Blekas v. Boss & Phelps, Inc.

• Decision Date: 23 October 1981
• Docket Number: No. 80-31.,80-31.
• Citation: 437 A.2d 584
• Court: D.C. Court of Appeals
• Parties: Helen GLEKAS, et al., Appellants, v. BOSS & PHELPS, INC., Appellee.

437 A.2d 584

Helen GLEKAS, et al., Appellants, v. BOSS & PHELPS, INC., Appellee.

No. 80-31.

District of Columbia Court of Appeals.

Argued September 18, 1980.

Decided October 23, 1981.

Jacob Sheeskin, Rockville, Md., for appellants.

Joseph F. Cunningham, Washington, D.C., with whom Martha W. McClellan,

Washington, D.C., was on brief, for appellee.

Before NEBEKER and HARRIS, Associate Judges, and GALLAGHER,^* Associate Judge, Retired.

GALLAGHER, Associate Judge, Retired:

The sole question on this appeal is the propriety of the trial court's decision to grant the defendant's motion for summary judgment. Helen, Pota, and Alexandra Glekas, the plaintiffs below and appellants in this action, sought a judgment against the defendant, Boss & Phelps, Inc., for breach of a real estate management contract and for negligently performing duties owed to the Glekases. The Glekases alleged that a fire insurance policy covering their real property known as 7813-7815 Georgia Avenue, N.W., expired due to Boss & Phelps' failure to see that a timely renewal of the policy was made; that this failure was a breach of Boss & Phelps' obligation to the Glekases; and that, as a result of this breach, the property was not covered by a policy when a fire occurred and caused substantial damage several months later. The trial judge found no material facts in dispute and granted Boss & Phelps' motion for summary judgment both on the breach of contract and the negligence theories. Because there are material facts in dispute, we must reverse.

The undisputed facts are as follows: The Glekases are the fee simple owners, as tenants in common, of the Georgia Avenue property that is central to this suit. George Glekas, husband of Helen Glekas, was the agent of the Glekases and generally handled all business and insurance matters concerning the property.¹ The Glekases had an oral agreement with Mr. Reuben Bogdanoff,² an insurance broker, to keep the insurance on their property in force. In addition, the Glekases had an agreement with Boss & Phelps to manage their property.

The agreement between the Glekases and Boss & Phelps was made during a meeting in January 1970 at the home of George Glekas, and, thereafter, Boss & Phelps collected the rent on the property and paid the bills, including the fire insurance premiums. Boss & Phelps also kept a calendar noting when the Glekases' insurance policy would expire and kept a copy of their insurance policy on file.

The District of Columbia Property Insurance Facility issued an insurance policy to George, Pota, and Alexandra Glekas which ran from July 25, 1976 to July 26, 1977. The policy was not renewed and expired on July 25, 1977. A fire occurred on September 5, 1977 and damaged the Georgia Avenue property. George Glekas, who had been ill for several months, was in the hospital on the date of the fire and died on November 18, 1977.

The disputed facts center principally around both the form of the agreement between the Glekases and Boss & Phelps and the content of that agreement. Boss & Phelps contends that the agreement was oral and that their only responsibility to the Glekases was to collect the rent from the property and pay the bills and insurance premiums, when so directed.³ Boss & Phelps claims it had the authority to renew the insurance policy only upon the request of George Glekas. The Glekases, on the other hand, maintain that the agreement made in January 1970 was a formal, written agreement and that this agreement was signed by George, Pota, and Alexandra Glekas. None of the appellants recalls the precise provisions of the contract, and they claim they did not receive a copy of the contract. They do recall, however, that Mr. Jerry Morris, an employee of Boss & Phelps, assured them that he would "take care of everything,"⁴ concerning their Georgia Avenue property. They assert that "everything" includes an obligation actually to renew the fire insurance before the expiration date or to oversee Mr. Bogdanoff in his obligations with respect to the renewal of the fire insurance policy. Implicit in appellants' arguments is that Boss & Phelps, at the very least, had an obligation to see that the Glekases were properly and effectively notified of any approaching fire insurance expiration dates.⁵

Aside from the disputed facts which center around the form and the content of the agreement between the parties, there are several other material facts in dispute. It is not clear, for example, whether Mr. Morris was apprised of the serious nature of George Glekas' illness⁶ or whether any of the other Glekases had taken over George's role as agent for the Glekases during the period of his illness and hospitalization. In addition, conflicting testimony was given during the depositions as to whether Mr. Morris notified Mr. Bogdanoff prior to the expiration of the Glekases' policy.⁷

