Fireison v. Pearson

• Decision Date: 29 January 1986
• Docket Number: No. 84-157.,84-157.
• Citation: 503 A.2d 1271
• Parties: Louis FIREISON and Bernadine Fireison, Appellants, v. Luvie M. PEARSON, Appellee.
• Court: D.C. Court of Appeals

503 A.2d 1271

Louis FIREISON and Bernadine Fireison, Appellants, v. Luvie M. PEARSON, Appellee.

No. 84-157.

District of Columbia Court of Appeals.

Argued July 10, 1985.

Decided January 29, 1986.

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

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

Before MACK, BELSON and ROGERS, Associate Judges.

MACK, Associate Judge:

In this action by appellants Louis and Bernadine Fireison 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' evidence. We reverse.

I.

In March of 1975, Louis Fireison became aware 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 trees added value to the lot and in addition provided privacy and a natural barrier between lots 6 and 5. The boundary line of lot 5, 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 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 an 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 in fact 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,¹ 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. 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. According to Fireison, the lawyer searched the title only for outstanding liens, and found none. There is no record evidence that she saw the new plat that Abell had recorded, although she did reference a plat book and number in the deed of sale. The deed included no physical description of the lot.

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." This action 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 not dismiss an action unless "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."

Page 12744

Marshall v. District of Columbia, 391 A.2d 1374, 1379 (D.C. 1978). Nevertheless, 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). This is so because a "judgment rendered on all the evidence is likely to be more sound than one rendered on less than all." National Tire Dealers & Retreaders Association v. G.D.C. Corp., 147 A.2d 869, 871 (D.C. 1959).

The trial court based its dismissal on two alternative grounds. It concluded, first, that Fireison 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, Fireison'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 Fireison. By accepting the burden of the title search, the court held, Fireison had also accepted the "risk of failing to do so," i.e., the risk of failing to uncover that he had been defrauded by the owner.

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 Fireison had "freely contracted" to accept the property in whatever size it had been recorded. The court did not accord any significance either to the fact that Fireison understood from Abell that the property had been recorded in 1975 at approximately 5.1 acres, with the boundaries fixed as Abell had represented to him at the time the option contract was executed; or to the owner's failure to notify Fireison of the change in the acreage and boundary lines by sending him, as the option contract had required, copies of any new surveys and plats. The court found instead that "the plaintiffs proceeded to settlement in spite of the defendant's nonperformance, thus waiving the right to receive the survey from the defendant prior to settlement." The trial court did not specifically address the arguments that (1) Fireison could not have been expected to insist upon his contractual right, under paragraph 5 of the option agreement, to receive copies of the new survey and plat, because he had no notice of the existence of these documents; or that (2) the failure to provide the plat and survey as contractually required is some evidence of fraud. The court impliedly found that the plat book and number listed in the deed were sufficient notice to Fireison that the boundaries and acreage of this property had been changed; that his proceeding to settlement on this deed worked an implied acceptance of the new, restricted, boundaries of the property; and that his prior dealings with Abell merged into the deed, preventing him from now raising any challenges to the sale.

III.

It is a "familiar rule of construction" that where a plat is referred to in a deed, "the effect is the same as if it were copied into the deed." Noonan v. Lee, 2 Black 499, 504, 67 U.S. 499, 504, 17 L.Ed. 278 (1863). In other words, where the deed references a plat, the "particulars appearing upon the plat are to be as much regarded, in ascertaining the true description of the land and the intent of the parties, as if they had been expressly enumerated in the deed." Jefferis v. East Omaha Land Co., 134 U.S. 178, 195, 10 S.Ct. 518, 522, 33 L.Ed. 872 (1890); see Whittington v. Mann, 211 Md. 199, 203, 126 A.2d 617, 619 (1956) (same). Nevertheless, where there is fraud or mistake in the plat reference "by way of description of the premises...