Nayereh Sahrapour v. LesRon, LLC and Shaw Centre, LLC

704 joint trial plain for

failure sever States, Nayereh SAHRAPOUR, Taylor A.2d error. v. United 603 (D.C.1992); 451, n. 17 Hammond 456 al., Appellants, et cf. States, 1066, v. 880 A.2d United 1089 v. (D.C.2005), abrogated part grounds on other 813, v. 547 U.S. 126 Washington, Davis LESRON, Centre, LLC and Shaw 2266, 224 (plain 165 L.Ed.2d S.Ct. LLC, Appellees. appellant did not con error review when joinder object to on temporaneously based Nos. 13-CV-724 13-CV-725. trial). occurring during events Appeals. District of Court of Columbia The fact that counsel for one effectively acts as “second defendant Argued Sept. 2014. prosecutor” generally insufficient to con July Decided prejudice requiring severance. stitute States, Roy v. 871 A.2d United

(D.C.2005); States, v. Mitchell United (D.C.1990). Here,

A.2d where

there was substantial evidence of Mr. guilt independent

Hawkins’s facts alleged posited by Mr. motive Verter’s

counsel, plain we find no error. Id. at States,

181-82; A.2d Dancy v. United (D.C.2000).

259, 266 Mr. Hawkins cannot “so clearly preju

show error was rights as to jeopardize

dicial substantial very integrity fairness and of the tri

al,” Taylor, (quoting A.2d at 456 n. States,

Watts United

(D.C.1976) (en banc)).

VI. Conclusion reasons,

For the we foregoing reverse for

Mr. Hawkins’s conviction obstruction of 22-722(a)(3)(B) §

justice under D.C.Code

and Mr. for Verter’s conviction obstruction 22-722(a)(6), justice under D.C.Code entry for of a judgment we remand

acquittal those counts. We also re- Hawkins’s

mand for of Mr. merger ob-

struction convictions under D.C.Code (B). 22-722(a)(2)(A) We affirm all

remaining convictions.

So ordered. extrinsic evidence as

refused to consider find meaning of those documents. We agreement and the deed both remand to ambiguous. We therefore proceedings. trial court for further I. following undisputed. facts are

The adjacent owned two build- Shaw Centre Street, and one at 1230 9th NW ings, one Street, alleyway An at 1232 9th NW. Malloy Nayereh appellants P. for Seann be- four feet wide runs approximately is Beheshtian. George and Sahrapour buildings. May In Shaw tween the Charnoff, Doug- with whom Mikhael D. to sell 1230 9th Street agreed Centre Richmond, VA, Rucker, Jr., was on las P. Haas Sahrapour. Attorney Robert Ms. Haas, brief, appellants for Robert W. Sahrapour in the transac- represented Ms. P.C., Associates, Sovereign and Haas & agreement states that purchase tion. The Company. Title “approximate- consisted of 1230 9th Street Cox, Christopher H. with whom David 3,027 legally land ... ly square feet of DC, Glaser, on the Washington, was A. 878, Block/Square described as Lots LesRon, brief, appellee LLC. for The located at 1230 Map property 40 C.” 3,026.4 square feet 9th Street measures Klopman, whom Lau- Benjamin A. included and Ochs, DC, alleyway when the at issue is Washington, was on the rance J. 2,777.5 alleyway is Centre, square feet when the brief, LLC. appellee for Shaw fur- purchase agreement excluded. The McLEESE, BECKWITH and Before that “the binding ther states that it is and NEWMAN, Judges, and Senior Associate execution hereof shall survive the provision Judge. delivery and and of the deed aforesaid merged therein.” shall not be McLEESE, Judge: Associate for the sale George prepared Mr. Haas the deed Nayereh Sahrapour, Appellants Haas, The deed states that Beheshtian, & Associ- of 1230 9th Street. Robert Haas P.C., conveyed Sahrapour to Ms. ates, Sovereign Company Title Shaw Centre 28 in Ambrose Roth’s Subdi- granting summary “Lots appeal from orders Centre, Square of Lots in 368.” Lots appellees Shaw LLC vision judgment LesRon, Square property a 28 in 368 describe the vesting title to LLC al- located at 1230 9th Street without the alleyway Appellants LesRon. disputed alleyway located in Lot 22. purchased leyway; Sahrapour claim that Ms. identifies the tax lot as alleyway from and The deed also disputed Shaw Centre 877 and 878.” Tax lot unlawfully by “Square sub- Lots that Shaw Centre acted exist, and tax lot 878 de- alleyway to sell the 877 does not sequently purporting portion prop- the front trial court held that both scribes to LesRon. The erty at 9th Street. The back Ms. Sah- located between disputed 9th Street and the subsequent portion and a rapour and Shaw Centre The deed also contrary ap- alleyway lie in tax lot 885. unambiguously deed were property states that claim. The trial court therefore pellants’ injunction improvements enjoining all further trespass. WITH Ms. “TOGETHER alleys, ways, thereupon, rights, Sahrapour and the and Mr. brought Beheshtian waters, privileges, appurtenances against Centre, and ad- seeking cross-claim Shaw anywise vantages belonging, contract; thereto breach damages for an order The recorded in requiring deed was Shaw Centre to appertaining.” record a deed n instrument confirming October boundaries of that Ms. pur- had May Shaw Centre contracted chased; order quieting an title in and to at adjacent property located sell the disputed alleyway; and indemnification Schreiber, to Ronald 9th Street and Leslie if prevailed LesRon its suit. of LesRon. original owners to be agreement describes the proffered Appellants extrinsic evidence Street, Northwest conveyed as “1232-9th in support of their claim Sahrap- that Ms. Lot Washington Square DC 0368 0885.” . purchased alleyway. our the Specifically, point purchase agree- after the At some appellants claimed that the real-estate signed, Sahrapour’s was Ms. hus- ment agent that the alleyway stated was includ- Beheshtian, informed band, George Mr. sale; drawing ed in that a the location already Sahrapour that Ms. had Schreiber parties closing both confirmed at the alleyway the 1232 9th purchased between alleyway the the indicated was included in Haas also 1230 9th Street. Mr. Street sale; and that Shaw Centre the sealed Ms. Sahrap- LesRon’s counsel of informed entrances from 1232 9th Street the al- to claim. and LesRon our’s Shaw Centre leyway provided key a in to the door subsequently agree- purchase modified the alleyway the Sahrapour. the back of to Ms. explicitly alleyway. to A ment include the dispiited appellants’ ev- Appellees warranty the sale of special reflecting deed idence and countered with extrinsic evi- on August 9th Street was recorded 1232 dence of their own. in alleyway 2007. The is included the court held that purchase The trial the description in this deed. agreement Shaw and Ms. between Centre subsequently Haas the Oc- Mr. amended and the deed Sahrapour October 2006 2006 Centre and tober deed between Shaw unambiguous were both and that extrinsic reflect the specifically Ms. to evidence therefore could not be consid- conveyance alleyway Sahrap- of the Ms. trial ered. The court also concluded changed designation Mr. Haas our. the the purchase agreement merged the tax lot He also from 877 to tax lot 885. deed and that October 2006 the October portion that “a of 22 as shown added Lot final represented 2006 therefore the attached survey” on the was between agreement parties. written Sahrapour. Ms. granted summary judg- The trial court seeking appellees, sued a dec- in of title to appellants,

