Ruth Saunders v. Stephen T. Hudgens , 184 A.3d 345 ( 2018 )


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    DISTRICT OF COLUMBIA COURT OF APPEALS
    No. 12-CV-1318
    RUTH SAUNDERS, ET AL., APPELLANTS,*
    V.
    STEPHEN T. HUDGENS, NATHANIEL X. ARNOLD,
    AND U.S. BANK NATIONAL ASSOCIATION, APPELLEES.
    Appeal from the Superior Court
    of the District of Columbia
    (CAB-3686-05)
    (Hon. Judith N. Macaluso, Trial Judge)
    (Argued September 15, 2016                                Decided May 10, 2018)
    Michael Lasley for appellant.
    *
    Although the notice of appeal in this case named Jerome Saunders as an
    appellant in addition to Ruth Saunders, Mr. Saunders has not pursued or
    participated in the appeal. His counsel, who is also Ms. Saunders‟s counsel, has
    filed no brief, made no argument, and asserted no claim on Mr. Saunders‟s behalf;
    his claims and issues are separate from those pressed by Ms. Saunders, and her
    arguments on appeal do not pertain to him. Consequently, pursuant to D.C. App.
    Rule 13 (a), we dismiss the appeal of Jerome Saunders for want of prosecution.
    See Stancil v. District of Columbia Rental Hous. Comm’n, 
    806 A.2d 622
    , 625
    (D.C. 2002) (stating that under predecessor to Rule 13 (a), “dismissal is an
    appropriate sanction when an appellant is not diligent about prosecuting his
    appeal”).
    2
    Michael S. Steadman, Jr., with whom Michael N. Russo, Jr., was on the
    brief, for appellee Arnold.
    Wendy Alexander, with whom John E. Rinaldi was on the brief, for appellee
    U.S. Bank National Association.
    Before GLICKMAN and FISHER, Associate Judges, and NEBEKER, Senior
    Judge.
    GLICKMAN, Associate Judge: Appellant Ruth Saunders contends the trial
    court erred in denying her the equitable relief she sought from appellee Stephen T.
    Hudgens for his breach of a contract to sell her a building. Applying the doctrine
    of election of remedies to avoid a double recovery for a single wrong, the trial
    judge ruled that Saunders could not be granted a decree compelling Hudgens to
    perform the contract because she had chosen to obtain alternative relief, namely an
    award of monetary damages from appellee Nathaniel X. Arnold for his tortious
    inducement of Hudgens‟s breach. Saunders argues that she had made no election
    and that she was entitled to receive specific performance from Hudgens in addition
    to damages from Arnold because she sought those remedies from different
    defendants on different legal theories of liability. Saunders is only partly right: we
    agree that she had not elected her remedy and hence was not precluded from
    seeking a decree of specific performance, but not that she could get more than one
    satisfaction for the wrong done to her. We hold that the judge should have
    determined whether Saunders would be entitled to specific performance as an
    alternative to damages and, if so, the judge then should have permitted her to
    3
    choose which remedy to accept.       We vacate the provisions of the judgment
    respecting her relief and remand for further proceedings.
    I.    Factual Summary1
    The dispute before us concerns competing claims to a four-unit apartment
    building located at 219 Adams Street, N.E., in Washington, D.C. (“the Property”).
    On March 16, 2005, appellee Hudgens sold the Property to appellee Arnold. The
    sale spawned two lawsuits in Superior Court.
    First, appellant Saunders sued Messrs. Hudgens and Arnold in CAB No.
    3686-05.   As pertinent here, Saunders‟s complaint alleged that Hudgens had
    breached a contract he had entered to sell the Property to her, and that Arnold had
    conspired with Hudgens to induce the breach. (In effect, the claim against Arnold
    was one for tortious interference with the sales contract, and we shall sometimes
    refer to it that way for convenience.) The complaint sought both compensatory
    damages and equitable relief that included cancellation of the sale to Arnold and a
    1
    The history of this case is complicated. We confine our summary of the
    facts to what is pertinent to this decision.
    4
    decree of specific performance requiring Hudgens to convey the Property to
    Saunders.
