Lumbih v. Wilson

• Court: District of Columbia Court of Appeals
• Decided: December 19, 2024
• Docket: 23-CV-0298 & 23-CV-0299
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 23-CV-0298 & 23-CV-0299

GERARDINE LUMBIH, APPELLANT,

V.

CAROLYN WILSON, et al., APPELLEES.

Appeals from the Superior Court of the District of Columbia (2016-CA-005209-R(RP) & 2018-CA-006980(B))

(Hon. Yvonne Williams, Trial Judge)

(Argued September 17, 2024 Decided December 19, 2024)

Tyler Jay King for appellant.

Vanessa Carpenter Lourie for appellee Carolyn Wilson.

Andrew J. Lavin, with whom Brian L. Kass was on the brief, for appellee Ntaky Management, LLC.

Before BECKWITH, EASTERLY, and MCLEESE, Associate Judges.

MCLEESE, Associate Judge: Appellant Gerardine Lumbih challenges an order

that (1) declared that appellee Ntaky Management (“Ntaky”) rather than

Ms. Lumbih owns a disputed area between properties owned by Ms. Lumbih and

Ntaky; (2) authorized Ntaky to remove, at Ms. Lumbih’s expense, encroachments 2

from Ms. Lumbih’s property onto the disputed area; (3) denied Ms. Lumbih’s

breach-of-contract claim against appellee Carolyn Wilson, who had sold the

properties at issue to Ms. Lumbih and Ntaky; and (4) declined to require Ms. Wilson

to indemnify Ms. Lumbih for costs associated with removing the encroachments.

We affirm in part, vacate in part, and remand the case for further proceedings.

I. Factual and Procedural Background

Except as noted, the following basic facts appear to be undisputed.

Ms. Wilson was the owner of real property in the District of Columbia designated as

Lot 824. Ms. Wilson subdivided the lot into Lots 825, 826, and 827. Lots 825 and

826 are adjacent. Records maintained by the Office of the Surveyor for the District

of Columbia describe Lot 825 as thirty feet in length from north to south.

Ms. Wilson sold Lot 826 to Ntaky in 2009. The deed for the sale identifies

the property as measuring twenty feet by forty feet. A year later, Ms. Wilson sold

Lot 825 to Ms. Lumbih. During the purchase process, Vyfhuis & Associates

(“Vyfhuis”) provided an informal survey of Lot 825. The Vyfhuis survey, which

stated that it was “not a property line survey,” described Lot 825 as thirty-eight feet

in length from north to south. 3

The deed for Ms. Lumbih’s purchase refers to Lot 825 but also describes the

property as thirty-eight feet in length from north to south, consistent with the Vyfhuis

survey and inconsistent with the D.C. survey records. Ms. Wilson and Ms. Lumbih

also entered into a purchase agreement for Lot 825. That agreement is not in the

trial record or the record before this court.

Because of the prior sale to Ntaky, Ms. Wilson did not own all of the property

described in the deed to Ms. Lumbih. The conflicting descriptions of the property

sold in the two deeds created a disputed area that was eight feet wide and that lay

between the property purchased by Ntaky and the property purchased by

Ms. Lumbih.

Ms. Lumbih subsequently installed an HVAC unit and deck in the disputed

area. In 2018, Ntaky’s counsel sent Ms. Lumbih a letter explaining that Ntaky had

discovered that Ms. Lumbih’s HVAC, deck, and stairs were located on Ntaky’s

property. The letter asked Ms. Lumbih to remove the items, but Ms. Lumbih did not

do so.

Ntaky subsequently sued Ms. Lumbih, asserting that it owned the entirety of

Lot 826 and seeking an injunction requiring the removal of Ms. Lumbih’s stairway,

deck, and HVAC unit. 4

Ms. Lumbih brought various counterclaims against Ntaky, including a

quiet-title claim seeking declaratory relief confirming that title to Lot 825 should be

quieted in conformance with the deed that Ms. Lumbih received from Ms. Wilson.