LesRon ment favor vested void; LesRon, alleyway that the was laration amended deed declared title; money damages money prepared by for slander amended deed Mr. Haas of damages trespass; permanent for void.1 Although formally parties resolve the trial court did not all lants were not to this case case, permit- the claims and counterclaims the trial court nevertheless were they jurisdiction participate appellants have because seek ted to merits because we affecting closely "changing parties of an order were related cases. review have possession property.” parties dispute appellants whether those D.C.Code 11- 721(a)(2)(C) (2012 Repl.). appel- standing participate present appeal. of the in the Some

708 that a con If a court determines

II. court— ambiguous, or deed is “the tract and deeds interpret contracts We probative extrinsic evi admitting after contracts, “objective” law under determine what reasonable dence—must language of the meaning that written parties would person position rights and liabili “govern[s] the contract disputed language thought have intent regardless parties, ties of the Bilaal, Dyer meant.” they entered into at the time (D.C.2009) (internal quotation marks omit contract, language is unless the written ted); Foundation Preserva see also for and definite un of a clear susceptible Arnold, Georgetown v. tion Historic fraud, (D.C.1994).2 du unless there der[stand]ing, A.2d ress, DSP Venture or mutual mistake.” III. (D.C. Allen, A.2d Inc. v. Grp., 2003) (internal marks brack quotation A. omitted); Joyner v. Estate see also ets turn first We (D.C.2012) Johnson, (ap A.3d and Ms. agreement between Shaw Centre of contracts “objective” law plying The trial court concluded that Sahrapour. deeds). “merged” with deed, and that the deed therefore a trial review de novo court’s We rights the document that determined the a contract or deed is ruling as to whether to the respect of the 857; 36 A.3d at BSA ambiguous. Joyner, that, in general, at issue. It is true the Hawkins, 988, 983 A.2d P LLC v. 77 Street agreement that provisions purchase of a (D.C.2009). or deed is A contract 993 delivery the of a deed are satisfied is, in ambiguous provisions if “it or the deed. merge subsequently into a delivered are, fairly controversy reasonably or sus Dawson, 551, v. 554 Haviland inter ceptible of different constructions or (D.C.1965). merger would “extin Such or of two or more different pretations, guish” parties’ rights pur the under the ” (in Joyner, 36 A.3d at 856 meanings.... agreement. Burka v. Crestview chase omitted). A marks con quotation ternal (D.C.1974). 853, Corp., 321 A.2d 855 if “the ambiguous tract or deed is not case, however, the present purchase the meaning its without court can determine agreement the agreement states knowledge than a guide other merged” “shall not be with the deed. which, Thus, from the nature of simple provisions purchase facts the deed, meaning depends.” agreement merge in its do not into the language general, omitted). (internal appellants rights remain free to assert quotation marks Id. issue, however, resolving the but not the latter. be- in former We need not decide 490, See) Sahrapour party e.g., Loffler, App.D.C. Ms. was a trial cause Harten v. 29 standing to raise all of the court and has long ago was abolished 503 That rule See, appeal. arguments being in this raised See, this-jurisdiction. e.g., Mitchell v. Mer- e.g., Barry, 580 A.2d n. Hazel riam, 213, 215, U.S.App.D.C. 188 F.2d (because (D.C.1990) appellants some had ("Distinctions between 'latent' and standing, need to decide wheth- court did not arbitrary 'patent' ambiguities and out- are well). er another did as moded.”). decide We therefore need not any ambiguities in the documents at whether time, jurisdiction 2. At this drew distinc- one patent. latent or issue were ambiguities, patent tions latent and between permitting evidence to be considered arising purchase agreement. under lot number does not accurately indicate See, Antone, e.g., Meyers v. 57 the A.2d boundaries of the property to be con- (D.C.1967) (rejecting argument veyed. Tax corresponds that sales lot 878 deed, portion front merged property, contract into because sales but does not encompass the provisions portion contract stated that of sales back of the proper- deed). ty, everyone agrees which merged” contract “shall not be into was intended to conveyed. be Because nothing pur- further pur We conclude agreement clearly chase indicated whether agreement chase ambiguous is as to alleyway was included in the property alleyway whether the was included in the conveyed, to be reasonable parties could sale. The states that have had different beliefs about whether 1230 9th Street “approximately consists of Ms. had contracted to 3,027 square feet legally of land ... de Thus, alleyway. we conclude that the Block/Square scribed as Lots purchase agreement is ambiguous on that C_” Map Nothing agree- point. address, ment —neither the street nor the The trial court indicated even square footage, nor the tax lot number— if there were ambiguity, extrinsic evidence unambiguously indicates the boundaries of may not be considered unless there is clear conveyed. be The street and convincing evidence of mutual mistake. address does not indicate whether al- disagree. We may Extrinsic evidence leyway was to be included in convey- admitted either in the ambiguity