Dyer v. Bilaal, No. 07-CV-1057.

• Decision Date: 12 November 2009
• Docket Number: No. 08-CV-1562.,No. 09-CV-76.,No. 07-CV-1057.
• Citation: 983 A.2d 349
• Parties: Dennis J. DYER, Appellant, v. Idriis BILAAL, et al., Appellees, and Idriis Bilaal, et al., Appellants, v. Vincent Abell, et al., Appellees.
• Court: D.C. Court of Appeals

983 A.2d 349

Dennis J. DYER, Appellant, v. Idriis BILAAL, et al., Appellees, and Idriis Bilaal, et al., Appellants, v. Vincent Abell, et al., Appellees.

No. 07-CV-1057.

No. 08-CV-1562.

No. 09-CV-76.

District of Columbia Court of Appeals.

Argued September 28, 2009.

Decided November 12, 2009.

Gregory M. Fisher, Washington, for Dennis Dyer, appellant in No. 07-CV-1057.¹

Dominic F. Perella, with whom Sten A. Jensen, Jeffrey D. Pariser, and Jake M. Shields were on the brief, for appellees in No. 07-CV-1057 and appellants in No. 08-CV-23.

Lydia Auzoux, with whom David H. Cox, Washington, was on the brief, for Vincent Abell, Modern Management Company, and Marta Bertola, appellees in No. 08-CV-23.

Before GLICKMAN and FISHER, Associate Judges, and FARRELL, Senior Judge.

FISHER, Associate Judge:

These consolidated appeals require us to construe two settlement agreements that relate to the same litigation. Several former homeowners sued Dennis Dyer, Vincent Abell, and other defendants, alleging that they had been engaged in a mortgage foreclosure rescue scam, ultimately defrauding plaintiffs out of the equity in their homes. Defendants denied the allegations. Rather than go to trial, the parties entered into separate agreements, one (seemingly) resolving the claims made against Dennis Dyer by the estate of Willie King, and the other settling the remaining claims, including those by Raymond James against Vincent Abell and Modern Management Company. Thereafter, the trial court granted a motion to enforce the first agreement against Mr. Dyer but denied a motion which asserted that Mr. Abell and others had failed to comply with the second agreement. We affirm the first judgment and reverse the second.

I. The Procedural Background

Six homeowners, including Willie King and Raymond James, brought suit against the defendants, alleging fraud and other torts as well as violations of state and federal lending laws and consumer protection laws. They claimed that the defendants approached them individually with offers to save their homes from foreclosure by loaning them money. The homeowners understood that they would remain in their homes, that they would pay the amount of the mortgage payments (plus an additional amount) directly to defendants instead of to the bank, and that the defendants would be responsible for paying the mortgage, keeping the extra money in return for their services and as repayment of the loan.²

Instead of merely signing loan documents, however, the plaintiffs unwittingly transferred title to their homes for a fraction of their value and became tenants. However, the original homeowners remained personally liable on the mortgages. Thereafter, the plaintiffs became concerned that the defendants were not crediting the monthly payments to the mortgages (some plaintiffs received new arrearage notices and some were suspicious because they could no longer reach the defendants). Several plaintiffs, unable to pay rent and shoulder the entire amount of the pre-existing mortgage payments or mounting late fees, opted to send their monthly mortgage payments directly to their bank and stopped sending the defendants any money. The defendants sued those plaintiffs for failure to pay rent.

The defendants, by contrast, claimed that they never held themselves out as mere money lenders and clearly communicated that they were purchasing the homes, leasing them back, and giving the former homeowners refinancing assistance or an option to repurchase. They never agreed to assume liability for the mortgages; they only agreed to pay the initial amount of arrearages necessary to avoid foreclosure.

Without admitting liability, the defendants settled the case in two segments. One agreement was reached on May 28, 2007, between Mr. Dyer and the estate of Mr. King.³ Plaintiffs' counsel read the material terms of that agreement into the court record on May 29, 2007, the day set for trial. The apparent success of these parties in resolving their portion of the litigation prompted the remaining parties to renew settlement discussions, and they executed a separate agreement on August 23, 2007. Later events led certain plaintiffs to file two motions to enforce the agreements. We will supply more details when analyzing the various issues presented in these appeals.

II. General Contract Principles

Settlement agreements are construed under "general principles of contract law." Goozh v. Capitol Souvenir Co., 462 A.2d 1140, 1142 (D.C.1983) (quoting Brown v. Brown, 343 A.2d 59, 61 (D.C. 1975)). Accordingly, we enforce a valid and binding settlement agreement just like "any other contract." Rommel v. West American Insurance Co., 158 A.2d 683, 684-85 (D.C.1960).

