Langley v. Prudential Mortg. Capital Co., LLC

The court delivered a PER CURIAM opinion. MOORE, J.(pp. 369-71), delivered a separate concurring opinion. MERRITT, J. (pp. 371-73), delivered a separate dissenting opinion.

OPINION

I.

This case involves two sizeable real estate loans — one for $43 million, the other for $14 million — by Prudential, the lender, to Robert Langley, the borrower. The dispositive issue on appeal is whether two contracts, both of which included a forum selection clause choosing New York as the forum for litigation, should be enforced. The federal district court below determined that the contracts were invalid and thus declined to enforce the forum selection clauses. Because a valid and enforceable contract exists, we vacate and remand for the district court to entertain a motion to enforce the forum selection clause under Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1404(a).

II.

This appeal stems from two loan agreements between Langley and Prudential Mortgage Capital Company, LLC (“Prudential”). First, on June 6, 2007, Langley signed a loan for $43,300,000 to finance a commercial real estate project in Gulf Shores, Alabama, known as Craft Farms (the “Craft Farm loan”). And second, Langley signed a loan for $13,800,000 on June 25, 2007, to finance a commercial real estate project in Mississippi known as Colony Crossing (the “Colony Crossing loan”). The parties also agreed to “Rate Lock Agreements” for both loans, which were signed on the same days as the two loan agreements. The Rate Lock Agreements, which are at the heart of this controversy, both included the following choice of law and forum selection clause:

Pursuant to Section 5-1401 of the General Obligations of the State of New York, this Agreement shall be governed by the substantive law of the State of New York (without regard to the principles of conflicts of laws). Pursuant to Section 5-1402 of the General Obligations Law of the State of New York, the parties hereto elect that any litigation arising out of this Agreement shall be brought only in a state or federal court sitting in New York County in the State of New York

(Emphasis added).

The Rate Lock Agreements resulted from negotiations to determine the exact *367conditions and rates necessary to finalize the loans. Because Prudential intended to securitize the proposed loans using commercial mortgage-backed securities, it required rate lock deposits, which Langley paid, before agreeing to the Rate Lock Agreements. The Rate Lock Agreements also included a provision giving Prudential the discretion to demand increases in the amount of the rate lock deposits. Under the terms of the loan agreements, Langley agreed to pay “unwind costs” if the loans failed to close for any reason.

Beginning in the summer of 2007, the rate on the 10-Year Treasury Notes began to drop as a result of the subprime mortgage crisis. Prudential characterized this event as a material adverse change and demanded that Langley increase the rate lock deposits in order to maintain the terms of the Rate Lock Agreements. Meanwhile, a dispute had developed over the interpretation of the Rate Lock Agreements; specifically, the parties disagreed about whether they had agreed to fix the interest rates for the loans absolutely or whether the agreements simply fixed the interest rate spread (which was subject to change). Langley ultimately delivered two letters of credit — drawable on an account at National City Bank — to Prudential in response to Prudential’s demand that he increase the rate lock deposits: one on August 20, 2007, and the other on August 21, 2007.2 As market conditions continued to fluctuate, the parties entered into what proved to be unsuccessful discussions about modifying the terms of the loan. Prudential then informed Langley that the failure to finalize the two loans constituted unwind events under the agreements. Accordingly, Prudential informed Langley that it would seek to have the letters of credit honored as part of the unwind costs. Langley then filed an action on December 3, 2007, seeking to enjoin National City Bank, a co-defendant, from honoring the letters of credit that Langley had provided to Prudential. In response, Prudential argued that the forum selection clauses should be enforced and that the injunction should not issue.

The district court rejected the forum selection clauses and then issued the preliminary injunction on December 6, 2007. On the forum selection clause issue, the district court’s decision is as follows:

As a preliminary matter, the Court must address Prudential’s assertion [that] pursuant to the Rate Lock Agreement, any disputes arising from the Rate Lock Agreements “shall be governed by the substantive law of the State of New York” and that any litigation arising out of the Rate Lock Agreements “shall be brought only in a state or federal court sitting in New York County in the State of New York.” Plaintiffs contend that as there was no meeting of the minds regarding the Rate Lock Agreements, the choice of law and forum selection clauses ... do not control this litigation, a contention with which this Court agrees. Accordingly, this Court is a proper forum for this litigation, which shall be governed by the substantive law of the Commonwealth of Kentucky.

Langley v. Prudential Mortgage Capital Co., No. 07-CV-404-JMH, 2007 WL 4365423, at *2, 2007 U.S. Dist. LEXIS 92224, at *5 (E.D.Ky. Dec. 12, 2007). This appeal followed.

