*1 998 and the Board con 16, 1999, of Bar Counsel reciprocal in a Office September
On reinstatement, case, this imposed petition an iden- cur on a discipline this court showing suspension, already with a considerable deference to two-year tical court’s required prior to reinstatement. determination is enhanced. of fitness the Board’s 1033, (D.C. 668, A.2d 1045 Berger, Fogel, In re 668 See See In re (D.C.1999). 1999). In of New Jer- recognition pursuant to the sum Accordingly, procedures, sey’s summary reinstatement proceedings we an mary reinstatement reciprocal 1045-46, nature of this we Berger, A.2d at nounced in proposal that accepted Bar Counsel’s previously also requirement vacate the fitness suspended attorney allowed to re- Berger reinstate Neal J. imposed and in the District of practice sume the of law jurisdiction. of law this practice attorney has demon- once the Columbia So ordered. summary in a practice fitness to strated satisfactory original dis- proceeding jurisdiction, objection by absent
ciplining attorney has not met
Bar Counsel that Roundtree.1 See Ber-
the criteria of re
ger,
On October Questionnaire and Petition Reinstatement RAILAN, Vikramaditya with the Board. The for Reinstatement al., Appellants, et Jersey Supreme summarily Court re- New 21, petitioner on December 1999.2 instated support Bar filed a motion Counsel KATYAL, al., Appellees. Jagdish K. et summary petitioner reinstatement of No. 96-CV-1711. 17, 2000,3concluding Board on March petitioner satisfied each of the Appeals. Court District Columbia 21, 2000, July five Roundtree criteria. On petitioner be the Board recommended that 22, April 1998. Argued and, contemplated Berger, reinstated 15, 2001. Decided Feb. requirement fight fitness be vacated summary reinstatement New Jer- Bar conclusion that the sey and Counsel’s met.
Roundtree factors were When See requirement upon conditions. consid- certain Roundtree enumerates five factors to ( Order making the determination for reinstate- to Vacate er in Board Rule 8.7 Motion 1) and circumstances of the Requirement). ment: the nature This case Imposing Fitness attorney was disci- misconduct for which the any determina- require us to make does 2) attorney recognizes plined; whether respect the Board Rule. tion with misconduct; 3) the seriousness of discipline attorney’s since was im- conduct motion, reviewing Counsel’s Bar 3.After remedy posed, including steps taken to a motion considered as which the Board ones; 4) past wrongs prevent future its new requirement under the fitness vacate character; 5) attorney’s present the attor- 2, 8.7, Board issued supra note Rule see competence ney’s present qualifications and Bar requesting May an order on Roundtree, practice law. See In re by provid- record supplement the Counsel to (citations (D.C.1985) omit- Bar underlying that caused ing the reasons ted). had rec- petitioner conclude that Counsel to misconduct, ognized of his the seriousness during pendency 2. Sometime case Bar Counsel including of whether a statement adopted an internal rule to accom- the Board Bar Counsel petitioner. had interviewed the Berger procedure foreseen in In re modate the filing on with a supplemented her motion summary by providing for a reinstatement 7, 2000. previously imposed fitness June vacate a motion to *3 building chase a bank secured defaulted, on which exchange forbear on foreclosure cer- payments, outstanding interest tain debt, appellants, and a After bonus. Railans, bought proper- foreclosed and sale, they filed ty at foreclosure deficiency judg- seeking counterclaim (the $150,000 equaling difference be- ment outstanding the amount bank tween for which the Railans note and amount foreclosure), property at *4 interest, taxes, liens, assessments, plus all fines, and miscellaneous fees other costs the The Railans also relating property. to complaint a in the Landlord Tenant filed possession building the Division for of housing Katyals’ the restaurant due to the building having to vacate after failure the Leitch, Audrey J. David G. whom the quit received a notice to from Railans. Anderson, brief, Washington, was on the amend, of to for After a series motions DC, appellants. for summary judgment, and to exclude certain MeCants, L. appellees. Leonard for (discussed relevant), evidence below where * complaints were consolidated and the SCHWELB, RUIZ, Before and KING After jury. case was tried before a Judges. Associate (notehold- trial court denied the Railans’ RUIZ, Judge: Associate ers) verdict, for the jury motion directed (debtors) Katyals and found for the award- appeal judgment This is an from the on $728,080.70in ed breach of jury awarding a compensatory verdict claim, exactly was contract which punitive damages for an oral breach of Katyals to the amount owed Railans misrepresentation contract and fraudulent Railans day on the note and from the trial of a coun- court’s denial note from The also the bank. deficiency judgment. terclaim for a We $50,250 compensatory damages awarded in part part. affirm in in reverse each of on the fraud the Railans claim; $50,250from and an additional each I. punitive damages. them in Because the of Statement the Case to the verdict parties agreed prior (“Jack”) Appellees, Jagdish Katyal jury’s verdict resolve Rai- and the would wife, Katyal, posses- for appellants, complaint Mohana sued landlord-tenant lans’ (“Vik”) wife, deficiency Vikramaditya judg- Railan and his sion and counterclaim for (the ment, Railans), Dr. judgment for breach the trial court entered for Veena contract, The misrepresentation, fraudulent issues. Railans these judgments injunctive relief halt a foreclosure moved to set aside the favor Katyals’ Katyals, judgment sale a building housing on a of the and for as restaurant, Tandoor, law or trial. The Railans Georgetown. The matter of a new judgment oral were dispute alleged argued stemmed from an entitled pur- law agreement a matter of because statute Railans * Judge changed Judge on November Judge King was an Senior Associate argument. time status court at the His precluded frauds enforcement of the al- possibility of Railan purchasing contract, leged oral and the evidence note on the Tandoor property. restaurant prove insufficient to fraud clear and Katyal gave and Railan ac- differing convincing evidence. The trial court de- counts at trial of the negotiations nied the motion considering after it under followed. testified that he Rai- told 50(b) (motion Rules as a lan that “there guys trying help are two 59(b) (motion law), matter of new purchase” me the bank note on the Tand- trial), 59(e) (motion to amend or alter property, oor restaurant and that one man judgment). appeal The Radians both the particular proposed pur- that he would judgment on the verdicts and the order discount, chase the note at from the bank denying post-trial relief. then charge that amount over two
