GMW Organization v. Atlass, S. (memorandum)

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J-A28037-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 GMW ORGANIZATION, LLC, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. STEVEN B. ATLASS, PENNSYLVANIA BANCSHARES, INC., HOWELL ACQUISITION PARTNERS, L.P., AND KREBS PARTNERS, LLC, Appellees No. 304 EDA 2015 Appeal from the Judgment Entered February 19, 2015 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 01597 August Term, 2012 BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ. MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 24, 2015 This is a contract dispute between Appellant, GMW Organization, LLC (“GMW”), an organization that provides strategic advisory services and business advice that is owned by Gregory Weinberg (“Weinberg”), and Appellees, Steven B. Atlass (“Atlass”) and his related entities, Pennsylvania Bancshares, Inc. (“Bancshares”), Howell Acquisition Partners, L.P. (“Howell”), and Howell’s general partner, Krebs Partners, LLC (“Krebs”) (also collectively “Appellees”). We affirm. The trial court summarized the factual and procedural history of the case as follows: On August 16, 2012, GMW . . . commenced the instant action by way of a complaint against . . . Atlass, . . . Bancshares, J-A28037-15 . . . Howell, and . . . Krebs . . .; businesses which were all alleged to be affiliated with Atlass. The complaint asserted a number of causes of action against [Appellees] related to a written compensation agreement [(“Agreement”)] . . . [the] parties entered into after Atlass approached GMW’s President and owner, Gregory Weinberg . . . in early April 2011 regarding GMW finding funding for two hospital projects [that] Atlass was involved in. On July 16, 2014, [GMW’s] causes of action for breach of contract and declaratory relief proceeded to bench trial before this court.1 1 [GMW’s] cause of action for unjust enrichment, which was asserted in the alternative, also proceeded to trial. At trial, the following facts were adduced and arguments were made. On July 20, 2011, GMW and Atlass, Bancshares, and Atlass’s “affiliates,” which were collectively referred to as “Atlass,” entered into the [Agreement] whereby GMW would provide “investment banking services to Atlass with regards to capital raising events (‘Transaction(s)’)” for two hospitals, the two hospitals being: (1) Northeastern Hospital, which Atlass had recently purchased through certain entities and (2) St. Agnes Hospital, which Atlass was planning to purchase through another entity, Howell. Atlass’ idea was to raise capital with the goal of ultimately converting the hospitals into medical office buildings. On or about December 16, 2010, Northeastern Hospital, also known as City Center at Northeastern Hospital, was purchased by Haskell Acquisitions Partners I, L.P., Haskell Acquisitions Partners II, L.P., and Haskell Acquisitions Partners III, L.P. (collectively “Haskell”). On or about July 29, 2011, Saint Agnes Hospital was purchased by Howell. Atlass formed Howell to purchase Saint Agnes Hospital. Howell is owned and/or controlled by entities in which Atlass and Atlass’ immediate family members have a majority ownership stake, including, but not limited to, its general partner Krebs, which is 100% owned and controlled by Atlass. Haskell, Howell, and Krebs are all Atlass “affiliates” within the meaning of the [Agreement]. -2- J-A28037-15 Trial Court Opinion, 4/21/15, at 1–2 (internal citations omitted). GMW contracted with Atlass to assist with raising funds for a joint venture concept that Weinberg “believed would be effective for funding development of the [h]ospital [p]rojects that Atlass had described to Weinberg” at a prior meeting. Complaint, 8/16/12, at ¶ 11. Weinberg allegedly explained to Atlass that the joint venture concept likely would provide Atlass and the Atlass affiliates “with liquidity, would enable Atlass to buy out his partner at Northeastern Hospital, . . . could enable Atlass and the Atlass affiliates to share in operational profits and profits from refinancing . . . and would allow them to earn a management fee and an asset management fee.” Id. at ¶ 12. The parties exchanged drafts of a compensation agreement, Complaint, 8/16/12, at ¶ 30, negotiated terms over several days, id. at 33, and ultimately entered into the Agreement on July 20, 2011. Id. The terms of the Agreement are relevant herein, and it is reproduced infra. GMW’s claims for breach of contract and a declaratory judgment were based on its contention that the Agreement entitled it to $250,000 and twenty-five percent interest in the entity that owned or controlled St. Agnes Hospital. The case proceeded to a two-day bench trial on July 16 and 17, 2014. On September 26, 2014, the trial court found for GMW, awarding it $0.00 and a twenty-five percent interest in Krebs, per the Agreement. -3- J-A28037-15 On October 8, 2014, GMW filed a post-trial motion, which the trial court denied by order filed on December 18, 2014. GMW filed a notice of appeal on January 8, 2015.1 Both GMW and the trial court complied with Pa.R.A.P. 1925. GMW presents the following issues, which are identical to the issues raised in GMW’s Pa.R.A.P. 1925(b) statement: I. Whether the Trial Court erred in failing to enter a specific declaration concerning Plaintiff’s rights and interest in the carried interest/profit share (also known as the “Promote” or the “Carry”) with respect to a real estate investment transaction know[n] as the St. Agnes Transaction (both “St. Agnes” and the “St. Agnes Transaction” are defined below), where: (a) the Court recognized the importance of the Promote to the parties; (b) undisputed extrinsic evidence existed to support Plaintiff’s interest in the Promote; and (c) the Court only awarded Plaintiff an interest in Krebs Partners, LLC (“Krebs”) without any declaration concerning Plaintiff’s rights to the Promote, thereby permitting Defendant to manipulate the disbursement of Promote money (including but not limited to altering the entity types in the St. Agnes Transaction) such that Krebs receives only a minimal amount and Defendant avoids having to pay Plaintiff his share of the Promote money. II. Whether the Trial Court erred in ruling that the terms of parties’ [A]greement concerning Plaintiff’s entitlement to $250,000 from the St. Agnes Transaction was clear and unambiguous, where Plaintiff satisfied the conditions precedent to its receiving the $250,000, and, in construing ____________________________________________ 1 Because judgment had not been entered on the docket as required by Pa.R.A.P. 301, we directed GMW to praecipe the trial court to enter judgment. Judgment was entered on February 19, 2015, and the previously filed notice of appeal was treated as filed after the entry of judgment. See Pa.R.A.P. 905(a). -4- J-A28037-15 such terms, the Court was required to borrow and insert clauses from other inapplicable sections of the [A]greement to support its conclusion that Plaintiff was not entitled to receive $250,000 from the St. Agnes Transaction. III. Whether the Trial Court erred in failing to award Plaintiff $250,000 based on the “amount” received by Defendants in the St. Agnes Transaction (i.e. $2,500,000), where: (a) all “debt” considerations were irrelevant to the St. Agnes Transaction because the provisions in the [A]greement relating to Plaintiff’s payment entitlements from the St. Agnes Transaction did not contain a term allowing for “debt” to reduce Plaintiff’s entitlements, and the Court found that a capital-raising event (i.e. a “Transaction” (as defined in the parties[’ A]greement)) took place; (b) even the inapplicable “debt” terms which the Court borrowed from other provisions in the [A]greement not relating to the St. Agnes Transaction called for using pre-existing debt of which the St. Agnes Transaction had none since all existing debt was eliminated in the St. Agnes Transaction and the $2,500,000 was net of such debt (as admitted by Atlass at trial); and (c) there was no genuine debt from the St. Agnes Transaction which could be used to reduce Plaintiff’s $250,000 payment entitlement. IV. Whether the Trial Court erred in construing the [A]greement of the parties against Plaintiff contrary to the doctrine of contra proferentem such that it failed to award Plaintiff $250,000 and the Promote pursuant to the St. Agnes Transaction where the [A]greement was drafted by the Defendants with the assistance of counsel[,] and Plaintiff had no counsel. GMW’s Brief at 4–6. The Agreement provides as follows: Compensation Letter Agreement July 20, 2011 Gregory Weinberg, President GMW Organization, LLC -5- J-A28037-15 1650 Market Street, 53rd Floor Philadelphia, PA 19103 Dear Greg, This letter agreement (“Agreement”), dated July 20, 2011 (the “Effective Date”), confirms the terms and conditions between GMW Organization, LLC (“GMW”) and Pennsylvania Bancshares, Inc., myself, and/or my affiliates (collectively “Atlass”) whereby GMW will be providing investment banking services to Atlass with regards capital raising events (“Transaction(s)”) for North East Hospital located at 2301 East Allegheny Avenue, Philadelphia, PA 19134 (“NE Hospital”) and St. Agnes Hospital located at 1930 South Broad Street, Philadelphia, PA 19145 (“St. Agnes”). Atlass and GMW are hereinafter referred to individually as a “Party” and together as the “Parties.” This Agreement is an exclusive engagement for a period of 