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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-CV-1069                     12/24/15



                         RICHARD C. BARTEL, APPELLANT,
                                        V.

                  BANK OF AMERICA CORPORATION, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (CAB-5798-13)

                       (Hon. Neal E. Kravitz, Motions Judge)


(Argued June 3, 2015                                 Decided December 24, 2015)
                           (Amended January 14, 2016*)


      Matthew August LeFande for appellant.

      David M. Ross for appellee.

      Before THOMPSON and MCLEESE, Associate Judges, and STEADMAN, Senior
Judge.
      Opinion for the court by Associate Judge MCLEESE.

      Dissenting opinion by Associate Judge THOMPSON at page 18.

      *
        This opinion is amended to make a factual correction in footnote 16 on
pages 30-31.
      MCLEESE, Associate Judge:      Appellant Richard C. Bartel sued appellee

Bank of America Corporation, seeking to compel the Bank to honor a lost cashier‘s

check. The trial court granted summary judgment to the Bank on the ground that

Mr. Bartel had failed to proffer admissible evidence from which a reasonable

factfinder could find that the check has not already been paid. We reverse and

remand for further proceedings.



                                        I.



      In the trial court, Mr. Bartel alleged the following. In 1994, Mr. Bartel

purchased a cashier‘s check in the amount of $30,761 from the Bank‘s predecessor

in interest. The check was payable to ―Dana McKinley or Edna McKinley or

Richard Bartel.‖    The check was intended to serve as consideration for a

contemplated business transaction between Mr. Bartel and the McKinleys. Shortly

after the check was issued, Mr. Bartel and Ms. McKinley placed the check in the

McKinleys‘ fireproof safe, for safekeeping. The McKinleys agreed to hold the

check until Mr. Bartel wanted to retrieve the check or request its return. The

McKinleys decided not to go ahead with the contemplated transaction, but Mr.

Bartel left the check with them in the hope that they might nevertheless come to an

agreement.
                                         3



      The contemplated transaction never took place, and Mr. Bartel eventually

made unsuccessful efforts to obtain the check from the McKinleys. Ms. McKinley,

who was blind and could not open the safe, died in 2008. Mr. McKinley, who had

been appointed a guardian due to failing health, said that he no longer knew the

correct combination to the safe. Mr. McKinley also said that he had not moved or

touched the check and that the check had not been removed from the house.



      In 2009, Mr. Bartel filed an action in Florida seeking to obtain possession of

the check. When the safe was eventually drilled open, the check was not found

inside. Mr. McKinley died in 2011. The check was not listed on the inventories

prepared in connection with the McKinleys‘ estates.          An inquiry into the

McKinleys‘ financial records found no evidence of a deposit other than ordinary

pension deposits. The check did not escheat to the State of Maryland and was not

found in Maryland records of unclaimed property.



      In 2013, Mr. Bartel filed a declaration of loss and demanded that the Bank

pay the check. After the Bank refused to pay, Mr. Bartel filed suit in Superior

Court. In pertinent part, Mr. Bartel sought relief under D.C. Code §§ 28:3-309 and

-312 (2015 Supp.), which establish procedures by which a party can obtain
                                           4

payment of a lost cashier‘s check or other negotiable instrument. The trial court

granted summary judgment to the Bank. Specifically, the trial court concluded that

Mr. Bartel had failed to carry his burden of offering admissible evidence that the

check has not already been paid to someone entitled to enforce it.1



                                          II.



      ―To prevail on a motion for summary judgment, a party must demonstrate

that there is no genuine issue of material fact and that [it] is entitled to judgment as

      1
          The trial court and the parties appear to have used the term ―negotiate‖ to
refer to the presentation of a cashier‘s check to the bank for payment. Strictly
speaking, ―negotiation‖ is the transfer of an instrument to another holder, which is
distinct from presentation to the bank for payment. See D.C. Code § 28:3-201 (a)
(2012 Repl.) (defining ―negotiation‖); D.C. Code § 28:3-501 (2012 Repl.)
(defining ―presentment‖); D.C. Code §§ 28:3-602, -603 (2012 Repl. & 2015 Supp.)
(discussing ―payment‖); see generally, e.g., Lawrence’s Anderson on the Uniform
Commercial Code § 3-201:8, Westlaw (3d ed. database updated Dec. 2014)
(―Presentment of an instrument for payment is not a negotiation of the
instrument.‖). We decide in this opinion only the question whether Mr. Bartel bore
the burden of proof on the issue of prior payment, concluding that he did not.
Although some of the discussion in this opinion is potentially relevant to the
related question whether Mr. Bartel bore the burden of proving that the McKinleys
had not negotiated the check, i.e., transferred possession of the check to a holder,
we choose to leave that question for the trial court to consider on remand. We also
do not decide whether dismissal or summary judgment would be appropriate on
other grounds not reached by the trial court, including laches as well as other
statutory requirements under sections 28:3-309 and 28:3-312. Specifically, we do
not decide the question whether, given that the Bank bears the burden on the issue
of prior payment, the Bank nevertheless can demonstrate an entitlement to
summary judgment on that issue.
                                         5

a matter of law. This court‘s review of orders granting summary judgment is de

novo, with the court conducting an independent review of the record and applying

the same substantive standard used by the trial court. We construe the record in

the light most favorable to the party opposing summary judgment.‖ Boyrie v. E &

G Prop. Servs., 58 A.3d 475, 477 (D.C. 2013) (citations and internal quotation

marks omitted). Because we conclude that neither section 28:3-309 nor section

28:3-312 places on Mr. Bartel the burden of proving that the check has not already

been paid, we reverse the grant of summary judgment.




      We turn first to section 28:3-309.2 Under that provision, a person seeking

payment of a lost instrument must demonstrate that he or she has the right ―to


      2
          Section 28:3-309 provides:

                (a) A person not in possession of an instrument is entitled to
      enforce the instrument if: (1) The person seeking to enforce the
      instrument: (A) Was entitled to enforce the instrument when loss of
      possession occurred; or (B) Has directly or indirectly acquired
      ownership of the instrument from a person who was entitled to
      enforce the instrument when loss of possession occurred; (2) The loss
      of possession was not the result of a transfer by the person or a lawful
      seizure; and (3) The person cannot reasonably obtain possession of the
      instrument because the instrument was destroyed, its whereabouts
      cannot be determined, or it is in the wrongful possession of an
      unknown person or a person that cannot be found or is not amenable
      to service of process.

                                                                       (continued…)
                                         6

enforce the instrument.‖ D.C. Code § 28:3-309 (b). Subsection (a) specifies three

requirements for establishing an entitlement to enforce the instrument. First, the

person seeking payment must either (A) have been entitled to enforce the

instrument at the time possession was lost or (B) have acquired ownership from

someone so entitled. D.C. Code § 28:3-309 (a)(1). Second, the loss of possession

must not be the result of a transfer by the person seeking payment. D.C. Code

§ 28:3-309 (a)(2). Third, the person seeking payment must not be reasonably able

to obtain possession of the instrument. D.C. Code § 28:3-309 (a)(3). The second

and third requirements (non-transfer and unavailability of instrument) plainly do

not impose any burden on the person seeking payment to prove that the instrument

has not already been paid to a person entitled to enforce the instrument. Although

the analysis is more complicated, we conclude that the same is true of the first

requirement.