years at percent. Katyal nine and a half stated that Railan called him back few II. later, days early April saying Statement of Facts “Jack, go don’t to this loan shark and things.... I think I will help be able to Katyal, Jack once the successful owner buy this note from the bank and I many restaurants various east coast give you will I’ll years two never cities, times, had fallen on hard and filed shape your at bank.” [sic] further *5 bankruptcy for in Katyal 1992. and his testified, “I think it mutual under- was wife owned the Tandoor restaurant and me, standing and Mr. Railan and that he in building Georgetown where was will foot the note he’s the one who because located, as well as properties. several other shark, suggested me not go to to his loan After filing Chapter bankruptcy, for you know.” Katyais’ banks were on foreclosing many the properties on which had de- Katyal summarized the terms of the Although Katyais faulted. had de- upon deal he contends agreed were with by faulted on the note held First Union Railan: Bank for the Tandoor property, the bank Pay him back purchase [the discounted had not foreclosed on the and the price of plus and the hundred note] Katyais seeking purchase were someone to dollars, thousand years two was the the note on terms which would enable period.... maximum I not [I]f operate restaurant, them to continue to pay him plus off five fifteen the hundred collect rent from various commercial and thousand years dollar within two he has
residential in building, pay tenants and right pay all to I foreclose me.... will years. off the note two him percent. nine and a half Katyal
Jack and Railan Katyal Vik met at a also he Railan stated that and party at the Katyal agreed Katyal Tandoor had that pay one restaurant — party Sep- testified the was at the “end of month back taxes and one month current 1993, tember” while Railan testified it was on property. Katyal taxes said that he bank, party January a New Year’s on 1994. then faxed to his loan officer at the Railan, estate, Parden, an Kelly investor real and Ka- telling letter Parden tyal began to possibility negotiate discuss the with Railan for Katyal’s Railan purchasing properties Katyal at note.1 also that he and testified foreclosure sales. quickly pur- Katyal’s Railan the bank informed Railan of fi- Katyal’s properties, chased one of property and the nancial situation and taxes owed began two frequently meet to discuss on the Tandoor and building, restaurant 17, 1994, Kelly May possible purchaser Parden testified that on other of the note to the began negotiations about presented one month after he bank. There was no evidence Railan, any follow-up Katyal’s but before Railan whether there was September Katyal note in referred one referral. that Railan went Katyal testified when sought Katyal’s that Railan himself had pick up that Railan asked evening, from the court. him Chapter documents with the calculations he Katyal many paper stated that there were on- day. that Katyal done that said going meetings Katyal’s about debts and earlier Railan he had thrown restructuring plans.2 when he told “I am paper Railan informed him: away, Katyal personal close rela- described the more, any two going give years tionship developed during period that decided, Ka- you.” I to foreclose because they spoke between the two men: that Railan claimed to tyal testified to him the frequently, Railan referred lawyer’s During advice. following his brother,” “big term for affectionate Indian conversation, call on his Railan received a Railan, wife, Dr. Veena Railan’s phone Katyal someone believed car from him in late night July had treated one Railan, explained Dr. was early August he when suffered that, that, yes, Katyal had told “he pressure. high blood said that the upset things, you and he is kind very next Railan called him and morning, know.” said: meeting further discussed a be- worry Don’t I’m property, about tween men facilitated a leader buying the I had note. discussed with community, Singh, the Indian Dr. going give you the bank I’m two Katyal sought to Railan not to convince years your to restructure loan and property. At that meet- foreclose on the things things ... all of testified, ing, Katyal Railan offered that ... discussed exchange would not foreclose finally described the events license, but liquor Tandoor restaurant’s September 1994, pur- late after Railan Katyal explained already there *6 the note chased from the bank at a dis- At lien on license. foreclosure (the $515,000 of counted rate face amount sale, 1, 1994, on Railan was the November $700,000). due on the Katyal note was pur- he property, bidder on the that Railan him ap- said did not see $550,000. chased As owners proximately one after week sought pos- the Railans to obtain property, and that when arrived at the he Tandoor property session of September restaurant on Railan first deficiency judgment and a in the amount Katyal to sign recognizing asked a letter $150,000, of the difference between that Railan had his note. Ka- pur- face due on the and the amount note tyal further testified: price property. chase foreclosed said, know, you objection I I don’t have neared the end of Railan’s counsel sign my it. What about note? He asking, Katyal by cross-examination of me I says, let write that and can—we alleging fraud was you “When are So, on can work that note also. you?” question perpetrated on That ... writing [sic] started he was start following and ex- prompted the answer much be nine and a half how would change: percent for fifteen thou- four hundred [Katyal] Actually, Septem- says you dollar And I 29th [sic]. [sic] sand him the give ber. he asked want to write that note with hand too? Then me no, I it my piece I don’t have says why you paper He don’t come to said then, [sic], away it evening? home this I like to write this I throw has indi- my in front one minute he told me he my father-in-law and next lawyer to me [sic]. cated to his foreclose wife. property Katyal the note on the Tandoor restaurant 2. On cross-examination admitted permission. anyone, could with or without his he understood that the bank have sold So, Q. ... your testimony is not that he did. He categorically didn’t tell that you agreed the fraud was his indication to he had and there was a written help you he purchasing understanding. wanted to this property give you years two and so Dr. Singh testified that Railan told him forth, ... and so that somehow had changed he his mind because something the fraud was else when he he learned that there were serious finan- piece paper. refused to write a problems cial ... Jack and this was Yes, because, A. I don’t know what is decision, strictly a business had noth- a— Maybe his mind. he would have been ing friendship says to do with his and he sincere to me. I’m not saying that he learned, himself, protect that to what he that, wasn’t.... Obviously, you shows subsequent understanding to that ar- know—the record shows ... that was rangement, go he had to for foreclosure. [sic], happened is intention because he Parden, officer, Kelly the bank testified everything knew things, about taxes and potential purchasers that three of the bank going what was on. note on the building Tandoor restaurant questions final addressed to pursued other than Railan negotiations on cross-examination concerned Dr. Rai- with him. Parden stated that he told Rai- lan: he, lan in their first discussion Par- here, Q. Dr. Railan over other than den, would need consent from be- speaking phone to her on the occasional- fore negotiate further. Parden ly never [sic] talked terms of —and nevertheless conceded on cross-examina- deal, is that correct? purchaser if tion that arrived at the bank sir, A. No I didn’t. prepared buy bank Q. you And are not claiming that she seeking sold the note without Ka- ever did anything you? to defraud tyal’s permission. Parden testified that A. No. “give Railan told Parden that he would Q. any representa- That she ever made [Katyal] years,” two and that Parden had tion you? to defraud spoken with Railan several times about the A. No I saying sir. am not [sic]. dug taxes property. Parden claimed that the bank received a letter testimony also introduced acknowledged from Railan which Railan three other members of the Indian com- *7 Katyal’s A outstanding tax debt. redacted munity spoke who alleged deal be- copy of that letter was introduced as Railan, evi- Katyal tween and and of the bank day dence. Parden also on officer, stated that Kelly Ragibommanalli Parden. Railan the note on the Tandoor Sundaresh testified that he sat at a table building, restaurant Railan looking “was at the Katyal Tandoor restaurant when right reassurance that his to foreclose recited the agreement terms of the while was still in place.” Railan agreement” listened and “nodded in saying without anything. Katyal’s broth- Vik Railan and Dr. Railan testified er, Suresh, also testified that while he was essence, their own defense. Railan de- restaurant, working at the he overheard Katyal agreed nied that he and ever the conversation testified to Sundaresh. terms under which Railan would forbear Singh Dr. meeting testified about the foreclosing purchased Katyal’s from if he Railan, arranged Katyal between and bank, and testified Railan Singh’s question Railan’s answer to Dr. planned had not to foreclose on the note Katyal whether Railan about had an Katyal until he learned that had no funds understanding: paying property or intentions of his taxes said, way,
Mr. Railan in a he did. There on the Tandoor that if the building, and not[h]ing writing, way, city building was but a foreclosed on the due to the i[n] i[n] $100,000 this, you take this —take debt, his can city priority over tax ” note, forcing and he lose his invest- it They bank deal.... were this never throat, Dr. Railan testified that she ment.3 I never You Honor.... my down note, Katyal with over the negotiated accepted this deal.5 took a deal agreed never have that she would MeCants, trial attor- Katyal’s who was it into consult- putting writing and without appeal, remarked ney and is counsel on attorney.4 ing with her you just said to is [Railan] that “what exclusion evidence Pre-trial incorrect.” contended absolutely MeCants party The trial court ruled that neither the taxes the discussion concerned permitted to raise a conversation would of Columbia Katyal owed District Tandoor allegedly place took at the which property. the Tandoor Railan’s days prior restaurant a few explained court its decision to Railan, The trial note, of the bank in which meeting: MeCants, testimony regarding exclude attorney, and his Mr. the meet- present. were described ruling is two fold. And the basis way: in this ing One, prior agreement honors pur- or four days before [T]hree pre- It parties. between the reached [MeCants], the note Mr. Ka- chased Mr. a wit- being Mr vents [MeCants] hav- tyal sitting were in the restaurant at trial and the need of [sic] ness albeit with I there with ing lunch me. was withdrawal, this is the which —and said, them, and then [MeCants] reason— very important second you “Why don’t take his deal he’s been delay resolution of this case. [MeCants], said, I I offering you?” “Mr. filed to reconsider The Railans a motion my time. can’t at this I have to talk to pre-trial excluding court’s order You are I’m not a lawyer. lawyer. testimony they argue McCant’s lawyer. legal.” I don’t if it’s even know said, never legal, you Both of them “It’s take that there was Q. you negotiating this testified: When were deal 