United States District Court, D. Columbia
November 13, 2005.
SAMAN GHAHREMANI, Plaintiff,
UPTOWN PARTNERS, L.L.C., Defendant.
The opinion of the court was delivered by: COLLEEN KOLLAR-KOTELLY, District Judge
Plaintiff Saman Ghahremani brought this action on June 23,
2005, against Defendant Uptown Partners, L.L.C., seeking to
enforce a Condominium Unit Purchase Agreement (the "Contract")
for a condominium located at 1390 V Street, N.W., Washington,
D.C. 20009, Unit 321 (the "Unit"). Implicitly, Plaintiff's
Complaint also alleges breach of contract and unjust enrichment
against Defendant. In response, Defendant filed a Motion to
Dismiss Plaintiff's Complaint for failure to state a claim,
pursuant to Federal Rule of Civil Procedure 12(b)(6), and for
failure to join an indispensable party, pursuant to 12(b)(7), and
also filed a Motion to Strike Notice of Pendency of Action ("Lis
Pendens") and to Quash the Encumbrance Created By Its Filing.
Upon a consideration of Defendant's motions, Plaintiff's
Opposition, Defendant's Reply, Plaintiff's exhibits attached to
his Complaint, and the relevant case law, the Court shall grant
Defendant's Motion to Dismiss for failure to state a claim and
shall quash the relevant encumbrance.
On December 13, 2002, Plaintiff and his friend, Farzel Davarya,
entered into a real estate contract with Defendant, pursuant to which Defendant was to sell
the purchasers Unit 321 at the Langston Hughes Lofts, a
condominium building which was in the process of being built at
the intersection of 14th and V Streets, N.W., Washington, D.C.
Compl. ¶¶ 5-6; see id., Ex. 1 (December 13, 2002 Contract).
Prior to the signing of the December 13, 2002 Contract, Plaintiff
contends that he and Mr. Davarya met with one of Defendant's real
estate agents, who suggested that Mr. Davarya be shown on the
Contract as one of the purchasers because he was already on a
waiting list for a unit in the building, while Plaintiff was not
on such a list. Id. ¶ 6. According to Plaintiff, the agent
assured them that there was no problem with including Mr. Davarya
on the agreement, and that the deed would be prepared to show
Plaintiff as the sole purchaser at closing. Id. However,
because of the waiting list problem, the December 13, 2002
Contract explicitly lists Plaintiff and Mr. Davarya as the
"purchasers" of the Unit, and both individuals signed the actual
document. Id., Ex. 1 (December 13, 2002 Contract) at 9.
The December 13, 2002 Contract contains several provisions that
are relevant to this suit. In particular, two provisions place
certain obligations on the purchaser(s) of a unit within the
Langston Hughes Loft. First, Section 22(a) provides, in relevant
part, "Purchaser shall have no right to assign this Agreement
without the prior written consent of Seller. Any purported
assignment of this Agreement by Purchaser in violation hereof
shall be voidable at the option of Seller." Id., Ex. 1
(December 13, 2002 Contract) at § 22(a). Second, Section 22(h)
PURCHASER HEREBY REPRESENTS AND WARRANTS THAT
PURCHASER INTENDS TO OCCUPY THE PROPERTY AS A PRIMARY
RESIDENCE. ANY MISREPRESENTATION REGARDING
PURCHASER'S INTENTION TO RESIDE IN THE UNIT SHALL
CONSTITUTE A DEFAULT BY PURCHASER PURSUANT TO
PARAGRAPH 15(a) HEREOF. Id., Ex. 1 (December 13, 2002 Contract) at § 22(h) (emphasis in
original). Both Plaintiff and Mr. Davarya placed their initials
next to Section 22(h) of the Contract, signifying their
understanding of the provision. See id.
Additionally, the December 13, 2002 Contract contains two other
provisions that provide certain protections to Defendant. First,
Section 22(c) ensures that:
Purchaser is expressly prohibited from recording, and
covenants not to record, this Agreement, any
memorandum thereof of any list [sic] pendens, whether
or not Seller is at any time in default hereof, and
upon any recordation and attempted recordation,
Purchaser shall be in default of this Agreement, and
Seller shall have all rights and remedies to which it
is entitled pursuant to Paragraph 15(a) hereof with
respect to such default.
Id., Ex. 1 (December 13, 2002 Contract) at § 22(c). Second,
Section 22(e) notes that
This Agreement is not severable except with the prior
written consent of Seller. If any part of this
Agreement is unenforceable or severed for any reason,
then at Seller's election this Agreement may be
terminated upon written notice to Purchaser and upon
such termination Seller shall return Purchaser's
Deposition and any other monies paid Seller hereunder
and not then expended in connection with the
Property, in which event the parties hereto shall be
relieved of any and all further liability hereunder.
Id., Ex. 1 (December 13, 2002 Contract) at § 22(e). The
Contract is governed by and interpreted in accordance with the
laws of the District of Columbia. Id., Ex. 1 (December 13, 2002
Contract) at § 22(q).*fn1
In September 2003, the parties entered into a price amendment
related to certain options to be added to the Unit. Id. ¶ 8;
see also id., Ex. 3 (September 3, 2003 Price Amendment).
However, despite not being a "purchaser" listed on the December
12, 2002 Contract, Plaintiff's wife was the only individual who
formally signed off on this amendment. Id. ¶ 8; see also id.,
Ex. 3 (September 3, 2003 Price Amendment) at 3. On April 2, 2005,
another "price restate addendum" was entered into by the parties,
modifying the final price of the Unit. Id. ¶ 7; see also id.,
Ex. 2 (April 2, 2005 Price Restate Addendum). In the April 2,
2005 Price Restate Addendum, both Plaintiff and Mr. Davarya were
explicitly listed as the "purchasers" of the Unit, although
apparently Plaintiff was the only purchaser who signed the
document. Id., Ex. 2 (April 2, 2005 Price Restate Addendum) at
By a letter dated May 18, 2005, Defendant gave notice through
its real estate broker that it had scheduled settlement for June
1, 2005, and that settlement would be conducted by Regional
Title, Inc., at its Washington, D.C. offices. Id. ¶ 10; see
also id., Ex. 4 (May 18, 2005 Settlement Notice). However, when
Plaintiff and his wife appeared at the offices of Regional Title
for settlement on June 1, 2005 "ready, willing and able to
perform all of [the] obligations under the contract," they were
informed by Regional Title that Defendant would not settle
because Plaintiff "was asking for title `in the wrong name.'"
