Nayereh Sahrapour v. LesRon, LLC and Shaw Centre, LLC

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 13-CV-724 and 13-CV-725

NAYEREH SAHRAPOUR, ET AL., APPELLANTS,
V.

LESRON, LLC
and
SHAW CENTRE, LLC
APPELLEES.

Appeals from the Superior Court
of the District of Columbia
(CAR-3370-08)

(Hon. Natalia Combs-Greene, Trial Judge)

(Argued September 30, 2014 Decided July 9, 2015)

Seann P. Malloy for appellants Nayereh Sahrapour and George Beheshtian.

Mikhael D. Charnoff, with whom Douglas P. Rucker, Jr. was on the brief,
for appellants Robert W. Haas, Haas & Associates, P.C., and Sovereign Title
Company.
 2

David H. Cox, with whom Christopher A. Glaser was on the brief, for
appellee LesRon, LLC.

Benjamin A. Klopman, with whom Laurance J. Ochs was on the brief, for
appellee Shaw Centre, LLC.

Before BECKWITH and MCLEESE, Associate Judges, and NEWMAN, Senior
Judge.

Opinion for the court by Associate Judge MCLEESE.

Dissenting opinion by Senior Judge NEWMAN at page 27.

MCLEESE, Associate Judge: Appellants Nayereh Sahrapour, George

Beheshtian, Robert Haas, Haas & Associates, P.C., and Sovereign Title Company

appeal from orders granting summary judgment to appellees Shaw Centre, LLC

and LesRon, LLC and vesting title to a disputed alleyway in LesRon. Appellants

claim that Ms. Sahrapour purchased the disputed alleyway from Shaw Centre and

that Shaw Centre acted unlawfully by subsequently purporting to sell the alleyway

to LesRon. The trial court held that both the purchase agreement between Ms.

Sahrapour and Shaw Centre and a subsequent deed were unambiguously contrary

to appellants’ claim. The trial court therefore refused to consider extrinsic

evidence as to the meaning of those documents. We find both the purchase

agreement and the deed to be ambiguous. We therefore remand to the trial court

for further proceedings.
 3

I.

The following facts are undisputed. Shaw Centre owned two adjacent

buildings, one at 1230 9th Street, NW and one at 1232 9th Street, NW. An

alleyway that is approximately four feet wide runs between the buildings. In May

2006, Shaw Centre agreed to sell 1230 9th Street to Ms. Sahrapour. Attorney

Robert Haas represented Ms. Sahrapour in the transaction. The purchase

agreement states that 1230 9th Street consisted of “approximately 3,027 square feet

of land . . . legally described as Lots 878, Block/Square 0368, Map 40 C.” The

property located at 1230 9th Street measures 3,026.4 square feet when the

alleyway at issue is included and 2,777.5 square feet when the alleyway is

excluded. The purchase agreement further states that it is binding and that “the

provision hereof shall survive the execution and delivery of the deed aforesaid and

shall not be merged therein.”

Mr. Haas prepared the deed for the sale of 1230 9th Street. The deed states

that Shaw Centre conveyed to Ms. Sahrapour “Lots 21 and 28 in Ambrose Roth’s

Subdivision of Lots in Square 368.” Lots 21 and 28 in Square 368 describe the

property located at 1230 9th Street without the alleyway; the alleyway is located in
 4

Lot 22. The deed also identifies the tax lot as “Square 368, Lots 877 and 878.”

Tax lot 877 does not exist, and tax lot 878 describes only the front portion of the

property located at 1230 9th Street. The back portion of 1230 9th Street and the

disputed alleyway lie in tax lot 885. The deed also states that the property was

conveyed “TOGETHER WITH all improvements thereupon, and the rights, alleys,

ways, waters, privileges, appurtenances and advantages thereto belonging, or in

anywise appertaining.” The deed was recorded in October 2006.

In May 2007, Shaw Centre contracted to sell the adjacent property located at

1232 9th Street to Ronald and Leslie Schreiber, owners of LesRon. The original

purchase agreement describes the property to be conveyed as “1232-9th Street,

Northwest Washington DC Square 0368 Lot 0885.” At some point after the

purchase agreement was signed, Ms. Sahrapour’s husband, George Beheshtian,

informed Mr. Schreiber that Ms. Sahrapour had already purchased the alleyway

between 1232 9th Street and 1230 9th Street. Mr. Haas also informed LesRon’s

counsel of Ms. Sahrapour’s claim. Shaw Centre and LesRon subsequently

modified the purchase agreement to explicitly include the alleyway. A special

warranty deed reflecting the sale of 1232 9th Street was recorded on August 14,

2007. The alleyway is included in the property description in this deed.
 5

Mr. Haas subsequently amended the October 2006 deed between Shaw

Centre and Ms. Sahrapour to specifically reflect the conveyance of the alleyway to

Ms. Sahrapour. Mr. Haas changed the designation from tax lot 877 to tax lot 885.

He also added that “a portion of Lot 22 as shown on the attached survey” was

conveyed to Ms. Sahrapour.

LesRon sued appellants, seeking a declaration that the amended deed was

void; money damages for slander of title; money damages for trespass; and a

permanent injunction enjoining further trespass. Ms. Sahrapour and Mr.

Beheshtian brought a cross-claim against Shaw Centre, seeking damages for

breach of contract; an order requiring Shaw Centre to record a deed or instrument

confirming the boundaries of the property that Ms. Sahrapour had purchased; an

order quieting title in and to the disputed alleyway; and indemnification if LesRon

prevailed in its suit.

Appellants proffered extrinsic evidence in support of their claim that Ms.

Sahrapour purchased the alleyway. Specifically, appellants claimed that the real-

estate agent stated that the alleyway was included in the sale; that a location

drawing confirmed by both parties at the closing indicated the alleyway was

included in the sale; and that Shaw Centre sealed the entrances from 1232 9th
 6

Street to the alleyway and provided a key to the door in the back of the alleyway to

Ms. Sahrapour. Appellees disputed appellants’ extrinsic evidence and countered

with extrinsic evidence of their own.

