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09/29/92 RICHARD REIMAN v. INTERNATIONAL

September 29, 1992

RICHARD REIMAN, D/B/A REIMAN & CO., APPELLANT
v.
INTERNATIONAL HOSPITALITY GROUP, LTD., ET AL., APPELLEES; BROMLEY SMITH, JR., ET AL., APPELLANTS V. RICHARD REIMAN D/B/A REIMAN & CO., APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Steffen W. Graae, Trial Judge)

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

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge:

Appellant Richard Reiman, a real estate broker, seeks to recover a $250,000 brokerage fee in a long-running legal action begun in September 1983. The case is now before us for a second time. Following a prior appeal to this court and remand for a new trial Reiman v. Int'l Hospitality Group, 558 A.2d 1128 (D.C. 1989) (Reiman I), the trial court in a bench trial granted judgment in favor of Reiman against international Hospitality Group, Ltd., a Maryland corporation, ("IHG"), *fn1 its wholly-owned subsidiary Somers Holdings, Inc., a District of Columbia corporation, ("Somers"), and Bromley Smith, individually. Smith's liability was based on the theory that he had held himself out as a general partner of 4400 Connecticut Avenue Associates ("CAA"), a District of Columbia limited partnership. *fn2

Reiman appeals the refusal of the trial court to hold liable appellee Henry Lieberman on the theory that he too incurred liability as a partner of CAA due to the late filing of the certificate of limited partnership. The two corporate defendants and Smith cross-appeal, challenging the sufficiency of the evidence to support the trial court finding of anticipatory breach. We hold the evidence sufficient to support the judgment against the corporate defendants and Smith. However, we remand for further proceedings on the issue of Lieberman's liability.

I

Many of the pertinent facts, which we summarize here, were set forth in our prior opinion. 558 A.2d at 1129-31. In 1981, Reiman, a licensed D.C. real estate broker, entered into an agreement with Bruce Lyons, the managing partner of Connecticut Inn Partnership ("CIP"), which owned the Connecticut Inn Motel, to market the motel. Their understanding was that Reiman would receive a $200,000 commission at closing. Reiman thereupon began to market the motel and interested IHG in it. Lieberman was the president and Smith the senior vice-president of IHG.

On September 3, 1982, IHG and CIP executed a letter of intent *fn3 to purchase the motel "on behalf of a partnership to be formed." On November 16, 1982, a formal, 20-page purchase agreement was entered into between CIP and "4400 Connecticut Avenue Associates, a District of Columbia limited partnership," which Bromley Smith signed as "General Partner" of CAA. Under that agreement, as supplemented, CAA *fn4 agreed to pay Reiman a total commission of $250,000, including the $200,000 for which CIP was obligated. *fn5

In fact, difficulties developed and the contemplated transaction never went through. CIP claimed that at a climactic meeting on January 17, 1983, the purchaser had "anticipatorily breached" the agreement. As a consequence, CIP put the motel back on the market on January 20. In November 1983, the motel was sold to another buyer.

Reiman brought suit for his commission in September 1983. The trial court in the first trial found for the defendants, on the ground that the commission agreements provided for payment only if the purchase was consummated. On appeal, we reversed, holding that Reiman might recover if he could show that the defendants *fn6 made occurrence of the closing impossible through their own fault or misconduct.

On the retrial, the trial court found that the corporate defendants had anticipatorily breached the purchase agreement and therefore made it impossible to perform. Consequently, it entered judgment in favor of Reiman for the claimed commission. *fn7 It subsequently also entered judgment against Smith as general partner of CAA, the signatory to the purchase agreement and to the other commission documents, but refused to hold Lieberman liable. *fn8 From this judgment, Reiman and the defendants cross-appeal.

II

We first address the defendants' argument that the trial court erroneously found that an anticipatory breach of the contract to purchase the motel occurred at the January 17 meeting with CIP. They proceed from the correct premise that "for a repudiation of a contract by one party to be sufficient to give the other party the right to recover for breach, the repudiating party must have communicated, by word or conduct, unequivocally and positively its intention not to perform." Order of AHEPA v. Travel Consultants, Inc., 367 A.2d 119, 125 (D.C. 1976), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30, 54 L.Ed.2d 60 (1977). See also Ingber v. Ross, 479 A.2d 1256, 1262-63 (D.C. 1984); Burke v. Thomas J. Fisher & Co., 127 F. Supp. 1 (D.D.C. 1953), aff'd, 95 U.S. App. D.C. 85, 219 F.2d 767 (1955); 4 CORBIN ON CONTRACTS § 973 (1951). They then contend in substance that Lyons had invited them to propose changes in the deal and that at the January 17 meeting they had offered modifications to the contract which did not communicate "unequivocally" their intention to not perform.

The trial court made extensive oral findings on the issue of breach. It noted that when executing the purchase agreement, the purchasers "were very well aware of the financial situation of the Connecticut Inn," and took steps "to cover themselves in the event of problems arising," anticipated or unanticipated. It also found that the settlement date was extended by mutual agreement to January 17, at which time a new payment schedule and closing date would be discussed as indicated by the letter of January 13 sent to CIP by the purchasers' attorney. The court specifically rejected the defendants' argument that Lyons had invited the purchasers to propose new conditions precedent or alter the purchase price.

The court further found that at the meeting on January 17, Conrad Cafritz, representing the buyers, in effect presented an all-or-nothing, "take-it-or-leave-it" markedly modified proposal to CIP. Inter alia, the purchase price was to be effectively reduced by $350,000 and a lease with the University of the District of Columbia was to be a condition precedent to their purchase of the motel. It was "more in the statement of a mandate: This is the new deal; only if the deal goes down this way can it conclude." Looking also at other documents presented into evidence prepared around the time of the crucial meeting, the court stated: ...


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