Id. ¶ 12. Defendant's reasoning was further explained in a
letter from Defendant's real estate broker to Plaintiff and Mr.
Davarya dated June 10, 2005, which announced that: Seller has instructed us to send you this formal
notification that you are in default of Paragraph
22(h) of your Purchase Agreement to buy Condominium
Unit 321 at Langston Lofts Condominium. You indicated
that it was to be your primary residence as required
under the contract.
Id. ¶ 13; see also id., Ex. 5 (June 10, 2005 Default Letter).
Apparently, Defendant did not believe that Mr. Davarya who
was not present at closing intended to occupy the Unit as his
primary residence. Moreover, Defendant did not believe that
Plaintiff and his family intended to occupy the Unit as their
primary residence, as required by Section 22(h). At the time of
closing, Plaintiff's family included himself, a wife, and two
children one of which was born between the December 13, 2002
Contract and the day scheduled for closing. Compl. ¶ 14. Public
records show that the Unit is a one bedroom condominium unit of
less than 900 square feet. See Def.'s Mot. to Dismiss at 1 n.
1. According to records of the Maryland State Department of
Assessments and Taxation, Plaintiff purchased a 4,400 square foot
single family home in Clarksville, Maryland, a mere three (3)
months prior to the signing of the Contract to purchase the Unit.
Id.*fn2 Due to its belief that the purchasers, and
Plaintiff specifically, had violated Section 22(h) of the
Contract, Defendant informed Plaintiff that it was willing to
return his deposit of $13,000.00 and his options payment of
$2,960.00 at his request but was otherwise terminating the
Contract based on Plaintiff's breach. Compl., Ex. 5 (June 10,
2005 Default Letter) at 1.
Plaintiff now contends that Defendant's stated justification
for terminating the Contract is a pretext for illegitimate
ulterior motives. In support of this theory, Plaintiff notes that
at the time he and Mr. Davarya signed the Contract on December 13, 2002,
Defendant's real estate broker was aware that Mr. Davarya had
already signed another Condominium Unit Purchase Agreement for a
separate unit in the Langston Hughes Lofts. See Pl.'s Opp'n,
Ex. 1 (Davarya Aff.) at 1, ¶ 6. Therefore, Plaintiff argues that
Defendant's representative was aware that Mr. Davarya could not
occupy both units as his "primary" residence. Id. at 6-7.
Moreover, Plaintiff claims that the Unit's market value "has gone
up substantially since 2002 and [Defendant] can sell the Unit for
approximately twice the amount . . . in the Contract," Compl. ¶
18, giving Defendant extra economic incentive to find a breach on
the part of Plaintiff. Finally, Plaintiff asserts that Section
22(h) did not require that the Unit be used as the purchaser's
primary residence, and instead only required a representation
that in 2002 Plaintiff intended the condominium to be his
primary residence. Id. ¶ 14. Because Plaintiff notes that he
intended the Unit to be his family's primary residence at the
time of the initial contract signing on December 13, 2002, he
argues that no violation of Section 22(h) actually occurred.
Given these contentions, Plaintiff asserts that it is Defendant
who has defaulted and, as such, he is the equitable owner of the
Unit and is entitled to a lis pendens until this matter is
adjudicated. Id. ¶ 22. Plaintiff requests that this Court
enter: (1) "[i]njunctive relief prohibiting the sale or
encumbrance of the Property during these proceedings"; (2) "[a]
declaration . . . that [Plaintiff] is the equitable owner of the
subject property"; (3) "[a]n Order . . . requiring specific
performance of the Contract" by Defendant; (4) "[a]n award of
damages"; and (5) an award for costs and reasonable attorney's fees. Id. at 5 (Prayer for
Relief). In response, Defendant contends that dismissal of
Plaintiff's action is warranted because he has violated multiple
provisions within the Contract and is entitled to no further
relief outside of a return of his deposit and options payment.
See generally Def.'s Mot. to Dismiss.
II: LEGAL STANDARDS
In general, a motion to dismiss under Federal Rule of Civil
Procedure 12(b) should not prevail "unless plaintiffs can prove
no set of facts in support of their claim that would entitle them
to relief." Kowal v. MCI Commc'n Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In evaluating a Rule 12(b)(6)
motion to dismiss for failure to state a claim, unlike resolving
a motion under Rule 12(b)(1), the court must construe the
complaint in a light most favorable to the plaintiff and must
accept as true all reasonable factual inferences drawn from
well-pleaded factual allegations. In re United Mine Workers of
Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C.
1994); see also Schuler v. United States, 617 F.2d 605, 608
(D.C. Cir. 1979) ("The complaint must be `liberally construed in
favor of the plaintiff,' who must be granted the benefit of all
inferences that can be derived from the facts alleged."). While
the court must construe the Complaint in the Plaintiff's favor,
it "need not accept inferences drawn by the plaintiff if such
inferences are not supported by the facts set out in the
complaint." Kowal, 16 F.3d at 1276. Moreover, the court is not
bound to accept the legal conclusions of the non-moving party.
See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).
The court is limited to considering facts alleged in the
complaint, any documents attached to or incorporated in the
complaint, matters of which the court may take judicial notice,
and matters of public record. See E.E.O.C. v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Marshall
County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6
(D.C. Cir. 1993); Fed.R.Civ.P. 10(c) ("A copy of any written
instrument which is an exhibit to a pleading is a part thereof
for all purposes"). Factual allegations in briefs of memoranda of
law may not be considered when deciding a Rule 12(b)(6) motion,
particularly when the facts they contain contradict those alleged
in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688
(D.C. Cir. 1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309,
116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss
is based on the complaint, the facts alleged in the complaint
Accordingly, the court may dismiss a complaint for failure to
state a claim only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations. Hishon v. King & Spalding, 467 U.S. 69, 73,
104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v. Dist. of
Columbia, 73 F.3d 418, 422 (D.C. Cir. 1996). However, the court
should grant a motion to dismiss "if an affirmative defense or
other bar to relief appears on the face of the complaint."
Garrett v. Commonwealth Mortgage Corp., 938 F.2d 591, 594 (5th
Cir. 1991) (citing Landry v. Air Line Pilots Ass'n Int'l
AFL-CIO, 901 F.2d 404, 435 (5th Cir. 1990)), cert. denied,
498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990); 2A J. Moore & J.
Lucas, Moore's Federal Practice ¶ 12.07, at 12-68 through 12-69
(2d ed. 1990)); see also Nwachukwu v. Karl, 223 F. Supp. 2d 60,
69 (D.D.C. 2002) (citing Garrett).