3. Railan bank, your participated wife with the try buy I said I will the note and I will well, negotiating as some with the bank proposal just what I can do. see It was correct, sir? companies just tak- some loan which he was Yes, sir. A. verbally. ing giving from them it to me Q. yet, you she And on direct testified So, spent twenty I like thou- five hundred your in terms of what aware of actions But, buying the right sand dollars. before doing respect with to Mr. were taxes ... he realized that this real estate well, is that correct? [sic], about but before the first come Yes, A. sir. I technicality That know and trust. I didn’t Q. And, you any make pretty much did not get my tried to out of with First Union. deal respect property deal- decision with to this you consulted ing with Mr. unless Railan testified 4. Dr. as follows: it, doing your is that cor- wife before *8 Q. rect? you Mr. indicate to Railan ever [D]id Yes, saying But that either A. sir. I’m not he and Mr. had an affirmative Katyal. any did or I did fraud on Mr. she happen agreement as to once what purchased the he note? examination, emphasized 5.On further sir, didn’t, I wouldn’t A. No and also agreed: had not that he accepted, estate all the real have investments, because Q. table, far, agree at that on that done so I [D]id whatever he has fact, that, date, you acknowledge in always writing, which I final- did done in you had terms the contract everything through attorney. I have was the of ize an agree- agreed ? if even—even he had a verbal never ment, clearly very I I not. told him always A. I did it was finalized. I lawyer talk to before concerning his wife’s need to a also Mr. Railan testified And, anything. this to Mr. general- agree to I said in involvement business transactions before, and, [Katyal’s attorney] also a subject con- ly specifically, one MeCants closing. property: week before cerning Tandoor restaurant any agreement action, with Mr. McCants not to finding and verdict on the fraud meeting raise the Mr. argue where Railan’s Railans they are entitled to judg- testimony would clearly be he was ment as a matter of law because there was equivocal and clearly undecided about fraud, not clear convincing and evidence of engage any whether to contract with that, event, any the damages award- extremely and he was con- ed are cumulative of damages. the contract cerned about arranging for Mr. They also contend that the evidence was paying to start real estate taxes on the finding insufficient for a of the ill will or property, which Mr. Katyal never did. necessary support malice punitive dam- ages. Finally, they argue that the trial Jury Instructions rejection court’s of their counterclaim for a deficiency judgment was erroneous and trial, At the conclusion of judge in- should be reversed. The Railans also ar- jury punitive structed the damages6 that, if gue judgment is not entered and on the measure of damages for fraud- favor, they their are a entitled to new trial. misrepresentation7 ulent gave instruction, multiple standard defendant We review a a gave ruling
but on motion no instruction concerning agen- judgment for as a cy.8 matter of law after a novo, jury verdict de applying the same Durphy See standard as the trial court. III. Kaiser Foundation Health Plan Mid- Analysis States, Inc., Atlantic (D.C.1997). Judgment as a matter law appeal, On argu- Railans make three may if, granted only viewing ments for the evi as matter of law on jury dence in the finding light verdict breach of most favorable to the contract: 1) opposing precludes party, legally statute of there is “no suffi frauds enforce- 2) contract, ment of cient evidentiary the oral for a the award of basis reasonable damages jury sup- party. breach of contract is not to find” for the non-moving 3) ported evidence, by the Super. the evi- Ct. Civ. R. exacting 50. This is an standard, dence was insufficient to hold Dr. Railan only is in the “[i]t unusual respect liable on the contract. With one conclusion could judge 6. The trial you may instructed: include first the difference be- may punitive damages only [Y]ou award property if tween the value of the and the you find it, second, that the act or acts defen- price paid pecuni- other wilful, dant were malicious and wanton and ary consequence loss suffered as a disregard plaintiff's rights. reckless in of the plaintiff's upon reliance the truth of the may punitive You damages against award representation. only you plain- the defendant if find that the proven by convincing tiff has clear and evi- give 8.Railan asked the trial court an in- dence that the defendant acted with malice struction to make it: wilful, and with wanton or reckless disre- gard plaintiff’s rights. clear to this that while Mr. Railan ... fraud, may perpetrate have been able to if judge 7. The trial instructed: believe, they in fact that is what person measure of which the still have to find that Railan either [Dr.] misrepresentation to whom fraudulent participated acquiesced somehow in that or pecuni- made is entitled to recover [sic] something in it or consented to it or did ary loss directly which results and foresee- participated impose in order to [sic] ably falsity repre- from the matter *9 upon type penalties. her those same of Recovery sented. must be limited to such responded, objection The court with no foreseeably as find to have Katyal, by stating give from its intention to expected been to follow from the character instruction; multiple the standard misrepresentation defendant itself. assessing pecuniary covering agency pro- In an instruction resulting the loss was never falsity represented, posed given. from the of the matter nor
1007 evidence, estopped asserting a reasonably be from the are therefore from drawn es- Equitable frauds may properly grant judg- that the court statute of defense. asserting toppel a notwithstanding party ment the verdict.” Ho- will bar (D.C. 812, Goyal, v. the of its own man 711 817 Statute Frauds when 1998) (see 1006) (internal p. Part of a responsible III on fraud for the absence is omitted). quotations agreement. Rafferty and citations written See 380 Corp., F.Supp.