120days commencing on the Effective Date. All GMW prospective sources of capital for a Transaction shall be identified by GMW and listed on Schedule “A” attached hereto, as such schedule will be updated from time-to-time by the Parties. Additions and updates to Schedule “A” shall be discussed and agreed to by the Parties, and such updates and additions shall be submitted in the form of electronic mail, and Atlass’ receipt and confirmation (by way of electronic mail) of the updates and additions set forth in such electronic mail submission constitutes acceptance of any such addition and update to Schedule “A”. Expiration of this Agreement shall not affect GMW’s right to receive compensation (as described below) if a Transaction takes place with a GMW prospective source of capital, and takes place subsequent to, but within a period of 24-months (the “Tail Period”) from the end of the term of this Agreement. GMW shall: 1) Assist Atlass Transaction; on 2) Assist in the preparation and creation of appropriate documentation (e.g. teaser and information memorandum (“Sales Materials”)); Sales Materials for NE Hospital shall [be] prepared by GMW on or -6- structuring the J-A28037-15 before twenty-one days from the Effective Date; 3) Initiate contact with prospective investors and arrange introductions with prospective investors by way of teleconference, inperson meetings and/or email communication; 4) Assist Atlass in its Transaction proposal; 5) Assist in negotiations. evaluation of a COMPENSATION NE HOSPITAL 1) 3% of a NE Hospital Transaction (irrespective of who identifies the source of capital; i.e. GMW or Atlass); 2) 10% of any funds Atlass receives from an NE Hospital Transaction (net of debt and costs) (to be paid only if a Transaction effects with a GMW prospective source (or sources) of capital, or if a Transaction effects by way of the new general partner of NE Hospital, and Atlass receives funds from such Transaction); and 3) 25% of the general partnership (“GP”) of the entity controlling NE Hospital (to be granted only if a Transaction effects with a GMW prospective source (or sources) of capital[)]. By way of example, should GMW raise $20 million dollars in a joint venture (“JV”) structure for NE Hospital from a prospective source of capital, GMW’s compensation will be as follows: 1) 3% of $20 million (i.e. $600,000.00); 2) 10% of what Atlass receives (e.g. $20,000,000 less debt of $12 million, less $2 million buyout of partners, less expenses); the net amount of $6 -7- J-A28037-15 million would equal a $600,000 fee payable to GMW; and 3) 25% of the GP of the entity controlling (e.g. JV) of NE Hospital. ST AGNES HOSPITAL Upon closing of the initial St. Agnes Transaction (e.g. $2 million bridge financing), irrespective of who identifies the source of capital, GMW will receive $30,000.00. Upon the closing of a subsequent St. Agnes Transaction, GMW will receive: 1) 3% of the Transaction amount (irrespective of who identifies the source of capital; i.e. GMW or Atlass); 2) 10% of the amount Atlass would receive from a St. Agnes Transaction (see above example) (to be paid only if a Transaction effects with a GMW prospective source (or sources) of capital); and 3) 25% of the GP in the entity that controls St. Agnes (to be granted only if a Transaction effects with a GMW prospective source (or sources) of capital). GMW is affiliated (GMW’s President is a registered representative) with Grant Williams, LP (“GWLP”), a Philadelphia, Pennsylvania broker-dealer who is a member of FINRA and the Securities Investor Protection Corporation (“SIPC”). GMW, through GWLP, will comply with all applicable laws, rules, and regulations of the Securities and Exchange Commission (the “SEC”), the conduct rules of FINRA, and any state securities laws and regulations. Neither Party shall have the right to assign its rights or delegate its obligations under this Agreement without the prior written consent of the other Party; provided however, that GMW may assign its rights or obligations hereunder to GWLP or any other FINRA broker-dealer that GMW may associate with during the -8- J-A28037-15 Term, Tail Period, and any extension thereof, without the prior written consent of Atlass. This Agreement shall be binding on the Parties and their successors, assignees, designees or acquired businesses. If you agree with the terms and conditions of this Agreement, please sign and return. It is understood that you will prepare a more formal document as soon as practicable. Sincerely, PENNSYLVANIA BANCSHARES, INC Steven B. Atlass President Accepted: Signature of Steven B. Atlass Date: July 20, 2011 Accepted and agreed as of this 20th day of July, 2011 GMW Organization, LLC By: Signature of Gregory Weinberg Gregory Weinberg President Complaint, 8/16/12, at Exh. A. In reviewing a decision after a nonjury trial, “we will reverse the trial court only if its findings are predicated on an error of law or are unsupported by competent evidence in the record.” Deutsche Bank Nat. Trust Co. v. Gardner, 2015 PA Super 219, slip op. at 2 (Pa. Super. filed October 14, 2015) (citing Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 321 (Pa. Super. 2015)). We may interfere with the trial court’s conclusions only if -9- J-A28037-15 they are unreasonable in light of its findings. Zappile v. Amex Assur. Co., 928 A.2d 251, 254 (Pa. Super. 2007). GMW’s issues relate to the trial court’s interpretation of the Agreement. “[T]he ultimate goal [of contract interpretation] is to ascertain and give effect to the intent of the parties as reasonably manifested by the language of their written agreement.” Southwestern Energy Production Co. v. Forest Resources, LLC, 83 A.3d 177, 187 (Pa. Super. 2013). “In cases of a written contract, the intent of the parties is the writing itself.” Lesko v. Frankford Hosp.-Bucks Cnty., 15 A.3d 337, 342 (Pa. 2011). “[I]n determining the intent of the contracting parties, all provisions in the agreement will be construed together and each will be given effect.” LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009). We have made clear: Determining the intention of the parties is a paramount consideration in the interpretation of any contract. The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous. However, as this Court stated in Herr Estate, 400 Pa. 90, 161 A.2d 32 (1960), “[W]here an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is created by the language of the instrument or by extrinsic or collateral circumstances.” We first analyze the contract to determine whether an ambiguity exists requiring the use of extrinsic evidence. A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. The court, as a matter of law, determines the existence of an ambiguity and interprets the contract whereas the resolution of conflicting parol evidence relevant to what the - 10 - J-A28037-15 parties intended by the ambiguous provision is for the trier of fact. Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1, 6–7 (Pa. Super. 2013). GMW first argues that the trial court erred in failing to enter a specific declaration concerning GMW’s rights and interest “in the carried interest/profit share (also known as the “Promote” or the “Carry”)” with respect to the St. Agnes Transaction. GMW’s Brief at 4. The trial court defined “promote” as “‘a carried interest . . . or what’s also known as a profit share whereby . . . a person who’s putting a deal together can share in the upside as the property or the entity becomes successful’ and the limited partners have been paid back with interest.” Trial Court Opinion, 4/21/15, at 16–17 (citing N.T. Volume I, 7/16/14, at 68–69). Appellees assert that the term “promote,” as utilized by GMW, is not contained in the Agreement; rather, the Agreement addressed GMW’s compensation “without any reference to a ‘promote.’” Appellees’ Brief at 7–8. The trial court agreed that the Agreement made no mention of a “promote”; rather, the Agreement provided that GMW would be entitled to twenty-five percent of the general partnership in the entity that controls St. Agnes Hospital. Trial Court Opinion, 4/21/15, at 17. The trial court concluded that Howell controlled St. Agnes Hospital within the meaning of the Agreement. Thus, GMW was entitled to twentyfive percent interest in Howell’s general - 11 - partner, Krebs. While J-A28037-15 acknowledging that GMW argued that it was entitled to twenty-five percent of Howell, the trial court concluded that the Agreement’s terms are clear and unequivocal. Therefore, the precept that a court may examine the surrounding circumstances to ascertain the intent of the parties when the words used in a contract are ambiguous, see, e.g., Keystone Dedicated Logistics, 77 A.3d at 6, never came into play. Even if the provision in the Agreement was ambiguous, the trial court found that the undisputed extrinsic evidence did not support GMW’s interest in the promote. Trial Court Opinion, 4/21/15, at 18. After careful review, we conclude that the trial court did not err in its determination. The second issue concerns the trial court’s conclusion that GMW was not entitled to $250,000, or ten percent of the $2.5 million Howell received as part of the St. Agnes Hospital transaction because the $2.5 million was debt; the Agreement excluded debt from funds to which GMW’s ten percent compensation was applicable. GMW argues that the trial court erred in determining that the Agreement was clear and unambiguous, yet it utilized clauses from other sections of the Agreement to support its conclusion that GMW was not entitled to $250,000. GMW’s Brief at 36. GMW alleges the trial court “supplied a term that was intentionally excluded from the St. Agnes compensation terms.” Id. at 39. GMW maintains that the trial court should have examined the St. Agnes Hospital provision in isolation, without - 12 - J-A28037-15 reference to any other language of the Agreement. Thus, GMW avers that the trial court erred in its interpretation of the Agreement. The trial court rightly concluded that it was obligated to view the Agreement as a whole and not “in discrete units.” Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d 39, 42 (Pa. Super. 1997). The trial court looked to the entire Agreement and correctly determined there was no ambiguity. Moreover, the trial court found that Weinberg’s testimony that the $2.5 million was structured as a loan at his suggestion for tax reasons was not credible. Trial Court Opinion, 4/21/15, at 24. See Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 609 (Pa. Super. 2014) (“Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact.”). Therefore, this issue lacks merit. GMW’s third claim is that the trial court misconstrued the debt terms of the Agreement, maintaining that the trial court erred in finding that “because Iron Point[2] provided Howell with a loan, that loan was debt that should have been deducted from the ‘amount’ received by [Appellees] in calculating what [GMW] was due under the Compensation Agreement.” GMW’s Brief at 40. Thus, GMW posits that the debt referred to in the ____________________________________________ 2 Iron Point Partners, LLC is a private equity company that was interested in investing in both Northeastern Hospital and St. Agnes Hospital but ultimately invested solely on St. Agnes Hospital. Trial Court Opinion, 4/21/15, at 5. - 13 - J-A28037-15 Agreement was only pre-existing debt. The trial court found that GMW did not identify any evidence that the terms “net of debt” and “less debt” used in the Agreement referred only to existing debt paid off through a hospital transaction rather than funds received by Atlass or an affiliate as new debt. The trial court determined that Iron Point dictated the “$2.5 million would be structured as a loan in order to provide itself with more protection.” Trial Court Opinion, 4/21/15, at 24. The trial court’s conclusions are well supported by the record. Finally, GMW asserts that the trial court should have applied the doctrine of contra proferentem. Under that rule, “any ambiguous language in a contract is construed against the drafter and in favor of the other party if the latter’s interpretation is reasonable.” Municipal Authority of Borough of Midland v. Ohioville Borough Municipal Authority, 108 A.3d 132, 139 (Pa. Cmwlth. 2015). This issue has been discussed in the context of the first and second issues; we have noted that the trial court’s conclusion that the Agreement lacked ambiguity has record support. Thus, the ambiguity issue has no merit. Moreover, the doctrine has no application herein because the evidence of record supports the conclusion that the Agreement was a freely negotiated instrument. See Kozura v. Tulpehocken Area Sch. Dist., 791 A.2d 1169, 1175 n.8 (Pa. 2002) (“The principle that a contractual ambiguity is to be construed against the drafter - 14 - J-A28037-15 does not apply where, as here, the contract is the result of the joint efforts of negotiators.”). In summary, the trial court provided an exhaustive analysis and correct disposition of all of the issues raised by GMW. Accordingly, we affirm the judgment, and we do so on the basis of the comprehensive April 21, 2015 opinion of the Honorable Patricia A. McInerney.3 Judgment affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/24/2015 ____________________________________________ 3 The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter. - 15 - Circulated 10/30/2015 03:56 PM IN THE COURT OF COMMON PLEAS OF PMLADELPBIA COUNTY FIRST JUDIC~ DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION GMW ORGANIZATION, LLC, • • Plaintiff, AUGUST TERM, 2012 ~~ N0.1597 VI, ..• • . STEVEN B. ATLASS. ET AL., Defendant1. ;.,.;• r 1· '• -~ . t-:~: r COMMERCE PROGRAMt r .. . ~ .. '. ... , i. t• t . f:· '.• .. -· . ·. ··- QPffilON BY: Patricia A. Mcinerney, J. April 21, 2015 Judarne.nt having been entered. this is an appeal from the order denying the plaintiff's motion for post-trial relief. L BACKGROUND I I On August 16. 2012, GMW Organization, LLC ('1GMW'1 or "Plaintiff') commenced the instant action by way of a complaint against Steven B. Atlass ("Atlass1'). Pennsylvania Bancshares, Inc. (''Bancshares,.), Howell Acquisition Partners, L.P. f'Howell"), and Howell's general partner Krebs Partners, LLC ("Krcbs' (oollectively, "'Defendants'');businesses which 1) were all alleged to be affiliated with Atlass. (Pl. 's Compl. fl' 2..s.) The complaint asserted a number of causes of action against Defendants related to a written compensation agreement ("Contract")these parties entered into after Atlass approached GMW's Presidentand owner, Gregory Weinberg ("Weinberg"), in early Aprll 2011 regarding GMW finding funding for two hospital projects Atlass was involved in. (See id. atfl 9-1 J, 33, 46--73.) On July 16, 2014, Plaintiff's causes of action for breach of contract and declaratory relief 1 COPIES SENT PURSUANT TO Pa.R.C.P. 236{b) D. SPARACINO 04/21/2015 Cimw Olp,,iulian, Lie VaA1f-Efil.0PFLD 111111111111111111 i I I Circulated 10/30/2015 03:56 PM proceeded to bench trial before this court. 1 At 1rial, the following facts were adduced and arguments were made. On July 20, 2011, GMW and Atlas~ Bancshares, and Atlass's "affiliates.° which were collectively referred to as "Atlass.'' entered into the Contract whereby OMW would provide "inv~ent banking services to AtJass with regards to capital raisin& events ('Transaction(s)')" for two hospitals, the two hospitals being: (1) NortheasternHospital. which Atlass bad recently purchased through· certain entities end (2) St. Agnes Hospital, which AtJass was planning to purchase through another entity, Howell. (See Pl.'s Ex. I; N.T .• Vol. 1, 40-44, 216~18.} Atlass' idea was to raise capital with the goal of ultimately converting the hospitals into medical office buildings. (See N.T., Vol. 1, 53-54, 204-JO; Pl.'s Ex. 22.) On or about December 16, 2010, Northeastern Hospital, also known as City Center at Northeastern Hospital, was purchased by Haskell Acquisitions ·Partners I, L.P., Haskell Acquisitions Partners II, L.P., and Haskell Acquisitions Partners Ill, L.P. (collectively "Haskelr'). (See N.T., Vol. I, 206-07; Defs. Bxs. Sl-52.) On or about July 29, 2011, Saint Agnes Hospital was purchased by Howell (N.T .• Vol. 1, 146, 208.) Atlass formed Howell to purchase Saint Agnes Hospital, (Ste Id. at 205, 208.) Howell is owned and/or controlled by entities in which Atlass and AtJass' immediate family members have a majority ownership stake, including, but not limited to, its general partner Krebs, which is I 00% owned and controlled by Atlass. (Id. at 128-32; Pl!s Ex. lS.) Haskell, Howell, and Krebs are all Atlass "affiliates" within the meaning of the Contract. (N.T~ Vol. r, 129, 208-09; N.T., Vol. 2, 84, 133.) Plaintifrs cause of action for unjust enrichmen'1 which was asserted in the alternative, also proceeded to trial. 1 2 I Circulated 10/30/2015 03:56 PM The Contract provided: GMWsball: l) Assist Atlass on structurin& the Transaction; 2) Assist in the preparation and creation of appropriate documentation (e.g., teaser and information memorandum ('•Sales Materials',); Sales Materials for NE Hospital shall [be] prepared by GMW on or before twenty-one days from the Effective Date; · 3) Initiate contact with prospective investon and arrange in1Toductions with prospective investors by way of teleconference, in-person meetings and/or email communications; 4) Assist Atlass in its evaluation of a Transaction proposal; 5) Assist in negotiations. (Pl. 's Ex. I, at p. 1.) The Contract then set forth nearly identical compensation structures for GMW for both Northeastem Hospital and St. Agnes Hospital, specifically providing: COMPENSATION NE HOSPITAL 1) 3% of a NE Hospital Transaction (irrespective of who identifies the source of capital; l.e. OMW or Atlass); 2) 10% of any funds Atlass receives from aD NB Hospital Transaction (net of debt and costs) (to be paid only if a Transaction effccm with a GMW prospective source (or sources) of capital, or if a Transaction effects by way of a new general partner of NE Hospital. and Atlass receives funds from such Transaction); and 3) 25% of the general partnership ("OP") of the entity controlling NE Hospital (to be granted only if a Transaction effects with a OMW prospective source (or sources) of capitalD]. By way of example. should OMW raise $20 million dollars in a joint venture (nN") structure for NE Hospital from a prospective source of capital, GMW's compensation will be as follows: I) 3% of $20 million (i.e. $600,000.00); 2) 10% of what Atlass receives (e.g. $20,000,000 leas debt of $12 million, less $2 million buyout of partners, less expenses); the net amount of $6 million would equal a $600,000 fee payabJe to GMW; and 3) 25% of the GP of the entity controlling ... NE Hospital. ST AGNES HOSPITAL Upon closing of the initial St. Agnes TI11I1S2ction ( e.g. $2 million bridge 3 I I Circulated 10/30/2015 03:56 PM financing), itTCspective of who identities the source of capital, OMW will receive $30,000.00. Upon the closing of a subsequent St. Agnes Transaction, OMW will receive: I) 3% of the Transaction amount (irrespective of who identifies the source of capital; Le, OMW or Atlass); 2) 10% of the amount Atlass would receive from a St. Agnes Transaction (see above example) (to be paid only if a Transaction effocts with a GMW prospective source (or sources) of capital); and 3} 2S% of the OP in the entity that controls St. Aanes (to be granted only if a Transaction effects with a OMW prospective source (or sources) of capital). (Id. at p. 2.) Regarding sources of capital, the Contract provided "[a]ll OMW prospective sources of capital for a Transaction shall be identified by OMW and listed on Schedule 'A' attached hereto, as such schedule will be updated from time-to-time by the Parties," (Jd. at p. J .) On June 30, 20111 Atlass prepared the first draft of the Contract and sent it to Weinberg. (PJ. 