These consolidated appeals arise from three related actions in Superior Court: a suit for specific performance by Steven Madeoy against the former owner of an apartment building at 3511 13th Street, N.W., who Madeoy alleged had agreed to sell him the building; a counter-suit by the former owner and the purchaser of the building against Madeoy alleging, inter alia, that he had tortiously interfered with their contract for sale of the building; and an action to rescind this contract filed by a tenants’ association representing tenants of the building, alleging that they had not been given notice of the sale and an opportunity to purchase their units as required by D.C.Code § 42-3404.02 et seq. (2001).
The trial judge granted summary judgment against Madeoy in his suit for specific performance, concluding that his alleged contract to purchase was not supported by valid consideration. The other two actions were tried to a jury, following which the
On these respective appeals by Madeoy and the tenants’ association, 1 we hold that the judge erred in concluding as a matter of law that Madeoy had entered into, at most, “an executory contract that was not supported by valid consideration.” Triable issues of fact remain concerning whether Madeoy’s promise to perform was — in the judge’s words — “a mere pretense and not a reality” and whether, assuming a valid contract, Madeoy’s failure to make an earnest money deposit as promised was a material breach that excused the seller from performance. We affirm the jury verdict against the tenants’ association.
I.
Sonnythia Lewis was the owner of the property in dispute at 3511 13th Street, N.W., a multi-unit apartment building occupied by tenants. Steven Madeoy owned or controlled an adjoining property and wanted to buy the 3511 13th Street building from Lewis, who was having financial problems. When Mark Tillmon, a self-described consultant/finder (or “bird dog”) for Madeoy, told him that Lewis was ready to sell the building, Madeoy drew up a contract offer to buy it for $1.3 million in cash. The contract specified a closing date of January 16, 2003, and stated that an earnest money deposit of $25,000 was required and had been “[rjeceived.” Lewis signed the contract on January 4, 2003, twelve days before the scheduled closing. According to Madeoy’s later deposition, he immediately wrote a check for $25,000 to the “Tillmon Companies” as called for in the contract and gave it to Tillmon to deposit with the settlement company. Till-mon, however, acknowledged at his deposition that he had not deposited the check and in fact had “lost it.”
Madeoy claimed that he went to the settlement attorney’s office on January 13, 2003, to conclude his side of the transaction, but that settlement could not take place because a cloud on the title had been discovered. In particular, there was an outstanding contract for sale of the property by Lewis to one Arthur Coleman, who later rejected Madeoy’s offer of $50,000 for a release of that contract. On April 22, 2003, facing foreclosure on the property, Lewis declared bankruptcy, but on June 14, 2003, she contracted to sell the property to an entity controlled by Christine Nuyen for $1,545,000. 2
That same day, Madeoy sued Lewis for breach of contract and specific performance, and sued Nuyen for tortious interference with his contract to purchase from Lewis. Lewis and Nuyen counter-sued Madeoy for interfering with their contractual arrangement (as well as for slander of title for having filed a
lis pendens
notice). Finally, tenants of 351113th Street formed a “tenant organization” under D.C.Code
After the trial judge entered judgment as a matter of law against Madeoy (and against Lewis and Nuyen on their counter-suit), and the jury returned a verdict against the tenants, these appeals were taken. 4
II.
As explained, the judge granted summary judgment against Madeoy because, in the judge’s words, his contract to buy the property from Lewis “was not supported by valid consideration.” The judge gave essentially two reasons for this conclusion. First, Tillmon, “acting as the go-between for [Lewis] and [Madeoy,] never deposited [the earnest money] check as required by law.” Citing the escrow requirements of D.C.Code § 42-1704(a),
5
the judge reasoned that to recognize Madeoy’s contract offer as valid when he and his agent neither deposited nor delivered the earnest money cheek “would circumvent the regulatory scheme.” More broadly, the judge relied on the principle that “a stated consideration which is a mere pretense and not a reality is not sufficient; because if in fact no consideration was intended and none given, recital of a consideration cannot make the promise enforceable,” quoting
Allen v. Allen,
We hold that neither ground stated by the judge permitted rejection of
In general, “ ‘[a] promise is a sufficient consideration for a return promise. This has been true for at least four centuries, ever since bilateral contracts were recognized.’ ”
Jacobson v. Jacobson,
Nothing in the contract between Madeoy and Lewis stated or implied that the earnest money deposit was a condition precedent to formation of a binding contract, rather than a possible condition upon “the seller’s duty to perform.” Friedman on Contracts,
supra.
