Appeal from the Superior Court of the District of Columbia. (CA2368-03). (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Schwelb, Associate Judge
Argued September 13, 2005
Before SCHWELB and RUIZ, Associate Judges, and STEADMAN, Senior Judge.
In this action brought pursuant to the Tenant Opportunity to Purchase Act, D.C. Code §§ 42-3404.02 et seq. (2001) ("TOPA" or "the Act"), Elizabeth Allman, joined by Steve Schwat, appeals from an order of the trial court granting a motion for summary judgment in favor of defendants Roy D. Snyder, Jr., and Todd W. Bissey. Mr. Snyder is the owner of a four-unit rental accommodation at 129 Fourth Street, S.E., Washington, D.C., and has offered it for sale. Ms. Allman, one of the tenants at the Fourth Street property, is seeking to purchase the property with the assistance of Mr. Schwat. Mr. Bissey is a third party who has made an offer to purchase the property; he also claims to stand in the shoes of former tenants Lisa and Patrick McGlinchey, who assigned their TOPA rights to him. Ms. Allman's principal contentions, both in the trial court and on appeal, are (1) that, as a third party purchaser, Mr. Bissey could not become a tenant by assignment; (2) that any rights that Mr. Bissey may have had as the McGlincheys' assignee lapsed when the McGlincheys moved out of the property and ceased to be tenants; and (3) that having matched Mr. Bissey's initial offer as a third party purchaser, Ms. Allman is entitled, under TOPA, to purchase the property.
Ms. Allman all but acknowledges in her brief on appeal, accurately in our view, that her substantive position -- that Mr. Bissey does not stand in the shoes of the tenants who assigned their rights to him -- is contrary to the unambiguous language of the statute. Accordingly, and because Ms. Allman's remaining contentions are likewise lacking in merit, we affirm.
On September 11, 2001, Mr. Snyder was appointed by the Probate Division of the Superior Court to be the personal representative of the estate of Jeannine B. Ulmer, deceased. In his capacity as personal representative, Mr. Snyder was charged with the responsibility for selling the assets of the estate, including the Fourth Street property, in order to satisfy certain liabilities of the estate.
On or about December 1, 2002, Mr. Snyder entered into a contract with Mr. Bissey for the sale of the property, as is, for a price of $640,000, all cash. This contract, as all parties recognized, was subject to the tenants' rights under TOPA. On December 5, 2002, in conformity with the requirements of the Act, Mr. Snyder issued to all of the then-current tenants an Offer of Sale and Tenant's Opportunity to Purchase, which was received on December 7. Mr. Snyder also provided the tenants with a copy of his contract with Mr. Bissey.
The Act provides for a fifteen-day period after receipt during which the tenants may make a joint offer to purchase the property. See D.C. Code § 42-3404.10; Medrano v. Osterman, __ A.2d __, No. 04-CV-890, slip. op. at 3 & n.2 (D.C. Oct. 20, 2005). After the fifteen days elapsed and no joint offer had been made, Ms. Allman submitted to Mr. Snyder a Statement of Interest in purchasing the property in her capacity as an individual tenant.
On December 28, 2002, the McGlincheys, who were then residing at the Fourth Street property, assigned their rights as tenants under the Act to Mr. Bissey. On the same day, armed with this assignment, Mr. Bissey submitted to Mr. Snyder a new Statement of Interest in purchasing the property. There were no negotiations between Ms. Allman and Mr. Snyder during the ninety-day negotiation period prescribed by the statute. See D.C. Code § 42-3404.10 (2); Medrano, __ A.2d at __, slip. op. at 1-2 (describing statutory scheme); Coburn v. Heggestad, 817 A.2d 813, 815 & n.4 (D.C. 2003).
On March 20, 2003, Ms. Allman entered into a contract with Mr. Schwat to assist her in purchasing the property. Mr. Schwat and Ms. Allman formed a limited liability company in which Mr. Schwat owned 90% of the assets. On March 22, 2003, two days before the negotiation period was to expire, Ms. Allman submitted an offer to purchase the property with a contract price of $641,000, i.e., $1,000 more than Mr. Bissey had offered. On March 25, Mr. Bissey, relying on the McGlincheys' assignment, resubmitted his previous purchase contract to Mr. Snyder, this time in his newly acquired capacity as a tenant (or, more precisely, as the assignee of tenants). On the following day, Mr. Snyder accepted Mr. Bissey's offer and informed Ms. Allman that her offer had been rejected.
On March 28, 2003, Ms. Allman filed this action against Mr. Snyder, alleging that his rejection of her offer violated her rights as a tenant and was contrary to TOPA. Ms. Allman asked the court to award her injunctive and declaratory relief.*fn1 Mr. Bissey was permitted to intervene in the action as a defendant. On April 18, 2003, Mr. Snyder filed the first of two motions for summary judgment, contending that the complaint failed to state a claim upon which relief could be granted. In a written order issued on September 2, 2003, the trial judge denied the motion on the ground that Mr. Snyder had failed to engage in good faith negotiations with Ms. Allman during the statutory ninety-day negotiation period. Specifically, the judge wrote: "What is not clear is why there was no effort by the owner to negotiate with the plaintiff, who actually lived in the building, to allow her to make her offer the more attractive one."
Three weeks after the denial of his first motion for summary judgment, Mr. Snyder's counsel wrote a letter to the attorneys for Ms. Allman and Mr. Bissey in which he advised them that Mr. Snyder will accept amendments to your client's previous offers. Since time is of the essence to the completion of the administration of the Ulmer estate, and because the closing dates proposed by each offeror in his/her original offer has long since passed, each party should propose a new closing date in addition to any other modifications of her/his original offer she/he wishes to make.
In response to this letter, Mr. Bissey promptly submitted an amended offer. Ms. Allman, however, refused to participate in further negotiations. She asserted that Mr. Bissey was not a tenant, that his assignment from Mr. and Mrs. McGlinchey had lapsed because the McGlincheys had vacated the property and were no longer tenants, and that Mr. Snyder was therefore legally required, in conformity with TOPA, to sell the property to her. Disagreeing with Ms. Allman's position, Mr. Snyder accepted Mr. Bissey's amended offer, and on November 19, 2003, he filed a second motion for summary judgment.*fn2
On April 26, 2004, in a seven-page written order, the trial judge granted Mr. Snyder's second motion for summary judgment. The judge wrote, in pertinent part, as follows:
Defendant Bissey qualified as a tenant in the Property under TOPA by virtue of the assignment of the McGlinchey tenants' rights by document dated December 28, 2002, in accordance with D.C. Code §§ 42-3404.06, notwithstanding the fact that the McGlinchey tenants vacated the property on April 30, 2003. . . . TOPA makes no distinction between an actual tenant and a tenant by assignment, even if that assignment is to the third-party purchaser . . . . Defendant Snyder was entitled under §§ 42-3404.06 and 3404.10(2)(C) to accept either tenant Allman's offer or tenant Bissey's offer to purchase without liability to the other tenant.
(Paragraph numbers omitted.) The judge explained that the concern that had led to his denial of the original motion for summary judgment -- specifically, whether the seller had negotiated in good faith with Ms. Allman -- had been removed from the case by Mr. Snyder's subsequent invitation, ...