Vikramaditya Railan v. Jagdish K. Katyal
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Notice: This opinion is sub ject to formal revision befo re publication in the Atlantic and Maryland Reporters. Users a re requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 96-CV-1711 V IKRAMADITYA R AILAN, et al., A PPELLANTS, v. J AGDISH K. K ATYAL, et al., A PPELLEES. Appeal from the Superior Court of the District of C olumbia (Hon. Stephen G. Milliken, Trial Judge) (Argued April 22, 1998 Decided February 15, 2001) David G. Leitch, with whom Audrey J. Anderson was on the brief, for appellants. Leonard L. McC ants for appellees. Before SCHWELB, K ING* and R UIZ, Associate Judges. Opinion for the Court by Associate Judge R UIZ. Opinion concurring in part and dissenting in part by Associate Judge S CHWELB at p.37. R UIZ, Associate Judge: This is an appeal from the judgment on a jury verdict awarding compensatory and punitive damages for breach of an oral contract and fraudulent misrepresentation and from the trial court's denial of a counterclaim for a deficiency judgm ent. W e affirm in part an d rever se in pa rt. * Judge King was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on November 23, 1998. 2 I. Statement of the Case Appellees, Jagdish ("Jack") Katyal and his wife, Mohana Katyal, sued appellants, Vikramaditya ("Vik") Railan and h is wife, Dr. Veena R ailan (the Railans), for breach of contract, fraudulent m isrepresenta tion, and inju nctive relief to halt a foreclosure sale on a building housing the Katyals' restaurant, The Tandoor, in Georgetown. The dispute stemmed from an alleged oral agreement that the Railans would purchase a bank note secured by that building on which the Katyals had defaulted, and forbear on foreclosure in exchange for certain interest paym ents, the outsta nding deb t, and a bonus. After appellants, the Railans, foreclosed and bought the property at the foreclosure sale, they filed a counterclaim seeking a deficiency judgment equaling $150,000 (the difference between the amount outstanding on the bank note and the amount for which the Railans purchased the property at foreclosure), plus all interest, taxes, liens, assessments, fines, fees and other miscellaneous costs relating to the property. The R ailans also filed a complaint in the Landlord-Tenant Division for possession of the building housing the restaurant due to the K atyals' failure to vacate the building after having received a notice to quit from the Railans. After a series of m otions to am end, for sum mary jud gment, an d to exclud e certain evidence (discussed below where relevant), the complaints were consolidated and the case was tried before a jury. After the trial court denied the Railans (noteholders) motion for 3 directed verdict, the jury found for the Katyals (debtors) and awarded $728,080.70 in damages on the brea ch of con tract claim, w hich was exactly the a mount o wed by the Katya ls to the Railans on the note the day the Railans purchased the n ote from the bank . The jury also awarded $50,250 in compensatory damages from each of the Railans on the fraud claim; and an additional $50,250 from each of them in punitive damages. Because the parties had agreed prior to the verdict that the ju ry's verdict would resolve the Railans landlord-tenant complaint for possess ion and co unterclaim for deficienc y judgm ent, the trial court entered judgment for the Ka tyals on thes e issues. Th e Railans m oved to set aside the ju dgmen ts in favor of the Katyals, and for judgment as a matter of law or a new trial. The Railans argued they were entitled to judgment as a matter of law because the statute of frauds precluded enforcement of the alleged ora l contract, and the eviden ce was in sufficient to prove fraud by clear and co nvincin g evide nce. The trial cou rt denied the motion a fter consider ing it under Rules 50 (b) (motion for judgment as a matter of law), 59 (b) (motion for a new trial), and 59 (e) (motion to amend or alter judgment). The Railans appeal both the judgment on the verdicts and the order de nying post-trial relief. II. Statement o f Facts Jack Katyal, once the successful owner of many restaurants in various east coast cities, had fallen on hard times, and filed for bankruptcy in 1992. Katyal and his wife owned 4 the Tandoor restaurant and the building in Georgetown where it was located, as well as several other properties. After filing for Chapter 11 bankruptcy, the Katyals' bank s were foreclosing on many of the properties on which they had defaulted. Although the Katy als had defaulted on the note held by First Union Bank for the Tandoor property, the bank had not foreclosed on the note, an d the Katyals we re seeking someone to purchase the note on terms which would enable them to continue to operate the restaurant, collect rent from various commercial and residential tenants in the building, and pay off the note in two years. Jack Katyal and Vik Railan met at a party at the Tandoor restaurant Katyal testified the party wa s at the "end of Septem ber" 1993 , while Ra ilan testified it was a N ew Y ear's party on January 8, 1994. Railan, an investor in real estate, and Katyal began to discuss the possibility of Railan purchasing Katyal's propertie s at foreclosu re sales. Railan quickly purchased one of Katyal's properties, and the two began to meet frequently to discuss the possibility of Railan purchasing the note on the Tandoor restaurant property. Katyal and Railan gave differing accounts at trial of the negotiations which followed. Katyal testified that he told Ra ilan that "there a re two gu ys trying to help me purchase" the bank note on the Tandoor restaurant property, and that one man in particular proposed that he would purchase the note from the bank at a discount, then charge Katyal that amount over two years at nine and a half p ercent. Katyal stated that Railan called him back a few days later , in ea rly A pril 1 994, saying " Jack , don 't go to this loan shark and things. . . . I think I 5 will be able to h elp you to buy this note from the bank and I will give you two years and I'll never shape [sic] at your bank." Katyal further testified, "I think it was mutual understanding and Mr. Railan and me, that he will foot the note because he's the one who suggested me not to go to his loan shark, y ou kno w." Katyal summarized the terms of the deal he contends were agreed upon with Railan: Pay him back [the discounted purchase price of the note] and plus the hundred thousand dollars, two years was the maximum period. . . . [I]f I could not pay him off five fifteen plus the hundred thousand dollar within two ye ars he has a ll right to foreclo se me . . . . I will pa y him nine an d a half p ercent. Katyal also stated that he and Railan had agreed that Katyal w ould pay o ne mon th back taxes and one month current taxes on the proper ty. Katyal said that he then faxed to his loan officer at the bank, Kelly Parden, a letter telling Parden to negotiate with Railan for purchase of the note.1 Katyal also testified that he and the bank informed Rail an of Ka tyal's financial situation and property taxes owed on the Tandoor restaurant building, and that Railan himself had sought Katyal's Chapter 11 documents from the court. Katyal stated that there were many on-going meetings about K atyal's debts and restructuring plans.2 1 Kelly Parden testified that on May 17, 1994, about one month after he began negotiations with Railan, but before Railan purchased the note in September 1994, Katyal referred one other possible purchaser of the note to the bank. There was no evidence presented o n wheth er there wa s any follow -up on K atyal's referral. 2 On cross-examination Katyal admitted that he understood that the bank could have sold the note on the Tandoo r restaurant p roperty to an yone, w ith or without his permission. 