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Etdh Associates v. Waterfall Ventures


July 1, 2010


Appeal from the Superior Court of the District of Columbia. (CA-5410-01) (Hon. Herbert B. Dixon, Jr., Trial Judge).

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

Argued May 9, 2007

Before RUIZ and FISHER, Associate Judges, and NEBEKER, Senior Judge. Partial opinion for the court by Associate Judge RUIZ at p. 1.

Partial dissenting opinion by Associate Judge RUIZ at p. 19.

Partial opinion for the court by Associate Judge FISHER, in which Senior Judge NEBEKER joins, at p. 28.

Appellants, ETDH Associates ("ETDH") and 6425 14th Street, N.W., LLC ("LLC"), for the second time appeal the trial court's judgment in favor of appellee, Waterfall Ventures, LLC ("Waterfall"), which enforced a lien for delinquent water and sewer charges and calculated the overdue principal to be $101,295.29, with interest of one percent compounded monthly (which as of the time of trial in 2004 nearly equaled the principal amount, and continues to accrue), and awarded $84,708.88 for appellee's attorney's fees.*fn1 Per sections I. and II. A-D of Judge Ruiz's opinion, we hold that the lien for water and sewer services is enforceable against appellants, that attorney's fees are recoverable pursuant to D.C. Code § 34-2407.02 (a), and that the trial court did not err, either in finding that the required notice was given to appellant before the filing of the appellee's complaint, or in determining the amount of attorney's fees due. Judge Fisher files an opinion with respect to the amount of the lien, in which Judge Nebeker concurs. Thus, Part I through Part II. D of Judge Ruiz's opinion and the opinion of Judge Fisher together constitute the opinion of the court, affirming the judgment of the trial court. Judge Ruiz has filed a partial dissent, and would remand the case for recalculation of the principal amount due on the lien.


The water and sewer fees at issue relate to an apartment building that had been abandoned, located at 6425 14th Street, N.W. Appellant ETDH became the record owner of the property in 1979. On July 8, 1983, the District of Columbia filed a "Certificate of Delinquent Water/Sewer Service Charges" with the Recorder of Deeds based on unpaid water and sewer services provided to the property in the amount of $6,384.22. The certificate, however, erroneously listed Procenko Real Estate, the property's management company, as the record owner.

On January 16, 1985, the District of Columbia held a tax sale for the property to recover unpaid property taxes. See District of Columbia v. Mayhew, 601 A.2d 37, 40 (D.C. 1991). When no one bid on the property at the tax sale, the District purchased the property, and on June 3, 1988, issued itself a tax deed and took possession of the building. Id. This court, however, voided the tax sale and deed because the District had failed to provide adequate notice of the tax sale to ETDH, the owner of record.Id. at 45. Pursuant to our decision, the District subsequently deeded the property back to ETDH by a "Deed of Correction," dated October 12, 1993.

On January 6, 1999, the District of Columbia Water and Sewer Authority ("WASA")*fn2 assigned the lien against the property based on the outstanding water and sewer charges to Breen Capital Investment Corporation ("BCIC"). The property again accumulated unpaid property taxes, and the District held a tax sale and issued a tax deed on October 5, 2000, to appellant 6425 14th Street, N.W., LLC. After LLC paid the overdue real property taxes, the tax deed was recorded on October 12, 2000.*fn3

Although the property tax bill was satisfied, the delinquent water and sewer charges remained unpaid. On July 19, 2001, BCIC, as assignee of the water and sewer lien, filed a complaint in Superior Court against appellants to determine the amount due for the delinquent water and sewer charges, and for forfeiture of the property to collect the amount secured by the lien, plus attorney's fees.*fn4 After filing suit, BCIC assigned the lien to appellee, Waterfall, on June 27, 2002; Waterfall was substituted as plaintiff in the trial court.

On September 7, 2002, the trial court granted summary judgment to Waterfall, and determined that the amount of the water and sewer lien was $175,556.43. Appellants appealed, and on October 22, 2003, we vacated the summary judgment and remanded the case for the trial court to reconsider three issues:

(1) [W]hether there is an outstanding water and sewer lien relating to the premises located at 6425 14th St., N.W., for which 6425 14th St., N.W., LLC is responsible.

(2) If such a lien exists, what is the outstanding amount of the lien, the interest, and the penalties, and how were those sums calculated.