face of ance, alleyway immediately because the cases mutual E.g., mistake. DSP adjacent building at that address (the Venture Grp., 830 A.2d at 852 lan-. and could reasonably part be considered guage governs a contract “unless the 3,027 approximation address. The written susceptible is not of a square feet does not itself clearly estab- clear and definite understanding], or un included, lish whether alleyway fraud, duress, less there is or mutual mis agreement because the specify does not take”) added). (emphasis how that approximation was reached. The approximation suggest, does tend to Appellants how- argue once extrinsic ev- ever, alleyway that the considered, was intended to be idence is purchase agree- included in conveyance, it properly because is ment should be understood to undisputed that 1230 9th Street measures alleyway. include the Appellants further 3,026.4 square feet alleyway argue with the they obtained equitable title to 2,777.5 square feet without the alleyway.3 alleyway purchase agree- when the Finally, the tax-lot number does not indi- ment was executed. The trial court did alleyway included, cate whether the issues, was not address these and we leave parties because the concede that the tax- them for the trial court on remand. law, parties dispute 3. The apparently whether the extrinsic evidence is admissi- agreement gross,” in this case was a sale "in ble when it is unclear from the face of the i.e., whether the statement of the area to be contract whether the contract is a sale in awas mere estimate that was not See, Bloom, gross. e.g., Witmer v. 265 Md. general- "of the essence of the contract.” See 173, 323, Moreover, 288 A.2d 325 Sarwar, 248, ly, e.g., Cavacos v. 313 Md. 545 purchase agreement even if the in this case 46, (1988) (internal quotation A.2d marks gross, were a sale in we would still view the omitted). We have not found case dis- ambigu- and the deed as cussing gross” the "sale in doctrine under ous, for the other reasons stated in text. Maryland District of Columbia law. Under 28, physical than Lots B. smaller in the deed property descriptions interpretation turn to the nextWe contradictory. degree and to a are unclear stat 2006 deed. The deed the October cited, not and we have The have conveyed to Ms. that Shaw Centre ed found, addressing local cases whether “Lots 21 and 28 Ambrose ambiguity permitting conflicts create such Square of Lots in Subdivision Roth’s evidence. Other consideration of extrinsic al ... TOGETHER WITH 368.... however, courts, have held that deeds were anywise belonging, or leys ... thereto evidence there ambiguous, and extrinsic alleyway disputed appertaining....” considered, where properly fore was immediately adjacent to Lots and 28. in description in the deed was property not indicate whether this The deed does See, contradictory. e.g., Ever complete or alleyway belonging or in alleyway is an Bosch, 648, 50 Cal. Cal.App.2d ett v. property oth anywise appertaining to the (deed 813, (Dist.Ct.App.1966) Rptr. conveyed. reference to erwise to be This description property ambiguous because alleyways contributes to our conclusion and bounds conflicted with de metes ambiguous. Annapo See that the deed is number); property by lot scription of Lindsay, v. Prop. lis Rds. Owners Ass’n Jordan, 220, 223-24 260 S.W.2d Grimes 270, 749, Md.App. 758-70 (same); (Tex.Civ.App.1953) Snow v. Gal (Md.Ct.Spec.App.2012) (affirming trial Tex.Civ.App. 123 S.W. lup, 57 (1) language of rulings plain court’s (1909) (extrinsic evidence admissi 224-26 alleys and transferring deed lot 19 and in deed ble where anywise ways “belonging appertain property descriptors neces omitted one ing” ambiguous as to whether sary enclose area intended to be con adjacent to lot strip transferred of land veyed). (2) 19; of other after consideration evidence, interpreted properly deed was argue problems that the with Appellees land), adjacent ajfd strip to transfer give the tax-lot in the deed do not numbers grounds, on other part part and rev’d in in the ambiguity, rise to because (2013); Kirkpat 431 Md. 64 A.3d 916 must described in District of Columbia Brown, rick v. 59 Ga. Al- lot numbers. terms of subdivision (deed half of lot that transferred south though may be described properties members, rights, appurte “the numbers, appellees terms of subdivision lot belonging, any ... or in nances thereof any provision requires not cited have ambiguous was as to appertaining,” wise describing property. that means of See strip proper deed transferred of whether (2012 Repl.) (purchas- 1-1322 D.C.Code 27; ty adjacent to south half of lot trial property may er of subdivided refer permitted consider appropriately court describing property). record in plat and evidence, jury per ation of extrinsic authority appellees cited Nor have missibly adjacent strip prop that found suggesting that references to the subdivi- deed). by erty alleyway transferred even in the dispositive sion lot numbers is contradictory ambiguous

Moreover, the tax-lot face of other the deed identifies to be con- descriptions as numbers of the accept therefore are unable to veyed. Tax lot We “Square Lots 877 and 878.” exist, contention that the subdivision appellees’ tax lot 878 makes does not in the current controlling lot numbers are up only part of Lots 21 and 28. Because setting. tax and tax lot 878 is lot 877 does not exist prob-

