Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16

- CV

- 114

M ARYAM A SHRAFI , A PPELLANT ,
V
. L EONARDO D ANIEL F ERNANDEZ , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( CAB

- 3 623

- 14 ) (Hon. Maurice A

. Ross , Trial Judge) ( Submitted December 20, 2016 Decided September 6, 2018 ) Mark F. Werblood for appellant. B. Marian Chou for appellee.
Before E ASTERLY , Associate Judge , and W ASHINGTON ∗ and F ERREN , Senior Jud ge s .

∗ Judge Washington was Chief Judge at the time of a rgument. His status changed to Senior Judge on March 20, 2017.2
E ASTERLY , Associate Judge : Appellant Maryam Ashrafi sued appellee Leonardo Daniel Fernandez , her former boyfriend, for breach of an oral contract to
repay a $7500 loan she made to him with the understanding that it would help him pay for his cancer treatment

. To prove her case at her bench trial, Ms. Ashrafi testified about her oral agreement with Mr. Fernandez and submitted as exhibits bank records showing a withdrawal of $7500 and text messages with Mr. Fernandez about a transfer to him in the sam e amount

. Mr. Fernandez testified in his own defense and denied receiving any money from Ms. Ashrafi, discussing a loan with her, having cancer, or telling her that he had cancer. The trial court
issued its verdict via a written order consisting of “find ings of fact”

— better described as a recitation of witness testimony

— and “conclusions of law,” in which it determined that Ms. Ashrafi had “not carr [ ied ] her burden of establishing a contractual relationship between the parties.” On appeal Ms. Ashrafi argu es the trial court erred (1) “ by not following its [p]retrial [o]rder” which identified Mr. Fernandez’s defenses and did not include a failure

- to

- prove - the

- elements

- of

- a contract argument , (2) by failing to assess Mr. Fernandez’s credibility after he was
i mpeached with a prior conviction for petty larceny; and (3) by “ determining that [ Ms. Ashrafi ] did not present any documentary evidence and [by] not addressing [her] nine (9) exhibits admitted into evidence. ” For the reasons discussed below ,3

we agree that the trial court’s judgment must be vacated, and we remand the case for further consideration consistent with this opinion.

We quickly dispense with Ms. Ashrafi’s first argument that the trial court erred by considering whether she had proved the elements of an enforceable oral contract when the legal insufficiency of her evidence was not specifically identified either in Mr. Fernandez’s Answer or in the pretrial order as one of his defenses (instead he disclaimed ever receiving any money from Ms. Ashrafi) . We review this legal argument de novo, Strauss v. NewMarket Global Consulting Grp ., 5 A.3d 1027, 1032 (D.C. 2010), and reject it. Regardless of the defenses raised by Mr. Fernandez, Ms. Ashrafi, as the plaintiff, bore the burden to prove her breach of contract claim. 1 Id. at 1033 (“The party asserting the existence of the oral contract has the burden of proving that an enforceable agreement exists.”). As the court acknowledged in its Findings of Fact and Conclusions of Law, the elements of an oral con tract are (1) an agreement to all material terms and (2) intent of the parties

1 To the extent that Ms. Ashrafi is arguing that Mr. Fernandez waived any challenge to her failure to state a claim by not raising it pre - trial as a defense , this argument fails. See Arbau gh v. Y&H Corp. , 546 U.S. 500, 507 (2006) (“Under Rule 12(h)(2), th[e] objection [failure to state a claim upon which relief can be granted] endures up to, but not beyond, trial on the merits: a defense of failure to state a claim upon which relief can be granted may be made in any pleading or by motion for judgment on the pleadings, or at the trial on the merits.”) (internal quotation marks and ellipses omitted). Accord , Super. Ct

. Civ. R. 12 (h)

.4
to be bound. Order at 5 (quoting EastBanc, Inc. v. Georgetown Park Associates, II, L.P. , 940 A.2d 996, 1002 (D.C. 2008) )

. See also New Econ. Capital, LLC v. New Mkts. Capital Grp

. , 881 A.2d 1087, 1094 (D.C. 2005) (“[T]he alleged oral agreement must meet the dual requirements of intent and completeness.”) (internal citations, brackets, and quotation marks omitted). The court correctly understood that it was obligated to assess whether Ms

. Ashrafi had proved the existence of an oral contract. Thus, t he court did not err when it analyzed whe ther there was, in fact, an enforceable oral contract between the parties.