    Second, a group of tenants (or persons claiming to be tenants) sued Hudgens
    and Arnold in CAB No. 8531-06, alleging that the sale of the Property violated
    their rights under the Tenants‟ Opportunity to Purchase Act (“TOPA”). The TOPA
    plaintiffs sought declaratory and injunctive relief setting aside the sale and
    compelling Hudgens to provide them with statutory rights triggered by the sales
    contract.
    The two civil actions were consolidated for pretrial and trial proceedings. In
    2010 the proceedings were stayed when Hudgens filed for bankruptcy. Eventually,
    the stay was partially lifted to permit the Superior Court litigation to go forward
    with some restrictions. Among other things, the order lifting the stay provided that
    it did “not extend to execution or enforcement of any judgments against” Hudgens,
    and that Hudgens and the bankruptcy trustee would not “be expected, except to the
    extent they choose, to participate in the litigation” other than as witnesses.
    5
    Thereafter, the Superior Court litigation resumed, apparently without Hudgens‟s
    participation as a party.2
    In a pretrial order issued on December 28, 2010, the trial judge ordered
    bifurcation of the consolidated trial proceedings, with a jury trial for the jury-
    triable issues in Saunders‟s case to precede a bench trial of the equitable issues in
    both that case and the TOPA case. For Saunders, this bifurcation meant a jury trial
    of her tortious interference claim seeking an award of damages against Arnold for
    conspiring to cause Hudgens to breach his contract to sell the Property to Saunders,
    and then a bench trial on her claim seeking a decree of specific performance of that
    sale.
    At the conclusion of the jury trial, the judge instructed the jury that the
    elements of Saunders‟s claim against Arnold were:
    2
    Mr. Hudgens has not participated in this appeal either. On October 12,
    2016, after receiving Mr. Hudgens‟s representation that he was interested in
    participating, this court ordered him to file a response within twenty days “setting
    forth whether good cause exist[ed] for the court to excuse his failure to have filed a
    timely brief in this appeal and to appear for the oral argument.” The order warned
    Mr. Hudgens that his failure to respond would “subject this appeal to being
    decided by this court on the existing record without further notice[.]” To date, this
    court has received no response to the order from Mr. Hudgens.
    6
    (1) an agreement by Mr. Arnold and Mr. Hudgens; (2) to
    participate in a breach of Mr. Hudgens‟[s] contract or
    contracts with Ruth Saunders . . . ; [ ] (3) an injury was
    caused by an unlawful overt act performed by one of the
    parties to the agreement; (4) pursuant to and in
    furtherance of the common scheme.
    As a predicate to this claim, the judge instructed the jury it would have to find that
    a contract had been formed between Hudgens and Saunders, “and if so what the
    terms of that contract were.” Finally, without objection from appellant, the judge
    instructed the jury that if it found Arnold had conspired to cause Hudgens‟s breach
    of Saunders‟s contract to purchase the Property, it should “fully compensate” her
    by awarding “damages for breach of contract,” defined as “that amount of money
    necessary to place the injured party in the same economic position he or she would
    have been in if the contract had not been breached.”
    In its verdict, the jury found that Arnold had conspired with Hudgens “to
    cause Mr. Hudgens to breach his contract(s) for sale of the [P]roperty . . . to Ms.
    Saunders[.]” It awarded her $40,000 in compensatory damages. Pending the
    outcome of the bench trial, the judge did not enter judgment on this verdict.
    During and at the close of the ensuing bench trial on the outstanding
    equitable issues in the two consolidated cases, Saunders argued that she was
    entitled to a decree awarding her specific performance of her contract to purchase
    7
    the Property from Hudgens. In opposition, Arnold argued that the evidence failed
    to show that Saunders actually had an enforceable contract; the judge responded
    that “unless and until I set the jury verdict aside, the jury‟s verdict establishes that
    there was a contract because the jury concluded that there was a conspiracy to
    breach the contract.” The judge denied Arnold‟s motion for judgment on the
    specific performance claim without prejudice to its later renewal. At no point was
    it suggested that Saunders had made an election to accept the award of damages
    instead of specific performance.