(…continued)
                (b) A person seeking enforcement of an instrument under
      subsection (a) of this section must prove the terms of the instrument
      and the person‘s right to enforce the instrument. If that proof is made,
      section 28:3-308 applies to the case as if the person seeking
      enforcement had produced the instrument. The court may not enter
      judgment in favor of the person seeking enforcement unless it finds
      that the person required to pay the instrument is adequately protected
      against loss that might occur by reason of a claim by another person to
      enforce the instrument. Adequate protection may be provided by any
      reasonable means.
                                          7

      In the present case, Mr. Bartel apparently relies on section 28:3-

309 (a)(1)(A), which requires that he show that he was entitled to enforce the

instrument when he lost possession of the instrument. Under D.C. Code § 28:3-

301 (2012 Repl.), the phrase ―person entitled to enforce‖ an instrument includes a

holder of the instrument, a non-holder in possession of the instrument, and a person

entitled to enforce the instrument under section 28:3-309.        Under D.C. Code

§ 28:1-201 (20) (2012 Repl.), one way to qualify as a holder of a negotiable

instrument is to be in possession of an instrument payable to the person. These

provisions do not require Mr. Bartel to establish that the check at issue in this case

has not already been paid.




      Section 28:3-309 functions sensibly under this reading. Qualifying as a

person entitled to enforce an instrument does not establish a right to payment of the

instrument. Rather, the Bank in this case can avoid having to pay the cashier‘s

check if the Bank can establish a defense to payment under D.C. Code § 28:3-

308 (b) (2012 Repl.). Critically for current purposes, however, section 28:3-308

places the burden on the bank to prove any defense it may have. D.C. Code

§ 28:3-308 (b) (person entitled to enforce instrument is entitled to payment unless

―the defendant proves a defense or claim in recoupment‖).           Moreover, prior

payment of an instrument is generally treated as an affirmative defense. See, e.g.,
                                          8

Household Fin. Co. v. Watson, 522 S.W. 2d 111, 114 & n.1 (Mo. Ct. App. 1975)

(―Payment is an affirmative defense . . . .‖); Estate of Kosuga v. Rockstar Media,

LLC, No. 10. Civ. 6628(ER), 2013 WL 1268612, at *6 (S.D.N.Y. Mar. 28, 2013)

(―[P]ayment is essentially an affirmative defense, of which the burden of proof

rests on the party who pleads it.‖); Lawrence’s Anderson on the Uniform

Commercial Code § 3-603:28, Westlaw (3d ed. database updated Dec. 2014)

(―Payment is an affirmative defense and the burden of proof is on the party

asserting it.‖). We also note that section 28:3-309 (b) precludes the trial court from

requiring payment of a lost instrument unless the person required to pay ―is

adequately protected against loss that might occur by reason of a claim by another

person to enforce the instrument. Adequate protection may be provided by any

reasonable means.‖3




      For the foregoing reasons, we conclude that section 28:3-309 does not place

a burden on Mr. Bartel to prove that the cashier‘s check has not previously been

paid. We reach the same conclusion as to section 28:3-312, which provides an


      3
          The Bank argues that it no longer has records that might shed light on
whether the cashier‘s check has previously been paid, because it retains records for
only seven years -- one year longer than is required under federal law. We do not
view that circumstance as determinative of the burden-of-proof issue, although it is
potentially relevant to one or more of the Bank‘s defenses.
                                           9

alternative procedure, available in addition to the procedure established under

section 28:3-309, to parties seeking payment of lost cashier‘s checks. D.C. Code

§ 28:3-312 (d). Under section 28:3-312‘s procedure, the claimant must demand

payment from the bank. D.C. Code § 28:3-312 (b). Among other requirements,

the demand must include a sworn declaration of loss.               D.C. Code § 28:3-

312 (b)(ii). The declaration of loss must state that ―(i) the declarer lost possession

of a check, (ii) the declarer is the . . . payee of the check, in the case of a cashier‘s

check or teller‘s check, (iii) the loss of possession was not the result of a transfer

by the declarer or a lawful seizure, and (iv) the declarer cannot reasonably obtain

possession of the check . . . .‖ D.C. Code § 28:3-312 (a)(3). Subject to various

timing requirements, a properly submitted claim becomes ―enforceable.‖ D.C.

Code § 28:3-312 (b).




      Once the claim is enforceable, ―the obligated bank becomes obliged to pay

the amount of the check to the claimant if payment of the check has not been made

to a person entitled to enforce the check.‖ D.C. Code § 28:3-312 (b)(4). This

provision is not explicit about whether claimants or banks bear the burden of proof

on the issue of prior payment. We conclude that the provision is better read as

implicitly imposing the burden on banks. First, information about whether a check

has already been paid will in general be more readily available to banks than to
                                         10

claimants. See generally, e.g., Riggs Nat’l Bank of Washington, D.C. v. District of

Columbia, 581 A.2d 1229, 1249-50 (D.C. 1990) (allocating burden of proof on

issue to banks because, among other reasons, facts relevant to issue were ―more

likely to be within the knowledge of the bank‖) (brackets and internal quotation

marks omitted). Second, as we have already noted, the applicable statutory scheme

treats comparable issues as matters of defense. D.C. Code §§ 28:3-309, -308 (b).




      In sum, we conclude that Mr. Bartel does not have the burden of proving

that the cashier‘s check in this case has not already been paid. We therefore

disagree with the ground upon which the trial court granted summary judgment. In

this court, the bank raises several alternative contentions upon which it claims

summary judgment could appropriately have been granted, such as that Mr.

Bartel‘s declaration of loss under section 28:3-312 was deficient; that Mr. Bartel

transferred the cashier‘s check to the McKinleys, thereby defeating his claim under

both section 28:3-309 and section 28:3-312; and that Mr. Bartel‘s claim is barred

by laches. Mr. Bartel disputes those contentions. The trial court did not resolve

those issues, and we ―exercise our discretion to leave [those] issue[s] for resolution

by the trial court in the first instance.‖ Folks v. District of Columbia, 93 A.3d 681,

686 (D.C. 2014). See generally, e.g., Jaiyeola v. District of Columbia, 40 A.3d

356, 372 (D.C. 2012) (although court has discretion to affirm grant of summary
                                          11

judgment on alternative grounds not decided by trial court, court has ―cautioned

that it usually will be neither prudent nor appropriate for this court‖ to do so)

(internal quotation marks omitted).




      As the dissent notes, this court in some circumstances will affirm a trial

court‘s ruling on alternative grounds not decided by the trial court. In our view,

that approach is not warranted in this case. With respect to Mr. Bartel‘s request for

relief under section 28:3-312, the dissent would affirm on the ground that Mr.

Bartel‘s sworn declaration of loss was deficient in two respects, because the

declaration failed to allege both (1) that Mr. Bartel lost possession of the check and

(2) that the loss of possession was not the result of a transfer by Mr. Bartel. As to

the first asserted deficiency, however, the Bank did not raise either in the trial court

or in this court the specific argument that the declaration failed to allege loss of

possession. Affirmance on that ground therefore would not be appropriate. See,

e.g., Linen v. Lanford, 945 A.2d 1173, 1180 n.4 (D.C. 2008) (―Generally speaking,

matters not properly presented to a trial court will not be resolved on appeal.‖)

(internal quotation marks omitted); In re Shearin, 764 A.2d 774, 778 (D.C. 2001)

(points not raised on appeal ―are treated as abandoned‖).
                                           12

      As to the second asserted deficiency, the Bank did argue that the declaration

of loss was inadequate on the issue of transfer. In doing so, however, the Bank

appears to have understood the declaration to have been supplemented by Mr.

Bartel‘s sworn statements in response to interrogatories. Thus, as framed by the

Bank, the question is whether the declaration and the response to interrogatories,

taken together, were adequate on the issue of transfer. That question also arises

under section 28:3-309, and we discuss that question on the merits briefly infra.

But it would not be prudent or procedurally fair to affirm on the different ground,

relied upon by the dissent, that the declaration must be considered in isolation and

so considered is deficient. The Bank has not argued that the declaration must be

considered in isolation, the parties have not briefed that issue, the trial court did not

decide the issue, and the dissent does not explicitly address the issue.




      With respect to Mr. Bartel‘s request for relief under section 28:3-309, the

dissent first concludes that the undisputed facts establish that Mr. Bartel transferred

the check to the McKinleys. See D.C. Code §§ 28:3-309 (a)(2) (loss of possession

must not be result of transfer). We do not share the dissent‘s confidence. As the

dissent notes, ―transfer‖ is defined as delivery ―for the purpose of giving to the

person receiving delivery the right to enforce the instrument.‖ D.C. Code § 28:3-

203 (a) (2012 Repl.). Although the dissent states that Mr. Bartel ―delivered the
                                        13

check to the McKinleys for the purpose of giving them the right to enforce it,‖ Mr.

Bartel indicated in a sworn statement that he did not intend the McKinleys to have

any authority over the check other than to hold it until its return or until the

contemplated transaction was consummated.       The dissent asserts that delivery

under such circumstances should still be viewed as a ―transfer.‖ The dissent cites

no case so holding, however, relying instead on an illustration in a report by the

Permanent Editorial Board of the Uniform Commercial Code that neither party

cited and that addresses the use of a note as security. See Permanent Editorial Bd.

for the Unif. Commercial Code, Application of the Uniform Commercial Code to

Selected Issues Relating to Mortgage Notes 11 (2011) (stating that if borrower

delivers mortgage note to provider of funds, as security, provider of funds would

be entitled to enforce note if delivery of note constituted transfer of note). The

illustration poses rather than answers the question whether delivery of a mortgage

note in such circumstances would be a transfer. Id. Moreover, the illustration does

not discuss section 28:3-309 or address shared possession of a cashier‘s check

among co-payees. Id. We also observe that the dissent does not fully respond to

Mr. Bartel‘s arguments as to why giving a cashier‘s check to another payee for

safekeeping and possible future negotiation should not be viewed as a transfer. We

are not inclined to reach out to decide an uncertain question of apparent first
                                         14

impression in the absence of a ruling by the trial court and fuller briefing by the

parties.




       Second, the dissent concludes that Mr. Bartel failed to establish a material

dispute of fact as to whether he was entitled to enforce the check at the time he lost

possession, because the check at some point might have been endorsed by the

McKinleys so as to permit a third party to enforce the check. This issue too seems

far from settled. For one thing, it is unclear to us when Mr. Bartel lost possession

of the check, and the dissent does not explicitly address that question. Mr. Bartel

presumably lost actual possession of the check when the check was put in the

McKinleys‘ safe, and no one has suggested that the McKinleys had endorsed the

check at that point. It is less clear, however, for how long, if at all, Mr. Bartel

thereafter had constructive possession of the check.       Nor is obvious whether

constructive possession counts as possession for purposes of section 28:3-309.




       In any event, we think it unclear that Mr. Bartel failed to raise a material

dispute of fact on the question whether the McKinleys endorsed the check before

Mr. Bartel lost possession of the check. According to Mr. Bartel, (1) he obtained

the check with his own funds; (2) he entrusted the check to the McKinleys‘
                                         15

safekeeping in the hope that the check would become consideration for a business

transaction; (3) the transaction never occurred; (4) he unsuccessfully demanded

return of the check; (5) he has no information that the check was endorsed to a

third party or presented to a bank for payment; (6) various searches failed to locate

the check; and (7) an analysis of the McKinleys‘ financial records showed no

transaction suggesting that the McKinleys presented the check for payment or

endorsed the check to a third party in exchange for payment. Such evidence would

not be dispositive, but the dissent does not explain why a reasonable factfinder

could not infer by a preponderance of the evidence that the McKinleys did not

violate their alleged agreement with Mr. Bartel by negotiating the check before Mr.

Bartel lost possession of the check. Cf. Ruby v. Farmers Mut. Auto. Ins. Co., 79

N.W.2d 644, 645-48 (Wis. 1956) (although insurance policy provided that

mysterious disappearance of property would presumed to be due to theft,

circumstantial evidence supported trial court‘s inference that property at issue was

lost rather than stolen); cf. generally, e.g., Schwab v. Reilly, 560 U.S. 770, 790

(2010) (noting ―the presumption that parties act lawfully‖); Rock River Commc’ns,

Inc. v. Universal Music Grp., Inc., 745 F.3d 343, 350 (9th Cir. 2014) (―Both

California and federal law assume that people act lawfully unless proven

otherwise.‖).
                                           16

      As the dissent points out, Mr. Bartel stated in his reply brief that the

McKinleys had the right to alienate the check.            We do not understand that

statement, however, as a concession that Mr. Bartel would have had no legal

complaint against the McKinleys had they negotiated the check contrary to the

alleged agreement between Mr. Bartel and the McKinleys.             More generally,

whether it would have been wrongful for the McKinleys to negotiate the check

under the alleged circumstances of this case seems yet another issue better left for

consideration in the first instance by the trial court.




      The dissent further points out that checks ―do not disappear out of safes into

thin air.‖ It does not follow, however, that the check in this case must have been

negotiated by the McKinleys, because -- among other possibilities -- checks can be

inadvertently removed from safes and lost or misplaced.




