Frontier Investment Banc Corp. v. Withers ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,659
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
FRONTIER INVESTMENT BANC CORPORATION,
Appellant,
v.
GARY WITHERS,
WITHERS MMI HOLDING COMPANY,
WITHERS DDNRAD PI, LLC, and
DDNRAD PI, LLC,
Appellees.
MEMORANDUM OPINION
Appeal from Johnson District Court; PAUL C. GURNEY, judge. Opinion filed June 18, 2021.
Affirmed and remanded with directions.
Keynen J. (K.J.) Wall and Russell J. Keller, of Forbes Law Group, LLC, of Overland Park, and
Fritz Edmunds, of Edmunds Law Office, LLC, of Overland Park, for appellant.
Sean W. Colligan and Courtney J. Harrison, of Stinson LLP, of Kansas City, Missouri, for
appellees.
Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: Frontier Investment Banc Corporation (Frontier) appeals the grant
of summary judgment in favor of Gary Withers, Withers MMI Holding Company,
Withers DDNRAD PI, L.L.C., and DDNRAD PI, L.L.C., which included former senior
management of Withers' business, EiKO, Ltd. (Withers) because the district court found
Frontier had been overpaid by Withers based on Frontier's improper calculation of its
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commission for obtaining a buyer for Withers' business. Frontier also claims the district
court erred by denying its motions for summary judgment. We have exhaustively
reviewed the record and agree with the district court that Withers overpaid Frontier its fee
at the conclusion of the 2013 sale. We find no error by the district court. We affirm and
remand for further proceedings.
FACTS
In 2007, Frontier entered into an engagement agreement with Gary Withers to
assist in identifying potential buyers for and marketing of the sale of Withers' lighting
business, EiKO, Ltd. Under the terms of the agreement, Frontier would receive a
transaction fee based on an earnings multiple as determined by the aggregate
consideration exchanged at the time of sale. The earnings multiple would be calculated
by dividing the aggregate consideration by EiKO's last 12 months' earnings before
income taxes, depreciation, and amortization (LTM EBITDA). Based on this calculation,
Frontier would receive a 2.5 percent transaction fee if the earnings multiple was less than
7.0 and a 3 percent fee if it was between 7.0 and 8.5. The aggregate consideration for the
transaction would be determined by:
• the amount paid for equities sold, exchanged, or purchased in the transaction;
• the principal amount of all indebtedness for borrowed money as set forth on
EiKO's most recent monthly balance sheet prior to the transaction;
• any additional amounts paid into escrow;
• any earn-outs or "contingent payments" made in connection with the
transaction; and
• the value of any retained or acquired interest EiKO may establish as a result of
the transaction valued as of the date immediately before the transaction.
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In 2013, Frontier identified a potential buyer, who ultimately submitted a letter of
intent (LOI) to purchase EiKO. The LOI anticipated $34.95 million would be exchanged
at closing for 100 percent of EiKO's equity interests and all existing EiKO debt would be
transferred in the transaction. This would result in the formation of a new business entity,
EiKO Holdings, LLC, in which the buyer would have a 70 percent interest, Withers
would receive a 25 percent rollover interest, and EiKO senior management would receive
a 5 percent rollover interest. At closing, the following was exchanged between Withers
and the buyer:
• $11,165,000 for buyer's securities;
• $797,000 for EiKO management's rollover interest;
• $3,988,000 for Withers' rollover interest; and
• $13,535,000 for corporate debt as reflected by EiKO's most recent balance
sheet prior to the transaction.
Because Withers would gain a contingent interest in EiKO Holdings, the parties
agreed to an amendment to the engagement agreement, providing Withers would pay a
transaction fee of $1,109,000 at closing and an additional 3 percent transaction fee for
any subsequent sale of the 30 percent contingent interest. At closing, Frontier collected a
3 percent transaction fee based on its approximately $37 million calculation of the
aggregate consideration. Frontier represented it was entitled to this fee based on an
earnings multiple between 7.0 and 8.5, estimating EiKO's LTM EBITDA to be between
$6.132 million and $8.028 million. Frontier asserted the total value of the company was
approximately $52.8 million based on an extrapolation of the 70 percent interest
transferred to the buyer in the 2013 transaction.