NYNEX (D.D.C.1990), in & rev’d part aff'd IV. U.S.App.D.C. part, 60 F.3d Statute of Frauds (1995). the appeal, they On Railans contend that motion for a denying Railans’ entitled to as a of were matter verdict, orally trial court ruled directed preclud- law because statute of frauds mid as a law the stat- trial that matter of of ed evidence the oral contract to be of ute frauds did not bar introduction of presented because it concerned contract, stating: evidence of the oral oral putative involving a contract real es- given by Mr. was Consideration which its could not per- tate terms opportunities other forgoing of year alleged formed within one of its for- negotiations allude of the note so as [sic] mation. trial court considered the business. to allow him to continue in his junctures. statute frauds at several impediment The statute of frauds is no The Railans raised the statute of frauds light. when evidence is taken in that complaint a defense their answer to the principles of the fraud and the Because in their summary judg- and motion for un- binding an oral contract make Although initially ment. the trial court circumstances, and without der these granted the and Railans’ motion dismissed plaintiff what finding happened, that’s claim, subsequently the contract recon- proceed has in the matter as a right a ruling, explaining sidered its that the stat- law. matter of was ute of frauds not a bar: mandates The statute frauds facts, plaintiffs’ Assuming as the court agreements, including those certain must, plaintiffs the defendants deceived estate, writing concerning real must be dealing into with the bank on their be- protect guard perjury “to and against property half to at highly a claims.” against and fraudulent unfounded purchasing discounted rate. After Columbia, Tauber v. District of plaintiffs note and contracting (D.C.1986); § 28- see also D.C.Code pay interest on pur- defendants 9.5% (1996).9 recog As the trial court price of years, chase the note two nized, exceptions certain limited there are years in two pay the defendants the frauds: to the statute of $100,000.00, purchase price note’s several where plaintiffs defendants told the that a writ- There are situations unnecessary they may contract refuse to allow the defendant ten was since courts frauds defense just property. interpose a statute of upon foreclosed their properly [I]n even if it is raised: plaintiffs help- deceived into Defendants acquire early history lied statute defendant ing them about foreclosure, pleading privilege [it] entered into a contract denied (a) main instances: where his honoring had no intention of three brought, or upon § the action is provides: ment 9. D.C.Code 28-3502 thereof, writing, brought may upon a or note An action not be ... memorandum estate, any or sale interest contract in or of real not state the consideration which need it, concerning upon agreement an charged signed by party to be therewith or performed year that is not to be within one person authorized him. thereof, making agree- unless from the *10 responsible own fraud was lently misrepresented the non- his intentions to sell required signed existence of the memo- paid and that buyer money to the (b) [equitable randum estoppel]; where seller reliance of agreement. their oral equitable part perfor- doctrine of circumstance, In that the court found an applicable mance was [promissory estop- exception to the statute of frauds due to (c) pel], and where the defendant has Moreover, part performance. although [waiver], admitted the contract upon opinion, relied the facts Constr., Hackney v. Morelite clearly presented that one side fraudulent- (D.C.1980) (citation omitted). ly induced the other not to reduce the purchase agreement writing. disagree We with the trial court’s present conclusion that the situation comes us, the case con- before within exceptions one the limited pur- tend that one week after the Railans case, statute present of frauds. In the far note, Katyal, chased the at re- Railan’s from stipulating facts which recognize an quest, signed a that indicating statement agreement parties, between the Railan Railan had the note on the steadfastly denied that he ever orally Tandoor after of them property, and one agreed proposed to the terms by Katyal. jotted down on napkin at the restaurant This is not a Hackney, like where the monthly written calculation interest parties stipulated to facts sufficient to es payments Katyal pay to allegedly would Thus, tablish an oral agreement. we are Railan two-year period, for a Railan told not faced with a situation where a defen go by him to that night Railan’s house dant write “this note” front of his wife and can admit an obligation honest yet Instead, however, father-in-law. once Ka- defeat its enforcement pleading that tyal disclosed that he had discarded the the agreement oral and that calculations, paper with the interest there is no written evidence of the obli- informed agree- that there was no gation as required by the Statute of ment and that Railan had to fore- decided Frauds. close on question the note.10 The is (citation omitted). Id. at 1066-67 whether Railan’s actions suspending A, Korner, Inc., In R & Inc. Kozy 672 writing of the evening note until that (D.C.1996), A.2d 1062 buyer testified subsequent agree- refusal to commit the “purchase agreement was not re ment to writing was a re- fraudulent act duced to writing because [the seller] did sponsible for the signed writing lack of a not want in writing;” sale and that support would otherwise a contract. “monthly payments were made cash be consider, cause if requested [seller] ... Even we trial these were to as the ” payments did, permit- be made cash.... court Katyal’s testimony Id. at 1066. jury This court found that a could ted the to find that Railan induced reasonably conclude that the seller fraudu- him not agreement to reduce their to writ- Katyal’s testimony subject on the is not So he wrote hand that that letter entirely clear: he did the note from bank So, says, we things sign sat down and he [sic] Mr. and I it. know, Katyal, my lawyer, you So, started, know, that I had you yel- there awas bought things my lawyer that loan and sheet, pair something low was start me, has advised but there a customary writing how much would be mine and [sic] you give letter pur- have to me that I had percent a half for four hundred fifteen thou- chased this loan for that much and—and says you sand dollar.... And I want to loan, said, you that much was the know. I write that note with hand too? He [sic] know, you objection sign I don’t have it. no, says why my don’t come to home my says, What about note? He let me write evening? I like to write [sic] this note I and can—we can work on that note my my in front of father-in-law and wife. also.