      Finally, we note that the dissent repeatedly suggests that Mr. Bartel bears the

burden under section 28:3-309 of showing that the check was never endorsed by

the McKinleys. That too seems unclear at best. It is true that section 28:3-309 (a)

requires a claimant to establish that he or she ―is entitled to enforce the

instrument.‖ But the provision further indicates that a claimant may meet that
                                         17

requirement by showing (1) an entitlement to enforce the instrument at the time the

claimant lost possession of the instrument, (2) that the loss of possession was not

the result of transfer by the claimant or lawful seizure; and (3) that the claimant is

unable to obtain possession of the instrument. D.C. Code § 28:3-309 (a). On its

face, at least, the provision focuses on a claimant‘s right of enforcement at the time

the claimant loses possession of the instrument, not at the time the instrument later

cannot be found by anyone or at the time the claimant brings suit. The provision

thus does not appear to place on a claimant the very difficult task of proving what

happened to the instrument after the claimant lost possession of the instrument.




      In sum, we are not inclined to affirm the trial court‘s denial of relief under

sections 28:3-309 and 28:3-312 on the alternative grounds relied upon by the

dissent.



      Accordingly, the judgment of the Superior Court is reversed and the case is

remanded for further proceedings.



                                                           So ordered.
                                         18

      THOMPSON, Associate Judge, dissenting:        I see no reason why we should

drag out this litigation through a remand when, on the summary judgment record

that is before us, we are able to conclude as a matter of law that appellant Bartel is

not entitled to recover under either of the statutory provisions on which he relies:

D.C. Code §§ 28:3-312 and 28:3-309 (2012 Repl. & Supp. 2014).1 To explain why

we are able to do so, I begin with a summary of the facts that adds some important

details to the summary set out in the majority opinion.




      On March 9, 1994, Mr. Bartel purchased a cashier‘s check in the amount of

$30,761.00 from NationsBank, the predecessor of Bank of America N.A. (the

―Bank‖).2 The check was made payable to the order of ―Dana McKinley or Edna

McKinley or Richard Bartel.‖       In his summary judgment papers, Mr. Bartel

explained that, from ―shortly after its issuance,‖ the check was in the possession of

Dana McKinley; it was ―intended to be [Mr. Bartel‘s] consideration for a

contemplated later business transaction between the McKinleys and [Mr. Bartel].‖

      1
         The provisions of D.C. Code Title 28, Subtitle I contain the Uniform
Commercial Code (―UCC‖) as adopted in the District of Columbia. See D.C. Code
§ 28:1-101 (2012 Repl.).
      2
        Mr. Bartel brought the instant action against appellee Bank of America
Corporation, which asserted in its answer that the Bank is ―the sole proper party
defendant.‖ However, appellee did not raise this as an issue in its brief in this
appeal.
                                        19

Specifically, Mr. Bartel ―sought for the McKinleys to sell their shares of Eclipse

Holdings, Inc. [a company of which Mr. Bartel was a majority shareholder] back to

the company treasury.‖ Dana McKinley and Mr. Bartel ―personally placed the

check in [the McKinley‘s fireproof] safe in 1994[.]‖ The McKinleys ―refused to

consummate the intended business transaction[,]‖ but Mr. Bartel ―nevertheless left

the funds with Dana McKinley with hope that they would come to an agreement

later.‖ The transaction that Mr. Bartel hoped for never occurred.




      Mr. Bartel eventually made demands for return of the check in ―numerous

emails, telephone calls, and personal visits to Dana.‖ According to Mr. Bartel,

Dana McKinley (―Dana‖) told him that he ―never touched or moved the check‖

and that ―the check was never removed from his house,‖ but also stated at some

point that the safe could not be opened because either he had fumbled a change in

the combination or ―his Guardian had changed the combination.‖ The guardian

had been appointed in 2008 because Dana was suffering from ―deteriorating

mental illness.‖ At some point, the guardian had the safe drilled open, and the

cashier‘s check was not found.
                                        20

      Edna McKinley (―Edna‖) died in April 2008, having at some point prior to

that time become ―blind and immobile.‖ The record does not disclose at what

point Edna became blind and immobile, but, according to Mr. Bartel, he and the

Mckinleys (i.e., both Edna and Dana) ―continued to work together for several

years‖ after the McKinleys declined to sell their Eclipse Holdings stock. Further,

although averring that Dana stated that he ―never touched or moved the check,‖

Mr. Bartel made no reference to any equivalent representation by Edna.




      Mr. Bartel stated in a May 2008 email that Rene McKinley (Dana‘s sister

and Edna‘s daughter) had access to the McKinley safe ―years ago‖ through ―a

combination given to her by a friend of Edna‘s, William Sharrar.‖




      Dana McKinley died in September 2011.          The cashier‘s check was not

listed on either Dana‘s or Edna‘s estate inventory, and the representatives of the

estates reported that, after diligent efforts, they could find no evidence that the

check was deposited into an account belonging to either.3


      3
         Mr. Bartel requested that the Bank research the check. The Bank
responded that it had no record of escheatment of the funds corresponding to the
check amount. In addition, Mr. Bartel sent an inquiry to the office of the
                                                                      (continued…)
                                        21




      Mr. Bartel asserts that he had ―no information indicating to [him] that the

cashier‘s check was lost until the inventory of Dana McKinley‘s estate in 2013.‖

On July 29, 2013, he wrote to the Bank, attaching a copy of the check, making

what he labeled a ―declaration of loss,‖ and demanding payment. The Bank

declined to honor his demand for payment. It explained that, in compliance with

federal law, it keeps its records, including records of predecessor banks, for a

period of seven years, which exceeds the record-retention period required under

federal law.4 The Bank asserts that it has no records of the check and has been

unable to ―locate any information related to the Check.‖5




(…continued)
Comptroller of Maryland, the State in which the check was issued, which office
reported that it had no record of unclaimed funds relating to the check.
      4
         See 12 U.S.C. § 1829b (g) (2012) (providing that ―[a]ny type of record or
evidence required under this section [entitled ―Retention of records by insured
depository institutions‖] shall be retained for such period as the Secretary may
prescribe for the type in question‖ but that ―[a] period so prescribed shall not
exceed six years unless the Secretary determines . . . that a longer period is
necessary in the case of a particular type of record or evidence‖).
      5
        The Bank asserted in an opposition to Mr. Bartel‘s motion for summary
judgment that it ―is extremely likely that one of the other payees negotiated the
instrument years ago and that record of the transaction has since been destroyed as
per BofA‘s policies and procedures.‖
                                          22

      On August 23, 2013 — more than 19 years after the cashier‘s check was

issued by the Bank‘s predecessor — Mr. Bartel brought suit against appellee for

the check amount of $30,761.00, asserting claims under Article 3 of the UCC. He

argued in his summary judgment papers that, on the undisputed facts, he satisfies

the requirements of § 28:3-312 (―§ 3-312‖) (entitled ―Lost, destroyed, or stolen

cashier‘s check, teller‘s check, or certified check‖) or, ―alternatively,‖ the

requirements of § 28:3-309 (―§ 3-909‖) (entitled ―Enforcement of lost, destroyed,

or stolen instrument‖). The appeal presents issues of statutory construction, as to

which our review is de novo.