We are troubled , however, by the court’s determination that Ms. Ashrafi did not prove the existence of such a contract

. Reading the trial court’s final order, it is difficult to understand the basis on which the court ruled

. S ee Wright v. Hodges , 681 A.2d 1102, 1105 (D.C. 1996) (noting that “[u]nder Super. Ct. Civ. R . 52(a), the trial court in a nonjury case is required to state sufficient findings of fact and conclusions of law to permit meaningful appellate review”)

. It may be that the
court concluded that, even crediting Ms. Ashrafi’s testimony, she failed to prov e the elements of an oral contract by the requisite preponderance of the evidence

. 2

2 See Myrick v. Nat'l Sav. & Tr. Co. , 268 A.2d 526, 527 (D.C. 1970) (“ In a civil case, the burden of proof required is a fair preponderance of the evidence .”); see also Summerbell v. Elgin Nat’l Watch Co. , 215 F.2d 323, 323 (D.C. Cir. 1954) (affirming trial court ruling that plaintiff “ha [d] not established by a preponderance (continued...)5
O r it may be that the court made factual findings adverse to Ms. Ashrafi that led it to conclude that her narrative addressing these elements was not credible

. E ither
way , for the reasons Ms. Ashrafi highlights in her brief, we are unable to affirm.

The trial cour t may have determined that, even crediting Ms. Ashrafi’s testimony, the evidence did not support a finding by a preponderance of the evidence that she had an en forceable oral contract with Mr. Fernandez. Reviewing this legal issue de novo, Thai Chili, Inc. v. Bennett , 76 A.3d 902, 909 (D.C. 2013),

we cannot agree that Ms. Ashrafi’s evidence, if credited, was legally deficient

. Ms. Ashrafi presented evidence in the form of her own testimony and supporting documentation; and this evidence, if credited, sufficed to show that she and Mr. Fernandez had agreed to the material terms of a short

- term loan and had an intent
to be bound by them

.

(...continued) of the evidence an oral agreement”) ; cf. Brown v. Brown , 524 A.2d 1184, 1189

– 90 (D.C. 1987) (concluding that “a claimant against a sibling ’ s estate for the reasonable value of services performed for that sibling during his or her lifetime s hould have the burden to demonstrate, by a preponderance of the evidence, the existence of either an express or implied agreement that he or she expected to be paid and that the decedent intended to make payment ” and noting that requiring

“ ‘ clear and convi ncing ’ evidence of a contract

. . . would create too difficult a barrier for recovery where it is merited, indeed a barrier higher than is common in civil litigation ”) (internal citation omitted)

.6 Specifically, Ms. Ashraf i testified that in September 2013, she and Mr. Fernandez had an oral agreement that she would lend him $7500 in cash

. She explained that she had money “ sitting in a bank waiting for my home to be built ” and she offered to lend it to Mr. Fernandez with th e understanding he was going to

use it to pay for cancer treatment

. He initially refused the loan but , a few days later, told her “I do need that money.” Ms. Ashrafi submitted bank records showing that, on September 18 (a Wednesday), she transferred $750 0 from her brokerage account to her checking account

. She also submitted a text exchange with Mr. Fernandez informing him of the transfer. Her text stated: “I . . . transferred $7500 to my bank account. When do you want the money order or can
I write a check?” He responded: “Thanks babe. I can buy the money order[.] If you want you can give the check tomorrow. . . . I will call them to let them know that Friday [I’]ll pay thanks love.” Ms. Ashrafi testified that Mr. Fernandez later told her that he did not want to inconvenience her by requiring her to get a money order and that he could not wait for a check to clear because he needed to submit the money toward his treatments that Friday. Her bank statement shows a teller withdrawal of the same amoun t the next day (Thursday) . Ms. Ashrafi also testified that, after withdrawing the funds, she met Mr. Fernandez at his apartment and placed the c ash on top of his dresser. Mr. Fernandez put the money in the top drawer before they went out to dinner.7

Ms . Ashrafi further presented evidence that she and Mr

. Fernandez both
understood that the $7500 was a short

- term loan

. Ms. Ashrafi testified that she and Mr. Fernandez had numerous discussions about him repaying her . Initially , he told her he would repay her by asking his mother to sell some land in Bolivia (where his mother lived)

. Later , he told her that his mother also had cancer but that his plan was still to repay Ms. Ashrafi with a Bolivian land sale. Ms. Ashrafi testified she did not make a demand for payment until a few months after the relationship ended ; at that point she needed the money because her house had been completed

. She submitted copies of her text messages and emails documenting her requests for repayment.

It is unclear how the tr ial court accounted for this evidence in its verdict

. Examining the trial court’s findings of fact, we note that the court simply document ed the “he said; she said” testimony of both parties 3 and never cited , much less detailed , Ms. Ashrafi’s documentary exhibits. Likewise , in its

3 Accordingly , the portion of the court’s order labeled “f indings of fact” is fundamentally lacking; it fail s to incorporate credibility determinations and resolve factual conflicts. See B LACK ’ S L AW D ICTIONARY (defining “fact

- finding” as “[t]he process of considering the evidence presented to determine the truth about a disputed point of fact”).8
conclusions of law the trial court continued to altogether ignore these materials and , in addition , incorrectly faulted Ms. Ashrafi for failing either to proffer evidence “ corroborat [ ing ] ” her testimony that she made the loan o r to “create a paper record of the purported loan.”