's Ex. 11.) Weinberg then made "somewhat substantial" edits to the first draft and provided Atlass with several subsequent drafts. (N. T., Vol. l, 98; Oefs/ Exs. 6-9.) Before entering into the Contract, Weinberg sought to bring in a co-lnvestment banker. (N.T., Vol. 1, 103-04, 169-72, 219·20.) To that end, on or about April 2011, Weinberg. introduced Atlass to Steve Goldberg ("Ooldberg'1) who was working at Friedman, Billings and Ramsey ("FBR"). (Id. at 169-70, 219.) However, on or about May 2011, Goldberg notified Weinberg that he was resignina from FBR and moving to a new firm. Robert W. Baird & Co. ('·Baird"). (Id. at 169.) As he was resigning from FBR and moving to a new firm, Goldberg mentioned that he could not work with Atlass or Weinberg/OMW until his industry-required "garden leave" expired in Au&USf. (Id. at 169.) A "garden leave" is a set period of time where an investment banker may not work between transitioning from one finn to another. (See id. 169.) 4 Circulated 10/30/2015 03:56 PM Knowing that resignin; from FBR would cause an inconvenience, Goldberg recommended Weinberg speak with .Jim O'Brien (''O'Brien") at FBR regarding pursuing a JV opportwuty. (Id. at 32·33, 49-50; N.T., Vol. 2, p. 12.) To that end, Goldberg offered that O'Brien could provide Weinberg with a list of potential investors Weinberg could contact in the event FBR or Baird did not engage with Atlass to effect a JV. (N.T., Vol. 2, 4647; Pl. 's Ex. 36.) Weinberg diligently pursued a conference call between himself, Atlass, and O'Brien, and the call eventually took place on or about May 18, 2011. (See N.T., Vol. 1, SO; N.T., Vol. 2, 4849; Pl. 's Ex. 34.) On June 13, 2011, O'Brien sent a contact list to Weinberg that included Iron Point Partners, UC ("Iron Point"), a private equity company. (N.T., Vol. 2, 46-47; Pl. 's Ex. 36.) Shortly thereafter, O'Brien notified Weinberg that he too was resigning from FBR and moving to Baird and could not discuss any opportunity with Weinberg or Atlass during his 90. day garden leave, which would expire in mid..SCptembcr 2011. (See N.T., Vol 2, 6, 49-54; Pl.'s Ex. 37.) After entering into the Contract, Weinberg began preparing teaser/executive summary materials and financial projections. (See N.T., Vol. 1, SS-S8; PJ!s Exs, 22, 25.) During the i period of time following execution of the Contract, Weinbera also contacted numerous investors I regarding the JV opportunities with Atlass. (N.T .• Vol. I, 35·36.) And during the momhs of I September, October, and November of 2011, Weinberg worked diligently with Goldberg and J . O'Bnen, after their respective "'garden leave" periods expired, and other representatives of Baird whereby Weinberg created and provided due diligence infonnation (e.g .. an organizational chart, financials, etc.) and answered detailed due diligence questions to enable Baird to assess the viability of a joint venture. This work culminated with Atlass entering into a separate investment ! banking services agreement with Baird on November 14, 2011 (the "Howell-Baird Agreement"}. I I I I Circulated 10/30/2015 03:56 PM (See, e.g., N.T., Vol. 1. 63·67 Pl.'s Bxs., 27, 37; Defs.' Ex. 13.) From October through November 2011, Weinberg was involved in negotiating the HoweU·Baird Agreement (N.T., Vol.], 46> 70-71. 103-04.) This involvement included "advising ... Atlass on how to negotiate and edit" the Howell-Baird Agreement. (Id. at 46.) The Howell-Baird Agreement is similar to the Contract in that it sets forth Baird's obligations "in connection with the possible ••. investment in or commitment of capital to [Howell] or the St Agnes Continuing Care Center owned by [Howell).n (Defs. • Ex. I 3, at p. 1.) One y,ay, however, that the Howell-Baird Agreement differs from the Contract is that it specifies 41[1}or the avoidance of doubt, an investment or commitment of capital in the JV, the Company or any project, property or business affiliatt.d with the Company may include equity, equity ..finked or senior, mezzanine, subordinated 9r convertible debt financing." (Id.) On November JS, 201 I, Weinberg and Atlass amended the Con1ract to include the following as GMW prospective sources of capital: "(i) Any and all persons or entities identified by Robert W. Baird & Co. lncorpomted ('Baird') during the term of the agreement between Baird and Howell Acquisition Partners. LP ('Howell Agreement' dated and executed by Atlass November 14, 2011); and (ii) any and all persons or entities identified by Baird dming the term of the agreement between Baird and Haskell Acquisition Partners, LP and its affiliates {'Haskell Agreement' -to be executed as soon as practicable}; •.. " (PJ.'sEx. 3.) Stated another way, the parties agreed that GMW would be credited with any SOUIW of capital idcntifiod by Baird so long as Baird identified that source between November 141 2011 and some future date. (See id.} Certain aspects of the Contract required OMW to find the source or sources of capital ifit was to be compensated forfmding that capital. (See Pl.'s Ex. 1.) As used in the Contract, Atlass believed the term "capital" includes equity, but not debt (N.T., Vol. 1! 217.) Weinberg. on the 6 I Circulated 10/30/2015 03:56 PM other hand, argued the tenn "capital" as used In the Contract included equity and debt. (Id. at 99-100.) Upon receiving the Howell-Baird Agreement, which specified .. for the avoidance of doubt., capital includes equity and debt with res~t to the services to be provided by Baird, Weinbera did not clarify with At)ass that the word "capital~ as used in the Contract also included debt. (Id. at I 13-15.) In negotiating the Howell-Baird Aareement, Weinberg marked up the drafts proposed by Baird. In doing so, Weinberg at one point proposed to rewrite the terms of the agreement such that it would have read "for the avoidance of doubt, an investment or commitment of capital in the JV, [Howell] or the St. Agnes Continuing care Center owned [Howell] must be an equity investment, not debt." (Dcfs. • Ex. 83.) Thus, Weinberg understood prior to trial that the word "capital" could include only equity, and even asserted this position in his dealinis with Baird. After it was formally engaged by Howell, Baird eneaged in due diligence, prepared premarketing materials such as "teasers," contacted 'prospective investors, responded to due diligence requests from investors, and negotiated letters of intent. (N.T., Vol. 2, J 4-16.) In January 2012, Baird began to make phone calls to capital sources, including, but not limited to,_ Iron Point. On January 20, 2012, a representative from Baird (Kathleen Chekan) sent Weinberg and AtJass tbe list of the people that Baird was contacting ( or desired to contact). (See Pl.' s Ex. 40.) This was the first time Iron Point was identified to AtJass and the Atlass affiliates during the tenn of the Contract and durina the tenn of the Howell-Baird Agreement. During January. Febnwys and March of 2012, Weinberg participated in conference calls and/or in-person meetings/tours with Iron Point, among others. Weinberg also provided, among other things, a summary outline to Atlm in preparation for an Iron Point call and recommended 7 Circulated 10/30/2015 03:56 PM and participated in conference calls to prepare for the Iron Point caU. (N.T., Vol. l. 77·82; N.T .• Vol. 2, 227; Pl. •s Bxs. 4043.) Weinberg also provided comments on multiple iteration., of a draft term sheet/letter of intent from Iron Point, which culminated with Iron Point submitting its first proposed term sheet to Atlass on Maroh 6, 2012. (N.T., Vol. 1, 80-81; Pl. 's Ex. 43; Deis! Ex. 2S.) Weinberg received a copy of the first term sheet. (N.T.1 Vol. l, 125.) The first term sheet proposed fonnins a new limited liability company or c.ompanies to own the hospimls and real property at both St. Agnes Hospital and Northeastern Hospital. (Defs.' Ex. 2S, at p. 2.) Iron Point was the entity that proposed the limited liability company form rather than the limited partnership form. (N.T •• VoL 1, 20, 121.) On March J 9, 2012, Iron Point submitted a revised proposed term sheet for both hospitals. (Defs.' Ex. 26.) Weinberg received a copy of the revised term sheet. (N.T., Vol. 1, 127-28.) Weinberg knew Iron Point proposed structuring the new entity or entities as a limited liabilitywmpany or companies. (N.T., Vol. 1, 127.) Weinberg also understood a limited liability company does not have a general partner. (N.T., VoL l, 127-28.) The revised tenn I sheet valued Northeastern Hospital at St 2~SO,OOO and St. Agnes Hospital at $5,086,500 and I proposed providing Atlass with a $2.S00,000 "distribution." (Defs.' Ex. 26, at 3-4.) I Iron Point dictated the structure of the deal; the dollar amount; and how the money would j I I be allocated. (N.T., Vol. 2, 20. 