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WURTZEL v. RICHMOND

July 28, 1989

ALAN L. WURTZEL, Plaintiff,
v.
FREDERIC RICHMOND, et al., Defendants



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on plaintiff's and defendants' cross-motions for summary judgment. For the reasons set forth below, plaintiff's motion is denied and defendants' motion is granted.

 Background

 In March 1976, Janice Frey entered into a contract of sale with defendant Frederic Richmond for property located at 1747 Corcoran Street, N.W. *fn1" Under the terms of that contract, Frey was purchasing "Lot 808 and that part of lot 809 that is in the rear of lot 808 extending back to rear alley." The purchase price was fixed at $ 65,000. On June 10, 1976, Bosche-Weld Construction Corporation conveyed Lot 808 to Frey and to Elli M.A. Mills as joint tenants. *fn2" At some point, the deed was rerecorded (presumably by or on behalf of Frey and Mills) to include the section of Lot 809 described in the Contract of Sale. *fn3" Richmond declares that he never saw or authorized the rerecording of the amended deed.

 The deed recorded for subsequent purchasers purports to include part of Lot 809 in the conveyance. Plaintiff alleges that the purchasers of Lot 809 enjoyed continuous use of it, an allegation denied by defendants. *fn4" Plaintiff further alleges that on June 20, 1985, a request was made to defendants by letter to convey legal title to the relevant portion of Lot 809, which request was refused. (Plaintiff does not identify the writer of that letter.) Plaintiff acquired the property in January 1987.

 Defendants answer that the part of Lot 809 in dispute was not conveyed because title was held by Frederic and Pearl Richmond, Pearl Richmond was not a party to the contract of sale, and she did not convey her interest.

 Plaintiff seeks specific performance on a contract of sale and a declaratory judgment for reformation of a deed. Plaintiff and defendants move for summary judgment. *fn5"

 Discussion

 Count I: Specific Performance

 Plaintiff first contends that he is entitled to specific performance on the Contract of Sale between Frey and defendant Richmond. "The burden of establishing the right to and need for specific performance [is] on the party seeking it." 6 A. R. Powell & P. Rohan, Powell on Real Property § 925[1] (1988 & Supp. 1989). In order to prevail on a specific performance theory, plaintiff must show (1) the existence of a valid contract, (2) plaintiff's willingness and ability to perform, (3) breach of the contract by a defendant able to perform his or her obligations, and (4) an inadequate remedy at law. Id.; see also Restatement (Second) of Contracts § 357 (1981). The relief plaintiff seeks here -- conveyance of legal title to that part of Lot 809 described in the contract -- cannot be ordered.

 Plaintiff's complaint states that "defendant Richmond and his wife held the legal title to Lot 809 in their individual capacities in 1976 and still hold that legal title." Complaint at 3; Statement of Facts at 3. No claim has been made that Pearl Richmond was a party to the Contract of Sale, and nothing on the face of that document indicates her participation. In a footnote to his reply brief, plaintiff states the following:

 
Defendants argue that because Pearl Richmond was not a party to the contract she may not be named as a defendant. That is wrong, because Plaintiff alleges that Mr. Richmond was acting on behalf of his wife. However, even if the Court finds the issue of agency to involve a dispute of material fact . . . summary judgment should be entered against Mr. Richmond, notwithstanding any issues of fact surrounding Mrs. Richmond which may have to await further discovery.

 Reply Brief at 4 n. 1. That footnote constitutes the sum and substance of plaintiff's allegations against Pearl ...


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