6 Katyal described th e close pers onal relationship that developed during this period between the two men: that they spoke frequently, Railan referred to him by the affection ate Indian term fo r "big br other," and that Railan's wife, Dr. Veena Railan, had treated him one night in late July or early August 1994, when he suffered from high blood pressure. Katyal said that the very next morning, Railan called him and said: Don 't worry about th e prope rty, I'm b uying t he note . I had discussed with the b ank and I'm going to give you two years to restructure your loan and things and . . . all of things we have discuss ed . . . Katyal finally described the events of late September 1994, after Railan purchased the note from the bank a t a discounted rate of $515,000 (the face amount due on the note was $700,000). Katyal said that Railan did not see him for approximately one week after the purchase and that when he arrived at the Tandoor restaurant on September 29, Railan first asked Katyal to sign a letter recognizing that Railan had purchased his note. Katyal further testified: I said, yo u know , I don't have objection to sign it. What about my note? He says, let me write that and I can we can work on that note also. So, we started . . . he was start [sic] writing how much would b e nine and a half percent for four hundred fifteen thousand dollar [sic]. An d I says [sic] y ou wan t to write that note with hand too? He says no, why don't you come to my home this evening? I like to write this note in front of my father-in-law and my wife. Katyal testified that when Railan w ent to pick him up that evening, Railan asked for 7 the paper with the calculations he had done earlier that day. Katyal said that when he told Railan he had thrown the paper away, Railan informed him: I am not going to give you two years any more, because I decided to foreclose you. Katyal testified that Railan claimed to be follow ing his la wyer's a dvice. During that conversation, Railan received a call on his car phone from some one Katyal believed was Dr. Railan, and that Railan explained that, yes, "he had told Mr. Katyal that, and he is kind of upset and things, you know." Katyal further discussed a meeting between the men facilitated by a leader in the Indian comm unity, Dr. Sin gh, in wh ich Katya l sought to convince Railan not to foreclose on the property. At that meeting, Katyal testified, Railan offe red that he w ould not fo reclose in exchange for the Tandoor restaurant s liquor license, but Katyal explained that there was already a lien on that license. At the foreclosure sale, on November 1, 1994, Railan was the only bidder on the property, which he purchased for $550,000. As owners of the property, the Railans sought to obtain possession of the property from the Katyals and a deficiency judgment in the amount of $150,000, the difference between the face amoun t due on the note and the purcha se price of the fo reclose d prop erty. Rail an's counsel neared the end of his cross-examination of Katyal by asking, "When are you alleging that fraud was perpetrated on you?" That question prompted the following answer and exchange: [Katyal] Actua lly, the 29 th of Se ptemb er. Then he asked me to 8 give him the piece of paper and I said I don't have it and I throw it away [sic], and then, the one next minute he told me he has indicated to his lawyer to forec lose me [sic]. Q. So, . . . your testimony is not that the fraud wa s his indication to you that he wanted to help you in purchasing this property and give you tw o years an d so on an d so forth, an d . . . that somehow the fraud w as some thing else w hen he refu sed to write a piece of paper. A. Yes, because, I don't know what is in his mind. Maybe he would have been sincere to m e. I'm not say ing that he w asn't. . . . Obviously, it shows that, you know the record show s . . . that was happened is intention [sic], because he knew everything about taxes and things, what was going on. The final questions addressed to Katyal on cross-examination concerned Dr. Railan: Q. Dr. Railan over here, other than speaking to her on the phone occasiona lly and he [sic] never talked in terms of this deal, is that correct? A. No sir, I d idn't. Q. And you a re not claiming that she ev er did anything to defraud you? A. No. Q. That she ever made any representation to you to defraud you? A. No sir. I am no t saying [sic]. Katyal also introduced testimony by three other members of the Indian co mmu nity 9 who spoke of the alleged deal between Katyal and Railan, and of the bank officer, Kelly Parden. Ragibommanalli Sundaresh testified that he sat at a table at the Tandoor restaurant when Katyal rec ited the terms of the agree ment w hile Railan liste ned and " nodded in agreem ent" without saying anything. Katyal's brother, Suresh, also testified that while he was working at the restaurant, he overheard the conversation testified to by Sundaresh. Dr. Singh testified about the meeting he arranged between Katyal and Railan, and Rail an's answer to Dr. Singh s question a bout wh ether Katy al and Railan had an understanding: Mr. Railan said, in a way, he did. There was not[h]ing i[n] writing, but i[n] a way, he did. He didn't categorically tell that he had agreed and the re was a written unders tanding . Dr. Singh testified that Railan told him he had changed his mind because he learned that there were serious finan cial problem s with Jack . . . and this w as a strictly a b usiness dec ision, had no thing to do with his friendship and he says that to protect himself, what he learned subsequent to that understanding arrangement, he had to go fo r foreclo sure. Kelly Parden, the bank officer, testified that three potential purchasers of the bank note on the Tandoor restaurant building other than Railan pursued negotiations with him. Parden stated that he told R ailan in their first discussion that he, Parden, would need consent from Katyal before they could negotiate further. Parden nevertheless conceded on cross- 10 examination that if a purchaser arrived at the bank prepared to buy the note, the ban k would have sold the note without seeking Katyal's permission. Parden testified that Railan told Parden that he would "give [Katyal] two years," and that Parden had spoken with Railan several times about the taxes due on the property. Parden claimed that the bank received a letter from R ailan in which Railan ackno wledg ed Ka tyal's outs tanding tax deb t. A redacted copy of that letter was introduced as evidence. Parden also stated that on the day Railan purchased the note on the Tandoor restaurant building, Railan "was looking for reassurance that his right to foreclose was still in place." Vik Railan and Dr. Railan testified in their own defense. In essence, Railan denied that he and Katyal ever agreed on terms under which Railan would forbear from foreclosing if he purchased Katyal s note to the ba nk, and testified tha t Railan had not planne d to foreclose on the note until he learne d that Katy al had no fu nds or inten tions of pay ing his property taxes on the Tand oor building , and that if the c ity foreclosed on the build ing due to the tax debt, the c ity had priority over his ba nk note, an d he could lose his inve stment. 3 Dr. 3 Railan testified: I said I will try to buy the note and I will see what I can do. It was just a proposal to some loan companies which he w as just taking from them and giving it to me verbally. So, I spent like five hundre d twenty tho usand do llars. But, right before buying the note, . . . he realized tha t this real estate taxes about [sic], but they come before the first trust. That technicality I didn't know and I tried to get out of my d eal with (contin ued...) 11 Railan testified that she never negotiated with Katyal over the note, and that she would never have agreed to a deal without putting it into writing and consulting with her attorney.4 3 4 (...continued) First Union. Dr. Railan testified as follows: Q. [D]id M r. Railan eve r indicate to you that he and Mr. Katyal had an affirmative agreement as to what would happen once he purchased the note? A. No sir, he didn't, and also I wouldn't have accepted, because all the real estate investments, whatever he has do ne so fa r, I have alway s done in writin g, which I finalize everything through an attorney. I have never even even if he had a verbal agreement, it was always finalized. Mr. Railan also testified conc erning his w ife's involveme nt in busines s transactions generally and, specifically, in the subject one concerning the Tandoor restaurant property: Q. When you we re negotiating this deal with the bank, yo ur wife participated in some negotiating with the bank as well, is that correct, sir? A. Yes, sir. Q. And yet, you testified on direct she was aware of your actions in terms of what you were doing with respect to Mr. Katyal as well, is that cor rect? A. Ye s, sir. Q. And, yo u pretty much did not make any decision with respect to this property dealing w ith Mr. Katyal unless you consulted with you r wife befo re doing it, is tha t correct? A. Yes, sir. But I'm not saying that either she did or I did any fraud on M r. Katyal. 