Bay Gen. Industries, Inc. v. Johnson, No. 11894.

Docket NºNo. 11894.
Citation418 A.2d 1050
Case DateAugust 14, 1980
CourtCourt of Appeals of Columbia District
418 A.2d 1050
BAY GENERAL INDUSTRIES, INC., et al., Appellants,
v.
Rodger JOHNSON et al., Appellees.
No. 11894.
District of Columbia Court of Appeals.
Argued May 8, 1979.
Decided August 14, 1980.

Page 1051

COPYRIGHT MATERIAL OMITTED

Page 1052

Walter T. Charlton, Washington, D. C., for appellants.

No brief or appearance filed for appellees.

Before KELLY, NEBEKER and FERREN, Associate Judges.

KELLY, Associate Judge:


Appellants Bay General Industries, Inc. ("Bay General"), a Maryland Corporation that manufactures electronics components, and its chief officers, Arthur and Frieda Houseman, seek reversal of the trial court's December 17, 1976 order (entered at the close of appellants' evidence) dismissing their action requesting $150,000 damages, primarily in the form of lost profits, for unlawful detainer, fraudulent conversion, and intentional interference with the execution of a replevin writ.1 The action was originally brought in replevin, for return of a punch press that, although paid for, was never delivered to Bay General by the sellers, appellees Phyllis and Rodger Johnson and Continental Properties Credit Corporation, Inc. ("CPC").2

We reverse and remand for reconsideration of appellants' claim in tort and retrial of the issue of damages for unlawful detention. We also instruct the trial court to consider the possibility of awarding punitive damages and/or attorneys' fees.

I

Appellants' evidence at trial showed that appellant Arthur Houseman needed certain equipment for his new manufacturing business, Bay General.3 After negotiating with appellee Rodger Johnson4 for three pieces of machinery, including a Model 18E Diacro Turret Punch Press, he contacted the Phillips Machine and Supply Corporation, Inc. ("Phillips") and asked it to finance the $9,500 purchase.

On October 2, 1973, Phillips' president, Albert Phillips, accompanied Houseman and Johnson to view the equipment; in the presence of both, he discussed Phillips' financing arrangement with Bay General.5

Page 1053

The lease was executed the same day. Although Johnson apparently agreed to deliver the equipment to Bay General on the following Saturday, he did not show up. He delivered two of the three pieces of equipment the following week and took Phillips' check for $9,850 (which included a $350 delivery fee); although he cashed the check on October 15, the punch press was never delivered, despite Bay General's repeated attempts to obtain it.

By November 19, appellants found themselves falling behind in their production schedule.6 Unable to find a replacement for the missing press, and having been told by Johnson that he never intended to deliver it, Bay General (with Phillips as co-plaintiff) brought a replevin action against Johnson. A protective order was issued the same day; it was served, along with the summons and complaint, upon Phyllis Johnson on November 26.

The record shows that Johnson appeared and testified on December 14. On December 26, appellants filed a $1,000 surety bond and the replevin writ was issued. The writ was to be executed at 615 15th Street, Northeast, premises owned by CPC (whose corporate address was the same as the Johnsons'). It was returned unexecuted and was reissued on January 24.

However, according to a trial court order filed May 13, 1974 issuing a writ of replevin against CPC and an order to show cause for contempt of the court's November 19 order against Johnson, Johnson "refused to unlock the premises [for the United States Marshals], stating [that] he did not know who owned the property."7

On May 16, the May 13 show cause order was served on Johnson. A hearing was begun on May 23, continued until May 30, and taken under advisement by the trial court. Another show cause order, directed to both CPC and Johnson, was issued on August 30. There is no record of the disposition of either contempt proceeding.

Having failed to obtain execution of the writ, appellants filed several motions seeking leave to amend their replevin complaint.8 The first motion, seeking to add a count for wrongful possession and damages of $110,000, was granted on October 3, 1974. The second, adding: (1) Phyllis Johnson as a party defendant, (2) a cause of action for intentional interference with the execution of the replevin writ, (3) a tort action for conspiring to defraud appellants of possession, and (4) a damages claim of $150,000, was granted on March 31, 1975.

In the meantime, numerous cross requests for discovery, motions to compel production of documents and answers to interrogatories, and oppositions thereto, were filed and heard.