The trial court held that the purchase agreement between Shaw Centre and

Ms. Sahrapour and the October 2006 deed were both unambiguous and that

extrinsic evidence therefore could not be considered. The trial court also

concluded that the purchase agreement merged with the October 2006 deed and

that the October 2006 deed therefore represented the final written agreement

between the parties. The trial court granted summary judgment in favor of

appellees, vested title to the alleyway in LesRon, and declared the amended deed

prepared by Mr. Haas void.1

1
Although the trial court did not resolve all of the claims and counterclaims
in the case, we have jurisdiction because appellants seek review of an order
“changing or affecting the possession of property.” D.C. Code § 11-721 (a)(2)(C)
(2012 Repl.). Some of the appellants were not formally parties to this case in the
trial court but nevertheless were permitted to participate on the merits because they
were parties in closely related cases. The parties dispute whether those appellants
have standing to participate in the present appeal. We need not decide that issue,
however, because Ms. Sahrapour was a party in the trial court and has standing to
raise all of the arguments being raised in this appeal. See, e.g., Hazel v. Berry, 580
A.2d 110, 110 n.3 (D.C. 1990) (because some appellants had standing, court did
not need to decide whether another did as well).
 7

II.

We interpret contracts and deeds under the “objective” law of contracts,

meaning that the written language of the contract “govern[s] the rights and

liabilities of the parties, regardless of the intent of the parties at the time they

entered into the contract, unless the written language is not susceptible of a clear

and definite under[stand]ing, or unless there is fraud, duress, or mutual mistake.”

DSP Venture Grp., Inc. v. Allen, 830 A.2d 850, 852 (D.C. 2003) (internal quotation

marks and brackets omitted); see also Joyner v. Estate of Johnson, 36 A.3d 851,

855 (D.C. 2012) (applying “objective” law of contracts to deeds).

We review de novo a trial court’s ruling as to whether a contract or deed is

ambiguous. Joyner, 36 A.3d at 857; BSA 77 P Street LLC v. Hawkins, 983 A.2d

988, 993 (D.C. 2009). A contract or deed is ambiguous if “it is, or the provisions

in controversy are, reasonably or fairly susceptible of different constructions or

interpretations, or of two or more different meanings . . . .” Joyner, 36 A.3d at 856

(internal quotation marks omitted). A contract or deed is not ambiguous if “the

court can determine its meaning without any other guide than a knowledge of the

simple facts on which, from the nature of language in general, its meaning

depends.” Id. (internal quotation marks omitted).
 8

If a court determines that a contract or deed is ambiguous, “the court -- after

admitting probative extrinsic evidence -- must determine what a reasonable person

in the position of the parties would have thought the disputed language meant.”

Dyer v. Bilaal, 983 A.2d 349, 355 (D.C. 2009) (internal quotation marks omitted);

see also Foundation for Preservation of Historic Georgetown v. Arnold, 651 A.2d

794, 796 (D.C. 1994).2

III.

A.

We turn first to the purchase agreement between Shaw Centre and Ms.

Sahrapour. The trial court concluded that the purchase agreement “merged” with

the deed, and that the deed therefore was the document that determined the rights

of the parties with respect to the property at issue. It is true that, in general, the

2
At one time, this jurisdiction drew distinctions between latent and patent
ambiguities, permitting extrinsic evidence to be considered in resolving the former
but not the latter. See, e.g., Harten v. Loffler, 29 App. D.C. 490, 503 (1907). That
rule was long ago abolished in this jurisdiction. See, e.g., Mitchell v. Merriam, 88
U.S. App. D.C. 213, 215, 188 F.2d 42, 44 (1951) (“Distinctions between ‘latent’
and ‘patent’ ambiguities are arbitrary and outmoded.”). We therefore need not
decide whether any ambiguities in the documents at issue were latent or patent.
 9

provisions of a purchase agreement that are satisfied by the delivery of a deed

merge into a subsequently delivered deed. Haviland v. Dawson, 210 A.2d 551,

554 (D.C. 1965). Such merger would “extinguish” the parties’ rights under the

purchase agreement. Burka v. Crestview Corp., 321 A.2d 853, 855 (D.C. 1974).

In the present case, however, the purchase agreement states that the agreement

“shall not be merged” with the deed. Thus, the provisions of the purchase

agreement do not merge into the deed, and appellants remain free to assert rights

arising under the purchase agreement. See, e.g., Meyers v. Antone, 227 A.2d 56,

57 (D.C. 1967) (rejecting argument that sales contract merged into deed, because

sales contract stated that provisions of sales contract “shall not be merged” into

deed).

We further conclude that the purchase agreement is ambiguous as to whether

the alleyway was included in the sale. The purchase agreement states that 1230 9th

Street consists of “approximately 3,027 square feet of land . . . legally described as

Lots 878, Block/Square 0368, Map 40 C . . . .” Nothing in the agreement -- neither

the street address, nor the square footage, nor the tax lot number -- unambiguously

indicates the boundaries of the property to be conveyed. The street address does

not indicate whether the alleyway was to be included in the conveyance, because

the alleyway is immediately adjacent to the building at that address and could
 10

reasonably be considered part of the address. The approximation of 3,027 square

feet does not by itself clearly establish whether the alleyway was included, because

the agreement does not specify how that approximation was reached. The

approximation does tend to suggest, however, that the alleyway was intended to be

included in the conveyance, because it is undisputed that 1230 9th Street measures

3,026.4 square feet with the alleyway and 2,777.5 square feet without the

alleyway.3 Finally, the tax-lot number does not indicate whether the alleyway was

included, because the parties concede that the tax-lot number does not accurately

indicate the boundaries of the property to be conveyed. Tax lot 878 corresponds to

the front portion of the property, but does not encompass the back portion of the

property, which everyone agrees was intended to be conveyed. Because nothing in

the purchase agreement clearly indicated whether the alleyway was included in the

property to be conveyed, reasonable parties could have had different beliefs about

whether Ms. Sahrapour had contracted to purchase the alleyway. Thus, we

conclude that the purchase agreement is ambiguous on that point.