12 Pre-trial exclusion of evidence The trial court ruled that neither party would be permitted to raise a conversation which allegedly took place at the Tandoor restaurant a few days prior to Railan's purchase of the bank note, in which Railan, Katya l and his attorn ey, Mr. M cCants, w ere presen t. Railan described the meeting in this way: [T]hree or four days before w e purchased the no te Mr. [McCants], Mr. Katyal were sitting in the restaurant having lunch with me . I was there w ith them, and then Mr. [McCants] said, "Why don't you take his deal he's been offering you?" I said, "Mr. [McC ants], I can't at this time. I have to talk to my lawyer. You are a lawyer. I'm not a law yer. I don't even know if it's legal." Both of them said, "It's legal, you take this, $100,000 you can take this take this deal." . . . They were forcing it down my throat, You Honor. . . . I never took or accepted th is deal. 5 McCants, who was Katyal's trial attorney and is counsel on appeal, remarked that "what [Railan] just s aid to you is a bsolutely inc orrect." M cCants co ntended th at the discussion concerned the taxes Katyal owed to the District of Columbia on the Tandoor property. 5 On further examination, Railan emphasized that he had not agreed: Q. [D]id you agree at that table, on that date, did you acknowledge that, in fact, that was the terms of the contract you had agreed to ? A. I did not. I told him very clearly I need to talk to a lawyer before I could agree to anything. And, I said this to M r. McC ants [Katyal s attorney] also before, a week before closing ." 13 The trial court explained its decision to exclude testimony regarding that meeting: And the basis for this ruling is two fold. One, it honors a prior agreement reached between the parties. It prevents Mr [McCants] from being a witness at trial and albeit [sic] the need of his withdrawal, which and this is the seco nd and very important reason would delay resolution of this case. The Railans filed a motion to reconsider the court s pre-trial order excluding McCan t s testimony in which th ey argue that there w as never any agreement with M r. McCa nts not to raise the meeting w here Mr. Railan's testimony would be that he was clearly equivocal and clearly undecide d about w hether to engage in any contract with Mr. Katyal and he was extremely concerned about arranging for Mr. K atyal to start paying re al estate taxes on the property, which Mr. Katyal never did. Jury Instructions At the conclusion of trial, the judge instructed the jury on punitive damages 6 and on the measure of damages for fraudulent misrepresentation 7 and gave the standard multiple 6 The trial judge instructed: [Y]ou may aw ard punitive damag es only if you find that the act or acts of the defendant were malicious and wilful, wanton and reckless in disregard of the plaintiff's rights. You may aw ard punitive damages against the defendant only if you find that the plaintiff has proven by clear and convincing evidence that the defendant acted with malice and with wilful, wanton or reckless disrega rd of the plaintiff's r ights. 7 The trial judge instructed: (contin ued...) 14 defendant instruction, but gave no instruction concerning agency.8 III. Analys is On appeal, the Railans make three arguments for judgment as a matter of law on the jury verdict finding breach of contract: 1) the statute of frauds precludes enforcement of the 7 (...continued) The measure of damages which the person to whom a fraudulent misrepresentation is made is e ntitled to recov er [sic] his pecuniary loss which results directly and foreseeably from the falsity of the ma tter represente d. Recov ery mus t be limited to such damag es as you fin d to have fo reseeably b een expe cted to follow from th e chara cter of th e misre presen tation itse lf. In assessing the pecuniary loss resulting from the falsity of the matter represented, you may include first the difference between the value of the property and the price paid for it, and second, other pecuniary loss suffered as a consequence of the p laint iff's reliance upon the truth of the representation. 8 Railan ask ed the trial cou rt to give an in struction to m ake it: clear to this jury that while M r. Railan . . . ma y have be en able to perpetrate a fraud, if in fact that is what they believe, that they still have to find that [Dr.] Railan either somehow participated in that or acquiesced in it or consented to it or did something that participated [sic] in order to impose upon her those same type of penaltie s. The court responded, with no objection from Katyal, by stating its intention to give the standard m ultiple defend ant instruction; an instruction covering agency was never propo sed no r given . 15 oral contract, 2) the award of damages for breach of contract is not supported by the evidence, and 3) the evidence was insufficient to hold Dr. Railan liable on the contrac t. With respect to the finding and verdict on the fraud action, the Railans arg ue they are entitled to judgment as a matter of law because there was not clear and convincing evidence of fraud, and that, in any event, the damages awarded are cumulative of the contract damages. They also contend that the evidence was insufficient for a finding of the ill will or malice necessary to support punitiv e dama ges. Finally, th ey argue th at the trial court's reje ction of their courterclaim for a deficiency judgment was erroneous and should be reverse d. The Railans also argue that, if judgmen t is not entered in their favor, they are entitled to a new trial. We review a ruling on a motion for judgment as a matter of law after a jury verdict de novo, applying the same standard as the trial c ourt. See Durphy v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc., 698 A .2d 459 , 465 (D .C. 1997). Judgment as a matter of law may be granted only if, viewing the evidence in the light m ost favorab le to the opposing party, there is no legally sufficient evidentiary basis for a reasonable jury to find for the non -mov ing par ty. Sup er. Ct. C iv. R. 50. This is an exacting sta ndard, and [i]t is only in the unus ual case, in w hich only o ne conclu sion could reasonably be drawn from the evidence, that the court may properly grant judgment notwithstanding the verdict. Homan v. Goyal, 711 A.2d 812 , 817 (D.C. 1998 ) (see Part III on p.15) (internal citations and quotatio ns om itted). IV. 16 Statute of Frauds On appeal, the Railans contend that they were entitled to judgment as a matter of law because the statute of frauds precluded evidence of the oral contract to be presented to the jury because it concerned a putative oral contract involving real e state which by its terms could not be performed within one year of its alleged formation. The trial court considered the statute of frauds at several junctures. The Railans raised the statute of frauds as a defense in their answer to the complaint and in their motion for summary judgment. Although the trial court initially granted the Railans' motion and dismissed the contract claim , it subsequently recon sidered its ruling, explaining that the statute of frauds w as not a bar: Assuming plaintiffs' facts, as the court mu st, the defendan ts deceived plaintiffs into dealing with the ba nk on their b ehalf to purchase the property at a highly discounted rate. After purchasing the note and contracting with plaintiffs to pay defendan ts 9.5% interest on the purchase price of the note for two years, and in two y ears pay the d efen dants the note 's purchase price and $100,000.00, defendan ts told the plaintiffs that a written contract was unnecessary since they had just foreclosed upon their property. Defendants dece ived plaintiffs into helping them acq uire the note, lied about the foreclosure, and entered into a contract they had no intention of honoring and are therefore estopped from asserting a statute of frauds defense. Equitable estoppel w ill bar a party from asse rting the Statu te of Frauds when its own fraud is respo nsible for the absence of a written agreem ent. See Raffer ty v. NYNEX Corp., 744 F. Supp. 324, 330 (D.D.C. 1990) , aff'd in part & r ev'd in part, 314 U.S. App. D.C. 1 (1 995). 