    Eight months later, the judge issued a Memorandum Decision and final
    Order of Judgment in the consolidated cases. The judge entered a monetary
    judgment against Arnold and in favor of Saunders in the amount of the jury‟s
    verdict ($40,000) and denied Saunders‟s request that Hudgens be ordered to
    perform his contract to sell the Property to her.3 In her Memorandum Decision, the
    judge explained that she denied specific performance because Saunders had elected
    to receive the remedy of damages and awarding her specific performance in
    3
    In pertinent part, the final order also entered judgment in favor of the
    TOPA plaintiffs in CA No. 8531-06 and voided Hudgens‟s sale of the Property to
    Arnold. The success of the TOPA plaintiffs does not necessarily mean Saunders
    could not prevail on her claim for specific performance; she asserts the TOPA
    plaintiffs reached an agreement with her and supported her action. Whether this is
    so remains to be determined.
    8
    addition would result in an impermissible double recovery:
    Ms. Saunders elected to vindicate her contract rights by
    suing Mr. Arnold for damages based upon the theory that
    he tortiously interfered with her contract to buy the
    Property. . . . Through its verdict, the jury found that Ms.
    Saunders had a valid contract with Stephen Hudgens to
    purchase the Property and that Mr. Arnold conspired with
    Mr. Hudgens to interfere with her contract rights. The
    jury awarded her damages of $40,000. . . . Ms.
    Saunders‟[s] offer [to purchase the Property] is not
    specifically enforceable because she received monetary
    damages for breach of her contract to buy the Property.
    A plaintiff cannot secure the double recovery of both
    damages for breach and specific performance of a
    contract. See Ingber v. Ross, 
    479 A.2d 1256
    , 1263 (D.C.
    1984) (double recovery prevented by barring cumulative
    remedies).
    II.    Discussion
    In this appeal, Saunders contends that the trial judge erred in refusing to
    award her specific performance on the ground that she had elected the remedy of
    damages and was not entitled to a double recovery. We agree with this contention
    in part, but only in part. The judge was correct in recognizing that Saunders is not
    entitled to receive both monetary damages from Arnold and specific performance
    9
    from Hudgens; however, Saunders was entitled to pursue both of those remedies to
    verdict before having to elect between them.4
    A. Standard of Review
    Specific performance is an equitable remedy, “and the determination
    whether or not to order specific performance is confided to the „sound and
    informed discretion‟ of the trial court.”5 However, “[d]espite the discretionary
    element, a trial court can commit error in granting or refusing [specific
    performance].”6 Here, the court determined that Saunders was not entitled to
    4
    Saunders has represented without contradiction that Arnold has not
    satisfied (i.e., paid) the monetary judgment against him. If our understanding that
    this remains so is incorrect, and Saunders has accepted full payment from Arnold
    in satisfaction of that judgment, the “one satisfaction” rule would bar her from
    pursuing Hudgens for additional relief for the same harm. See generally 47 AM.
    JUR. 2D Judgments § 769 et seq. (2017).
    5
    Independence Mgmt. Co. v. Anderson & Summers, LLC, 
    874 A.2d 862
    ,
    867-68 (D.C. 2005) (quoting Drazin v. American Oil Co., 
    395 A.2d 32
    , 34 (D.C.
    1978)). Nonetheless, absent circumstances rendering it inequitable or impossible,
    the remedy of specific performance “is almost routinely available to enforce
    contracts for the purchase of land.” 3 DAN B. DOBBS, LAW OF REMEDIES § 12.8 (1)
    (2d ed. 1993) (footnote omitted) (hereinafter “DOBBS”); see also Tauber v. Quan,
    
    938 A.2d 724
    , 732 (D.C. 2007) (“[I]t is routine for courts to enforce contracts to
    purchase real estate by ordering that they be specifically performed.”).
    6
    12 JOSEPH M. PERILLO, CORBIN ON CONTRACTS, § 63.1 (2012) (citing
    Beckwith v. Clark, 
    188 F. 171
    , 178 (8th Cir. 1911)).
    10
    specific performance as a matter of law because of the rule against duplicative
    recovery. “Where the matter under review is a question of law . . . this court
    exercises de novo review.”7
    B. The Alternative Remedies
    For tortiously inducing Hudgens to breach his contract with Saunders, the
    trial judge correctly instructed the jury that Arnold would be liable to Saunders for
    breach-of-contract damages.8 We therefore understand the jury‟s damages award
    to represent the sum of money the jury deemed necessary to fully compensate
    Saunders for her loss by placing her in the same economic position she would have
    been in had Hudgens performed his contract to sell her the Property. In other
    7
    Independence Mgmt. Co., 
    874 A.2d at 867
     (quoting Technical Land, Inc.
    v. Firemen’s Ins. Co., 
    756 A.2d 439
    , 443 (D.C. 2000)).
