# Lynn v. Lynn

> District of Columbia Court of Appeals · December 11, 1992 · 617 A.2d 963

URL: https://www.frixlaw.com/law-library/cases/9764525

## Case

- **Full name:** Peter J. LYNN, Appellant, v. James A. LYNN, Et Al., Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** December 11, 1992
- **Citations:** 617 A.2d 963; 1992 D.C. App. LEXIS 311; 1992 WL 364406
- **Precedential status:** Published
- **Opinion:** Dissent by Schwelb
- **Judges:** Rogers, Chief Judge, and Schwelb and Wagner, Associate Judges
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SCHWELB, Associate Judge,
dissenting:
I am unable to agree with my colleagues that the trial judge made clearly erroneous findings, or that he abused his discretion, when he concluded that Peter Lynn’s offer to purchase the Independence Avenue property was not a “bona fide” offer. In my opinion, the judge’s findings had ample support in the record, and no abuse of discretion was shown.
I
It is important to place the judge’s decision in its proper context. The complaint in this case, which pits a father in his seventies and one of his sons against a second son in unrelenting and rhetorically unrestrained combat, was filed in March 1988. The appellees, James and Jeffrey Lynn, urged during the course of the bewilderingly complex proceedings in the trial court that the properties in question be sold swiftly. They contended that any delay *973 threatened them with financial ruin because they were being required to make the mortgage payments but were not receiving the income.
On November 15, 1989, Judge William C. Gardner issued an Order Nisi with respect to the Independence Avenue property. The Order provided that a proposed sale to third party offerors would be approved on November 27, 1989 unless at that time there were brought to the attention of the court any “bona fide offers which guarantee at least a ten percent (10%) net increase over the price specified” by the offerors.
At the November 27 hearing, Peter Lynn made an offer which, on its face, provided for a higher purchase price and for a larger down payment than the offer made by the third parties. The issue before the trial judge was whether this offer was a “bona fide” offer.
The judge’s oral decision, in its entirety, was as follows:
THE COURT: All right.
Of course, I again remind you I’m not sitting as an appellate court to review Judge Gardner’s order nisi, simply to determine whether there is a formal— whether there is a bona fide offer that exceeds the proposed contract by 10 percent. And I find that the offer does not meet that criteri[on].
The circumstances are that the defendant has proposed a sale price at $233,-200, which in terms of just the gross number does represent a 10 percent increase, a greater than 10 percent increase; however, the offer contains in it a financing provision for a $110,000 mortgage, and the — in the Court’s experience, notwithstanding a letter from a bank which says that based on their attached motion, it says, “A loan for $110,-000 would be — that the defendant, Peter Lynn, would meet that qualification based on the financial information provided. However, please note that this is not a loan commitment and is subject [to] all verifications and so on.”
When asked to testify under oath as to his income, the testimony has been to the effect that — and if I understood it correctly — there’s no W-2s or 1099s, which means no formal employee or contract income, contract of employment income. Instead, the Defendant has been self-employed, but he testified first that he had a negative income for the last three months, and then talked about whether ... he was including the proceeds of the houses and so on.
In talking about the gross income for 1988, he again referred to gross proceeds or proceeds from sale of real estate as largely determining whether or not his forty or fifty thousand dollar gross would apply.
And on the other side has been the testimony that there was a loss in 1989— or 1988, for $10,000, and a loss in the last three months which the defendant was unable to quantify; and testimony that he had done very slight consulting in the last 60 days and none within the last 30 days.
It is the court’s general recollection that the service a $110,000 mortgage would require at least $1200 a month mortgage payment, and probably somewhat more in terms of the insurance requirements. And this would require a regular gross income of something on the order of $3500 or $4,000 per month, and there just is simply no indication of anything like that in this case. So I have to conclude that the offer at a higher price is not a bona fide one and should not displace the offer which appears— which is subject to the order nisi which appears on its face — accepted.
