# In the United States Court of Federal Claims

No. 18

- 585 C

(Filed: April 2 1 , 2020)

KENNETH JOHN DIAS, JR.,

Plaintiff,

v.

UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Claim of breach of contract; cancellation of bid to buy residential property owned by HUD; failure to satisfy a condition precedent

to contract formation

Hughie Duvall Hunt, II, Kemet Hunt Law Group, Inc., Beltsville, Maryland for plaintiff.

Michael Duane Austin, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. for defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiff, Kenneth John Dias, Jr., alle ges that the United States, acting through the Department of Housing and Urban Development (“HUD” or “the government”)

, deprived him of the value of a residential property that he sought to purchase from HUD when the Department’s

agent arbitrarily canceled his bid on the property. The government , however, counters that plaintiff did not have an enforceable contract for the sale of property and did not incur any compensable damages. Pending before the court are the parties’ cross

- motio ns for summary judgment on two dispositive issues: (1) whether plaintiff had an enforceable contract; and if so, (2) whether plaintiff is entitled to damages for breach of contract. See Def.’s Mot. for Summary Judgment (“Def.’s Mot.”) , ECF No. 39; Pl.’s M ot. for Summary Judgment (“Pl.’s Cross

- Mot.”)

, ECF No. 43.2 BACKGROUND 1

Plaintiff, Mr. Dias, placed a bid to purchase the residential property located at 6103 Edward Drive, Clinton, Maryland 20735 (the “property”) on January 16, 2016. Transfer Compl. (“Compl.”) ¶ 10 , ECF No. 12

. 2 The property at issue was owned by HUD, wh ich was seeking to sell the property through its agent, HomeTelos, LP (“HomeTelos”). Compl. ¶ 10 ; Def.’s App. a t

1

- 2

. 3 HomeTelos listed the property for sale on January 12, 2016. Def.’s App. at 2. HomeTelos

received eighteen bids on the property, including one from plaintiff. Id. Mr. Dias’ bid was not originally accepted, but he was later informed that his bid was accepted on M ay 9, 201 6. Compl. ¶ 11; Def.’s App. at 51.

On May 12, 2016, Ms. Virginia Streva, an agent of HomeTelos, notified Mr. Dias that his bid for purchase did not contain all of the required element s

. See Def.’s App. at 53.

S pecificall y, Ms. Streva advised Mr. Dias that he needed to submit five missing contract components: (1) a deposit of earnest money; (2) initials on form HUD

- 9548; (3) a date on the Owner Occupant Addendum; (4) three sets of initials on the Lead Based Paint Addendum; and (5) a “Lender Let ter” containing “the buyer’s name, loan/purchase amount, loan type, and a statement that the buyer’s credit has been reviewed.” Id

. These revisions were to be submitted to HomeTelos by May 13, 2016. Id. Mr. Dias submitted the deposit, the initialed HUD form, and the dated Owner Occupant Addendum to HomeTelos on May 13, 2016. Id. at 54. As for the Lead Based Paint Addendum, Mr. Dias averred that HUD “did not provide any copies of record s and reports pertaining to the property” so he would not initial h aving received them on the form.

Se e id. Additionally, he requested “another day or two to get the Lender’s Letter,” because although he initially planned to pay all cash for the home, he had used some of that money to purchase another home after his initial bid was not accepted, and now needed a loan for the

balance

. Id

.

HomeTelos never affirmatively accepted or denied Mr. Dias’ request for an extension of time in which to provide the Len der Letter. HomeTelos did, however, send Mr. Dias’ agent a copy of the most recent Lead Based Paint Inspection on the property

. See Def.’s Mot. at 3;

1 The following recitations do not constitute findings of fact by the court. Instead, the

recited factual elements are taken from the complaint, the parties’ cross

- motions

, associated briefing

, and appended exhibits. No material factual disputes are involved.

2 Plaintiff’s case was originally filed in Maryland state court and then was removed to federal court by the government before being transferred to this court. Se e generally Transfer

Order

, ECF No. 1.

