Dixon v. Midland Mortgage Co. ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
RON DIXON, As Conservator for )
Beatrice Jiggetts, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1789 (RWR)
)
MIDLAND MORTGAGE CO., )
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Beatrice Jiggetts brings this action against the
defendant, Midland Mortgage Company (“Midland”), alleging claims
of trespass, conversion, and breach of contract arising out of
Midland changing the locks and foreclosing on her home. Midland
moves to dismiss under Federal Rule of Civil Procedure 12(b)(6),
arguing that its home entry was authorized because Jiggetts
defaulted on her mortgage and abandoned her home, that the law of
conversion applies to personal property and not real property,
and that the complaint fails to allege the elements of a
contract. Because conversion applies only to chattel, Midland’s
motion to dismiss Jiggetts’s conversion claim will be granted.
However, because the complaint amply states a cause of action for
both trespass and breach of contract and Midland does not show it
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was authorized to enter Jiggetts’s home, Midland’s motion to
dismiss Jiggetts’s trespass and breach of contract claims will be
denied.
BACKGROUND
Jiggetts co-owned with Charles L. Chesley a single-family
home located in Washington, D.C. (Compl. ¶ 4.) For the past
several years, however, Jiggetts has lived in a nursing home
because she suffers from dementia. While Jiggetts was in the
nursing home, Chesley was to make the monthly mortgage payments
on the property, but failed to do so. (Id. ¶ 5.) Thus, Midland
chose to foreclose. (Id. ¶ 6.)
Jiggetts alleges that, on approximately July 16, 2009, her
conservator, Ron Dixon, came to an agreement with Midland to
postpone the foreclosure sale until August 19, 2009 in order to
give Dixon an opportunity to secure a buyer for the house and
avoid foreclosure. (Id. ¶ 10.) Midland then scheduled a
foreclosure sale for August 19, 2009. (Id. ¶ 7.) During the
last week of July, Dixon found a potential buyer and asked
Chesley to prepare the property for the potential buyer’s visit.
(Id. ¶ 11.) When Chesley arrived, he discovered that the locks
on the property had been changed. (Id.) Chesley and Dixon
contacted Midland, and Midland’s attorney told them that the deed
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of trust authorized Midland’s entry into the property. (Id.)
Midland ultimately gave Dixon the combination to unlock the
house. (Id. ¶ 12.)
Jiggetts brought suit in the Superior Court of the District
of Columbia alleging that Midland’s entry into the property and
alteration of the locks constituted trespass and conversion (id.
¶¶ 14-19) and a breach of contract. (Id. ¶¶ 21-24.) Midland
removed this action to federal court on the basis of diversity
jurisdiction and now moves to dismiss, arguing that it cannot be
held liable for trespass because it had a superior possessory
interest in the property, that the law of conversion applies to
personal property only, and that Jiggetts has failed to state a
claim for breach of contract.1
DISCUSSION
“‘To survive a motion to dismiss under Rule 12(b)(6), a
complaint must contain sufficient factual matter, acceptable as
true, to “state a claim to relief that is plausible on its
face.”’” Anderson v. Holder, 691 F. Supp. 2d 57, 61 (D.D.C.
2010) (brackets omitted) (quoting Ashcroft v. Iqbal, 129 S. Ct.
1Midland also argues that its motion should be granted
because Jiggetts’s opposition brief was not timely filed. (Def.
Midland Mortgage Co.’s Reply to Opp’n to Mot. to Dismiss at 1.)
Although Jiggetts’s opposition was filed beyond the time
prescribed by the local civil rules, the circumstances here
support abiding by the general judicial preference for resolving
disputes on their merits rather than dismissing them based on
technicalities. See, e.g., Niedermeier v. Office of Baucus, 153
F. Supp. 2d 23, 27 (D.D.C. 2001).
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1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007))). A court considering a 12(b)(6) motion takes
all factual assertions within the complaint as true and gives a
plaintiff “‘the benefit of all inferences that can be derived
from the facts alleged.’” Id. (quoting Holy Land Found. for
Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003)).
