Appeal from the Superior Court of the District of Columbia (CA-3299-99) (Hon. Stephanie Duncan-Peters, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before GLICKMAN, KRAMER and FISHER, Associate Judges.
The appellant, Richard Jenkins, is challenging the trial court's verdict following a non-jury trial holding that he had breached his fiduciary duty as a real estate agent and awarding damages to William Strauss in the amount of $24,842.97. Jenkins makes several claims of error on appeal. We conclude that none warrants reversal of the trial court's decision and affirm.
Hiring Jenkins as a Real Estate Agent
In December 1996, William Strauss, about eighty years old and suffering from Alzheimer's disease, conferred power of attorney on his younger brother Benjamin Strauss, who was then about seventy-six years old.*fn1 In 1998, as the disease progressed, William moved from his home at 4247 Nash Street in Northeast Washington to a nursing facility. Thus, Benjamin determined that his brother's home, which had no mortgage encumbering it and was in "very good condition," should be sold to fund his nursing home care. Toward this end, in January 1998, Benjamin, on behalf of his brother, sought the assistance of Richard Jenkins, with whom he had been casually acquainted through their church for many years. Jenkins was a long-practicing real estate agent and the owner of Jenkins Realty. He agreed to represent the brothers in the sale of the Nash Street house.
Terms of Sale Dictated by Benjamin and the Listing Agreement
The house was appraised at $136,000 and Benjamin testified that he made clear to Jenkins that he "wanted at least $120,000 out of the house . . . in a lump sum," that is, in cash. He also testified that he explained to Jenkins that this was because of the need to cover his brother's nursing home expenses and because both brothers were of advanced age. Benjamin testified that although he "gave permission" to Jenkins to sell the Nash Street house, Jenkins never presented him with any written listing agreement to sign, testimony corroborated by his wife, who was present at the time of the original discussion. Benjamin also testified that while he knew that Jenkins would be entitled to a commission for the sale, he was not told what it would be. William Evans, the real estate expert called in the Strausses' case, testified that the standard of practice is for the real estate agent to prepare a written listing agreement.
Jenkins testified with respect to the listing agreement, at first claiming that he was unable to locate a copy of the listing agreement for the Nash Street house, although asserting, "I did have one." After Evans' testimony, while testifying in his own case, Jenkins had an amplified recollection of the preparation of the listing agreement. He testified that Benjamin had approached him and told him that he was interested in selling his brother's house, that he met Benjamin and his wife at William's house after church, and that Benjamin said he wanted around $120,000 to $125,000 for the house. Indeed, Jenkins even recalled that he was carrying his "old briefcase with him," and that he "wrote up a listing." He testified, however, that he could not recall whether or not he had actually given Benjamin a copy of the listing agreement.
On cross-examination, Jenkins' testimony with respect to the listing agreement changed considerably. When asked whether there was anything in the listing agreement that would have provided that the seller would pay certain creditors of the purchaser, or that the seller would provide "six percent help to whoever the purchaser is toward the purchase cost," he was unable to recall. At a later point during this cross-examination, his recollection with respect to his writing up a listing agreement shifted yet again, and he testified that while it was his general practice to write up a listing, "I don't know whether I did it that Sunday [presumably when he met Benjamin at William's home] or not."
Within a few months, Jenkins secured a buyer, Jacqueline Brooks, who offered to purchase the property for $130,000, an offer that Benjamin accepted on behalf of William. Benjamin testified that not only had Jenkins never presented him with a listing agreement, but he had also never seen what was produced at trial as the sales contract for the property until after the sale, when the attorney that he had hired to look into this matter showed it to him.
Like the listing agreement, Jenkins was unable to produce the sales contract used as the basis for the settlement and testified that he was unsure that he had ever given a copy of it to Benjamin. To explain his inability to produce either the listing agreement or the sales contract, Jenkins asserted that before this lawsuit was filed, all of his documents and other papers had been destroyed by tenants living in one of his rental properties. Indeed, he testified that they "threw all [his] records away, threw everything in the house out." In its order, the trial court specifically rejected that testimony, noting:
The Court sees no reason why tenants would destroy a landlord's personal records and rejects this bald assertion as incredible. Additionally, the Court notes that the manner in which Mr. Jenkins delivered this statement demonstrated his own lack of belief in these words.
While no listing agreement was ever produced, a copy of the sales contract was located in the files of CV Title Group, a real estate title and settlement company located in Silver Spring, Maryland, that had handled the settlement. Following Jenkins' original testimony, Evans, the Strausses' expert, testified that the standard of practice in the real estate business is that the seller (or the person holding the seller's power of attorney) must sign a sales contract. As he explained, it is generally the agent who will prepare the sales contract and who has the responsibility to explain the terms and conditions of the sale to the seller. The sales contract, dated April 10, 1998, bears what purports to be the signatures of the buyer, Jacqueline Brooks, as well as of William Strauss and Benjamin Strauss. "Jenkins Realty" was listed as the real estate agent and Jenkins admitted that "Jenkins Realty" was synonymous with him.
Benjamin testified that the signatures of himself and his brother at the bottom of this contract were invalid. As he explained with respect to William's signature, "First thing, he was in a [nursing] home at that time. And also, he doesn't write his name in that manner right there. He doesn't write it W-I-L-L-I-A-M. He writes his name W-m. D. Strauss . . . . That's not his signature at all." Benjamin also testified that he took no papers to William for his signature. As he put it, "My brother was not able to sign anything. He was in a home and he had Alzheimer's a few years. So, I wouldn't take any papers to him for him to sign anything." With respect to his own signature, he testified that it was not his signature either, clarifying, "I don't make H's that way. I don't make my J's that way. And I don't make my N's . . . . That's not my signature."
In addition to what Evans testified were standard terms for such a sales contract, the contract included several terms that he described as not being standard. First, the contract provided, "Seller agrees to pay Purchaser[']s accounts with Sears, Wards and Norwest in full." Benjamin testified that he never agreed to this provision. Indeed, as Evans testified, the provision for payment of Brooks' outstanding accounts was not in accord with real estate standards, particularly since it was open ended and had no cap on the amount of money the seller might have to pay. Under this provision, Evans explained, Brooks could have incurred substantial additional obligations to Sears, Wards and Norwest between the date the sales contract was signed (April 10, 1998) and the date of settlement (May 26, 1998), and William, despite his costly medical needs, would have had to pay them from the proceeds of the sale. In fact, he ultimately did pay these accounts from the proceeds. The sales agreement also included a term that the seller "agrees to pay 6% of sales price toward costs." Benjamin testified that he never would have agreed to take money from the proceeds of the sale of William's home to pay Brooks' ...