    8
    See Paul v. Howard Univ., 
    754 A.2d 297
    , 309 n.23 (D.C. 2000) (“One
    who intentionally and improperly interferes with the performance of a contract . . .
    between another and a third person by inducing or otherwise causing the third
    person not to perform the contract, is subject to liability to the other for the
    pecuniary loss resulting to the other from the failure of the third person to perform
    the contract.”) (quoting RESTATEMENT (SECOND) OF TORTS § 766 (Am. Law Inst.
    1979)). Damages for tortious interference may, in some cases, go beyond “normal
    contract expectancy,” 2 DOBBS § 6.6 (1), but we need not discuss that here.
    11
    words, the damages award was the monetary equivalent of specific performance of
    the contract.9
    A plaintiff is entitled to be made whole, but not more than whole. “Where
    the parties have entered into a contract, being made whole means realizing the
    benefit of the bargain that they struck.”10      Thus, as the trial judge correctly
    recognized, Saunders is not entitled to receive both the monetary equivalent of
    specific performance and specific performance too. That would constitute being
    made whole twice – an “impermissible double recovery”11 for the same wrong. It
    9
    Campbell-Crane & Assocs. v. Stamenkovic, 
    44 A.3d 924
    , 936 (D.C. 2012)
    (“We presume that the jury followed the instructions of the court.”). At oral
    argument, Saunders‟s counsel suggested that the jury actually awarded her
    rescission damages rather than breach-of-contract damages. Saunders did not
    make this claim in the trial court, and given how the jury was instructed, we are not
    persuaded to so interpret its award. We will note, however, that even if the jury
    awarded Saunders rescission damages, she still would be obliged to choose
    between receiving them and receiving specific performance, because the two
    remedies are inconsistent in that rescission is premised on disaffirmance of the
    contract while specific performance is premised on its affirmance. See Dean v.
    Garland, 
    779 A.2d 911
    , 915 (D.C. 2001); 3 DOBBS § 12.7 (6).
    10
    Allen v. Yates, 
    870 A.2d 39
    , 52 (D.C. 2005).
    11
    Ingber v. Ross, 
    479 A.2d 1256
    , 1263 (D.C. 1984); see also Giordano v.
    Interdonato, 
    586 A.2d 714
    , 717 (D.C. 1991) (holding that damages for breach of
    contract and specific performance of the contract were “duplicative” remedies that
    could not both be obtained). We recognize that, in appropriate cases, specific
    performance can be combined with damages other than benefit-of-the-bargain
    damages. See 3 DOBBS § 12.8 (1). The present case does not appear to present
    (continued…)
    12
    makes no difference that Arnold was not a party to the sales contract and was held
    liable only in tort. “A person can sue any number of parties, and obtain a judgment
    against any one, or several of them, but can gain but one satisfaction, even though
    that person may pursue numerous possible avenues of relief simultaneously and
    may obtain several judgments against different persons for the same obligation or
    liability.”12 The Second Restatement of Judgments provides the following apt
    illustration of this point:
    3. A breaks a contract with B as a result of the acts of C.
    Following a trial in which the issue of damages was
    litigated, B obtains judgment against A for $1,000 and is
    paid that amount by A. Under applicable law, the
    measure of damages for the losses recoverable from a
    person inducing breach of contract is the same as that in
    determining the damages recoverable from the person
    breaking the contract. B has no claim against C.[13]
    (…continued)
    such a situation, as Saunders has not identified additional damages caused by
    Arnold‟s interference with her contract.
    12
    47 AM. JUR. 2D Judgments § 769 (footnotes omitted).
    13
    RESTATEMENT (SECOND)      OF   JUDGMENTS § 50 cmt. d (Am. Law Inst.
    1982).