1009 it before Railan more than nine months ing, we are constrained to conclude note Although, as purchased make a as a matter of it the bank. would not difference below, may the those statements law because incident to which we discuss fraud in the induce- Railan suffice to constitute testified occurred one week after ment, they are to the statute of already purchased note from the irrelevant had the inquiry, whether the fraud re- point, At that was the note frauds bank. Railan of the for the non-existence re- sponsible and had the foreclose on right holder to fraudu- writing. alleged Railan’s quired note. the defaulted to writing in to commit refusing lent action Landow v. West Georgetown-Inland In had the already came after he (D.C.1982), upheld A.2d 310 Corp., 454 noteholder, the to right, note and had bar of evi summary based on a therefore, Landow, As in Ka- foreclose. extending a dence of an oral modification damages have been incurred tyal’s might contract on the statute of written based Therefore, actions. regardless Railan’s frauds, explaining that: does because the instant situation not agreement An oral land is exception the for fraud-based come within taken out of the Statute of Frauds writing, to have a enforcement of failures purchaser changed po- the his when has by the precluded the oral contract is stat- materially sition unless the oral so ute of frauds.11 enforced, contract fraud result. will perform refusal to an oral contract Mere generally the statute
within does V. such to raise the constitute fraud as Misrepresentation Fraudulent estoppel. effectively In order to assert estoppel, promisee must be able to We next address the Railans’ ar position that he has changed show that the for fraudulent gument judgments substantially worse and that he misrepresentation reversed should be be unjust has incurred and unconscionable Katyals present failed to cause clear injury. convincing required evidence of each (internal omitted). Id. at 313-14 citations prove of fraud. In fraud element order Landow, purchaser misrepresentation,
In submitted must ulent (2) “(1) expenses, representation, claims for incurred but the court a false prove (3) fact, purchaser held that the made with failed to demon- reference to material (4) knowledge strate that the incurred due its falsity, were intent deceive, (5) perform by [the to the seller’s un- taken inducement to action representa agreement. Katyals] upon the oral at 314. der See id. reliance (6) tion, began consequently In this Railan dis- resulted damages.” for the v. cussing provable a deal Tandoor restaurant Dresser Sunder Inc., Ass’n, alleged- bank note at 465 property party Apartments land Tenants (D.C.1983) (citing in the Bennett v. ly place took late fall of 1993 A.2d (D.C.1977)). Katyal’s testimony is that early Riggins, him not that he must clear and worry, proved Railan told elements & give convincing Hercules buy from the bank evidence. See Co. Parden, back; years to Rest. pay Corp., two Shama (D.C.1992). officer, law to applying that others the bank loan testified case, we buying presented an in this deal expressed interest evidence McCants, Katyals’ lawyer, or the holding, not ad- Mr. mo- 11. In view of our we need trial, sufficiency lying Dr. the evidence dress a new the extent tion for contract, evidentiary oral Railan to the jury’s breach of relate to the verdict on con- support damages, contract the trial court’s tract. meeting involving evidence exclusion of separately against Katyals’ early with the reliance on Mr. verdicts Railan’s concerning “loan as- warnings Dr. Railan. sharks” and *12 intentions, his own surances of benevolent was no er We conclude that there to be to we determine sufficient the trial of ror court’s denial jury’s verdict support the on fraudulent jury’s finding a matter of law on as the from misrepresentation, the absence of Mr. engaged in fraudulent mis by rebanee Katyals detrimental the on Mr. Here, representation. jury pre the was in refusing to the Railan’s actions reduce sented with sufficient evidence from which agreement writing oral to after had find, by convincing it could clear and evi note, the bank already purchased which we dence, that in fraudulently Mr. Railan legally have held to insufficient to come reject duced to offers to identified exception within fraud to the the statute the note buy from Union Bank termi case, Railans, frauds. In the latter the as buyer nate his search for another who note, holders of the could decide to exer- would foreclose on the note and honor right cise to foreclose ex- their without Katyal’s requested From Railan’s terms. concessions tracting any Katyals. from the to being reference these other offers hand, In although this on the other presenting made “loan sharks” and foreclose, right the the had bank had Katyals, as a caring himself friend of the so, attempt- do and had chosen not to been were desperately seeking way who out of ing Katyals with the the work to sell distress, financial was enti jury their the accomplish loan that would on terms their to infer that he tled intended deceive goals Although as well. there is no assur- Katyals they into believing the should Katyals ance that the would have been with him person deal because he the was objective able to achieve their if someone accept Mr. Singh, who their terms. note, jury else had the tried dispute who to conciliate the between injured find that were Railan’s Railan and once Railan decided to misrepresentations which diverted them foreclose, testified that Mr. Railan “nod purchas- from their efforts to locate such a while Katyal ded” recited the terms of supra er. See note supposed agreement. Although their Mr. come to a different conclu We Railan testified that he did not decide to respect judgment against sion with foreclose on the until he became note Dr. Railan. testified at trial at the time that out aware think that he did not that Dr. Railan com standing imperiled taxes investment his fraud on any mitted him. The note, Katyal’s testimony from however, that respond, could find the outset he had informed Mr. Railan of theory, Dr. Railan liable on an agency outstanding he had taxes and that relying on her husband’s conduct on her Farden, pay plan them over time. behalf: officer, bank’s loan testified that he too agency relationship Whether an exists is outstanding had informed Railan of the of fact question person for which the just Parden taxes. also testified that after it carries asserting burden completing pur documentation for Generally proof.... agency an relation- sought of the bank chase Mr. Railan when one ship person results authorizes “right assurances that to foreclose act on his subject another to behalf evidence, place.” still in From this [was] control, and the other do consents to immediately the fact that the Railans court so.... considers the deter- [T]his it, upon purchasing foreclosed the note