Those inferences, however, must be supported by the facts
alleged, and merely asserting legal conclusions as facts will not
suffice. Id. “[A] court ‘may consider only the facts alleged in
the complaint, any documents either attached to or incorporated
in the complaint and matters of which [a court] must take
judicial notice.’” U.S. ex rel. Westrick v. Second Chance Body
Armor, Inc., 685 F. Supp. 2d 129, 133 (D.D.C. 2010) (alteration
in original) (quoting Trudeau v. FTC, 456 F.3d 178, 183 (D.C.
Cir. 2006)). A document outside the complaint may be considered
on a motion to dismiss under Rule 12(b)(6) if it is “referred to
in the complaint and [is] integral to” the plaintiff’s claim.
Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004).
I. TRESPASS CLAIM
Under District of Columbia law, “‘[a] trespass is an
unauthorized entry onto property that results in interference
with the property owner’s possessory interest therein.’” Sarete,
Inc. v. 1344 U St. Ltd. P’ship, 871 A.2d 480, 490 (D.C. 2005)
(quoting Richard R. Powell, Powell on Real Property § 64A.02[1]
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at 64A-16 (Michael A. Wolf ed., 2000)). Jiggetts contends that
Midland trespassed on her property when it entered her property
and changed the locks. Midland does not dispute that it entered
the property and changed the locks. Its sole argument against
Jiggetts’s trespass claim is that its entry was lawful because
Jiggetts abandoned the property. (Def.’s Mem. at 3-4.)
Midland’s argument is misguided, however. In the District
of Columbia, abandonment is defined as an anticipatory breach
wherein a tenant “‘leaves the premises vacant with the avowed
intention not to be bound by [the] lease.’” Jones v. Cain, 804
A.2d 322, 331 (D.C. 2001) (quoting Simpson v. Lee, 499 A.2d 889,
894 (D.C. 1985)). The complaint does not allege or concede facts
reflecting that Jiggetts intended to abandon her property.
Instead, the complaint reflects that Jiggetts had every intention
of maintaining the monthly mortgage payments. (See, e.g., Compl.
¶ 5 (“While [Jiggetts was] in the nursing home, Chesley was
supposed to be making the monthly mortgage payments on the
subject property.”).) Moreover, while Midland claimed that the
deed of trust authorized Midland to enter the property upon
default (see id. ¶ 11), Midland has not presented any copy of the
deed of trust mentioned in the complaint or any other agreement
granting it the right to enter the property upon Jiggetts’s
failure to make the mortgage payments. Because Jiggetts has pled
that Midland entered her property without consent and changed the
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locks, preventing entry by the owners, and Midland has failed to
show it was otherwise authorized to take that action, Midland’s
motion to dismiss Jiggetts’s trespass claim will be denied.
II. CONVERSION CLAIM
Under District of Columbia law, conversion is defined as the
“‘intentional exercise of dominion or control over a chattel
which so seriously interferes with the right of another to
control it that the actor may justly be required to pay the other
the full value of the chattel.’” Edmonds v. United States, 563
F. Supp. 2d 196, 202 (D.D.C. 2008) (quoting Fed. Fire Protection
Corp. v. J.A. Jones/Tompkins Builders, Inc., 267 F. Supp. 2d 87,
92 n.3 (D.D.C. 2003)). A chattel is defined as “‘[m]ovable or
transferable property; personal property; . . . [or] a physical
object . . . not the subject matter of real property.’” Doe ex
rel. Doe v. Fed. Express Corp., 571 F. Supp. 2d 330, 333
(D. Conn. 2008) (quoting Black’s Law Dictionary (8th ed. 2004))
(first alteration in original). Jiggetts argues that the
defendant “converted [her] leasehold interest, in the subject
property, to [its] own interest” by entering the property and
changing the locks. (Pl.’s Opp’n at 3.) However, the leasehold
interest in her home is the subject matter of real property and
is not chattel, see District Of Columbia v. Place, 892 A.2d 1108,
1112 (D.C. 2006), and the law of conversion does not apply to
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real property. Midland’s motion to dismiss Jiggetts’s conversion
claim will be granted.
