David Schwab v. David Miller ( 2002 )


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  •                 IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    February 20, 2002 Session
    DAVID L. SCHWAB v. DAVID E. MILLER, AN INDIVIDUAL, ET AL.
    Appeal from the Chancery Court for Williamson County
    No. 26484  R.E. Lee Davies, Judge
    No. M2001-00932-COA-R3-CV - Filed June 7, 2002
    The Chancery Court of Williamson County held that in order to claim a major benefit of an
    employment contract the employee had to be employed when the other contingencies in the contract
    were met. We affirm the lower court’s interpretation.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
    Affirmed and Remanded
    BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which PATRICIA J. COTTRELL ,
    J. and JOHN B. HAGLER, SP . J., joined.
    Gerald A. Smith, Jr., Brentwood, Tennessee, for the appellant, David L. Schwab.
    H. Lee Barfield, II, Coburn Dewees Berry, and Rebecca S. Kell, Nashville, Tennessee, for the
    appellee, David E. Miller, David E. Miller Development Company, and MSB Governors, LLC.
    OPINION
    I.
    In 1987 David Schwab began the development of a golf course and residential community
    in Brentwood called the Governor’s Club. After extensive work on the project, Mr. Schwab failed
    to obtain construction financing. In 1995 he met David E. Miller, a real estate developer, who
    proposed to revive the project through an entity to be formed by Mr. Miller. David E. Miller
    Development Company then hired Mr. Schwab and put him in charge of the development. Initially
    the parties only had an oral agreement. Almost two years later Mr. Schwab presented Mr. Miller a
    handwritten agreement including a provision that as a part of his compensation Mr. Schwab would
    receive Lot 70 in the development “at closing.” Mr. Schwab followed up with a typed draft of an
    agreement giving him first choice of any lots that Miller Development received in the development.
    Mr. Miller did not accept these proposals.
    Nothing further happened for another year. In April of 1998 Mr. Miller presented Mr.
    Schwab with a draft employment agreement. Mr. Schwab proposed an amendment that would give
    him Lot 70 if he were terminated, but the parties continued to negotiate. Finally, on April 15, 1998,
    the parties executed a written agreement which contained the following provision relative to Lot 70:
    2. Compensation. In consideration of Schwab’s performance of his duties
    as set forth in Paragraph 1 above, and in consideration of all prior contributions
    which Schwab has or may have made in connection with the Project, including any
    expenses incurred in connection therewith and any services rendered relating to the
    Project, Schwab shall be compensated as follows, so long as this Agreement is in
    force and Schwab is an employee of Company:
    ....
    (iv)    MSB currently owns, or has the right to acquire without further
    consideration, Lot 70 (the “Lot”) in the Project. MSB intends to hold
    the Lot and to utilize any proceeds from the sale or other disposition
    thereof if necessary to fund costs and expenses of the Project. If
    MSB does not so sell or dispose of the Lot at the time Owner has
    fully repaid all principal, interest and expenses related to Owner’s
    first mortgage financing for the Project and all guaranties, collateral
    and other obligations of Owner’s members have been released by
    such first mortgage lender (or, if the same have previously been called
    or drawn or payments have been made thereunder, all amounts so
    called, drawn or paid, and all required returns thereon, have been
    repaid to such member in full), then Company shall cause MSB to
    convey the Lot to Schwab as additional consideration hereunder.
    The agreement also contained the following paragraph relative to termination:
    4. Termination. Schwab is as an employee at will and, accordingly may be
    terminated by the Company at any time with or without cause. Upon any termination
    or upon Schwab’s resignation for any reason, Schwab shall be paid any amounts due
    through the date of such termination or resignation (less any amounts which Schwab
    may owe to the Company). Following any termination or resignation, Schwab shall
    not be entitled to any further compensation hereunder. Notwithstanding the
    foregoing, if Schwab has been terminated without cause and so long as Schwab is in
    full compliance with the provisions of Section 3 hereof, Schwab shall be entitled to
    continue to receive that percentage of Net Cash Flow Distributions to which he has
    become entitled by the terms of Section 2(iii)(b) above, following such termination.
    Additionally, Schwab shall be entitled to receive a founder’s golf membership in The
    Governor’s Club Golf Club, provided MSB has the legal right to deliver same.
    -2-
    The original financing came from SouthTrust Bank of Alabama National Association. It
    consisted of a construction and development loan and letters of credit serving as completion bonds
    for the utilities, roads, and the golf course. The loan and letters of credit were secured by a first
    mortgage on the property and by a guaranty signed by Mr. Miller and the Miller Family Trust. A
    limited guaranty was also executed by Henry Crown and Company.
    In June of 1998 the borrower replaced the construction and development part of the first
    mortgage with a loan from an affiliate of Oaktree Capital. The letters of credit continued to be
    secured by the first mortgage, although it does not appear that the secured parties ever had to draw
    on them.
    In August of 1999, pursuant to the power under its agreements with the developer, Oaktree
    terminated the Miller parties’ ties to the project. Mr. Schwab’s employment with Miller
    Development also ended on August 3, 1999. He was immediately rehired by Oaktree to continue
    with the project.
    II.
    The trial court refused to award Mr. Schwab Lot 70 because the contingencies relating to his
    right to the lot were not satisfied during his employment. Mr. Schwab attacks the trial court’s
    decision on two or three different fronts. First, he argues that the written agreement is simply a
    memorialization of the prior oral agreement. In Mr. Schwab’s version of that agreement he is to
    receive Lot 70 and 25% of all other money or property removed from the project by the Miller
    entities as compensation for his prior contributions.
    We think Mr. Schwab’s argument misses the point. Over an extended period of time Mr.
    Miller consistently rejected Mr. Schwab’s proposal that he get an unconditional promise to Lot 70.
    The written agreement places certain conditions on that right. When the parties execute a written
    agreement, all prior negotiations, promises, and understandings are merged into the contract.
    Marron v. Scarbrough, 
    314 S.W.2d 165
    (Tenn. Ct. App. 1958). The last agreement as to the same
    subject matter which is signed by all the parties supercedes all former agreements. Bringhurst v.
    Tual, 
    598 S.W.2d 620
    (Tenn. Ct. App. 1980).
    Next, Mr. Schwab argues that the court misinterpreted the agreement in holding that the
    contingencies to his right to receive Lot 70 had to be satisfied while he was still employed by the
    company. Paragraph 2, however, provides that Mr. Schwab “shall be compensated as follows, so
    long as this Agreement is in force and Schwab is an employee of Company.” Four subparagraphs
    follow, each providing a part of his compensation package. Subparagraph (iv) contains the
    conditions under which he would get Lot 70. We think the only plausible construction of those
    provisions is the one adopted by the trial court.
    Finally, Mr. Schwab argues that all the contingencies were met prior to his termination on
    August 3, 1999. It is undisputed that MSB still owned the lot, and it had not been sold to help
    -3-
    finance the development. But the uncontradicted proof also shows that the letters of credit did not
    expire until May of 2000. The first mortgage given to SouthTrust was still in effect until that date,
    as were the guaranties given by the Miller parties.
    Mr. Schwab argues that the Oaktree loan was actually secured by a second mortgage since
    the SouthTrust deed of trust had not been fully released. In making that argument, however, he
    makes the defendant’s point that the contingencies were not satisfied until well after he was the
    employee of someone else. The trial judge, however, interpreted the term “first mortgage financing”
    to include the Oaktree loan, since it replaced the original construction and development loan. It is
    undisputed that the Oaktree loan was foreclosed, and was thus not paid while Mr. Schwab was an
    employee of Miller Development Company. In either event the result is fatal to Mr. Schwab’s
    position.
    In addition the chancellor held that the part of the sentence “all guaranties, collateral and
    other obligations of owner’s members have been released” refers to the guaranties of the Miller
    parties even though they were not “owner’s members.” On this point the chancellor considered parol
    evidence to clarify what he found to be a latent ambiguity. See Coble Systems, Inc. v. Gifford Co.,
    
