the Greenwich Group International, LLC v.  JOHN F. GRIFFIN, General Partner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 THE GREENWICH GROUP
INTERNATIONAL, LLC,
Plaintiff-Appellant,
v.
No. 00-1436  JOHN F. GRIFFIN, General Partner;
GEORGE O. MULLIGAN, General
Partner; BARRY M. FITZPATRICK,
General Partner,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-99-189-PJM)
Argued: November 2, 2000
Decided: November 21, 2000
Before WILKINSON, Chief Judge, and WILKINS and
MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Eric Michael Rome, EISEN & ROME, P.C., Washington,
D.C., for Appellant. John M. Wood, REED, SMITH, SHAW &
MCCLAY, L.L.P., Washington, D.C., for Appellees. ON BRIEF:

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William O. Bittman, REED, SMITH, SHAW & MCCLAY, L.L.P.,
Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this diversity contract case, a brokerage firm appeals a district
court’s order granting summary judgment to three real estate owners
who failed to bring a contemplated real estate transaction, brokered
by the firm, to fruition. We affirm.
I.
On August 22, 1996, The Greenwich Group International, LLC
entered into an Engagement Agreement (Agreement) with Mulli-
gan/Griffin Associates (MGA) whereby Greenwich agreed to seek a
buyer or joint venturee to buy or invest in real estate owned by MGA.
The Agreement provided that MGA would pay Greenwich a success
fee after MGA agreed to and completed a "portfolio contract" con-
cerning the properties. A "portfolio contract" was specifically defined
and had to be denominated as such. The Agreement also provided that
MGA could reject any proposed transaction for any reason.
Greenwich contacted the Morgan Stanley Real Estate Fund, which
expressed interest in forming a joint venture between it and MGA to
share in ownership and operation of the properties. On April 16, 1997,
MGA and Morgan signed a "term sheet" outlining the basic features
of the proposed joint venture. While comprehensive, the term sheet
left some terms open for future negotiation. The term sheet stated that
it was non-binding.
After executing the term sheet, Morgan and MGA initiated a joint
venture and began further negotiations to prepare for the larger real
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estate transaction. In August 1997, however, MGA unilaterally pulled
its three most desirable properties from the proposed transaction with
Morgan. Without these properties, Morgan was no longer willing to
complete the transaction. As a result, the transaction failed and MGA
never paid Greenwich a success fee. On January 26, 1999, Greenwich
brought suit against three general partners of MGA — John Griffin,
George Mulligan, and Barry Fitzpatrick — for breach of contract.
Greenwich relied upon a theory of "prevention." Greenwich con-
tended that, although no "portfolio contract" had been signed and the
express conditions of the Agreement entitling Greenwich to payment
were not satisfied, those conditions should be waived because MGA
prevented their occurrence when it pulled the most desirable proper-
ties from the proposed transaction with Morgan. Greenwich main-
tained that MGA was not allowed to pull those properties from the
transaction under the Agreement and was bound to complete its trans-
action with Morgan through the partial performance of the terms pro-
vided in the non-binding term sheet.
On February 8, 2000, the district court granted summary judgment
to the MGA partners, finding the prevention doctrine inapplicable to
these facts. The district court reasoned that because Greenwich had
bargained for prevention in the Agreement and because the terms of
the contemplated transaction between MGA and Morgan were indefi-
nite even after subsequent partial performance, there was no final
agreement to prevent and thus the prevention doctrine did not apply.
Greenwich now appeals.
II.
We have reviewed the record, briefs, and applicable law, and con-
sidered the oral arguments of the parties, and we are persuaded that
the district court reached the correct result. We therefore affirm the
district court’s holding that the prevention doctrine does not apply to
the facts of this case and that the MGA partners were entitled to sum-
mary judgment. See The Greenwich Group International, LLC v.
Griffin, et al., Civ. No. PJM 99-189 (D. Md. February 8, 2000).
AFFIRMED
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