17 In denying the Railans' motion for a directed ve rdict, the trial cou rt orally ruled m id trial that as a matter of law the statute of frauds did not bar introduction of evidence of the oral contract, stating: Consideration given by Mr. Katyal was the forgoing of other opportunities to allude [sic] negotiation s of the note so as to allow him to continu e in his b usiness . The statute of fraud s is no impedim ent when the eviden ce is taken in that light. Because of the fraud and the principles that make an oral contract binding under these circumstances, and without finding that's what happened, plaintiff has a right to proceed in the matter as a m atter of la w. The statute of fraud s mand ates that certain agreem ents, includin g those concerning real estate, must be in writing to guard against perjury and protect against unfounded and fraudulent claims. Tauber v. District of C olumbia , 511 A.2d 23, 27 (D.C. 1986); see also D.C. Code § 28-3502 (199 6). 9 As the trial court recognized, there are certain limited exceptions to the statute of frauds: There are several situations where courts may refuse to allow the defendant to interpose a statu te of frauds d efense eve n if it is properly raised: [I]n the early history of the statute a defendant was denied the privilege of pleading [it] in three ma in instances: (a) where h is own frau d was res ponsible for the non9 D.C. Code § 28-3502 provides: An action may not be brought . . . upon a con tract or sale of real estate, of any interest in or concerning it, or upon an agreement that is not to be performed within one year from the making thereof, unle ss the agree ment up on whic h the action is brought, or a memo randum or no te thereof, is in writing, which need not state the consideration and signed by the party to be charge d therew ith or a p erson a uthoriz ed by h im. 18 existence of the require d signed m emoran dum [eq uitable estoppel]; (b) where the equitable doctrine of part performance was applicable [promissory estoppel], and (c) where the defendant has adm itted the contract [waiver]. Hack ney v. M orelite C onstr., 418 A .2d 106 2, 1066 (D.C. 1 980) (c itation o mitted ). We disagree with the trial court's conclusion that the present situation com es within one of the limited exceptions to the statute of frauds. In the present case, far from stipulating facts which recognize an agreement between the parties, Railan steadfastly denied that he ever orally agree d to the terms proposed by Katyal. This is not a case, like Hackney, where the parties stipulate d to facts suffic ient to establish an oral agreement. Thus, we are not faced with a situation where a defendant can admit an honest obligation and yet defeat its enforcement by pleading that the agreement was only oral and that there is no written evidence of the obligation as required by the Statute of Frauds. Id. at 1066-67 (citation om itted). In R & A, Inc. v. Kozy Korner, Inc., 672 A.2d 1062 (D.C. 1996), the buyer testified that the "purch ase agreem ent was n ot reduced to writing because [the seller] did not want the sale in writing;" an d that "mo nthly paym ents were mad e in cash because [seller] requested . . . that these payments be made in cash . . . ." Id. at 1066. This court found that a jury co uld 19 reasonab ly conclude that the seller fraudulently misrepresented his intentions to sell and that the buyer paid money to the seller in reliance of their oral agreement. In that circumstance, the court found an ex ception to the statute of frauds due to part performance . Moreover, although not relied up on in the opinion , the facts clearly presented th at one side fra udulently induced the other not to reduce the purchase agreement to writing. In the case before us, the Katyals contend that one week after the Railans purchased the note, Katyal, at Railan s request, signed a statement indicating that Railan had purchased the note on the Tandoor property, and after one of them jotted down on a napkin at the restaurant a written calculation o f monthly interest paym ents Katy al allegedly w ould pay to Railan for a two-ye ar pe riod, Rai lan to ld him to go b y Ra ilan's house tha t night to write this note in front of his wife and father-in-law. Instead , however, once Katyal disclosed that he had discarded the paper with the interest calculations, Railan informed Katyal that there was no agreement and that Railan had decided to foreclose on the note.10 The question is whether 10 Katyal's testimony on the subject is not entirely clear: So, we sat down and he says, [sic] Mr. Katyal, my lawyer, you know, that I had bought that loan and things and my lawyer has advised me, but there is a customary letter you have to give me that I had purchased this loan for that much and and that much was the loan, you know. I said, you know, I don't have objection to sign it. What about my note? He says, let me write that and I can we can work on that note also. So he wrote that letter with his hand that he did purchase the note from the bank a nd things a nd I sign it. (contin ued...) 20 Railan s actions suspending the writing of the note u ntil that evening and subsequent refusal to comm it the agreement to writing was a fraudulent act responsible for the lack of a signed writing that w ould otherw ise support a contract. Even if we were to consider, as the trial court did, that Katyal s testimony permitted the jury to find that Railan induced him not to reduce their agreem ent to writing, we are constrained to conclude that it would not make a difference as a matter of law because the incident to which Katyal testified occurred one week after Railan had already purchased the note from th e bank . At that point, Railan was the note holder and had the right to foreclose on the d efaulted note. In Landow v. Georgetown-Inland W est Corp., 454 A.2d 310 (D.C. 198 2), we uph eld summary judgment based on a bar of evidence of an oral modification extending a written contract ba sed on the statute of fraud s, explaining that: An oral agreement to purchase land is taken out of the Statute of Frauds only when the purchaser has changed his position so materially that unless the oral contrac t is enforced, fra ud will 10 (...continued) So, we started, you know, there was a yellow pair of something or sheet, he was start writing [sic] how much would be mine and a half percent for four hundred fifteen thousand dollar. . . . And I says you want to write that note with hand [sic] too? He says no, why do n't you com e to my hom e this evenin g? I like to write [sic] this note in front of my father-in-law and my wife. 21 result. Mere refusal to perform an oral contract within the statute does not generally constitute such fraud as to raise the estoppel. In order to effectively assert estoppel, the promisee must be able to sh ow that he has chan ged his po sition substantially for the worse and that he has incurred unjust and unconscionable injury. Id. at 313-14 (internal citations omitted). In Landow, the purchaser submitted claims for incurred expenses, but the court held that the purchaser failed to demonstrate that the damages were incurred due to the seller's inducement to perform under the o ral agreem ent. See id. at 314. In this