We need not decide whether the not override evidence of the mean parties, lems with tax-lot numbers in the deed but aid in deter mining meaning prescribe legal themselves would suffice to render the effect meaning when Rather, is doubt.” ambiguous. we hold that am- (Second) Restatement Contracts biguity is created the combination of cmt. a More specifi problems language those and the deed’s cally, comment e to Section 203 conveyance alleyways. about the

states that the favoring rule specific terms general “yields over terms C. manifestation of a contrary inten despite dissent concludes tion.” Id. at cmt. e. Section 203 descriptions errors and conflicts therefore does not support a rule conveyed property, both the purchase may extrinsic evidence never be agreement and the unambigu- deed are so considered to help resolve a conflict preclude ous as to consideration of extrin- between more specific and more sic analysis evidence. Our differs from the general contract language. Al in a respects. dissent’s number of though the suggests dissent that this Although apparently the dissent court adopted such a flat rule in require high degree would of am- Ackerman, Abdelrhman v. 76 A.3d biguity before permitting consider- (D.C.2013), we disagree. evidence, ation of extrinsic our cases The court in Abdelrhman stated provide support substantial for a “greater weight” given See, rigid approach. e.g., less Azik- specific language, not that such Columbia, en v. District always must given be con (D.C.2013) (“Where 213, 219 there is trolling weight. Moreover, the court clarity some lack of in the terms of primarily rested on the conclusion contract, testimony regarding allegedly conflicting lan the intent of the and the guage could be reconciled. Id. at meaning of the terms in the context Out-of-jurisdiction 890-91. authori may required, properly and will ty supports the conclusion that ex be admitted in order to reach an may trinsic evidence in appropriate objective (brackets, interpretation.”) circumstances be considered re ellipses, and internal quotation solving general a conflict between omitted). marks specific and more contractual lan 2. The dissent understands Section 203 See, guage. e.g., Yerington v. La

of the Restatement of Contracts Inc., Z-Boy, 124 S.W.3d (Second) to forbid consideration of (Mo.Ct.App.2004) (finding contract evidence resolve a con- ambiguous where apparent conflict specific flict between more and more general language between and more general contract terms. We under- specific language; reversing for trial stand Section 203 otherwise. evidence); court to consider extrinsic first comment to Section Maguire, Conn.App. Mulla v. authors explain (2001) (“Because of the Restatement A.2d that the principles of contract inter- specific the conflict between the in pretation in reflected Section 203 tent map showing clause and the “apply only choosing among rea- right-of-way general grant interpretations. They sonable ing ambigui- do clause introduces some compar- numbers seem instrument, and tax lot we also con- ty into the ”); ways to describe the ably specific .... see extrinsic evidence sider Real Thompson Although e.g., property. location of a generally, 90.02(d)(1) (3d § Thomas Property that each subdivi- dissent indicates (The 2013) favor- “presumption single ed. contained within a sion lot is prevail will specific lot, clear to us from tax that is not that appears it unless Moreover, see no we the record. ”). otherwise.... intended controlling weight why reason to in- appears Similarly, the dissent given in this case to should be of the Restate- terpret Section simply lots to subdivision references of preclude consideration ment lots are on aver- because subdivision a con- evidence to resolve par- tax lots in the age smaller than contract flict a handwritten between property square ticular where contract typed printed a term and are we aware located. Nor commentary to the Re- term. The ap- an authority supporting such inter- contradicts such an statement e.g., 14 Pow- generally, proach. See (Second) Restatement pretation. 81A.05[3][c], Property on Real ell (rule cmt. f Contracts (2015) (“The dif- practical at 81A-97 favoring handwritten con- generally rule favor- ficulty employing [the “yields terms to manifestation tract general ing specific language over intention”). contrary aof language] is the determination suggests further 4. The dissent general is more which us- descriptions property specific. is more some [In which num- square and lot ing subdivision eases,] descriptions ... seem trump as a matter law bers equally general[, and selec- the] descriptions using tax lot numbers. depends one over the other tion of dissent, so, according to the That is opinion viewpoint largely on (a) lots because subdivision fact.”) (citation finder of omit- square average are on pertinent ted). than the tax lots smaller also concludes that the 5.The dissent (b) lot is square; each subdivision lot parties intended the subdivision single tax wholly contained within controlling, because numbers to be (c) lot; lots references to subdivision lot numbers are used subdivision specific therefore more than ref- are deeds, recording whereas tax lot (d) lots; refer- erences to tax taxa- “only are used for the numbers therefore ences to subdivision lots Although tion of real estate.” subdi- the admission preclude control and permissible lot numbers are vision help evidence to resolve of extrinsic for real- way property to describe descriptions. As we conflicting purposes, require- there is no estate already we do not explained, have See, e.g., they ment that be used. specific that the more two agree (2012 Repl.) § 1-1322 D.C.Code conflicting descriptions requiring use of (permitting but control, re- necessarily will without numbers). and lot square subdivision par- to other indications of the gard Moreover, par- for it is not unusual intent, including extrinsic evi- ties’ lot numbers to de- ties to use tax appropriate. Leaving dence where conveyed. being aside, scribe subdivision lot numbers Bohannon, See, conflicting v. ment e.g., descrip- Mueller contains 852, Neb. 589 N.W.2d 855-56 generally, e.g., tions. See 14 Powell (1999); Greenleaf, 260 Or. Howe 81A.05[3][a], § at 81A-94- to -111. App. 320 P.3d This not appear court does to have see no basis to infer We issue, squarely addressed how- intended to parties give that the Moreover, according ever. to one controlling lot numbers subdivision treatise, of [these “some canons of event of a conflict effect with questionable construction] are Nor, the tax lot numbers. for that merit or have fallen into disuse.” matter, authority we aware of are According Id. at 81A-94. to the lot holding that subdivision numbers treatise, same “it is essential that a given to be generally preference are attempt court first to determine and over tax numbers. lot interpret the intention of the states that “metes 6. The dissent and from the and documents the sur- control generally they bounds when rounding circumstances ap- before descriptions conflict other any plying of the canons of construc- ... the metes land unless tion.” at Id. 81A-95. We need not descriptions bounds themselves are delve further into these issues case, however, This incomplete.” case, say this to except for the “metes and does not involve bounds” explained, reasons we have we con- See, Garner, e.g., B. descriptions. clude that the (10th Dictionary Black’s Law and the deed in this case are ambig- ed.2009) (defining “metes uous and that extrinsic evidence territorial limits “[t]he bounds” as should therefore be considered to as property real measured dis- help meaning. determine their angles designated tances from Everett, CahRptr. 7. In at adjoin- in relation to landmarks and court that a deed concluded contain- ing properties”); Powell ing conflicting descriptions of the (discuss- 81A.05[2][b], § at 81A-83 property ambig- to be and bounds” method “metes suggests uous. The that Ev- dissent Rather, describing property). real erett rests on unusual features of conflicting descriptions in this law, California the features the systems case two different involve dissent identifies are relevant to government designates which the holding pertinent Everett— property. parcels gener- of real See may con- extrinsic evidence 81A.05[2][d], ally, e.g., 14 Powell sulted when a deed contains two (describing “plats” at 81A-92 use of descriptions of the conflicting prop- property); real describe C.J.S. erty conveyed. 50 (2008) (“A CaLRptr. to be at ‘plat’ § 16 Boundaries is event, ample there is lots, of land into a subdivision authority other same effect. streets, alleys, upon marked e.g., 12 generally, See Am.Jur.2d earth, represented paper.”). at Boundaries it generally, More is true that some (“Parol always admissi- evidence courts identified various canons have between calls explain ble conflicts concerning of construction the rela- real give description [of weight differing types tive or a being conveyed], when a docu- variance be- 714 inter- properly lants’ claims land in the description of

