Full Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 25-CV-0786 MARIE A. LOVERN, et al., APPELLANTS, V. JANENE JACKSON, APPELLEE. Appeal from the Superior Court of the District of Columbia (2022-CAB-005774) (Katherine E. Oler, Judge) (Argued September 22, 2026 Decided November 12, 2026) Aaron Sokolow, with whom Zuka Chuka-Obah was on the brief, for appellants. Frederick D. Cooke, Jr. for appellee. Before BLACKBURNE-RIGSBY, Chief Judge, SHANKER, Associate Judge, and EPSTEIN, Senior Judge of the Superior Court.* * Sitting by designation pursuant to D.C. Code § 11-707(a). 2 EPSTEIN, Senior Judge, Superior Court of the District of Columbia: This appeal is about attorney fees. Appellants Marie A. Lovern and Brian Z. Bloodsworth (Sellers) sold a home to appellee Janene Jackson. After experiencing water problems, Ms. Jackson sued the Sellers, claiming that a statutorily required disclosure statement about the condition of the property contained fraudulent and negligent misrepresentations. When they prevailed at trial, the Sellers requested attorney fees under a provision of the sales contract allowing recovery of legal expenses by a party who prevails in a case “based, in whole or in part, upon the performance or non-performance of the terms and conditions of this contract.” The trial court denied the motion because Ms. Jackson’s claims were based on an alleged violation of a statutory obligation to provide accurate and complete disclosures, not on performance or nonperformance of the terms and conditions of the sales contract. We affirm. I. Background In 2022, Ms. Jackson agreed to purchase from the Sellers a residential property in the District of Columbia. The parties used a form contract developed by the Greater Capital Area Association of Realtors (Sales Contract). Section 7 of the Sales Contract states, “Buyer acknowledges that except as otherwise specified in this Contract, the Property, including electrical, plumbing, existing appliances, heating, 3 air conditioning, equipment and fixtures shall convey in its AS-IS CONDITION as of the date specified above.” Section 33 of the Sales Contract includes an integration clause barring reliance on representations not contained in the Contract: “This Contract, unless amended in writing, contains the final and entire agreement of the parties and the parties will not be bound by any terms, conditions, oral statements, warranties or representations not herein contained.” Section 22(A) of the Sales Contract provides: In any action or proceeding between Buyer and Seller based, in whole or in part, upon the performance or non- performance of the terms and conditions of this contract, including but not limited to, breach of contract, negligence, misrepresentation or fraud, the prevailing party in such action or proceeding shall be entitled to receive reasonable Legal Expenses from the other party as determined by the Court or arbitrator.[1] The parties also executed a Jurisdictional Disclosure and Addendum (Addendum). Section 2 of the Sales Contract makes the Addendum a part of the Sales Contract, and the Addendum provides that the Sales Contract “is hereby amended by the incorporation of this Addendum, which shall supersede any provisions to the contrary in this Contract.” Ms. Jackson checked a box in the Addendum stating that “[p]ursuant to D.C. Code § 42-1302, prior to the submission 1 Section 29(H) defines “Legal Expenses” to include “attorney fees.” 4 of the offer, Buyer is entitled to a Seller’s Disclosure Statement (if the Seller is not exempt) and hereby acknowledges receipt of same,” and Ms. Jackson also acknowledged receipt of the Disclosure Statement in the Disclosure Statement itself. The Disclosure Statement, which is not part of the Sales Contract or the Addendum, expressly states that it “is a disclosure only and is not intended to be part of any contract between Buyer and Seller.” After Ms. Jackson experienced water problems in the home, she filed a complaint against the Sellers alleging that that the Disclosure Statement contained fraudulent and negligent misrepresentations. Following a bench trial, the Superior Court ruled in favor of the Sellers but reserved ruling on their claim for attorney fees. Both sides filed post-trial briefs concerning attorney fees under Section 22(A) of the Sales Contract. The trial court denied the Sellers’ request for attorney fees, concluding that Section 22(A) does not entitle the Sellers to their legal expenses. The Sellers filed a timely notice of