In 2015, certain assets of EiKO Holdings were sold without Frontier's
participation. Based on his contingent interest, Withers received a payment for
$2,312,969.73. Frontier later learned of the 2015 transaction and demanded additional
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payment, which Withers refused. Frontier filed suit, alleging claims for breach of
contract; breach of good faith and fair dealing; fraudulent misrepresentation; negligent
misrepresentation; and tortious interference with contract and further seeking a
declaratory judgment that Withers was obligated to pay an additional transaction fee.
Withers filed an answer, asserting counterclaims for unjust enrichment; breach of
fiduciary duty; fraudulent inducement, or, alternatively, mutual mistake, recission, and
reformation; and fraudulent misrepresentation.
Withers moved for summary judgment on all of Frontier's affirmative claims as
well as his counterclaims for unjust enrichment and breach of fiduciary duty. Frontier
moved for summary judgment on all of its affirmative claims and all of Withers'
counterclaims. The district court denied Frontier's motion for summary judgment on its
affirmative claims, finding Frontier had already been paid in full for Withers' contingent
interest in the 2013 transaction. The district court concluded because Frontier admitted it
erroneously calculated the aggregate consideration by including an extra $4.8 million
cash consideration, it had already been paid the fee for all rollover interest, which was
roughly equal to this amount. Moreover, because Frontier incorrectly stated the
transaction fee was for only 70 percent of the business, it erroneously calculated the
earnings multiple, resulting in a higher transaction fee percentage. Accordingly, all of
Frontier's affirmative claims failed because they were premised on the allegation Withers
failed to make further payments when, in fact, Withers overpaid for Frontier's services in
the first transaction. Accordingly, the district court granted Withers' motion for summary
judgment on Frontier's claims and dismissed them.
The district court found Withers established the necessary elements for his breach
of fiduciary duty claim but reserved judgment until trial because factual issues remained
as to Frontier's potential statute of limitations defense. The district court further found
Withers had established two of the three elements needed for his unjust enrichment
claim: (1) Frontier had received a benefit from Withers and (2) Frontier knew or
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appreciated it had received the benefit. But the district court held summary judgment was
inappropriate because the third element—whether the circumstances under which
Frontier accepted or retained the benefit made it inequitable—was a factual question for
trial. The district court denied Withers' motion for summary judgment on his breach of
fiduciary duty and unjust enrichment counterclaims and denied Frontier's motion for
summary judgment on all of Withers' counterclaims.
The district court certified its summary judgment ruling as an appealable order
pursuant to K.S.A. 2020 Supp. 60-254(b), and Frontier has timely appealed. Further
proceedings in the district court have been stayed pending resolution of this appeal.
Additional facts are set forth as necessary herein.
ANALYSIS
The issues on appeal arise from the district court's ruling on competing summary
judgment motions involving a contract dispute. The relevant standards of review are
equally applicable to all issues on appeal.
Standards of Review
Summary Judgment
"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
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issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan. 616,
621, 413 P.3d 432 (2018).
"[A]n issue of fact is not genuine unless it has legal controlling force as to the
controlling issue. A disputed question of fact which is immaterial to the issue does not
preclude summary judgment." Northern Natural Gas Co. v. ONEOK Field Services Co.,
296 Kan. 906, 934, 296 P.3d 1106 (2013). In other words, "if the disputed fact, however
resolved, could not affect the judgment, it does not present a genuine issue" for purposes
of summary judgment. Northern Natural Gas Co., 296 Kan. at 934.
Contract Interpretation
An appellate court exercises unlimited review over the interpretation and legal
effect of written instruments and is not bound by the lower court's interpretations or
rulings. Born v. Born, 304 Kan. 542, 554, 374 P.3d 624 (2016). The question of whether
a written instrument is ambiguous is a question of law subject to de novo review. Waste
Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 964, 298 P.3d 250 (2013).
"'The primary rule for interpreting written contracts is to ascertain the parties'
intent. If the terms of the contract are clear, the intent of the parties is to be determined
from the language of the contract without applying rules of construction.' [Citations
omitted.]" Peterson v. Ferrell, 302 Kan. 99, 104, 349 P.3d 1269 (2015).
Additionally,
"'[a]n interpretation of a contractual provision should not be reached merely by isolating
one particular sentence or provision, but by construing and considering the entire
instrument from its four corners. The law favors reasonable interpretations, and results
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which vitiate the purpose of the terms of the agreement to an absurdity should be
avoided. [Citations omitted.]'" Waste Connections of Kansas, Inc. v. Ritchie Corp., 296
Kan. 943, 963, 298 P.3d 250 (2013).