3 Both plaintiff and defendant submitted exhibits attached to their motions for summary judgment. Defendant’s exhibits were consecutively paginated and will be cited as “Def.’s App. at [page number] .” Plaintiff’s exhibits were not consecutively paginated, and as such, will be

cited as “Pl.’s App. at [page number],” with the page number refer ences to the electronic PDF page number.3 Def.’s App. at 3. 4 Three days after Mr. Dias’ response, that is

, on May 16, 2016, HomeTelos

contacted Mr. Dias seeking the signed Lead Based Paint Addendum, which plaintiff had not yet completed. See Def.’s App. at 59 (“I have not received the [ Lead

- Based Paint] correction. If I

do not receive it in the next 30 minutes th is bid will be canceled.”). Mr. Dias returned the signed

Lead Based Paint Addendum to Home Telos later that day, although after more than thirty minutes had passed. See id. at 60

- 62. On May 18, 2016, i.e. , t wo days later and five days after

Mr. Dias requested a one

- to

- two

- day extension of time to provid e the Lender Letter to

Hom e Telos, he still had not provided a Lender Letter or proof of the source of financing. See id.

at 3. HomeTelos informed Mr. Dias that day that his bid was cancelled, stating that contract “revisions [were] not received” as the reason for the cancellation. Id. at 63.

The property was put up for sale once again, this time through Sage Acquisition s acting as the agent for HUD. Def. ’ s App. at 3. Sage Acquisitions “sent a counter offer to [p] laintiff’s agent via email on May 24, 2016. Neither [p] laintiff nor his agent responded to the counter

offer.” Id. On May 25, 2016, Sage Acquisition accepted a bid on the property from another buyer and the contra ct for sale was fully executed on May 31, 2016. See id.

Upon transfer from the United States District Court for the District of Maryland,

p laintiff’s complaint was file d in this court on July 5, 2018. See generally Compl

. In his complaint, plaintiff a vers that his “bid was accepted” and that he “complied with all terms of the contract to buy real property.” Compl. ¶ 1. Plaintiff alleges th at the government “breached the terms of the [contract for sale] by refusing to sell the [p]roperty to [him] after [he] complied with the terms of the agreement.” Compl. ¶ 24. As relief, plaintiff seeks damages of lost profits, compensatory damages, and attorney’s fees. Compl. at 8. 5

Defendant filed its motion for summary judgment on December 18, 2 019, see Def.’s Mot., and plaintiff filed his cross

- motion for summary judgment on January 27, 2020, see Pl.’s

Cross

- Mot. Briefing was completed on March 13, 2020, see Def.’s Response and Reply to Pl.’s Mot. (“Def.’s Reply”), ECF No. 44; Pl.’s Reply, ECF No. 48, and a hearing on these motions was held on April 9, 2020. The case is ready for disposition.

4 Plaintiff disputes Hom e Telos’ handling of the report of the lead paint inspection. See,

e.g. , Pl.’s Cross

- Mot. at 6 (“Defend ant never provided the [p] laintiff with a Lead Based Paint Inspection.”). However, whether plaintiff himself specifically reviewed the lead

- based paint inspection records is of no matter, because plaintiff signed the acknowledgement that he received

the l ead

- related records and reports for the property, see Def.’s App. at 62. Plaintiff’s signature on the acknowledgement nullifies any claim by plaintiff that he did not receive or review the

lead

- based paint inspection report.

5 Plaintiff also seeks specif ic performance of the contract. Compl. ¶¶ 33

- 37 (Count II). This court, however, lacks jurisdiction to grant specific performance, as it is an equitable remedy. See United States v. King , 395 U.S. 1, 3 (1969). Therefore, the court DISMISSES

Count II of the complaint relating to specific performance for lack of subject

- matter jurisdiction.4 STANDARDS FOR DECISION

S ummary judgment shall be granted “ if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” R ule 56(a) of the Rules of the Court of Federal Claims (“RCFC”)

. A material fact is one that “might affect the

outcome of the suit.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) (interpreti ng Fed. R. Civ. P. 56)

. 6 A genuine dispute exists when the finder of fact may reasonably resolve the dispute in favor of either party. Id. at 250.

The movant bears the burden of demonstrating the absence of any genuine disputes of material fact, s ee Cel otex Corp. v. Catrett , 477 U.S. 317, 32 2 (1986), and shall “cite[] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials,” RCFC 56(c)(1)(A). The c ourt may consider other materials in the record even if not cited by the parties . RCFC 56(c)(3). “[T]he inferences to be drawn . . . must be viewed in the light most favorable to the party opposing the motion

. ” Matsushita Elec. Indus. Co. v. Zenith

Radi o Corp. , 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). If the record taken as a whole “could not lead a rational trier of fact to find for the

non

- moving party, there is no ‘genuine issue for trial’” and summ ary judgment is appropriate.