In concluding nevertheless that Madeoy’s failure to deposit the earnest money made the contract “executory” because “not supported by valid consideration,” the judge relied first on the statute codifying the duty of an “escrow holder” such as Tillmon to deposit entrusted funds in a financial institution.
See
§ 42-1704(a),
supra.
But the requirements of that statute do not purport to affect the validity of a real estate contract between a buyer and seller. Part of a
The judge’s broader reason for invalidating the contract was his determination that the “stated consideration” was “a mere pretense and not a reality,” quoting Allen, supra. In effect, the judge concluded that Madeoy never intended to be bound by his promise to pay $1.8 million for the property (he knew, after all, that Lewis “was in imminent danger of foreclosure”), and that the falsity of the specific promise to provide $25,000 in earnest money evidenced the “pretense” of his commitment. As Allen illustrates, there may indeed be situations where “sham consideration” — a “fals[e] ... recital that something has been paid or done” — serves to invalidate the consideration and as a result the contract. 2 CORBIN ON CONTRACTS § 5.17, at 83 (rev. ed. 1995); see also Restatement (Second) of the Law, Contracts § 71 cmt. b., at 173 (1981) (“[A] mere pretense of bargain does not suffice, as where there is a false recital of consideration”). But even assuming, as the judge evidently believed, that Madeoys failure to deposit the earnest money could suffice as proof that his promise to purchase was “mere pretense,” we do not see how that issue could fairly be resolved on summary judgment rather than by a trier of fact. 7
In essence, what the judge perceived to be at issue was Madeoy’s motive or intent — a possibly fraudulent, or at least insincere, attempt to induce Lewis to contract, perhaps to forestall other offers for the property pending a possible foreclosure. In general, however, summary judgment is “not appropriate and should be granted sparingly in cases involving motive or intent as material elements.”
Young v. Delaney,
The same result applies if we view the issue not as one of consideration, but rather of whether, assuming a valid contract, Madeoy materially breached it by not tendering an ear-nest money payment, thereby relieving Lewis of any duty to perform. Whether a particular breach of a contract is “material” is a classic issue of fact.
See, e.g., Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc.,
III.
By the parties’ agreement, the tenants’ suit for rescission of the Lewis-Nuyen contract was submitted to the jury on the single question of whether “plaintiff 3511 13th Street, Tenants’ Association, Inc. [has] proven by a preponderance of the evidence that defendant Sonnythia Lewis did not give notice as required by posting and mailing to the tenants of an offer of sale for the housing accommodation at the address on May 8, 2003.” The May 8 date, which referred to Lewis’s testimony that she had notified each tenant on that date in connection with her aborted sale of the property to Centennial Development, see note 2, supra, was key because the parties agreed that notice of that sale offer would serve as notice for the contract a month later between Lewis and Nuyen. 10 The jury found that the tenants had not proven lack of notice, and on appeal they do not argue that the verdict was unsupported by or against the weight of the evidence. Instead, they assign three errors in the judge’s conduct of the trial, none of which, we conclude, justifies disturbing the jury’s verdict.
A.