tween a purchase agreement land map preted, of the plat and the deed ....”) (citing conveyed alley therein at issue. referred to the deed eases); Am.Jur.2d Deeds 28 Finally, disagree with the dis we (“If conflicting there are at in of the clause interpretation sent’s cannot be recon- descriptions which only the conveying not the deed will be ciled, construction otherwise described but property comports adopted which best waters, alleys, ways, rights, also “the parties of the the manifest intention and ad privileges, appurtenances deed and the by the whole as shown belonging, or in vantages thereto case.”) (citing of the circumstances According anywise appertaining.” cases); Am.Jur.2d Deeds cf. dissent, can such (“[A]ll in uncertainties at 217 easement, opposed create an as ambigu- are treated as conveyance a determining boundary of the by to the clarified resort ities to be conveyed. The sole Dis being land gathered parties of the as intention by cited trict of Columbia case itself, the cir- instrument from the however, dissent, circum involves leading up attending and cumstances critically different from stances execution, subject mat- to its May case. See present those of the ter and the situation (3 Smith, Mackey) 59- D.C. time.”) eases); (citing of that as May was question (“The 3,§ at 72 C.J.S. Boundaries conveying a deed described whether controlling consider- important “ways, rights, ... and property and ation, there is a conflict as to where unto the same” also appurtenances intention, boundary, parties’ a is the to, or an easement title or shown sur- express whether over, strip of land retained circumstances.”). rounding seller, get in order to access to a expresses the view that 8. The dissent nearby alley. Id. at 56. The deed agreement placed on alley alley, refer to the did not ensuring burden of buyer adjacent property was not legal descrip- the correctness of the deed, there was described property. Specifically, tion way strip across the preexisting no provisions relies on the dissent May land at issue. Id. at 55-64. indicating support therefore does not a conclu being was sold “as property that the language explicitly convey sion however, provisions, are is.” Those alleys anywise or in belonging the condi- by their terms focused on property to a appertaining described legal not on the property, tion of the convey alley can never title to an be- of what adjacent property. to the described See, e.g., Pitre v. ing conveyed. Moreover, contrary to the dissent’s Trust, F.Supp. Twelve Oaks Maryland (“ suggestion, the Court (S.D.Miss.1993) is’, ‘As when Annapolis Roads Special Appeals property, real utilized in the sale of squarely Ass’n Property Owners will be sold means held, on the basis of all of the rele existing physical condi- its then tion.”). including extrin vant circumstances do not view We therefore evidence, conveying sic appel- as fatal to the “as is” clauses land, ways “belonging veyance strip parcel or in of a or of alleys and anywise appertaining” proper- right, pass rather than a will a title in ty (“It otherwise the deed fee.”); described in also id. at see Il.d conveyed strip adja- a of land title to well appears to be established that a property. 45 cent to the described ‘road,’ purporting convey deed to a 1, 759, 768, A.3d at 751 & n. ‘street,’ ‘roadway,’ ‘alley,’ ‘highway,’ (strip issue was “between of land at ‘way,’will, or in the absence of some 21,” 19, 20, but Lots title to a of of intention indication] contrary strip conveyed by of deed land was parties, be construed as passing alleys conveying Lot 19 only an a easement title in in ways anywise ap- or “belonging (It pointed out, fee. be should how- clear, pertaining”). be we do not To ever, many in cases of hold as a matter law the deed which this result is reached the deci- appellants granted this case title entirely, sion is not based or even alley. body to A substantial of partly, upon principle that out-of-jurisdiction law addresses ‘road,’ deed to purporting convey a in particular whether references etc., only easement, an passes roads, ways, alleys, rights- deeds to upon of parties’ other indications of-way, or other related items con- only intention that an easement vey only create an title or instead Rather, pass.)”). should we hold easement, and the answer to that that the deed’s con- very question context-depen- can be veying and the alleys deed’s conflict- See, Barber v. e.g., dent. Southern of descriptions to Co., Ry. 274 S.E.2d Ga. conveyed be combine to make the (1981) (“It true that in deter- sufficiently ambiguous to as an mining whether interest con- warrant consideration veyed simple is an or fee easement leave to evidence. We the trial land, depends title to case each question court on wheth- remand facts and circum- particular its own er, circumstances, under all stances.”); generally see A.M. alleys to reference the deed Swarthout, Annotation, Deed as to operated convey this case title. Easement, Conveying Fee (1942 379, § A.L.R. II.b.2 & 2015 IV. supp.) in deed (language conveying sum, In we that both the find title, implies grant generally land agreement ambigu- and the 2006 deed are language conveying right