Defendant's Motion to Dismiss asserts that, even taking the
factual allegations of the Complaint to be true, dismissal is
warranted because (1) Plaintiff's Complaint details three separate breaches of the Contract by the Plaintiff, each of which
act to bar any recovery by Plaintiff, and (2) nothing in the
Complaint excuses Plaintiff's own breaches of contract. See
Def.'s Mot. to Dismiss at 3-11.*fn4 Moreover, Defendant
contends that Plaintiff's recording of a Notice of Lis Pendens
with the District of Columbia Recorder of Deeds, contemporaneous
with the filing of this suit, is in violation of Section 22(c) of
the Contract and therefore should be quashed. See Def.'s Mot.
to Strike Lis Pendens at 1, ¶¶ 3-6. In response, Plaintiff argues
that (1) the Contract is an adhesion contract that is "utterly
unconscionable and, among other things, violative of the District
of Columbia Consumer Protection Act," D.C. Code § 28-3901 et
seq. (1981 ed.), and its unconscionable provisions should
therefore be struck from the bargain; and, in the alternative,
(2) Defendant's agent entered the contract with Plaintiff with
full awareness that Mr. Davarya was not a true "purchaser," and
ratified the contract through such knowledge. See generally
In order to resolve Defendant's Motion to Dismiss, the Court
shall first analyze whether Plaintiff actually breached the
December 13, 2002 Contract, as asserted by Defendant, and then
shall examine whether certain considerations may excuse
Plaintiff's breach(es) and allow Plaintiff to continue to enforce
the Contract against Defendant.
A. Based Upon the Facts Alleged in the Complaint, Did
Plaintiff Breach the December 13, 2002 Contract as Constituted
and Subsequently Modified?
Upon a consideration of the factual allegations made in
Plaintiff's Complaint and the attached December 13, 2002
Contract, along with its subsequent modifications, it is clear on
the face of these documents that Plaintiff breached the Contract with
Defendant in four separate ways.
First, Section 4 of the Contract explicitly requires the
defined "Purchaser" to "complete settlement on such date" as
specified in the Settlement Notice provided to the unit's
purchaser or purchasers. See Compl., Ex. 1 (December 13, 2002
Contract) at § 4. Based solely on the explicit provisions of the
Contract and its addendums, the "purchasers" of the Unit were
Plaintiff and Mr. Davarya. Id. ¶ 6; see also id., Ex. 1
(December 13, 2002 Contract) at 9; id., Ex. 2 (April 2, 2005
Price Restate Addendum) at 1. However, the Complaint clearly
states on the date specified for settlement, June 1, 2005, "Dr.
Ghahremani and his wife appeared at Regional Title, Inc., for the
settlement as instructed," and further emphasizes that "Dr.
Ghahremani appeared at settlement, ready, willing and able to
perfrom all of his obligations under the contract." Id. ¶ 11.
It is apparent from the Complaint that Mr. Davarya did not attend
the settlement, id., and had no intention to close on the
Contract, id. ¶ 6.
Importantly, where two or more parties to a contract promise
the same performance to the same promisee, they incur a
presumptive joint duty to fulfill the terms of the contract.
Restatement (Second) of Contracts § 289(2) (1981 (noting a
"presumption of joint obligation"); 12 Williston on Contracts §
36:3 (4th ed. 2005) ("an obligation entered into by more than one
person is presumed to be joint"); see also Clayman v. Goodman
Props., Inc., 518 F.2d 1026, 1031-32 (D.C. Cir. 1974) (stating
that the general rule in the District of Columbia is that "the
obligation created by the promise of several persons is joint
unless the contrary is made evident") (citations omitted).
Accordingly, both Plaintiff and Mr. Davarya, as the explicit
"Purchasers" under the Contract, had a joint duty to attend the
settlement and close on the Contract. By failing to ensure joint performance, Plaintiff and Mr. Davarya breached
the facial requirements of Section 4 of the Contract.
Second, Section 22(h) of the Contract explicitly requires
that the "Purchaser" warrants that he "INTENDS TO OCCUPY THE
PROPERTY AS A PRIMARY RESIDENCE." See id., Ex. 1 (December 13,
2002 Contract) at § 22(h). Under the Contract, any
misrepresentation concerning this intention constitutes a default
on the part of the Purchaser. Id. Here, Plaintiff and Mr.
Darvarya specifically represented their intention to occupy the
Unit as their primary residence in the December 13, 2002
Contract, and specifically placed their initials next to Section
22(h) to emphasize their understanding of this requirement. Id.
However, Plaintiff's Complaint makes it plain that on the date
the Contract was signed, only Plaintiff, his wife, and his one
child intended to reside in the Unit. Compl. ¶ 14. In his
Affidavit attached to Plaintiff's Opposition, Mr. Davarya agrees
with Plaintiff's factual allegation, noting that he "did not
intend to live in both units," and was instead planning on
residing in the other unit that he had purchased from Defendant.
Pl.'s Opp'n, Ex. 1 (Davarya Aff.) at 1, ¶ 6. As such, on the face
of Plaintiff's Complaint, it is clear that a joint obligor
i.e., Mr. Davarya never intended to reside in the Unit. Given
this failing, Plaintiff and Mr. Davarya were clearly in breach of
Section 22(h) of the Contract at the time it was signed.
Third, Section 22(a), in relevant part, provides that
"Purchaser shall have no right to assign this Agreement without
the prior written consent of Seller. Any purported assignment of
this Agreement by Purchaser in violation hereof shall be voidable
at the option of Seller." Compl., Ex. 1 (December 13, 2002
Contract) at § 22(a). Plaintiff's Complaint asserts that he had
the sole right to close on the Contract. Id. ¶ 11. However, Mr.
Davarya was clearly listed as a co-Purchaser in all relevant documents leading up to the
settlement date. Id. ¶ 6; see also id., Ex. 1 (December 13,
2002 Contract) at 9; id., Ex. 2 (April 2, 2005 Price Restate
Addendum) at 1. If Mr. Davarya's rights under the Contract were
somehow forfeited or transferred to Plaintiff, an explicit or
implicit assignment must have occurred with the written consent
of Defendant. However, Plaintiff's Complaint does not allege the
existence of any written consent to the alleged assignment, and
refers only to oral statements that Plaintiff would be permitted
to sign the deed individually. Id. ("The agent suggested that
Mr. Davarya be shown on the Contract as one of the purchasers
because he was already on a waiting list for a Unit and Dr.