case, Katyal and Railan began discussing a deal for the Tandoor restaurant property bank note at a party that allegedly took place in the late fall of 1 993 or ea rly in 19 94. K atya l's testimony is that Railan told him not to worry, that he wo uld buy the note from the bank and give Katyal two yea rs to pay it back; Parden, the bank loan officer, testified that others had expressed an interest in buying the note more than nine months before Railan purchased it from the bank. Although, as we discuss below, those statements may suffice to constitute fraud in the inducem ent, they are irrelevant to the statute of frauds inquiry, whether the fraud was responsible for the non-existence of the required writing. Railan s alleged fraudulent action in refusing to commit to writing came after he had already purchased the note and had the right, as noteholder, to foreclose. As in Landow, therefore, Katyal s damages might have been incurred regardless of Railan's actions. Therefore, because the instant situation does not come within the exception for fraud-based failures to have a writing, enforcement of the 22 oral contract is precluded by the statute of frauds.11 V. Fraudulent Misrepresentation We next address the Ra ilans argument that the judg ments for fraudulent misrepresentation should be reversed b ecause the Katya ls failed to present clear and convincing evidence of each req uired elem ent of fraud . In order to prove fraudulent misrepresentation, the Katyals must prove (1) a false representation, (2) in reference to a material fact, (3) made with knowledge of its falsity, (4) with th e intent to deceive, and (5) action taken by [th e Katyals] in reliance up on the repre sentation, (6) w hich cons equently resulted in provable damages. Dresser v. Sunderland Apartment Tenants Ass n, Inc., 465 A.2d 835, 839 (D.C. 1983) (citing Bennet v. Kiggins, 377 A .2d 57, 5 9 (D.C. 1977)). The elements must b e prove d by cle ar and c onvinc ing evid ence. See Hercules & Co. v. Shama Rest. Corp., 613 A.2d 916, 923 (D.C. 1992). In applying the law to the evidence presented in this ca se, we d eal sepa rately w ith the ve rdicts ag ainst M r. Railan and D r. Railan . We conclude that there was no error in the trial court s denial of judgment as a matter 11 In view of our holding, we need not address the sufficiency of the evidence tying Dr. Rail an to the o ral co ntract, th e evi dentiary supp ort fo r con tract dam ages , the trial c ourt's exclusion of evidence of the meeting involving the Katyals' lawyer, Mr. McCants, or the motion for a new trial, to the extent that they relate to the jury's verd ict on breac h of contrac t. 23 of law on the jury s finding that M r. Railan engag ed in fra udulen t misrep resenta tion. Here, the jury was presented with sufficient evidence from which it could find, by clear and convincing evidence, that Mr. Railan fraudulently induced Katyal to reject identified offers to buy the no te from Union Bank and terminate his search for another buyer who would not foreclose on the note and ho nor Katyal s requested terms. From Railan s reference to these other offers as being made by loan sharks and presenting himself as a caring friend of the Katyals, who were desperately seeking a w ay out of their financial distress, the jury was entitled to infer that he intended to deceive the Katyals into believing that they should deal with him because he was the person who would accept their terms. M r. Singh, w ho tried to conciliate the dispute between Railan and Katyal once Railan decided to foreclose, testified that Mr. Railan nodded while Katyal recited the terms of their supposed agreem ent. Although Mr. Raila n testified that he did not decide to foreclose on the note until he became aware at the time of purchase that outstanding taxes imperiled his investment in the note, Katyal s testimony was that from the outset he had informed Mr. Railan of the outstanding taxes and that he had a plan to pay them over time. Parden, the bank s loan officer, testified that he too had informed Railan of the outstanding taxes. Parden also testified that just after completing the documentation for the purchase of the bank note, Mr. Railan sought assurances that the right to foreclose [was] still in place. From this evidence, and the fact that the Railan s imm ediately foreclo sed on the note upon p urchas ing it, the jury, after deciding on the credibility of the disputed testimony, could infer that such had been the plan from inceptio n. In comin g to this conclusion, we distinguish the Katyals reliance on M r. 24 Railan s early warnings concerning loan sharks and assurances of his own benevolent intentions, which we determine to be sufficient to support the jury s verdict on fraudulent misrepresentation, from the absence of detrimental reliance by the Katyals on M r. Railan s actions in refusing to reduce the oral agreement to writing after he had already purchased the bank note, which we have held to be legally insufficient to come within the fraud exception to the statute of frauds. In the latter case, the Railans, as holders of the note, could decide to exercise their right to foreclose without extracting any concessions from the Katyals. In this case, on the other hand, although the bank had the right to foreclose, it had chosen not to do so, and had been attempting to work w ith the Katyals to sell the loan on terms that would accomplish their goals as well. Although there is no as surance tha t the Katya ls would have been able to achieve their objective if someone else had purchased the note, the jury could find that they were injured by Railan s misrepresentations which diverted them from their efforts to locate such a purchaser. See supra note 1. We come to a different conclusion with respect to the judgment against Dr. Railan. Mr. Katyal testified at trial that he did not think that Dr. Railan committed any fraud on him. The Katyals respond, however, that the jury could find Dr. Railan liable on an agency theory, relying on h er husban d s condu ct on her be half: Whether an agency relationship exists is a question of fact for which the person asserting it c arries the burden of proo f . . . . Generally an agenc y relationship results when one person 25 authorizes another to act on his behalf subject to his control, and the other consents to do so. . . . [T]his court considers the determin ative factor to b e the mea sure of con trol. Smith v. Jenkins, 452 A.2d 333 , 335 (D.C. 1982 ) (citations omitted). In this case, there was almost no eviden ce concerning D r. Railan s actions in the case in chief, and the little evidence there is was Katyal s admission that he did not discuss the terms of the agree ment w ith Dr. Railan and that he did not believe she had defrauded him. The Katyals, who had the burden of proof on the agency issue, presented no evidence that Dr. Railan exerted any measure of control over her husband. Although there is evide nce in the record that Dr . Railan negotia ted with the ban k, along with her husband, concerning purchase of the Katyals' note, and that she was aware of her husband s negotiations with Katyal, see supra note 4, there is no evidence in the record that her husband acted as her agent when he negotiated with and represented to Katyal that he would not foreclose on the note. Katyal s belief that it was Dr. Railan who called Mr. Railan in the car when Katyal was first told that they intended to foreclose on the note is too speculative to meet the Katyals burden on the question of age ncy. The trial judge den ied Dr. Railan s motion for a directed verdict on the ground that [t]he facts are susceptible to an interpretation that Mr. Railan was handling investments for his family and stumbled through them. The trial court did not make a finding as to whether Dr. Railan exerted control over Mr. Railan and, thus, could not have found that he acted on her behalf. Although the existence of agency, and its nature and 26 extent, are que stions o f fact, Lewis v. Washington Metro. Area Transit Auth., 463 A.2d 666, 673 (D.C. 1983), the jury here was not instructed on agency