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Chinowth & Cohen, LLC v. Cornerstone Home Lending, Inc.

United States District Court, N.D. Oklahoma

April 4, 2017

CHINOWTH & COHEN, LLC, Plaintiff,
v.
CORNERSTONE HOME LENDING, INC., Defendant.

          OPINION AND ORDER

          John E. Dowdell United States District Judge

         I. Background

         The following facts are either undisputed or are supported by evidence in the summary judgment record and taken as true, with all reasonable inferences drawn in favor of the plaintiff, as is required at the summary judgment stage.

         The plaintiff, Chinowth & Cohen, LLC (C&C) is engaged in the business of real estate sales in Tulsa and surrounding communities. The defendant, Cornerstone Home Lending, Inc. (Cornerstone) is a home mortgage lender licensed in 37 states. C&C and Cornerstone entered into a Marketing and Services and Office Facilities Agreement (MSA) dated December 13, 2013. Among other things, the MSA required C&C to designate Cornerstone as a preferred lender of choice in connection with residential mortgage loans and to provide certain marketing services, goods, and facilities. The MSA required C&C to provide Cornerstone office space with utilities and furniture, telephone and internet access, and shared access to areas of the C&C offices, such as kitchen, conference rooms, and restrooms. The agreement set forth a rental fee formula per square foot, to be paid by Cornerstone, with respect to the designated spaces in each of C&C's offices. The marketing services to be provided were identified on Exhibit A to the MSA, and included ten categories of services that C&C was to provide. The parties agreed that Cornerstone would pay C&C a bundled monthly sum of $10, 000 in exchange for those marketing services.

         It is undisputed that Cornerstone terminated the MSA effective December 31, 2014. However, Cornerstone continued to occupy C&C's offices through June of 2015. Brian Bomar, who was at the time the Senior Vice President / Area Manager for Cornerstone, frequently dealt directly with C&C regarding administration of the MSA on behalf of Cornerstone. Bomar notified C&C of the termination of the MSA before it was terminated, and, subsequent to the termination of the MSA, Mr. Bomar continued to engage in business discussions with C&C while Cornerstone occupied C&C offices. At deposition, Mr. Bomar testified that, after the termination of the MSA, C&C and Cornerstone “agreed to continue to have a relationship . . . [a]nd the discussion for an ongoing relationship was because of the potential to grow the organization and turn that into a joint venture in the future.” (Doc. 38 at 42-43 [Dep. pp. 94-95]). Mr. Bomar also testified that “it is possible” that there were discussions with C&C about continuing some or all of the marketing services identified on Exhibit A to the MSA. (Id. at 43-44 [Dep. pp. 95-96]).

         Bomar further admitted that, after termination of the MSA, C&C continued to perform at least some of the marketing services listed in the MSA, including three of the ten categories of services identified on Exhibit A to the MSA:

“Allow mortgage company sales professionals access to [C&C's] sales offices, employees and agents, participation in [C&C's] internal sales meetings, award ceremonies and celebrations, and training of [C&C's] employees and agents regarding [Cornerstone's] products and services.” (See Id. at 44-45 [Dep. pp. 96-97]); see also Doc. 31 at 24 [Exhibit A]).
“Display [Cornerstone's] marketing materials and signage at [C&C's] sales offices, listings and other locations, as applicable.” (Doc. 38 at 46 [Dep. p. 100]; Doc. 31 at 24).
“Include [Cornerstone's] banner advertisement or marketing information and/or link to [Cornerstone's] web site on [C&C's] web site(s).” (Doc. 38 at 46 [Dep. p. 100]; Doc. 31 at 24).

         Bomar also agreed that a fourth category of identified marketing services may also have continued beyond the termination of the MSA: “Grant [Cornerstone] a license to use [C&C's] name and/or logo and/or trademark to identify [Cornerstone] as a preferred lender of [C&C] in [Cornerstone] marketing materials.” (Doc. 38 at 46-47 [Dep. pp. 100-101]). After termination of the MSA, Mr. Bomar also asked C&C to introduce a Cornerstone employee to C&C agents and employees, which he recognized was the “same thing that [he] asked [C&C] to do during the term of the MSA.” (Doc. 38 at 49 [Dep. p. 103]; see also Id. at 98). Bomar further stated that, for at least three months after termination of the MSA, C&C was allowing Cornerstone employees to make presentations to C&C real estate agents. (Id. at 50 [Dep. p. 104]).

         Notwithstanding Bomar's testimony, Cornerstone denies that C&C continued to provide any marketing services after termination of the MSA. Cornerstone did not pay for any such services, but at the time the relationship between Cornerstone and C&C ended in June 2015, Cornerstone tendered a check for $16, 249.98, which it represented was to cover six months of “rent” through June 2015. (See Doc. 31 at 86, 88, 90; see also Doc. 46 at 7, fn. 2; Doc. 47 at 23 [where Cornerstone represents in its reply brief that it is “again tendering rental payment to Plaintiff in connection with this Motion”]). C&C did not accept the tendered payment, as C&C considered it an attempt to obtain a release of other amounts which C&C alleges are owed for marketing services it provided after the MSA was terminated. (See Doc. 37 at 4; see also Doc. 31 at 86 [Cornerstone's tender of check only for “payment of rent” as inclusive of “the reasonable value of any services actually tendered subsequent to termination of the [MSA].”).

         After the parties' relationship ended, C&C filed suit in Tulsa County District Court, alleging that, after the termination of the MSA, the parties entered into a new agreement for the continuation of marketing services on a month-to-month basis. Cornerstone removed the action to this Court based upon diversity jurisdiction, as C&C alleged in its Petition that it is owed $76, 698.00, plus prejudgment interest, costs, and fees. C&C asserts claims against Cornerstone for breach of contract, quantum meruit, and unjust enrichment. (Doc. 2-1).

         Cornerstone moves for summary judgment, asserting that: Bomar had no authority on behalf of Cornerstone to engage in a new business arrangement with C&C; C&C did not provide any marketing services after the termination of the MSA; there was no contract beyond the MSA; C&C is owed only an amount for rent for six months; and C&C has no evidence supporting its quasi-contract claims. In response, C&C argues that there was an oral or implied agreement that C&C would continue to provide marketing services and office space for compensation or, alternatively, C&C has provided evidence supporting a quasi-contract claim for quantum meruit.

         II. Summary ...


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