Ms. Lumbih also brought third-party claims against Ms. Wilson under theories

including implied indemnity and breach of contract. Ms. Lumbih sought damages

for losses she suffered in defending against Ntaky’s lawsuit and any losses stemming

from a decision by the court that Ms. Lumbih does not hold title to the property as

warranted by Ms. Wilson in the deed.

The relevant evidence presented at the non-jury trial included the facts

described above. On the quiet-title claims, the trial court held that Ntaky was the

sole legal and equitable owner of Lot 826 and was therefore entitled to cause the

removal of the encroachments at issue (specifically the deck, stairway, and HVAC

unit) at Ms. Lumbih’s cost, risk, and expense. The trial court denied both

Ms. Lumbih’s breach-of-contract claim against Ms. Wilson and Ms. Lumbih’s

equitable claim of implied indemnity against Ms. Wilson. 5

II. Analysis

A. Ntaky Management

Although Ms. Lumbih named Ntaky as an appellee, Ms. Lumbih’s briefs in

this court do not explicitly challenge either the trial court’s award of relief to Ntaky

or the trial court’s denial of Ms. Lumbih’s claims for relief against Ntaky.

Ms. Lumbih’s reply brief instead clarifies that Ms. Lumbih’s position on appeal “has

not been to dispute where the trial court found the boundary line to be, but rather

Ms. Lumbih challenges the [t]rial [c]ourt’s factual findings and conclusions of law

as they related to the consequences between Ms. Lumbih and Ms. Wilson, stemming

from the finding on [] where the boundary line legally lies.”

At oral argument, Ms. Lumbih suggested that the trial court should have

granted relief against Ntaky by redrawing the boundary between the property that

Ntaky bought and the property that Ms. Lumbih bought. In general, we do not

consider points raised for the first time with this court at oral argument. See, e.g.,

Jung v. Jung, 844 A.2d 1099, 1112 n.9 (D.C. 2004) (“We usually do not consider

claims raised for the first time during oral argument because of the unfairness to the

opponent, who has not had an opportunity to consider and present a response.”). In

any event, Ms. Lumbih does not cite, and we are not aware of, any support for the

idea that the trial court erred by declaring that Ntaky owned the full property that it 6

had purchased from Ms. Wilson and was entitled to cause the removal, at

Ms. Lumbih’s expense, of the encroachments onto that property. We therefore

uphold the trial court’s rulings with respect to Ntaky.

B. Ms. Lumbih’s Breach-of-Contract Claim Against Ms. Wilson

Ms. Lumbih argues that the trial court erroneously denied her

breach-of-contract claim because the trial court did not consider Ms. Wilson’s duty

to convey the land as provided in the deed. We agree.

The trial court denied Ms. Lumbih’s breach-of-contract claim because the trial

court “[could] not conclude that Ms. Wilson had a duty to confirm that [Lot 825’s]

dimensions were correct.” Ms. Lumbih does not directly contest in this court the

trial court’s conclusion that Ms. Wilson had no duty to confirm the lot dimensions.

We therefore assume without deciding that the trial court was correct on that point.

Ms. Lumbih, however, has based her breach-of-contract claim on a different

contractual duty: Ms. Wilson promised to sell a property thirty-eight feet in length

and failed to do so. We therefore conclude that the trial court’s finding that

Ms. Wilson did not have a duty to confirm Lot 825’s lot dimensions is not a valid

ground for denying Ms. Lumbih’s breach-of-contract claim. 7

The trial court understood the deed for Lot 825 to “purport[] to convey Lot

825 with dimensions of 40 feet by 38 feet to Ms. Lumbih,” a conclusion that neither

party has directly contested in this court. We therefore take as a given that the deed

imposed on Ms. Wilson a duty to convey a property with dimensions of forty feet

by thirty-eight feet. See generally BSA 77 P St. LLC v. Hawkins, 983 A.2d 988, 993-

94 (D.C. 2009) (“A promise . . . is an express or implied declaration that raises a

duty to perform and subjects the promisor to liability for breach for failure to do

so.”). Ms. Lumbih relied on this duty in her breach-of-contract claim, stating that

Ms. Wilson “did not and could not convey the entire dimensions of land that she

offered to sell.” The trial court, however, did not address whether Ms. Wilson

breached a duty to convey a property thirty-eight feet in length. We therefore

remand the case for the trial court to consider the argument. See, e.g., Stancil v. First

Mount Vernon Indus. Loan Ass’n, 131 A.3d 867, 874 (D.C. 2014) (issue that trial

court did not address was “best left for the trial court in the first instance on

remand”).