3
The parties dispute whether the purchase agreement in this case was a sale
“in gross,” i.e., whether the statement of the area to be conveyed was a mere
estimate that was not “of the essence of the contract.” See generally, e.g., Cavacos
v. Sarwar, 545 A.2d 46, 52 (Md. 1988) (internal quotation marks omitted). We
have not found any case discussing the “sale in gross” doctrine under District of
Columbia law. Under Maryland law, extrinsic evidence is apparently admissible
when it is unclear from the face of the contract whether the contract is a sale in
gross. See, e.g., Witmer v. Bloom, 288 A.2d 323, 325 (Md. 1972). Moreover, even
if the purchase agreement in this case were a sale in gross, we would still view the
purchase agreement and the deed as ambiguous, for the other reasons stated in text.
 11

The trial court indicated that, even if there were ambiguity, extrinsic

evidence may not be considered unless there is clear and convincing evidence of

mutual mistake. We disagree. Extrinsic evidence may be admitted either in the

face of ambiguity or in cases of mutual mistake. E.g., DSP Venture Grp., 830

A.2d at 852 (the language of a contract governs “unless the written language is not

susceptible of a clear and definite under[standing], or unless there is fraud, duress,

or mutual mistake”) (emphasis added).

Appellants argue that, once extrinsic evidence is considered, the purchase

agreement should properly be understood to include the alleyway. Appellants

further argue that they obtained equitable title to the alleyway when the purchase

agreement was executed. The trial court did not address these issues, and we leave

them for the trial court on remand.

B.

We next turn to the interpretation of the October 2006 deed. The deed stated

that Shaw Centre conveyed to Ms. Sahrapour “Lots 21 and 28 in Ambrose Roth’s

Subdivision of Lots in Square 368 . . . . TOGETHER WITH . . . the alleys . . .
 12

thereto belonging, or in anywise appertaining . . . .” The disputed alleyway is

immediately adjacent to Lots 21 and 28. The deed does not indicate whether this

alleyway is an alleyway belonging or in anywise appertaining to the property

otherwise to be conveyed. This reference to alleyways contributes to our

conclusion that the deed is ambiguous. See Annapolis Rds. Prop. Owners Ass’n v.

Lindsay, 45 A.3d 749, 758-70 (Md. Ct. Spec. App. 2012) (affirming trial court’s

rulings that (1) plain language of deed transferring lot 19 and alleys and ways

“belonging or in anywise appertaining” was ambiguous as to whether deed

transferred strip of land adjacent to lot 19; and (2) after consideration of other

evidence, deed was properly interpreted to transfer adjacent strip of land), aff’d in

part and rev’d in part on other grounds, 64 A.3d 916 (Md. 2013); Kirkpatrick v.

Brown, 59 Ga. 450, 450-53 (1877) (deed that transferred south half of lot 27, with

“the rights, members, and appurtenances thereof . . . belonging, or in anywise

appertaining,” was ambiguous as to whether deed transferred strip of property

adjacent to south half of lot 27; trial court appropriately permitted consideration of

extrinsic evidence, and jury permissibly found that adjacent strip of property was

alleyway transferred by deed).

Moreover, the deed identifies the tax-lot numbers of the conveyed property

as “Square 368, Lots 877 and 878.” Tax lot 877 does not exist, and tax lot 878
 13

makes up only a part of Lots 21 and 28. Because tax lot 877 does not exist and tax

lot 878 is smaller than Lots 21 and 28, the physical descriptions of the property in

the deed are unclear and to a degree contradictory. The parties have not cited, and

we have not found, local cases addressing whether such conflicts create ambiguity

permitting consideration of extrinsic evidence. Other courts, however, have held

that deeds were ambiguous, and extrinsic evidence therefore was properly

considered, where the property description in the deed was incomplete or

contradictory. See, e.g., Everett v. Bosch, 50 Cal. Rptr. 813, 818 (Dist. Ct. App.

1966) (deed ambiguous because description of property by metes and bounds

conflicted with description of property by lot number); Grimes v. Jordan, 260

S.W.2d 220, 223-24 (Tex. Civ. App. 1953) (same); Snow v. Gallup, 123 S.W. 222,

224-26 (Tex. Civ. App. 1909) (extrinsic evidence admissible where description of

property in deed omitted one of property descriptors necessary to enclose area

intended to be conveyed).

Appellees argue that the problems with the tax-lot numbers in the deed do

not give rise to ambiguity, because property in the District of Columbia must be

described in terms of subdivision lot numbers. Although properties may be

described in terms of subdivision lot numbers, appellees have not cited any

provision that requires that means of describing property. See D.C. Code § 1-1322
 14

(2012 Repl.) (purchaser of subdivided property may refer to plat and record in

describing property). Nor have appellees cited any authority suggesting that

references to the subdivision lot numbers is dispositive even in the face of other

contradictory or ambiguous descriptions of the property to be conveyed. We

therefore are unable to accept appellees’ contention that the subdivision lot

numbers are controlling in the current setting.

We need not decide whether the problems with the tax-lot numbers in the

deed by themselves would suffice to render the deed ambiguous. Rather, we hold

that ambiguity is created by the combination of those problems and the deed’s

language about the conveyance of alleyways.

C.

The dissent concludes that, despite the errors and conflicts in the

descriptions of the conveyed property, both the purchase agreement and the deed

are so unambiguous as to preclude consideration of extrinsic evidence. Our

analysis differs from the dissent’s in a number of respects.

1. Although the dissent apparently would require a high degree of

ambiguity before permitting consideration of extrinsic evidence, our
 15

cases provide substantial support for a less rigid approach. See, e.g.,

Aziken v. District of Columbia, 70 A.3d 213, 219 (D.C. 2013) (“Where

there is some lack of clarity in the terms of the contract, testimony

regarding the intent of the parties and the meaning of the terms in the

context may be required, and will properly be admitted in order to reach

an objective interpretation.”) (brackets, ellipses, and internal quotation

marks omitted).