III. BREACH OF CONTRACT CLAIM
A contract is formed when there is an offer, an acceptance,
and valuable consideration, see Paul v. Howard Univ., 754 A.2d
297, 311 (D.C. 2000), and a contract can be made orally or in
writing. See Ames v. HSBC Bank USA, N.A., Civil Action No. 06-
2039 (RMC), 2007 WL 1404443, at *2 (D.D.C. May 11, 2007). The
complaint alleges that Midland “agreed to postpone the
foreclosure until August 19, 2009, in order to allow [Dixon] to
attempt to sell the property to avoid the foreclosure” and that
the defendant breached an agreement when it entered the property
and changed the locks. (Compl. ¶¶ 10, 22.) Midland contends
that the breach of contract claim must be dismissed because
“plaintiff attaches no proof of such an agreement to the
Complaint.” (Def.’s Mem. at 6.)
On a motion to dismiss, a plaintiff is not required to prove
each element of her claim. Instead, she is merely required to
plead facts that, if proven, would establish the elements of her
claim. Moreover, while Jiggetts fails to plead facts reflecting
that Midland breached an agreement to postpone the foreclosure
sale because she does not allege that a foreclosure sale took
place before August 19, 2009, Jiggetts’s complaint can be read to
state a claim that Midland breached the parties’ mortgage
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agreement. The complaint refers generally to a contract and
states that Midland breached an agreement by breaking into and
changing the locks on the doors. (Compl. ¶ 22.) Further,
Jiggetts’s opposition states that “[w]hen the Defendant changed
the locks . . . without an order of the court to do so, it was a
breach of their mortgage contract[.]” (Pl.’s Opp’n at 4.)
Because a court is to grant the plaintiff the benefit of all
inferences derived from the facts alleged, and the complaint --
read in the light most favorable to Jiggetts –- contains
sufficient factual matter to state a claim for breach of the
parties’ mortgage agreement, Midland’s motion to dismiss
Jiggetts’s breach of contract claim will be denied.2
2
Plaintiff seeks punitive damages on each of her claims
(Compl. ¶¶ 16, 19, 24), which the defendant opposes. In the
District of Columbia, “punitive damages are not available [w]here
the basis of a complaint is . . . breach of contract[,]” Caston
v. Butler, Civil Action No. 08-1656 (JDB), 2010 WL 2505591, at *1
(D.D.C. June 22, 2010) (first alteration in original) (internal
quotation marks omitted), unless the plaintiff alleges that the
breach of contract “‘merges with, and assumes the character of a
willful tort[.]’” Cambridge Holdings Group, Inc. v. Fed. Ins.
Co., 357 F. Supp. 2d 89, 97 (D.D.C. 2004) (quoting Brown v.
Coates, 253 F.2d 36, 39 (D.C. Cir. 1958)). Further, in order to
recover punitive damages, “[plaintiff] must ‘prove, by a
preponderance of the evidence, that the [defendant] committed a
tortious act, and by clear and convincing evidence that the act
was accompanied by conduct and a state of mind evincing malice or
its equivalent.’” Butera v. District of Columbia, 235 F.3d 637,
657 (D.C. Cir. 2001) (quoting Jonathan Woodner Co. v. Breeden,
665 A.2d 929, 938 (D.C. 1995)). The tortious act must be
accompanied by “fraud, ill will, recklessness, wantonness,
oppressiveness, wilful disregard of the plaintiff’s right, or
other circumstances tending to aggravate the injury.” Id.(internal quotation marks omitted). Jiggetts alleges that the
defendant’s trespass was “willful, wanton, intentional, [and]
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CONCLUSION AND ORDER
Because conversion applies only to chattel, Midland’s motion
to dismiss Jiggetts’s conversion claim will be granted. However,
the complaint alleges a trespass and, read in the light most
favorable to Jiggetts, a breach of contract claim. Thus,
Midland’s motion to dismiss Jiggetts’s trespass and breach of
contract claims will be denied. Accordingly, it is hereby
ORDERED that Midland’s motion [5] to dismiss be, and hereby
is, GRANTED in part and DENIED in part. Jiggetts’s conversion
claim is dismissed, but Midland’s motion is denied in all other
respects.
SIGNED this 29th day of June, 2010.
/s/
RICHARD W. ROBERTS
United States District Judge
malicious” (Compl. ¶ 15), and that her breach of contract claim
“merges with and assumes the character of a willful tort.” (Id.
¶ 24.) Such allegations, if proven, could entitle her to
punitive damages. Thus, defendant’s motion to dismiss Jiggetts’s
punitive damages claim will be denied.