker (for the hotel) but will get a small equity interest for his work so you can call him a principal if it helps." That same investor agreed during his deposition that Mr. Vogel appeared to be a partner "in many instances."

• In a deposition, an investor in the Conference Center Hotel provided the following description of his understanding of Mr. Vogel's role: "[I]t was explained to us by [Mr. Hillman], and this was my understanding throughout, that [Mr. Vogel] was a minor equity partner or that he was going to be, and it would vest, and he did not explain to us how much that was or what his position was, but what he did tell us is that [Mr. Vogel] is helping me identify and lease up parts of the project or specifically restaurants or retail to come into the hotel and also helping me work on the financing and helping me with some of the I guess what we would say some of the glad-handing and introductions that I need to make for people here in the area in College Park to help make this development, the permitting process, the zoning and everything slide through smoothly; so that he was working with him in thatcapacity, and he said that when those things were accomplished, then, yes, he would be -- he would vest; he would get some money and he would have some ownership stake, although I think he did describe it as small, you know, to us."⁵

• In a deposition taken in 2015 in a different case concerning the Conference Center Hotel, Mr. Hillman testified that Mr. Vogel was "not under any contract or agreement" with him or his development company and that Mr. Hillman had no written contractual agreement with Mr. Vogel. However, Mr. Hillman responded affirmatively when asked if he "ha[d] any understandings that you consider contractual or binding with Mr. Vogel[.]" Asked to elaborate, Mr. Hillman stated:

He's earned some fees for procuring some of the -- A couple of the tenants, potential tenants in the hotel. And he's been assisting me in -- in working through the approval process, the entitlement process. We haven't discussed any specific amount he's to get, and he has the option of obtaining an interest in that hotel in lieu of a cash payment. And he also has the option to invest some money in the LLC also.

Mr. Hillman then confirmed that there was no written agreement and

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