Papageorge v. Stuckey

          Argued September 27, 2018

          Appeal from the Superior Court of the District of Columbia (CAB-2336-13) (Hon. Michael L. Rankin, Trial Judge)

          Kimberly K. Fahrenholz, with whom Patrick C. Horrell and Emily Whelden were on the brief, for appellant.

          Kathryn Erklauer, with whom Carol S. Blumenthal was on the brief, for appellees Boyle and Afomia Stuckey.

          Kevin M. Murphy, with whom Joseph A. Smith was on the brief, for appellee Eastern Savings Bank, FSB.

          Before Fisher, Easterly, and McLeese, Associate Judges.

          Fisher, Associate Judge.

         In the latest chapter of a long-running property dispute, George Papageorge alleges that Boyle Stuckey and Afomia Stuckey ("the Stuckeys") and Eastern Savings Bank ("ESB") violated his rights under the Tenant Opportunity to Purchase Act ("TOPA"), D.C. Code §§ 42-3404.02 to 42-3404.13 (2012 Repl.). Papageorge claims that a former tenant of the property, Matt Banks, validly assigned TOPA rights to him. The trial court granted summary judgment for ESB and the Stuckeys on two grounds. First, the court found that judicial estoppel precluded Papageorge from invoking TOPA rights derived from Banks after acknowledging that Banks had waived his TOPA rights in the settlement of previous litigation. In the alternative, the court found that Papageorge had no enforceable TOPA rights because ESB had purchased Banks's rights without notice of Papageorge's claim that those rights had been assigned to him. We affirm for the separate reason that no event had triggered the provisions of TOPA.

         I. Background

         Litigation began more than a decade and a half ago regarding the property located at 2507 33rd Street, S.E. ("the Property"), a house that included rental units in the basement and on the second floor. A truncated history begins in April 2001, when ESB purchased the Property at foreclosure.^[1] That October, tenant Matt Banks purportedly assigned his rights under TOPA to Papageorge, a relative of the house's former owner. This court soon after ruled in ESB's favor regarding the propriety of the foreclosure sale. See E. Sav. Bank, FSB v. Pappas, 829 A.2d 953 (D.C. 2003); Pappas v. E. Sav. Bank, FSB, 911 A.2d 1230 (D.C. 2006). Subsequently, ESB attempted to evict Banks from his unit due to a lease violation, an effort this court blocked due to defective notice. See Banks v. E. Sav. Bank, 8 A.3d 1239 (D.C. 2010). The next week, on December 9, 2010, Banks and Papageorge signed a document confirming the purported assignment from 2001 and formalizing their agreement that Papageorge would finance Banks's continuing litigation with ESB in exchange for seventy-five percent of any award.

         On January 23, 2012, Banks and his wife, Diane Banks, reached a settlement of pending disputes with ESB, relinquishing their claims to the Property in exchange for $100, 000.^[2] That agreement called for the Bankses to vacate the premises by 5 p.m. on the next day, January 24. Papageorge alleges that on January 24 he mailed a letter to ESB expressing his interest in buying the property and enclosing a copy of a new assignment of TOPA rights; ESB claims it first saw the letter during litigation, more than one year later. The Bankses did not vacate the premises until January 25 - when the couple signed the settlement agreement - and ESB signed the document on January 26.

         More than nine months passed until, on or about October 30, ESB agreed to give a real estate broker the exclusive right to sell the property. The listing agreement provided for a reduced commission if Boyle Stuckey purchased the house. An attorney for ESB attested in an affidavit that the bank first began negotiations with the Stuckeys in November. On December 7, ESB filed with the District government a Vacant Building Response Form which stated that the bank was "actively seeking to sell" the building. Two weeks later, on December 21, 2012, ESB sold the Property to the Stuckeys.

         II. Analysis

         "The question whether summary judgment was properly granted is one of law, and we review de novo." Johnson v. District of Columbia, 144 A.3d 1120, 1125 (D.C. 2016) (citation and internal quotation marks omitted). "Summary judgment is only appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Liu v. U.S. BankNat'l ...