Page 1054

On July 28, 1976, appellants filed another motion for leave to amend their complaint. It was denied on August 30; a motion for relief from the denial was filed on September 20 and denied on October 12, 1976. Another motion for relief was denied on October 15. A notice of appeal was filed on November 11.9 On November 12 and 16, appellants again filed motions to amend the complaint.

On November 17, 1976, appellees' motion for summary judgment was granted as to count "A" (replevin) and denied as to count "B" (tort). Cross motions for reconsideration were denied and the case was continued until November 22 for a jury trial.

The case was apparently settled among Phillips, Phyllis Johnson, and CPC on November 20; trial was continued until November 26 to allow Rodger Johnson time to obtain his own counsel. The case again was continued at Johnson's request, until December 15, when Johnson's motion to assign the case to the non-jury calendar was granted by consent.

On December 17, the Housemans' and Bay General's cause of action were dismissed; their oral motions for reconsideration of the dismissal and to amend the complaint to add punitive damages, attorney's fees, costs, and a count of malicious interference with a contract were both denied.

Phillips, the remaining plaintiff, was subsequently awarded the value of the punch press, estimated at $6,800, along with $100 storage costs, provided that it returned the two pieces of equipment that appellees had delivered to Bay General in October 1973.10 Appellants filed notice of this appeal on January 17, 1977.

II

A defendant's motion for judgment at the close of the plaintiff's evidence in a non-jury case, such as this, is governed, not by the Super.Ct.Civ.R. 50(a) directed verdict standard but, rather, by Super.Ct.Civ.R. 41(b) providing for involuntary dismissa1.11 Marshall v. District of Columbia, D.C.App., 391 A.2d 1374 (1978); Keefer v. Keefer & Johnson, Inc., D.C.App., 361 A.2d 172 (1976); Warner Corp. v. Magazine Realty Co., D.C.App., 255 A.2d 479 (1969).

Under Rule 41(b), the trial court may not dismiss the action unless "upon the facts and the law the plaintiff has shown no right to relief." On granting the motion, the court is required to make findings as provided in Rule 52(a).12

On review, the trial court's findings

and conclusions will not be disturbed "unless clearly erroneous, with due regard being given to the opportunity of the trial court to judge the credibility of the witnesses." Marshall v. District of Columbia, supra at 1379-80 (quoting Keefer v. Keefer & Johnson, Inc., supra at 176 n. 9). However, we are aware that a dismissal with prejudice under Rule 41(b) is a drastic remedy, to

Page 1055

be sparingly exercised. Darden v. Capitol Cab Cooperative Ass'n, Inc., D.C.Mun.App., 154 A.2d 352, 354 (1959); National Tire Dealers Retreaders Ass'n, Inc. v. G.D.C. Corp., D.C.Mun.App., 147 A.2d 869, 871 (1959).

We conclude that appellants' evidence clearly established that they were entitled to relief; the trial court's conclusions to the contrary — that the action by appellants was barred by their lack of contract privity with appellees or by their lack of legal title13 — are plainly erroneous. See Part III infra. We also conclude that appellants' relief may include consequential, as well as incidental, dam ages14 arising from the appellees' unlawful detention of the punch press, see Part IV infra, and that an award of punitive damages may also be appropriate for consideration by the trial court in this case.15 See Part V infra.

III

At trial, the court stated that it "[could not] see under any stretch of imagination how [Bay General could] legally hold [Johnson] for any damages that they may have suffered." It also concluded that the lease agreement "has nothing in the world to do with the [sales] agreement between [Phillips] and [Johnson] . . ." and that, viewing the case as a breach of contract action between Johnson and Phillips, appellants' lack of contract privity precluded them from maintaining an action against Johnson. These conclusions are incorrect.

As this court recently stated, "[o]ne who is not a party to a contract nonetheless may sue to enforce its provisions if the contracting parties intend the third party to benefit directly thereunder." Western Union Telegraph Co. v. Massman Construction Co., D.C.App., 402 A.2d 1275, 1277 (1979) (citing Moran v. Audette, D.C.App., 217 A.2d 653, 654 (1966); Aetna Casualty & Surety Co. v. Kemp Smith Co., D.C.App., 208 A.2d 737, 738-39 (1965)). Lack of contract privity has not barred a suit for breach of contract in this jurisdiction since at least 1949, see Owens v. Liff, D.C.Mun. App., 65 A.2d 921 (1949), and third party beneficiary actions were expressly sanctioned in 1965. See Aetna Casualty & Surety Co. v. Kemp Smith Co., supra. See generally 2 Williston on Contracts § 354 at 821 et seq. (1959).

