of those provisions . . . ." Committee on Public Services and Consumer Affairs, Committee Report on Bill 4-230, the "District of Columbia Real Estate Licensure Act of 1981," at 2 (1982) (emphasis added). The act authorizes criminal penalties of fines or imprisonment in addition to any existing civil and criminal penalties. D.C. Code § 45-1946.
"No statute is to be construed as altering the common law, farther than its words express." Dell v. Dept. of Employment Services, 499 A.2d 102, 107 (D.C. 1985); see Monroe v. Foreman, 540 A.2d 736, 739 (D.C. 1987). Notwithstanding the decision of a district court in Virginia to the contrary, see Hamady v. Trammel Crow Asset Co., 824 F. Supp. 580, 582 (E.D. Va. 1993), aff'd without op, 28 F.3d 1209 (4th Cir. 1994), I cannot find in § 45-1945 an absolute bar to enforcement of an oral contract -- if there was an oral contract -- to pay a real estate commission.
Defendants go on to argue that the oral listing contract upon which plaintiff bases its implied or quasi contractual claim is illegal and therefore void ab initio. The argument proceeds from the well-established proposition that contracts violating professional licensing statutes and usury laws are void and confer no right upon the wrongdoer. E.g. Capital Constr. Co. v. Plaza West Coop. Assoc., Inc., 604 A.2d 428, 429 (D.C. 1992); Nixon v. Hansford, 584 A.2d 597 (D.C. 1991); Karr v. C. Dudley Brown & Assoc., Inc., 567 A.2d 1306, 1308 (D.C. 1989); Truitt v. Miller, 407 A.2d 1073, 1079 (D.C. 1979). The legal issues presented by this argument, however, are not sharply focused enough for pretrial disposition.
It is unclear from the pleadings whether plaintiff actually purports to sue upon an oral listing contract, for example. The quantum meruit cause to which the defendants' motion and argument are specifically addressed does not require the existence of an oral contract. For quantum meruit recovery under a contract implied in fact, plaintiff must show (1) that it performed valuable services for defendants (2) which services defendants accepted, used, and enjoyed and (3) under such circumstances as reasonably notified defendants that plaintiff expected to be paid. Vereen v. Clayborne, 623 A.2d 1190, 1193 (D.C. 1993). For plaintiff to recover on a theory of quantum meruit based on a contract implied in law or quasi-contract, it must show that defendant was unjustly enriched at plaintiff's expense and that the circumstances were such that in good conscience defendants should make restitution. Id. There is a suggestion in the brief of defendants, fuzzy at best, to the general effect that one who violates a statute may not come into equity, but it is unclear that plaintiff violated the statute or that its claim is equitable in nature.
Important facts about the relationship between plaintiff and defendant and about the sale to Howard University are disputed and need to be resolved by trial. Particularly where, as here, the motion of defendants is only partially dispositive and leaves unchallenged the plaintiff's breach of contract and promissory estoppel claims, granting the partial motion for summary judgment would not significantly narrow the issues for trial.
Claim of Fraudulent Misrepresentation
Defendants' dispositive motion as to Count 3 of the complaint, for fraudulent misrepresentation, is miscast as a motion for summary judgment. As defendants properly point out, the elements of fraudulent misrepresentation in the District of Columbia are (1) a false representation, (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive and (5) action taken in justifiable reliance thereon. Blake Constr. Co. v. C.J. Coakley Co., 431 A.2d 569, 577 (D.C. 1981); Remeikis v. Boss & Phelps, Inc., 419 A.2d 986, 988 (D.C. 1980). The attempt to dispose of this fact-intensive count by arguing that plaintiff has failed to adduce "clear and convincing evidence" cannot succeed. The record supports plaintiff's allegations that defendant encouraged plaintiff to continue looking for buyers and lessors, that it concealed or misrepresented the facts surrounding its imminent sale contract with Howard in December 1993, and that it ultimately refused to pay a commission. A jury, drawing all reasonable inferences in favor of the nonmovant, could find on the basis of those facts that plaintiff proved fraudulent misrepresentation by clear and convincing evidence. See Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 254-55, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986).
A more appropriate defense motion would be for failure to state a claim upon which relief can be granted under Federal Rule 12(b)(6), or for judgment on the pleadings under Federal Rule 12(c), because all that plaintiff has alleged is that defendants misrepresented their intent to pay a commission. Such a misrepresentation is nearly impossible to prove false as a matter of fact, and defendants correctly argue that "mere failure of promised performance has never permitted a factual finding that defendants never intended to perform," Soper v. Simmons Intern., Ltd., 632 F. Supp. 244, 249 (S.D.N.Y. 1986); and that "breach of future promises lies in the realm of the contract," One-O-One Enter., Inc. v. Caruso, 668 F. Supp. 693 (D.D.C. 1987).
A motion under Rule 12(b)(6) or 12(c) -- or for that matter under Federal Rule 9(b) -- is not invited by this memorandum, however: the "remedy" under those rules is almost always dismissal with leave to amend. If plaintiff is able to state a proper fraud claim on the facts of this case, an appropriate amendment should be offered now. If no such amendment is forthcoming, the fraud count can be disposed of by oral motion at the time of the pretrial conference.
An appropriate order accompanies this memorandum.
United States District Judge
Dated: August 30, 1995
For reasons stated in the memorandum issued this date, the motion of defendant for summary judgment as to Counts 2 and 3 [#32] is denied. A pretrial conference is set for October 16, 1995 at 9:30 a.m., and trial of this cause is set for October 23, 1995 at 10:30 a.m.
United States District Judge
Dated: August 30, 1995
© 1992-2004 VersusLaw Inc.