LEM 2Q, LLC v. Guaranty Nat'l Title Co.

144 A.3d 174

2016 PA Super 169

LEM 2Q, LLC, LEM 2P, LLC, LEM Real Estate Mezzanine Fund, II, LP, LEM Real Estate Mezzanine Parallel Fund II, LP, LEM 2Q Nevada, LLC, LEM Partners, II, LP, LEM 2P Nevada LLC, LEM Partners II, LP, Appellants

v.GUARANTY NATIONAL TITLE COMPANY, Fidelity National Title Insurance Company, Robert J. Voegel, Robert Rothstein and Joseph P. Cacciatore, Appellees.

No. 3472 EDA 2014

Superior Court of Pennsylvania.

Argued Feb. 23, 2016.

Filed July 28, 2016.

Andrew DeFalco, Philadelphia, for appellant.

Robert H. Dickman, Philadelphia, for Fidelity National Title Insurance Company, appellee.

Suzanne M. McDonough, Media, for Guaranty National Title Company, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., MUNDY, J., OLSON, J., OTT, J., and STABILE, J.

OPINION BY LAZARUS, J.:

LEM 2Q, LLC, LEM 2P, LLC, LEM Real Estate Mezzanine Fund, II, LP, LEM Real Estate Mezzanine Parallel Fund II, LP, LEM 2Q Nevada, LLC, LEM Partners, II LP, and LEM 2P Nevada LLC (collectively “LEM”) appeal from the order entered in the Court of Common Pleas of Philadelphia County granting summary judgment in favor of Guaranty National Title Company, Robert J. Voegel, Robert Rothstein, and Joseph P. Cacciatore (collectively “Guaranty Appellees”) and Fidelity National Title Insurance Company (“Fidelity”). After careful review, we affirm.

LEM is the successor-in-interest of an entity that invested $3 million in a company holding real property in Reno, Nevada, under a preferred equity scheme. At all times relevant to this matter, Fidelity was a title insurance company registered to conduct business in Pennsylvania. Guaranty Appellees were based in Illinois and had the following roles. Guaranty National Title Company (“Guaranty”) was a title assurance agent on behalf of Fidelity, as indicated in an Issuing Agent Agreement (the “IAA”) between the parties.¹ Robert J. Voegel executed the IAA in his role as president of Guaranty. Robert R. Rothstein, Esquire, was a senior vice president of Guaranty. Joseph P. Cacciatore and Voegel were members of an entity known as C & V Investments, LLC (“C & V”), a non-party to the instant action.

In the Spring of 2007, C & V loaned funds to Russell M. Meusy, II, a real estate investor, and his companies (collectively, the “Meusy Interests”). The funds were used to facilitate Meusy's purchase of a 234–unit property (the “Property”), located in Reno, Nevada. The loan transactions occurred in Illinois; none of the loans was recorded with any public agency. Closing on the Property occurred on May 11, 2007. Guaranty performed the duties of settlement agent. The closing papers prepared by Guaranty did not disclose that C & V had loaned funds to the Meusy Interests.

After closing on the Property, the Meusy Interests approached LEM to obtain additional funding. LEM reviewed the settlement papers prepared by Guaranty at the Property closing of May 11, 2007, and decided to provide funding to the Meusy Interests through a mezzanine loan. On June 29, 2007, LEM invested $3 million in a company known as Manzanita Gate Apartments Holdings, LLC (“Manzanita Holdings”), an entity formed by Meusy to act as the indirect owner of the Property.² LEM's $3 million investment in Manzanita Holdings provided the Meusy Interests with capital and allowed LEM to acquire a preferred equity stake in Manzanita Holdings. Pursuant to a closing escrow agreement, Guaranty performed the duties of escrow agent and closing officer to the $3 million mezzanine loan.³ During the closing, Guaranty did not disclose the existence of C & V's prior unrecorded loans to the Meusy Interests. Shortly thereafter, the Meusy Interests defaulted on all their obligations, including payments on the C & V loans and the mezzanine loan provided by LEM.

LEM commenced the instant action in July 2007. After a long and convoluted procedural history, which included the filing of an amended complaint in January of 2011,⁴ LEM filed a motion for summary judgment against Guaranty, Voegel, Rothstein and Cacciatore. This motion asserted that Guaranty, as the escrow agent to the mezzanine loan transaction, had a duty to disclose to LEM the existence of the unrecorded C & V loans to the Meusy Interests. LEM asserted that if it had been informed of the existence of the C & V loans, which it characterizes as “usurious,” it would have deemed an investment in Manzanita Holdings too risky to pursue. Thus, LEM argued that it would not have agreed to fund Manzanita Holdings and would not have suffered the loss of its investment.

