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07/24/92 JOHANNES C. COOKE v. GRIFFITHS-GARCIA

July 24, 1992

JOHANNES C. COOKE, APPELLANT
v.
GRIFFITHS-GARCIA CORPORATION, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. William C. Gardner, Motions Judge)

Before Rogers, Chief Judge, Ferren Associate Judge, and Kern, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: This is an appeal from the grant of summary judgment to appellee Griffiths-Garcia Corporation on appellant Johannes C. Cooke's complaint alleging tortious interference with contractual relations and requesting the imposition of a constructive trust. *fn1 Appellant primarily contends that summary judgment was inappropriate because there are disputed issues of material fact. We agree, and reverse.

I

Appellant signed a contract dated October 3, 1986, *fn2 with Joseph Semper and Elizabeth Trout (sellers) to purchase real property located at 1326 Girard Street, N.W. Washington, D.C. The contract contained an October 10, 1986, addendum which stated that:

Settlement on the aforementioned property is to occur on or before November 1, 1986. During the interim period of time - October 3rd thru November 1st - said property may be marketed under the contingency that it is already "Under Contract." "Back-Up" contractors or subordinate contracts may be accepted during the aforementioned interim period. If the settlement is not made by November 1st, then the sellers, at that time may place the property back on the market on full active status. In the event after November 1st, that the Sellers obtain another bona fide offer to purchase, Sellers may accept same subject to this contract and Purchaser shall have 72 hours from receipt of written notice of said Secondary Contract delivered as set forth in the NOTICE paragraph hereof to either (1) remove the above contingency and provide evidence of ability to perform under the terms of this contract, or (2) to allow this contract to automatically become null and void. [Emphasis added.]

In addition, the form contract used by the parties contained a preprinted clause 9, which the parties modified by handwritten notations to read, in pertinent part:

9. . . . This contract is contingent on the ability of Purchaser to secure or receive a commitment for the herein described financing * to take title subject to existing deeds of trust or to obtain lender's approval of any assumption, if required within forty five (45) calendar days from the date of final ratification of this contract, which commitment or approval Purchaser agrees to pursue diligently. Purchaser reserves the right to increase the cash down payment and/or to accept a modified commitment for financing.

While attending a business conference in late October or early November of 1986, one of the sellers, Mr. Semper, met Ms. Yasmin Griffiths Garabito, who indicated that she was interested in locating property for her company, the Griffiths-Garcia Corporation. Mr. Semper informed Ms. Garabito of the Girard Street property he owned and explained that someone had already contracted to purchase it but that the contract might have expired. He further agreed to contact his lawyer, Barry L. Leibowitz, about the matter. On November 19, 1986, Barry L. Leibowitz received a call from Dana Stebbins, Esquire, who said that she represented Griffiths-Garcia and was inquiring about the Girard Street property. Mr. Leibowitz sent Ms. Stebbins a copy of the contract and informed her that it had been terminated as a result of appellant's failure to satisfy the refinancing contingency. Finally, in November 1986, Griffiths-Garcia made an offer to purchase the property that the sellers accepted.

Appellant sued the sellers for breach of contract and also sued Griffiths-Garcia, Barry L. Leibowitz, and the sellers for tortious interference with contractual relations. *fn4 Griffiths-Garcia filed a motion for summary judgment on the ground that appellant's contract with the sellers was no longer binding and, hence, the property was properly conveyed pursuant to Griffiths-Garcia's contract of November 25, 1986. The motion included a statement of material facts not in dispute that was supported by excerpts from the depositions of appellant and one of the sellers, Mr. Semper, affidavits by Mr. Semper and Barry L. Leibowitz, and other documentary evidence including a copy of the appellant's contract to purchase the Girard Street property from the sellers. *fn5 In its memorandum of points and authorities in support of its motion, Griffiths-Garcia argued that the undisputed material facts demonstrated that appellant's contract with the sellers was unenforceable at the time it contracted with the sellers for the same property because appellant had failed to refinance his U Street property and because the November 1, 1986, deadline for settlement had expired. Alternatively, Griffiths-Garcia argued that, assuming appellant's contract was enforceable, the undisputed facts were that Griffiths-Garcia did not intentionally induce the sellers to breach the contract because it relied on representations made by the sellers' lawyer, Barry L. Leibowitz, on November 19, 1986, that appellant's contract had expired because he had failed to satisfy the refinancing contingency.

In opposition to the motion for summary judgment, appellant argued that, under the terms of his contract *fn6 with the sellers, after November 1, 1986, the sellers could only accept back-up contracts to sell the Girard Street property and that the back-up contracts would be subject to the contract requirement (specifically in the October 10th addendum) that the sellers must give appellant written notice and 72 hours to cure by demonstrating his ability to perform under his contract, and that sellers had never claimed to have done so. Appellant also argued that the issue of whether Griffiths-Garcia had intentionally procured a breach of its contract with the sellers presented a jury question. *fn7 His statement of material facts in dispute, including that he had not received such written notice and whether his selling rather than refinancing of his property to obtain funds for settlement was a breach of the contract, *fn8 was unaccompanied by citations to the record or affidavits, but during argument on the motion for summary judgment, appellant referred the trial Judge to the affidavit of Anita Ashby. *fn9

In granting Griffiths-Garcia's motion for summary judgment, the motions Judge's order stated:

Defendant Griffiths Garcia Corporation has moved for summary judgment and has supported its Motion with a Statement of Material Facts which are Not in Dispute and various documents, including transcripts of deposition testimony and affidavits. Plaintiff's Statement of Material Facts Remaining in Dispute, which framed no issues relevant to defendant's motion, made no reference to a pleading, deposition, answers to interrogatories or admissions on ...


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