It is well settled that summary judgment is only appropriate when no genuine issue of material fact exists. Super.Ct.Civ.R. 56(c). In Dewey v. Clark, 86 U.S. App.D.C. 137, 143, 180 F.2d 766, 772 (1950), Judge Fahy summarized the factors to be considered in determining whether summary judgment is appropriate:

(1) Factual issues are not to be tried or resolved by summary judgment procedure; only the existence of a genuine and material factual issue is to be determined. . . . (2) In making determination doubts . . . are to be resolved against the granting of summary judgment; (3) There may be no genuine issue even though there is a formal issue. Neither a purely formal denial nor, in every case, general allegations, defeat summary judgment. On this point the cases decided by this court must rest on their own facts rather than upon a rigid rule that an assertion and a denial always preclude the granting of summary judgment. . . . (4) If conflict appears as to a material fact the summary procedure does not apply unless the evidence on one or the other hand is too incredible to be accepted by reasonable minds or is without legal probative force even if true; (5) To support summary judgment the situation must justify a directed verdict.

Later cases have utilized the considerations articulated in Dewey v. Clark, supra. These later cases have stressed that a party moving for summary judgment has the burden of proving there is no issue of material fact and that all inferences which may be drawn from subsidiary facts are to be resolved against the movant. See, e.g., Willis v. Cheek, D.C.App., 387 A.2d 716, 719 (1978); Malcolm Price, Inc. v. Sloane, D.C. App., 308 A.2d 779, 780 (1973).

Moreover, as a general proposition, summary judgment is likely to be inappropriate when issues of motive or intent are material and should be used sparingly in such cases. See generally 6 Moore's Federal Practice ¶ 56.17 [41.-1] at 56-930 (1980). See also International Brotherhood of Painters and Allied Trades v. Hartford Indemnity Co., D.C.App., 388 A.2d 36, 42-44 (1978); Willis v. Cheek, supra 387 A.2d at 719. Thus, in a contracts case, when there is "[a] question of interpretation of an integrated agreement [it] is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence.'" 1901 Wyoming Avenue Cooperative Association v. Lee, D.C.App., 345 A.2d 456, 461 n. 8 (1975) (quoting in part Restatement (Second) of Contracts § 238(a) and Comment d (Tent. Drafts Nos. 1-7, 1973)). Similarly, issues of negligence frequently are not susceptible of summary adjudication, but should be resolved by trial in the ordinary manner. See, e.g., Franklin Investment Co. v. Huffman, D.C.App., 393 A.2d 119, 122-23 (1978) (summary judgment held inappropriate; question of fact for the jury as to what duty of care required under the circumstances). See generally 6 Moore's, supra ¶ 56.17 [42] at 59-946.

A finding of liability in this case might be based on a theory of contractual obligation or a negligence theory. Because there are material facts in dispute relevant to both of these theories, summary judgment should not have been granted on either theory.

I. The Breach of Contract Theory

We first address the breach of contract theory, for where questions of a breach of an agency contract and negligence arise, the better analysis initially focuses on the nature of the contract and the breach of that contract. See Bogley v. Middleton Tavern, Inc., 42 Md.App. 314, 324, 400 A.2d 15, 21 (Ct.Spec.App.1979) rev'd on other grounds, 288 Md. 645, 421 A.2d 571 (1980). It is fundamental that the relationship between an agent and his principal arises from a contractual agreement and that his contract defines the scope and extent of the agency. Investment Co. Institute v. Camp, 274 F.Supp. 624, 639 (1967), rev'd on other grounds sub nom. National Association of Securities Dealers v. SEC, 163 U.S.App.D.C. 241, 420 F.2d 83 (1969), rev'd, 401 U.S. 617, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Brown v. Coates, 102 U.S.App.D.C. 300, 303, 253 F.2d 36, 39 (1958). In performing an agency contract, an agent is bound to use reasonable care and skill. Yelen v. Banks, D.C.Mun.App., 146 A.2d 569, 571 (1959). See also Consolidated Sun Ray, Inc. v. Lea, 401 F.2d 650, 656 (3d Cir. 1968), cert. denied, 393 U.S. 1050, 89 S.Ct. 688, 21 L.Ed.2d 692 (1969).

Given the importance of an agency contract in determining the extent of an agent's obligations, we cannot agree with appellee's assertion that any dispute as to the form of the contract is irrelevant to our determination of the appropriateness of summary judgment. In the absence of ambiguity, a written contract duly signed and executed speaks for itself and is binding on the parties. Gagnon v. Wright, D.C.App., 200 A.2d 196, 198 (1964). See generally J. Calamari and J. Perillo, Law of Contracts § 3-2, at 99 (1977) (existence of an integrated written contract precludes the use of parol evidence to vary or contradict its terms). A written...