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Johnston v. Hundley

January 28, 2010

JAMES W. JOHNSTON, APPELLANT,
v.
HERBERT HUNDLEY, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CAB-1891-07) (Hon. Linda D. Turner, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Argued December 11, 2009

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and FARRELL, Senior Judge.

In this appeal, we are asked to determine whether the trial court erred in allocating sales proceeds and rental revenues and awarding damages in connection with the partition (by sale) of a residential property that had been jointly owned by appellant James Johnston and appellee Herbert Hundley. We affirm in part, reverse in part, and remand for the trial court to make further determinations consistent with this opinion.

I. Background

Johnston and Hundley purchased a house at 1957 Biltmore Street, N.W. ("the property"), as joint tenants in 2002, and they moved into the house in 2003 after renovating the property. They refinanced the house in December 2006, taking out a mortgage loan of $2,350,000 and drawing out cash equity of approximately $181,000, which they deposited into a joint bank account. After an altercation between the two men in February 2007, Johnston sought and obtained ex parte a civil protection order ("CPO") against Hundley from the Superior Court Domestic Violence Unit. The court ordered Hundley, who at the time was out of the jurisdiction on business, to vacate the property by March 5. On the same day the CPO was issued, Johnstonliquidated the parties' joint bank account (which the court found held over $160,000 at the time).

On March 14, 2007, Hundley filed an action for partition of the property by sale. After granting Johnston's motion to consolidate the partition action with the domestic-violence case, the court (the Honorable Linda Turner) denied Hundley's request for the appointment of a trustee to sell the property. Instead, without a formal order of partition, the court permitted Johnston to remain the sole occupant of the house and to attempt to sell the property himself, upon his representation that he would assume Hundley's share of the monthly mortgage payments.*fn1

By late 2007, the property still had not been sold. Hundley filed for summary judgment, requesting that the court order a partition by sale. The court granted the motion on December 13, 2007, and directed the parties to agree on a sale price, to sell the property "joint[ly] . . . in a timely and expeditious manner," and to "comply with the reasonable requests of the real estate professionals through whom the property is being marketed." In the meantime, the court scheduled evidentiary hearings to determine whether Hundley was entitled to a portion of the rents from three portions of the property -- an English basement, a "junior suite," and a two-car garage -- and, if so, whether there should be any offset by expenses associated with renting the spaces; whether Hundley was entitled to recover from Johnston half of the amount that Johnston withdrew from the joint account (or whether, instead, some portion of Johnston's share of the money could be retained by Johnston and applied toward the cost of improvements made to the property to ready it for sale); and what amount Hundley would be entitled to recover upon the eventual sale of the property. Those hearings took place on January 14, January 29, January 31, February 21, and March 19, 2008. The house sold for $2,550,000 on April 30, 2008, netting $40,727.02 in excess of the mortgage-loan balance, and realtor and settlement costs.

On August 4, 2008, the court issued an order in which it made several findings of fact, allocated the various monies, and assessed damages against Johnston for the delay in sale of the property. Specifically, in pertinent part, in addition to confirming an earlier order that divided the actual profit ($40,727.02) from the sale of the property evenly between the parties, the August 4, 2008 order directed Johnston to pay to Hundley $85,397.15, representing Hundley's share of funds from the joint account (one half of $161,102 plus interest); required Johnston to pay Hundley an additional $39,190, representing half of the net rental revenues from the property (including imputed rents from a portion of the property) during 2007 and 2008; resolved Johnston's claim for credits for the cost of improvements he made to the property; and, because the court found that Johnston did not market the property with adequate diligence in a declining real-estate market, awarded Hundley $200,000, representing his share of the amount by which the market value of the property (and thus the parties' potential profit) had declined by the time of sale.*fn2

II. Discussion

Johnston takes issue with several aspects of the court's ruling. We address the claims in turn, in an order that obviates the need to discuss some of them. We proceed under the principle that when a case "was tried without a jury, the court may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." D.C. Code § 17-305 (a) (2001).

A. Award of Damages Due to Delay

Johnston argues that the trial court had no authority to assess damages against him in the context of a partition action, and that, in any event, the court had no basis in the record to find either that he dragged his feet in selling the property or that the property's market value declined by over $400,000 from the time he undertook to sell the property himself (in March 2007), to the date when the property was actually sold (in April 2008).

Hundley sought partition of the property pursuant to D.C. Code § 16-2901 (2001) (providing that "[t]he Superior Court . . . may decree a partition of lands, tenements, or hereditaments on the complaint of a tenant in common . . . or of a joint tenant"). D.C. Code § 16-2901 (a). When a "property can not be divided without loss or injury to the parties interested, the court may decree a sale thereof and a division of the money arising from the sale among the parties, according to their respective rights." Id. As Johnston argues, by its terms section 16-2901 does not authorize the court to award damages (i.e., monies in excess of the "money arising from the sale"). However, partition is "subject to equitable considerations," Carter v. Carter, 516 A.2d 917, 920 (D.C. 1986) (quoting Cobb v. Gilmer, 365 F.2d 931, 933 (D.C. Cir. 1966)) (internal punctuation and quotation marks omitted), and, as in any civil action, the trial court may exercise its inherent equitable powers. See Hessey v. Burden, 615 A.2d 562, 571 (D.C. 1992) (noting that "[t]he judicial policy of preventing duplicitous litigation has been cited by this court as a reason for the ...


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