I. THE DISTRICT COURT PROPERLY DENIED FRONTIER'S MOTION FOR SUMMARY
JUDGMENT ON ITS AFFIRMATIVE CLAIMS.
The district court concluded, for all the complexity surrounding the transactions
and all the various terms of art used in the realm of mergers and acquisitions, the relevant
legal questions were quite straightforward: "Did Withers overpay for Frontier's services?
If not, is Frontier entitled to a further payment pursuant to an amendment to the
Engagement Agreement?" The district court found "the answer to these questions is
unexpectedly simple . . . because this merely requires the Court to plug numbers into the
formula provided by the Engagement Agreement." The biggest problem for Frontier is
the district court held the proper numbers were those provided by Withers. In contrast,
the district court held Frontier did "not provide sufficient evidence as to how it reached"
its aggregate consideration calculation. Quite problematic with Frontier's briefing of this
issue is it argues it correctly calculated the aggregate consideration for purposes of the
2013 transaction without any citation to the record in support thereof. In essence, the
district court rejected Frontier's claim because it was not satisfied there was an
evidentiary record to support it. On appeal, Frontier argues the district court's conclusion
was incorrect, again without citation to record evidence.
Even ignoring the general lack of record support in Frontier's analysis, its
explanation of the point is unpersuasive. The issue is whether Frontier incorrectly
inserted the relevant numbers into the formula contemplated by the engagement
agreement to determine the value of the transaction. Frontier tries to justify a second
transaction fee on Withers' contingent interest by claiming it should have been counted in
the aggregate consideration realized in the 2013 transaction. And it became due and
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owing when the contingent note was monetized in subsequent transactions. Essentially,
Frontier's proposed valuation has Withers paying a transaction fee on 130 percent or
more of the total value of the business. Such an interpretation leads to an absurd result—
one this court cannot abide. See Waste Connections of Kansas, Inc., 296 Kan. at 963.
Either Frontier was entitled to be paid a transaction fee for the full value of the
business (including Withers' contingent interest) in 2013, or Frontier was entitled to a
transaction fee for only the 70 percent interest Withers transferred in 2013 and the rest
became due and owing when Withers later sold it. Frontier was not, however, entitled to
have its cake and eat it too by charging Withers a transaction fee on the contingent
interest in the 2013 sale and later seeking another payment when he sold the same interest
in 2015.
A. The district court correctly determined the aggregate consideration.
Frontier argues the district court incorrectly calculated the aggregate consideration
for the 2013 transaction. Frontier repeatedly asserts the district court erroneously adopted
the buyer's preferred "enterprise value" method. However, as Withers points out, the
district court obtained the relevant figures from the buyer's sources and uses of funds
table and the debt reflected from EiKO's balance sheet as of the day prior to the 2013
transaction. And the district court found discrepancies between the buyer's proposed
valuation from the LOI and the relevant figures to determine aggregate consideration.
Annex A to the engagement agreement provides the following items were to be
used in calculating the aggregate consideration:
• The amount paid for equities sold, exchanged, or purchased in the transaction;
• The principal amount of all indebtedness for borrowed money as set forth on
EiKO's most recent monthly balance sheet prior to the transaction;
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• Any additional amounts paid into escrow;
• Any earn-outs or "contingent payments" made in connection with the
transaction; and
• The value of any retained or acquired interest EiKO may establish as a result of
the transaction valued as of the date immediately before the transaction.
The district court determined the following numbers applied to its calculation of
aggregate consideration:
• $11,165,000 paid for securities by buyer (representing 11.165 million LLC
units for 70 percent interest);
• $797,000 for securities to EiKO management (representing 797,000 LLC units
for management's 5 percent rollover interest);
• $3,988,000 for exchanged owner equity (representing 3.988 million LLC units
for Withers' 25 percent rollover interest);
• Indebtedness of $13,535,000 (as reflected by EiKO's balance sheet on October
31, 2013); and
• The contingent note payment of $2,312,970 from the 2015 transaction.