30; Defs. 's Exs. 2S-26.) There were only limited negotiations II I between Atlass and hon Point. (N.T., Vol. t, 126--27, 225-26.) And for those limited negotiations, Baird took the lead in neaotiating on Atlass' behalf (Id. at 88, 226-21; N.T., Vol. 2. 14, 22.) Weinbera had no involvement with these negotiations with Iron Point. (N.T., Vol. 2, I I I I 27-28.) 8 Circulated 10/30/2015 03:56 PM At some point inith.c ncaotiations, Iron Point decided against pursuing a joint venture with Northeastern Hospital and focused solely on St Aanes Hospital. (N.T., Vol. 1, 230.) As a result, instead of pursuing a deal for the two hospitals Jn the S 17 ,000,000 range. Iron Point decided to only pursue a deal for the one in the $5,000,000 range. (Id. at 232-34.) It was also at this point Iron Point restructured the proposal such that the $2.S00,000 distribution was changed to a proposed$2.5 million loan. (Id. at 230-34; N.T., Vol. 2, 30.) On Jtme 1, 2012, Iron Point and Howell closed a transaction whereby they formed St. Agnes MOB, LLC, a limited liability company that would own and operate the St ASIJes Hospital business and real property formerly owned and operated by Howell. (N.T., Vol. 1, 22931; Pl.'s Ex. IS.) Pursuant to the terms of the Transaction, Iron Point contributed $6..027,579 of which a little over $2 million was used to pay off Howell's existing lender BasilicataCapital and $2.5 million was loaned to Howell. (See N.T., Vol. I, 66-67, 146, 230; Pl. 's Ex. 15.) In return, Howell contributed the property and Iron Point took a 90% ownership position in St. Agnes MOB, LLC, while Howen took a 1 ()OA, ownership interest. (See Id.) I Iron Point is a GMW prospective source of capital in accordancewith the Contract and the email amendment dated November 15, 201 l. (See N.T., Vol. 2, 87; Pl.'s Ex. 3.) But for GMW's relationship with. Baird, Iron Point would never have funded the St. Apes MOB JV Transaction. (N.T., VoJ. 1, 175-76; N.T •• Vol 2, 90.) The St. Agnes MOB~ LLC operating agreement specifies that except as otherwise provided in the agreement, the new LLC would be controlled by a five-member Board of Managers dominated by Iron Point. (Pl. 's Ex. 15, at§§ 5.01, S.02(a).) Howe)~ however, was designated as the initial managing member. (Id. at § S.OS(a).) While Howell was to ••rt I to, l and be subject to the direction and controJ of, the Board of Managers," Howell was "responsible 9 I I Circulated 10/30/2015 03:56 PM for the implementation of the decisions of the Board of Managers and for conducting the day-today- business and affairs of the Company in accordauce with the Annual Plan and Budget." (Id. at § S.OS(a).) Howell currently remains the managing member of St. Agnes MOB, LLC and receives $15,000 per-month to manaae St. Agnes MOB. (See, e.g., N.T., Vol. 2, 126-27.) In accordance with the term of the Contract that OMW would receive "2S% of the GP in the entity that controls St. Agnes,. if a Tr:ansaction effected ''with a GMW prospective source ... capital[,)'' GMW sought a 25% interest in Howell. (N.T., Vol. I, 5, 121.) Atlass and his affiliates, on the other hand argued, the entity that controls St. Agnes MOB, LLC is the Board of Managers, which does not have a GP. (Id. at 16, 247-48.) Atlass and bis affiliates further argued even if it was asswned that Howell controls St. Anges MOB, LLC. the Contract provided GMW would only be entitled to a 25% interest in the general pamer of Howell, which is Krebs. (N.T., Vol. 2, 141, 198.) In accordance with the term of the Contract that GMW would receive "10% of the amount Atlass would receive from a St. Agnes Transaction (see above example) (to be paid only if a Transaction effects with a GMW prospective source •.. of capital)(,f' OMW also sought 10% of the $2,500,000 that was loaned to Howell, or $250,000. (Su, e.g., N.T., Vol. 2, 158-60.) OMW argued lt was entitled to be compensated as such. in part, because "the word 'amount' was not defined in any limited way, and any type of capital, including any form of debt. capital, was clearly subsumed by the term 'amount"' and ''Mr. Steven Grant (President of Grant Williams, I LP; the FINRA broker dealerwhezc Weinberg is a registered representative) testified that debt is always considered a form of capital." (Pl.1s Proposed Findings of Fact and Conclusions of Law II 158 (citations to the record omitted).) Atlass and his affiliates, on the other hand, argued OMW I was "not entitled to any monetary compensation in connection with the $2,500,000 loan because I ': j 10 I Circulated 10/30/2015 03:56 PM the Joan was not a capital-raisilli event," (Dcfs/ Proposed Findinas of Fact and Conclusions of Law 1149.) Moreover, Atlass and his affiliates argued GMW wu not entitled to any monetary compensation in connection with the $2,500.000 loan because "[t]he $2,S00,000 loan from Iron Point to Howell was debt0; Atlass did not believe capital included debt under the contract; and Weinberg's testimony on the issue was not credible. (Id. at fl 131-40, 148-49.) While Baird had been formally engaged by Howell on November 14. 201), it was not until April 20, 2012 that GMW entered into a written fee-splitting arrangement with Baird (the "GMW-Baird Agreement"). (Pl.'s Ex. 30.) The GMW-Baird Agreement stated "Baird shall pay GMW a fee of twenty-five (25%) of Net Fees." (Id.atp.213.) The OMW-Baird Aareement further included certain acknowledgments regarding the fact that OMW had already entered into a separate compensation agreement with Atlass. Specifically, it was acknowledged that GMW was contracted to receive additional compensation, "(i.e., OMW shall be paid by Mr. Steven Atlass and his Affiliates (4 Atlass') 100~ of the proceeds •.. which Atlass receives by way of the JV Formation; additionally, GMW is contracted by Atlass to receive a 25% position in the I general partnership of [Howell and/or Haskell]." (Jd. at pp. 1-2.) Prior to the spring of 2012, Weinberg did not tell Baird that OMW was already contracted to receive compensation directly ftom Adass in connection with a Northeastern Hospital and/or St. Ago.es Hospital Transaction. (N.T., Vol 1. 180-82; N. T., Vol. 2. 64-65.) I i Before Baird learned from Atlass that OMW was already contracted to receive compensation directly from Atlass, Baird had agreed to split the fees so that OMW would get 500/o of the net revenues Baird received from any Transaction. (N.T., Vol. I, 91-92, 180-82.) Upon Jeaming Weinberg had not disclosed OMW's pre-existing compensation agreement with Atlass, Baird reduced the fee splitting agreement so that GMW would only get 25% of the 11 Circulated 10/30/2015 03:56 PM net revenues Baird received ftom any Transaction. (N.T., Vol. 1, 180-82; N.T., Vol. 2, 45.) As a result of the non-disclosure, Goldbergtestified Weinberg was ..disingenuous" and engaged in an ''inappropriateform of business dealings ••.• (N.T., Vol. 1, 182.) 0 Prior to the bench trial and the filing ofits complaint, OMW had already received $108,000 in compensationunder the Contract and the OMW·Baird Agreementin connection with the St. Agnes Hospital Transaction.2 Following the conclusion of the bench trial, this court issued findings of fact and conclusions of law regarding any a.ddJtional compensation OMW may have been due under the Contract. Regarding whether GMW was entitled to 1 OOAi of the $2.S million Iron Point loaned to Howell, this court concluded OMW was not entitled to such additional compensationbecause the $2.5 million Jron Point loaned to Howell was debt. In reaching that conclusion, we noted! (1) the Contract provides OMW would be entitled to "10% of the amount Atlass would receive from a St. Agnes Transaction(see above ex.ample) {to be paid only if a Transaction effects with a GMW prospective source (or sources) of capital) ••. 11; (2) the example the Contract references, however, then provides the amount for purposes of the 10% is "less debt"; and (3) the identicaJ compensationstructure for Northeastern Hospital also specificallyprovides the amount for purposes of the "100.4 of any funds Atlass receives" is "net of debt," Thus, while having determined Iron Point was a GMW prospective source of capital, this court concluded pursuant to the Wlambipous terms of the Contract. OMWwas not entided to the additional $250,000 in compensationas the funding Howell/Atlass received from Iron Point was debt in the form of a loan. 2 This compensation was paid either directly t.o OMW or to its broker-dealer, Grant Williams. 12 Circulated 10/30/2015 03:56 PM This court. however, did conclude OMW was entitled to a 25% interest in Krebs, because: ( 1) the Contract provided OMW would be entitled to "25% of the OP in the mtey that controls St. Agnes ... if a Transaction effects with a OMW prospective source ..• of capitalO"; (2) a Transaction effected with a GMW prospective source of capital, Iron Point; and (3) while the Board of Managers of St. Agnes MOB, LLC has the ultimate authority and control over St Agnes Hospital, Howell as its managing member controls St. Agnes Hospital wi1hin the meaning of the Contract by virtue of its responsibility for implementing the decisions of the Board and for conductina the day-to-day· business and affairs of the company. As such, this court concluded ; i OMW was entitled to a 25% interest in the genentl partner of Howell (the entity which controls St. Agnes Hospital within the meaning of the Contract) and that general partner is Krebs. I On October 8. 