2. The dissent understands Section 203 of the Restatement of Contracts

(Second) to forbid consideration of extrinsic evidence to resolve a

conflict between more specific and more general contract terms. We

understand Section 203 otherwise. In the first comment to Section 203,

the authors of the Restatement explain that the principles of contract

interpretation reflected in Section 203 “apply only in choosing among

reasonable interpretations. They do not override evidence of the meaning

of the parties, but aid in determining meaning or prescribe legal effect

when meaning is in doubt.” Restatement (Second) of Contracts § 203,

cmt. a (1981). More specifically, comment e to Section 203 states that

the rule favoring specific terms over general terms “yields to

manifestation of a contrary intention.” Id. at cmt. e. Section 203

therefore does not support a rule that extrinsic evidence may never be
 16

considered to help resolve a conflict between more specific and more

general contract language. Although the dissent suggests that this court

adopted such a flat rule in Abdelrhman v. Ackerman, 76 A.3d 883, 891

(D.C. 2013), we disagree. The court in Abdelrhman stated only that

“greater weight” is given to specific language, not that such language

must always be given controlling weight. Moreover, the court rested

primarily on the conclusion that the allegedly conflicting language could

be reconciled. Id. at 890-91. Out-of-jurisdiction authority supports the

conclusion that extrinsic evidence may in appropriate circumstances be

considered in resolving a conflict between general and more specific

contractual language. See, e.g., 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;

reversing for trial court to consider extrinsic evidence); Mulla v.

Maguire, 783 A.2d 93, 99 (Conn. App. Ct. 2001) (“Because the conflict

between the specific intent clause and the map showing the right-of-way

and the general granting clause introduces some ambiguity into the

instrument, we also consider extrinsic evidence . . . .”); see generally,

e.g., Thompson on Real Property § 90.02(d)(1) (3d Thomas ed. 2013)
 17

(The “presumption favoring specific description will prevail unless it

appears that the parties intended otherwise . . . .”).

3. Similarly, the dissent appears to interpret Section 203 of the Restatement

to preclude consideration of extrinsic evidence to resolve a conflict

between a handwritten contract term and a typed or printed contract term.

The commentary to the Restatement contradicts such an interpretation.

Restatement (Second) of Contracts § 203, cmt. f (1981) (rule generally

favoring handwritten contract terms “yields to manifestation of a contrary

intention”).

4. The dissent further suggests that the descriptions of the property using

subdivision square and lot numbers as a matter of law trump the

descriptions using tax lot numbers. That is so, according to the dissent,

because (a) subdivision lots in the pertinent square are on average smaller

than the tax lots in that square; (b) each subdivision lot is wholly

contained within a single tax lot; (c) references to subdivision lots are

therefore more specific than references to tax lots; and (d) references to

subdivision lots therefore control and preclude the admission of extrinsic

evidence to help resolve the conflicting descriptions. As we have already

explained, we do not agree that the more specific of two conflicting

descriptions of property will necessarily control, without regard to other
 18

indications of the parties’ intent, including extrinsic evidence where

appropriate. Leaving that aside, subdivision lot numbers and tax lot

numbers seem comparably specific ways to describe the location of a

property. Although the dissent indicates that each subdivision lot is

contained within a single tax lot, that is not clear to us from the record.

Moreover, we see no reason why controlling weight should be given in

this case to the references to subdivision lots simply because subdivision

lots are on average smaller than tax lots in the particular square where the

property is located. Nor are we aware of any authority supporting such

an approach. See generally, e.g., 14 Powell on Real Property

§ 81A.05[3][c], at 81A-97 (2015) (“The practical difficulty in employing

[the rule favoring specific language over general language] is the

determination of which language is more general and which is more

specific. [In some cases,] . . . the descriptions seem to be equally

general[, and the] selection of one over the other depends largely on the

opinion and viewpoint of the finder of fact.”) (citation omitted).

5. The dissent also concludes that the parties intended the subdivision lot

numbers to be controlling, because subdivision lot numbers are used in

recording deeds, whereas tax lot numbers are used “only for the taxation

of real estate.” Although subdivision lot numbers are a permissible way
 19

to describe property for real-estate purposes, there is no requirement that

they be used. See, e.g., D.C. Code § 1-1322 (2012 Repl.) (permitting but

not requiring use of subdivision square and lot numbers). Moreover, it is

not unusual for parties to use tax lot numbers to describe property being

conveyed. See, e.g., Mueller v. Bohannon, 589 N.W.2d 852, 855-56

(Neb. 1999); Howe v. Greenleaf, 320 P.3d 641, 649-50 (Or. Ct. App.

2014). We see no basis to infer that the parties intended to give the

subdivision lot numbers controlling effect in the event of a conflict with

the tax lot numbers. Nor, for that matter, are we aware of authority

holding that subdivision lot numbers are generally to be given preference

over tax lot numbers.

6. The dissent states that “metes and bounds generally control when they

conflict with other descriptions of land unless . . . the metes and bounds

descriptions themselves are incomplete.” This case, however, does not

involve “metes and bounds” descriptions. See, e.g., B. Garner, Black’s

Law Dictionary 1141 (10th ed. 2009) (defining “metes and bounds” as

“[t]he territorial limits of real property as measured by distances and

angles from designated landmarks and in relation to adjoining

properties”); 14 Powell § 81A.05[2][b], at 81A-83 (discussing “metes

and bounds” method of describing real property). Rather, the conflicting
 20

descriptions in this case involve two different systems by which the

government designates parcels of real property. See generally, e.g., 14

Powell § 81A.05[2][d], at 81A-92 (describing use of “plats” to describe

real property); 11 C.J.S. Boundaries § 16 (2008) (“A ‘plat’ is a

subdivision of land into lots, streets, and alleys, marked upon the earth,

and represented on paper.”). More generally, it is true that some courts

have identified various canons of construction concerning the relative

weight to give to differing types of property description when a

document contains conflicting descriptions. See generally, e.g., 14

Powell § 81A.05[3][a], at 81A-94- to -111. This court does not appear to

have squarely addressed the issue, however. Moreover, according to one

treatise, “some of [these canons of construction] are of questionable merit

or have fallen into disuse.” Id. at 81A-94. According to the same

treatise, “it is essential that a court first attempt to determine and interpret

the intention of the parties from the documents and the surrounding

circumstances before applying any of the canons of construction.” Id. at

81A-95. We need not delve further into these issues in this case, except

to say that, for the reasons we have explained, we conclude that the

purchase agreement and the deed in this case are ambiguous and that
 21

extrinsic evidence should therefore be considered to help determine their

meaning.