appeal. II. Analysis The Sellers argue that they are entitled to attorney fees under Section 22(A) of the Sales Contract. However, Ms. Jackson’s action was based on nonperformance 5 of statutory obligations, and Section 22(A) provides for the recovery of attorney fees based only on nonperformance of contractual obligations. A. Standard of Review “The proper interpretation of a contract, including whether a contract is ambiguous, is a legal question, which this court reviews de novo.” Abdelrhman v. Ackerman, 76 A.3d 883, 887 (D.C. 2013) (citation modified). “The question of whether a contract is ambiguous is one of law to be determined by the court.” Joyner v. Estate of Johnson, 36 A.3d 851, 856 (D.C. 2012) (citation modified). “A contract is ambiguous when, and only when, it is, or the provisions in controversy are, reasonably or fairly susceptible of different constructions or interpretations, or of two or more different meanings.” Gryce v. Lavine, 675 A.2d 67, 69 (D.C. 1996) (citation modified). “We analyze disputed terms in light of what a reasonable person in the position of the parties would have thought the disputed language meant.” 2461 Corp. v. D.C. Alcoholic Beverage & Cannabis Board, No. 24-AA-0806, 2026 WL 2945098, at *4 (D.C. Oct. 1, 2026) (citation modified). “If the document is facially unambiguous, its language should be relied upon as providing the best objective manifestation of the parties’ intent.” 1010 Potomac Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 205 (D.C. 1984). Only if the court finds that “the contract has more than one reasonable interpretation and 6 therefore is ambiguous” can the court consider extrinsic evidence to “determine what a reasonable person in the position of the parties would have thought the disputed language meant.” Tillery v. D.C. Contract Appeals Bd., 912 A.2d 1169, 1176 (D.C. 2006). “A contract is not ambiguous merely because the parties disagree over its meaning, and courts are enjoined not to create ambiguity where none exists.” Lumpkins v. CSL Locksmith, LLC, 911 A.2d 418, 422 (D.C. 2006) (citation modified). Nor is a contract “ambiguous merely because its terms are complex or could have been clearer.” Dist. No. 1–Pac. Coast Dist., Marine Engineers’ Beneficial Ass’n v. Travelers Cas. & Sur. Co., 782 A.2d 269, 274 (D.C. 2001) (citation modified). Courts “will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity.” Bragdon v. Twenty-Five Twelve Assocs. Ltd. P’ship, 856 A.2d 1165, 1170 (D.C. 2004) (citation modified). B. Discussion Under the plain language of Section 22(A) of the Sales Contract, the Sellers are not entitled to attorney fees because the case in which they prevailed was not “based, in whole or in part, upon the performance or non-performance of the terms and conditions of this Contract.” Ms. Jackson’s fraudulent and negligent misrepresentation claims were based on an alleged breach of statutory provisions 7 concerning disclosure, not on an alleged breach of any term or condition of the Sales Contract. Ms. Jackson’s misrepresentation claims were based on alleged shortcomings of the representations in the Disclosure Statement, but these representations were not a term or condition of the Sales Contract. Indeed, the Sellers agree that the trial court correctly concluded that the Disclosure Statement and the representations it contained were not incorporated into the Sales Contract. Here, the representations in the Disclosure Statement were not incorporated into the Sales Contract because the Disclosure Statement explicitly stated that it “is a disclosure only and is not intended to be part of any contract between Buyer and Seller,” and the integration clause in the Sales Contract expressly stated that the parties will not be bound by any “representations not herein contained.” In Section 7 of the Sales Contract, Ms. Jackson acknowledged that the property “shall convey in its AS-IS CONDITION as of the date specified above.” See Regan v. Spicer HB, LLC, 134 F. Supp. 3d 21, 31-32 (D.D.C. 2015) (interpreting the same form contract not to incorporate the disclosure statement or any promise to complete in good faith information in the disclosure statement relating to the condition of the property). The Sellers’ acknowledgement that the representations in the Disclosure Statement are not incorporated into the Sales Contract indicates that Section 22(A) 8 does not apply. Under the plain language of Section 22(A), a case like this one that is based on alleged misrepresentations not incorporated