Tippett v. Daly

• Decision Date: 05 February 2009
• Docket Number: No. 06-CV-1327.,06-CV-1327.
• Citation: 964 A.2d 606
• Parties: James TIPPETT, Trustee for the Revocable Trust of James Tippett, Appellant, v. Gregory DALY, Appellee.
• Court: D.C. Court of Appeals

964 A.2d 606

James TIPPETT, Trustee for the Revocable Trust of James Tippett, Appellant, v. Gregory DALY, Appellee.

No. 06-CV-1327.

District of Columbia Court of Appeals.

Argued May 1, 2008.

Decided February 5, 2009.

Appeal from the Superior Court of the District of Columbia, (LTB37786-01) (Hon. Mary A. Gooden Terrell, Trial Judge).

Morris R. Battino, Washington, for appellant.

Carol S. Blumenthal, for appellee.

Before WASHINGTON, Chief Judge, and RUIZ and FISHER, Associate Judges.

FISHER, Associate Judge:

James Tippett appeals from judgments entered following a consolidated trial of his suit for possession of a dwelling and his tenant's suit for breach of contract.¹ The trial court held 1) that the tenant had timely invoked his rights under the Tenant Opportunity to Purchase Act ("TOPA"), D.C.Code §§ 42-3404.02 to 42-3404.13 (2001), by providing a written statement of interest within thirty days of receiving the owner's offer of sale, see D.C.Code § 42.3404.09(1) (2001); and 2) that the owner had waived a ninety-day notice to vacate for personal use and occupancy by accepting rent for a new term that began after the notice expired. We reverse the first judgment and affirm the second.

I. The Factual and Procedural Background

The revocable trust of James Tippett owns a single-family dwelling which Gregory Daly ("the tenant") has rented for approximately thirty years. On April 28, 2001, pursuant to TOPA, see D.C.Code § 42-3404.03 (2001), the owner mailed an offer of sale which the tenant received on April 30.² The tenant testified that he mailed a statement of interest to the owner on May 18 and filed a copy with the Department of Consumer and Regulatory Affairs ("DCRA") the same day. The owner testified, however, that he did not receive the statement of interest until June 2.³ On July 27, 2001, the tenant and his partner placed $20,000 in escrow as a "purchase contract deposit" and on July 30, the tenant hand-delivered a purchase contract to the owner. The owner did not sign the contract and the deposit remained in escrow at the time of trial.

Meanwhile, on May 17, 2001, the owner served the tenant with a ninety-day notice to vacate the premises by September 1, 2001. In the attached affidavit, the owner stated that he intended to occupy and use the premises as his own dwelling. The owner later testified that he intended to move into the house while he renovated it and his home in Bethesda, Maryland, but he did not explain whether he had changed his mind about selling the property.

The tenant continued to occupy the house after the notice to vacate expired on September 1, 2001. The owner acknowledged that he received rent for at least one month after the notice expired and did not indicate at the time that he still wanted the tenant to vacate. On September 11, 2001, the owner filed a suit for possession based on the expiration of the notice to vacate. On April 29, 2002, the tenant filed a complaint seeking damages, specific performance of the alleged contract for sale of the property, and an injunction ordering the owner to comply with TOPA.

Following a consolidated bench trial, the trial court directed the owner to "negotiate with [the tenant] in good faith for the sale of" the property. The court first found that the tenant had timely provided his statement of interest by mailing it on May 18. The court calculated the thirty-day period for response from the date the owner mailed the offer of sale, April 28, added three days for mailing and an additional day because April 29 was a Sunday, see Super. Ct. Civ. R. 6 (2001), and determined that the statement had to be provided by June 3, 2001. Moreover, the court held that the tenant's "acceptance of the offer of sale was complete upon mailing the statement of interest on May 18, 2001[,]" and that the statement of interest was therefore timely regardless of when the owner actually received it. (Bench Order and Op. at 4 (citing RESTATEMENT (SECOND) OF CONTRACTS § 63(a) (1981).) The court dismissed the complaint for possession, finding that the owner had waived the notice to vacate by accepting rent after the notice expired.

II. The Statement of Interest

Under TOPA, an owner of a rental housing accommodation who wishes to sell the property must first "give the tenant an opportunity to purchase the accommodation at a price and terms which represent a bona fide offer of sale." D.C.Code § 42-3404.02(a) (2001). To fulfill this requirement, the owner must "provide each tenant and the Mayor a written copy of the offer of sale. . . ." D.C.Code § 42-3404.03 (2001). The time allowed for the tenant(s) to respond depends upon the number of units in the housing accommodation. For a single-family dwelling, "[u]pon receipt of a written offer of sale from the owner . . ., the tenant shall have 30 days to provide the owner and the Mayor with a written statement of interest." D.C.Code § 42-3404.09(1) (2001). If the tenant "has provided a written statement of interest in accordance with paragraph (1) of [§ 42-3404.09]," the owner must allow additional time for negotiation of a contract of sale, and, if a contract is agreed to, for settlement. D.C.Code § 42-3404.09(2), (3) (2001).