7. In Everett, 50 Cal. Rptr. at 818, the court concluded that a deed

containing conflicting descriptions of the property to be conveyed was

ambiguous. The dissent suggests that Everett rests on unusual features of

California law, but the features the dissent identifies are not relevant to

the pertinent holding of Everett -- that extrinsic evidence may be

consulted when a deed contains two conflicting descriptions of the

property to be conveyed. 50 Cal. Rptr. at 818. In any event, there is

ample other authority to the same effect. See generally, e.g., 12 Am. Jur.

2d Boundaries § 103, at 478 (2009) (“Parol evidence is always

admissible to explain conflicts between calls in a description [of real

property being conveyed], or a variance between a description of land in

the deed and the plat or map of the land referred to therein . . . .”) (citing

cases); 23 Am. Jur. 2d Deeds § 249, at 255-56 (“If there are conflicting

descriptions which cannot be reconciled, that construction will be

adopted which best comports with the manifest intention of the parties as

shown by the whole deed and the circumstances of the case.”) (citing

cases); cf. 23 Am. Jur. 2d Deeds § 194, at 217 (“[A]ll uncertainties in a

conveyance are treated as ambiguities to be clarified by resort to the
 22

intention of the parties as gathered from the instrument itself, the

circumstances attending and leading up to its execution, and the subject

matter and the situation of the parties as of that time.”) (citing cases); 11

C.J.S. Boundaries § 3, at 72 (“The important and controlling

consideration, where there is a conflict as to a boundary, is the parties’

intention, whether express or shown by surrounding circumstances.”).

8. The dissent expresses the view that the purchase agreement placed on the

buyer the burden of ensuring the correctness of the legal description of

the property. Specifically, the dissent relies on provisions in the purchase

agreement indicating that the property was being sold “as is.” Those

provisions, however, are by their terms focused on the condition of the

property, not on the legal description of what property was being

conveyed. See, e.g., Pitre v. Twelve Oaks Trust, 818 F. Supp. 949, 951

(S.D. Miss. 1993) (“‘As is’”, when utilized in the sale of real property,

means the property will be sold in its then existing physical condition.”).

We therefore do not view the “as is” clauses as fatal to appellants’ claims

that, properly interpreted, the purchase agreement and the deed conveyed

the alley at issue.

9. Finally, we disagree with the dissent’s interpretation of the clause in the

deed conveying not only the property otherwise described but also “the
 23

rights, alleys, ways, waters, privileges, appurtenances and advantages

thereto belonging, or in anywise appertaining.” According to the dissent,

such language can only create an easement, as opposed to determining

the boundary of the land being conveyed. The sole District of Columbia

case cited by the dissent, however, involves circumstances critically

different from those of the present case. See May v. Smith, 14 D.C. (3

Mackey) 55, 59-60 (1884). The question in May was whether a deed

conveying described property and “ways, rights, . . . and appurtenances

unto the same” also conveyed title to, or an easement over, a strip of land

retained by the seller, in order to get access to a nearby alley. Id. at 56.

The deed did not refer to the alley, the alley was not adjacent to the

property described in the deed, and there was no preexisting way across

the strip of land at issue. Id. at 55-64. May therefore does not support a

conclusion that language explicitly conveying alleys belonging or in

anywise appertaining to a described property can never convey title to an

alley adjacent to the described property. Moreover, contrary to the

dissent’s suggestion, the Maryland Court of Special Appeals in Annapolis

Roads Property Owners Ass’n squarely held, on the basis of all of the

relevant circumstances including extrinsic evidence, that a deed

conveying alleys and ways “belonging or in anywise appertaining” to the
 24

property otherwise described in the deed conveyed title to a strip of land

adjacent to the described property. 45 A.3d at 751 & n.1, 759, 768, 787

(strip of land at issue was “between Lots 18, 19, 20, and 21,” but title to

strip of land was conveyed by deed conveying Lot 19 and alleys and

ways “belonging or in anywise appertaining”). To be clear, we do not

hold as a matter of law that the deed in this case granted appellants title

to the alley. A substantial body of out-of-jurisdiction law addresses

whether references in particular deeds to roads, ways, alleys, rights-of-

way, or other related items convey title or instead only create an

easement, and the answer to that question can be very context-dependent.

See, e.g., Barber v. Southern Ry. Co., 274 S.E.2d 336, 337 (Ga. 1981)

(“It is true that in determining whether an interest conveyed is an

easement or fee simple title to land, each case depends on its own

particular facts and circumstances.”); see generally A.M. Swarthout,

Annotation, Deed as Conveying Fee or Easement, 136 A.L.R. 379,

§ II.b.2 (1942 & 2015 supp.) (language in deed conveying land generally

implies grant of title, whereas language conveying right to use land

generally implies grant of easement, but other indications in deed, such

as reference to land as road, way, or alley can affect interpretation of

deed; “The nature of such indic[ations] varies to such an extent from case
 25

to case that it seems unwise to attempt to formulate any general rules

with respect to the effect of any given indic[ation] upon the broad

principle that a conveyance of a strip or parcel of land, rather than a right,

will pass a title in fee.”); see also id. at § II.d (“It appears to be well

established that a deed purporting to convey a ‘road,’ ‘roadway,’ ‘alley,’

‘street,’ ‘highway,’ or ‘way,’ will, in the absence of some indic[ation] of

a contrary intention of the parties, be construed as passing an easement

only and not a title in fee. (It should be pointed out, however, that in

many of the cases in which this result is reached the decision is not based

entirely, or even partly, upon the principle that a deed purporting to

convey a ‘road,’ etc., passes only an easement, but upon other indications

of the parties’ intention that an easement only should pass.)”). Rather,

we hold only that the deed’s language conveying alleys and the deed’s

conflicting descriptions of the property to be conveyed combine to make

the deed sufficiently ambiguous as to warrant consideration of extrinsic

evidence. We leave to the trial court on remand the question whether,

under all of the circumstances, the reference to alleys in the deed in this

case operated to convey title.
 26

IV.

In sum, we find that both the purchase agreement and the 2006 deed are

ambiguous. Extrinsic evidence therefore should be considered in determining the

meaning of those documents. We thus remand the case for further proceedings.