Thus, the district court determined the aggregate consideration was $29,435,000
for the 2013 transaction and the additional payment of $2,312,970 on the contingent note
in the 2015 transaction increased the total aggregate consideration to $31,797,970. The
district court noted its calculations were "supported by Withers' attached exhibits." The
district court further found: "Only one party has provided reliable data, supported by
competent evidence, to aid the Court . . . that party being [Withers]." Frontier fails to
show any error in the figures relied on by the district court and offers no pertinent
citations to the record supporting a different calculation.
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B. The district court properly determined the amount of debt transferred.
Frontier's next argument involves a convoluted exercise in creative arithmetic,
claiming the district court "relie[d] on adjusted debt balances reflecting adjustments made
because of the recapitalization transaction, rather than the value of the new debt
consideration exchanged in the 2013 transaction." Frontier asserts: "The new debt
exchanged in the 2013 Transaction included a $6.024 million Revolver note and the $15
million Term A Loan, for a total of $21.024 million." Oddly, Frontier claims the district
court erred because "the Ownership Group and Buyer identified this new debt as part of
the 'total consideration' to be exchanged in the 2013 Transaction." This argument
conflicts with Frontier's repeated complaints the district court relied on a valuation
method preferred by the buyer as opposed to the language of the parties' contract.
Frontier's claim lacks support in the plain language of the parties' contract and is contrary
to the uncontroverted facts established in the record.
Annex A of the parties' agreement defines aggregate consideration as "the
principal amount of all indebtedness for borrowed money as set forth on the most recent
monthly balance sheet of the Company prior to the consummation of such Transaction."
The next section of Annex A provides, in relevant part: "[T]he total consideration paid
for such assets (including without limitation the principal amount of all indebtedness for
borrowed money assumed or extinguished as a result of a Transaction) shall be included
as part of the Aggregate Consideration." (Emphasis added.) The amount of the revolver
note and Term A loan appear in the buyer's sources of funds table from the LOI and in
the buyer's sources of funds in the purchase agreement.
Frontier fails to explain how "new debt" constitutes "borrowed money assumed or
extinguished as a result of [the transaction]." Rather, Annex A specifically provides debt
was to be determined from the "most recent monthly balance sheet of the Company prior
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to the consummation of such Transaction." Thus, Frontier's argument is inconsistent with
the plain language of the contract.
But even assuming the revolver note and Term A loan could have been considered
debt exchanged, assumed, or extinguished in the transaction, the district court explained
there were inconsistencies in the buyer's anticipated valuation and the ultimate value
thereof. First, it is important to note the LOI was dated June 28, 2013. EiKO's balance
sheet was current through October 31, 2013—reflecting $13,535,000 of revolving credit
debt. The new debt figure as of November 2013, i.e., within one month of the transaction,
was $13,393,000 of long-term third party debt. The district court noted the buyer
incorrectly added together what the buyer referred to as "mezzanine debt" (estimated at
$4,950,000) and "senior debt" (estimated at $17,500,000), for a total debt of
$22,450,000—roughly equivalent to the combined figures of the revolver note and Term
A loan identified in the LOI. But the district court found the discrepancy between the
buyer's estimate and EiKO's balance sheet was due to a "[s]maller debt than anticipated."
And EiKO's balance sheet as of the time of the LOI reflected a revolving debt liability of
only $10,508,000.
We find support in the record the buyer overestimated any amount of debt that
would be created, assumed, or paid off as a result of the sale. Further, the purchase
agreement between Withers and the buyer reflected EiKO had a "Company Indebtedness"
of $13,558,577.42, whereas the revolver note and Term A loan were "Debt Financing
EiKO Global DDA Account." The purchase agreement confirmed $13,558,577.42 was
assigned by the buyer at closing to "Payoff Company Indebtedness to Old Lenders." In
other words, the $21.024 million represented debt the buyer incurred through financing
for the transaction. It was not "borrowed money assumed or extinguished as a result of
[the transaction]." (Emphasis added.) The buyer assumed or extinguished EiKO's existing
debt—$13.56 million. The buyer separately assumed its own debt—$21.024 million—as
a source of funds for the purchase, not as consideration exchanged in the transaction.
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Consistent with Annex A, the district court properly relied on the debt figure
demonstrated by EiKO's most recent balance sheet prior to the transaction.
