Mcintosh County Bank v. Dorsey & Whitney, Llp

745 N.W.2d 538 (2008)

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Nature of the Case

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Facts

The St. Regis Mohawk Tribe (Tribe) and President R.C.-St. Regis Management Company (President) entered into a Fourth Amended and Restated Management Agreement (Management Agreement). The President was required to pay all development expenses for a casino to be opened on the Tribe's land and to manage the casino once it was built. The Tribe was required to repay the development expenses to President, as well as fees for the management services. The amounts due were determined with reference to the casino's revenues. Management contracts and collateral agreements between Indian tribes and casino management companies are subject to approval by the National Indian Gaming Commission (NIGC). Miller & Schroeder (M & S) agreed to obtain financing for President to fund construction and furnishing of the Tribe's casino. M & S negotiated two separate loans for about $12 million total. The loans were to be secured by President's interest in revenues from the casino. M & S's business model called for it to sell 100% of the interest in its loans within one week of closing, and to retain loan servicing. Thirty-two banks purchased participation interests in the loans. Ps are 31 of the banks and Marshall Investments Corporation, which later entered into subservicing agreements with M & S. Before signing a Participation Agreement with M & S, each Participant was given a closing book, which included copies of the loan documentation and a template of the Participation Agreement. The Participants acknowledged that they purchased their interest 'based upon Participant's own independent examination and evaluation of the Loan transaction and the information furnished with respect to Borrower and without any representations or warranties from Lender as to * * * the value and security of the Collateral.' The Lender was not to be 'responsible for any negligence or misconduct on the part of any * * * attorney, * * * provided that the Lender shall use reasonable care in the selection of such person or firm.' M & S retained D to assist in structuring, documenting, and securing the loan. M & S and D did not have a written retainer agreement. But they had done similar business many times in the past. The Pledge Agreement's enforceability was critical to securing the loans. There was no other guarantee. In this document, the Tribe acknowledged that President had pledged to M & S, as security for the loans, the amounts payable by the Tribe to President under the Management Agreement. A question arose as to whether NIGC approval of the Pledge Agreement was required. D submitted the Pledge Agreement to the NIGC for a determination on this issue. On February 16, 1999, NIGC notified President and the Tribe that it would need additional time to complete its review of the Amendment. President wished to close the loans in mid-February so that the casino's grand opening could occur as planned in April. D advised M & S that NIGC approval was not required for the Pledge Agreement. D did not advise M & S of the risk of proceeding without an NIGC determination. MEYER, Justice. M & S wrote to the Participants, recommending that the loans be closed despite lack of NIGC approval, and requesting that the Participants vote on the matter. The Participants voted to close the loans. Ps were aware that M & S had retained D. D did not draft the template Participation Agreement. There were no communications between Ps and D regarding the loan documentation and closing. D denied being aware of the identities of the actual Ps prior to their purchase of participation interest in the loan and denies that its work for M & S was intended to directly benefit Ps. The loans closed and revenue was well below projections, and by February 2000 President had defaulted on the loans. A Tribe representative expressed the opinion that the Pledge Agreement was unenforceable and void because it had not received NIGC approval. M & S sued President and judgment was entered for M & S in the amount of $15,625,528.16. M & S filed for Chapter 7 bankruptcy relief in January 2002. Ps and President, in separate actions in New York state courts, attempted to collect from the Tribe, which itself filed a qui tam action seeking a declaration that the Pledge Agreement was void and unenforceable. Ps joined with the M & S bankruptcy trustee to bring malpractice claims against D in bankruptcy court. The U.S. District Court found on de novo review found that there was no third party attorney-client relationship. Ps brought this malpractice action on a third-party beneficiary theory. D moved for summary judgment and it was granted. It held that there was no express or implied contract for legal services between Ps and D. It held that Ps' reliance on information received from M & S was insufficient to create an attorney-client relationship with D under a tort theory. Simply put, Ps were not the intended beneficiaries of D's representation of M & S. The court of appeals reversed on the implied contract and third-party beneficiary theories. It held that there were genuine issues of material fact regarding whether Ps were third-party beneficiaries. D appealed.