Before Terry and Farrell, Associate Judges, and King, Senior
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)
Mattie Wright Dean and Stambert Dean bought a house from Barbara Garland. Carolyn Wilson and Murrell, Inc., acted as real estate agents for the transaction. After the sale was completed and the Deans had moved into the house, they filed this suit alleging breach of contract and fraud, and seeking both damages and rescission of the contract of sale. The complaint alleged that the house had a wet basement and that Ms. Garland and the agents had made fraudulent representations to the Deans regarding the condition of the basement. Ms. Garland filed a motion to dismiss the rescission count, which the court granted after a hearing a few months before trial. A jury later returned a verdict in favor of Ms. Garland and the agents, and the court entered judgment accordingly. From that judgment the Deans bring this appeal, raising several claims of error. We affirm.
On February 24, 1993, the Deans entered into a contract to purchase a house from Ms. Garland for $150,000. The contract included an "inspection addendum" signed on the same date. According to paragraph 32 of the addendum, Ms. Garland agreed to make corrections within ten days after receipt of a pre-purchase inspection report. On March 19, 1993, prior to settlement, Lanny Weintraub from Structural Concepts, Inc., performed an inspection of the premises at the Deans' request. Mr. Weintraub testified at trial that his inspection disclosed "moisture penetration through the exterior walls . . . into the basement." His written inspection report noted, in the "Basement Dampness" category, "water penetration on side wall, also in rear corner." *fn1 A copy of the report was faxed by the Deans to Carolyn Wilson and Murrell, Inc., on March 19. Three and a half years later, in September 1996, Mr. Weintraub performed a second inspection "focusing on moisture problems in the basement." On that occasion he found "extensive water penetration on the side rear wall of the house." With the aid of specialized equipment, he determined that this was "current moisture penetration. It wasn't just old moisture penetration."
Mr. and Mrs. Dean both testified that, approximately ten days after sending a copy of Mr. Weintraub's report to Ms. Wilson, they called her because they had not heard from her and were concerned about the need for repairs in light of the approaching settlement date. Mr. Dean asked Ms. Wilson if she had heard from Ms. Garland "in reference to the inspection report," adverting specifically to paragraph 32 of the addendum to the contract and to his understanding that Ms. Garland "had to respond within ten days whether she was going to do the work or not." Ms. Wilson, however, told the Deans that Ms. Garland did not have to respond in writing "as long as she is going to do the work. The work will be done by settlement." At one point in the conversation, Mr. Dean said that if Ms. Garland was not going to make the necessary repairs, he was going to void the contract.
On the way to the settlement on April 23, Mr. and Mrs. Dean drove past the house and noticed "that the retaining wall wasn't repaired." At the settlement, Mr. Dean brought this to Ms. Wilson's attention and asked if the rest of the repairs listed on the inspection report had been done. Ms. Wilson replied that she was "pretty sure" they had been. A short time later Ms. Garland arrived. With the inspection report in his hand, Mr. Dean asked Ms. Garland if the repairs had been completed, to which Ms. Garland responded that they had. Following a private conversation with Ms. Garland, however, Ms. Wilson told the Deans that three of the repairs listed on the report had not been completed, "so what we are going to do is pay you for these items here." Ms. Garland and the agents each agreed to pay the Deans $500 to make the repairs. The agreed sums were paid, though the work was never performed. Mr. Dean testified that he believed that the dampness problem in the basement had been corrected and that it was not one of the items acknowledged as incomplete by Ms. Wilson.
Approximately seven months later, after having moved into the house, Mr. Dean discovered that the basement "had flooded, with water coming out of the wall." Mr. Dean hired Daniel Marcus from Mid-Atlantic Waterproofing to inspect the basement and recommend a course of action. Mr. Marcus estimated that the cost of repairs would be approximately $15,000.
Clarence Turner, a self-employed contractor, testified on appellees' behalf. He stated that before the sale was completed, he inspected the downspout on the back of the house and that Ms. Garland had asked him to fix a problem with the drainage system. She described the problem to him as "dampness, and when it rained, dampness would develop. She was getting a little trickle across the floor." Mr. Turner said that before he made any repairs, the rain water "was building up and washing back into the house and running down the steps . . . and up against the back and side walls of the building." To remedy the problem, he installed a four-inch drain, "and I tapped both the downspout at the rear and the front of the house and opened a hole in the [front] wall . . . and poured the water out on the sidewalk." Shortly before trial Mr. Turner returned to the property and noticed that "the downspout looked like it had been damaged and it was not hooked up."
Raymond Casario, a building inspector employed by Budget Waterproofing, inspected the property at appellees' request a few months before trial. Mr. Casario, who had been present in the courtroom during Mr. Marcus' testimony, said that although it was raining on the day of his inspection, he did not notice any water damage, nor did he smell mildew in the basement. He did, however, notice "some dampness that [he] was actually able to see," but "the only water penetration [he] saw was in the cove area approximately a foot to eighteen inches wide, perhaps a quarter to a half inch on the floor. Certainly there was no buildup of water, no standing water . . . ." Mr. Casario further testified that "there is only one place that water could come from, which is directly under the slab, and through hydrostatic pressure it is actually forced up through the expansion joint, which is the cove area." On the basis of his observations, Mr. Casario estimated that the repairs would cost $3,650.
At the end of the trial, the jury returned a verdict in favor of Ms. Garland and the agents.
In April 1994 the Deans filed their original complaint, which contained two counts, one for breach of contract and the other for fraud. Both counts were based on the alleged failure of appellees to perform certain repairs required by the contract of sale. Several months later the Deans filed an amended complaint, containing the same claims as the original but also ...