    13
    C. Election of Remedies
    To say that Saunders would not be entitled to both damages for breach of
    contract and specific performance of the contract does not mean she was required
    to elect between those two remedies without knowing how the court would rule on
    her entitlement to each of them.       This court rejected such a requirement in
    Giordano, seeing “nothing in law or policy” to justify it.14 We explained that
    because “[t]he purpose of the doctrine of election of remedies is not to prevent
    recourse to any remedy, but to prevent double redress for a single wrong,”15 the
    “correct course” (absent unfair prejudice to the defendant) is to permit the plaintiff
    to go to the trier of fact on both theories of relief without compelling the plaintiff
    to choose in advance which remedy he or she seeks.16 Duplication of remedies is
    prevented “by permitting the plaintiff to pursue both remedies to verdict and by
    requiring the plaintiff to choose one of them only when it comes time to write the
    14
    Giordano, 
    supra
     footnote 11, 
    586 A.2d at 717
     (rejecting trial court‟s
    ruling that “plaintiff had to elect between her alternative claims before the case was
    submitted to the jury” and could not “await the jury verdict and then select the
    remedy which becomes more advantageous”).
    15
    
    Id.
     (quoting Twin City Fed. Sav. & Loan Ass’n v. Transamerica Ins. Co.,
    
    491 F.2d 1122
    , 1125 (8th Cir. 1974) (emphasis in the opinion of this court).
    16
    
    Id.
     at 718 (citing North Am. Graphite Corp. v. Allan, 
    184 F.2d 387
    , 389
    (D.C. Cir. 1950)).
    14
    judgment or enforce the remedy.”17 As we stated in Giordano, although a verdict
    for the plaintiff on both claims enables the plaintiff to choose the remedy that is
    more “advantageous,” there is “nothing objectionable” in that.18
    Thus, the trial judge erred in denying Saunders‟s request for a decree of
    specific performance solely on the theory that she had “elected to vindicate her
    contract rights by suing Mr. Arnold for damages,” and without making findings as
    to whether Saunders otherwise would be entitled to specific performance if she
    wanted it. That the jury had adjudicated only Saunders‟s damages claim was due
    solely to the judge‟s decision to bifurcate the trial and defer judicial resolution of
    the specific performance claim; it was not due to Saunders‟s abandonment of the
    equitable remedy in favor of the legal one.19
    17
    2 DOBBS § 9.4.
    18
    
    586 A.2d at 717
    .
    19
    Arnold argues that even if the trial judge erred in denying specific
    performance for the reason stated, the denial was legally correct and should be
    upheld for other reasons. He contends, for example, that Saunders cannot be
    granted specific performance because “she failed to demonstrate that she
    performed, or offered to perform, or was ready, willing, and able to perform,
    nearly all of the essential and material terms required of her” under her
    agreements with Hudgens, and that her own “unclean hands” barred her from
    obtaining equitable relief. Brief for Appellee Arnold (emphasis in the original).
    Saunders disputes these contentions. Given that Arnold did not appeal the
    judgment entered in her favor establishing his liability for inducing Hudgens to
    (continued…)
    15
    III.   Conclusion
    For the foregoing reasons, we vacate the trial court‟s orders (1) entering
    judgment against Arnold and in favor of Ruth Saunders in the amount of $40,000
    and (2) denying Ms. Saunders‟s request for a decree compelling Hudgens to
    perform his contract to sell the Property to her. We remand the case for the trial
    court (1) to determine whether Ms. Saunders is entitled to a decree of specific
    performance20 and, if so, (2) to allow her to elect her remedy before the entry of a
    final judgment. As for Ms. Saunders‟s co-appellant, Jerome Saunders, we grant no
    (…continued)
    breach the contract; that Arnold‟s standing to make these arguments is unclear; that
    Arnold‟s alternative grounds for affirmance would require this appellate court to
    immerse itself in a factual record best scrutinized, in the first instance, by the trial
    judge as trier of fact; and that the trial judge has yet to consider whether any of the
    alternative grounds identified by Arnold should preclude Saunders from obtaining
    a decree of specific performance, we consider it premature to reach and resolve the
    issues Arnold raises.
    Similarly, it is premature for this court to consider whether Saunders‟s
    potential entitlement to specific performance is affected by, or subject to, the
    TOPA rights of the tenants who prevailed in CAB No. 8531-06. See footnote 3,
    supra.
    20
    No argument has been made to us that the (partially lifted) automatic stay
    resulting from Hudgens‟s bankruptcy filing or any order of the bankruptcy court in
    his case precludes a decree requiring specific performance of his contract with
    Saunders, and we express no view on that subject.
    16
    relief and dismiss his appeal for want of prosecution, as explained in footnote *,
    supra.
    Vacated and remanded.