2014, OMW filed a timely motion for posMrial relief. In its motion, I I GMW argued "[t]bis [c]oun should clarify its decision under Rule 227;1 to award ••• 25% of the promote [or carried interest in the project] to Plaintill'as part of its interest in Krebs." (Pl.9s Post-Trial Mot. 'i 2.) GMW also argued this court "imported a tenn from the NB Hospital compensation agreement {'net of debt and costs') into the St. Apes Hospital transacti~ where Plaintiff's compensation on the St. Agnes Hospital transaction never included the 'net of debt' term." (Id. 131 (emphasis removed).) As such, OWM argued this court erred in not awarding it a "I 0% fee on ftbe} $2,S00,000 transaction .... " (Id. at 1 S.) On November 7, 2014, Defendants ftled a response in opposition to Plaintiff's motion for post-trial relief. Therein, Defendants argued "[)this [c]ourt need not 'clarify' its decision, which clearly states both (P]laintiff's entitlement to onJy a 25% beneficial interest in Krebs and the basis for that determination-the unambiguous terms of the [Contract]." (Defs.' Resp. 12.) Citing Jar/ Investment, L.P. v. Fleck, 931 A.2d l l J 3 (Pa. Super. Ct. 2007), among others. 13 I I Circulated 10/30/2015 03:56 PM Defendants also argued '"[a] court should not look at a single sentence or even provision of agreement in isolation to det.ermine if an ambiguity exists, but should look to the entire agreement." (Defs.' Resp. 14.) As such, Defendants argued "[this] [c]ourt correctly found that no ambiguity existed. as the compensation provision unambiguously provides that [P]laintiff is not entitled to 10% o[n] amounts received by {Defendants} as debt.. as "there was one [Contract] that governed compensation for both hospitals" and "the reference in the St. Agnes Hospital provision to the example above, which was for the North East Hospital compensation structure, included a deduction for debt and costs, demonstrating the parties' intent that the St. Agnes Hospital compensation provision also include a deduction for debt and costs." (Id. at fl 4 i3 l, 34.) On December 18, 2014, this court entered an order denying OMW's motion for post-trial relief Thereafter, OMW filed a timely notice of appeal and this court <>rdered it file a Pa. R. App. P. 192S(b) statement. In its l 92S(b) statement. Plaintiff set forth the following four complaints of error: I. The Trial Court erred in failing to enter a s~ific declaration · concerning Plaintiff's rights and interest in the "promote', with respect to the St. Agnes tnmsaction, where: (a) the Court recoanized the importance of the 66promotc1• to the parties; (b) undisputed extrinsic evidence existed to support PJaintilrs interest in the ''promote;" and (c) the Court only awardc:cl Plaintiff an interest in Krebs ... without any declaration concerning Plaintiff's rights to the '*promote/• thereby permitting Defendant to manipulate the disbursement of 4'promote" money (including but not limited to altering the entity types in the St. Agnes Transaction) such that Krebs receives only a minimal amount and Defendant[s] avoidO having to pay PJaintUfhis share of the "promote., money. 2. The Trial Court erred in ruling that the terms of [the] parties' agreement concerning Plaintiff's entitlement to $250,000 &om the St Agnes Transaction was clear and unambiguous, where Plaintiff satisfied the conditions precedent to its receiving the $250,000, and, in construing such terms, the Court was required to borrow and insert clauses from other sections of the agreement to support its conclusion that Plaintiff was not entitled to receive $250,000 from the St Agnes Transaction. 14 I i I I I I ! Circulated 10/30/2015 03:56 PM 3. The Trial Court erred in failing to award Plaintiff S2SO,OOO based on the 0amount" received by Defendants in the St. Apes Transacdon, where: (a) all "debt .. considerations were irrelevant to the St, Agnes Transaction because the provision., in the agreement relating to Plaintiffs payment entitlements frorn the St. Agnes Transaction did not contain a term allowing for "debt" to reduce Plainti~s entitlements and the Court found that a capital-raising event took place; (b) even the inapplicable "debt" terms which the Court borrowed from other provisions in the agreement not rel.atina to the St. Agnes Transaction called for using pre-existing debt of which the St. Agnes Transaction had none; and (e) there was no genuine debt from the St. Agnes transaction which could be used to reduce PJaintifrs $2SO,OOO payment entidement. 4. The Trial Court erred in construing the agreement of the parties against Plaintiff contrary to the doctrine of contraprofere,,tem such that it failed to award Plaintiff $250,000 pmsuant to tbe St. Agnes Transaction where the agreement was drafted by .•. Defendants with tho assistance of counsel and Plaintiff had no counsel. (Pl.'s 192S(b} Statement II. fl J 4 (emphasis altered).) DISCUSSION All ofGMW's complaints oferrorreJateto this court's interpretation of the Contract. "When interpreting a contract, the court's paramount goal is to ascertain and give effect to the intent of the parties ... _., BsthleMm Steel Corp. v. MA.TX. Inc .• 703 A.2d 39, 42 (Pa. Super. Ct. . 1997) (quotations omitted). Ininterpreting a written contract, "the intent of tM parties is the writing itself" Kripp v. Krlpp. 849 A.2d I 159, 1163 (Pa. 2004). In interpreting such a contract, "each and every part of it must be taken into consideration and given effect, if possible, and the intention of the parties must be ascertained from the entire instrument." Bethlehem Steel, 703 A.2d at 42 (quotations omitted). "lf left undefined, the words of a contract are to be given their ordinary meaning." Kripp, 849 A.2d at 11633. "When the terms of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the document itself." Id. ''The intent of the parties ... is deemed to be embodied in 'what the agreement manifestly expressed, not what the parties may lS Circulated 10/30/2015 03:56 PM have silently intended."' Greater Nanticoke Area Sch. Dist. v. Greater NanticolreArea Educ. Ass'n, 760 A.2d 1214, 1219 (Pa. Commw. Ct. 2000), quoting Delaware County». Delaware County Prison Employees Indep. Union, 713 A.2d 113S, 1138 {Pa. 1998). When, howeYer, ''the words used in a contract are ambiguous, a court may examine the swroWlding circumstances to ascertain the intent of the parties." Bethlehem Ste,/, 703 A2d at 42, qut>ting Halpin 11. Lasalle Univ., 639 A.2d 37. 39 (Pa. Super. Ct. 1994). "When detennining whether a contract is ambiguous, a court must view the contract as a whole and not in discrete units," Bethlehem Steel, 703 A.2d at 42, quoting Halpin, 639 A.2d 37 at 39. uA contract is ambigu0tm if it is reasonably susceptible of different constructions and capable of being understood in more than one sense." Kr/pp, 849 A.2d at 1163. "When ... an ambisuity exists, parol evidence is admissible to explain or clarify or resolve the ambjguity, iJTespective of whether the ambiguity is patent, created by the language of the instrument, or latent, created by extrinsic or collateraJ circumstances. n Id. Fint, OMW complains this court: erred in tailing to enter a specific declaration concerning Plainillr s rights and interest in the "promote" with respect to the St. Agnes Transaction, [because) (a) the (c]ourt recognized the importance of the ''promote" to the parties; (b) undisputed extrinsic evidence existed to support Plainillrs interest in the "promote;" and (c) the [c]ourt only awarded Plaintiff an interest in Krebs ... without any declaration concerning Plaintiffs rights to the "promote," thereby pennittin,g Defendant to manipulate the disbursement of "promote" money (including but not limited to altering the entity types in the St. Apes Transaction) such that Krebs receives only a minimal amount and Defendant[s) avoid[) having to pay Plaintiff"his share of the "promote,. money. (Pl.'~ l 925(b) Statement 11.) As explained by Weinberg at trial, ''{g)enerally speaking, in ... real estate limited partner/general partner structures, there is a carried interest or promote or what's also known as a profit share whereby ..• a person who's putting the deal together[] can share in the upside as the property or the entity becomes successful" and the limited partners 16 Circulated 10/30/2015 03:56 PM have been paid back with interest. (N.T., Vol. 1, 68..69.) As a pieliminary matter, this court did not err in failina to enter a specific declaration concerning Plaintiff's riahts and interest in the promote because Plaintiff did not ask for such a specific declaration in its count for declaratory relief in its complaint. nor in its proposed findings of fact and conclusions of law. The reason Plaintiff did not ask for such a declaration was because it was seeking a 25% beneficial interest in Howell it.self. in part because it argued Atlass controls whether Krebs would receive any of the promote. (See, e.g., Pl. 