We note a number of issues that might arise on remand: (1) whether the deed

is ambiguous given that it includes both the Vyfhuis survey dimensions and

reference to Lot 825; (2) how to resolve any such ambiguity; (3) the possible

application of doctrines such as mutual mistake and impossibility to resolution of

Ms. Lumbih’s breach-of-contract claim; and (4) whether any of these arguments 8

were properly preserved in the trial court. The parties have not adequately raised

those issues in this court, so we see no reason to address them at this juncture, and

we instead leave the issues to be addressed by the trial court if they are raised.

District of Columbia v. Helen Dwight Reid Educ. Found., 766 A.2d 28, 33 n.3 (D.C.

2001) (this court’s review on appeal is generally limited to issues that were properly

raised and preserved).

In denying Ms. Lumbih’s breach-of-contract claim based on the conclusion

that Ms. Wilson had no duty to confirm Lot 825’s dimensions, the trial court relied

on Fireison v. Pearson, 520 A.2d 1046 (D.C. 1987). We are not persuaded that

Fireison defeats Ms. Lumbih’s breach-of-contract claim.

Fireison, a fraud case applying Maryland law, held that a purchaser who

assumes the burden of examining land records cannot recover from the seller under

a claim of misrepresentation. 520 A.2d at 1050 (“If . . . the means of knowledge are

at hand, and the purchaser undertakes to make an examination of the land records,

he cannot say that he was deceived and injured by misrepresentations of the

vendor.”) (emphasis and internal quotation marks omitted). Fireison established that

this principle is applicable to claims of “negligent or innocent misrepresentation”

and fraud. Id. Fireison did not address whether an undertaking to examine land 9

records bars recovery under a breach-of-contract claim that alleges no

misrepresentation.

Ms. Lumbih’s breach-of-contract claim is not predicated on any

misrepresentation or other form of fraud. Rather, Ms. Lumbih argues that

Ms. Wilson failed to convey land that she promised to convey through the deed. We

therefore conclude that Fireison does not govern the resolution of Ms. Lumbih’s

breach-of-contract claim.

At oral argument, Ms. Wilson raised two alternative grounds for affirming the

trial court’s denial of her breach-of-contract claim: (1) the statute of limitations had

run; and (2) Ms. Lumbih failed to adequately allege or prove damages. We have the

authority in appropriate circumstances to decide issues of law not addressed by the

trial court. Evans v. United States, 122 A.3d 876, 883 (D.C. 2015) (“[W]e may

affirm a judgment on any valid ground, even if that ground was not relied upon by

the trial judge or raised or considered in the trial court, so long as doing so would

not be procedurally unfair.”) (internal quotation marks omitted). We often decline,

however, to decide issues in the first instance. See, e.g., Newell-Brinkley v. Walton,

84 A.3d 53, 61 (D.C. 2014) (“We choose not to decide that issue in the first instance,

mindful that we are a court of review, not of first view.”) (brackets, ellipsis, and

internal quotation marks omitted). In this case, we decline to consider these issues 10

in the first instance. We therefore express no view as to whether the issues were

properly raised in the trial court and, if so, whether the issues have merit. If

necessary, the trial court can address the issues on remand.

For the foregoing reasons, we vacate the denial of Ms. Lumbih’s

breach-of-contract claim and remand the case for further proceedings.