into the Sales Contract is not “based, in whole or in part, upon the performance or non-performance of the terms and conditions of [the Sales Contract].” The Sellers’ interpretation of Section 22(A) would effectively nullify explicit provisions of the Sales Contract and the Addendum that preclude a breach-of-contract claim based on representations contained only in the unincorporated Disclosure Statement. As the trial court correctly stated, Ms. Jackson’s claim was based on a breach of statutory obligations, not a breach of contractual obligations, because the Sellers’ disclosure obligations were imposed by statute, not by contract. Section 42-1302 requires any seller to provide disclosures about defects in the property in residential real estate transactions, and the Code defines the scope of the seller’s liability (§ 42-1303), the seller’s duty to notify the buyer about changes in condition (§ 42-1304), the kinds of information the seller must disclose (§ 42-1305), and the seller’s duty to act in good faith (§ 42-1306). 2 Section 42-1302(b) imposes on sellers an obligation to indicate in the sales contract or an addendum that they complied with statutory requirements concerning disclosure statements, but compliance with 2 Section 42-1302(a)(1) requires the seller to deliver the disclosure statement to the prospective buyer “before or at the time the prospective transferee executes a purchase agreement with the transferor.” 9 this statutory requirement does not turn a statutory claim based on alleged misrepresentations in the disclosure statement into a contractual claim. See Regan, 134 F. Supp. 3d at 31-32 (concluding that reference to the statutorily required disclosure statement and acknowledgment of its receipt do not effect incorporation). In the trial court, Ms. Jackson alleged a breach of statutory obligations, not that the Sellers did not perform a contractual term or condition. Ms. Jackson’s complaint identified D.C. Code § 42-1301 et seq., as the statutory basis of the Sellers’ obligation to provide written disclosures to a prospective purchaser. 3 The Sellers point to the complaint’s reference to and attachment of the Sales Contract. But the complaint’s reference to the Sales Contract simply explains why the statutory disclosure obligation under Section 42-1301 was triggered, and this mere reference is not sufficient to convert a statutory claim into a contractual one. At the end of the trial, Ms. Jackson told the trial court that she was not seeking attorney fees under Section 22(A) because she did not sue for breach of contract given that the disclosures are not part of the sales contract. 3 The Sellers assert, “Stunningly, despite taking a contrary position throughout this litigation, Buyer-Appellee is now arguing that Ms. Lovern and Mr. Bloodsworth had no obligation to ever issue a Disclosure Statement since it was not a condition of the transaction or the Sales Contract.” This is not an accurate characterization of Ms. Jackson’s position. She argues not that the Sellers did not have an obligation to issue a Disclosure Statement, but rather that their obligation was based on the statute and not on the Sales Contract. 10 The Sellers argue that Section 22(A) entitles them to attorney fees because delivery of a disclosure statement was a condition of the contract even though it was not a term of the contract. We are skeptical that the Sales Contract makes the delivery of the disclosure statement a condition precedent to formation or performance of the Sales Contract. 4 See Ball v. Hubbard, 362 A.3d 403, 409-10 (D.C. 2026) (distinguishing between conditions precedent to the formation of a contract and conditions precedent to the performance of a contract). However, even if we assume that delivery of the disclosure statement was a contractual condition precedent, Ms. Jackson did not allege that the Sellers did not perform this condition precedent; in fact, she acknowledged in both the Addendum and the Disclosure Statement that the Sellers delivered a disclosure statement. The wrong alleged by Ms. Jackson was instead that the Disclosure Statement delivered by the Sellers contained fraudulent or negligent misrepresentations. Because the Disclosure Statement expressly states that it is not part of the Sales Contract, and the integration clause in the Sales Contract makes explicit that “the parties will not be bound by any terms, conditions, 4 The Disclosure Statement is not incorporated into the Sales Contract or the Addendum, and the Sales Contract and the Addendum do not state either that the Sellers must provide a disclosure statement or that Ms. Jackson can withhold performance if the Sellers do not provide a disclosure statement. Moreover, Section 42-1310 provides, “A transfer subject to this chapter shall not be invalidated solely because of the failure of any person to comply with any provisions of this chapter.” 