Ghahremani was not. The agent assured them that there was no
problem with that and that the deed would be prepared to show Dr.
Ghahremani as the sole purchaser at closing."). As such,
Plaintiff's claim, which depends upon an assignment of Mr.
Davarya's interest in the property to him, also reveals a breach
of Section 22(a) of the Contract.
Fourth, Section 22(c) of the Contract provides that the
Purchaser "is expressly prohibiting from recording, and covenants
not to record, this Agreement, any memorandum thereof, or any
list [sic] pendens. . . ." Id., Ex. 1 (December 13, 2002
Contract) at § 22(c). Section 22(c) further emphasizes that any
recordation or attempted recordation of a notice of pendency of
action, i.e., lis pendens, by a Purchaser constitutes a "default
of this Agreement," allowing Defendant to terminate the contract.
Id. On June 23, 2005, Plaintiff filed the Complaint in this
action, noting in the caption that "This suit involves title to
real property, Unit 321, Lot 68, Square 236, recorded at Liber
196, Folio 79, Langston Hughes Condominium." Id. at 1.
Plaintiff, asserting that he "is now the equitable owner of the
Property and is entitled to a lis pendens until this matter is
adjudicated and he has received both equitable and legal title to
the Property," id. at ¶ 22, simultaneously recorded a Notice of Lis Pendens with the
District of Columbia Recorder of Deeds. See Def.'s Mot. to
Strike Lis Pendens at 2, ¶ 5; Pl.'s Opp'n at 2-4. By recording a
notice of pendency of action, Plaintiff violated the explicit
prohibition outlined in Section 22(c) of the Contract and, under
the terms of the Contract, defaulted.
In sum, on the face of Plaintiff's Complaint, taking all of
Plaintiff's factual allegations as true, it is plain that
Plaintiff (and Mr. Davarya, his co-Purchaser) breached his
Contract with Defendant in four separate ways. Mr. Davarya's
failure to appear at settlement and intention not to participate
in the settlement violated Section 4 of the Contract; Plaintiff
and Mr. Davarya did not intend that the Unit would be their
primary residence, violating Section 22(h) of the Contract;
Plaintiff's claim depends on an assignment of rights from Mr.
Davarya, but no written consent was given by Defendant allowing
such an assignment, in violation of Section 22(a) of the
Contract; and Plaintiff recorded a lis pendens with the District
of Columbia Recorder of Deeds, in violation of Section 22(c) of
the Contract. Each of these breaches provides Defendant with the
authority under the Contract to terminate the deal and offer the
Unit to other potential purchasers, thereby undermining the
claims made in Plaintiff's Complaint. See Ashcraft & Gerel v.
Coady, 244 F.3d 948, 952 (D.C. Cir. 2001) ("a party to a
contract may defend [a breach of contract claim] on the ground
that there existed . . . a legal excuse for
non-performance. . . .") (quoting Western Auto Supply Co. v.
Sullivan, 210 F.2d 36, 39-40 (8th Cir. 1954)); Restatement
(Second) of Contracts § 237,
B. Are There Certain Considerations that Excuse Plaintiff's
Violations of the Contract or Render Specific Provisions of the
Before granting Defendant's Motion to Dismiss Plaintiff's
Complaint based on Plaintiff's own violations of the Contract, the Court must examine (1)
whether certain considerations excuse Plaintiff's contravention
of the explicit terms of the Contract, or (2) whether certain
provisions of the Contract may be considered null and void as a
matter of public policy, while other provisions remain
enforceable by Plaintiff against Defendant. The Court shall
analyze each possibility raised by Plaintiff in his Opposition to
Defendant's Motion to Dismiss in turn.
1. Considerations Excusing or Modifying Plaintiff's Breach of
the Contract's Explicit Terms
In his Opposition, Plaintiff contends that certain
representations made by Defendant's real estate broker,
identified as Kathryn W. Wells, during the process leading up to
and including the signing of the December 13, 2002 Contract
between Plaintiff and Defendant orally modified the terms of the
written Contract. Pl.'s Opp'n at 8-9. According to Plaintiff,
because Ms. Wells was aware that Mr. Davarya had signed a
different contract for a separate unit in the building on the
same day and was only listed as a "Purchaser" on the Contract
with Plaintiff as a placeholder to circumvent the waiting list
problem, Ms. Wells ratified the oral placeholder agreement. Id.
Moreover, Plaintiff asserts that because Ms. Wells was an agent
of Defendant, her knowledge and ratification of the oral
modification may be imputed to Defendant. Id.
In addition to the oral promises and actions taken by
Defendant's agent on the date of the Contract signing, Plaintiff
points out that events subsequent to the December 13, 2002
signing of the Contract reveal that Defendant proceeded with the
understanding that the Contract was really between Defendant and
Plaintiff, and did not include Mr. Davarya. Id. at 9-10. For
instance, subsequent to December 13, 2002, Mr. Davarya notes: "I
was never contacted by the developer or its agents in regard to
the Langston Hughes Condominium Unit Purchase which I had signed along with Dr. Ghahremani or was otherwise treated by them as
having any interest in the matter." Pl.'s Opp'n, Ex. 1 (Davarya
Aff.) at 1, ¶ 8. Plaintiff also emphasizes that it was he "and
his wife who signed the contract amendments . . . and it was the
Ghahremani's who chose the optional items for the unit and it was
[Plaintiff] alone who was contacted to come to settlement." Id.
at 10. According to Plaintiff,
[o]n this record of repeated performance of
inconsistent promises the Amendments, the options
package, the notice of settlement sent only to Dr.
Ghahremani, and the failure to communicate at all
with Mr. Davarya about this contract all
demonstrate that the contract had been modified to
eliminate Mr. Davarya as the purchaser.
Id. at 11.
Two legal theories possibly support Plaintiff's contention: (1)
the December 13, 2002 Contract was not a completely integrated
document, and was modified by the oral promises made by
Defendant's agent Ms. Wells at the time of the Contract signing;
or (2) the December 13, 2002 Contract was completely integrated
and reflected the full scope of the agreement between the
parties, but subsequent communications and practices modified the
terms of the agreement in a manner that essentially wrote Mr.