theory, see supra note 8, and thus, had no direction on the basis on which it could impute the actions of Mr. Railan to Dr. Railan. On this reco rd, we conclude that the trial court should have gran ted Dr. Railan s motion for judgment as a matter of law on the jury s verdict for fraudulent misrepresentation. The Railans argue that the damage awards of $50,250 each for fraudulent misrepresentation should be set aside because they are cumulative of the award for breach of contract. As we have determined that the evidence wa s insufficient to support the verdict of fraud against Dr. Railan, the related damage award against her also must fail. As we have concluded that the finding of breach of contract, and its corresponding damages award, must be set aside as a matter of law, there is no b asis for the argument that the d amage aw ard for fraud against Mr. Railan was cumulative. This leaves the argument that there was no eviden ce supp orting su ch com pensat ory dam ages. As we have discussed, the injury to the Katyals from Mr. Railan s fraud was loss of the possibility of avoiding foreclosure b y identifying a purchaser fo r the note who would forbear from such action. The Katyals introduced evidence that on ce the foreclosure proceedings were announced, they lost business profits of approximately $96,00012 and rental 12 Mr. Katyal testified that, prior to foreclosure, the Tandoor restaurant had income of $10,000 a month, plus an additional $5,000-6,000 a month from its catering business. (contin ued...) 27 income totaling abo ut $75,000 . On app eal, the Railan s challenge, in their reply brief, the adequacy of the Ka tyals' proof of lo st business p rofits. 13 See Garcia v. Llerena, 599 A.2d 1138, 1144 (D.C. 1991) (proof of damages speculative where claimant did not lay any foundation or identify any source for the formula used to estimate net return on gross business receipts). Even assuming that we were to cons ider that belated claim o n appe al, but see George Washington Univ. v. Waas, 648 A.2d 178, 182 n.6 (D.C. 1996), our review of the record reveals that the issue was not preserved in the trial court. 14 We the refore review only 12 (...continued) According to Mr. Katyal, after the foreclosure these amounts were reduced to $6,500 and $1,000, respectively. The Railans' lawyer objected initially, when Katyal was asked "the amount of business you lost as a result of foreclosure". The trial court sustained the objection, noting that it had prev iously ruled that the Ka tyals could prove lost income from the business if they "buil[t] it up from the bottom, brick-by-brick, but not have the whole sum in the estimation of the witness." The questioning resumed with more specific questions directed to Mr. Katyal, and counsel did not object again as Mr. Katyal detailed his income, both be fore an d after fo reclosu re, from his cater ing and restaura nt busin esses. 13 In their opening brief, the Railans generally asserted that "there is absolutely no basis in the record" for the jury's award of compensatory damages for fraud, without distinguishing between the eviden ce presente d of lost profits a nd lost rental in come. A s to the latter, Mr. Katyal testified at trial that, as a result of the foreclosure, he lost income from his leases of part of the building premises. The lease with TCBY, a frozen yogurt franchise, which was introd uced into e vidence w ithout objection, called for rent payments of $3,357 per month for eighteen months, which Katyal had agreed to reduce to $2,300 per mon th because the tenant w as having financial difficu lties. In addition, K atyal rented rooms to Georgetown University students an d other indiv iduals for a to tal of approximately $3,300 a month. Three leases with unexpired periods of ten months with these individuals were introduced into evidence without objection. The reply brief does not challenge the adequacy of the evidence of lost rental income. 14 As noted, the Railans counsel apparently acceded to Mr. Katyal's testimony detailing his lost business profits. See supra note 12. In closing, counsel did not address at (contin ued...) 28 for plain err or. See U nited Sta tes v. Ol ano, 507 U.S. 725 (1993) (for plain error, error must be obvious and so clearly prejudicial to appellant's substantial rights as to jeopa rdize the very fairness and integrity of the trial). In light of the unobjected evidence that was presented of lost rental income in the amount of approximately $75,000, see supra note 13, we conclude there is no injustice requiring reversal of the jury's award of $52,50 0 against M r. Railan to compensate for proven damage resulting from his fraud. VI. Punitive Damages The Railans contend that the award of punitive damages must be set aside because there was no evidence of malice or ill will. Because we conclude that there was no basis for a verdict against Dr. Railan on fraudulent misrepresentation, the award of punitive damages against her, perforce, must be reversed. See Bernstein v. Fernandez, 649 A.2d 1064, 1067 (D.C. 1991). Punitive damag es may b e awarde d only if it is shown by clear and convincing evidence that the tort committed by the defendant was aggravated by egregious conduct and a state of mind that justifies punitive damages. Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 938 (D.C. 1995), cert. denied, 117 S.Ct. 1080 (1997). In cases where the 14 (...continued) all the claimed damages resulting from the fraud, focusing only on the issue of liability, even though the Katyals' counsel had displayed a chart detailing the various categories of damages. The record on appeal does not indicate that the Railans objected to the trial c ourt's instructions on compensatory damages. 29 underlying tort has been fr aud, w e have required, for punitive damages, that the tort be aggravated by evil motive, actual malice, deliberate violence or oppression. Feltman v. Sarbov, 366 A.2d 137, 141 (D.C. 1976) (quoting Price v. G riffin, 359 A.2d 582, 589 (D.C. 1976). The Katyals argue that fraud implicitly requires a finding of m alice and ill w ill sufficient to supp ort pun itive dam ages. See Mark Keshishian Sons, Inc. v. Washington Square, Inc., 414 A.2d 83 4, 842 (D.C. 198 0); Harris v. Wag shall, 343 A.2d 283, 288 (D.C. 1975); District Motor Co. v. Rodill, 88 A.2d 489 (D.C. 1952). Our more recent cases on the subject make clear, however, that evidence over and above what is required to establish the underlying tort is necessary for punitive damages. See Jonathan Woodner Co., 665 A.2d at 938. The jury w as instructed in this case that p unitive dam ages cou ld be awa rded on ly if . . . the plaintiff has proven by clear an d convinc ing eviden ce that the de fendant ac ted with malice and with w illful, wanton or reckless disregard of the plaintiff s rights. See supra note 6. We presume that this instruction, which accurately reflects the proper standard, was followed by the jury. The Katyals introduced evidence that, during the course of negotiations concerning the Railans' purchase of the bank n ote, Mr. R ailan presen ted himse lf as the caring younger member of a close-knit Indian community acting to protect Katyal, who was ailing both physically and financially, from unscrupulous loan sharks. Railan went so far as to call Katyal his "bro ther." 15 This evidence, though slight, when viewed in the light m ost favorab le 15 Katyal testified that he and Railan became "very friendly," and that Railan told h im at one point that "you're my brother now so I cannot charge you" for Dr. Railan's medical treatment, and that Railan referred to him as "bisop," which means "brother or big bro ther." 30 to the Katyals, pe rmits a reaso nable jury to find that Mr. Railan not only committed fraud, but also acted w ith the requisite m alice, exploiting their friendsh ip with the result that the Katyals' self-made business16 was ruined. Thus, it was not error to refuse to set aside the jury s award of punitive damages. Cf. Boynton v. Lopez, 473 A.2d 375, 377-78 (D.C. 1984) (holding evidence insufficient to support punitive damages, even though there was intentional misrepresentation, where the record devoid of evidence showing willful or outrageous conduct or gross fraud, and where the fraudulent p arty did not b enefit financially from th e misre presen tation). VII. New Trial Railan argues that h e was en titled to a new trial on the fraud count. A ruling on a motion for a new trial is committed to the sound discretion of the trial court and, because the trial court has had the benefit of seeing and hearing the trial evidence, the trial court s ruling will be reversed on appeal only if that discretion has been abused. Oxend ine v. Mer rell Dow Pharms. Inc., 506 A .2d 110 0, 1110 (D.C. 1 986), cert. den ied, 493 U.S. 1074 (1990). A motion for a new trial requires consideration of all the evidence, both favorable and unfavo rable. Lyons v. Barrazo tto, 667 A.2d 314, 324 (D.C. 1995) (internal quotations and 16 Katyal testified that he came to the United States from India at the age of 21 and worked as a busboy, waiter and assistant manager, subse quently opening a Tandoori restaurant in Georgetown, which was named "one of the ten best restaurants among 5000 restaura nts for ei ght or n ine yea rs contin uously ." 