I would note that I’ve gone at some pains to be sure that you were not unnecessarily or [lightly] requiring a sale to the exclusion of an offer by one of the co-tenants, but am satisfied on this record that that is required by these circumstances and that the offer is not likely to result and would instead result in unnecessarily delays, probably loss of this contract and indefinite delay [of the] other contract.
So in those circumstances, I will sign the order ratifying the sale.
The principal question before us is whether this decision was supported by the *974 record. If the judge’s factual findings were sound, it is difficult to argue that he abused his discretion in some other way.
II
Peter Lynn claimed at the hearing that he was in a position to purchase the subject property for $233,211. Although he represented that he was ready to make a large down payment, he acknowledged that he would nevertheless need a $110,000 mortgage loan for the balance. He had no commitment for such a loan, and the proffered statement from a lending institution that he was qualified to borrow the necessary amount was conditioned on the accuracy of the information provided by Peter Lynn to the lender. 1 The judge, as we shall see, had good reason to doubt the accuracy of any such information. 2
Peter Lynn’s pro se answer to the complaint in this case provides a useful starting point for our inquiry. In that pleading, Peter Lynn did not depict himself as an individual who could readily qualify for a $110,000 loan. Rather, he represented to the court that
[t]he defendant Peter Lynn is very poor. His annual income for federal income tax purposes has been negative for a number of years. He has lived below normal American standards “camped” out in various reconstruction projects which lack normal heating or plumbing in order to economize for the sake of business success.
Answer, para. 3. Peter Lynn further alleged that his father, or others in league with his father, had interfered with various of his (Peter Lynn’s) activities and assets. Peter Lynn claimed that this “indirect personal entanglement ... was accompanied by an increasingly dense illicit surveillance and communications system around the defendant” _ Id., para. 6-7. These nefarious activities, 3 according to Peter Lynn, “impacted adversely upon [his] employability and upon his income level,” and compelled him “to liquidate capital to sustain the business.”
By the time Judge King was called upon to assess the bona fides of Peter Lynn’s offer, it had already been established in this litigation that, evidently as a result of the poverty of which Peter Lynn complained in his pleading, Peter Lynn was an unreliable credit risk. On November 22, 1988, in her order granting partial summary judgment to James and Jeffrey Lynn, Judge Harriett Taylor stated that “beginning no later than March of 1987, defendant Peter J. Lynn stopped making the monthly mortgage payments of $833.07 per month on Parcel I.” She further found that “Peter J. Lynn allowed the tax bills on the property to go unpaid”’ 4 Peter Lynn complained that he had received no notice of the motion for partial summary judgment and that Judge Taylor’s order was erroneous. On January 11, 1989, however, Judge George Mitchell denied Peter Lynn’s request for reconsideration, 5 holding that
*975 even if the defendant had complied with all procedural and substantive requirements regarding summary judgment motions, he has presented nothing which would or could create a disputed issue of material fact on the limited issues resolved by the partial summary judgment order.
Given this history, the trustee appointed to sell the property, as well as counsel for James and Jeffrey Lynn, were understandably dubious about Peter Lynn’s ability to obtain the loan that he would need in order to live up to his offer. 6 A review of the transcript of the November 27, 1989 hearing reflects that the trial judge listened conscientiously and attentively to Peter Lynn’s representations, as well as to the concerns of the trustee and of the appel-lees. After the parties had articulated their positions, however, the judge stated that he was “concerned about the possibility of losing a sale and then finding out that you can’t produce.” In order to assess this danger and to assure that there was an appropriate evidentiary record, the judge placed Peter Lynn under oath. The main question addressed by the judge and by counsel for appellees in examining Peter Lynn was whether the witness had the means to obtain a $110,000 mortgage. The inquiry therefore focused upon Peter Lynn’s past and anticipated earnings.
Peter Lynn claimed to have earning potential as a lawyer, as a consultant, and through his “real estate business.” His testimony with respect to each of these activities, however, was less than reassuring. As to his legal practice, he testified as follows:
Q: Have you derived, during the calendar year 1989, any income from practicing law?