C. Ms. Lumbih’s Equitable Claim of Implied Indemnity

Ms. Lumbih argues that the trial court “should have invoked its equitable

powers to find Ms. Wilson liable to the parties on account of any damages associated

with the boundary line” through the doctrine of implied indemnity. We disagree.

A trial court’s decision to grant equitable relief is a discretionary

determination. See, e.g., Angland v. Doe, 263 F.2d 266, 268-69 (D.C. Cir. 1958)

(“A declaratory judgment, like other forms of equitable relief, should be granted

only as a matter of judicial discretion, exercised in the public interest.”) (internal

quotation marks omitted); Milton Props., Inc. v. Newby, 456 A.2d 349, 354 (D.C.

1983) (“The granting of such [injunctive] equitable relief is committed to the

discretion of the trial court.”). “Judicial discretion will not be reversed unless it

appears that it was exercised on grounds, or for reasons, clearly untenable or to an 11

extent clearly unreasonable.” Johnson v. United States, 398 A.2d 354, 363 (D.C.

1979) (internal quotation marks omitted).

Equitable relief is generally disfavored when relief at law is available. See,

e.g., Leftwich v. Leftwich, 442 A.2d 139, 145 (D.C. 1982) (“The merger of law and

equity in our courts does not erode the venerable principle that an adequate remedy

at law provides a preferable substitute to coercive equitable relief.”). Here,

Ms. Lumbih seeks a remedy at law through her breach-of-contract claim against

Ms. Wilson. At oral argument, Ms. Lumbih acknowledged that her equitable claim

is contingent on the failure of her breach-of-contract claim.

Because we are remanding Ms. Lumbih’s breach-of-contract claim, we could

in theory decline to consider Ms. Lumbih’s admittedly contingent equitable claim.

Nevertheless, because the issue has been briefed by the parties, seems

straightforward, and might occur on remand, we elect to consider Ms. Lumbih’s

equitable claim. We conclude that the claim was not adequately supported in this

case.

The equitable doctrine of implied indemnity is a tort concept that “arises

without agreement, and by operation of law to prevent a result which is regarded as

unjust or unsatisfactory.” Myco, Inc. v. Super Concrete Co., 565 A.2d 293, 297

(D.C. 1989) (brackets and internal quotation marks omitted). If applicable in this 12

case, the doctrine would in effect shift to Ms. Wilson the responsibility for the

damages that Ms. Lumbih would otherwise be required to pay to Ntaky. The

doctrine would be applicable only if (a) Ms. Wilson owed Ms. Lumbih “a specific

duty of defined nature,” and (b) Ms. Wilson and Ms. Lumbih had “a special legal

relationship.” Quadrangle Dev. Corp. v. Otis Elevator Co., 748 A.2d 432, 435 (D.C.

2000) (internal quotation marks omitted). The duty that gives rise to implied

indemnity “must flow from considerations other than the contractual relationship.”

Choharis v. State Farm Fire & Cas. Co., 961 A.2d 1080, 1089 (D.C. 2008).

In support of her argument for implied indemnity, Ms. Lumbih states that

“Ntaky had sued Ms. Lumbih for something that Ms. Wilson had done, and not for

something that Ms. Lumbih had done.” Ms. Lumbih fails, however, to identify a

duty of care that would require a trial court to apply the equitable doctrine of implied

indemnity. Ms. Lumbih’s assertion that “Ms. Wilson escaped the liability she

created for herself” by selling the property to Ms. Lumbih similarly fails to identify

a relevant duty of care separate from Ms. Wilson’s obligations to Ms. Lumbih under

the deed.

Given that Ms. Lumbih did not identify a non-contractual duty of care that

Ms. Wilson owed Ms. Lumbih, the trial court acted within its discretion in declining

to apply the doctrine of implied indemnity. We therefore affirm the trial court’s 13

determination that Ms. Wilson is not liable to Ms. Lumbih under the equitable

doctrine of implied indemnity for costs associated with removing the encroachments

at issue.

For the foregoing reasons, the judgment of the Superior Court is affirmed in

part and vacated in part, and the case is remanded for further proceedings.

So ordered.