        The summary judgment record enables us to conclude that Mr. Bartel does

not satisfy the requirements of § 28:3-312. Section 3-312 creates an obligation for

a bank (the ―obligated bank‖) to pay the amount of a cashier‘s check to a

―claimant‖ who declares, in a declaration of loss that comports with the

requirements set out in the statute, that the check was lost, destroyed, or stolen.

§ 3-312 (b)(4). To comply with § 3-312 with respect to a cashier‘s check, a

declaration of loss must state under penalty of perjury ―to the effect‖ that:


             (i) the declarer lost possession of a check,

             (ii) the declarer is the . . . remitter [i.e., purchaser] or
             payee of the check . . .
                                         23


            (iii) the loss of possession was not the result of a transfer
            by the declarer or a lawful seizure, and

            (iv) the declarer cannot reasonably obtain possession of
            the check because the check was destroyed, its
            whereabouts cannot be determined, or it is in the
            wrongful possession of an unknown person or a person
            that cannot be found or is not amenable to service of
            process.



§ 3-312 (a)(3).




      Mr. Bartel states that his ―demand of July 29, 2013 . . . satisfie[d] the

definition of a ―declaration of loss[.]‖6     However, quite clearly, his purported

declaration of loss was missing some of the statutorily required elements. It does

not state, under penalty of perjury or otherwise, that ―the declarer lost possession

of a check.‖ Nor does it state that ―the loss of possession was not the result of a

transfer by the declarer or a lawful seizure‖ (and, as discussed below, Mr. Bartel

stated to the contrary, in a sworn interrogatory response, that he gave the check to

the McKinleys to pay them for the (anticipated) sale of certain stock to Mr.



      6
        He has never argued that his demand letter plus his interrogatories or
something else together constitute his declaration of loss.
                                          24

Bartel).7 In short, the purported declaration of loss did not strictly comply with

§ 3-312 (a)(3).8




      Just as clearly, the summary judgment record shows that Mr. Bartel cannot

satisfy the requirements of § 3-309. Section 3-309 (a), entitled ―Enforcement of

lost, destroyed, or stolen instrument,‖ provides that:


             (a) A person not in possession of an instrument is entitled
             to enforce the instrument if:

                    (1) the person seeking to enforce the instrument
                    . . . [w]as entitled to enforce the instrument when
                    loss of possession occurred . . .

                    (2) [t]he loss of possession was not the result of a
                    transfer by the person or a lawful seizure; and



      7
           Further, Mr. Bartel did not assert in his Complaint that the loss of
possession was not the result of a transfer. Cf. Hirsch v. Wells Fargo Bank, No.
1:13-cv-01489, 2014 U.S. Dist. LEXIS 29587, *6 (N.D. Ohio Mar. 7, 2014)
(―[W]hen a complaint omits facts that, if they existed, would clearly dominate the
case, it seems fair to assume that those facts do not exist.‖ (quoting McGregor v.
Industrial Excess Landfill, Inc., 856 F.2d 39, 42 (6th Cir. 1988) (further citation
omitted)).
      8
         Because a declaration of loss that complies with § 3-312 (a)(3) creates an
obligation for the bank that issued the cashier‘s check to pay the check, see § 3-312
(b)(4), and because the obligated bank ―may not impose additional requirements on
the claimant,‖ U.C.C. § 3-312 cmt. 2, strict compliance with the elements of § 3-
312 (a)(3) is required.
                                        25

                   (3) [t]he person cannot reasonably obtain
                   possession of the instrument because the
                   instrument was destroyed, its whereabouts cannot
                   be determined, or it is in the wrongful possession
                   of an unknown person or a person that cannot be
                   found or is not amenable to service of process.

            (b) A person seeking enforcement of an instrument under
            subsection (a) of this section must prove the terms of the
            instrument and the person‘s right to enforce the
            instrument. . . .



      Thus, to prevail under § 3-309, Mr. Bartel must prove that ―[t]he loss of

possession [of the cashier‘s check] was not the result of a transfer by the person.‖

Per D.C. Code § 28:3-203 (a), an instrument is ―transferred‖ ―when it is delivered

by a person other than its issuer for the purpose of giving to the person receiving

delivery the right to enforce the instrument.‖ Mr. Bartel acknowledges that he

handed over possession of the cashier‘s check to the McKinleys, named payees, in

anticipation that they would accept the check as consideration for the sale of their

shares of stock in Eclipse Holdings, Inc. In other words, he voluntarily and

purposely delivered the check to the McKinleys for the purpose of giving them the

right to enforce it.9 This undisputed fact alone is enough to defeat Mr. Bartel‘s


      9
        The McKinleys did not already have the right to enforce the instrument
simply by virtue of the fact that they were named payees. To have a right to
enforce the check, they needed to be (or to have been) in possession of the
instrument. See D.C. Code § 28:3-301 (2012 Repl.) (providing that ―person
                                                                      (continued…)
                                         26

claim. The fact that his intent to enable the McKinleys to enforce the check was

contingent upon their agreement to the stock sale, and the fact that Mr. Bartel had a

right to demand the return of the check or the purchase price if the sale did not

occur, do not negate the fact that he made a transfer that rendered him unable to

satisfy § 3-309 (a)(2).10 See 6B Ronald A. Anderson, Anderson on the Uniform


(…continued)
entitled to enforce‖ means ―the holder of the instrument‖); D.C. Code § 28:1-
201(21) (2012 Repl. & Supp. 2014) (providing that in the case of an instrument
made payable to an identified person, the ―holder‖ is that ―identified person‖ if
(s)he ―is the person in possession‖); Gregory E. Maggs, Determining the Rights
and Liabilities of the Remitter of a Negotiable Instrument: A Theory Applied to
Some Unsettled Questions, 36 B.C. L. Rev. 619, 649 (July 1995) (―[A] person who
does not have possession of an instrument generally cannot enforce it.‖).