factor to be the minative measure jury, deciding credibility after on the control. disputed testimony, could infer that Jenkins, (D.C. Smith v. plan inception. had been such 1982) (citations omitted). conclusion, coming distinguish to this we supra ease, theory, see agency almost no In this there was instructed thus, on the no concerning Railan’s actions had direction evidence Dr. chief, actions impute little evidence it could case and the on which basis did rec- Katyal’s that he to Dr. Railan. there is was admission Mr. Railan On agreement ord, court should not discuss terms of conclude the trial judg- not believe Dr. Railan that he did Dr. Railan’s motion granted Katyals, jury’s who she had defrauded him. The on the as a matter of law ment agency proof the burden of on the misrepresentation. for fraudulent verdict *13 issue, Dr. Rai presented no that evidence damage argue the The Railans that any control over lan exerted measure of $50,250 mis- fraudulent of each for awards is evidence Although her husband. there because should be set aside representation negotiated that in the record Dr. Railan for the award they are cumulative of husband, bank, along the with her with have deter- contract. As we breach of Katyals’ concerning purchase the of mined that the evidence was insufficient was her husband’s and that she aware of Dr. against support the verdict of fraud 4, supra note negotiations Katyal, see Railan, against related award damage her no evidence in the record that there is fail. have concluded her also must As we nego agent husband acted as her when contract, and finding of of that the breach Katyal that represented with and tiated award, must be corresponding damages its Ka not on the note. he would foreclose law, there is no aside as a matter of set who that it Dr. Railan tyal’s belief was damage argument for the that the basis Katyal Mr. Railan car when called was against Mr. Railan for fraud award to fore they was first told intended This argument cumulative. leaves the speculative the note is to meet close on too supporting such there was no evidence of Katyals’ question burden on the damages. compensatory The trial Dr. Rai agency. judge denied discussed, injury have a on the As we lan’s motion for directed verdict was Katyals Railan’s fraud susceptible are Mr. ground “[t]he facts avoiding foreclo interpretation possibility han an that Mr. Railan was loss of identifying purchaser for family by investments for and stum sure a dling his from such action. through bled them.” The trial court did who would forbear Dr. once finding Katyals not make as to whether The introduced evidence an proceedings Mr. Railan were Railan exerted control over the foreclosure ap thus, nounced, and, they profits that he lost business could not have found $96,00012 income and rental Although proximately on her behalf. “the exis acted $75,000. extent, appeal, agency, totaling about On tence its nature brief, fact,” challenge, reply Washing their questions are Lewis v. Railans Auth., busi Katyals’ proof of lost adequacy Area 463 A.2d ton Metro. Transit Llerena, (D.C.1983), 599 666, v. profits.13 here was not See Garcia 673 ness that, of the witness.” Katyal prior foreclo- whole sum in estimation Mr. testified 12. sure, specific questioning had income of resumed with more the Tandoor restaurant The month, $5,000- $10,000 plus Katyal, counsel questions an additional directed Mr. 6,000 catering again object business. detailed a month from its as Mr. did foreclosure, income, According Katyal, to Mr. after the foreclosure before after both $6,500 catering were businesses. amounts reduced to and restaurant these from his $1,000, respectively. lawyer ob- Railans' brief, general- opening the Railans initially, asked "the In their jected when was absolutely no basis ly result of asserted that "there is of business lost as a amount of com- jury’s for the award in the record" The trial court sustained foreclosure”. fraud, distin- damages without noting pensatory ruled for previously objection, that it presented of guishing the evidence income from' between prove lost As to profits and lost rental income. up from the lost business if "buil[t] that, latter, bottom, at trial brick-by-brick, have the testified but not 1012 1138, (D.C.1991) 1064, (D.C.1991).
A.2d
(proof
1144
of dam-
1067
Punitive
ages speculative
may
where
“only
claimant “did not
be awarded
if it is
by
shown
lay any
convincing
foundation or
clear and
identify any source
evidence that the tort
for the formula”
committed
the defendant
aggravat
used to estimate net re-
by egregious
turn on
ed
conduct
gross
receipts).
business
and a state of
Even
justifies
mind that
punitive
assuming
damages.”
that we were to consider that
Breeden,
Jonathan Woodner Co. v.
appeal,
belated claim on
George
but see
665
929,
(D.C.1995),
denied,
938
Waas,
cert.
519
Washington
178,
Univ. v.
648 A.2d
1148,
1080,
(D.C.1994),
U.S.
117 S.Ct.
182 n.
L.Ed.2d
our review of the
(1997).
underlying
cases where the
record reveals that
pre-
the issue was not
fraud,
tort
required,
has been
served in the trial court.14 We therefore
punitive damages, that the
“aggra
tort be
plain
review
error. See United
motive,
malice,
vated
evil
actual
delib
Olano,
States v.
507 U.S.
113 S.Ct.
oppression.”
erate violence or
Feltman
(1993) (for
plain
L.Ed.2d 508
Sarbov,
(D.C.1976)
error, error must be
clearly
obvious and so
*14
582,
(quoting
Griffin,
Price v.
359 A.2d
prejudicial
appellant’s
substantial rights
(D.C.1976)).
589
Katyals argue
The
to jeopardize
the very fairness and in-
implicitly requires
finding
fraud
of mal
trial).
tegrity of
In
the
of
light
the unob-
ice
ill
support puni
and will sufficient to
jected
presented
evidence that was
of lost
tive damages.
Mark Keshishian
See
rental
income
the
approxi-
amount of
Sons,
Inc.,
Inc. v.
414
Washington Square,
$75,000,
mately
13,
supra
see
we con-
834,
(D.C.1980);
Wag
A.2d
842
Harris v.
clude
injustice
there is no
requiring rever-
shal,
(D.C.1975);
343 A.2d
Dis
jury’s
$52,500
sal of the
award of
against
Rodill,
trict Motor Co. v.
New Trial
reviewing the trial
decision
court’s
is
limited than the
argues
Railan
was enti
a new trial more
grant
that he
in decid
judge
trial on
count. A
accorded to a trial
tled to a new
the fraud
latitude
Best,
661
ing
a motion
trial is com
the motion. See Fisher
ruling on
for a new
(D.C.1995).
1098
mitted to the sound
of the trial A.2d
discretion
and,
say that
trial
abused
has had
cannot
court
court
because the trial court
we
that a new trial
seeing
hearing
deciding
the trial
the benefit
its discretion
true,
evidence,
it is
ruling
Although
trial
“will be
not warranted.
as
court’s
court ex
argues,
the trial
appeal only
if that discretion Railan
reversed
he,
jury,
another
the view that
or
pressed
abused.”
v. Merrell
has been
Oxendine
conclusion,
Inc.,
have come
a different
Dow Pharms.
not,
denied,
1074, 110
acknowledges, the
(D.C.1986),
as Railan
cert.
U.S.
