Fireison v. Pearson, No. 84-157.

• Docket Nº: No. 84-157.
• Citation: 520 A.2d 1046
• Case Date: January 22, 1987
• Court: Court of Appeals of Columbia District

Page 1046

520 A.2d 1046 Louis FIREISON and Bernadine Fireison, Appellants,
v.
Luvie M. PEARSON, Appellee. No. 84-157. District of Columbia Court of Appeals. Decided January 22, 1987.

Michael Alan Olshonsky, with whom Mary P. Nyiri, Washington, D.C., was on brief, for appellants.

Kenneth J. Ingram, Washington, D.C., for appellee.

Before MACK, BELSON and ROGERS, Associate Judges.

PER CURIAM:

Upon consideration of appellee's petition for rehearing en banc, the division sua sponte grants reconsideration. Having concluded that the rule of Piper v. Jenkins, 207 Md. 308, 314, 113 A.2d 919,

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922 (1955) (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") is controlling even in the absence of actual notice to the purchaser's agent, see Shappirio v. Goldberg, 192 U.S. 232, 241, 24 S.Ct. 259, 261, 48 L.Ed. 419 (1904) (agent's knowledge, actual or implied, imputed to purchaser); Ryan v. Brady, 34 Md.App. 41, 54, 366 A.2d 745, 752 (1976), we recall the mandate, vacate our opinion of January 29, 1986, and affirm the judgment of the trial court.¹ Because the purchasers, the Fireisons, undertook the responsibility of searching the title and preparing the deed, vendor Pearson had a complete defense to the allegations of fraud. Therefore, the trial court did not err in dismissing the action after the purchasers presented their case pursuant to Super.Ct. Civ.R. 41(b).

I

Appellants Louis and Bernadine Fireison brought action against appellee Luvie M. Pearson for fraud and breach of contract. The trial court, sitting without a jury, granted a defense motion to dismiss the case at the close of plaintiffs' case. We will set forth the evidence as developed in plaintiffs' case.

Louis Fireison had become aware in March of 1975 that the Merry-Go-Round farm in Montgomery County, Maryland, owned by Mrs. Drew (Luvie) Pearson, was for sale. He set up an appointment with Tyler Abell, Pearson's agent and the developer of the tract, to inspect the property. Abell provided him with a plat of the farm, which showed a division of the property into 17 lots. The plat, which is dated June 1975, listed the area of Lot no. 6 as 5.1 acres. Abell showed Fireison the approximate boundary lines of all of the lots on the farm. The beginning and end of each lot were marked with steel stakes. Fireison understood that these stakes had been laid out by a surveyor. Fireison became interested in lot 6, partly because of a row of tall, old trees that lined one side of the property. The boundary line between lots 5 and 6, according to Abell, began on the other side of the trees. Abell confirmed that the approximate area of lot 6 was 5.1 acres and, according to Fireison, led him to believe that the June 1975, plat that he had

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showed him had already been recorded in the Montgomery County land records.

Pearson, the owner of the property, offered Fireison a five-year option to buy lot 6, and Fireison, an attorney, drafted on option contract that the parties signed in October of 1975. Paragraph 13 of the contract provided that "Vendor agrees to deliver the subject property in its recorded size consisting of approximately 5.1 acres." Other sections of the contract provided that copies of any surveys or plats of the property that might be ordered by the owner would be delivered to Fireison in advance of settlement (para. 5); and that an exact topographical survey would be made by the owner and a copy furnished Fireison (para. 7). The June 1975 plat that Fireison understood had been recorded was attached to the option contract. This plat had never been recorded.

Prior to exercising the option, Fireison visited the property on numerous occasions, and never observed any change in the stakes that marked out the boundaries of lot 6. In April of 1976, unbeknownst to Fireison, however, Abell changed the boundaries of lot 6. Lot 5 had remained unsold, so Abell sliced off the part of lot 6 that included the trees and appended it to lot 5 to make it more marketable. In addition, he cut off part of the back of lot 6 so that he would be able to create two lots behind lot 6 instead of an existing one. Lot 6 in its pared down form was 4.5964 acres. Abell must have had a survey prepared of the new boundaries of the lot,² for on November 6, 1978, he recorded a new plat in the Montgomery County land records, showing the area of lot 6 as 4.5964 acres. No copy of the plat or of the survey was furnished to Fireison, however, as the option contract required; indeed, no notice at all was given to Fireison that the June 1975 plat, which he thought was recorded, had been superseded, and that the acreage and boundaries of the property subject to the option had been changed significantly.

