Abdelrhman v. Ackerman

McLEESE/Associate Judge,

concurring in part and dissenting in part:

I agree that the trial court correctly dismissed the claim of .breach of the implied covenant of good faith and the challenge to service of the notice to quit. Ante at 891-93. . I respectfully dissent, however, from this court’s decision to uphold the dismissal of the breach-of-contract claim. Ante at 887-91. I would hold that, when considered as a whole, the language of the lease at issue was ambiguous and that extrinsic evidence therefore should be considered in interpreting that language. I would therefore reverse and remand for further proceedings.

.It is common ground that extrinsic evidence may be considered in determining the meaning of an ambiguous contract. Ante at 887-88. In my view, the lease is ambiguous when the addendum and paragraph twenty-one of the lease are read together, as they must be. See generally, e.g., Waterside Towers Resident Ass’n Inc. v. Trilon Plaza Co., 2 A.3d 1084, 1089 n. 20 (D.C.2010) (‘We consider contracts in their entirety.”).

The addendum provides:

In the event of any sale of the Building, Building Area, or any part thereof, by virtue of judicial proceedings or otherwise, this Lease Agreement shall, at the option of the purchaser, continue in force and effect and tenant thereunder will, upon request, acknowledge the purchaser or purchasers as landlords hereunder.

*894The addendum thus explicitly addresses only the situation in which a new purchaser wants the lease to remain in effect, making clear that in such circumstances the lease does remain in effect and the tenant must acknowledge the new purchaser as landlord. I acknowledge that, when the addendum is considered in isolation, the word “option” implies that the new purchaser could also choose to terminate the lease. But the addendum does not explicitly state that a new purchaser can unilaterally terminate the lease; that is simply an implication of the addendum.

In contrast, paragraph twenty-one of the lease explicitly states that “This lease is binding upon and inures to the benefit of the heirs, assigns and successors in interest to the parties.”1 On the surface, there is a conflict between what the addendum seems to imply — that new purchasers may opt to terminate the lease — and what paragraph twenty-one explicitly states — that new purchasers, as successors in interest, are bound by the lease. It is well settled that such conflicts among different provisions in a contract can give rise to contractual ambiguity. See, e.g., Hayes v. Home Life Ins. Co., 83 U.S.App.D.C. 110, 111, 168 F.2d 152, 158 (1948) (“But since the clauses are conflicting, an ambiguity in the contract is created.”); see also E.A. Baker Co. v. Haft, 578 A.2d 706, 706-08 (D.C.1990) (per curiam) (finding contract ambiguous based on existence of apparent conflict between two provisions); Scowcroft Grp. v. Toreador Res. Co., 666 F.Supp.2d 39, 44 (D.D.C.2009) (denying motion to dismiss; “The Court finds that the Contract is ambiguously worded — the two sentences relevant to this claim appear to at least partially contradict one another.”).

I agree with the court that the addendum can be viewed as more specific than paragraph twenty-one. Ante at 891. I thus also accept the potential relevance of the principle of contractual interpretation giving greater weight to specific provisions than to general ones. Id. at 890-91. In my view, however, that principle is not dispositive in the circumstances of this case. Cf. generally Yerington v. La-Z-Boy, Inc., 124 S.W.3d 517, 521-23 (Mo.Ct.App.2004) (finding contract ambiguous where apparent conflict between general language and more specific language). In particular, I do not believe that this court should rely on the implication of a specific provision as unambiguously trumping the express statement of a more general provision. To the contrary, there is substantial support for the principle that express language is generally entitled to great weight, particularly as compared to the possible implications of language. See, e.g., United Int’l Investigative Servs., Inc. v. United States, 42 Fed.Cl. 73, 85 (1998) (“Express language trumps implications.”); A.J. Sweet of La Crosse, Inc. v. Industrial Comm’n, 16 Wis.2d 98, 114 N.W.2d 141, 147 (1962) (“[I]f it is necessary, in interpreting a written contract, to resort to implication in order to find a particular unstated promise, the written agreement is ambiguous in this respect.”); Weathers v. Patterson, 30 Ala. 404, 407 (1857) (“To so hold[ ] would be to give greater weight to an implication than to the express language of the testator. We think, no such construction can be indulged.”); cf. Restatement (Second) of Contracts § 203(b) (1981) (“express terms are given greater weight”).

The court also states that there is no necessary conflict between the addendum and paragraph twenty-one. Ante at 891. As the court explains, paragraph twenty-*895one requires that binding effect be given to the lease in its entirety, including the addendum. Id. Thus, the court in effect concludes, paragraph twenty-one means that, although new purchasers are bound by the lease, the lease also provides that they can opt out and therefore are not ultimately bound by the lease unless they wish to be. The court’s proposed reading is a possible, though rather convoluted, way of trying to reconcile the two provisions. It is not, however, the only possible reading that would give reasonable effect to both provisions. For example, the addendum could be understood as simply clarifying that any new purchaser will have the duties and rights of a landlord and that the tenant upon request must so acknowledge. See generally Restatement (Second) of Contracts § 203 cmt. b (“The preference for an interpretation which gives meaning to every part of an agreement does not mean that every part is assumed to have legal consequences.... [I]t is enough that each provision has a meaning to [the parties] as a guide to performance.”); cf. Public Citizen, Inc. v. Rubber Mfrs. Ass’n, 382 U.S.App.D.C. 338, 346, 533 F.3d 810, 818 (2008) (“As the Supreme Court has recognized, a provision that may at first glance appear to be textual surplusage[ ] may in fact ‘perform ... a significant function simply by clarifying.’”) (quoting United States v. Atlantic Research Carp., 551 U.S. 128, 137, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007)).

In sum, I would conclude that the lease, considered as a whole, is sufficiently ambiguous that extrinsic evidence should be considered. I therefore would remand so that the lease can be interpreted not solely based on its seemingly conflicting terms, but also based on consideration of other evidence that is potentially quite relevant to the interpretation of the lease as a whole. Such evidence would include (a) evidence that Mr. Abdelrhman refused to sign the lease when it contained a provision explicitly providing that a new purchaser could unilaterally terminate the lease and (b) evidence that Mr. Abdel-rhman stated that he would not sign any lease that permitted such unilateral termination. Ante at 885-86. Because the court instead upholds the dismissal of the breach-of-contract claim as a matter of law, I respectfully dissent.

. As the court notes, ante at 890-91, appellee Bladensburg concededly is a successor in interest.