In re Estate of McKenney, No. 05-PR-1271.

• Decision Date: 24 July 2008
• Docket Number: No. 05-PR-1271.
• Citation: 953 A.2d 336
• Parties: In re ESTATE OF Geraldine B. McKENNEY; Khalid M. Eltayeb, Appellant.
• Court: D.C. Court of Appeals

953 A.2d 336

In re ESTATE OF Geraldine B. McKENNEY; Khalid M. Eltayeb, Appellant.

No. 05-PR-1271.

District of Columbia Court of Appeals.

Argued February 6, 2008.

Decided July 24, 2008.

Frederick A. Douglas with whom Robert Dillard was on the brief, for appellant Khalid M. Eltayeb.

Gary M. Sidell for appellant Joseph W. McKenney, Jr.

C. Hope Brown for appellee Estate of Geraldine B. McKenney.

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

STEADMAN, Senior Judge:

In the fall of 2004, Joseph McKenney, Jr., sold his property rights in his deceased mother's estate to Khalid B.M. Eltayeb for $1,200. The principal asset was the mother's home, on which this appeal focuses. Subsequently, after a hearing, the probate court voided the sale and removed Eltayeb as the personal representative of the mother's estate. On appeal with new counsel, Eltayeb challenges these actions by the trial court. We affirm.

I. Background

Geraldine B. McKenney died intestate on November 14, 1990, leaving as her only significant asset her home at 1525 E Street, S.E. Her son, Joseph W. McKenney, Jr., was her sole heir. No probate proceedings were instituted at that time.¹ For more than a decade, the property taxes on the home went unpaid and the amount of unpaid taxes accrued to over $100,000.

In November 2004, Eltayeb approached McKenney at his place of employment. McKenney was a banquet steward who had no experience at all in real estate matters and who lived in a shelter on the grounds of St. Elizabeths Hospital. Eltayeb asked McKenney if he was aware of the $100,000 in outstanding taxes owed and asked whether McKenney "was in any position to do anything with the property." McKenney understood Eltayeb's implication to be that McKenney would need to pay that amount himself and "to pay it at one time." Eltayeb offered to purchase McKenney's interest in the property. McKenney said that he did not know the exact amount of unpaid taxes, but that he thought that he had already lost the home for failing to pay the property taxes. Eltayeb offered McKenney $1,200 for his interest in the property, but he did not disclose the property's value or that there was a right of redemption. He pressed McKenney to make a decision "right away," asserting that the house was facing imminent demolition. Eltayeb introduced McKenney to a man accompanying Eltayeb as a nephew of a prominent local political figure. Eltayeb said that the nephew had the contract for the demolition of the property.

The next day, Eltayeb again met with McKenney at work. Pressed for a decision, McKenney accepted the offer and was paid the first installment of $300. He testified that he felt "pressured into making a quick decision" because Eltayeb claimed that he needed an answer to his offer immediately in order to stop the pending demolition of the property. Over the next three weeks, McKenney received the three remaining $300 installment payments. On at least one occasion, he was again accompanied by the man who supposedly had the contract to demolish the property.

At one point during that period, Eltayeb picked up McKenney at work and they went to meet with Eltayeb's then attorney for "some paperwork." McKenney was presented with an "Irrevocable Assignment of Right" assigning his property interest to Eltayeb. He signed the document although no dollar value was listed in the agreement. Eltayeb's attorney then presented McKenney with pages one, two, and four of a Petition for Probate of his mother's estate. Omitted was page three of the petition as actually filed, which listed the home's value at $150,000 and erroneously stated that McKenney had paid nearly $4,000 in funeral expenses when he had in fact paid none. Moreover, McKenney overheard Eltayeb telling his attorney that the purchase price of property was $1,200. Without being shown the third page, McKenney signed the Petition, which was filed several days later, seeking appointment of Eltayeb as the personal representative.

On December 15, 2004, the trial court held a hearing on the Petition for Probate so that it could "further probe into the circumstance of the transaction." Prior to the hearing, Eltayeb told McKenney not to volunteer too much information and only to answer the questions asked. McKenney testified, but the purchase price of the assignment was never disclosed to the court and the trial judge never inquired, perhaps because the nature of the concerns prompting the hearing was focused elsewhere.² At the hearing, Eltayeb's attorney informed the court that he represented the estate — not Eltayeb — and that they were there to "save the house" from a pending tax sale, although he was retained by Eltayeb and served as his personal attorney. The trial judge accepted the Petition for Probate. Eltayeb was appointed the estate's personal representative and conveyed the property to himself by quitclaim deed the next month, which was recorded on January 15, 2005.