whereas ous. Extrinsic evidence therefore should implies grant generally use land determining meaning considered in easement, but other indications of those We thus remand the documents. deed, such to land as as reference case for further proceedings. road, alley can way, or affect inter- So ordered. deed; pretation of “The nature of such varies such an indic[ations] Dissenting opinion Judge Senior extent from case case that it pages 715-16. NEWMAN at attempt to formu- seems unwise to NEWMAN, Judge, dissenting: Senior respect late rules with general Sahrapour properly examine any given to the effect failed indic[ation] pur- land a deed and land upon that a con- principle broad Inc., 937 A.2d Grp., Inc. v. Clark Constr. The two documents agreement. chase (D.C.2007). 148, 153 parcels of land than may convey smaller subjectively pur intended to The Restatement Contracts Second chase; not intervene to this court should following method for contract presents missteps her absent sufficient correct interpretation: showing' ambiguity in the documents. interpretation promise of a majority’s opinion departs from this thereof, the follow- agreement or a term v. Acker opinion court’s Abdelrhman preference general- of are ing standards (D.C.2013), man, implicit 76 A.3d 883 and ly applicable: resolving method of ly adopts dissent’s (a) a interpretation gives an which ambiguities. Id. at 893 inconsistencies and reasonable, lawful, mean- and effective (McLeese, J., dissenting). to an preferred to all the terms is majority’s opinion I dissent from a interpretation part which leaves unrea- because, view, my pur- neither the land sonable, unlawful, effect; or of no agreement chase nor the deed is sufficient- (b) express given greater terms are ly ambiguous permit as to the introduction weight performance, than course of addition, evidence. I con- of extrinsic trade, dealing, usage course of and of that the corrected deed is void and clude given greater performance of is course alley acquire that did not weight dealing usage than course of or I af- through equitable conversion. would trade, dealing given and course of is trial firm the court’s decision.1 trade; greater weight usage than (c) terms and exact terms are- specific

Deed given greater weight general than lan- contracts, objective Under the law guage; solely language court relies on the this (d) separately negotiated or added document to discern the intent written greater weight than given terms are language of the “unless the written terms other terms not standardized susceptible is not of a clear and definite negotiated. separately fraud, undertaking, or unless there is du (Second) ress, or mutual mistake.” DSP Restatement of Contracts Venture (D.C. Allen, ap- This court follows 203 and Grp., Inc. v. 830 A.2d 2003) (citation specific quotation plies governs and internal the canon omitted). only general if when both the Ambiguity general marks exists irreconcilably “stand proper specific provisions the court determines that the inter Abdelrhman, supra, 76 A.3d at pretation of the contract cannot be derived conflict.” exclusively, ‘construing the canon the con- from the contractual 891. Unlike drafter,’ applies requires against consideration of evidence out tract which Founds., evidence,2 considering side the contract itself. Steele after Sahrapour might favorable him. This canon of 1. Whether have other reme- instrument construction, not an issue before us. proferentem, dies is known as contra secondary interpretation, standard of "Ambiguous language gen- in a contract is proof parties' inferior to extrinsic drafter, erally against the at least construed agreement, authority revealing or to other relatively equal parties were where the understanding.” Bldg. American Maint. bargaining power. party an A who takes Inc., Props., Co. Plaza L'Enfant another, agreement prepared by upon its (D.C.1995) (citations and inter- obligations parts prop- faith incurs his omitted). quotation nal marks given erty, should have construction terms, governs general’ printed canon ‘specific typewritten control printed.”). considering extrinsic evi- applies before dence. Id. The second conflict is between “Lots 21 and 28” and “Lot 878 in square 368.” The regard panel split, Abdelrhman are, individual lot numbers on average, ambiguity amount of ing the needed before smaller and more specific than the Tax ID parties’ extrinsic evidence intent lot Square numbers. 368 is divided into Judge was admissible. McLeese dissented eighteen eight so, lots and tax lots in Abdelrhman because he “would hold average, provide the lot numbers a more whole, considered as a the lan when specific description pieces of individual guage ambiguous at issue was lease land than the tax lot numbers. The subdi- and that extrinsic evidence therefore vision are within wholly lots contained interpreting should be considered in tax lots so specif- subdivision lots are more (McLeese, J., language.” Id. at 893 dis ic merely than tax lots-not a different senting). particular, Judge In McLeese’s method to describe the same land. The recognized ‘specific dissent governs canon “specific that terms and exact terms general canon’ would not have relied given greater are weight general than lan- “on the of a implication specific provision guage” inconsistency. resolves this Re- unambiguously trumping express as (Second) 203(c). § statement of Contracts in general provision” statement of a more The individual lot reflects a parcel smaller (McLeese, J., this case. at specific Id. land, specific and is therefore more than dissenting). majority disagreed The and reflects, the tax lot average, which provisions found that the two of the lease larger parcel of land. together, could be no read so there was addition, In by the method which land is ‘specific governs gen need to use the in recorded the District reflects the above inconsistency eral’ canon to resolve the in reading of the In deed. the District of language. Today, the lease Id. at 891. Columbia, the Office of the Surveyor uses majority’s opinion essentially takes lots of identify record to and record land Judge McLeese’s dissent in Abdelrhman records, but tax lot numbers are used and it binding precedent, deroga makes in for the taxation of real estate located in (D.C. Ryan, tion of M.A.P. v. 285 A.2d 310 §§ the District of Columbia. 1- D.C.Code 1971). (2012 (land records); 1305-1322 Repl.) (2012 (taxation § Repl.) D.C.Code 47-701 provisions There are two in the deed estate). of real Given that the deed con- conflict, irreconcilably that stand in tains descriptions two inconsistent land, description of the “Lots 21 and 28 in accurately land —one of which cites to two Ambrose Roth’s in Subdivision of Lots plots of in land the same form used 368,” Square numbers, and tax lots Surveyor Office of the recording when square “Lot 878 in 868” and “Tax ID: deeds, and the other which cites to a non- (handwrit- Square Lots and 878” existent tax lot—I par- conclude that the italics). ten in text The conflict in tax ties intended the subdivision lot numbers (Tax ID) identification numbers can scope to reflect the of the land in por- resolved favor of the handwritten by the deed. tion, square “Lot 878 in 368.” Restate- (Second) ment of Contracts cmt. f majority’s opinion The cites California (“It (1981) generally is sometimes said that and for the proposition Texas cases typewritten handwritten terms control descriptions and when of land the deed are states, The deed “TOGETHER conflict, do not ous. specific the more terms thereupon, and improvements all These cases are dis- WITH necessarily control. waters, alleys, ways, privileges, majority opin- rights, Despite the tinguishable.3 otherwise, advantages thereto be- appurtenances metes contention ion’s longing, anywise appertaining.” they when con- generally control bounds years for over 130 of land unless Courts have held descriptions flict with other states that language unambiguously them- this descriptions if the metes and bounds (easements covenants) 11 C.J.S. Bound- features certain incomplete. are selves Smith, May (“Metes See (2015) land.4 travel with the aries and bounds (3 Mackey) (quot- granted, if es- D.C. Hook, (1877)). Oliver v. 47 Md. tablished, and dis- always control courses tances.”). May, had to consider this court deed, “togeth- language in the opinion also contends whether majority’s

