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Choiniere v. Marshall

Supreme Court of Vermont

November 7, 2014

Paul H. Choiniere and P&D Consulting, Inc.
v.
Anthony P. Marshall and Harris Beach, PLLC

On Appeal from Superior Court, Windsor Unit, Civil Division Harold E. Eaton, Jr., J.

Michael F. Hanley of Plante & Hanley, P.C., White River Junction, for Plaintiffs-Appellants.

Allan R. Keyes and Thomas S. Valente of Ryan Smith & Carbine, Ltd, Rutland, for Defendants-Appellees.

PRESENT: Reiber, C.J., Dooley, Skoglund and Crawford, JJ., [1] and Pineles, Supr. J. (Ret.),

SKOGLUND, J.

¶ 1 Plaintiffs Paul Choiniere and P&D Consulting, Inc. sued defendants, attorney Anthony Marshall and his law firm, Harris Beach, PLLC, alleging that they made negligent and intentional misrepresentations while representing a client in a matter involving commercial loan guaranties. Choiniere alleges that he relied upon the misrepresentations when deciding not to call a $1 million loan that he made in September 2003, and P&D Consulting alleges that it relied upon the misrepresentations when deciding to loan an additional $1.3 million in June 2004. We reverse the trial court’s decision granting defendants summary judgment.

¶ 2. The events underlying this case began in September 2003 when Choiniere loaned $1 million to Andrew Button to help him purchase an automotive dealership and move it to another location. Button’s father and stepmother Christine Rowe-Button personally guaranteed the loan. After receiving that loan, Button began negotiating with Choiniere for an additional loan of $1.3 million to acquire two more automobile dealerships. When Button’s father died in January 2004, Rowe-Button hired defendant Marshall to assist in settling her late husband’s estate and to try and obtain a release of any and all personal guaranties made to Choiniere.

¶ 3. On April 8, 2004, after several months of fruitless negotiations between Marshall and Button’s attorneys, Marshall arranged for Rowe-Button to send each of the creditors, including Choiniere, a letter captioned “Termination of Guaranty.” In the letter she stated that her signature on the guaranty “may not reflect my actual signature thereon, ” intimating that it may have been forged. Then in bold lettering she wrote:

PLEASE TAKE NOTICE THAT EFFECTIVE AS OF THE DATE OF THIS LETTER, THE ESTATE AND I HEREBY TERMINATE ALL AND ANY GUARANTIES EXECUTED OR PROVIDED OR PURPORTEDLY EXECUTED AND PROVIDED, TO YOU OR YOUR ASSIGNS WITH RESPECT TO ALL AND ANY INDEBTEDNESS OWING TO YOU BY BUTTON HOLDINGS REAL ESTATE, LLC OR ANY AFFILIATE OR OTHER ENTITY, WHETHER EXISTING AT THE TIME OF THE EXECUTION OF THE GUARANTY OR THEREAFTER ARISING.

¶ 4. Six days later, on April 14, 2004, Marshall sent a letter to Choiniere with a reference captioned “Termination of Bank Guaranty, ” in which he acknowledged that Rowe-Button may have some irrevocable obligations pursuant to the terms of the guaranty agreement, [2] but indicated that the letter was to serve as notice that any guaranty would not extend to any new advances or new indebtedness created after receipt of the letter. The attorney representing Choiniere, Douglas Riley, advised him to call the 2003 loan and not to make any additional loans to Button unless the April 8 and April 14 letters were retracted and new assurances were made. Counsel for Button at the time, Mark Sperry, wrote to Rowe-Button and Marshall on April 27 demanding that Rowe-Button, both individually and as executrix of her late husband’s estate, immediately sign letters revoking the earlier letters respecting termination of any guaranties and assuring that any such guaranties remained in force in accordance with their terms.

¶ 5. Marshall responded on behalf of Rowe-Button with the letter that is the focus of this appeal. On April 28, 2004, he sent a letter to one of Choiniere’s attorneys acknowledging that Rowe-Button had sent a letter twenty days earlier advising that any guaranties were terminated, but stating: “We have been authorized by our clients to deliver this letter to you.” The letter further stated, in bold capital letters, “BE ADVISED THAT THE TERMINATION NOTICE IS HEREBY REVOKED AND RESCINDED. If you have any questions, please do not hesitate to contact me.” On June 11, 2004, Choiniere, through his company P&D Consulting, loaned an additional $1.3 million to Button.

¶ 6. The matter in dispute is what was meant by the “rescission” letter of April 28 and whether Rowe-Button had authorized Marshall to send the letter. Choiniere claims that the rescission letter misrepresented the facts about whether Rowe-Button intended to guarantee the loans, and that he and his company relied on the letter in their business decisions.

¶ 7. Legal action began with a complaint filed by Button in January 2005 seeking a declaration that his stepmother’s signature on the guaranty was valid. In 2006, he filed for bankruptcy and was dismissed from the instant proceeding. Before he was dismissed, however, Choiniere intervened and added a claim against Rowe-Button for the guaranteed balance owed on the $1 million loan.

¶ 8. Cross-motions for summary judgment in 2008 largely involved the question of whether the April 28 “rescission” letter estopped Rowe-Button from reneging on any guaranties. Choiniere relied on theories of ratification, equitable estoppel, and waiver in arguing that Rowe-Button should remain liable. He claimed that her rescission letter misled him into believing that any guaranties would be honored, and that he relied upon the letter when making his business decisions, including his decision to loan Button an additional $1.3 million through his company P&D Consulting. Rowe-Button opposed Choiniere’s motion and cross-moved for ...


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