    627 S.W.2d 359
    (Tenn. Ct. App. 1981). Mr. Schwab objects to the parol evidence because he
    considers the ambiguity, if any, to be patent and not latent.
    We think that the chancellor was correct in considering the parol evidence whether the
    ambiguity is patent or latent. The goal of the court is to ascertain the intention of the parties. In that
    pursuit, even in the absence of an ambiguity, it is permissible to consider the situation of the parties
    and the accompanying circumstances at the time the contract was entered into. Hamblen County v.
    City of Morristown, 
    656 S.W.2d 331
    (Tenn. 1983). It helps to know that at the time Mr. Schwab
    signed his employment agreement none of the “owner’s members” were guarantors of the obligations
    covered by the first mortgage. The principal guarantors were Mr. Miller and his family trust. They
    were the ones to benefit from the provision in the contract. Therefore a permissible interpretation
    is one that covers “all guaranties” regardless of whether they were given by the owners members.
    The judgment below is affirmed and the cause is remanded to the Chancery Court of
    Williamson County for any further proceedings necessary. Tax the costs on appeal to the appellant,
    David L. Schwab.
    _________________________________________
    BEN H. CANTRELL, PRESIDING JUDGE, M.S.
    -4-
    

Document Info

Docket Number: M2001-00932-COA-R3-CV

Judges: Judge Ben H. Cantrell

Filed Date: 2/20/2002

Precedential Status: Precedential

Modified Date: 10/30/2014