So ordered.
 27

NEWMAN, Senior Judge, dissenting: Sahrapour failed to properly examine

land conveyed by a deed and land purchase agreement. The two documents may

convey smaller parcels of land than Sahrapour subjectively intended to purchase;

this court should not intervene to correct her missteps absent a sufficient showing

of ambiguity in the documents. The majority’s opinion departs from this court’s

opinion in Abdelrhman v. Ackerman, 76 A.3d 883 (D.C. 2013), and implicitly

adopts the dissent’s method of resolving inconsistencies and ambiguities. Id. at

893 (McLeese, J., dissenting).

I dissent from the majority’s opinion because, in my view, neither the land

purchase agreement nor the deed is sufficiently ambiguous as to permit the

introduction of extrinsic evidence. In addition, I conclude that the corrected deed

is void and that Sahrapour did not acquire the alley through equitable conversion. I

would affirm the trial court’s decision.1

1
Whether Sahrapour might have other remedies is not an issue before us.
 28

Deed

Under the objective law of contracts, this court solely relies on the language

of the written document to discern the intent of the parties “unless the written

language is not susceptible of a clear and definite undertaking, or unless there is

fraud, duress, or mutual mistake.” DSP Venture Grp., Inc. v. Allen, 830 A.2d 850,

852 (D.C. 2003) (citation and internal quotation marks omitted). Ambiguity exists

only if the court determines that the proper interpretation of the contract cannot be

derived from the contractual language exclusively, and requires consideration of

evidence outside the contract itself. Steele Founds., Inc. v. Clark Constr. Grp.,

Inc., 937 A.2d 148, 153 (D.C. 2007).

The Second Restatement of Contracts presents the following method for

contract interpretation:

In the interpretation of a promise or agreement or a
term thereof, the following standards of preference are
generally applicable:
(a) an interpretation which gives a reasonable, lawful,
and effective meaning to all the terms is preferred to an
interpretation which leaves a part unreasonable,
unlawful, or of no effect;
(b) express terms are given greater weight than course
of performance, course of dealing, and usage of trade,
 29

course of performance is given greater weight than
course of dealing or usage of trade, and course of dealing
is given greater weight than usage of trade;
(c) specific terms and exact terms are given greater
weight than general language;
(d) separately negotiated or added terms are given
greater weight than standardized terms or other terms not
separately negotiated.

Restatement (Second) of Contracts § 203 (1981). This court follows § 203 and

applies the canon that the specific governs the general when both the general and

specific provisions “stand irreconcilably in conflict.” Abdelrhman, supra, 76 A.3d

at 891. Unlike the canon ‘construing the contract against the drafter,’ which

applies only after considering extrinsic evidence,2 the ‘specific governs the

general’ canon applies before considering extrinsic evidence. Id.

The panel in Abdelrhman split regarding the amount of ambiguity needed

before extrinsic evidence of the parties’ intent was admissible. Judge McLeese

2
“Ambiguous language in a contract is generally construed against the
drafter, at least where the parties were relatively equal in bargaining power. A
party who takes an agreement prepared by another, and upon its faith incurs
obligations or parts with his property, should have a construction given to the
instrument favorable to him. This canon of construction, known as contra
proferentem, is a secondary standard of interpretation, and inferior to extrinsic
proof of the parties’ agreement, or to other authority revealing that understanding.”
American Bldg. Maint. Co. v. L’Enfant Plaza Props., Inc., 655 A.2d 858, 862-63
(D.C. 1995) (citations and internal quotation marks omitted).
 30

dissented in Abdelrhman because he “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.” Id. at 893

(McLeese, J., dissenting). In particular, Judge McLeese’s dissent recognized the

‘specific governs the general canon’ but would not have relied “on the implication

of a specific provision as unambiguously trumping the express statement of a more

general provision” in this specific case. Id. at 894 (McLeese, J., dissenting). The

majority disagreed and found that the two provisions of the lease could be read

together, so there was no need to use the ‘specific governs the general’ canon to

resolve the inconsistency in the lease language. Id. at 891. Today, the majority’s

opinion essentially takes Judge McLeese’s dissent in Abdelrhman and makes it

binding precedent, in derogation of M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971).

There are two provisions in the deed that stand irreconcilably in conflict, the

description of the land, “Lots 21 and 28 in Ambrose Roth’s Subdivision of Lots in

Square 368,” and the tax lots numbers, “Lot 878 in square 368” and “Tax ID:

Square 368, Lots 877 and 878” (handwritten text in italics). The conflict in tax

identification (Tax ID) numbers can be resolved in favor of the handwritten

portion, “Lot 878 in square 368.” Restatement (Second) of Contracts § 203 cmt. f
 31

(1981) (“It is sometimes said generally that handwritten terms control typewritten

and printed terms, and typewritten control printed.”).

The second conflict is between “Lots 21 and 28” and “Lot 878 in square

368.” The individual lot numbers are, on average, smaller and more specific than

the Tax ID lot numbers. Square 368 is divided into eighteen lots and eight tax lots

so, on average, the lot numbers provide a more specific description of individual

pieces of land than the tax lot numbers. The subdivision lots are wholly contained

within the tax lots so subdivision lots are more specific than tax lots—not merely a

different method to describe the same land. The canon that “specific terms and

exact terms are given greater weight than general language” resolves this

inconsistency. Restatement (Second) of Contracts § 203 (c). The individual lot

reflects a smaller parcel of land, and is therefore more specific than the tax lot

which reflects, on average, a larger parcel of land.

In addition, the method by which land is recorded in the District reflects the

above reading of the deed. In the District of Columbia, the Office of the Surveyor

uses lots of record to identify and record land records, but tax lot numbers are only

used for the taxation of real estate located in the District of Columbia. D.C. Code

§§ 1-1305–1322 (2012 Repl.) (land records); D.C. Code § 47-701 (2012 Repl.)
 32

(taxation of real estate). Given that the deed contains two inconsistent descriptions

of land—one of which accurately cites to two plots of land in the same form used

by the Office of the Surveyor when recording deeds, and the other which cites to a

non-existent tax lot—I conclude that the parties intended the subdivision lot

numbers to reflect the scope of the land conveyed by the deed.

The majority’s opinion cites California and Texas cases for the proposition

that, when descriptions of land in the deed are in conflict, the more specific terms

do not necessarily control. These cases are distinguishable.3 Despite the majority

3
Courts often disagree about the degree of ambiguity needed before a court
can consider extrinsic evidence to discern the intent of the parties. The majority
opinion cites cases from other states that do not follow this court’s method for
resolving inconsistencies, and thus reduces the usefulness of those opinions.