A: No.
With respect to his consulting business, his answers were not significantly more encouraging; he acknowledged that any amounts earned were “quite small.” 7 Peter Lynn also claimed to have a “small real estate business” which he carried on “as an avocation.” He testified, however, that his income from this business for the past three months “would be negative; I mean it would be very negative.” All in all, Peter Lynn reported a tax loss of $10,000 for 1988. He also stated that he did not own an automobile.
To be sure, Peter Lynn also claimed that he had bank accounts totalling at least $113,000, 8 and he assured the judge that he would post a bond and take various other measures to protect his father and brother from any loss which they might suffer if he was unable to obtain prompt financing. It was reasonable for the trial judge, however, to consider these representations in *976 light of the history of the litigation, Peter Lynn’s claim of abject poverty, his failure to make other mortgage payments, and the wild accusations which he had leveled in various directions. The judge could surely view it as most unusual that an individual who described himself as “very poor” claimed the ability to pay so much more for the property than anyone else had offered to pay. Moreover, this court is confined to a printed record — a “dehydrated peach,” as this court recently called it, see Stewart v. District of Columbia Dep’t of Employment Servs., 606 A.2d 1350, 1352, n. 5 (D.C.1992) (citation omitted) — and the trial judge was in a far better position than we are to appraise Peter Lynn’s demeanor and credibility. Finally, time was of the essence, and the judge was quite reasonably concerned about the possible loss of an offer which the trustee apparently regarded as being almost a “bird in the hand.” 9
Judge Gardner’s Order Nisi essentially provided that the sale to the third party offeror would be approved unless a significantly superior bona fide offer was tendered. Appellees contend, and I agree, that Peter Lynn had the burden to show, by a preponderance of the evidence, that his was such a bona fide offer. In concluding that Peter Lynn had not made the requisite showing, the trial judge obviously declined to credit Peter Lynn’s representations as to what he would be able to afford. It is not the province of an appellate court to second-guess credibility determinations by a trier of fact who has heard the testimony. In re S.G., 581 A.2d 771, 774-75 (D.C.1990). Indeed, the scope of our review of such a factual determination is restricted by statute; we must sustain it unless it is “plainly wrong or without evidence to support it.” See D.C.Code § 17-305 (1989).
I agree with the majority that the judge could not properly take judicial notice of the size of the monthly payment that he thought Peter Lynn would have to make, or of the amount of monthly income that he would be required to earn, in order to obtain approval of the mortgage loan. Assuming that the judge privately knew that the figures he hypothesized were accurate, “actual private knowledge by the judge is no sufficient ground for taking judicial notice of a fact as a basis for a finding or a final judgment.” Poulnot v. District of Columbia, 608 A.2d 134, 142 (D.C.1992) (quoting 2 John W. STRONG, McCoRMIck on Evidence, § 329 at 390 (4th ed.1992)).
In my opinion, however, the majority makes too much of this issue. Even though the judge could not properly assume, without proof, the precise monthly income which would qualify Peter Lynn for the loan, or the exact monthly payment which he would have to make, he could legitimately take judicial notice of the fact that a borrower would ordinarily need a significant income and that the monthly payment would be substantial. 10 “When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men or women.” Poulnot, supra, 608 A.2d at 141 (citations and internal quotation marks omitted). It does not take specialized expertise to know that one who is “very poor,” who lives with substandard heating and plumbing, who does not own an automobile, who lacks regular employment, and who has been found to have failed to make mortgage payments on other properties, is *977 a questionable candidate for a substantial mortgage loan.
The basic theme of the judge’s decision was that negligible income, poor credit performance, and general financial plight would probably disqualify someone in Peter Lynn’s position from borrowing what he needed in order to make good on his offer. This reality of financial life is, I think, “well-known by all reasonably intelligent people in the community,” Poulnot, supra, 608 A.2d at 141 (citations omitted), and is therefore subject to judicial notice.
