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Clark v. Route

July 3, 2008


Appeal from the Superior Court of the District of Columbia (CAB9376-04) (Hon. Judith E. Retchin, Trial Judge).

The opinion of the court was delivered by: Belson, Senior Judge

Submitted January 17, 2008

Before REID and THOMPSON, Associate Judges, and BELSON, Senior Judge.

This case arises out of a contract to purchase residential real estate in the District of Columbia. Appellant Toxi Clark seeks reversal of the trial court's order entering judgment denying her specific performance of the contract pursuant to which she had agreed to purchase real property at 1228 Trinidad Avenue, Northeast, from appellees James and Joyce Route. We affirm.


The contract between the parties required the sellers to make thirteen "repairs/replacement," including "waterproof[ing] the basement w[ith] warranty, with all repairs to be approved by a licensed professional." The parties took part in a walk-through inspection of the premises two days before the agreed-upon settlement date of November 3, 2004. The trial court found that sellers had completed all the repairs and replacements required by the contract except for the above-quoted provision that related to waterproofing.

As to waterproofing, the seller, Mr. Route, stated when the walk-through inspection reached the basement that he had had two waterproofing contractors come in, and both said that the basement did not need waterproofing. When Mr. Route so informed Ms. Clark during the walk-through, she said "see you in court," terminated the conversation, walked out of the premises, and never spoke with the Routes again about the transaction. Ms. Clark then contacted the settlement company and postponed indefinitely the settlement scheduled for November 3, 2004. Before that date she also telephoned the officer of the Washington Savings Bank of Annapolis, Md., to whom she had applied for the loan and told him that there were "problems with the seller," and as a result the bank put her loan application in "limbo."

Ms. Clark testified that she could not recall whether she had received a loan commitment letter, and could not produce one at trial. According to a bank officer, however, Ms. Clark's loan application had been reviewed by the bank's underwriting section which approved it for a closing on November 3, 2004. Mr. Route stated at trial that he "was going to show up at settlement to go to settlement," but acknowledged that he had not planned to provide a waterproofing certificate, and was not going to have waterproofing performed.


Ms. Clark filed suit on December 10, 2004. At pretrial, she limited her claim to specific performance, and sought no money damages. In denying Ms. Clark's motion for summary judgment, the trial court observed that "there may be a factual dispute whether plaintiff was ready, willing and able to proceed with settlement."*fn1

After the close of evidence, the trial court stated that, aside from one inconsistency, she had "believe[d] everyone who testified here." The inconsistency concerned what Ms. Clark said when the walk-through inspection focused on the waterproofing. In that regard, the trial court did not credit Ms. Clark's version of the conversation, but found that she did in fact say "see you in court" at that juncture.

Following completion of the testimony and the submission of legal memoranda by the parties, the court made written findings of fact and conclusions of law. The findings of fact were essentially the same as set forth in our summary of the facts above.*fn2 Most significant were the findings that "plaintiff refused to proceed to settlement unless defendant waterproofed the basement and gave her a warranty," that "defendant phoned the settlement company on the date of the settlement and was informed that plaintiff had postponed settlement indefinitely," and that "[a]lthough plaintiff did not have financing in place for a settlement on November 3, 2004, it is likely she would have been approved for a loan had she directed the loan officer to proceed with her application."

The court's determinative conclusions of law underlying its denial of specific performance were that "[b]y indefinitely postponing the settlement date of November 3, 2004, plaintiff was unilaterally modifying the contract comparable to the modification of contract in Ferguson [ v. Caspar, 359 A.2d 17 (D.C. 1976)]"; that "per Ferguson, 'plaintiff 5 could have refused to consummate settlement and then have brought an action against the seller for such damages as (she) sustained. Alternatively, (plaintiff) could have elected to complete the settlement . . . (and) could have sued to recover from the seller such damages as (she) may have sustained by reason of (defendant's failure to waterproof the basement and provide a warranty)'"; that "plaintiff's attempt to distinguish Ferguson is unpersuasive especially since the plaintiff in Ferguson did more to demonstrate readiness to proceed with settlement than plaintiff who unilaterally postponed the settlement"; and that "based on the ...

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