Davarya out of the Contract. The Court shall investigate each
theory as it relates to Plaintiff's claim.
i. Incomplete Integration
As noted above, Plaintiff's first argument attempting to excuse
or explain away any "breach" of the Contract's explicit terms is
his assertion that the promises made by Ms. Wells, Defendant's
agent, at the December 13, 2002 signing of the Contract
constituted an oral modification of the written agreement whereby
Mr. Davarya was essentially written out of the transaction for
all practical purposes. See Pl.'s Opp'n at 6-9. Accordingly,
the issue of whether the Contract was completely integrated via the writing becomes
As explained by the District of Columbia Court of Appeals,
"[w]hen parties to a contract have executed a completely
integrated written agreement, it supersedes all other
understandings and agreements with respect to the subject matter
of the agreement between the parties, whether consistent or
inconsistent, and is viewed as the sole expression of the
parties' intent." Masurovsky v. Green, 687 A.2d 198, 203 (D.C.
1997) (citing Howard Univ. v. Good Food Servs., Inc.,
608 A.2d 116, 126-27 (D.C. 1992); Ozerol v. Howard Univ., 545 A.2d 638,
641 (D.C. 1988)). "A completely integrated agreement is one
adopted by the parties as a complete and exclusive statement of
the terms of the agreement." Ozerol, 545 A.2d at 641. In
contrast, a partially integrated agreement is one in which "the
writing represents the agreement of the parties with respect to
the matters stated therein but where there may be additional
consistent oral terms." Id. (citing Restatement (Second) of
Contracts § 213 (1979)).
"The question whether an agreement is completely integrated is
a preliminary question of fact for the trial court." Good Food
Servs., 608 A.2d at 126; Masurovsky, 687 A.2d at 202; see
also Restatement (Second) of Contracts § 210(3). The court's
factual inquiry is to focus on the intent of the parties at the
time they entered the agreement. Id. In determining the
parties' intent, the court is to examine "the conduct and
language of the parties and the surrounding circumstances. The
document alone will not suffice." Good Food Servs.,
608 A.2d at 126 (emphasis altered); see also Masurovsky,
687 A.2d at 202-03; Ozerol, 545 A.2d at 641. In determining whether the
agreement is completely or only partially integrated, a court may
therefore analyze the written agreement itself, "[a]greements or
negotiations prior to or contemporaneous with the adoption of a
writing," Good Food Servs., 608 A.2d at 127 (quoting Restatement (Second) of Contracts § 214; id. at § 210, ill. 1),
and the presence or absence of a merger clause indicating
complete integration a factor which may be "significant, though
not conclusive," id. (citing II Farnsworth on Contracts § 7.3,
at 204-07 (1990)). Importantly, in considering the relevant
evidence and determining whether the parties intended a writing
to be completely integrated, the trial court is not to apply the
parol evidence rule. Id. (citing Restatement (Second) of
Contracts § 214, comment a)). "That rule only comes into play
after the court has decided that the writing is completely,
rather than partially, integrated." Id. (citing Ozerol,
545 A.2d at 641-42).*fn5
In this case, the December 13, 2002 Contract between the
parties contains a specific integration clause. Section 22(d)
This Agreement and its addenda, if any, contains the
final and entire agreement between the parties
hereto, and the parties hereto shall not be bound by
any terms, conditions, statements, warranties, or
representations, oral or written, not herein
contained. Purchaser agrees that Purchaser will rely
only upon representations set forth in this
Agreement. No action or inaction by Seller shall
constitute a waiver of any default or obligation
under this Agreement and no waiver of any default or
obligation shall be effective unless it is in writing
and signed by Seller.
Compl., Ex. 1 (December 13, 2002 Contract) at § 22(d). However,
Plaintiff's Complaint is replete with factual allegations
indicating that the parties intended their agreement to go beyond
the limiting explicit terms of the Contract from the very
beginning. See id. ¶¶ 6-8, 10. Indeed, as Mr. Davarya's
Affidavit indicates, Defendant through its agent was aware
that certain terms of the written Contract, i.e., whether Mr.
Davarya would use the Unit as his primary residence, were in direct contradiction to other agreements entered by
Defendant. Pl.'s Opp'n, Ex. 1 (Davarya Aff.) at 1, ¶¶ 5-6. Given
the facts cited by Plaintiff and the alleged oral representations
made by Defendant's agent Ms. Wells, the Court providing
Plaintiff all inferences due under a Rule 12(b)(6) motion
concludes that there is, at minimum, a genuine issue of fact as
to whether the Contract is a completely, or only partially,
integrated agreement at this time.
However, whether this issue of fact is material depends upon
whether Plaintiff can show that there is also a genuine issue
as to the existence of additional oral terms that are consistent
with the written Contract. If not, then the status of the
Contract as completely, or only partially, integrated becomes
immaterial, as the only consequence of proving a partially
integrated agreement is that the agreement may be expanded to
include "additional oral terms that are consistent with the
writing. . . ." Ozerol, 545 A.2d at 642 n. 6 (citing
Restatement (Second) of Contracts §§ 213, 215, 216). As explained
by the District of Columbia Court of Appeals, "to be successful,"
a claim that an oral term should be added to a written contract
"require[s] the additional term to be consistent with the written
agreement and either to have been agreed to for separate
consideration or be such a term in the circumstances might
naturally have been omitted from the writing." 1010 Potomac
Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 206 n. 9
(D.C. 1984). Here, the terms that Plaintiff seeks to have added
to the explicit written Contract i.e., that Mr. Davarya will
not be a "Purchaser" of the Unit in reality, will not use the
Unit as his primary residence, and will not be obligated under
the terms of the written deal directly contradict the stated
terms in the Contract. Because a "writing supersedes inconsistent
terms of previous agreements," even when a contract is only
partially integrated, Good Food Servs., 608 A.2d at 127 n. 8,
the Court finds that the explicit terms of the Contract
identifying both Plaintiff and Mr. Davarya as the co-Purchasers of the Unit and listing
their joint obligations supersedes Mr. Wells' alleged
representations that the parties could proceed with the Contract
but list only Plaintiff on the deed, even accepting (for the
purposes of a motion to dismiss) the facts as stated by
Plaintiff. Accordingly, the Court finds that an agreement to
proceed with Mr. Davarya as only a nominal party, with no duties
or obligations under the Contract, cannot be considered an
additional oral term to the (presumptively) partially integrated
Accordingly, Plaintiff cannot establish a claim that the
Contract was partially integrated at its inception and was
altered by a contemporaneous oral agreement to supersede the
rights, duties, and obligations of Mr. Davarya. This conclusion
renders immaterial the dispute over whether the Contract is a
completely integrated, or only partially integrated, agreement.