Under California law, courts apparently do not apply canons of construction
to resolve inconsistencies prior to considering extrinsic evidence. In cases where
“metes and bounds [descriptions] clearly conflict[] with its description by lot
number,” “consideration may be given not only to actual uses being made at the
time of the grant, but also to such uses as the facts and circumstances who were
within the reasonable contemplation of the parties at the time of the conveyance.”
Everett v. Bosch, 50 Cal. Rptr. 813, 818 (Dist. Ct. App. 1966) (citation and internal
quotation marks omitted). In addition, California law contains unique statutory
and common law presumptions whereby “[a]n owner of land bounded by a road or
street is presumed to own to the center of the way, but the contrary may be shown”
and “[t]he grant of land adjoining a street or highway which has been wholly made
from, and upon the margin of, the grantor’s land is deemed to comprehend the fee
in the whole of the street.” Id. at 817 n.2, 819 n.3. (citations and internal quotation
marks omitted) (“[A] grantor’s intent to withhold his interest in an alley . . . will
never be presumed, reasoning that there would be no object in the retention by the
 33

opinion’s contention otherwise, metes and bounds generally control when they

conflict with other descriptions of land unless if the metes and bounds descriptions

themselves are incomplete. 11 C.J.S. Boundaries § 84 (2015) (“Metes and bounds

in the description of property granted, if established, always control courses and

distances.”).

The majority’s opinion also contends that language located at the end of the

deed referencing “alleys” supports Sahrapour’s argument that the deed is

ambiguous. The deed states, “TOGETHER WITH all improvements thereupon,

and the rights, alleys, ways, waters, privileges, appurtenances and advantages

thereto belonging, or in anywise appertaining.” Courts have held for over 130

years that this language unambiguously states that certain features (easements and

covenants) travel with the land.4 See May v. Smith, 14 D.C. (3 Mackey) 55, 59-60

(1884) (quoting Oliver v. Hook, 47 Md. 301, 308 (1877)).

grantor of a narrow strip of land, which, when separated from the adjoining land,
would be of little or no use to him.”).

The metes and bounds descriptions, referenced in the two Texas cases cited
by the majority opinion, were incomplete and problematic so the court therefore
could not discern intent solely from those descriptions. Grimes v. Jordan, 260
S.W.2d 220, 223 (Tex. Civ. App. 1953); Snow v. Gallup, 123 S.W. 222, 224 (Tex.
Civ. App. 1909).
4
Maryland courts have held that this language in the deed validly assigns
“covenants [or easements] running with the land,” but none have held that this
 34

In May, this court had to consider whether the language in the deed,

“together with all and singular the improvements, ways, rights, tenements, and

hereditaments and appurtenances unto the same belonging or in any way

appertaining,” conveyed “a right of way over the remaining part to the public

alley” that bordered the property described in the deed. Id. at 57. This court relied

upon Oliver for the proposition that the deed language, “all and every the rights,

privileges, appurtenances and advantages to the same belonging, or in any wise

appertaining,” would transfer a pre-existing easement through the deed. Id. at 59

(internal quotation marks omitted) (quoting Oliver, supra, 47 Md. at 308). The

factual inquiry that ensued focused on whether there was a pre-existing easement

over the public alley, not whether the deed conveyed title to the alley. Id. at 59-61.

language delineates the boundaries of a property. County Comm’rs of Charles
Cnty. v. St. Charles Assocs. Ltd. P’ship, 784 A.2d 545, 568 (Md. 2001); see also
Olde Severna Park Improvement Ass’n, Inc. v. Gunby, 936 A.2d 365, 373 (Md.
2007); Kobrine, L.L.C. v. Metzger, 846 A.2d 403, 414 (Md. 2004) (It is well-
settled Maryland law that “when a property owner subdivides property and makes
or adopts a plat designating lots as bordering streets, and then sells any of those
lots with reference to the plat, an implied easement of way passes from the grantor
to the grantee . . . over the street contiguous to the property sold” (emphasis added)
(internal quotation marks omitted)); Conrad/Dommel, LLC v. West Dev. Co., 815
A.2d 828, 839 (Md. 2003); Gosnell v. Roberts, 128 A. 276, 276-77 (Md. 1925);
Duvall v. Ridout, 92 A. 209, 210 (Md. 1914).
 35

In my view, as established in May, this unambiguous language is not

intended to delineate the exact geographical boundaries of the land, but instead is

intended to clarify what features of the property the parties intend to transfer with

the deed. I see no reason to depart from 130 years of well-established case law to

find an ambiguity in Sahrapour’s deed.

The majority opinion cites Annapolis Rds. Prop. Owner’s Ass’n v. Lindsay,

45 A.3d 749, 784 (2012), aff’d in part, rev’d in part sub nom. Lindsay v. Annapolis

Rds. Prop. Owner’s Ass’n, 64 A.3d 916 (2013), for the proposition that the above-

quoted deed language is ambiguous as to the interest it conveys. I do not read this

opinion as does the majority. In Annapolis Roads, the Maryland Court of Special

Appeals had to decide whether the “the Strip,” a ten-foot strip of land located

between Lots 18 and 19 but wholly contained within Lot 19’s geographic

boundaries, was a roadway or a way. Id. at 767. The court did not struggle to

understand what features traveled with the land, but rather struggled to define

whether “the Strip” was a way, in which case the seller would retain no easement

over the way, or a roadway, in which case the seller would retain an easement. Id.

at 768. The ten-foot strip at issue in Annapolis Roads clearly fell within the

boundaries of Lot 19, so parties did not contest the geographic boundaries set forth

in the respective deeds. Id. at 752 & n.3. The majority is correct that the above-
 36

quoted deed language was referenced in the court’s analysis, but it was merely

used to assess whether the owner retained any “rights and interests in the beds of

roadways,” not whether title to the alley was actually conveyed through the deed.

Id. at 768.

In sum, I would affirm the trial court’s ruling that the deed is not ambiguous.

I would rely on well-established canons of contract construction and Maryland law

to reach this conclusion.

Land Purchase Agreement

The majority’s opinion correctly concludes that the land purchase agreement

does not merge with the deed but, in my view, errs in concluding that the

agreement’s description of the land is ambiguous.

