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Osbourne v. Capital City Mortgage Corp.

April 01, 1999


Before Farrell and Ruiz, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Per Curiam

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeal from the Superior Court of the District of Columbia

(Hon. Russell F. Canan, Trial Judge)

Argued January 26, 199

Appellants come before this court for the second time alleging, inter alia, breach of contract and misrepresentation on the part of their mortgage company, Capital City Mortgage, Inc. (Capital City). In Osbourne v. Capital City Mortgage Corp., (Osbourne I), 667 A.2d 1321 (D.C. 1995), we reversed a grant of summary judgment against appellants and reinstated their four-count complaint claiming (1) breach of contract; (2) breach of obligation to release trust; (3) misrepresentation; and (4) statutory violations under D.C. Code §§ 28-3312, -3904 (1996 Repl.). *fn1 Now, appellants allege trial court error where the court (1) directed a verdict against appellants' claims of unlawful breach and negligent misrepresentation, concluding they failed to establish a prima facie case; and (2) required clear and convincing evidence for their intentional misrepresentation claim. Their latter claim -- that a lower standard of proof applies to alleged violations of D.C. Code §§ 28-3904, -3312 than to identical claims under common law -- creates a question of first impression for this court. We find no error in the trial court's rulings and, in so concluding, require clear and convincing evidence of intentional misrepresentation under the District's Consumer Protection Procedures Act (CPPA or Act) and the Interest Rate Ceiling Amendment Act of 1983 (IRCA or Act). Accordingly, we affirm.


On remand from Osbourne I, the court consolidated appellants' claims during trial. First, the court merged Counts 1 and 2 of appellants' complaint into one comprehensive breach of contract claim. Then, concluding there was no significant distinction between appellants' common law misrepresentation and statutory claims, it instructed the parties to argue traditional theories of negligent and intentional misrepresentation to the jury. *fn2 With these guidelines from the court, appellants presented their case to a jury.

The facts alleged at trial were substantially the same as those previously summarized by this court in Osbourne I. Essentially, the Osbournes executed a note with Capital City using their home as collateral. The Osbournes became delinquent and, faced with the threat of foreclosure, negotiated refinancing with First Government Mortgage & Investment Corporation (First Government). First Government, in turn, selected Mid-Atlantic Title, Inc. (Mid-Atlantic) to conduct the settlement. On May 31, 1989, Mid-Atlantic delivered a check in the amount of $24,346.51 (the Osbournes' alleged balance) to Capital City. Due to expenses incurred as a result of the cancelled foreclosure sale, however, Capital City continued to show a balance on the Osbournes' account. In September of 1990, with Capital City again threatening foreclosure, Mid-Atlantic paid the remaining balance and requested payment from appellants. Appellants failed to make payment, and instead initiated the underlying litigation against Capital City.

At the close of appellants' case, Capital City moved for a directed verdict. Capital City argued that appellants failed to present any evidence of economic damages, thereby failing to establish a prima facie case on all but their intentional misrepresentation claim. *fn3 The court, finding that "[t]here's just simply no evidence" of damages, granted Capital City's motion. Only appellants' intentional misrepresentation claim was submitted to the jury, with the instruction from the court that appellants' burden of proof was the clear and convincing standard. The jury returned a verdict in favor of Capital City and this appeal followed.


Directed Verdict

When confronted with a motion for directed verdict in a jury trial, the Judge is not the trier of fact. Marshall v. District of Columbia, 391 A.2d 1374, 1379 (D.C. 1978). A directed verdict is, therefore, only appropriate where the evidence is so clear that reasonable persons could reach but one Conclusion. Bauman v. Sragow, 308 A.2d 243, 244 (D.C. 1973) (citing Wilson v. Brame, 228 A.2d 326 (1967)). In reviewing a motion for directed verdict, this court must view the evidence in the light most favorable to the non-moving party. Abebe v. Benitez, 667 A.2d 834, 836 (D.C. 1995); Bauman, supra, 308 A.2d at 244; Super. Ct. Civ. R. 50 (a).

The trial court focused on the question of damages when granting appellee's motion for directed verdict. Despite four days of trial testimony, Mr. Osbourne was unable to present ...

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