Under these circumstances, I cannot agree with my colleagues’ conclusion that the judge’s findings were clearly erroneous or that the judge abused his discretion. In my opinion, the judgment should be affirmed in all respects. Accordingly, I respectfully dissent.
. The third party offeror’s statement was similarly conditioned.
. Peter Lynn testified that “the financing company, I believe, is relying on about 4,000 [dollars] over a period of three months.” [Tr. 36] Although this amount — which would represent an income of $16,000 a year — is not very large for one who seeks a loan in almost seven times that amount, Peter Lynn provided no evidence that he had earned or would earn even this modest income.
. Peter Lynn’s father was not the only individual whom the son accused of plotting against him. At the conclusion of the hearing, Peter Lynn told the judge that "I believe you have made a consciously wrongful decision.” He added that "I regret the participation of the court in a conscious fraud at the lower level.’’ In spite of Peter Lynn’s testimony that he is a member of the Maryland bar, the judge chose to overlook these remarks. Earlier in the case, Peter Lynn intimated that at least one of the trial judges had engaged in wrongdoing against him. He also asserted that all of his pleadings and documents had mysteriously vanished from the case file. [R. 368]
. Judge Taylor also concluded that ”[b]ecause the defendant Peter J. Lynn is failing in his duty to apply the rental proceeds to the expense of maintaining the properties, a hardship is being imposed on the plaintiff James A. Lynn.”
. Although Peter Lynn is an attorney, he generally eschewed pleadings and sought reconsideration instead by writing a series of letters to various judges of the Superior Court. According to counsel for appellees, copies of these letters were never served on him.
. Counsel for appellees made it clear that if Peter Lynn could in fact purchase the property at the higher price, this would be in his client’s interest, and thus altogether acceptable.
. Q: You have stated that you were — you’ve got a source of income from consulting; is that correct?
A: That is sometimes perhaps correct.
Q: And you can tell us whether you consulted within the last 30 days?
A; No.
Q: Did you consult within the last 60 days?
A; I have periodically consulted.
Q: Within the last 60 days? If you can remember.
A: Well, I think there was some slight thing done.
Q: Who did you consult for, sir?
THE WITNESS: Your Honor, I think that this is irrelevant and goes way beyond the limits.
THE COURT: Overruled.
BY MR. PALEOS (counsel for appellees):
Q: Who, sir, did you consult for?
A: Well, several people asked me for information on legal problems. They were all very small consultations.
Q: Who are these people?
A: Well I would have to consult a list.
Q: So you don’t recall? Is that what your testimony is?
A: That’s correct.
Q: Can you tell us how much you earned from these legal consultations, say in the last six months?
A: Well, I don’t know. The amounts for that haven't been figured. They are quite small.
.Even as to this, Peter Lynn provided no documentation and his testimony was disconcertingly imprecise:
‘Well, my bank accounts with Crestar — I don’t know — I don’t have the exact figure — are between 60 and 70 thousand dollars; and with Citibank, about 53 thousand dollars.”
Peter Lynn explained that "I’m sorry, I didn’t come prepared to answer in detail all of these questions.”
. Counsel for James and Jeffrey Lynn summarized for the trial judge the reasons for moving with dispatch:
If he is prepared, Your Honor, to prove to the court today that he can come up with this cash, we would have no objection. But the sad fact is that this is another in a long line of delaying, stalling tactics which is costing the estate a tremendous amount of money. If this sale falls through, we are gong to go through the winter with this property unrent-ed, and it is going to net the estate a large loss. And I don’t think Mr. Lynn, unemployed as he is, can actually make good on that loss. And if he is ever going to come out with anything in this case, it’s to get these properties — this particular property quickly and efficiently sold.
. Perhaps a hypothetical person rich in assets could qualify for such a loan even without any appreciable current income. Given, among other things, Peter Lynn’s prior default on his mortgage payments, however, the judge could reasonably find that Peter Lynn was not such a person.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764525. Public record. Not legal advice.