The singular improvements, all at the end of the er with located tenements, Sahrap- ways, rights, and heredita- referencing “alleys” supports unto the ambigu- appurtenances ments and same the deed is argument our’s which, separated adjoining degree when from the disagree about the 3. Courts often land, him.”). consider ambiguity needed before court can little or no use to would be of the intent of the extrinsic evidence to discern descriptions, refer The metes and bounds opinion parties. majority cites cases enced the two Texas cases cited states that do not follow this from other pro majority opinion, incomplete were inconsistencies, resolving method for court’s the court therefore could not dis blematic so opin- of and thus reduces the usefulness those descriptions. solely cern intent from those ions. 220, Jordan, (Tex. v. 260 S.W.2d 223 Grimes law, apparently courts do Under California Civ.App.1953); Gallup, v. 57 Tex.Civ. Snow apply not canons of construction to resolve 572, 222, App. (Tex.Civ.App. 224 123 S.W. considering prior inconsistencies 1909). evidence. In cases where "metes and bounds [descriptions] clearly with its de- conflict!] Maryland 4. courts have held that this lan number,” may scription by lot "consideration validly assigns guage in the "covenants deed being given actual uses made at not land,” running the but easements] [or grant, also to such uses as the time of the but language have held that this delineates none circumstances who were within the facts and County property. the boundaries of contemplation parties at the reasonable Cnty. Comm'rs Charles v. St. Charles Assocs. conveyance.” v. the time of the Everett 426, 545, P’ship, A.2d Ltd. 366 Md. 784 568 813, 648, Bosch, Cal.Rptr. Cal.App.2d 50 241 (2001); Improve Park see also Olde Severna (citation (Dist.Ct.App.1966) and internal 818 Ass’n, 317, Gunby, ment Inc. v. 402 Md. 936 omitted). addition, In Cali- quotation marks 365, (2007); Kobrine, A.2d 373 L.L.C. v. Metz statutory unique and com- fornia contains law 620, 403, (It ger, 380 Md. 414 whereby presumptions "[a]n owner mon law Maryland law that "when a is well-settled pre- by a road or street is of land bounded property property and owner subdivides way, center of the sumed to own to the adopts plat designating lots as makes grant contrary may and "[t]he be shown” streets, any bordering and then sells of those highway adjoining which of land a street or plat, implied an lots with reference to from, upon wholly has been made way passes grantor easement from of, margin grantor’s deemed to land is contiguous grantee ... over the street comprehend whole of the the fee in the added) (internal property (emphasis sold” 2, (citations 3. street.” Id. at 817 n. 819 n. Conrad/Dommel, omitted)); quotation marks omitted) ("[A] quotation and internal marks Co., 239, Md.App. LLC v. West Dev. 815 grantor’s in an intent to withhold his interest Roberts, 828, (2003); Gosnell v. A.2d reasoning alley presumed, ... will never be (1925); A. Duvall Md. object in the retention that there would be no Ridout, land, Md. 92 A. strip grantor a narrow any way belonging appertaining,” way, roadway, ment over the or a in which way conveyed right “a over the remain- case the seller retain would an easement. ing part public alley” that bordered Id. at The strip ten-foot at issue described in the deed. Id. at Annapolis clearly Roads fell within the upon 57. This court relied Oliver for the boundaries of Lot parties so did not proposition language, the deed “all contest the geographic boundaries set every rights, privileges, appurte- respective forth in the deeds. Id. at &752 advantages belong- majority nances and to the same n. 3. The is correct ing, appertaining,” above-quoted or in wise would was refer- pre-existing transfer a easement through analysis, enced in the court’s but it was (internal quotation the deed. Id. at 59 merely used to assess whether the owner omitted) Oliver, (quoting supra, any “rights marks 47 retained and interests in the 308). at factual inquiry Md. The that en- of roadways,” beds not whether title to the pre- alley sued focused on whether there was a actually conveyed through existing public alley, easement over the deed. Id. at 768.

whether the deed title to the sum, In I would affirm the trial court’s alley. Id. at 59-61. ruling that ambiguous. the deed is not I view, my May, as established in this would rely well-established canons of unambiguous language is not intended to contract Maryland construction and law to geographical delineate the exact bound- reach this conclusion. land, aries of the but instead is intended to Agreement Land Purchase