's Proposed Findings of Fact and Conclusions of Law r,J 75, 94.) The Contract, however, only provided GMW was entitled to "25% of the OP in the entity that controls St. Aenes (Hospital]" and made no mention of the ''promote." AtJ such, this court correctly concluded OMW was only entitled to a 25% beneficial interest in Krebs pursuant to the unambiguous temts of the Contract and as a primary matter made no error in failing to enter a specific declaration concerning Plaintiff's rights and interest in the "promote." As this was a breach of conuact case, this court was focused on the language of the pm1ies' written agreement. That agreement provided OMW would be entitled to "2S% of the GP in the entity that controls St. Agnes [Hospital]" and made no mention of a "promote." While I Defendants argued Plaintiff was not entitled to a 25% interest in any Atlass affiliate because it is I the Board of Managers of St Agnes MOB, LLC that "controls" SL Agnes, and the Board does I not have a general partner, di.is court concluded Howell as the managing member also has a significant amount of control over the business by virtue of its responsibility for implementing the decisions of the Board and for conducting the day-to-day business and affairs of the company. (See Findings of Fact and Conclusions of Law, at 21 11 SS·S6, citing Black's Law Dictionary (9th ed. 2009) (defining control as "exercis[lng] power or influence over .... ").) A1> 17 I I Circulated 10/30/2015 03:56 PM such, this court concluded Howell controls St. Agnes Hospital within the meaning of the I Contract, and the Contract provided OMW was entitled to a 25% interest in the general partner l ; of Howell, which is Krebs. In reaching this conclusion, this court was fully aware of Plaintiffs argwnent that it was entitled to 25% of Howell itself because Atlass controls whether Krebs would receive any of the promote. However. u the tenns of the Contract were clear and unequivocalthat Plaintiffis only entitled to"25% of the OP in the entity that con1rols St. Agnes [Hospital]" and made no mention of a promote, this court was not examining the surrounding circumstancesto ascertain the intent of the parties regarding the promote. see, i.g., Bethlehem Steel, 703 A.2d at 42 {stating, [w]hen 14 the words used in a contract are ambiguous, a court may examine the surrounding circumstances to ascertain the intent of the parties.>'), nor ~[ing] the importance of the •promote' to the parties .•. "as asserted by Plaintiff, (Pl. 's 1925(b) Statement11). Rather, in reaching its conclusion that Plaintiff was only entitled to a 25% interest in Krebs, it was enforcing the clear and unequivocal terms of the Contract the parties actually entered into. Moreover, even if the provision was ambiguous and required the use of extrinsic evidence, see, e.g., K~ystone Dedicattd Logistics, LLC v. JGD Enterprises, Ine., 77 A.3d 1, 6 (Pa. Super. Ct. 2013) (stating before the court admits parol evidence "to explain or clarify or resolve.. an ambiguity, the court ..first anal>'=fsJ the contract to determine whether an ambiguity exists requiring the use of extrinsic evidencej, it is not true undisputed extrinsic evidence existed to support Plaintiff's interest in the promote. Rather, what the extrinsic evidence showed in this n,gard was that the parties intended for OMW to receive a 25% interest in a pewly formed genemJ partnershipthat would control St. Agnes Hospital after a Transaction was affected, not a 25% interest in the existing Howell AcquisitionPartners, L.P., which Atlass fonned to purchase 18 I ! Circulated 10/30/2015 03:56 PM the hospital in the first place. (Su Findings of Fact and Conclusions of Law, at 21 l 0, 21-22 ,1 S9.) However, as this court concluded in its findings of fact and conclusions of law, by the plain and unequlvoeel terms of the Contract, OMW assumed the risk of whether or not this would happen. (&e Id. at 21-22 ,159 ..61 (noting it was reasonably foreseeable a private equity investor might dictate the deal be structured as a limited liability company rather than a limited partnership).) And it did not happen es Iron Poin._witbout any manipulation on the part of Atlass--decided the new entity would be a limited liability company as opposed to a limited partnership with a general partner. (Id. at 21-22 fl S9-60.) Additionally. the extrinsic evidence also showed that as part of OMW's fee splitting agreement with Baird, OMW acknowledged it was "contracted by Atlass to receive a 25% position in the general partnership of the Company." (Pt's Bx. 30 at 13.) As relevant here, the. term "Company .. was defined in the OMW·Baird Agreement as Howell whose general partner is Krebs. Thus. the extrinsic evidence also showed OMW understood its compensation was never to be a 2So.4 interest in Howell itself. Therefore, rather than there being undisputed extrinsic evidence supporting OMW having a 25% interest in the promote and a specific declaration of the j same, what the extrinsic evidence actually showed was that OMW' s compensation was to be a 25% interest in either Krebs or a newly formed "Howell OP,,, regard.less of whom may receive or control the promote, and Weinberg's testimony to the contrary was self-serving and lacked credibility. (see, e.g., N.T., Vol. I., 68 (discussing a 1uly 11, 2011 Jetter to an investor, which provided "Howell becomes the OP (Howell OP} of the N with the following approximate promotes/carried interests ••. (,]n and stating that was generally the structure that was ultimately used to close the deal with Iron Point)). In sum, the unambiguous tenns of the Contact entitled Plaintiff to a 2S% beneficial 19 ! ! I I Circulated 10/30/2015 03:56 PM interest in Krebs, but not a specific declaration that it is entitled to 25% of the "promote," Moreover. even if it is determined extrinsic evidence is relevant to the issue, the extrinsic evidence is not undisputed and this court's decision that Plaintiff is not entitled to a specific declaration that it is entitled to 25% of the promote should be affirmed on appeal. See generally K4ystone Dedicated, n A.3d at 6-7 (stating that while an appellate court has de novo review over a lower court's interpretation of a contract, "resolution of conflicting parol evidence relevant to what the parties intended by [an] ambiguous provision is for the trier of fact 'j Next. Plaintiff complains this court "erred in ruling that the terms of [the} parties' agreement concerning [its] [lack of an] entitlement to $250,000 from the St. Agnes Transaction was clear and wambiguous[] where ..• the [c]ourt was required to borrow and insert clauses from other sections of the agreement to support its conclusion .•. Plaintiff' was not entitled to receive $250,000 from the St. Agnes Transaction." (Pl.'s 1925(b) Statement 'ti 2.) The court disagrees. As stated above, "[w]hen determining whether a contract is ambiguous, a court must view the contract as a whole and not indiscrete units ••• and the intention of the parties must be ascertained from the entire instrument.11 Bethlehem Steelt 103 A.2d at 42 (quotations omitted). Here. there was one agreement that governed compensation for Transactions involving both hospitals-the Contract-and there wasno error in looking at the entire instrument to ascertain the intentions of the parties regarding that compensation. Moreover, there was no error in determining that "debt" was relevant to whether GMW was entitled to the tier-two compensation for both Northeastern Hospital ("10% of any funds Atlass receives from aO NE Hospital Transaction") and St Agnes Hospital (" 10% of the amount At)ass would receive from a St Agnes Transaction"], (Cf Pl.'s l925(b) Statement 20 4V 3 (stating Circulated 10/30/2015 03:56 PM the coun erred in failing to award $250,000 ·because "all 'debt' considerations were irrelevant to the St. Agnes Transaction because the provisions in the agreement relating to •.. the St. Agnes Transaction did not contain a term allowing for 'debt' to reduce Plaintiff" s (oompemationJ ... ,, like the provisions in the agreement relating to Northeastern Hospital did).) As relevant here. the Contract set forth identical compensation structures for both Northeastern Hospital and St. Agnes Hospital, specifically providing: COMPENSATION NE HOSPITAL 1) 3% of a NE Hospital Tnmsaction (izrespective of who idontifies the source of capital; Le, GMW or Atlass); 2) 10% of any funds Atlass receives fromafl NE Hospital Transaction (net of debt and costs) (to be paid only if a Transaction effects with a OMW prospective source ( or sources) of capital, or if a Transaction effects by way of a new general partner of NE Hospital, and Atlass receives funds Jiom such Transaction); and 3) 25% of the general partnership ("OP") of the entity controlling NE Hospital (to be granted only if a Transaction effects with a OMW prospective source (or somces) of capital DJ. By way of example, should GMW raise $20 million dollars in a joint venture ("IV'') structure for NE Hospital Jrom a prospective source of capital, GMWs compensation will be as follows: l} 3% of$20 million (i.e, $600,000.00); 2) 10% of what Atlass receives (e.g. $20,000,000 less debt of$12 million, less $2 million buyout of partners. less expenses); the net amount of$6 million would equal a $600.000 fee payable to OMW; and 3) 25% of the OP of the entity controlling ..