31 citations omitted). In making its determination, the trial court should take care not to set aside a jury verdict only because it woul d have reache d a diffe rent resu lt. See id. at 325. Such motions should be granted only if the verdict is against the great not merely the greater weight of the evidence. Id. at 328-29 (internal quotations a nd citations omitted). Railan s argument is that the trial court did not expressly assess the weight of the evidence relating to the fraud count and the requirement that the plaintiff prove the elements of fraud by clear and convincing evidence in considering the post-trial motion for a new trial. Railan further argues that a new trial is warrante d becaus e the trial court e rred in excluding relevant testimony which would have shown that he was equivocal about doing a deal with the Katyals on the note due to the trial court s mistaken belief that the parties had agreed that the testimony would not be permitted becau se it involved the Katyals trial attorney, M r. McC ants. An appellate court s scope in reviewing the trial court s decision not to grant a new trial is more lim ited than the latitude a ccorde d to a tria l judge in decidin g the m otion. See Fisher v. Best, 661 A.2d 1095, 1098 (D.C. 1995). In this case, we cannot say that the trial court abused its discretion in deciding that a new trial was not warranted. Although it is true, as Railan argues, that the trial court expressed the view that he, or another jury, could have come to a different conclusion, that is not, as Railan acknowledges, the appropriate standard to be applied by the trial court. Ra ther, Railan seizes on the trial court s statement that the evidence presented to the jury was no t clearly weighted in favor of either side as 32 conclusive on the issue whether the jury s ve rdict of fraud , which ha d to be proved by clear and convincing evidence, was against the great or clear weight of the evidence, entitling them to a new trial. We do not so read the trial court s remark. An important part of this case was who the jury believe d. Consid eration of a n ew trial motion is not an exercise in supplanting the jury s asse ssment o f the credibility of witnesses. From the jury s verdict it is clear it believed the Katyals version of events, and found serious fault with Railan s conduct toward Katyal during the negotiations. This is not a case where th e jury verdic t is undermined by documentary or other objective evidence that the trial court could consider the jury overlooked. Nor do we think that the trial court s exclusion of testimony concerning a meeting at wh ich Mr. McC ants was p resent, even if erron eous, wo uld require a new trial. The testimony that Railan represents would have been presented if the evidence had not been excluded is by and large cumulative of other evidence, which the jury already had befo re it, that Railan was ambivalent about purchasing the note on the terms Katyal alleges. Mo reover, McC ants would have contradicted Railan s account of the meeting. Thus, we conclude that the trial court did not abuse its discretion in denying the motion for a new trial on the fraud count. 17 VIII. Counterclaim for Deficiency Judgment 17 In view of our reversal of the judgment on the brea ch of con tract count, we need only address the motion for a new trial as it relates to fraud. 33 Finally, the Railans contend that the trial cou rt erred in denying their claim fo r a deficiency judgment in the amount of $150,000, the difference between the face amount due on the note and the purchase price for which they acqu ired the Tandoor property at foreclosure. The Railans argue on appeal that, as noteholders, they were entitled to a deficien cy judg ment. We first mu st addre ss a pro cedura l point. The parties had agreed that the trial court should decide the landlord-tenant and deficiency judgme nt claim based on the jury s ve rdict, and the trial court did so, denying the deficiency judgment because the Katyals had prevailed. The Katyals contend that the Railans co unsel wa ived the op portunity to press their claim for a deficiency judgment after the jury returned its verdict. Again, in the post-trial motion the Railans presented no evidence in support of their coun terclaim for a deficiency judgme nt, choosing, instead, to press the claim for possession in the landlord-tenant action. On appeal, the Railans abando n their arguments co ncerning the action for po ssession (the Katyals left the premises), but raise the issue of the deficiency judgment. Even if we give the Railans the benefit of the doubt because their counsel s concession was based on the premise that they had lost on the jury verdicts (which we partially reverse today), we do not believe that the law compels a deficiency judgment in this case where the jury found that M r. Railan s fraudulent conduct injured the Katyals by causing the foreclosure of their property. As we do not disturb th at verdict, und er these circumstances, Mr. Railan should not be permitted to collect the deficiency judgm ent which would re sult from h is wrongf ul conduc t in 34 foreclosing on the property. We are not persuaded b y the argumen t that, having chosen to pu rsue a claim for contract damages against the Railans, rather than seek specific performance to avoid foreclosure, the Katyals have affirmed their obligations to the Railans under the note. The parties have cited no case directly on point and we have found none in this jurisdiction. The Railans premise th eir argum ent on the p roposition th at [f]or a w rongful foreclosure, the borrower has alternative and inconsistent remedies, an action at law for damages or an action in equity to set asid e the w rongfu l foreclo sure. National Life Ins. Co. v. Silverman, 147 U.S. A pp. D.C . 