Furthermore, the trial court ’s reasoning is flawed in multiple respects. First,

w e are unaware of any corroboration requirement to prove an oral contract

. S econd, Ms. Ashrafi did provide corroboratio n , in the form of text messages and bank records, as detailed above

. And third , given that Ms. Ashrafi’s claim was that Mr. Fernandez had breached an enforceable oral contract, a legitimate cause of action in the District, 4 the fact that she did not have a signed written agreement was not an appropriate reason to conclude she had failed to prove her case

.

It may be, however , that the court made factual findings adverse to Ms. Ashrafi which led it to conclude that her narrative ( that she had an oral cont ract to loan Mr. Fernandez $7500 ) was not credible

. If that is the case, we run into other difficulties. We review factual findings for clear error. Thai Chili , 76 A.3d at 909.

4 See, e.g. , New Econ. Capital , 881 A.2d at 1094; Jack Baker, Inc. v. Office Space Dev. Corp. , 664 A.2d 1236, 1238 (D.C. 1995) (“[P]arties may enter into enforceable oral contracts, as long as they agree to all materia l terms and intend to be bound by their agreement.”).9 “A finding is clearly erroneous when . . . the reviewing court on the entir e evidence is left with the definite and firm conviction that a mistake has been committed.” Abulqasim v. Mahmoud , 49 A.3d 828, 834 (D.C. 2012) (internal quotation marks omitted) . We are left with such a conviction in this case when we examine the
court’ s determination that “all testimony pro f fered at trial suggests that [Ms, Ashrafi] was not convinced [Mr. Fernandez] even had cancer. ” 5 This finding , in the trial court’s view , “ coupled with [ Mr. Fernandez ] ’s ins is t e nce that he never had

cance r or claimed to have an illness, undermine [d] any credible notion of the parties en tering into a loan agreement.”

The court’s predicate finding that Ms. Ashrafi knew Mr. Fernandez was not sick is based on a manifest misunderstanding of the record evidence

. The rec ord
reflects that Ms. Ashrafi testified that she believed Mr. Fernandez had cancer, that his cancer story induced her lend him money , and that it was only in hindsight that she realized that he had not looked or acted like someone with cancer and that she had been duped. Indeed, counsel asked Ms. Ashrafi explicitly, “[f]rom observing Mr. Fernandez, did you see

— after you lent the money , did you see any evidence of illness that Mr. Fernandez had? You know, cancer or a related illness?” Ms.

5 We focus on this determination because the trial court devoted the first of only three paragraphs of analysis to it.10 Ashrafi responded , “No. Now that I think back . . .,” and then recounted details about Mr. Fernandez that she now recognized were inconsistent with a cancer diagnosis

. She explained that , at the time , “it just never clicked.”

Moreover, to the extent the court discred ited Ms. Ashrafi’s testimony because it was not , in the court’s view, properly corroborated, the court’s decision

making is again compromised by its failure to account for her exchange of text messages with Mr. Fernandez. 6 In these messages , Mr. Fernandez thanked Ms. Ashrafi for transferring money from her brokerage account to her checking account (on Wednesday, September 18) and then told her she could give him the money
“tomorrow” (Thursday) and he would then “call them to let them know that Friday [I’]l l pay.” This documentary evidence confirms multiple aspects of Ms. Ashrafi’s testimony regarding the loan agreement: the amount of the alleged loan, the movement of money between accounts, and the explanation Mr. Fernandez gave about his plan to use the money to pay for his cancer treatments

. Notably, Mr. Fernandez, who took the stand and denied receiving any money from Ms. Ashrafi ,

6 The trial court also seemingly disregarded the testimony Ms. Ashrafi present ed from her friend, Victor Criales, who said that she had similarly informally lent him money to tide him over during a bad time

. Mr. Criales further testified that Ms. Ashrafi is a “pretty giving” individual and “probably one of the most trustworthy peop le [he] know[s].”11 never provided any explanation for his text exchange about the loan with Ms. Ashrafi

.

Lastly, on the subject of Mr. Ferna ndez’s testimony, we note that the trial court never addressed his credibility, even indirectly

. A significant part of a trial
court’s fact

- finding role is making credibility determinations, particularly where, as here, a defendant opts to take the stand and challenges the plaintiff’s narrative of
events. To engage in fact

- finding without making cred ibility determinations is both ineffectual and noncompliant with court rules

. See Super. Ct. Civ. R. 52 (a) (generally requiring trial courts to issue findin gs of fact and conclusions of law that “state the controlling factual and legal grounds of decision” and noting that “due regard” must be given “to the trial court’s opportunity to judge the witnesses’ credibility ” ); see also Wright , 681 A

. 2d at 1 1 05 (quot ing Rule 52).

For the reasons set forth above, we cannot affirm the judgment of the trial
court. Accordingly, we reverse and remand the case to allow the court to consider all of the evidence presented; to make proper findings of fact on each materia l l y contested issue, including credibility determinations of all witnesses; and to assess whether Ms. Ashrafi proved her breach of contract claim by a preponderance of the evidence

.12

So ordered

.