(3) Whether [Waterfall] is entitled to attorney's fees or costs, and if so, what is the basis for those fees (e.g., statutory, contractual, or other) and the amount that should be awarded (with a specification as to how any such sums were calculated).

ETDH Assocs., No. 02-CV-1172, order at 3-4.

On remand, the trial court held a hearing and, in an order issued on April 15, 2004, found that there was a water and sewer lien on the property "for which the record owners, including 6425 14th Street LLC are responsible,"*fn5 and that the assignments of the lien from WASA to BCIC and from BCIC to Waterfall had been recorded. The court found that Waterfall could recover fees and costs under D.C. Code §§ 34-2407.02 (a) and 47-1403.4 (h) (2001), but did not determine the amount of the lien or of the fees and costs at that time. On October 11, 2005, after having heard testimony and reviewed documents concerning the water and sewer account for the property, the trial court redetermined the amount of the lien for water and sewer services from the $175,556.43 it had previously determined (as of September 2002), to $101,295.29 in principal as of that date, plus interest of one percent compounded monthly, for a total of $193,168.05 as of May 2004 (with continuing interest compounding monthly at 1%).*fn6 The trial court also concluded that Waterfall was entitled to attorney's fees in the amount of $84,708.88.

Appellants challenge the trial court's judgment, arguing that the trial court erred in (1) finding them liable on the lien, (2) calculating the lien amount, and (3) awarding attorney's fees to appellee. The parties before this court are the owners of the property (appellants ETDH and its sole partner, 6425 14th Street, N.W., LLC), and the lien holder (appellee Waterfall, BCIC's assignee).


A. WASA's Authority to Sell and Assign the Lien

Appellants first argue that WASA lacks the authority to sell the lien for delinquent water and sewer charges. As a result, according to appellants, WASA's assignment of the lien to BCIC was invalid, and BCIC had no interest in the delinquent water and sewer charges on the property that it purported to assign to Waterfall. We disagree that WASA's assignment of the lien exceeded its authority.*fn7

WASA was created by statute in 1996 and its powers are statutorily defined. See District of Columbia Water & Sewer Auth. v. Delon Hampton & Assocs., 851 A.2d at 412. WASA has the power to "acquire, by purchase, gift, lease, or otherwise, and to own, hold, improve, use, sell, convey, exchange, transfer, lease, sublease, and dispose of real and personal property of every kind and character, or any interest therein, for its corporate purposes." D.C. Code § 34-2202.03 (5) (2001) (emphasis added). Moreover, we interpret the grant of authority broadly, as the legislature has made clear that WASA may "undertake any public project, acquisition, construction, or any other act necessary to carry out its purposes." Id. at § 34-2202.03 (13). We, therefore, conclude that WASA was authorized to assign its lien for delinquent water and sewer charges to BCIC, which subsequently assigned it to appellee Waterfall.

B. Is the Lien Enforceable?

The statute that governed the District of Columbia Water and Sewer Utility Administration ("WASUA"), WASA's predecessor agency, provided that "[t]he District shall have a continuing lien for water charges upon any land and the improvements thereon to which water or water service is or has been furnished." D.C. Code § 43-1529 (a) (1981). Unlike the current statute, the statute in force in 1983 when the lien was filed had no recordation requirement as a condition to the lien. Cf. D.C. Code § 34-2407.02 (a)(2) (2009 Supp.) ("Upon filing, the certificate of delinquency shall constitute a continuing lien against the real property . . . .").*fn8 Appellants argue that "there [was] no perfection [of the lien] and no cause of action for foreclosure" on the lien can be maintained because the "Certificate of Delinquent Water/Sewer Service Charges" issued with respect to the property erroneously listed Procenko Real Estate, instead of the actual record owner, ETDH, and did not list the square and lot numbers of the property.We find no merit to this argument.