LEM also filed a motion for summary judgment against Fidelity, as principal of Guaranty. LEM argued that Fidelity is liable for LEM's losses under a theory of respondeat superior, based upon the terms of the IAA between Fidelity and Guaranty.

On July 21, 2014, Guaranty, Voegel, and Rothstein filed a cross-motion for summary judgment against LEM. On the same day, Fidelity and Cacciatore also filed respective cross-motions for summary judgment.

The trial court denied LEM's summary judgment motion and granted each of Appellees' summary judgment motions in an order and memorandum dated November 6, 2014. LEM filed a timely notice of appeal, raising the following issue:

Did [Guaranty Appellees], the title agent for the June 29, 2007 transaction between [LEM] and other entities for the purchase of a $3 million ownership interest in a business entity owning a property known as “Manzanita Gate,” have a duty to disclose to [LEM] inter alia the fact that [Appellees] “stood on both sides” of the “Manzanita Gate” transaction, and the existence of over $6 million in unrecorded mortgages on the Manzanita Gate property, under settled Pennsylvania tort law setting forth a duty to disclose and precluding intentional concealment of those facts, such that both [Guaranty Appellees] and their principal Fidelity are now liable for their fraud in inducing [LEM] to consummate the Manzanita Gate transaction?

En Banc Brief of Appellants, at 2–3.

We begin by noting our standard and scope of review of an order granting summary judgment:

Our scope of review is plenary, and our standard of review is the same as that applied by the trial court. Our Supreme Court has stated the applicable standard of review as follows: An appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.

Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.Super.2015) (brackets omitted).

LEM's core assertion on appeal is that Guaranty had a duty to disclose the unrecorded C & V loans to the Meusy Interests. Whether a duty exists is a question of law, and the determination of “whether there has been a neglect of such duty is generally for the jury.” Emerich v. Philadelphia Ctr. for Human Dev., Inc., 554 Pa. 209, 720 A.2d 1032, 1044 (1998).⁵ Where no affirmative duty of disclosure is owed, “mere silence does not constitute fraud.” Sewak v. Lockhart, 699 A.2d 755, 759 (Pa.Super.1997) (citing Wilson v. Donegal Mut. Ins. Co., 410 Pa.Super. 31, 598 A.2d 1310, 1316 (1991) ).

Instantly, the trial court determined that the parties' closing escrow agreement provides that Guaranty's duties under the agreement are purely administrative and no additional obligations are implied by the terms of the agreement. The trial court further determined that nothing within the agreement could be construed to affirmatively require Appellees to disclose unrecorded loans encumbering Manzanita Gate. Thus, the trial court concluded that Guaranty had no contractual duty to disclose the unrecorded C & V loans to LEM. The trial court also determined that no duty of disclosure arose in tort under the circumstances. We agree.

As an initial matter, we note that LEM refers to Guaranty as a title agent providing LEM with “title insurance protection” in relation to the June 29, 2007 loan transaction in which LEM invested in Manzanita Holdings. See En Banc Brief of Appellants, at 10. However, the record reveals that Guaranty played no role as a title agent in the Manzanita Holdings mezzanine loan transaction. Rather, Guaranty's role was limited to performing escrow duties as provided in the closing escrow agreement.

Significantly, LEM has assumed that the owner's title insurance policy provided LEM with title insurance coverage. Manzanita Gate Investments, LLC, was the owner of the property during the relevant time period and was the entity to which Ticor issued the title insurance policy.⁶ No evidence has been presented to demonstrate that either Manzanita Gate Apartments Holdings, LLC, the entity in which LEM invested, or LEM itself, had been named as an insured or third-party beneficiary under the policy. See Hicks v. Saboe, 521 Pa. 380, 555 A.2d 1241, 1243 (1989) (“the duty of a title insurance company runs only to its insured, not to third parties who are not party to the contract”). LEM also admits that it was not specifically insured as a preferred equity investor.⁷ See Transcript of Jay J. Eisner Deposition, 11/12/13, at 52–54. Thus, LEM was not entitled to “title insurance protection”...