Brogdon v. Pro Futures Bridge Capital Fund LP

Pro Futures Bridge Capital Fund, L. P. “Pro Futures” sued Chris Brogdon, Chief Executive Officer of NewCare Health Corporation “NewCare”, for breach of contract. Pro Futures alleged that Brogdon failed to honor a contract to repurchase stock in NewCare “Put Agreement”, which Pro Futures obtained through a subscription agreement “Subscription”. Pro Futures moved for summary judgment, and the trial court granted the motion. Brogdon appeals, asserting that the trial court erred in 1 failing to integrate the Put Agreement with the Subscription; 2 finding that Pro Futures had complied with the Subscription; and 3 concluding that Pro Futures complied with applicable securities regulations. Because Brogdon’s allegations of error lack merit, we affirm. A trial court properly grants summary judgment “when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”1 We conduct a de novo review of a grant of summary judgment.2 So viewed, the record demonstrates that NewCare sought to raise investment capital through Pro Futures. James Perry, a Pro Futures partner, met with NewCare representatives including Brogdon, who, in addition to being the CEO of NewCare, was also a stockholder in the company. In his affidavit, Perry stated that he “was reluctant to invest in NewCare” because the deal did not fit into Pro Futures’ normal parameters for investing. According to Perry, Brogdon proposed the Put Agreement to “induce” Pro Futures to invest.

The Put Agreement specified that “Pro Futures is considering an investment of at least $2 million in NewCare’s Private Offering and Brogdon is personally willing to grant certain rights to Pro Futures in order to encourage it to invest in the Private Offering.” The Put Agreement then provided that “at any time during the one year period commencing on the date of this Agreement, Pro Futures may put to Brogdon all or any portion of the stock which it purchases in the Private Offering . . . This right may be exercised one time only during the one year period.” Brogdon and Perry signed this agreement on January 22, 1998.