That the certificate erroneously listed the property's management company instead of the record owner does not necessarily invalidate the lien or render it unenforceable. The statute plainly provided -- and continues to provide -- that a lien for delinquent water and sewer charges runs with the land. See D.C. Code § 43-1529 (a) (1983) (referring to a "continuing lien" that shall be imposed "upon any land and the improvements thereon"); D.C. Code § 34-2407.02 (a)(1) and (2) (2009 Supp.) ("[T]he certificate of delinquency shall constitute a continuing lien against the real property . . . ." such that whoever is "an owner" of the property is responsible for the full amount owed. (Emphasis added.)). Moreover, the certificate issued in 1983 itself "certif[ies] that . . . the District of Columbia has a continuing lien for delinquent water/sewer service charges upon the land and the improvements thereon at the above service address." (Emphasis added.) Thus, by the terms of both the statute and the certificate, the lien attaches to a particular property and is not specific to the owner of that property. Therefore, because the lien attaches to the property, ETDH, all subsequent owners are responsible for the delinquent charges vis à vis the lien holder. Nor does the absence of the square and lot numbers for the property in the certificate of delinquency render the recorded lien unenforceable.*fn9 The statute does not make that a requirement of the lien, and the certificate that was filed clearly states that the lien shall be placed "upon" the listed "service address." The listed "service address," in turn, identifies appellants' property located at 6425 14th St., N.W. Furthermore, the certificate, which is a form document containing blanks for the District to fill in, does not include a demarcated space for either the lot number or the square number of the property. Appellants do not point to any mistake on the certificate, other than the mistaken listing of the management company as the owner.

Moreover, we note that unlike the current WASA statute and regulations, see supra notes 8 and 9, or other statutory schemes, the statute in force in 1983 did not make filing a requirement of enforceability. Cf. D.C. Code § 40-301.02 (2001) (requiring notice of intent to enforce a mechanic's lien that complies with specific statutory items); McNair Builders, Inc. v. 1629 16th Street, L.L.C., 968 A.2d 505 (D.C. 2009) (holding that notice of mechanic's lien was defective because it did not name the correct owner of the property).

Here, there is no dispute that the certificate of delinquency was filed with the Recorder of Deeds. In opposing summary judgment, appellants argued that they were not on notice of the recorded lien because it did not show up in a title search -- a claim appellee contests in light of the due diligence they conducted, which did reveal the lien.*fn10 We need not decide whether notice to the owner of the water and sewer lien on the property was legally required as a condition of the 1983 lien's enforceability, because the record demonstrates that appellants were given notice of the delinquent charges and the ensuing lien. Appellant ETDH acquired ownership of the property in 1979, before the certificate of delinquency, dated July 8, 1983, was filed. It was made aware of the overdue charges*fn11 because the certificate of delinquency, which erroneously listed "Procenko Real Estate" as the "owner," was nevertheless sent "[Care Of:] ETDH Assoc[iates]" and clearly identified the service address as the one for the property ETDH owned.*fn12 Appellant 6425 14th Street, N.W., LLC was put on at least inquiry notice of the lien by WASA's assignment of the lien to BCIC, which was recorded prior to the tax sale in 2000, when the LLC obtained an interest in the property. The recorded assignment of lien included the registration number of the 1983 certificate of delinquency. With notice that a lien had recently been assigned, the underlying lien itself should have been discovered as part of routine due diligence in purchasing the property at a tax sale. Because of the identity of interest between appellants, see supra note 3, the notice that each had is fairly imputed to the other.

C. Merger

Appellants also challenge the validity of the lien by making two related merger arguments. First, invoking the "general rule of law that when a greater and lesser estate meet in the same person, the lesser is merged in the greater, 28 AM. JUR. 2D Estates § 423," appellants argue that when the District of Columbia acquired a deed on the property in 1988, the lien was extinguished, in effect, because the District was both the lien-holder as well as the property owner responsible for the charges. Second, appellants argue that the acquisition of property by a governmental body extinguishes all government liens on the property because the government cannot owe money to itself, citing 72 AM. JUR. 2D State & Local Taxation § 802.

We disagree with appellants that the District's acquisition of the property in 1988 extinguished the water and sewer lien held by WASUA, then an integral part of the District government structure.*fn13 First, we note that the District's acquisition of the property was declared "null and void" by this court in 1991 in Mayhew, 601 A.2d at 39. Therefore, as a matter of law, the District never owned the property, and pursuant to the Deed of Correction issued in 1993, title was reinstated to ETDH as owner of the property. Moreover, the trial court found that the District was responsible to pay for the water bills it incurred, i.e., during the time, from 1988-1993, when it had possession of the property before this court voided the tax deed to the District. This finding is fully supported by the testimony of Ms. Tawana Schooler, a WASA (and formerly WASUA) representative. Even if we assume, without deciding, that appellants correctly recite the majority view of the common law concerning merger of title, it is inapplicable here because the District was not, as a matter of law, the owner of the property; in any event, as a matter of fact the District was liable to pay water bills for service to the property during the time it had possession.*fn14 Accordingly, we conclude that the District's acquisition of the property at a tax sale -- later voided -- did not extinguish the water and sewer lien.