• NE Hospital. sr AGNES HOSPITAL ••• 1) 3% of the Transaction amount (irrespective of who identifies the source of capital; i.e. OMW or Atlass); 2) 10% of the amount Atlass would receive from a St. Agnes Transaction (see above example) (to be paid only if a Transaction effects with a GMW prospective source (or sources) of capital); and 3) 25% of the OP in the entity that controls St. Agnes (to be granted only if a Transaction effects with a OMW prospective source (or sources} of 21 I I I I ! I Circulated 10/30/2015 03:56 PM capital). (Pl.'s Ex. I, p. 2.) The Contract specifically enumerated the same three types of compensation for both a Northeastern Hospital and a St. Agnes Hospital Transaction. The first type of compensation. or tier-one compensation, was 3% of a Northeastern Hospital or St. Agnes Hospital Transaction. The second type of compensation. or tier-two compensation, was 10% of the amount or any funds Atlass would receive from a Northeastern Hospital or St. Agnes Hospital Transaction. And the third type of compensation, or tier-three compensation. was 25% of the OP of the entity I that controUed Northeastern Hospital or St Agnes Hospital following a Transaction. At issue here is whether OMW was entitled to any tier-two compensation where the amount Atlass received from the St Agnes Hospital Transaction was debt. While the St. Agnes Hospital provision did not specifically include net of debt and costs in parentheses like the I / i Northeastern Hospital provision did, the St. Agnes Hospital provision for tier-two compensation specifically referenced in parentheses the oxample above. which was for the Northeastern Hospital compensation structure and specifically provided the amount for purposes of the 10% was "l~ debt'• and "Jess expenses." The fact that the example the St. Agnes Hospital provision express]y referenced provided the amount for purposes of the 10% was "less debt" and "less expenses," coupled with the fact that the nearly identical Northeastern Hospital provision for tier-two compensation specifically provided in parentheses the amount for purposes of the "10% of any funds Atlass receives" is "net of debt and cost," led this court to conclude the parties unambiguously intended the St. Agnes Hospi1al provision for tier-two compensation was also net of debt and costs and the Contract unambiguously provided OMW was not enti1led to the 10% compensation where the amount Atlasa received was debt. This is the only reasonable 22 Circulated 10/30/2015 03:56 PM construction of the Contract; is well supported by viewing the Contract as a whole; and should be affirmed. See generally Bethlehem Steel1 703 A.2d at 42 (stating that in construing a contract "[t]he intention of the parties is paramo1U1t and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct [to] the parties, bearing in mind the objects manifestly to be accomplished. j. 3 Next, Plaintiff complains even if debt was relevant to determining whether it was entitled to tier-two compensation for the St. Agnes Hospital Transaction, (1) onJy "pre-existing debt" could be excluded and (2) "there was no genuine debt from the St. Agnes (Hospital] Transaction which could be used to reduce [its] $250,000 payment entitlement." (Pl. 's 1925(b) Statement, 3.) Regarding the first complaint, Plaintiff argued in its post-trial motion that "[t]he example in the compensation agreement was used to capture only the existing debt that was tied to the property ... at the time of the closing ofa (TJransaction.'' (Pl.'s Post-Trial Mot 142.) Regarding the second complaint, Plaintiff argued ''[i]n actual fact. the .•. $2.S million distribution to Howell was not truly a loant because the interest was to be (and was) paid for by the cash flow/distributions of and from St Agnes MOB, LLC and the money was only briefly 'loaned,' and the loan was for tax reasons." (Id. at 144.) The problem with Plaintifrs first complain~ however, is that there was no evidence, either inthe unambiguous Contract or in the record (assumina extrinsic evidence was relevant), that the "net of debt'' and "less debt" terms refe~ to funds used to pay off existing debt, rather than new debt provided ~s part of a Transaction. Th~ problem with Plamtifrs second complaint Even if the Superior Court concludes this provision is ambiguous (which it is not), this court also determined the extrinsic evidence presented at trial demonstrated the parties intended tier-two compensation for any St. Agnes Hospital Transaction was net of debt and costs. As such, this court's decision that Plaintiff is not entitled to receive tier-two compensation for the St. Agnes Hospital Transaction should still ultimately be affinned. 23 Circulated 10/30/2015 03:56 PM is very similar. At trial, Weinberg claimed the $2.S million was structured as a loan on his recommendation to reduce Atlass' tax burden or, alternatively, by Atlass to avoid paying GMW 100~. (&e,e.g., N. T., Vol. 1, 153-56.) This court as the fact finder, however, found neither argument to be credible and, rather, determined it was Iron Point that dictated the $2.5 million would be structured as a loan in order to provide itself with more protection. Nor does 1he fact that the interest on the $2.S million Joan "was to be (and was) paid for by the cash I flow/distributions of and from St. Agnes MOB, LLC and the money was only briefly 'loaned"' support Plaintiff's contention that "the ... $2.S million distribution to Howell i l was not truly a loan I I I I l .... " (Pl.'s Post-Trial Mot. ,i 44.) Rather, the $2.S million loan from Iron Point to Howell was a I legitimate loan/debt and the fact that some or all of it was paid off through a St. Agnes MOB, LLC refmancing after the St Agnes Hospital Transaction does not somehow retroactively convert it into equity at the time of the Transaction, and Plaintiff pointed to no law to the contrary. Finallyt GMW complains "[this] [c]ourt med in construing the agreement of the parties against Plaintiffcontrary to the doctrine of contra proferentem such that it failed to award Plaintiff$250.000 pursuant to the St. Apies Transaction where the arircement was drafted by the Defendants with the assi~ of coW1SCl and Plaintiff had no counsel," (Pt's 192S(b) Statement 14 (emphasis altered).) The court disaarees for the following two reasons. First, the doctrine of contraproferentem allows courts to constnie an ambiguity in a I contract against the drafter. See. e.g., Sun Co. v. Pennsylwinla Tpk. Comm 'n, 708 A.2d 875, I 878-79 (Pa. Commw. Ct. 1998), citing Restatement (Second) of Contracts § 206 ("In choosing I among the reasonable meanings of a promise or apeement or a term thereof, that meanini is I ; 24 i Circulated 10/30/2015 03:56 PM generally preferred which operates against the party who supplies the. words or from whom a writing otherwise proceeds. n); RedevelopmentAuth of CU,, ofPhllfltlelphla v. Ins. Co. of N. Am., 675 A.2d 1256, 1257 (Pa. Super. Ct. 1996) (providine that "[w]here a provision of a [contract] is ambiguous, it should be construed against the ... drafter of the docmnentLJ but whbre the provision "is clear and unambiauous.the court mU&'t give effect to its plain and ordinary meaning."). Here, the Contract unambiguously provided that GMW was not entitled to any tiertwo compensationwhere the amount Atlass received from the St. Agnes Hospital Transaction was debt. As such, the doctrine of contraproftrentem was inapplicableto the court's interpretationof the Contract and there was no error as Plaintiff claims. Second, even if the provision was ambiguous, courts are reluetan1 to apply the doctrine II where the agreement is between sophisticatedparties or has been negotiated. See, e.g., Kozura v. TulpehockenArea Sch. Dist. 791 A.2d 1169, J 175 n.8 (Pa. 2002) (stating "[t]he principle that a I contractual ambiguity is to be construed against the drafter does not apply where, as here, the I I contract is the result of the joint efforts of negotiators."); EastcQOst Equip. Co. v. MarylandCas. i! Co., 218 A2d 91, 92 (Pa. Super. Ct 1966) (stating there would little to no reason to apply the I doctrine of contraproferentem to an agreement between two large companies who both had been advised by competent counsel); Wiiiiston on Contracts§ 32:12 (stating "[a]pplicatlonofthe rule may be fwthcr limited by the degree of sophisticationof the contractingparties or the degree to which the contract was negotlated,"), Hore, while Plaintiff chose to negotiate the Contract · without the aid of an attorney, Plaintiff and its principal was a self-described sophisticatedparty and the Contract was the result of substantial negotiations between Weinberg and Atlass, with Atlass providing the first draft and Weinberg making substantial revisions thereto. As such, even if the Contract were ambiguous, the doctrine of colfll'aproferentem was still inapplicable to the 25 I I i I Circulated 10/30/2015 03:56 PM court's interpretation of the Contract and there was no error as Plaintiff claims. While Plaintiff'may now ~aret negotiating and drafting the Contract on its own, Plaintiff is a sophisticatedparty and should be held to the plain and unambiguousterms of the Contract it negotiated and actually entered into. Under the plain and unambiguous turns of that Contract and the evidence presented at trial, Plaintiffwas not entitled to any tier-two compensation where the amowit Atlass received from the St. Agnes Hospital Transactionwas debl The $2.S million loan was a legitimate debt dictated by Iron Point, and not the result of any manipulationon the part of Atlass to avoid paying Plaintiff 10%. This court's decision that Plaintiff is not entitled under the C.Ontractto additional compensation in the amount of $250,000 should, therefore. also I I r be affirmed on appeal. BY THE COURT: 26

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