Regardless of how the Contract is characterized, no terms other
than those directly memorialized in the written Contract can be
considered part of the agreement reached by the parties on
December 13, 2002.
ii. Subsequent Modification
While it is clear that there was no binding oral modification
of the Contract adding inconsistent terms at the time of its
writing on December 13, 2002, Plaintiff argues in the
alternative that the Contract was subsequently modified through
(1) the various addendums to the Contract entered into by the
parties or (2) the alleged oral promises by Defendant's broker
and the parties course of dealing, which were inconsistent with
the Contract's explicit provisions. See Pl.'s Opp'n at 10-11. A
review of the facts alleged in Plaintiff's Complaint, the
attached addendums, and the relevant case law indicates that
Plaintiff's contention has no support. First, a review of the addendums to the Contract undermines
Plaintiff's assertion that they somehow modified the December 13,
2002 Contract to the exclusion of Mr. Davarya. The first
"addendum" to the Contract took place in late August/early
September 2003, as Plaintiff filled out and submitted a document
entitled "Langston Lofts Schedule B." See Compl., Ex. 3
(September 3, 2003 Price Amendment). This document is obviously
the option sheet contemplated by Section 3(b) of the December 13,
2002 Contract, which gives the Purchaser the right to select
items from Defendant's list of available features. See id., Ex.
1 (December 13, 2002 Contract) at § 3(b) ("Unless previously
selected by Seller or a previous potential purchaser, Purchaser
shall have the right to select items from Seller's list of
available features to be provided by Seller in accordance with
the policy applicable thereto prescribed the Seller."). Plaintiff
contends that this addendum modified the Contract, eliminating
Mr. Davarya as a formal "Purchaser" and removing his obligations
thereunder, because the document was signed only by Defendant and
Mrs. Ghahremani indicating that Defendant was aware of and
consented to the modification. Compl. ¶ 8; see also id., Ex. 3
(September 3, 2003 Price Amendment) at 3 (only one, illegible
signature next to the relevant space for "Purchaser(s)").
Plaintiff's contention is without foundation: a plain review of
the document reveals that it does not purport to modify the
Contract in any way; rather, the document is a simple and
unambiguous recital of the options desired by the Purchasers.
There is simply no explicit provision dealing with the
modification of the "Purchasers" listed in the December 13, 2002
Contract. Even accepting as true Plaintiff's allegation that only
his wife signed the document, the Contract is not amended through
this action, as there is nothing to suggest nor is it alleged
that Plaintiff's wife was not authorized to sign the document on
behalf of the Purchasers. Given the plain, clear, and definite language of this addendum,
Plaintiff's claim that this document somehow altered the
underlying rights and responsibilities under the December 13,
2002 Contract is without foundation. See Dist. of Columbia v.
Washington Hosp. Ctr., 722 A.2d 332, 342 (D.C. 1988) ("Where the
language is clear and unambiguous, its plain language is relied
upon in determining the parties intent. Where the terms of the
document leave no room for doubt, the effect . . . can be
determined as a matter of law."); GLM P'ship v. Hartford Cas.
Ins. Co., 753 A.2d 995, 998 (D.C. 2000) (same).
The second and final addendum focused on by Plaintiff was a
"Price Restate Addendum" entered into by the parties on April 2,
2005. See Compl., Ex. 2 (April 2, 2005 Price Restate Addendum).
Notably, this addendum explicitly defines the "Purchaser" as
Plaintiff and Mr. Davarya. Id., Ex. 2 (April 2, 2005 Price
Restate Addendum) at 1. However, Plaintiff emphasizes that this
document somehow altered the rights and responsibilities of the
Purchasers under the Contract, thereby eliminating Mr. Davarya's
rights, obligations, and duties thereunder, because he was the
only signatory to the addendum. Id. ¶ 7; id., Ex. 2 (April 2,
2005 Price Restate Addendum) at 2 (Plaintiff signed in two
separate places, next to "Purchaser").
Once again, Plaintiff's argument is without any support. The
document does not purport to amend the identity of the
"Purchasers" of the Unit, and makes no such reference; rather,
the addendum modifies only the purchase price. See Compl., Ex.
2 (April 2, 2005 Price Restate Addendum). Indeed, the Price
Restate Addendum emphasizes that the parties wish to modify the
contract only "as hereinafter set forth"; the addendum then
states that the "Agreement is modified as follows," after which
the document contains language modifying only the purchase price,
not the identity of the "Purchasers." Id., Ex. 2 (April 2, 2005
Price Restate Addendum) at 2. The document further states:
This Addendum shall not alter, modify, or change in
any other respect the Agreement, and except as
modified herein, all of the terms and provisions of
the Agreement are hereby expressly ratified and
confirmed and shall remain in full force and effect.
Id. While it is true that Plaintiff signed the document in two
places, there is no indication whatsoever that this action
somehow deleted Mr. Davarya as a defined "Purchaser." Moreover,
given the fact that Plaintiff's wife, who is not a defined
"Purchaser," was the only individual to sign the September 3,
2003 Price Amendment an action which did not somehow eliminate
Plaintiff as a "Purchaser" it seems likely that Plaintiff's
decision to sign the document twice simply reflected that he was
signing the document once on behalf of himself and once on behalf
of Mr. Davarya, as authorized. Regardless, the plain language of
the April 2, 2005 Addendum evidences no intention of the parties
to make a change to the Contract's identified "Purchasers."
Accordingly, Plaintiff is unable to sustain a claim that the
written addendums to the Contract altered its language and
eliminated Mr. Davarya's explicit role in the agreement.
Second, Plaintiff's alternative argument that the oral
promises of Defendant's broker and the parties subsequent course
of dealings eliminated the express role provided Mr. Davarya is
also without merit. Importantly, Plaintiff's contention brings up
a new issue relevant to the Court's consideration whenever the
sale of real property, rather than the U.C.C.-governed sale of
commercial goods,*fn6 is at stake: the statute of frauds. In
the District of Columbia, "[t]he statute of frauds mandates that
certain agreements, including those concerning real estate, must
be in writing `to guard against perjury and protect against unfounded
and fraudulent claims.'" Railan v. Katyal, 766 A.2d 998, 1007
(D.C. 2001) (quoting Tauber v. Dist. of Columbia, 511 A.2d 23,
27 (D.C. 1986)); see Hackney v. Morelite Constr.,
418 A.2d 1062, 1065-66 (D.C. 1980) (recounting the history of the statute
of frauds); see also D.C. Code § 28-3502 (2001) ("An action may
not be brought . . . upon a contract or sale of real estate, of
any interest in or concerning it, . . . unless the agreement is
brought, or a memorandum or note thereof, is in writing. . . .").