D. Attorney's Fees

Appellants argue that the trial court erroneously awarded attorney's fees, taking issue with both the statutory basis for the fee award and appellee's entitlement to the fees awarded in this case. We agree with the trial judge that the WASA statutory scheme permits the award of attorney's fees, and conclude that the trial court did not err in finding that appellee gave notice to appellants before filing suit, as required by the statute.

Although the WASA statute does not itself have a specific provision stating that attorney's fees may be awarded in foreclosure actions to enforce water and sewer liens, the statute provides that water and sewer liens may be collected "in the same manner as real property tax liens . . . pursuant to Chapter 13 and Subchapter IV of Chapter 13A of Title 47." D.C. Code § 34-2407.02 (a)(3) (2009 Supp.). The real property tax lien statute, in turn, provides that "the court may award counsel fees" in foreclosure actions. Id. at § 47-1303.04 (h)(1) (2001). Accordingly, the trial court was authorized to award attorney's fees incurred to enforce appellee's lien.

The statute also provides, however, that "no counsel fees shall be allowed unless, prior to the filing of the complaint, the plaintiff shall have given not more than 120 nor less than 30 days written notice . . . of intention to file such complaint." D.C. Code § 47-1303.04 (h)(1) (emphasis added). The trial court found that "[a] timely 30-day notice letter was sent by registered mail to 6425 14th Street, N.W., LLC." We are bound by the trial court's factual finding, unless it is clearly erroneous or there is no evidence to support it. See, e.g., Nat'l Hous. P'ship v. Mun. Capital Appreciation Partners I, L.P.,935 A.2d 300, 319-20 (D.C. 2007). Appellee presented evidence that notice was given by certified letter.*fn15 Mr. Abell denied ever receiving the letter, which was shown to him by appellee's counsel during cross-examination, although he acknowledged that the letter was addressed to him personally as "registered agent" and had his office address on the letter. Appellants argued to the trial court and reiterate on appeal, that the letter lacks "evidentiary weight" because the letter purportedly sent to Mr. Abell did not bear any authentication by the post office to prove that it was sent by certified mail, whereas the notices sent to other parties with a possible interest in the property (e.g., former partners of ETDH, see supra note 3) have a post office stamp. Moreover, the letter addressed to Mr. Abell, while identical in form and content to the other notices, has a different date (May 10, 2001), whereas the letters to the other parties are dated a month before (April 10, 2001). While we recognize that these factors could have given the trial court pause about the authenticity of the exhibit and led the court to find that the required notice was not given, we cannot say that the court's finding that notice was given to appellants is clearly erroneous or without evidence to support it.

Finally, appellants challenge the amount of attorney's fees awarded.*fn16 Their primary claim is that no fees should be awarded for legal work done after July 12, 2001, when the motion for summary judgment was filed by appellee.*fn17 It was the grant of summary judgment that led to the first appeal in this case and to this court's remand in 2003 to reconsider the motion for summary judgment. See supra note 1. Appellants' complaint is that appellee did not submit evidence of the amount due on the lien or its attorney's fees until after the hearing on remand, held in 2004, and that if appellee had submitted that evidence earlier, the matter would have been resolved. The record belies their claim. The redemption value on the lien that appellee claimed was included in appellee's motion for summary judgment and mentioned in this court's 2002 order remanding the case for further consideration. Appellants' challenges in this appeal to WASA's authority to assign the lien and the lien's enforceability, moreover, do not indicate that appellants were willing to resolve the dispute. Appellants' subsidiary challenges to specific items in the attorney's fee request were rejected by the trial court, which credited the affidavits filed by appellee's attorneys and found the requested amount reasonable. See Sagalyn v. Found. for Preservation of Historic Georgetown, 691 A.2d 107, 115 (D.C. 1997) ("The determination of reasonableness of attorney's fees lies within the trial court's sound discretion.").