11 oral statements, warranties or representations not herein contained,” any deficiencies in the Disclosure Statement were not breaches of any condition (or term) of the Sales Contract. Thus, Ms. Jackson’s claim was based not on breach of any condition precedent requiring delivery of a disclosure statement, but instead on the alleged misrepresentations that were contained in the Disclosure Statement and not incorporated into the Sales Contract. The Sellers’ interpretation of Section 22(A) would read out of the Sales Contract and the Addendum provisions that explicitly preclude a contractual claim based on representations in the Disclosure Statement. 5 Quoting their brief in the trial court, the Sellers argue “that this case ‘falls squarely within the Sales Contract language’ because the case was ‘based upon [Ms. Jackson’s] allegation that [the Sellers] were liable as a result of the sales transaction governed by the Sales Contract.’” It is true that, as the Sellers say, “but for” the Sales Contract, the parties would not have had any transaction and the Sellers would not have had any duty to make any disclosures. However, Section 22(A) provides for recovery of attorney fees only in “any action or proceeding between Buyer and Seller 5 Contrary to the Sellers’ argument, our reading of Section 22(A) would not limit its application to breach-of-contract claims or make its reference to fraud, misrepresentation, and negligence superfluous. For example, a claim that a party fraudulently represented that it intended to complete the purchase as required by Section 25 would be based at least in part on nonperformance of a term or condition of the Sales Contract. 12 based, in whole or in part, upon the performance or non-performance of the terms and conditions of this contract.” It is, therefore, not enough that Ms. Jackson’s claim was related to the sales transaction governed by the Sales Contract—the claim must be based at least in part on nonperformance of the terms and conditions of the Sales Contract itself. 6 III. Conclusion Buyers, sellers, and real estate agents are free to rewrite the form sales contract to permit recovery of attorney fees if a seller or buyer prevails in a case alleging misrepresentations in statutorily required disclosure statements. The form contract could provide for recovery of attorney fees by the prevailing party in any case between buyers and sellers arising out of or related to the underlying real estate 6 Stratakos v. Parcells, 915 A.2d 1022 (Md. Ct. Spec. App. 2007), involved a sales contract for residential real estate permitting the prevailing party to recover attorney fees in “any action or proceeding involving a dispute between the Purchaser and the Seller arising out of this Contract,” and the court held that the buyer could recover fees when it prevailed on its claim alleging misrepresentations in a statutorily required disclosure statement that was not made part of the contract because a tort cause of action can be said to arise out of the contract if the claim could not exist but for the contract. See id. at 1024, 1028-30. Stratakos is distinguishable because the contractual language there is broader than the contractual language in this case, and Stratakos does not indicate that the sales contract contained an integration clause like the Sales Contract between Ms. Jackson and the Sellers, or that the disclosure statement expressly stated that it was not intended to be part of any contract. To the extent the analysis in Stratakos is inconsistent with ours, we are not persuaded by this non-binding decision. 13 transaction, or the integration clause could be modified to include representations in disclosure statements. Courts, however, are powerless to rewrite the clear and unambiguous terms of a contract. See Television Capital Corp. v. Paxson Communications Corp., 894 A.2d 461, 467 (D.C. 2006). The clear and unambiguous terms of the Sales Contract do not permit the Sellers to recover attorney fees based on nonperformance of statutory rather than contractual obligations. Accordingly, we affirm the trial court’s judgment. So ordered.