III.

Prudential argues in this appeal that the district court committed revers*368ible error by not enforcing the terms of the forum selection clause. According to Prudential, the agreements containing the clauses constitute valid, enforceable contracts, notwithstanding the district court’s conclusion to the contrary. We review questions of contract interpretation de novo. Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 990 (6th Cir.2007) (citing Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir.1996)).

The district court focused on the parties’ disagreement about whether the agreements locked the interest rates absolutely or merely the spread in finding that there was no meeting of the minds. Langley argues that the agreements froze the interest rates at a fixed value for each loan, while Prudential contends that the parties only agreed to fix the interest rate spread. According to Prudential, therefore, the occurrence of certain events—including the crisis in the lending markets—could trigger an increase in the rates paid by Langley. The district court treated the disagreement on this particular issue as fatal to the entire contract.

In reaching its determination that no contract existed, the district court applied Kentucky law (the law of the forum) as opposed to New York law (the law chosen by the litigants). Importantly, “if no contract exists, the language of the forum-selection clause cannot logically deprive [the plaintiff] of its significant right of access to the courts of the United States.” Evolution Online Sys., Inc. v. Koninklijke PTT Nederland N.V., 145 F.3d 505, 509 (2d Cir.1998); see also Wallace Hardware Co. v. Abrams, 223 F.3d 382, 391 (6th Cir.2000) (applying the choice-of-law rules of the forum state to determine whether to enforce a contract containing a choice of law clause). As a result, the district court was correct that Kentucky law governs the initial question of whether the agreements containing the forum selection clauses were valid. Cf. Inghram v. Universal Indus. Gases, Inc., No. 1:05-cv-19, 2006 WL 306650, at *1, 2006 U.S. Dist. LEXIS 7730, at *2-3 (E.D.Tenn. Feb. 8, 2006).

Under Kentucky law, “not every agreement ... rises to the level of a legally enforceable contract.” Kovacs v. Freeman, 957 S.W.2d 251, 254 (Ky.1997). “An enforceable contract must contain definite and certain terms setting forth the promises of performance to be rendered by each party.” Id. (citing Fisher v. Long, 294 Ky. 751, 172 S.W.2d 545 (Ky.1943)). There must also be mutuality of obligations. Kovacs, 957 S.W.2d at 254 (citing Morgan v. Morgan, 309 Ky. 581, 218 S.W.2d 410 (Ky.1949)). However, “where parties differ as to the terms of an express contract and there is evidence ... to support the claim of each of them, it is for the jury to determine what the contract term in question is.” Hartford Accident & Indem. Co. v. Middlesboro-LaFollette Bus Line, Inc., 357 S.W.2d 671, 673 (Ky.1962).

Prudential is correct that contracts between the parties were formed. The contracts were fully executed by the parties who then proceeded to act in reliance on them. There is simply a difference of opinion as to the meaning of the contracts. Both parties assumed obligations so as to ensure the financing for the real estate projects. The parties chose specific dates for performance, outlined the events necessary for performance, and indicated a desire to be bound by the contract. Moreover, Langley does not argue that the contracts were the product of fraud. Rather, the disagreement centers on the meaning of particular terms in otherwise enforceable agreements. Because the record indicates that this disagreement is the result of a good faith dispute and that both interpretations are supported by the evi*369dence, the meaning of the contested term must be determined. Id. Thus, for purposes of deciding the issue concerning the enforcement of the forum selection clauses, both Rate Lock Agreements constitute valid and enforceable contracts.

IY.

Because the district court’s conclusion regarding the validity of the contracts was incorrect, we now turn to the issue of whether the forum selection clauses contained therein should be enforced. While we would find the forum selection clause enforceable, Defendant has not yet moved for enforcement of the clause through either a motion to transfer venue under 28 U.S.C. § 1404(a) or a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Whether such a motion seeks transfer as opposed to dismissal may affect whether factors beyond the intent of the contracting parties may be taken into account by the district court. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 32, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (stating that a forum selection clause is considered within the § 1404(a) balancing analysis); id. at 29 n. 8,108 S.Ct. 2239 (implying that defendant may not enforce a forum selection clause through dismissal for improper venue); Security Watch, Inc. v. Sentinel Sys., 176 F.3d 369, 371, 375-76 (dismissing under Rule 12(b) due to a forum selection clause).

Because the district court has not had the opportunity to consider either a motion to dismiss or a motion to transfer, we VACATE the injunction and REMAND so that the court may rule, consistently with this opinion, on a properly brought motion based on the forum selection clause.