E. Amount of the Lien*fn18

Although the water and sewer lien against the property is valid and is enforceable against the owner, I agree with appellants that the matter must be remanded again for a redetermination of the principal amount due on the account secured by the lien. When we vacated the summary judgment order in the first appeal, our order asked that the trial judge not only determine "the outstanding amount of the lien, the interest and the penalties," but also explain "how . . . those sums [were] calculated." On remand, the court found that the amount due was $101,295.29 (plus the accrued penalty of 1% compounded monthly, see supra note 6), and, by way of explanation, said that "[t]he total amount outstanding was calculated by counting backwards from the date of the sale to the date of the last paid bill, in this case, a partial interest payment on October 25, 1991."*fn19 Appellants argue that "counting backwards from the date of the sale" -- WASA's sale of the lien to BCIC on January 6, 1999 -- to the "date of the last paid bill on October 25, 1991," is not a proper method to calculate the amount that the owner must pay to discharge the lien on its property because it took into account only the charges incurred on the account, but not payments that have been made to the account.

The record on appeal supports appellants' claim. Appellee's witness, Ms. Schooler, who worked for WASA as a collections analyst, testified that the principal amount of the lien was $101,295.29. She described the WASA billing record for the property that was admitted into evidence. That billing record spanned from January 13, 1988, to March 2, 2000; WASA's records for the account did not go back before 1988. According to the billing record, the amount due on the account as of March 2, 2000, was $101,295.29. Ms. Schooler explained that the principal amount due on the lien of $101,259.29, the exact amount due as of March 2, 2000, was "a running total" of charges during the period January 29, 1992, to January 7, 1998, the period covered by the lien, but did "not use payments. . . . It was just bills that were rendered."*fn20 Her testimony is corroborated by the WASA billing record and a copy of the calculator tape she generated which adds up only the charges during the relevant period, for a total of $101,295.29. Therefore, neither Ms. Schooler's testimony, see supra note 21, nor the documentary evidence support the trial court's finding that "[a]ll payments made on the account were credited and reflected in the total balance of $101,295.29."Even assuming that the amount calculated by Ms. Schooler accurately reflected the total charges accrued during the limited time period covered by WASA's assignment of the lien (1991-1999), the amount that the owner would have to pay to discharge the lien on the property would be the sum of those charges less payments that have been made to the account that properly should be credited to those charges.

BCIC (and now, Waterfall) is entitled to receive what it bargained for when it purchased from WASA the right to enforce the lien on the property's delinquent account. That, it appears from the record, is limited to charges made during a particular time period, which were calculated by Ms. Schooler.*fn21 But whether or not the parties to the lien assignment agreed that the only charges that could be collected were limited to a ten-year period preceding the assignment, appellants are entitled to an offset against these charges for payments on the account in calculating the amount due by appellants to discharge the lien. As we have discussed, the lien is an obligation that runs with the land, so the amount needed to discharge it is not dependent on who makes the payments.*fn22 Both WASA's assignment to BCIC and BCIC's to Waterfall recognize that the property owner may redeem the lien by paying it off, which can only be done after calculating the "amount owing" on the account.*fn23

Therefore, to determine the "amount owing" by the owner to discharge the lien held by Waterfall, it is necessary to identify and deduct payments made on the account that are properly offset against the charges incurred during the period covered by the lien. The WASA billing report shows fifteen payments made on the account from September 22, 1980, to January 2, 1996, totaling $82,561.19.*fn24 Six of these payments, totaling $70,142.70, appear to have been made during the period the charges covered by the lien were incurred. None was taken into account by Ms. Schooler, however, in her calculation of $101,295. 29 as the "amount owing."

My colleagues have accepted appellee's argument that we should "infer that these payments were applied to the oldest balances first, and that the running balance shows the amount due after payments were credited." Although that argument has some common-sense appeal, Ms. Schooler did not say that is how WASA allocates payments, and such a practice would seem counter to her testimony that the lien assignment was time-limited because charges more than ten years old "aren't collectible." See supra note 20. Moreover, the trial judge, who is the finder of fact, did not make that inference. And, even if appellee is correct that the usual practice is to allocate payments to the oldest outstanding charges, the record contradicts that this is what was done in this case.*fn25 If the WASA billing record, including the final amount of $101,259 is a "running total" calculated by the computer that automatically takes into account all charges and payments made to the account, the logical way to calculate what the lien secures is to take the running total that was due as of 1991 (when the permissible charges under the lien commenced) and deduct it from the final amount of $101,259. That simple calculation necessarily must yield a balance of less than the final running balance of $102, 259. As appellants correctly state, it "defies both logic and mathematical reasoning" to argue, as appellees do, that the amount due to discharge the lien remains the same regardless of whether you take into account charges incurred before 1991 or not (and the WASA billing record shows that there were charges, penalties and interest between 1988 and 1991). This mathematical reasoning holds true whether or not payments are used to offset the older bills first. Appellees have no answer for this straightforward logical point, and instead have been stuck trying to defend (unsuccessfully in my view) what my colleagues recognize is an as-yet-unexplained and internally inconsistent rationale given to justify the final running balance of $101,259 as the amount due to discharge the lien.