The District of Columbia Court of Appeals has held that
subsequent oral modifications to a written real estate agreement
are unenforceable as contrary to the statute of frauds. See
Landow v. Georgetown-Inland West Corp., 454 A.2d 310, 313-14
(D.C. 1982). Plaintiff's attempt to circumvent the express
language in the Contract through an argument involving subsequent
oral modifications and course of dealing allegations appears to
be without merit.
However, "[t]here are several situations where courts may
refuse to allow the defendant to interpose a statute of frauds
defense even if it is properly raised": (1) where the defendant's
own fraud was responsible for the non-existence of the required
signed memorandum (equitable estoppel); (2) where the equitable
doctrine of part performance was applicable (promissory
estoppel); and (3) where the defendant has admitted the contract
(waiver). Railan, 766 A.2d at 1007-08 (quoting Hackney,
418 A.2d at 1066). There can be no waiver in this case, as Defendant
has not admitted the alleged modification, and because there is
an express, enforceable contract governing the relationship out
of which the promise emerged, there can be no assertion of
promissory estoppel. See Daisley v. Riggs Bank, N.A.,
372 F. Supp. 2d 61, 71 (D.D.C. 2005) (citing cases). With respect to equitable estoppel, "[a]n oral agreement to
purchase land is taken out of the Statute of Frauds only when the
purchaser has changed his position so materially that unless the
oral contract is enforced, fraud will result." Landow,
454 A.2d at 313-14 (citing cases). "Mere refusal to perform an oral
contract within the statute does not generally constitute such
fraud as to raise the estoppel." Id. at 314 (citation omitted).
Rather, "in order to effectively assert estoppel, the promisee
must be able to show that he has changed his position
substantially for the worse and that he has incurred unjust and
unconscionable injury." Id. (citing Williston on Contracts §
553, at 808 (3d ed. 1959)). In this case, Plaintiff's alleged
injuries do not rise to the required level to overcome the
statute of frauds. Plaintiff expended roughly $15,960.00 in his
quest to purchase the Unit, see Compl., Ex. 5 (June 10, 2005
Default Letter), all of which Defendant is willing to return,
id., for a condominium unit that he now admits is not for his
primary residence, but is solely for investment purposes, see
Compl. ¶¶ 13, 16-17. Cf. Landow, 454 A.2d at 314 (finding that
"[t]he buyer has failed to demonstrate sufficient damages
incurred in reliance on or in performance of the oral agreement
to estop appellee from asserting the Statute of Frauds" where
$150,000 in expenses had been incurred, of which roughly $50,000
was directly attributable to the oral agreement).
Even assuming arguendo that the statute of frauds did not
operate to bar Plaintiff's claim that subsequent oral promises or
the parties' course of dealing eliminated Mr. Davarya from the
explicit Contract, Plaintiff's attempt to substantiate his claim
through these avenues fails for multiple other reasons. First,
Section 22(a) bars all subsequent assignments or modifications of
the "Purchasers" of the Unit unless the prior written consent of
Defendant is obtained. See Compl., Ex. 1 (December 13, 2002
Contract) at § 22(a). Some District of Columbia courts have held that such clauses bar any subsequent oral modifications,
noting that "[c]ontracting parties may modify a written agreement
by subsequent oral communications, unless a clause bars such
modification." Hildreth Consulting Eng'rs v. Larry E. Knight,
Inc., 801 A.2d 967, 974 (D.C. 2002); see also Marlowe v.
Argentine Naval Comm'n, 808 F.2d 120, 123 (D.C. Cir. 1986)
(same); D.C. Code § 28:2-209(2) ("A signed agreement which
excludes modification or rescission except by a signed writing
cannot be otherwise modified or rescinded . . . . ."); but see
Daisley, 372 F. Supp. 2d at 70 n. 4 (quoting Puma v. Sullivan,
746 A.2d 871, 875 (D.C. 2000) ("a written contract may be
modified or rescinded by a subsequent oral agreement, even where
the contract contains express language prohibiting oral
modifications")); Clark v. Clark, 535 A.2d 872, 876 (D.C.
1987); (same); Nickel v. Scott, 59 A.2d 206, 207 (D.C. 1948)
(same); cf. Martinsville Nylon Employees Council Corp. v. Nat'l
Labor Relations Bd., 969 F.2d 1263, 1267 (D.C. Cir. 1992)
(noting the distinction between the common law rule, allowing
subsequent oral modification despite clause, and the UCC rules,
making "no-oral-modification clauses" binding, but stating "[w]e
need not finally choose today" between the options). As such, it
is unclear whether the presence of Section 22(a) alone would be
sufficient to bar Plaintiff's reliance on subsequent oral
communications as a matter of District of Columbia law.
Importantly, however, Section 22(a) interacts with another
section of the Contract Section 22(d) which provides that
"the final and entire agreement between the parties hereto"
consists of only "[t]his Agreement and its addenda, if any," and
cannot contain any "terms, conditions, statements, warranties, or
representations, oral or written, not herein contained." See
Compl., Ex. 1 (December 13, 2002 Contract) at § 22(d). The
combination of Section 22(a) and Section 22(d) undermines
Plaintiff's attempted avenue of redress because, as the D.C.
Circuit explained in Martinsville Nylon Employees Council,
Whatever the ultimate merits of the common law rule
denying effect to the no-oral-modifications clause,
by including the entire agreement clause the parties
here made clear beyond doubt their intention not to
be bound to any informal arrangement to which they
might voluntarily adhere during the term of their
CBA. In effect, each told the other: "If you want
anything else, you'll have to get it in writing," and
to this both agreed.
* * * * * * * * * * * *
The additional requirement in this case that any
further agreements be in writing indicates that the
parties anticipated the possibility of entering into
further agreements and specifically provided a
procedure for incorporating them into their CBA
regardless of whether they merely go beyond the terms
of the written contract or actually conflict with it.
Again, we see no policy reason to ignore the plain
intent of the parties to limit their contractual
liability to those agreements to which they have
affixed their signatures.
Martinsville Nylon Employees Council, 969 F.2d at 1268-69.
Accordingly, in this instance, the "no oral modifications" clause
of Section 22(a) and the "entire agreement" clause of Section
22(d) forestall any alteration to the Contract through oral
modifications or subsequent performance. Plaintiff's claim of
redress pursuant to these avenues is therefore without merit.