The land purchase agreement is similar to the deed but differs in two

significant ways. First, the purchase agreement does not reference the non-existent

Tax ID Lot 877. Second, and more importantly, the purchase agreement states that

the property to be sold is approximately 3,027 square feet. The approximately

3,027 square feet measurement is important because the size of Lot 878, referenced
 37

in the purchase agreement, is smaller than 3,027 square feet. Regardless of the

exact discrepancy in square feet between Lot 878 and the 3,027 square foot

description, the parties intended the purchaser to bear the risk that the square

footage description may not match the legal description of the land. We need not

address whether this jurisdiction will adopt the Maryland “in gross presumption”

because the parties’ intent is clear from the purchase agreement.

The purchase agreement describes the relevant property as follows:

The subject of the property, known as 1230 9th Street
NW Washington D.C. 20001, is approximately 3,027 feet
of land improved with an approximately 3,893 square
feet building plus basement located in an area designated
as historic in the Election District 2, zoned C2A, and
legally described as Lots [sic] 878, Block/Square 0368,
Map 40 C in the public land records of the District of
Columbia together with the easements, rights,
appurtenances belonging to the same, and including
fixtures, furnishings, machinery, equipment owned by the
Seller situated on or about said property.

Lot 878 does not describe the entire land that was actually transferred to Sahrapour

because Lot 878 only corresponds to Lot 28 of the ALTA/ACSM Survey, but the

deed transferred both Lot 21 and 28 of the ALTA/ACSM Survey. Regardless of

the deviation of Lot 28’s square footage from the approximately 3,027 square foot
 38

description, the purchaser bore the risk of the inaccurate description.

The purchase agreement allocates certain risks to the purchaser with the

following provisions: “15. LOCAL VIOLATIONS; CONDITION AND

OPERATION OF PROPERTY . . . Purchaser has inspected the property, is fully

familiar with the condition thereof and Purchaser agrees to take the Property AS IS

as of the Date of Agreement.” The Addendum to the Real Estate Purchase

Agreement (Addendum) also allocates additional risks to the purchaser:

A. FEASIBILITY STUDY PERIOD. The purchaser
has a thirty (30) days Feasibility Study Period from the
date of this Agreement during which Purchaser can
inspect the Property, perform its studies, place financing
and perform ministerial duties to settle on the Purchase.
During this period, Purchase and its’ [sic] employees,
agents or contractors may enter into the Property upon
prior notice to the Seller for the purpose of inspecting the
Property, performing surveys, studies and ministerial
duties it determines are necessary to determine the
feasibility of purchasing the Property. Prior to the end of
this Period, Purchaser may upon written notice and
receipt by Seller or its’ [sic] Agent terminate this
Agreement in its’ [sic] sole judgment. . . .

D. CONDITION. The property is sold “as is” except for
specific representations and warrantees made by the Seller in
this contract.

The Addendum gave Sahrapour thirty days to inspect the property, Lot 28, and
 39

allowed Sahrapour to terminate the agreement whereby the deposit would be

returned. Since “approximately 3,027 square feet” is not a “specific representation

. . . made by the seller,” the purchase agreement and addendum place the burden of

surveying and inspecting the property on the purchaser, Sahrapour.

Because Sahrapour did not properly inspect and survey the property, which

would have revealed the size discrepancy, she now holds title to a piece of land

that may be smaller than what she subjectively intended to purchase. Any

additional land acquired through the deed is over and above what the parties

intended to transfer. The land purchase agreement stated that she would receive

Tax Lot 878 and, given that she signed an addendum which sold the land “as is”

and gave her permission to survey and inspect the land, she bore the risk that the

“approximately 3,027 square feet” description was not accurate. The fact that Tax

Lot 878 is not 3,027 square feet does not create an ambiguity in the description of

the property. I would not resort to extrinsic evidence to discern the intent of the

parties.5

5
Sahrapour would not acquire the disputed property through the doctrine of
equitable conversion because, in my view, the Land Purchase Agreement does not
intend to convey the disputed property, and in any event a valid deed was
executed. Under the doctrine of equitable conversion, this court “views a contract
of sale as immediately vesting the purchaser with beneficial ownership of the
realty, and limiting the property interest of the vendor to the promised
consideration . . . retaining legal title only as trustee for the purchaser until the
 40

Corrected Deed

Sahrapour contends that the “corrected” deed reflected a clerical edit

because it did not materially alter what was conveyed in the first deed. I do not

find that persuasive.

A deed is void when the attorney who drafted the deed exceeded his

authority under a general power of attorney. Smith v. Wells Fargo Bank, 991 A.2d

20, 26-27 (D.C. 2010). A “clerical error” is “[a]n error resulting from a minor

mistake or inadvertence and not from judicial reasoning or determination;

[especially] a drafter’s or typist’s technical error that can be rectified without

serious doubt about the correct reading.” Black’s Law Dictionary 659 (10th ed.

2014). “Among the numberless examples of clerical errors are omitting an

appendix from a document; typing an incorrect number; mistranscribing or

omitting an obviously needed word; and failing to log a call.” Id.

The inclusion of “* and a portion of Lot 22 as shown on the attached

deed of conveyance is delivered.” Trustee 1245 13th St., NW No. 608 Trust v.
Anderson, 905 A.2d 181, 184 (D.C. 2006) (emphasis added) (quoting Gustin v.
Stegall, 347 A.2d 917, 922 (D.C. 1975)).
 41

survey,” changing the Tax ID to include “and a portion of Lot 885,” and attaching

a new survey reveals that a labor requiring original thought was needed to arrive at

this edit. Merely changing “Lot 877” to “Lot 885” might be a clerical edit,

especially considering Lot 887 does not exist, but these intricate edits were not

indicative of mere clerical edits. Because Haas exceeded his authority under the

Power of Attorney, I would hold that the trial court correctly found the “corrected”

deed was void.

I respectfully dissent.6

6
Sahrapour has filed a legal malpractice claim against Haas which is stayed
pending resolution of the ownership of the disputed alley. Order to Stay,
Sahrapour v. Haas, No. 2011 CA 647 (D.C. Super. Ct. Aug. 30, 2011).