C. A different debt figure would not disturb the district court's conclusion.
Even further assuming the district court erred in its calculation of debt, Frontier
offers no persuasive reason, nor would it be in any way mathematically sound, to
conclude the $21.024 million total of the revolver note and Term A loan establishes error
in the district court's conclusion Frontier was not entitled to additional payment based on
Withers' subsequent sale of his contingent interest.
EiKO's LTM EBITDA was approximately $7,151,182. Substituting the $21.024
million debt figure in place of the district court's calculation results in an aggregate
consideration of $36,974,000 for the 2013 transaction and an earnings multiple of 5.17.
As per the terms of the parties' agreement, an earnings multiple less than 7.0 entitles
Frontier to a 2.5 percent transaction fee. Two-and-a-half percent of $36,974,000 is
$924,350. Withers paid Frontier $1,109,220 for its assistance in the 2013 transaction.
Assuming further still Frontier was entitled to additional compensation when Withers'
contingent interest was monetized, Frontier would only be entitled to $57,824.25 more
($2,312,970 x .025). Thus, Frontier would, at most, have been entitled to $980,924.25.
Frontier has already received payment in excess thereof and is, therefore, entitled to
nothing more. Even assuming there were some errors in the district court's calculation,
dismissal of Frontier's affirmative claims was still proper. At most, these calculations
would affect Withers' potential damages on his counterclaims, which is a matter the
district court has not yet ruled on.
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D. To the extent Frontier explains the basis for its calculation, its valuation of
the aggregate consideration is factually erroneous.
Although not clear in its brief, Frontier seems to justify its actions based on a
factual assertion the buyer paid "$36.974 million of non-contingent consideration . . . for
its 70% equity position in [EiKO]." Frontier then attempts to extrapolate this to a total
value of $52.82 million. Based on this figure, Frontier claims Withers' 30 percent
contingent interest was worth $15.846 million. Frontier again relies on faulty arithmetic
to justify its prior computational errors. While Frontier's assertion as to how much debt
was transferred in the 2013 transaction is not supported in the record, it further fails to
recognize—regardless of the proper debt figure—the sale extinguished all debt for which
Withers may have been responsible. Withers only retained an interest in the 3.988 million
LLC units, which were valued at $1 per unit. The buyer acquired a 70 percent interest in
EiKO through the transfer of 11.165 million LLC units also valued at $1 per unit.
Frontier's calculation of Withers' contingent interest would require us to accept that the
buyer's 70 percent interest was only worth $11.165 million, whereas Withers' 30 percent
interest was worth $15.846 million. As Withers points out, this discrepancy invites only
two conclusions—either Frontier is incorrect in its valuation of Withers' interest or
Frontier brokered a sale of 70 percent of EiKO for less than one-third its fair market
value.
Frontier's explanation is little more than a circuitous exercise lacking in
evidentiary support. Essentially, Frontier supports its aggregate consideration calculation
based on what it charged Withers at closing. But the relevant issue is whether Frontier
correctly determined the fee at closing. Frontier cannot rely solely on its actions as
justification for its actions. Under Frontier's rationale, the earnings multiple must have
been more than 7.0 because it charged Withers a 3 percent transaction fee. Accordingly,
Frontier's aggregate consideration calculation had to be more than $50.06 million
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($7,151,182 LTM EBITDA x 7 = $50,058,274) because a lesser number would not
justify a 3 percent transaction fee.
Frontier merely works backwards from what it charged to assign an aggregate
consideration value ([$1,109,220 / .03] / .70 = $52,820,000). But this does nothing more
than demonstrate the numbers Frontier relied on for charging the transaction fee. It does
not demonstrate those numbers were correct and supported by the record. Moreover,
Frontier's extrapolation implicitly attributes an erroneous contingent interest retained by
Withers in the buyer's interest and EiKO's corporate debt because it extrapolates all
consideration exchanged in the 2013 transaction to determine the value of Withers'
contingent interest.
Frontier further fails to address an important factual finding by the district court.
The district court found Frontier admitted it overstated the "cash consideration" paid for
EiKO in the 2013 transaction by $4.8 million. The district court determined Frontier
falsely stated it assigned $37 million as the aggregate consideration for 70 percent of
EiKO because the $4.8 million it overstated equaled the 30 percent contingent interest
retained by Withers and EiKO management. Accordingly, Withers owed nothing more
because Frontier had been paid a commission on 100 percent, not 70 percent, of the value
of the business in the 2013 transaction.