On December 15, 1978, five weeks after Abell had the new plat recorded, the parties proceeded to settlement on the property. At settlement, the owner gave Fireison no indication of the change in the acreage and boundary lines of his property; neither a new survey nor the new plat was provided him. The option contract, however, had provided that the property would "be conveyed as designated by Vendees and Vendees hereby authorize the examination of the title and preparation of all necessary conveyance papers." Fireison had assumed the burden of searching the title of the property, and he entrusted this duty to an attorney, who also prepared a deed. The deed affected the conveyance of: "the following described land and premises . . . namely: Lot numbered Six (6) in the Subdivision known as `MERRY—GO—ROUND FARM,' as per plat recorded in Plat Book 106 at Plat No. 12150 among the Land Records of Montgomery County, Maryland." The designated plat, recorded by Pearson on November 6, 1978, on its face clearly states the area of lot 6 as 4.5964 acres. According to Fireison, the lawyer searched the title only for outstanding liens, and found none. The deed included no physical description of the lot, but referred to the plat book and number.

After taking possession of the property, Fireison received a county property tax bill, in 1979, that he thought seemed too low. He contacted the tax assessor's office and was informed that the acreage of his lot was only 4.5964 acres. He called Abell, who related how he had reshaped the lot to make other lots attractive, as described above, and then told Fireison "just . . . to forget about it. He said I wasn't using the land anyway and it was nothing extra out of my pocket, just told me to forget about it." Since the trial judge dismissed the action at the close of plaintiffs' case, the

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defense never presented its evidence. This appeal followed.

II

The trial court issued findings of fact and conclusions of law following the close of plaintiff's case, dismissing the action under Super.Ct.Civ.R. 41(b). Under that rule, the court may dismiss an action if "upon the facts and the law the plaintiff has shown no right to relief." Carrigan v. Purkhiser, 466 A.2d 1243, 1245 (D.C. 1983). Judgment for a defendant under Rule 41(b) is justifiable if "there is insufficient credible evidence to sustain each element of plaintiff's claim, or if, despite such credible evidence, a valid defense is evident from plaintiff's own case." Marshall v. District of Columbia, 391 A.2d 1374, 1379 (D.C. 1978). In an appropriate case, dismissal under Rule 41(b) will serve to avoid the unnecessary presentation of a defense case where it is already apparent to the trial judge that the plaintiff cannot prevail.³ We have recognized, on the other hand, that a dismissal under Rule 41(b) is a "drastic remedy, to be sparingly exercised." Bay General Industries, Inc. v. Johnson, 418 A.2d 1050, 1054-55 (D.C. 1980). "[S]ound procedure in most cases requires withholding adjudication on the merits until both sides have presented their evidence." Warner Corp. v. Magazine Realty Co., 255 A.2d 479, 481 (D.C. 1969); Darden v. Capitol Cab Cooperative Association, 154 A.2d 352, 354 (D.C. 1959).

The trial court based its dismissal on two alternative grounds. It concluded, first, that the Fireisons had not set forth a prima facie case of fraud. The court found that "[w]hile the defendant should have pointed out that the defendant re-drew the lot lines for their own advantage, they engaged in no direct deceit." Memorandum Opinion and Order at 2. The court also found that even if plaintiffs had established all of the elements of fraud, their own case demonstrated that the defendant had a valid estoppel defense to the action. The court noted that since the new plat showing lot 6 to be 4.5964 acres had been recorded prior to settlement, the Fireisons's settlement attorney, who was responsible for a title search, was "charged with notice of all that appears in the properly recorded chain of title." This notice is imputable to the Fireisons. By accepting the burden of the title search, the court held, the Fireisons had also accepted the "risk of failing to do so," i.e., the risk of failing to uncover that the boundaries and size of the lot had been changed without notice to them.

The court also decided that since the option contract stated that the vendor agreed to provide the property in its "recorded size consisting of approximately 5.1 acres," that the Fireisons had "freely contracted" to accept the property in whatever size it had been recorded. The court also found that "the plaintiffs proceeded to settlement in spite of the defendant's nonperformance [of the agreement to send copies of any new surveys and plats], thus waiving the right to receive the survey from the defendant prior to settlement." The court impliedly found that since the Fireisons had undertaken the search of the title the plat book and number listed in the deed were sufficient notice to them that the boundaries and acreage of this property had been changed; that...