Matsushita , 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 289 (1968)).

When both parties have moved for summary judgment, “the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Mingus Constructors, Inc. v. United

States , 812 F.2d 1387, 1391 (Fed. Cir. 1987) (citation omitted). “The fact that both parties have moved for summary judgment does not mean that the court must grant judgment as a matter of

law for one side or the other.” Id. “To the extent there is a genuine issue of material fact, both

motions must be denied.” Marriott Int’l Resorts, L.P. v. United States , 586 F.3d 962, 969 (Fed. Cir. 2009).

ANALYSIS

The dispositive issue in this case is whether plaintiff had an enforceable contract with the government for the sale of its property. Based on the undisputed facts, plaintiff failed to satisfy

all co nditions precedent to formation of a contract. “[A] condition precedent is one which must happen before either party becomes bound by the contract.” Jones v. United States , 96 U.S. 24, 28 (1877) (ruling on appeal from the Court of Claims) ; see also Park Props. Assocs., L.P. v.

United States , 82 Fed. Cl. 162, 169 (2008) (quoting 13 Richard A. Lord, Williston on Contracts § 38:7 (4th ed. 2000)). Because not all of the conditions precedent to the contract were met, neither party is bou nd and plaintiff canno t claim that the cancellation of his bid was a breach.

6 Because RCFC 56 mirrors Fed. R. Civ. P. 56, the rules should be interpreted in pari

materia

.5 Before a contract for the sale of t his property could be formed, numerous conditions had to be met by plaintiff

. S ee Pl.’s App. at 106 ( contract checklist) . Five of those conditions were specifically identified by Home T elos in its letter o n May 12, 201 6 to plaintiff as not having been

satisfied as of that date : (1) a deposit of earnest money; (2) initials on form HUD

- 9548; (3) a date on the Owner Occupant A ddendum; (4) three sets of initials on the Lead Based Paint Addendum; and (5) a “Lender Letter” containing “the buyer’s name, loan/purchase amount, loan type, and a statement that the buyer’s credit has been reviewed.” Def.’s App. at 53. These r equiremen ts were to be submitted to HomeTelos by May 13, 2016. Id. Plaintiff took the necessary steps to
meet the first three conditions on May 13, 2016

, but the last two remained un satisfied

. See id. at

54. On May 16, 2016, plaintiff sent the completed and sig ned Lead Based Paint Addendum to HomeTelos, see id. at 60

- 62, therefore satisfying the fourth condition. The last condition, that plaintiff provide HomeTelos with a Lender Letter to show proof of financing, was never satisfied. Because plaintiff ’s provi s ion of the Lender Letter to HomeTelos was a condition precedent to contract formation, no contract was ever formed between plaintiff and HomeTelos for the sale of the property. See Jones

, 96 U.S. at 28 (citing Governeur v. Tillotson , 3 Edw. Ch.

348 (N.Y. Ch. 1839 ) ) (“[A] party bound to perform a condition precedent cannot sue on the contract without proof that he has performed that condition.”).

Plaintiff unavailingly focuses his arguments on the Lead Based Paint Addendum. Specifically, plaintiff argues that “ [d] efendant never provided the [p] laintiff with a Lead Based Paint Inspection” and that “ [d] efendant terminated the bid because the [p] laintiff did not sign a form indicating that he had been given a copy of the Lead ba sed paint Inspection Report” within the thirty

- minute deadline set by HomeTelos in its letter to plaintiff on May 16, 2016. Pl.’s

Cross

- Mot. at 6 (capitalization in original)

. Ev en if the Lead Based Paint Addendum condition

was considered to have been me t by plaintiff in a timely fashion, it is undisputed that plaintiff

failed to submit the Lender Letter , a required condition precedent to contract formation

. Therefore, plaintiff is unable to sue on the contract because defendant owed no duty to complete

the sale.

CONCLUSION

For the reasons stated, the government is entitled to summary judgment. Defendant’s motion for summary judgment is GRANTED and plaintiff’s cross

- motion is DENIED. The clerk is directed to enter judgment accordingly. 7

No costs.

I t is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Senior Judge

7 As noted previously, Count II of the complaint is dismissed for failure to state a claim upon which relief can be granted. Additionally, t he clerk is directed to STRIKE from the docket plaintiff’s filings at ECF Nos. 51 and 54, as they were filed by plaintiff mistakenly.