       I recognize that Mr. Bartel has asserted in his sworn interrogatory responses
that he placed the check in the McKinleys‘ safe ―for safekeeping,‖ but, even if
fully credited, that statement does not negate Mr. Bartel‘s further sworn assertion
that by delivering to the McKinleys the check payable to either of them, he gave
them the authority to enforce the check, albeit in contemplation of their coming ―to
an accord regarding the[] sale‖ of their stock to Mr. Bartel.
      10
          This is consistent with the guidance provided by the Permanent Editorial
Board of the Uniform Commercial Code (the ―UCC Board‖). In a report that
courts have cited numerous times as elucidating the application of Article 3 of the
UCC, the UCC Board contemplates that if the Payee of a note borrows money
from a lender (―Funder‖) and gives possession of the note (which, like a cashier‘s
check, is a negotiable instrument) to the Funder to secure the Payee‘s repayment
obligation, the delivery of the note from Payee to Funder can constitute ―a transfer
of the note under UCC § 3-203‖ even though the Funder‘s right to enforce its
security interest in the note is contingent upon Payee‘s default on its repayment
obligation. Report of the Permanent Editorial Board for the Uniform Commercial
Code, ―Application of the Uniform Commercial Code to Selected Issues Relating
to Mortgage Notes,‖ at 11 (November 14, 2011) (the ―Report‖); see also, e.g.,
                                                                       (continued…)
                                         27

Commercial Code § 3-309:5, p. 261 (3d ed. 1998) (―The fact that the plaintiff

would be able to . . . set aside a transfer because of fraud or other reason does not

remove the bar imposed by . . . § 3-309 of having made a voluntary transfer.‖).

Mr. Bartel‘s transfer to the McKinleys ―vest[ed] in the[m as] transferee[s] any right

of [Mr. Bartel as] transferor to enforce the instrument.‖ D.C. Code § 28:3-203 (b).




      Mr. Bartel also cannot prove through competent evidence that he has the

right to enforce the instrument, § 3-309 (b), or that he had that right ―when loss of



(…continued)
(Darlene) Brown v. Dep’t of Commerce, 359 P.3d 771, 778 (Wash. 2015) (en
banc) (citing the Report as ―authoritative‖); Skelton v. Urban Trust Bank, 516 B.R.
396, 404 (Bankr. N.D. Tex. 2014) (applying the Report‘s guidance on ―transfers‖
under the UCC); Mandalay Resort Group v. Miller (In re Miller), 310 B.R. 185,
191 n.11 (Bankr. C.D. Cal. 2004) (explaining that UCC Article III ―negotiable
instruments include [inter alia] promissory notes, [and] cashier‘s checks‖).

       Moreover, to conclude that there was no transfer within the meaning of D.C.
Code § 28:3-203 (a) because of circumstances related to the anticipated business
deal would contravene the general scheme of Article 3 of the U.C.C., which is to
make it unnecessary to ―delve into the contractual relationships of named
payees[.]‖ Cf. American Nat’l Ins. Co. v. Citibank, 543 F.3d 907, 910 (7th Cir.
2008); see also id. at 909-10 (―Instead of being able to look at the payee line and to
verify that the person presenting the check was indeed entitled to do so, banks in
ANICO‘s world would need to conduct a full-blown investigation every time to
make sure that a party with an equitable interest in the check was not lurking in the
background. Such a system would bring commercial transactions to a grinding
halt.‖).
                                        28

possession occurred[.]‖ § 3-309 (a)(1).11 As Judge Kravitz recognized, Mr. Bartel

was ―handicapped in meeting [his] burden because [the McKinleys] died before the

complaint was filed and [as far as the record shows, their] testimony was not

preserved in a deposition[,]‖ Hamilton v. Howard Univ., 960 A.2d 308, 318 (D.C.

2008), and because anything Dana told Mr. Bartel about the check would be

inadmissible hearsay. While Mr. Bartel might be able to call Dana‘s guardian, or

the McKinleys‘ estate representatives, or other witnesses to testify that the check

was not found in the safe and that they found no evidence of a deposit of the

cashier‘s check amount into either of the McKinleys‘ bank accounts, that evidence

would have been relevant only to whether the McKinleys continued to possess the

check at the time of their deaths, or whether they deposited the cashier‘s check

during a period for which their records or bank records are extant.12 Moreover,


      11
           A person seeking to enforce an instrument under § 3-309 has the burden
of proving ―the terms of the instrument‖ and the person‘s ―right to enforce the
instrument.‖ § 3-309 (b). Since one of the terms of the instrument is the payee,
see, e.g., Yahn & McDonnell, Inc. v. Farmers Bank of Delaware, 708 F.2d 104,
109 (3d Cir. 1983), ―right to enforce the instrument‖ must mean something more
than status as one of the alternative named payees.
      12
         Mr. Bartel stated in a June 2009 email that the check had not been cashed
―since 1999‖ – presumably the earliest date covered by the McKinleys‘ existing
bank records. That leaves five years prior to 1999 as to which Mr. Bartel has come
forward with no competent evidence accounting for the status or disposition of the
check. Yet, ―[v]irtually all [cashier‘s checks] are presented for payment within 90
days‖ after the date of issuance. U.C.C. § 3-312 cmt. 3.
                                          29

such testimony would not have addressed, e.g., whether either of the McKinleys

negotiated the check in some other way,13 such as (as appellee suggests) by

endorsing it and ―transfer[ring] it to a third party holder in due course.‖ If either of

them did transfer the check, the transfer ―vest[ed] in the transferee any right of the

transferor to enforce the instrument[,]‖ D.C. Code § 28:3-203 (b) (―§ 3-203 (b)‖),

and thus divested the named payees — including Mr. Bartel — of any right to

enforce the instrument.14 Cf. Cadle Co. v. Proulx, 725 A.2d 670, 672 (N.H. 1999)

(citing New Hampshire‘s version of § 3-203 (b) and holding that plaintiff‘s transfer

of a note ―divested [plaintiff] of the right to enforce the note in a court

proceeding‖); United States Bank, N.A. v. Ugrin, 91 A.3d 924, 930 (Conn. App. Ct.

2014) (―If an endorsement makes a note payable to an identifiable person, it is a

‗special endorsement,‘ and only the identified person in possession of the

instrument is entitled to enforce the instrument.‖). The same result follows if

      13
           Per D.C. Code 28:3-201 (a), ―‗[n]egotiation‘ means a transfer of
possession, whether voluntary or involuntary, of an instrument by a person other
than the issuer to a person who thereby becomes its holder.‖ ―Except for
negotiation by a remitter, if an instrument is payable to an identified person,
negotiation requires transfer of possession of the instrument and its indorsement by
the holder. If an instrument is payable to bearer, it may be negotiated by transfer
of possession alone.‖ Id., § 3-201 (b).
      14
          Under D.C. Code § 28:3-110 (d) (2012 Repl.), ―[i]f an instrument [like
the one at issue in this case] is payable to 2 or more persons alternatively, it is
payable to any of them and may be negotiated, discharged, or enforced by any or
all of them in possession of the instrument.‖
                                         30

either of the McKinleys endorsed the cashier‘s check in blank and it thereafter fell

into the hands of a third person,15 becoming payable to that person and

extinguishing any right Mr. Bartel had to enforce the instrument. See D.C. Code

§ 28:3-109 (c) (2012 Repl.) (providing that ―[a]n instrument payable to an

identified person may become payable to bearer if it is indorsed in blank pursuant

to section 28:3-205 (b)‖); D.C. Code 28:3-205 (b) (2012 Repl.) (―When indorsed in

blank [i.e. indorsed without identifying a person to whom it is made payable], an

instrument becomes payable to bearer and may be negotiated by transfer of

possession alone[.]‖). As to these possibilities, the record contains only hearsay

evidence (e.g., Mr. Bartel‘s statement that Dana told him that he ―never touched or

moved the check‖). ―Such hearsay evidence is insufficient to create a genuine

issue of material fact‖ and thus to avoid summary judgment. (Carla) Brown v.

Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001).16



      15
       As described above, the record suggests that at least two ―third persons‖
— Rene McKinley and William Sharrar — had the combination to the safe.
      16
          The foregoing issues — whether Mr. Bartel‘s purported declaration of
loss was legally sufficient and whether Mr. Bartel can prove that his loss of
possession of the check was not the result of a transfer and that he was entitled to
enforce the check at the time it was lost — were raised by appellee in the trial court
and before us, and Mr. Bartel has had a full opportunity to brief the issues. An
additional issue — and, in my view, an additional reason why summary judgment
in favor of appellee was warranted — relates to the requirement that a claimant
seeking to enforce an instrument under § 3-312 (a)(3)(i) must have been in
                                                                        (continued…)
                                         31




      Mr. Bartel argues that the Bank should bear the burden of proving (as an

affirmative defense) that the check was already paid. That may be so (and I do not

disagree with my colleagues on this point), but the point I make is that the Bank‘s

burden is not triggered unless Mr. Bartel first shows that he was entitled to enforce

the instrument when loss of possession occurred (and, as already discussed, that he

did not lose possession of the check as a result of a transfer). At the summary

judgment stage, having told the court repeatedly (in successive motions for

summary judgment) that the matter was ripe for decision on the summary


(…continued)
possession of the instrument at the time it became ―lost.‖ It appears that Mr. Bartel
cannot satisfy this requirement either, because if the check was ―lost,‖ it became
lost not while it was in Mr. Bartel‘s possession, but after it was delivered to Dana
and placed in the McKinleys‘ safe. Cf. Seman v. First State Bank, 394 N.W.2d
557, 558-59, 560 (Minn. Ct. App. 1986) (recounting that Seman purchased from
the bank a cashier‘s check that named as payee his former employee Evans, who
was to use the money to buy Seman a car, and that after Seman gave Evans the
check, he learned that Evans was a drug addict and was going to use the money to
purchase drugs, and thereafter asked the bank to stop payment on the check;
reasoning that the check was not ―lost,‖ because ―the purchaser himself had
delivered the check to the named payee‖). However, since the parties have not
briefed or argued the issue as to when the check became ―lost,‖ I do not rely on
this additional basis.

      I note that even if we assume that Mr. Bartel had (joint) constructive
possession of the check in the safe, he still cannot prove that he lost it. If it was
cashed or negotiated by one of the alternative payees, it was not lost. See Bank of
Am. Nat’l Trust & Sav. Ass’n v. Allstate Ins. Co., 29 F. Supp. 2d 1129, 1145 (C.D.
Cal. 1998) (―The instrument in question was not lost . . . — it was cashed.‖).
                                         32

judgment record, Mr. Bartel failed to come forward with sufficient competent

evidence to meet his burden of proof.




      There is a dearth of evidence about what the McKinleys might have done

with the check in the years between 1994 and the years of their declining health

and deaths (in 2008 and 2011). Mr. Bartel does not aver that Edna never touched

or moved the check (although he made such an averment as to Dana). In addition,

as Mr. Bartel himself explained, at some point during those many years, others

(relative Renee McKinley and friend William Sharrar) had the combination (and, it

can reasonably be assumed, access) to the McKinleys‘ safe. Because items do not

disappear out of safes into thin air, it is more likely than not (if not certain) that

someone removed the check from the safe. To conclude that it is more likely than

not (or as likely as not) that the check was removed from the safe and negotiated, it

is not necessary, as the majority opinion appears to suggest, to assume that the

check was wrongfully negotiated by one of the McKinleys, or that they or anyone

else acted or intended to act unlawfully. As Mr. Bartel acknowledges in his Reply

Brief, the McKinleys, as named payees, had an ―indisputable right to alienate the

check‖ (emphasis added). One of the McKinleys might lawfully have endorsed
                                           33

and negotiated or cashed the check,17 fully intending to return the amount of the

check to Mr. Bartel upon demand.          Or, to give another example, one of the

McKinleys might have (lawfully) endorsed the check in blank, making it a bearer

instrument and giving a third party who came into possession of the check a right

under the law to enforce it. See D.C. Code § 28:3-301 (―A person may be a person

entitled to enforce the instrument even though the person is not the owner of the

instrument or is in wrongful possession of the instrument.‖); Collins v. Gilbert, 94

U.S. 753, 754 (1877) (describing the presumption that ―[p]ossession of . . . an

instrument . . . indorsed in blank, is prima facie evidence that the holder is the

proper owner and lawful possessor of the same‖); One West Bank, F.S.B. v. Bauer,

159 So. 3d 843, 844 (Fla. Dist. Ct. App. 2d Dist. 2014) (―Because [the bank]

possessed the original [negotiable instrument], endorsed in blank, it was the lawful

holder of the note entitled to enforce its terms.‖).


      17
          By leaving with the McKinleys a check payable to the order of either of
them, Mr. Bartel made it possible and lawful for either of them to do so; Mr.
Bartel‘s action rendered the McKinleys, as payees, holders in possession ―entitled
to enforce [the] instrument.‖ D.C. Code § 28:3-301; see also D.C. Code § 28:1-
201 (21) (providing that a ―holder‖ is ―[t]he person in possession of a negotiable
instrument that is payable either to bearer or to an identified person that is the
person in possession‖). I believe we can reasonably infer that what underlies the
requirement in §§ 3-309 and 3-312 that a claimant seeking to recover on a ―lost‖
negotiable instrument prove (in the case of § 3-309) or aver (in the case of § 3-312)
that he did not transfer the instrument is a presumption that the transferee will cash
or negotiate the instrument.
                                         34




      It is far from clear that the presumption on which the majority opinion relies

— a presumption that people act lawfully, ante at 15 — would apply in the UCC

Article III context, given the many references in the official comments to theft,

forgery, and fraudulent allegations of loss. See, e.g., comments 2 and 3 to § 3-312;

see also (Darlene) Brown, note 10 supra, 359 P.2d at 779 (noting that the UCC

Article III rule about who is entitled to enforce an instrument, such as a mortgage

note, ―focuses on the party who possesses the note in order to protect the borrower

from being sued fraudulently or by multiple parties on the same note‖). But even

if it is assumed that our jurisdiction would apply a general presumption that people

act lawfully and would also do so in the UCC Article III context, that presumption

would not negate or overcome the presumption under the law pertaining to

negotiable instruments, applied in the cases cited at the end of the preceding

paragraph, that a person in possession of an instrument made payable to that

person or to the bearer may lawfully enforce that instrument.18           Thus, the


      18
          And, unlike in Ruby v. Farmers Mut. Auto Ins. Co., 79 N.W.2d 644 (Wis.
1956), cited in the majority opinion, the facts alleged by Mr. Bartel do not weigh in
favor of an inference of ―loss.‖ In Ruby, involving the plaintiff‘s claim against the
insurer for the value of a large diamond that went missing from a gemstone ring,
the court rejected the ―presumption of theft‖ described in the insurance policy
because the ―preponderance of the credible evidence [including evidence that no
one was known to have had access to the ring in the place where the plaintiff last
                                                                       (continued…)
                                          35

presumption the majority opinion invokes does not assist Mr. Bartel in meeting his

burden of proof as to his entitlement to enforce the check.




