Joseph S. Gullo v. Veterans Cooperative Housing Association

247 F.2d 573

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 11, 1957
• Docket: 13516
• Status: Published

Opinions

DANAHER, Circuit Judge.

The District Court granted the motion of the appellee (Association) for summary judgment in an action in which the appellants¹ sought $15,000 for the loss of the Gullo apartment, $5,000 on account of rights and interests in apartments held by the Association for rental, $15,000 as punitive damages, $5,000 for physical discomfort and mental anguish because of eviction from the Gullo apartment and for the expense of relocation elsewhere; and “such other and further relief as is just.” The facts pertinent to the; issues will be developed as we proceed.

Gullo and the Association entered into an agreement on December 7, 1947, under the terms of which Gullo, upon payment of the sum of $50 became a member of the Association entitled to “all rights and privileges of membership.” By virtue of such membership, Gullo became entitled to purchase from ■the Association a right of perpetual use and enjoyment of apartment No. B-394 in a project known as Naylor Gardens. The original perpetual use agreement was superseded by an instrument dated September 16, 1949, known as a mutual ownership contract. In accordance with its terms, Gullo agreed to pay to the Association as the purchase price for the perpetual use the sum of $7,350 “on terms and with interest” as in the contract provided. Gullo made a down payment of $1,682.09 and was bound to make payment of the unpaid balance of the purchase price in equal monthly principal and interest payments of $4.175 for each thousand dollars of the original assigned price of the perpetual use less the down payment, interest to be included on the unpaid balance at the rate of 3% per annum. It was agreed that the “original assigned price shall be the amount set or established by the Association as the value of the Perpetual Use on the date of the conveyance of the Project [Naylor Gardens] by the Government to the Association.” When the total purchase price had been paid in full, principal and interest payments were to cease “and the Member shall continue to enjoy all the rights and privileges provided under this Contract, subject to the payment of the Operating Payments as hereinafter provided.”

Gullo defaulted in the April 1, 1954, payment, and on April 12, 1954, commenced this action. The mutual ownership contract provided that in the event of default by the member as to any of the payments or charges required to be made, the Association might terminate the contract upon ten days’ written notice. Acting pursuant thereto the Association’s Board of Directors by resolution of April 23, 1954, exercised its authority to terminate the contract. Furthermore, the Association exercised its election, permitted by the contract, to purchase Gullo’s perpetual use. The reasonable market value of the perpetual use, calculated as the contract provided, was $9,000. After deduction of the unpaid balance of the purchase price and the estimated cost of maintenance, repairs, painting and decorating, and in furtherance of the Board’s resolution to purchase Gullo’s perpetual use for an amount “equal to the current value of such perpetual use,” the Association tendered to Gullo its check for the balance, computed to be $3,781.41. Gullo received but has never cashed the check.

Careful consideration of the stipulation of facts, the pleadings, the affidavits and the exhibits, has convinced us that the Association was authorized to take each of the steps thus far noted. We are satisfied that the District Court correctly concluded that no genuine issue of material fact existed with respect to the valuation of the perpetual use and that the sum of $3,781.41 was properly found to be due to Gullo as provided in the mutual ownership contract.

Moreover, we are satisfied that Gullo is entitled to no recovery on account of the “humiliation” of which he complains, which stemmed from the circulation of a petition by and among certain other members of the Association and which called for the expulsion of Gullo. No facts have been pleaded and none otherwise exhibited showing, or tending to show, that the circulation of the petition was the act of the Association. Indeed, the contrary appears. On no theory of Gullo’s claim deducible from this record is there a basis for punitive damages. To the extent that Gullo predicates this aspect of his claim upon his eviction, there can be no question that Gullo’s April 1, 1954, default in the payments then due was the result of his own decision. His continued default was a matter of reasoned, if ill-advised, personal choice. The steps thereafter taken by the Association to gain possession of the perpetual use Were authorized by the contract and strictly in accordance with its terms. We are all in accord that on the aspect of the case so far considered, no error was shown.

My colleagues say that Gullo is entitled to no additional relief and that the circumstances resulting in the discharge of his right under the mutual ownership contract likewise worked a termination of his interest in the equity assets of the Association. They would affirm, without more.

Affirmed.

1 . We will treat the appellants, husband and wife, as one, hereinafter referred to as Gullo.