clarify what features of the majority’s opinion intend to transfer with the deed. I The correctly con- depart years see no reason to from 130 cludes that the land but, not merge my well-established case law to find an ambi- does with the deed view, guity in Sahrapour’s concluding agree- deed. errs ment’s is ambigu- land majority opinion Annapolis cites ous. Prop. Rds. Lindsay, Owner’s Ass’n v. 270, 749, (2012), Md.App. purchase agreement The land is similar aff'd part, rev’d in part Lindsay significant sub nom. to the deed but differs in two Ass’n, First, Annapolis Prop. ways. Rds. purchase agreement Owner’s the does 274, (2013), 431 Md. 64 A.3d 916 for the not reference the non-existent Tax ID Lot Second, proposition above-quoted the importantly, deed 877. and more the ambiguous is as to purchase agreement the interest it states that the prop- conveys. 3,027 I not opinion erty do read this as to approximately be sold is Roads, majority. Annapolis 3,027 does the square approximately feet. The Maryland Special Appeals square the Court of important feet measurement is be- 878, had to Strip,” decide whether the “the cause the size Lot referenced the 3,027 strip purchase agreement, ten-foot land located between Lots is smaller than wholly square Regardless 18 and contained within Lot feet. of the exact dis- boundaries, 19’s geographic roadway crepancy square was a feet Lot between 3,027 way. or a Id. at 767. The court square description, did not and the foot the struggle purchaser to understand what features trav intended the the bear land, struggled square footage description eled with the but rather to risk that define Strip” way, may legal description whether “the was a not match the which case the seller would retain no ease- land. We need address whether this PERI- STUDY Maryland “in A. FEASIBILITY adopt the jurisdiction will thirty purchaser The has a OD. parties’ because presumption” gross Feasibility Study from days Period purchase agree- is clear from intent Agreement during the date of this ment. inspect Prop- can which Purchaser describes the The studies, financ- erty, place its perform as follows: relevant ministerial duties to ing perform and known as subject property, The During Purchase. this settle on the Washington D.C. 1230 9th Street NW employ- and its’ period, [sic] Purchase 3,027 feet of approximately ees, may enter agents or contractors approximately with an improved land Property upon prior into the notice 3,893 building plus feet basement square purpose inspect- for the 'the Seller designated in an area as historic located surveys, performing Property, C2A, zoned in the Election District it ministerial duties deter- studies and as Lots legally [sic] and described necessary to determine the mines are in the Block/Square Map C Property. feasibility purchasing land records of the District public Period, of this Pur- Prior to end easements, together with the Columbia may upon chaser written notice belonging to the rights, appurtenances Agent receipt by Seller or its’ [sic] fixtures, same, furnish- including Agreement in its’ [sic] terminate this by ings, machinery, equipment owned judgment.... sole said situated on or about the Seller D. The is sold CONDITION. property. except specific representa- for “as is” made the Seller tions and warrantees not describe the entire land Lot 878 does in this contract. actually Sahrapour that was transferred only corresponds to Lot because Lot 878 thirty gave Sahrapour The Addendum Survey, but the 28 of the ALTA/ACSM days inspect property, Lot Lot 21 28 of the transferred both agree- allowed to terminate Survey. Regardless of the ALTA/ACSM whereby deposit would be re- ment square footage Lot 28’s from deviation of 3,027 “approximately turned. Since 3,027 square foot de- approximately square “specific representa- feet” is not a the risk of scription, purchaser bore seller,” the purchase tion ... made description. the inaccurate place the bur- agreement and addendum surveying inspecting prop- den of agreement allocates cer- erty purchaser, Sahrapour. purchaser to the tain risks not in- Sahrapour properly Because did following provisions: “15. LOCAL VI- survey OLATIONS; spect property, which CONDITION AND OP- discrepancy, ... Pur- would have revealed size ERATION OF PROPERTY piece she now holds title to a land inspected property, has chaser subjectively may smaller than what she fully familiar with the condition thereof Any additional land Prop- purchase. intended to agrees and Purchaser take acquired through the deed is over and erty Agree- as of the Date of AS IS to trans- Es- what the intended The Addendum to the Real above ment.” (Addendum) agreement stated fer. The land Agreement tate Purchase and, receive Tax Lot 878 risks that she would also allocates additional signed that she an addendum which given purchaser: (10th ed.2014). gave permis- the land “as is” and her “Among sold the number- examples less of clerical errors are omit- land, survey inspect she sion to ting document; an appendix from a typing 3,027 “approximately bore the risk number; an incorrect mistranscribing or square description feet” was not accurate.' omitting obviously word; an needed 3,027 The fact that Tax Lot 878 is not failing log a call.” Id. ambiguity feet not create an square does “ * property. of the I would The inclusion of and a portion of Lot not resort to extrinsic evidence to discern 22 as shown on the survey,” attached parties.5 changing the intent of the ID Tax to include “and a 885,”

portion of Lot attaching a new survey Corrected Deed reveals that a labor requiring origi- nal thought was needed to arrive at this Sahrapour contends that the “corrected” Merely changing edit. “Lot 877” to “Lot deed reflected a.clerical edit because it did edit, might 885” be a clerical especially materially not alter what was in considering exist, Lot 887 does not the first deed. I persua- find that do these intricate edits were not indicative of sive. mere clerical edits. Because Haas exceed- ed his authority under the Power of Attor- attorney

A deed is void when the who ney, I would hold that the -trial court cor- authority drafted the deed exceeded his rectly found the “corrected” deed was void. general power attorney. under a Smith I respectfully dissent.6 Bank, Fargo v. Wells 991 A.2d (D.C.2010). A “clerical error” is er- “[a]n resulting

ror from a minor mistake or judicial and not from

inadvertence reason- determination; [especially] a draft- typist’s

er’s technical error that can be without serious

rectified doubt about the n reading.” correct Dictionary Black’s Law acquire Sahrapour disputed retaining legal 5. would not title as trustee for the purchaser conveyance until the deed is de property through equitable the doctrine of St., livered.” Trustee 1245 13th NW No. 608 because, view, my conversion the Land Anderson, (D.C. v. Trust 2006) Agreement Purchase does not intend to con added) (emphasis (quoting Gustin v. vey disputed property, and in event a (D.C.1975)). Stegall, 347 A.2d valid deed was executed. Under the doctrine conversion, equitable this court "views a legal malpractice has filed a immediately vesting contract of sale as against stayed pending claim Haas which is purchaser ownership with beneficial ownership disputed resolution of the realty, limiting Haas, interest of alley. Stay, Sahrapour Order No. 30, 2011). promised the vendor to the (D.C.Super.Ct. Aug. consideration ... 2011 CA 647

Case Details

Case Name: Nayereh Sahrapour v. LesRon, LLC and Shaw Centre, LLC

Court Name: District of Columbia Court of Appeals

Date Published: Jul 9, 2015

Citation: 119 A.3d 704

Docket Number: 13-CV-724 and 13-CV-725

Court Abbreviation: D.C.