In its briefing, Frontier fails to explain the effect of the district court's
determination that Frontier admitted to overstating the cash consideration exchanged at
closing. The deposition testimony of George Nicholson, who prepared Frontier's fee
calculation, confirmed Frontier's cash consideration figure was incorrect. Frontier's
calculation was erroneous, and it offers no justification for its calculation aside from an
extrapolation of its calculation, which, in and of itself, leads to an erroneous valuation not
supported in the record.
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E. The 2013 amendment to the engagement agreement does not entitle
Frontier to additional payment.
Finally, Frontier attempts to justify its actions by claiming its calculation controls
as an amount agreed to by the parties under the language of the 2013 amendment.
Frontier claims the amendment has controlling legal effect because it specified a
transaction fee of $1,109,000 at closing and a 3 percent transaction fee on any future sale
of Withers' contingent interest. Frontier asserts the district court's conclusion rendered
this amendment meaningless. The problem with Frontier's argument is the 2013
amendment did not nullify or otherwise render inapplicable the terms of the original
engagement agreement. Rather, the amendment clearly stated: "Except as specifically set
forth in this Amendment to the Engagement Agreement, the Engagement Agreement (and
each of the provisions set forth in the Engagement Agreement) shall remain unchanged
and shall be in full force and effect."
The amendment merely added a section to the engagement agreement releasing
EiKO from further responsibility after closing, providing Withers and the former
ownership group would assume the responsibilities previously applicable to EiKO under
the engagement agreement. In other words, the buyer assumed no obligations. This
section further provided the former ownership group had an
"obligation to pay to Frontier, if that obligation arises pursuant to the terms of this letter
agreement, a Transaction Fee equal to Three Percent (3%) of the Aggregate
Consideration (established as a result of the applicable provisions of this letter agreement
and the Transaction closed on or about October 31, 2013 (the 'Initial Transaction'))."
The problem with Frontier's argument is there was no aggregate consideration
separately established as a result of the amendment. Rather, the amendment confirmed
the provisions of the engagement agreement "shall remain unchanged and shall be in full
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force and effect." The appropriate valuation was to be determined from "the Transaction
closed on or about October 31, 2013." This remained subject to the aggregate
consideration calculation set forth in Annex A. And the transaction fee to which Frontier
was entitled at closing was still controlled by Section 5(e) of the engagement agreement.
The amendment further acknowledged the parties' obligations arose "[a]s a result of such
transactions referenced and contemplated by the Purchase Agreement" between Withers
and the buyer.
As previously discussed herein, the purchase agreement and EiKO's balance sheets
properly support the district court's aggregate consideration calculation. Those figures
controlled the applicable transaction fee under the engagement agreement. And the terms
of the engagement agreement remained in full effect under the amendment. Frontier
cannot circumvent the controlling terms of the engagement agreement based on a
misstatement or misrepresentation in the amendment of the fee to which it was entitled
under the engagement agreement. Frontier admitted the consideration exchanged at
closing was misstated and has not explained the effect of this misstatement in its briefing.
F. We decline to address Withers' alternative basis for affirming the district
court's ruling.
Withers argues we should alternatively affirm the district court's ruling because
Frontier was not entitled to collect a transaction fee for subsequent sales in which it was
not involved. The district court did not rely on this rationale in its ruling. We decline to
address Withers' argument because it is effectively moot. The district court correctly
determined Frontier already received payment for the contingent interest in the 2013
transaction. Frontier would be entitled to no further payment regardless of whether it
procured the buyer for the subsequent sales.
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II. WITHERS WAS ENTITLED TO SUMMARY JUDGMENT ON FRONTIER'S AFFIRMATIVE
CLAIMS.
Frontier unpersuasively argues that even if it was not entitled to judgment as a
matter of law on its affirmative claims, there were contractual ambiguities and disputed
record evidence precluding the district court from granting summary judgment in favor of
Withers.
This point is largely a continuation of the first issue. Withers moved for summary
judgment on Frontier's affirmative claims, seeking dismissal of the same. As previously
discussed herein, there is no material dispute of fact as to whether Frontier was entitled to
additional payment. Frontier had already been paid everything it was entitled to and
more. Because all of Frontier's affirmative claims relate to an allegation Withers
underpaid based on the parties' contract, summary judgment was proper.
