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James Tippett, Trustee For the Revocable Trust of James Tippett v. Gregory Daly

December 30, 2010

JAMES TIPPETT, TRUSTEE FOR THE REVOCABLE TRUST OF JAMES TIPPETT, APPELLANT,
v.
GREGORY DALY, APPELLEE.



Appeal from the Superior Court of the District of Columbia (LTB37786-01) (Hon. Mary A. Gooden Terrell, Trial Judge)

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

(Argued EnBanc November 10, 2009 Decided December 30, 2010)

Before WASHINGTON, Chief Judge, and RUIZ, REID, GLICKMAN, KRAMER, FISHER, BLACKBURNE-RIGSBY, THOMPSON, and OBERLY, Associate Judges.

Opinion for the court by Associate Judge FISHER.

Dissenting opinion by Associate Judge RUIZ at page 26.

FISHER, Associate Judge: James Tippett appeals from judgments entered following a consolidated trial of his suit for possession of a dwelling and his tenant's suit for breach of contract.*fn1 The trial court held (1) that the tenant had timely invoked his rights under the Tenant Opportunity to Purchase Act ("TOPA"), D.C. Code §§ 42-3404.02 to 42-3404.13 (2001), by providing a written statement of interest within thirty days of receiving the owner's offer of sale, see D.C. Code § 42.3404.09 (1) (2001); and (2) that the owner had waived a ninety-day notice to vacate for personal use and occupancy by accepting rent for a new term that began after the notice expired. When this appeal was heard by a division of the court, we reversed the first judgment and affirmed the second. Tippett v. Daly, 964 A.2d 606 (D.C. 2009). Thereafter, the full court granted appellee's petition for rehearing en banc to reconsider the first issue and vacated the original opinion. Tippett v. Daly, 973 A.2d 691 (D.C. 2009) (granting rehearing en banc). Upon reconsideration, we reach the same result, but issue this modified opinion.*fn2 Our holding will have limited impact because, as we explain in more detail below, the relevant portion of the statute has been amended.

I. The Factual and Procedural Background

The revocable trust of James Tippett owns a single-family dwelling which Gregory Daly ("the tenant") has rented for more than thirty years. On April 28, 2001, pursuant to TOPA, see D.C. Code § 42-3404.03 (2001), the owner mailed an offer of sale which the tenant received on April 30. The tenant testified that he mailed a statement of interest to the owner on May 18 and filed a copy with the Department of Consumer and Regulatory Affairs ("DCRA") the same day. The owner testified, however, that he did not receive the statement of interest until June 2.*fn3 On July 27, 2001, the tenant and his partner placed $20,000 in escrow as a "purchase contract deposit" and on July 30 the tenant hand-delivered a purchase contract to the owner. The owner did not sign the contract and the deposit remained in escrow at the time of trial.

On April 29, 2002, the tenant filed a complaint seeking damages, specific performance of the alleged contract for sale of the property, and an injunction ordering the owner to comply with TOPA. Following a bench trial, the trial court directed the owner to "negotiate with [the tenant] in good faith for the sale of" the property. The court first found that the tenant had timely provided his statement of interest by mailing it on May 18. The court calculated the thirty-day period for response from the date the owner mailed the offer of sale, April 28, added three days for mailing and an additional day because April 29 was a Sunday, see Super. Ct. Civ. R. 6 (2001), and determined that the statement had to be provided by June 3, 2001. Moreover, the court held that the tenant's "acceptance of the offer of sale was complete upon mailing the statement of interest on May 18, 2001[,]" and that the statement of interest was therefore timely regardless of when the owner actually received it. (Bench Order and Op. at 4 (citing RESTATEMENT (SECOND) OF CONTRACTS § 63 (a) (1981).)

II. Was the Statement of Interest Timely Provided?

Under TOPA, an owner of a rental housing accommodation who wishes to sell the property must first "give the tenant an opportunity to purchase the accommodation at a price and terms which represent a bona fide offer of sale." D.C. Code § 42-3404.02 (a) (2001).*fn4

To fulfill this requirement, the owner must "provide each tenant and the Mayor a written copy of the offer of sale . . . ." D.C. Code § 42-3404.03 (2001). The time allowed for the tenant(s) to respond depends upon the number of units in the housing accommodation. For a single-family dwelling, "[u]pon receipt of a written offer of sale from the owner . . . , the tenant shall have 30 days to provide the owner and the Mayor with a written statement of interest." D.C. Code § 42-3404.09 (1) (2001). If the tenant "has provided a written statement of interest in accordance with paragraph (1) of [§ 42-3404.09]," the owner must allow additional time for negotiation of a contract of sale, and, if a contract is agreed to, for settlement. D.C. Code § 42-3404.09 (2), (3) (2001).

