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08/21/91 JAMES DAVEY v. H. HAMPTON KING

August 21, 1991

JAMES DAVEY, ET AL., APPELLANTS/CROSS-APPELLEES
v.
H. HAMPTON KING, APPELLEE/CROSS-APPELLANT



Appeals from the Superior Court of the District of Columbia; Hon. Warren R. King, Motions Judge; Hon. Steffen W. Graae, Trial Judge

Kern, Senior Judge. Steadman and Wagner, Associate Judges.

The opinion of the court was delivered by: Kern

These cross-appeals are from the trial court's determination of a dispute between former friends and colleagues over the ownership of five Washington Redskins season tickets purchased by one of the principals, Mr. King, and used for some 25 years by both him and the other principal to the dispute, Mr. Gast. *fn1

Our decision in Tauber v. Jacobson, 293 A.2d 861 (D.C. 1972), governs this dispute. *fn2 There, we decided " disagreement among friends over their respective rights to season tickets for the local professional football games . . . in a lawsuit, a trial, and a judgment requiring the purchaser of the tickets, some four in number, to transfer to plaintiffs his option to renew his subscription in future seasons for two of these tickets." Id. at 862.

Here, King had purchased, over the years, a total of five tickets and the trial court, after a trial without a jury, entered an order which is the subject of these cross-appeals. The trial court's ruling was that "the original three tickets in Section 231 . . . were at all times the sole property of King . . . with respect to the two tickets in Section 227 . . . King and Gast/Kraynack are equal owners . . . shall have the right to assign or devise their ownership interests in the tickets," and "if a party dies without a will, ownership interest may also pass by intestate succession." We affirm the trial court's ruling with respect to the three tickets but reverse its ruling as to the other two tickets.

I

The record reflects that King purchased three season tickets (the so-called Section 231 tickets) during the 1950's before he even knew Gast. King concluded that because of his other recreational and family activities, he could not use all of these tickets for every home game but he could not afford to give them away or simply not use them. Therefore, he asked Gast, a friend and coworker, if he wished to use some of these tickets upon payment to King of their face amount. Gast agreed. However, it developed that Gast could not, by himself, use all the tickets made available to him by King. Accordingly, Gast asked others, including Kraynack and Davey, to join in this sharing arrangement with the understanding that they would pay King for the tickets each year. In the meantime, King shared the tickets to the home games that he did retain with his family and other friends.

King and Gast established a somewhat elaborate system of "teams" of users of the tickets King purchased each year and which were always registered at the Redskins ticket office in his name. *fn3 At no time, according to the testimony, did King say that any user of the tickets he renewed (and purchased) annually had an ownership interest in such tickets. Also, none of those who used the tickets upon payment of their face amount ever requested that such ticket or tickets be re-registered in a name other than King. The sharing arrangement by "teams" was never formalized in writing.

In the 1960's, King decided he wanted to seize the opportunity presented to him to purchase two more season tickets for his own enjoyment and that of family and friends. The record contains testimony by Mr. King that he determined "to increase my tickets in the Redskins as an activity among our friends and the family," and that he "needed to find people that were interested in buying them from me." Mr. King further testified that he would have had no difficulty in finding persons to buy the two additional tickets from him, but Mr. Gast "was the first one to say, well, I'll take half of them so I said okay." Mr. King pointed out "that the benefit of having somebody like this [Mr. Gast], you don't have to go hunting around for people to buy tickets. It's nice to have someone available."

Mr. Gast in his testimony acknowledged that when Mr. King called him concerning the addition of two tickets nothing was said about his "having any ownership rights to them." Mr. Gast recalled that Mr. King had advised that he had an opportunity to add two tickets "to the three that we already were sharing. That if I were interested and could get others in my group and wished to do so, he would go ahead and purchase them."

Mr. Gast acknowledged in his testimony that he, by himself, could not use all of the original three tickets he shared with Mr. King, and so he had "added two other individuals to go with me . . . on those three tickets." When Mr. King proceeded to purchase the two additional tickets, he testified that "we added one more person to the group that shared the tickets we then had." *fn4

Prior to the beginning of the 1988 Redskins season, King advised Gast that "he wanted to pull back two of his tickets for that year" because of a desire to have additional members of his family enjoy the tickets. Gast testified that he was "dismayed" and "somewhat shocked" by this turn of events, believing that he had an ownership interest "based on 25 years of use." He thereupon filed suit for breach of contract and for the imposition of a constructive trust over the tickets he was using under the sharing arrangement.

II

The trial court, in our view, correctly concluded that Gast had no ownership interest in the three tickets King purchased before he even knew Gast. Accordingly, we affirm this part of the court's ruling. *fn5 However, the conscientious trial Judge went on to find "that King would not have purchased . . . [the other two] tickets but for the agreement of plaintiffs Gast and Kraynack to share them equally." Thus, the court found that, as a matter of law, King was acting as an agent for Gast and Kraynack when he purchased those tickets. "Therefore, even though King is listed with the Washington Redskins ...


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