In March 2005, McKenney was approached by a third party, who informed him of the property's real value and offered to purchase the property. McKenney filed a petition to remove Eltayeb as personal representative and to rescind the assignment. He then executed an agreement to sell the property for $205,000 minus the outstanding tax debt.

The trial court conducted several days of evidentiary hearings. McKenney testified to the facts of the transaction and the petition for probate as set forth above. To the contrary, Eltayeb testified that he paid McKenney $48,375 in currency in a similar manner to what McKenney testified, but that he had no receipts, withdrawal records, bank statements, or any other documents confirming the transaction or the source of the funds. Instead, he produced a torn scrap of paper that he purported to contain his notes regarding the payments. When Eltayeb added the amounts of the five alleged installment payments before the court, the sum was $46,400, which was less than the total amount he claimed that he paid McKenney. Eltayeb denied telling McKenney that the man accompanying him had a contract to demolish the home.

Another issue at the hearing was the location of Eltayeb's residence. The address he listed in the Petition for Probate was that of his attorney. Before the trial court, Eltayeb testified that he was a resident of the District of Columbia, even though his vehicle had Virginia "drive-away" license plates, which he claimed were issued for his car detailing business that was located at a friend's home in Alexandria, Virginia, and his cellular telephone number's area code was 703, which is designated for Northern Virginia. He claimed that his residence was 333 I Street, Southwest; however, the electric utility bill for this home, which is air-conditioned, showed zero kilowatt hours billed from December 2003 until October 2004. Furthermore, Eltayeb was unable to produce his driver's license and stated that he is not a registered voter. At the conclusion of the hearings, the trial court found by clear and convincing evidence that Eltayeb made "substantial fraudulent untrue misrepresentations or representations to Mr. McKenney for the purpose of inducing him to execute the irrevocable assignment of his rights in this case, and Mr. McKenney relied upon these misrepresentations. ..." The court completely discredited Eltayeb's testimony:

Now for somebody to come into this court and represent that they paid out $48,375 based on this scrap piece of paper is almost an insult to the intelligence of the Court and constitutes a blatant lie. A blatant. Not only a lie but a blatant lie.

The court explained that Eltayeb's lack of any documentation to substantiate the payment "strains reason to the breaking point — beyond the breaking point" and was a "complete fabrication." The trial court concluded that Eltayeb's misrepresentations were deliberate and that he and his attorney intentionally tried to make the Petition for Probate look as "benign" as possible so that it would be quickly approved without question. The court then removed Eltayeb as personal representative, and voided both the assignment and quitclaim deed.

II. Jurisdiction of the Trial Court

On appeal, Eltayeb first alleges that the trial court lacked jurisdiction to consider McKenney's Petition to Vacate, which was filed five months after the Petition for Probate was signed. He claims that McKenney's motion was untimely because Super. Ct. Prob. R. 130 requires that all motions for reconsideration be filed within thirty days of the ruling contested. However, Eltayeb's characterization of the Petition to Vacate as a motion for reconsideration is incorrect because the trial court never ruled on the validity of the assignment during the initial hearing. The focus of the hearing was McKenney's age and competency. See note 2, supra. The fact that the trial court never inquired into the most important part of the assignment — the price paid — is evidence that the assignment's validity was never considered at the hearing. Because no judgment on the assignment was issued, there was no order that could be reconsidered and "[a]n interested person ... may, at any time, petition the Court for an order ... to resolve a question or controversy arising in the course of a supervised or unsupervised administration of a decedent's estate." D.C.Code § 20-107(a) (2001) (emphasis added); see also Rearden v. Riggs Nat'l Bank, 677 A.2d 1032, 1037 (D.C. 1996). Furthermore, the D.C.Code permits the trial court to consider allegations of fraud connected to a probate proceeding within two years of its discovery, D.C.Code § 20-108.01(a) (2001), and to consider an action to rescind a contract within three years, id. at § 12-301 (2007 Supp.); cf. In re Johnson, 820 A.2d 535, 539 (D.C.2003) (explaining that the "rescission of a will is akin to the rescission of a contract"). Thus, the trial court had jurisdiction to consider the petition.

III. Misrepresentation

Eltayeb...