A. May 30 Was the Deadline.

The owner argues that the trial court erred both in calculating the time within which the tenant was required to provide his statement of interest and in holding that the tenant had "provided" that statement when he mailed it on May 18. The tenant wisely concedes error on the first point. The statute states that, "[u]pon receipt" of the written offer of sale, the tenant shall have thirty days to provide a written statement of interest. D.C. Code § 42-3404.09 (1) (2001). The tenant testified, and it was undisputed at trial, that he received the offer on April 30. Thus, the tenant had thirty days from April 30 (until May 30) to provide a statement of interest. TOPA has its own provision for calculating time periods, see D.C. Code § 42-3405.02 (2001),*fn5 and the trial court erred in relying on a rule of civil procedure to extend the time prescribed by statute. See D.C. Code § 42-3405.11 (2001) ("If this chapter conflicts with another provision of law of general applicability, the provisions of this chapter control.") (emphasis added); Super. Ct. Civ. R. 1 (2001) (the rules of civil procedure only govern procedure in suits of a civil nature).

B. What Does the Statute Require?

The remaining question then is whether the tenant "provide[d] the owner . . . with" the statement of interest when he placed it in the mail on May 18 or whether, as the owner contends, the tenant did not "provide [him] with" the statement until he received it on June 2. The meaning of the term "provide . . . with" is a question of statutory interpretation, and we review the trial court's decision de novo. Wemhoff v. District of Columbia, 887 A.2d 1004, 1007 (D.C. 2005); 1618 Twenty-First Street Tenants' Ass'n, Inc. v. Phillips Collection, 829 A.2d 201, 203 (D.C. 2003).

1. The Language of the Statute

"We start, as we must, with the language of the statute." Bailey v. United States, 516 U.S. 137, 144 (1995). "The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used." Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc) (internal quotation marks and citation omitted). "Moreover, in examining the statutory language, it is axiomatic that 'the words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.'" Id. (quoting Davis v. United States, 397 A.2d 951, 956 (D.C. 1979) (additional citation omitted)).

Neither TOPA nor the related regulations define the term "provide . . . with." See D.C. Code § 42-3401.03 (2001) (definitions section); 14 DCMR § 4799.1 (1991) (same). Thus, it is appropriate for us to look to dictionary definitions to determine the ordinary meaning of these words. 1618 Twenty-First Street Tenants' Ass'n, 829 A.2d at 203. "Provide" means "to supply for use" and is synonymous with "furnish." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1827 (2002); see also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1458 (3d ed. 1992) ("[t]o furnish," "supply," or "make available"). In order to "use" the statement -- to be able to read it and act upon it -- the owner must have access to it. Therefore, "to supply [the statement of interest] for use" or to "make [it] available," the tenant must place it in the owner's possession. Depositing the statement in the mail may give rise to an inference that the owner will receive it eventually, see, e.g., Kidd Int'l Home Care, Inc. v. Prince, 917 A.2d 1083, 1087 (D.C. 2007) (There is "a rebuttable presumption that a letter properly addressed, stamped, and mailed, and not returned to the sender, has been delivered to the addressee."), but the owner does not have possession of, or access to, the statement while it is in the mail stream. Thus, the "ordinary sense" of the term "provide . . . with" is that the tenant must ensure that the statement reaches the landlord within thirty days.*fn6

2. The Statutory Context

We recognize, however, that "[a] word in a statute may or may not extend to the outer limits of its definitional possibilities." Dolan v. United States Postal Service, 546 U.S. 481, 486 (2006). "The meaning -- or ambiguity -- of certain words or phrases may only become evident when placed in context." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000). Therefore, "we do not read statutory words in isolation; the language of surrounding and related paragraphs may be instrumental to understanding them." District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 652 (D.C. 2005) (en banc). "We consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme." Bailey, 516 U.S. at 145. "Statutory interpretation is a holistic endeavor . . . ." Washington Gas Light Co. v. Public Service Comm'n, 982 A.2d 691, 716 (D.C. 2009) (internal quotation marks and citations omitted).

TOPA contains separate provisions dealing with single-family accommodations (§ 42-3404.09), accommodations with two through four units (§ 42-3404.10), and accommodations with five or more units (§ 42-3404.11). Variants of the word "provide" appear throughout the statutory scheme. Some portions of TOPA require the tenant to provide notice to the owner; others require the owner to provide information to the tenant.

The process begins when the owner provides each tenant and the Mayor a written copy of an offer of sale (§ 42-3404.03). This written offer must include:

(4) A statement that the owner shall make available to the tenant a floor plan of the building and an itemized list of monthly operating expenses, utility consumption rates, and capital expenditures for each of the 2 preceding calendar years within 7 days after receiving a request. The statement shall also indicate that the owner shall, at the same time, make available the most recent rent roll, list of tenants, and list of vacant apartments. If the owner does not have a floor plan, the owner ...


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