The tenants argue that the judge erroneously admitted into evidence (and gave the jury as an exhibit for its deliberation) a June 24, 2003 letter from Linda Harried, an official with the District’s Department of Consumer and Regulatory Affairs (DCRA), to Sonnythia Lewis stating that the agency’s file showed that statutory notice (of the Centennial Development offer of sale) had been “properly delivered to the tenants.” Although Lewis and Nuyen originally sought admission of the document as a business record, they do not dispute on appeal that they failed to lay the basis for that hearsay exception, and that, accordingly, the letter could not be admitted for the truth of the assertion just mentioned. But they point out that the judge expressly told the jury in his final instructions that the document had been admitted “for a limited purpose relating to an issue that I have to decide” and that the jury was “not to consider ... reference^] to that letter in any way as proof that the tenants actually ... receive[d] the notice required be given them before the owner sold the building.” The tenants respond that if the letter’s only relevance was to an issue the judge and not the jury “[had] to decide,” it should not have been put before the jury, and that despite the quoted limiting instruction jurors might have looked to its contents as substantive evidence of notice, especially when the judge had earlier told them confusing things such as that the letter could be given “whatever weight, value you think is appropriate” even if it did “not prove the question that you have to resolve.”
On review, we conclude that there was, indeed, no reason for the judge to admit the Harried letter into evidence. Christine Nuyen had testified that she went through with the purchase of the building from Lewis partly relying on Harried’s letter. But the parties agreed that Nuyen’s reliance or not was relevant only to the equitable remedy of rescission the tenants were seeking — an issue of remedy which the judge would decide only if the
We nevertheless are satisfied that the erroneous admission of the letter did not influence the outcome of the jury’s deliberations.
See, e.g., R. & G. Orthopedic Appliances & Prosthetics, Inc. v. Curtin,
For these reasons, we can “say with ‘fair assurance’ that the judge’s” erroneous admission of the letter “did not ‘substantially swa/ the jury[s]” determination that the tenants had not met their burden of proof.
R. & G. Orthopedic,
B.
The tenant’s remaining two arguments may be dealt with more summarily. They contend first that the judge’s delay in granting Madeoy’s motion to dismiss the counter-suit by Lewis and Nuyen for abuse of process until after evidence was presented on that claim prejudiced them in the eyes of the jury. This, they assert,
Beyond the conjectural nature of this claim of prejudice, however, the dispositive point is that the tenants did not seek bifurcation of the two actions before trial and did not object when the judge, having denied their motion to dismiss, permitted Lewis and Nuyen to present their case first before the tenants’ presented their proof of lack of notice. 13 Indeed, after the judge dismissed the counter-suit at trial, he told the jury that “the evidence that you heard regarding the claim of abusive process, which is no longer before you for decision, you would have heard anyway as part of this case [alleging lack of statutory notice]” and “you will consider that evidence as part of the context for that decision you’ll make” — and again the tenants voiced no objection. We therefore reject, as the afterthought it essentially is, the tenants’ claim of unfair amalgamation of the evidence.
Finally, the tenants argue that the trial judge erred in declining to instruct the jury, at their request, that “ambiguities” in the evidence as to whether or not they had received notice had to be resolved in their favor. The tenants derive their claim of right to that instruction from D.C.Code § 42-3405.11, which states that “[t]he purposes of this chapter favor resolution of ambiguity by the hearing officer or a court toward the end of strengthening the legal rights of tenants or tenant organizations to the maximum extent permissible under law.” The tenants confuse statutory interpretation with the factual issue the jury had to decide of whether they had been given the notice the statute requires. Section 42-3405.11 is entitled “Statutory construction,” and questions of “ambiguity” in a statute — and in whose favor a court must resolve them — are the province of the court (or an administrative agency) to answer as a matter of statutory interpretation.
See, e.g., Board of Dir. of the Washington City Orphan Asylum v. Board of Trustees of the Washington City Orphan Asylum,
The tenants implicitly concede this point, we think, when they point to “crucial ambiguities” in the statute including “whether the notice is required to be posted in any particular language,” such as Spanish (Br. for Tenants’ Assoc, at 21). Issues of that kind by their nature require interpretation of the statute or related regulation,
14
which a court undertakes using
Affirmed in part and reversed in part, and remanded for trial on the suit for specific performance.
