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04/30/93 ALONZO VEREEN AND TECHNICAL DATA SERVICES

April 30, 1993

ALONZO VEREEN AND TECHNICAL DATA SERVICES, INC., APPELLANTS
v.
VERNA E. CLAYBORNE, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Curtis E. von Kann, Trial Judge)

Before Ferren, Farrell, and King, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : The trial court, sitting without a jury, entered judgment for plaintiff-appellee, Verna E. Clayborne, in the amount of $10,499.59 (representing principal and interest owed), plus $1,574.94 in attorney's fees, on Clayborne's claim for payment due on a promissory note from defendants-appellants Alonzo Vereen and his company, Technical Data Services, Inc. (collectively "Vereen"). The court also entered judgment against Vereen on his counterclaims for breach of contract, quantum meruit, unjust enrichment, and defamation. On appeal, Vereen contends that the evidence shows he performed services for Clayborne in lieu of paying the balance due on the note and that he accordingly owes her no money. He therefore argues that the trial court erred in finding that Vereen did not perform any services at Clayborne's New Jersey Avenue property and that the parties did not have a contract for the performance of services at Clayborne's A Street, N.E., property. *fn1 Vereen further contends that even if he did not have valid contractual claims offsetting any balance due on the note, the trial court erred in rejecting his counterclaim based on quantum meruit and unjust enrichment. Finally, as to his separate counterclaim for defamation, Vereen contends the trial court erred in finding that Clayborne's statements, while defamatory, were not false. We reject virtually all Vereen's contentions and affirm the trial court's rulings in all respects save one: we must remand for further proceedings on Vereen's defamation claim based on one statement by Clayborne which Vereen did prove was both defamatory and false.

I.

At trial, the parties stipulated that sometime around July 20, 1989, Clayborne lent Vereen $17,000, secured by a promissory note. They also stipulated that Vereen repaid $10,000 on October 2, 1989. The controversy arose because Clayborne sought payment of the remainder of the principal with interest and attorney's fees, as provided in the note. Vereen answered that he had performed engineering and architectural services for Clayborne and that the value of those services should offset any amount remaining due on the promissory note, under a theory of breach of contract or, at least, a theory of quantum meruit and unjust enrichment.

Between 1986 and 1988, Vereen and Clayborne were romantically involved. Vereen testified that twice in early 1989 he examined a property owned by Clayborne on New Jersey Avenue and prepared plans and specifications relating to it, but that those documents disappeared during a burglary of his office in July 1990. Vereen acknowledged, however, that during his interactions with Clayborne "there was nothing definitive about a payment for [his services regarding the] New Jersey [Avenue property]." In contrast, he claimed that he explicitly told Clayborne he expected to receive fees for his services when she wanted him to work on a second project, on A Street. Vereen testified that in the summer of 1989, he examined the A Street property, which Clayborne later purchased, to determine what renovations were needed. Vereen further testified that he visited the A Street property four times: twice with Alvin Courtney, the property's caretaker; once with Clayborne; and once with Greg Upshaw, an engineer employed by Vereen's company, who corroborated at trial Vereen's account of their site inspection. Vereen also testified that on September 5, 1989, he drafted a letter evaluating the condition of the A Street property for Clayborne to use in obtaining the property and in financing its purchase. Vereen then testified that when Clayborne accepted his $10,000, they verbally agreed that the balance of his debt had been satisfied by his work on the two properties. Vereen claimed that Clayborne only began insisting that he owed her the balance of the loan after she encountered difficulties obtaining financing on the A Street property.

In her testimony, however, Clayborne said that Vereen never visited the New Jersey Avenue property-- indeed, that she had sold it in November 1988, several months before Vereen supposedly worked there. Clayborne further testified that Vereen volunteered to write the letter concerning the A Street property as a favor, that she assisted him in writing the letter, and that she never had visited the A Street property with him. Clayborne also denied ever having an understanding with Vereen that his services would partially satisfy his debt. Moreover, contrary to Vereen's testimony, Alvin Courtney testified that he had accompanied Vereen to the A Street property only once, not twice.

The parties agreed that after Vereen had paid Clayborne the $10,000, she began calling him in order to get him to pay her the balance. They also agreed that Clayborne called and sent letters to various individuals and organizations who might put pressure on Vereen to pay. Vereen testified that these communications, which included accusations that Vereen engaged in unethical business practices, harmed his business.

In addition to the communications about Vereen's business, Clayborne wrote a letter in July 1990 to Joan Palmer, one of Vereen's business associates, with whom he also had a personal relationship. In that letter, Clayborne told Palmer that Vereen was "not divorced." At trial, however, Vereen entered in evidence a divorce decree dated May 25, 1988, more than two years before Clayborne wrote the letter to Palmer. Vereen testified that after Palmer received Clayborne's letter, Palmer severed her relationship with Vereen, ending both its personal and business aspects.

II.

According to D.C. Code § 17-305 (a) (1989 Repl.), in a case tried without a jury this court may review both the facts and the law, "but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." This court has interpreted D.C. Code § 17-305 (a) to be "indistinguishable from the 'clearly erroneous' standard" under Super Ct. Civ. R. 52 (a). United States v. Felder, 548 A.2d 57, 61 n.4 (D.C. 1988) (citing Auxier v. Kraisel, 466 A.2d 416, 418 (D.C. 1983) (per curiam) and Hummel v. Koehler, 458 A.2d 1187, 1191 (D.C. 1983)).

The trial court found that Vereen "did no work on the property at 1701 New Jersey Avenue, that he simplymade the whole thing up; that is, he lied about it." The trial court noted that Vereen's claim regarding the New Jersey Avenue property rested entirely on his own testimony, uncorroborated by any witness or document. The trial court decided not to credit Vereen's testimony, instead relying on Clayborne's testimony that she had sold the property "at least three months before Mr. Vereen stated he did the work." Having examined the record and applied the required deferential standard of review, we conclude that sufficient evidence supports the trial court's finding that Vereen did no work on the New Jersey Avenue property.

With respect to the A Street property, the trial court found that Vereen made only one brief inspection. The court also found that Clayborne assisted Vereen in preparing the letter introduced in evidence, so that Vereen's work totaled no more than two hours. The court then concluded that Clayborne owed Vereen nothing for those two hours of work.

More specifically, the trial court found no credible evidence that Vereen and Clayborne had an express contractual agreement for Clayborne to pay for the services Vereen performed in producing the letter. See Richardson v. J.C. Flood Co., 190 A.2d 259, 261 (D.C. 1963)(express ...


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