      The record does not enable us to say what happened to the check, but what is

clear on the record before us is that Mr. Bartel cannot prove by a preponderance of

competent evidence a critical element of his § 3-309 claim: that he retained

entitlement to enforce the check at the time it allegedly was lost.19 A jury would

have to speculate in order to return a verdict for Mr. Bartel. For that reason, Judge

Kravitz did not err in granting summary judgment with respect to Mr. Bartel‘s § 3-

309 claim. See McFarland v. George Washington Univ., 935 A.2d 337, 361 (D.C.


(…continued)
saw it, and evidence that the ring contained two smaller diamonds that were not
disturbed] . . . indicate[d] to a reasonable certainty that a theft did not take place.‖
Id. at 648. There is no such preponderance of evidence here, as at least two people
in addition to the McKinleys had the combination to the safe where the cashier‘s
check was stored. As the rule against hearsay dictates, there also is no
presumption that Dana McKinley spoke truthfully, accurately, and with a sound
mind when, as Mr. Bartel claims, he told Bartel that he had not touched the check.
      19
           Mr. Bartel was required to come forward with ―competent evidence
admissible at trial‖ to avoid summary judgment. Sanchez v. Magafan, 892 A.2d
1130, 1132 (D.C. 2006); see also Nader v. de Toledano, 408 A.2d 31, 48 (D.C.
1979) (―Summary judgment should be granted to the movant unless the opposing
party offers competent evidence admissible at trial showing that there is a genuine
issue as to a material fact.‖). He was not entitled to wait until trial to develop or
present the necessary evidence. See Aziken v. District of Columbia, 70 A.3d 213,
223 (D.C. 2013).
                                           36

2007) (Because ―a jury would have to speculate in order to find [the requisite]

causal link[, . . . the court] properly granted . . . judgment as a matter of law.‖).




      My colleagues in the majority have elected to ―exercise our discretion to

leave [those] issue[s] for resolution by the trial court in the first instance‖ (quoting

Folks v. District of Columbia, 93 A.3d 681, 686 (D.C. 2014), and they rely on case

law ―caution[ing] that it usually will be neither prudent nor appropriate for this

court‖ to affirm a grant of summary judgment on alternative grounds not decided

by the trial court. Ante at 10-11 (citing Jaiyeola v. District of Columbia, 40 A.3d

356, 372 (D.C. 2012)). However, in Folks, the proposed alternative basis for

summary judgment turned on whether the plaintiff had provided sufficient

evidence that the defendants had acted negligently, and we relied on authority

holding that issues of negligence are inappropriate for resolution on summary

judgment. 93 A.3d at 686 (citing Crawford v. Katz, 32 A.3d 418, 435-436 (D.C.

2011) (brackets omitted). In Jaiyeola, the posture was that trial court had not

considered ―whether appellant genuinely needed to depose his former supervisor

and obtain other discovery‖ in order to try to establish a prima facie case of

discrimination, 40 A.3d at 372, and we treated the case as one where ―the issues

are not ripe for consideration, not clearly presented by the record or . . . it would be

better to leave to the trial court the task of sifting through the summary judgment
                                         37

record.‖ Id. at 373 (quoting Franco v. District of Columbia, 3 A.3d 300, 307 (D.C.

2010)).




      Given the record in this case — no one contends that additional discovery is

needed, the issues were clearly presented below, the record is not voluminous, the

issue is not negligence or any other basis on which summary judgment ―should be

granted sparingly,‖20 and the issues are ones of statutory construction — I think the

more pertinent case authority can be found in this court‘s recent decision in Stone

v. Landis Constr. Co., 120 A.3d 1287 (D.C. 2015):


             In the absence of procedural unfairness, we may affirm a
             judgment on any valid ground, even if that ground was
             not relied upon by the trial judge. The requirement of
             procedural fairness is satisfied here, since the parties
             have fully briefed and argued th[e] substantive
             question[s].


Id. at 1289 n.6 (internal quotation marks and citations omitted); see also Grimes v.

District of Columbia, 89 A.3d 107, 112 n.3 (D.C. 2014) (rejecting the trial court‘s

rationale for dismissal of a retaliation claim, but affirming the dismissal on the

alternative ground, reasoning that there was ―no unfairness in affirming on the


      20
         William J. Davis, Inc. v. Tuxedo LLC, 2015 D.C. App. LEXIS 454, *31
(D.C. Sept. 24, 2015) (internal quotation marks omitted).
                                            38

[alternative] ground [that the complaint failed to state a DCHRA retaliation claim]

. . ., because [appellant] briefed that issue in this court and in the trial court‖).




       For the foregoing reasons, I would affirm the judgment of the Superior Court

in favor of appellee, on the ground that, on the undisputed factual record, appellant

failed to satisfy the requirements of § 3-312 or § 3-309.21 I respectfully dissent

from the judgment remanding the case for further proceedings.




       21
           I emphasize that my dissent is based on Mr. Bartel‘s inability to satisfy
the statutory requirements of §§ 3-309 and 3-312, not on any lack of sympathy for
his circumstance. I note that these UCC provisions ―supplement‖ rather than
displace other ―principles of law and equity,‖ D.C. Code § 28: 1-103 (b) (2012
Repl.), meaning that they were no bar to Mr. Bartel‘s pursuing other possible
(litigation or non-litigation) remedies, including the claims for unjust enrichment
and conversion that he also made in his Complaint. (On appeal, however, he has
not challenged the trial court‘s ruling that he failed to make out a prima facie case
on his unjust enrichment and conversion claims.) I also note that while at least one
court has expressed an inclination to waive or bend the technical requirements of §
3-309 where there is little or no ―risk that [the defendant] will ultimately be
prejudiced by plaintiff‘s lack of due diligence,‖ A.I. Credit Corp v. Gohres, 299 F.
Supp. 2d 1156, 1160 (D. Nev. 2004), that circumstance is not presented here. If
the Bank or its predecessor did pay the cashier‘s check (as many as 21 years ago),
no bond or other security will keep the Bank from being ―forced to pay . . . twice‖
(the ―primary concern with regard to enforcement of a missing [negotiable
instrument‖) if it is required to pay Mr. Bartel. Id.