The owner argues that the trial court erred both in calculating the time within which the tenant was required to provide his statement of interest and in holding that the tenant had "provided" that statement when he mailed it on May 18. The tenant wisely concedes error on the first point. The statute states that, "[u]pon receipt" of the written offer of sale, the tenant shall have thirty days to provide a written statement of interest. D.C.Code § 42-3404.09(1) (2001). The tenant testified, and it was undisputed at trial, that he received the offer on April 30. Thus, the tenant had thirty days from April 30 (until May 30) to provide a statement of interest. TOPA has its own provision for calculating time periods, see D.C.Code § 42-3405.02 (2001),⁴ and the trial court erred in relying on a rule of civil procedure to extend the time prescribed by statute. See D.C.Code § 42-3405.11 (2001) ("If this chapter conflicts with another provision of law of general applicability, the provisions of this chapter control."); Super. Ct. Civ. R. 1 (2001) (the rules of civil procedure "govern the procedure in all suits of a civil nature . . . .") (emphasis added).

The remaining question is whether the tenant "provide[d] the owner . . . with" the statement of interest when he placed it in the mail on May 18 or whether, as the owner contends, the tenant did not "provide [him] with" the statement until he received it on June 2. The meaning of "provide . . . with" is a question of statutory interpretation, and we review the trial court's decision de novo. 1618 Twenty-First Street Tenants' Ass'n, Inc. v. Phillips Collection, 829 A.2d 201, 203 (D.C. 2003). "When the plain meaning of the statutory language is unambiguous, the intent of the legislature is clear, and judicial inquiry need go no further." Id. (quoting District of Columbia v. Gallagher, 734 A.2d 1087, 1091 (D.C.1999)). In determining the plain meaning, "`the words of [the] statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.'" Id. (quoting E.R.B. v. J.H.F., 496 A.2d 607, 609 (D.C.1985) (additional citation omitted)).

Neither TOPA nor the related regulations define the term "provide . . . with." See D.C.Code § 42-3401.03 (2001) (definitions section); 14 DCMR § 4799.1 (1991) (same). Thus, it is appropriate for us to look to dictionary definitions to determine the ordinary meaning of these words. 1618 Twenty-First Street Tenants' Ass'n, Inc., 829 A.2d at 203. "Provide" means "to supply for use" and is synonymous with "furnish." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1827 (2002); see also THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1458 (3d ed.1992) ("[t]o furnish," "supply," or "make available"). In order to "use" the statement — to be able to read it and act upon it — the owner must have access to it. Therefore, "to supply [the statement of interest] for use" or to "make [it] available," the tenant must place it in the owner's possession. Depositing the statement in the mail may give rise to an inference that the owner will at some point receive it, see, e.g., Kidd Int'l Home Care, Inc. v. Prince, 917 A.2d 1083, 1087 (D.C.2007) (There is "a rebuttable presumption that a letter properly addressed, stamped, and mailed, and not returned to the sender, has been delivered to the addressee."), but the owner does not have possession of, or access to, the statement while it is in the mail stream. Thus, the plain meaning of the term "provide . . . with" indicates that the tenant must ensure that the statement reaches the landlord within thirty days.⁵

Practical considerations confirm our reading of the statute. Permitting the tenant to invoke his right to purchase by placing a statement of interest in the mail on the thirtieth day would create uncertainty and impose a significant additional burden on the owner, who would have to decide, without guidance from the statute, how long to wait before concluding that the tenant had not responded. In this case, for example, it apparently took two full weeks for the mail to arrive. Requiring the owner to choose between further, potentially costly, delay in the sale or redevelopment of his property and possibly violating TOPA would serve none of the Act's salutary purposes, see D.C.Code § 42-3401.02 (2001 & 2008 Supp.) (stating purposes of the legislation), and we have seen no evidence that the legislature intended this result.⁶ Thus, we adhere to the plain meaning of the statute and hold that the tenant must "provide the [owner] . . . with" a statement of interest by ensuring that it reaches him within thirty days.⁷

The tenant's arguments to the contrary are unpersuasive. He urges us to interpose the "mailbox rule" that acceptance of an...