(1990).
applied
appropriate
A
standard to be
weighted in favor of either side” as conclu-
point.
al
parties
The
had agreed that the
sive on the
jury’s
issue whether the
verdict
trial court should decide the landlord-ten
fraud,
proved by
which had to be
clear
ant and deficiency judgment claim based
evidence,
and convincing
was against the
verdict,
jury’s
on the
and the trial court
great
evidence,
or clear weight of the
enti-
so,
did
denying the deficiency judgment
tling them to a new trial. We do not so
Katyals
prevailed.
because the
the trial
impor-
read
court’s remark. An
Katyals contend that the Railans’ counsel
part
tant
of this case was
jury
who the
opportunity
press
waived the
their claim
believed. Consideration of a
trial
new
mo-
deficiency
for a
judgment after
jury
tion is not an exercise in supplanting the
returned its verdict. Again,
post-
in the
jury’s assessment of the credibility of wit-
trial
presented
motion
nesses.
Railans
no evi
jury’s
From the
verdict it is clear
dence in support of their
counterclaim for
Katyals’
events,
believed the
version of
deficiency
instead,
judgment,
choosing,
found serious fault with Railan’s con-
press
possession
duct
the claim
toward
in the
during
negotia-
tions.
landlord-tenant
appeal,
This is not a
action. On
jury
case where the
verdict is undermined
Railans abandon their
by documentary
arguments concern
(the
other “objective”
ing the action for possession
evidence that
the trial
court could
premises),
consider the
left the
overlooked.
but raise the issue of
Nor do we think that
the deficiency judgment.
the trial
if
give
court’s
Even we
testimony
exclusion of
concerning a
meet-
Railans the benefit of the doubt be
ing at which Mr.
present,
McCants was
cause their counsel’s concession was based
erroneous,
if
even
require
premise
new on the
had “lost” on the
(which
trial. The testimony
repre-
that Railan
jury verdicts
partially
reverse
sents
presented
would have been
if the
today), we do not believe that
the law
evidence had not
been excluded is
compels a deficiency judgment in this case
*16
large
evidence,
cumulative of other
which
where the
found that Mr. Railan’s
it,
jury already
had before
that Railan
injured
fraudulent conduct
Katyals
was ambivalent about purchasing the note
causing the foreclosure of
property.
their
Moreover,
on the terms Katyal alleges.
verdict,
As we do not disturb that
under
McCants would have contradicted Railan’s
circumstances,
these
Mr. Railan should not
Thus,
account of the meeting.
we con-
permitted
deficiency
collect the
judg
clude that the trial court did not abuse its ment which would
wrongful
result from his
discretion in denying the motion for a new conduct in foreclosing on the property.
trial on the fraud count.17
persuaded by
We are not
argument
that, having
pursue
chosen to
a claim for
VIII.
Railans,
contract damages against
Deficiency Judgment
Counterclaim for
rather than
specific performance
seek
Finally,
foreclosure,
the Railans contend that
avoid
the Katyals have af-
trial court
denying
erred in
their claim for
obligations
firmed their
to the Railans un-
deficiency
judgment
in the amount of der the
parties
note. The
have cited no
$150,000, the difference between the face
directly
point
case
on
and we have found
amount due on the
purchase
note and the
in
jurisdiction.
none
The Railans
price for which they acquired
premise
the Tandoor
argument
their
on
proposition
property at
foreclosure,
foreclosure. The Railans ar-
that
wrongful
“[f]or a
the bor-
17. In view
judgment
of our reversal of the
address the motion for a new trial as it relates
count,
the breach of
contract
we need
to fraud.
having
further held
510. The court
and inconsistent
rower has alternative
contract,
party
the defrauded
remedies,”
affirmed the
an action at law for
fraud,
sue in tort
nonetheless
wrong-
in
aside the
equity
an action
to set
affir-
inconsistency between
“no
finding
Ins. Co. v.
ful foreclosure. National Life
in
in tort for fraud
56, 62-63,
an action
Silverman,
mance and
U.S.App.D.C.
Id.
(D.C.1971),
contract].”
the inducement [of
in John-
quoted
So ordered. effect, by denying request Mr. Railan’s SCHWELB, Judge, deficiency judgment, majority Associate has concurring part part: permitted dissenting Katyals to recover substantially fraud an amount I Although believe jury. excess of the verdict returned prevailed aby margin razor-thin with re- *18 spect to several issues—whether there was In holding that Mr. Railan is barred fraud, clear and convincing evidence of pursuing from his counterclaim for a defi- $550,000-$35,000 bargain wrongfully procured by foreclos- more than the amount in- did, ing contrary representa- purchasing vested in when he to his note. Here, although tion. face amount due on $700,000, the note was the Railans agree majority I with the should $515,000. price doubt,” at a discounted "give the Railans benefit of the Upon foreclosing immediately they pur- when maj. op. regard question at prop- chased they deficiency the Railans obtained a whether have waived their bid) erty (through valued their at claim. (citations (D.C.2000) in ciency wife 288 n. apparently while his omitted). quotation ternal marks As I see (because precluded is not is no so “there effecting a forfeiture. the court linking evidence Dr. Railan her hus- favored, however, see, Forfeitures are not fraud,” 1016), maj. op. my band’s at col- Connerton, 723 e.g., Ass’n Am. R.R.s v. leagues applying kind of seem be some (D.C.1999),and I discern no reasoning. I “unclean hands” As under- here. legal ordering basis one I am for theory, majority’s stand the Mr. Railan is agree majori with the therefore unable to precluded recovering deficiency ty’s disposition the Railans’ counter Katyals, because he defrauded the and this claim, respectfully and I dissent from Part though result even Katyals’ is ordained opinion. VIII of the court’s claim in tort rather than in sounds rescis- sion, though even
been damages awarded substantial
fraud. But the unclean hands is a doctrine equity,” Katyal’s
“maxim of while ac-
tion to recover breach of con-
tract “legal money” is a claim for to which application. doctrine has no equitable
See, Barnes, In re Estate e.g.,