Notes
. The defendants in the tenants' action for rescission have filed a protective cross-appeal in the event error is found in the jury’s verdict in that case. In view of our disposition of the appeals, it is unnecessary to reach the issues raised by the cross-appeal.
. The record does not indicate what became of the contract between Lewis and Coleman. However, on May 8, 2003, Lewis had executed yet another contract to sell the building to Centennial Development for $1,350,000. Although that sale did not proceed to settlement, the notices Lewis claimed to have given the tenants in connection with it formed the basis for her assertion, which the jury accepted, that she had complied with the notice and right-of-first refusal provisions of the Rental Housing Conversion and Sale Act, D.C.Code §§ 42-3404.02 et seq. (2001).
. Evidence at trial established that in return for assignment of their rights to purchase to Madeoy, see D.C.Code § 42-3404.06, the tenants who intervened in his suit were each to receive a total of $45,000 from Madeoy per rental unit, the bulk of the payments conditioned upon the success of either his suit for specific performance or their action to rescind the Lewis-Nuyen contract.
. For simplicity’s sake, we refer to the appellant/cross-appellee "3511 13th Street Tenants' Association” throughout as "the tenants.” Instead of "3511 13th Street, N.W. Residential, LLC,” we refer to the appellees/cross-appellants as "Lewis and Nuyen.”
. Section 42-1704 states in relevant part:
(a) In any real estate transaction in which any person is entrusted, receives, and accepts, or otherwise holds or deposits monies or other trust instruments, of whatever kind or nature, pending consummation or termination of the transaction involved, whether or not the person is required to be licensed under this subchapter, the monies, in the absence of written instructions to the contrary signed by all parties to the transaction, shall be:
(1) Deposited within 7 days in an account in a financial institution located within the District whose deposits are insured either by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, or their successors;
(2) Maintained by the escrow holder or trustee as a separate account for monies belonging to others; and
(3)(A) Retained in an account until the transaction involved is consummated or terminated, or until proper written instructions have been received by the escrow holder or trustee directing the withdrawal and disposition of the monies....
.
Prudential Preferred Props,
v. J
& J Ventures, Inc.,
. In
Allen,
for example, this court sustained the trial court's finding
as
trier of fact, after receipt of “parol evidence” contradicting the "[r]ecital of consideration,” that the promised consideration was neither “intended [nor] given.”
.
See also Rawcliffe v. Aguayo,
. Similar issues of fact exist regarding Lewis's claim that Madeoy’s actions constituted "anticipatory repudiation” of the contract.
See Keefe Co. v. Americable Int’l, Inc.,
. The parties agreed, specifically, that because the price offered by Nuyen exceeded Centennial’s earlier offer, an exercise by the tenants of their right not to purchase the building on the first occasion would obviate the need for notice of the subsequent sale offer.
. Lewis and Nuyen argue that the letter was relevant to Lewis’s "credibility” in testifying that she had given the required notice. The objection to the letter’s contents, however, was not on relevance grounds but to their hearsay character, when no one had established the letter’s trustworthiness as a business record. Contrary to the defendants’ argument, when counsel for Madeoy elicited from Lewis only that she had written Linda Harried informing her that notice had been given, he did not "open the door” to admission of the hearsay contents of Harried’s response.
. At one point, in fact, counsel for Nuyen told the jury in summation: "[L]et there be no dispute. It may be called Tenants' Association v. Nuyen. This is really Madeoy v. Nuyen.”
. Hearing no objection, the judge allowed this order of proof after Nuyen's counsel pointed out that her suit had been filed first and that the tenants, instead of filing a separate suit, had "intervened in our case” with their action to rescind the contract.
.See
DCMR § 4701.4 (requiring “[a] Spanish translation of that information [the request to tenants for election] to be sent to