This jurisdiction adheres to an "objective" law of contracts, meaning "the written language embodying the terms of an agreement will govern the rights and liabilities of the parties [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite undertaking, or unless there is fraud, duress, or mutual mistake." DSP Venture Group, Inc. v. Allen, 830 A.2d 850, 852 (D.C.2003) (internal quotation marks and citation omitted; brackets in original). In other words, a party's unexpressed intent is irrelevant if a contract is unambiguous. See Bolling Federal Credit Union v. Cumis Insurance Society, Inc., 475 A.2d 382, 385 (D.C.1984) ("If the release is facially unambiguous, we must rely solely upon its language as providing the best objective manifestation of the parties' intent."); 1 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 1.9, at 25 (1993) ("Agreement consists of mutual expressions; it does not consist of harmonious intentions or states of mind.").

When interpreting a contract and determining whether it is ambiguous, "we examine the document on its face, giving the language used its plain meaning." Tillery v. District of Columbia Contract Appeals Bd., 912 A.2d 1169, 1176 (D.C. 2006) (citing Sacks v. Rothberg, 569 A.2d 150, 154 (D.C.1990)). "[A] court must honor the intentions of the parties as reflected in the settled usage of the terms they accepted in the contract, and will not torture words to import ambiguity where" there is none. Bragdon v. Twenty-Five Twelve Assocs. Ltd. Partnership, 856 A.2d 1165, 1170 (D.C.2004) (internal quotation marks and citations omitted). Moreover, "contracts are not rendered ambiguous by the mere fact that the parties do not agree upon their proper construction." Steele Foundations, Inc. v. Clark Construction Group, Inc., 937 A.2d 148, 153 (D.C.2007) (citing Dodek v. CF 16 Corp., 537 A.2d 1086, 1093 (D.C.1988)).

If, however, "the court finds that the contract has more than one reasonable interpretation and therefore is ambiguous, then the court—after admitting probative extrinsic evidence—must determine what a reasonable person in the position of the parties would have thought the disputed language meant." In re Bailey, 883 A.2d 106, 118 (D.C.2005) (internal quotation marks omitted). In such instances, though, any ambiguity as to the contract's meaning will be construed strongly against the drafter. See Capital City Mortgage Corp. v. Habana Village Art & Folklore, Inc., 747 A.2d 564, 567 (D.C.2000).

III. Standard of Review

Determining whether documents or oral representations constitute an enforceable contract is a question of law, which this court reviews de novo. EastBanc v. Georgetown Park Assocs., 940 A.2d 996, 1002 (D.C.2008) (citing Kramer Assocs. v. Ikam, Ltd., 888 A.2d 247, 251 (D.C.2005)). Whether a contract is ambiguous is also a question of law subject to de novo review. Steele Foundations, 937 A.2d at 153. Similarly, we review de novo a trial court's interpretation of a settlement agreement. See 1230-1250 Twenty-Third St. Condo. Unit Owners Ass'n, Inc. v. Bolandz, 978 A.2d 1188, 1191 (D.C.2009).

IV. The Dyer-King Settlement Agreement

A. The Factual and Procedural Background

On May 28, 2007, one day prior to trial, Mr. Dyer's attorney, Mr. Fisher, sent a "settlement offer" to Mr. Pariser, the attorney for the King estate, for the purpose of "settl[ing] Mr. Dyer out of the Bilaal case completely." Mr. Dyer offered the following terms:

1. The Estate of Willie King will receive title to the King house.

2. The mortgage on the King house will be paid off in full.

3. The approximately $16,000 expended to take the King house out of foreclosure will be forgiven.

4. The King estate will receive $50,000 in cash.

5. Any outstanding payments due for the King house arising out of any court orders will be forgiven.

Mr. Dyer also offered "not to conduct in the future any pre-foreclosure transactions that involve a sale and lease-back with an option to repurchase. . . ." Dyer's attorney characterized this proposal as "a substantial new settlement offer that makes the King estate whole (by returning the King house) and considerably more (by paying off the mortgage and making a substantial cash payment), and addresses the public interest concerns of all plaintiffs with a pledge that Mr. Dyer will not engage in pre-foreclosure/lease-back/buy-back transactions in the future." Mr. Pariser accepted the offer by phone the same day.

On May 29, 2007, Mr. Pariser announced in open court that the King estate had reached a settlement with Mr. Dyer, and they had agreed that he "would read into the record . . . the material terms." Mr. Pariser did so without correction from Mr. Fisher. Subsequently, the parties attempted to draft a more comprehensive written agreement but disputed whether to include a confidentiality clause and what it meant to pay off the mortgage "in full." Mr. Dyer argues that when he used the term "in full," he meant that he would pay the "principal outstanding balance." The King estate asserts that "in full" includes not only the principal but also any penalties and arrearages. After negotiations broke down, plaintiffs filed a motion to enforce the...