Because of the contradictions in the evidence and illogic of the method used to calculate the amount of the lien, the case should be remanded again to clarify the record, and, if necessary, to recalculate the amount owing.*fn26

Separate Opinion of Associate Judge FISHER, in which Senior Judge NEBEKER joins:

I join the opinion of Judge Ruiz, except for part II. E, relating to the amount of the lien. For the reasons briefly explained below, the judgment of the Superior Court is affirmed in its entirety.

I agree that appellee has not clearly explained (at least to my understanding) why the "counting backwards" method Ms. Schooler described is an appropriate method of calculating the amount of the lien. I also agree that the record includes confusing testimony and that some of it supports appellants' argument. But the question we must answer is whether the trial court's findings are clearly erroneous, and the answer to that question is "no." See D.C. Code § 17-305 (a) (2001) ("When the 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."); Washington Convention Center Authority v. Johnson, 953 A.2d 1064, 1081 (D.C. 2008) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985))).

The critical findings of Judge Dixon are these: (1) "The principal amount of the lien sold to Breen Capital was the $101,295.29 shown on the water billing information report."; (2) "All payments made on the account were credited and are reflected in the total balance of $101,295.29."; (3) "The interest on the account was $39,140.36 as of August 25, 2001 for an accumulated balance of $140,435.65."; (4) "The accumulated balance on an original corpus of $140,435.65 beginning September 1, 2001 through May 2004 is $193,168.05."; and (5) "The defendants have failed to present any credible evidence that any water charge incurred during the District of Columbia's purported ownership was not paid."

There is evidence to support each of these findings. Ms. Schooler identified Exhibit 3 (Appellants' Exhibit and Transcript Reproduction 84) as a computer-generated water billing information history that shows an outstanding balance of $101,295.29. (Appellants' Exhibit and Transcript Reproduction 92.) She also testified that that was the amount of money owing on the water and sewer bill when it was sold to Breen in 1998. (Id. at 98.) The computer "does the calculations" and that number would reflect the amounts paid on the bill. (Appellants' Exhibit and Transcript Reproduction 104; Appellees' Exhibit and Transcript Reproduction 114.)

Exhibit 3 reflects fifteen payments ending in 1996, before the lien was sold. ( It just does not make clear how these payments were applied.) I think it is fair to infer that those payments were applied to the oldest balances first, and that the running balance shows the amount due after payments were credited.

Michelle Tisot, a representative of Breen, testified that Breen purchased a lien in the amount of $101,295.29. (Appellees' Exhibit and Transcript Reproduction 115.) She also identified Exhibit 5, a computer record from Breen showing that principal amount. (Appellants' Exhibit and Transcript Reproduction 89.) She had added the principal and interest as of August 29, 2001, to reach the sum of $140,435.65. (Appellees' Exhibit and Transcript Reproduction 116.) Mr. McQuade, an expert witness for Waterfall, testified that the accumulated balance on a corpus of $140,435.65, computed at the rate of one percent per month compounded, as of May 13, 2004, was $193,168.05. (Appellees' Exhibit and Transcript Reproduction 117-18.)

I agree that Ms. Schooler's testimony about her adding machine tape (Exhibit 4) is confusing. She said at one point that the tape "only gave you the bills that were rendered. It didn't include any kind of payments that were made." (Appellants' Exhibit and Transcript Reproduction 101.) At another point, however, she stated that the tape reflected "what's due. It is the balance that's due on the account."(Id. at 103.) Even if we find this testimony less than pellucid, it described the adding machine tape -- an alternative method for calculating the amount of the lien sold to Breen. It does not undermine the evidence about the computer-generated balances described above. Those computer balances and the associated testimony support Judge Dixon's findings.

For the foregoing reasons, the judgment is affirmed.


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