A. No genuine dispute of material fact
Frontier incorrectly asserts the district court erred in its calculation of the debt
exchanged in the transaction. Yet, even assuming Frontier was correct, Withers has
satisfied his entire obligation. Dismissal of Frontier's affirmative claims would still be
proper, albeit likely warranting instruction for the district court to adjust its calculation of
the amounts paid and owed by the parties in the proceedings on remand. But because an
adjusted debt figure would still warrant dismissal of Frontier's claims, it is not a disputed
material fact. Thus, it does not warrant reversal of the district court's decision. See
Northern Natural Gas Co., 296 Kan. at 934. It would only merit correction as a
prudential matter in the interest of judicial economy to avoid a potential law-of-the-case
argument in subsequent proceedings. However, we find the district court correctly
determined the debt exchanged in its aggregate consideration calculation.
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Frontier further unpersuasively argues there are material disputes of fact as to the
appropriate valuation method. But the district court held Frontier did "not provide
sufficient evidence as to how it reached" its aggregate consideration calculation. On
appeal, Frontier fails to cite clear record evidence contradicting the district court's
finding. Instead, Frontier offers a mathematically unsound explanation contrary to the
terms of the parties' agreement. Frontier continues to press its argument that the district
court relied on a valuation method not provided under the parties' contract, but we find
the record shows quite the opposite.
B. No contract ambiguity
In the first issue, Frontier argues it is entitled to judgment as a matter of law based
on the unambiguous language of the parties' agreement. In this issue, Frontier
alternatively argues Withers was not entitled to judgment as a matter of law because there
could be ambiguities in the language of the parties' agreement. Frontier's argument on
this point is unpersuasive. Notwithstanding the fact Frontier argues the contract both is
and is not ambiguous, Frontier offers no persuasive justification for its argument. Frontier
merely contends because it interprets the contract differently than the district court, there
is more than one reasonable interpretation. However, Frontier fails to explain how its
interpretation is reasonable. Based on Frontier's failure to fully explain the point, we find
its argument wholly unavailing. See In re Marriage of Williams, 307 Kan. 960, 977, 417
P.3d 1033 (2018) (issues not adequately briefed deemed waived or abandoned). We
further find Frontier's interpretation is unreasonable for the reasons previously addressed
herein. Because Frontier has failed to show any genuine dispute of material fact or
ambiguity in the contract, the district court's grant of summary judgment on Frontier's
affirmative claims was not error.
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III. THE DISTRICT COURT DID NOT ERR IN ADDRESSING WITHERS' COUNTERCLAIMS.
A. The district court properly ruled on Withers' unjust enrichment and breach
of fiduciary duty claims.
The district court found Withers had established most elements for both of these
claims but reserved judgment for trial because a few factual issues required further
development.
1. Breach of fiduciary duty
The district court found Withers established all three elements required for his
breach of fiduciary duty claim. Still, it recognized Frontier asserted a defense based on
the statute of limitations and the record was unclear as to when Withers' injuries became
ascertainable. Because overlapping factual issues remained to be resolved regarding
Withers' fraud-related claims, i.e., whether Frontier prevented Withers from timely
discovering his injuries through fraudulent concealment, the district court denied Withers'
motion for summary judgment. But because the district court was satisfied Withers
otherwise established all necessary elements, it also denied Frontier's motion for
summary judgment on this claim.
"'A fiduciary relationship exists where there has been a special confidence
reposed in one who, in equity and good conscience, is bound to act in good faith and with
due regard to the interests of the one reposing the confidence.' Reebles, Inc. v. Bank of
America, N.A., 29 Kan. App. 2d 205, 208, 25 P.3d 871, rev. denied 272 Kan. 1419(2001). . . .
"Two types of fiduciary relationships exist: (1) those specifically created by
contract such as principal and agent and (2) those implied in law due to the factual
situation surrounding the involved transactions and the relationship of the parties to each
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other and to the questioned transactions. [Citations omitted.]" Dana v. Heartland
Management Co., Inc., 48 Kan. App. 2d 1048, 1067, 301 P.3d 772 (2013).
To establish a claim for breach of fiduciary duty, Withers must prove: (1) a
fiduciary relationship existed; (2) Frontier owed Withers a duty as a result of the
fiduciary relationship; and (3) Frontier breached its duty. See Peterson ex rel. Peterson v.