Second, even assuming arguendo that neither the statute of
frauds nor the "no oral modifications"/"entire agreement" clauses
barred consideration of oral promises and subsequent performance,
to the extent that Plaintiff is attempting to rely on a course of
performance/course of dealing argument to support his alteration
theory, his claim is without foundation. Here, little to no
"performance" actually occurred under the Contract, as Defendant
found that Plaintiff had defaulted in his pre-settlement
obligations and the Unit was never exchanged pursuant to the
terms of the deal. Faced with a similar situation, the D.C.
Circuit in Marlowe rejected a party's claims of subsequent
modifications, finding that [h]ere at best there was a course of dealing, which
is not only of weaker effect than a course of
performance, see D.C. Code Ann. §§ 28:2-208(2),
28:1-205 (1981), but does not create the same strong
equities as actual performance and repeated
acceptance over a period of time.
Marlowe, 808 F.2d at 124 (citing D.C. Code Ann. § 28:2-208(3)
(1981) (mentioning course of performance, but not course of
dealing, as relevant to show waiver).
In sum, the Court finds that Plaintiff may not substantiate his
claims upon an assertion that the parties' subsequent oral
promises or course of performance somehow altered the
relationships explicitly set out in the December 13, 2002
Contract. Rather, such an argument is barred by the applicable
statute of frauds in the real estate context, the interaction
between the Contract's "no oral agreements"/"entire agreement"
clauses, and the undisputed fact that no "performance" actually
occurred. The terms of the December 13, 2002 Contract including
the provisions governing the rights, duties, and obligations of
all listed "Purchasers" continued unaltered throughout the
course of the parties' relationship, and therefore Plaintiff's
four separate breaches of the Contract, described in Section
III(A) supra, cannot be excused.
Plaintiff's final argument attempting to excuse his various
breaches of the Contract is his contention that the Contract is
an adhesion contract and the various provisions of the Contract
are unconscionable. See Pl.'s Opp'n at 3-6, 7, 11-16. As such,
Plaintiff seeks to have certain "unconscionable" provisions
stricken from the Contract; these provisions include Section 4(a)
(vesting equitable title in the Seller until the delivery of the
deed), Section 15 (if Purchaser in his default, he agrees that
his deposit, along with the interest earned, is "forfeited as
liquidated damages" but if Seller defaults, Purchaser gets back
his deposit "as Purchaser's sole damages"), and Section 22(c) (forbidding a Purchaser from recording a lis
pendens). Id. According to Plaintiff, these three provisions
ensure that the December 13, 2002, as presently constituted,
lacks mutuality of obligation or consideration and therefore "is
not a contract that this Court should consider enforcing." Id.
At least three problems undermine Plaintiff's
"unconscionability" argument, even assuming arguendo that the
December 13, 2002 Contract was actually an unconscionable
contract of adhesion. First, Section 22(e) of the Contract
This Agreement is not severable except with the prior
written consent of Seller. If any part of this
Agreement is unenforceable or severed for any reason,
then at Seller's election this Agreement may be
terminated upon written notice to Purchaser and upon
such termination Seller shall return Purchaser's
Deposition and any other monies paid Seller hereunder
and not then expended in connection with the
Property, in which event the parties hereto shall be
relieved of any and all further liability hereunder.
Id., Ex. 1 (December 13, 2002 Contract) at § 22(e).
Accordingly, even if the provisions cited by Plaintiff were
considered unconscionable as a matter of law, Section 22(e)
prevents those provisions from being severed and the rest of the
Contract being enforced. Rather, by the parties' own agreement,
the whole Contract would be null and void. Plaintiff's Complaint
depends upon an enforceable agreement between the parties. With
the December 13, 2002 Contract terminated, Plaintiff has no
agreement under which to require Defendant to hand over ownership
of the Unit.
Second, Plaintiff and Mr. Davarya breached four provisions of
the Contract Section 4, Section 22(h), Section 22(a), and
Section 22(c) of the Contract. However, Plaintiff only explicitly
identifies Section 4 and Section 22(c) as being unconscionable.
Therefore, even assuming that the two identified provisions
actually are unconscionable and could somehow be stricken from
the Contract while effectuating its other provisions, Plaintiff
would still have two unexcused breaches entitling Defendant to termination of the
deal. Plaintiff's attempt to gain ownership of the Unit via his
Complaint would then fail due to his own breaches of the
Third, accepting Plaintiff's argument as correct that the
Contract lacks mutuality of obligation or consideration because
it eliminates Plaintiff's remedies upon a breach by Defendant
then the parties did not enter into a valid contract, and there
is no contract for this Court to specifically enforce. See
Pl.'s Opp'n at 3-5. Under most general principles of contract
law, an express contract requires an offer and an acceptance, and
must be supported by consideration. See Virtual Def. and Dev.
Int'l, Inc. v. Republic of Moldava, 133 F. Supp. 2d 9, 16-17
(D.D.C. 2001); Goozh v. Capitol Souvenir Co., Inc.,
462 A.2d 1140, 1142 n. 3 (D.C. 1983) (citations omitted). Indeed,
consideration or mutuality of obligation is a requirement for the
formation of a bilateral contract. See King v. Indus. Bank of
Washington, 474 A.2d 151, 156 (D.C. 1984) (citing cases);
Restatement (Second) of Contracts § 17(1). When there is no
consideration or mutuality of obligation, courts within the
District of Columbia have held that equity cannot be invoked to
enforce a contract that lacks consideration. Cf. Flack v.
Lester, 417 A.2d 393, 400 (D.C. 1980); Drazin v. Am. Oil Co.,
395 A.2d 32, 34 & n. 3 (D.C. 1978). Therefore, if the Court takes
Plaintiff's allegation that the Contract lacks mutuality of
obligation and consideration on its face, such that this "is not
a contract that this Court should consider enforcing," Pl.'s
Opp'n at 5, it is clear that the Contract lacked an essential
element required for both contract formation and the remedy of
specific performance. The Contract would therefore be void and
unenforceable by any party. With an unenforceable Contract,
Plaintiff would be left with no avenue of redress based on the
present Complaint against Defendant. Accordingly, an argument
revolving around unconscionability is insufficient to excuse all
of Plaintiff's breaches and even if true leaves Plaintiff without an avenue of legal redress to gain title to the
Unit as demanded. As such, the claims contained within
Plaintiff's Complaint are without foundation.
For the reasons set forth above, the Court shall grant
Defendant's Motion to Dismiss and Defendant's Motion to Strike
Notice of Pendency of Action (Lis Pendens) and to Quash the
Encumbrance Created By Its Filing.
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