56, 62- 63, 454 F.2d 8 99 (D .C. 197 1), quoted in Johnson v. Fairfax Village Condo. IV Unit Ow ners Ass n, 641 A.2d 495, 507-08 n.25 (D.C. 1994). Those cases, however, consider the issue in terms of whether the claimant is entitled to a jury trial once an election of remedies has been made. They do not address the issue before us. The Railans also rely on Cusimano v. First Md. Sav. & Loan, Inc., 639 A.2d 553, 556 (D .C. 1994), in support of the claim for a deficiency judgment. As the Katyals correctly note, however, Cusimano did not con sider the pro priety of ente ring a deficie ncy judgm ent in favor o f a party who had been fou nd to have fraudulently foreclosed, rather the court in Cusimano addressed contract interpretation issues in the context of a party who had lawfully foreclosed. More instructive, although also not direc tly on point, is United Secs. Corp. v. Franklin , 180 A.2d 505, 510 (D.C. 1962), in which the trial court had entered judgment for 35 fraud in favor of a defrauded party to a contract and a d eficiency jud gment in favor of the defrauding party who sued to enforce the contract. The defrauding party appealed, claiming that the two judgments were inconsistent, and argued that the defrauded party, by its conduct, had affirmed th e contract. T he defraud ed party did not appeal and the issue of the p ropriety of the deficienc y judgm ent vel non was not before the court. On appeal, the court held that on the assumption that the defrauded party had affirmed the contract, such affirmance or ratification only precluded [it] from subsequen tly seeking rescission of the contract and required it to perform according to its terms. Id. at 510. The court further held that having affirmed the contract, the defrauded party could nonetheless sue in tort for fraud, finding no inconsistency between affirmanc e and an a ction in tort for fra ud in the inducement [of the contract]. Id. The appeal be fore us is com plicated by the fact that it involves two different contracts: the oral contract that th e Katyals a lleged existed between them an d the Railan s in the event that the Railans purchased the bank n ote which they soug ht to enforce, and the note that the Railans purchased from the bank. We have rejected the former as violative of the statute of frauds.18 Further, the R ailans deny the existenc e of the con tract that the Katya ls alleged. Instead, the Railans claim for a deficiency judgm ent arises under the Ka tyals promissory note to the bank, which the Railans purchased and which they are seeking to enforce. As the 18 As noted earlier, the judgment we affirm on the Katyals claim of fraud, sounding in tort, ag ainst M r. Railan is not inc onsisten t with th eir contr act claim . 36 Railans argue in defending the fraud claim, the right to foreclose under the note was independent of their separate negotiations with the Katyals and they succeeded to that right upon their purchase of the note from the bank. Although there is no q uestion that th e Katyals signed the note and wo uld be liable for a deficiency if the bank had lawfully foreclosed, under the circumstances of this case, we consider it appropriate to consider the connection between Mr. Railan's fraud and the foreclosure that led to the deficiency. As the court stated in United Secs. Corp., "[s]ince it was [the noteholder's] wrongful act which prevented further performance by [the obligors] under the contract, to require them to pay the total finance charge would unfairly pen alize them and co nfer a benefit on the [fraudulent noteholder]." Id. at 511-12. W e apply the same rea soning he re, which is c onsistent w ith other situations in which we have denie d a wrongdoer the benefit of wrongful action.19 We are cognizan t, however, that ther e is no e videnc e linking Dr. Ra ilan to he r husba nd's frau d. The record does not establish the m anner in which the Railans owned the no te, and whether their interests are separate or severable. We th erefore remand to the trial court for a determination of this issue and a disposition appropriate to their respective interests and liability. *** 19 We are not, as the d issent suggests, increasing the am ount of damag es that the jury awarded to the Katy als for fraud. R ather, we are denying the tortfeasor the benefit of the bargain he wrongfully procured by foreclosing when he did, contrary to his representation. Here, although th e face am ount due o n the note w as $700,0 00, the Ra ilans purch ased the no te at a discounted price of $515,000. Upon foreclosing immediately when they purchased the note, the Railans obtained a property that they valued (through their bid) at $550,000 $35,00 0 mor e than th e amo unt inv ested in purcha sing the note. 37 In conclusion, we reverse the trial court s denial of the Railans motion for judgment as a matter of law on the breach of contract claim, and remand with instructions that judgm ent be e ntered f or the R ailans o n that co unt. The related com pensatory damages for breach of contract are also set aside . We affirm the trial court s denial of the motion for judgment as a matter of law on the fraud claim, and related compensatory ($50,250) and punitive damages ($50,250) against Mr. Railan, but reverse with respect to the judgment on the fraud claim against Dr. Railan (with the related damages awards for compensatory and punitive damages totaling $ 100,500 against her a lso being set aside). We affirm the trial court s denial of Mr. R ailan 's mo tion for a new trial a nd its reje ction of M r. Ra ilan's countercla im for a deficiency judgment. We remand for the trial court to make the ne cessary findings and enter an appropriate disposition with respect to D r. Railan's claim for a deficien cy judg ment. So ordered. S CHWELB, Associate Judge, concurring in part and dissenting in part: Although I believe that the Katyals have prevailed by a razor-thin m argin with respect to several issues whether there was clear and convincing evidence of fraud, whether damages were sufficiently establish ed, and , especia lly, whe ther pu nitive da mage s are w arrante d, see, e.g., Feltman v. Sarbov, 366 A.2d 137, 141 (D.C. 1976) I am prepared to join Parts I through 38 VII of the majority opinion. I m ust, however, respectfully dissen t from the holding that M r. Railan ha s someh ow forfeite d his right to a d eficiency jud gment. 1 [U]nlike rescission, a remedy founded upon equitable principles, the remedy in tort for fraud is based upon the assumption that the fraudulent transaction is to stand. Millard v. Lorain Inv. Corp., 184 A.2d 630, 633 (D.C. 1962); see also U nited Sec. C orp. v. Fran klin, 180 A.2d 505, 510 (D.C. 196 2). Here, the Katyals did n ot seek rescission of the prom issory note or of any contractua l obligation as sociated w ith it. Under th eir theory of th e case, their agreem ents with the Railans, and especially their obligation under the promissory note, stood, but the Railans were liable to the Katyals in tort for deceiving and defrauding them. Yet the disposition of the case by the m ajority allow s the Katy als to have their cake and eat it too, at lea st vis-a-v is Mr. R ailan. The court holds no t only that the Katyals are entitled to an award for fraud a theory under whic h the underlying contractual obligation to the noteholder remains in effect but also that Mr. Railan is precluded from see king a part of his remedy for the Katyals breach of their contract to pay the full amount of the promissory note. In effect, by denying M r. Railan s request for a deficiency judgment, the majority has permitted the Katyals to recover damag es for fraud in an amo unt substan tially in excess of the verd ict return ed by th e jury. 1 I agree with the majority that we sh ould g ive the R ailans th e bene fit of the d oubt, maj. op. at 35, with regard to the question whether they have waived their deficiency claim. 39 In holding that Mr. Railan is barred from pursuing his counterclaim for a deficiency judgment while his wife ap parently is not so precluded (because there is no evidence linking Dr. Railan to her husband s fraud, maj. op. at 38), my colleagues seem to be applying some kind of unclea n hands reasoning . As I unde rstand the m ajority s theory, M r. Railan is precluded from recovering the deficiency because h e defraude d the Katy als, and this res ult is ordained even though the Katyals claim sounds in tort rather than in rescission, and even though the Katyals have been awarded substantial damages for fraud. But the unclean hands doctrine is a maxim of equity, w hile Mr. K atyal s action to recover damages for breach of contract is a legal claim for mon ey to wh ich this equita ble doctrine has no ap plication. See, e.g., In re Estate of Barnes, 754 A.2d 284, 288 n.6 (D.C. 2000) (citations and internal quotation marks omitted). As I see the case, the court is effecting a forfeiture. Forfeitures are not fav ored, ho weve r, see, e.g., Ass n of Am. R.R.s v. Connerton, 723 A.2d 858, 862 (D.C. 1999), and I discer n no legal b asis for order ing one he re. I am there fore unab le to agree with the majority s disposition of the Railans counterclaim, and I respectfully dissent from Part VIII of the court s opinion.
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