Community Living Opportunities, Inc., No. 99,545, 2008 WL 5401456, at *3 (Kan. App.
2008) (unpublished opinion); see also Cargill Meat Solutions v. Premium Beef Feeders,
168 F. Supp. 3d 1334, 1339 (D. Kan. 2016) (citing Peterson). Here, the district court
found a fiduciary relationship existed based on the confidence Withers placed in Frontier
due to Frontier's representation of its expertise in the area of mergers and acquisitions;
Frontier owed Withers a duty to properly calculate the transaction fee; and Frontier
breached this duty by incorrectly calculating the fee and collecting more than it was
owed.
Frontier argues no fiduciary duty can be implied under the circumstances because
the parties' contract excluded such duty. Specifically, Frontier relies on language from the
engagement agreement, which states, in pertinent part: "[A]ll opinions or advice . . .
given by Frontier . . . are intended solely for the benefit and use of [EiKO] . . . in
considering the Transaction or potential Transaction to which they relate, and . . . no such
opinion or advice shall be used for any other purpose . . . ." The problem with Frontier's
argument is it was not offering "opinions or advice . . . in considering the Transaction or
potential Transaction to which they relate" when it stated the applicable transaction fee.
Frontier was making a factual representation it was entitled to specific compensation per
the terms of the parties' agreement. Frontier cannot escape its duty to properly inform
Withers as to the computation of the transaction fee by claiming its affirmative
representation of material fact was merely an opinion. To the extent Frontier actually
wants us to accept its representation of the transaction fee owed by Withers was an
opinion, not an assertion of fact, its arguments in the first and second issues are entirely
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undercut as a result. In any event, this argument is misplaced because, here, the district
court properly relied on the facts from the record, not subjective opinions of the parties,
to resolve issues on summary judgment. See Patterson, 307 Kan. at 621.
2. Unjust enrichment
Frontier fails to properly address the district court's findings regarding Withers'
unjust enrichment counterclaim. It merely refers back to its unpersuasive argument
regarding the breach of fiduciary duty claim, asserting the same argument "demonstrates
genuine issues of material fact regarding the elements of unjust enrichment." But Frontier
did not address the unjust enrichment claim in that portion of its brief, and its argument
was specific to a legal argument regarding the breach of fiduciary duty claim, as opposed
to more general factual arguments. We deem Frontier's argument on this point waived
due to improper briefing. See In re Marriage of Williams, 307 Kan. at 977. However,
even considering the point on its merits, the district court properly determined Withers
established the first two elements of his unjust enrichment claim: (1) Withers conferred a
benefit upon Frontier; and (2) Frontier knew or appreciated the benefit it had received.
See Security Benefit Life Ins. Corp. v. Fleming Companies, Inc., 21 Kan. App. 2d 833,
841, 908 P.2d 1315 (1995). Based on the undisputed material facts in the record, there
can be no reasonable argument to the contrary.
B. Frontier's motion for summary judgment on Withers' fraud-related
counterclaims was properly denied.
Frontier argues the district court erred in denying its motion for summary
judgment on Withers' fraudulent misrepresentation and fraudulent inducement of contract
counterclaims. Frontier asserts Withers' claims must fail because he did not justifiably or
reasonably rely on Frontier's calculations. Frontier's argument is generally unpersuasive
insofar as Withers necessarily relied on Frontier's calculation by paying what Frontier
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claimed he owed. Whether Withers' reliance on Frontier's calculations was justifiable or
reasonable remains a disputed question of fact. Contrary to Frontier's claims, it was not
undisputed that Withers relied on the advice of his attorneys and financial advisors.
Withers testified in his deposition he relied solely on Frontier. Withers' attorneys and
financial advisors likewise testified they did not offer advice relevant to the transaction
fee.
Frontier's argument that Withers cannot prevail on his claims because he had
"superior access" to EiKO's financial records is likewise unpersuasive. As Withers points
out, the issue is not whether he had access to the information, it is whether he understood
the information. The extent to which Withers understood the relevant bases for Frontier's
fee calculation is a factual question that remains to be resolved at trial. The district court
correctly denied Frontier's motion for summary judgment on these claims. See Patterson,
307 Kan. at 621.
Affirmed and remanded for the district court to resolve the remaining factual
issues.
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