Having failed to obtain possession of the punch press (specific performance of the contract) by means of their replevin attempts, appellants were not barred from subsequently proceeding under a third party beneficiary contract theory for the damages caused by its continued unlawful detention or, under a tort theory, for the harm arising from the intentional tortious acts of the appellees.16

Page 1056

D.C.Code 1973, § 16-3705 does not preclude either action;...

To continue reading

Request your trial
43 practice notes
  • Nepera Chemical, Inc. v. Sea-Land Service, Inc., SEA-LAND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 17, 1986
    ...64 (1982); American Fed'n of State, County & Mun. Employees v. Ball, 439 A.2d 514, 514-515 (D.C.1981); Bay Gen. Indus. v. Johnson, 418 A.2d 1050, 1057-1058 & n. 20 (D.C.1980). 105 Cahn v. Antioch Univ., supra note 56, 482 A.2d at 133 (quoting 1901 Wyo. Ave. Coop. Ass'n v. Lee, 345 A.2d 456,......
  • Ehrenhaft v. Malcolm Price, Inc., 83-1261.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 14, 1984
    ...appropriate to assert both breach of contract and negligence claims in an agency case"; and in Bay General Industries, Inc. v. Johnson, 418 A.2d 1050, 1055 (D.C.1980), we found that where appellants initially pursued relief under a theory of specific performance of a contract, they were not......
  • Vassiliades v. Garfinckel's, Brooks Bros., 83-1255.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 13, 1985
    ...award of compensatory damages against Garfinckel's, there is also no basis for punitive damages. Bay General Industries, Inc. v. Johnson, 418 A.2d 1050, 1058 n. 21 (D.C. 1980); Franklin Investment Co. v. Smith, 383 A.2d 355, 358 Page 594 B. In determining whether a verdict was excessive, th......
  • Stephenson v. Capano Development, Inc.
    • United States
    • United States State Supreme Court of Delaware
    • March 15, 1983
    ...can not be made unless the plaintiff also receives compensatory damages. E.g., Bay General Industries, Inc. v. Johnson, D.C.Ct.App., 418 A.2d 1050 (1980); Kneas v. Hecht Co., Md.Ct.App., 262 A.2d 518 (1970). However, the particular theory upon which the plaintiff is awarded compensatory dam......
  • Request a trial to view additional results
43 cases
  • Nepera Chemical, Inc. v. Sea-Land Service, Inc., SEA-LAND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 17, 1986
    ...64 (1982); American Fed'n of State, County & Mun. Employees v. Ball, 439 A.2d 514, 514-515 (D.C.1981); Bay Gen. Indus. v. Johnson, 418 A.2d 1050, 1057-1058 & n. 20 (D.C.1980). 105 Cahn v. Antioch Univ., supra note 56, 482 A.2d at 133 (quoting 1901 Wyo. Ave. Coop. Ass'n v. Lee, 345 A.2d 456,......
  • Ehrenhaft v. Malcolm Price, Inc., No. 83-1261.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 14, 1984
    ...appropriate to assert both breach of contract and negligence claims in an agency case"; and in Bay General Industries, Inc. v. Johnson, 418 A.2d 1050, 1055 (D.C.1980), we found that where appellants initially pursued relief under a theory of specific performance of a contract, they were not......
  • Stephenson v. Capano Development, Inc.
    • United States
    • United States State Supreme Court of Delaware
    • March 15, 1983
    ...can not be made unless the plaintiff also receives compensatory damages. E.g., Bay General Industries, Inc. v. Johnson, D.C.Ct.App., 418 A.2d 1050 (1980); Kneas v. Hecht Co., Md.Ct.App., 262 A.2d 518 (1970). However, the particular theory upon which the plaintiff is awarded compensatory dam......
  • Vassiliades v. Garfinckel's, Brooks Bros., No. 83-1255.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • May 13, 1985
    ...award of compensatory damages against Garfinckel's, there is also no basis for punitive damages. Bay General Industries, Inc. v. Johnson, 418 A.2d 1050, 1058 n. 21 (D.C. 1980); Franklin Investment Co. v. Smith, 383 A.2d 355, 358 Page 594 B. In determining whether a verdict was excessive, th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT