B-148986, JUL. 3, 1962

B-148986, JUL. 3, 1962

TO MRS. YVONNE H. STUART:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1962, REQUESTING REVIEW OF SETTLEMENT OF MAY 8, 1962, WHEREIN THERE WAS DISALLOWED $10,763.42 OF THE CLAIM FILED BY YOU AND MR. STUART FOR $12,734.52 AS DAMAGES TO THE SINGLE FAMILY DWELLING LOCATED AT 260 BLACKSTONE DRIVE, SAN RAFAEL, CALIFORNIA, LEASED TO THE GOVERNMENT FOR HOUSING MILITARY PERSONNEL AND THEIR DEPENDENTS UNDER LEASE NO. DA-04-203-ENG-4902, DATED MAY 17, 1957.

UNDER THE LEASE THE ABOVE DWELLING, DESCRIBED AS "FOUR BEDROOM, 2 BATH, RESIDENCE CONTAINING APPROXIMATELY TWELVE HUNDRED FIFTY (1250) SQUARE FEET OF SPACE, TOGETHER WITH ATTACHED 2 CAR GARAGE CONTAINING APPROXIMATELY FOUR HUNDRED (400) SQUARE FEET OF SPACE" WAS LEASED TO THE GOVERNMENT FOR THE TERM BEGINNING MAY 20, 1957, THROUGH JUNE 30, 1957, WITH AUTOMATIC RENEWAL OPTION FROM YEAR TO YEAR THEREAFTER THROUGH JUNE 30, 1962, AT THE ELECTION OF THE GOVERNMENT. AS PART OF THE MONTHLY RENTAL OF $150 YOU WERE REQUIRED TO FURNISH CERTAIN ITEMS SHOWN ON A JOINT PHYSICAL SURVEY AND REPORT TOGETHER WITH THE FOLLOWING ELECTRIC FACILITIES: STOVE, WALL OVEN BROILER, DISH WASHER, GARBAGE DISPOSAL UNIT, LAUNDRY WASHER AND DRYER. PARAGRAPH 9 CONTAINED THE USUAL REQUIREMENT OBLIGATING THE LESSORS TO MAINTAIN THE PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION DURING THE CONTINUANCE OF THE LEASE, EXCEPT IN CASE OF DAMAGE ARISING FROM THE NEGLIGENCE OF GOVERNMENT PERSONNEL. PARAGRAPH 7 PROVIDED FOR SURRENDER OF THE PREMISES BY THE GOVERNMENT UPON EXPIRATION OR TERMINATION OF THE LEASE. ALSO, IT OBLIGATED THE GOVERNMENT, WITHIN 30 DAYS THEREAFTER AND SUBJECT TO TIMELY WRITTEN NOTICE BY THE LESSORS, TO RETURN THE PREMISES IN AS GOOD CONDITION AS THAT EXISTING AT THE BEGINNING OF THE LEASE, REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGES BY THE ELEMENTS OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAS NO CONTROL EXCEPTED.

BY WRITTEN NOTICE TO YOU AND MR. STUART DATED JUNE 30, 1960, THE LEASE WAS CANCELLED BY THE GOVERNMENT EFFECTIVE AS OF AUGUST 1, 1960, AS AUTHORIZED BY PARAGRAPH 12. THE CLAIMS OFFICER HAS REPORTED THAT AT THE SAME TIME MR. STUART WAS REQUESTED TO MAKE A JOINT INSPECTION OF THE LEASED PREMISES; THAT ON AUGUST 10, THREE DAYS AFTER HIS RETURN TO CALIFORNIA, A JOINT INSPECTION WAS MADE AT WHICH TIME RESTORATION REPAIRS AGGREGATING $1,186 WERE SEEMINGLY AGREED TO BY THE PARTIES; THAT ON AUGUST 15, 1960, A JOINT TERMINAL SURVEY REPORT WAS SENT TO MR. STUART FOR SIGNATURE; THAT ON AUGUST 25, 1960, MR. STUART REPLIED THAT HE DID NOT AGREE WITH THE JOINT SURVEY AND DESIRED TO HAVE VARIOUS REPAIRS MADE AND THE BILLS SENT TO THE CORPS OF ENGINEERS FOR REIMBURSEMENT; THAT MR. STUART WAS ADVISED THAT HIS PROPOSAL WAS NOT ACCEPTABLE; AND THAT FROM AUGUST 26, 1960, THROUGH JANUARY 3, 1961, ALL EFFORTS TO PERSUADE MR. STUART TO SIGN A JOINT TERMINAL SURVEY WERE UNSUCCESSFUL.

THE CLAIMS OFFICER HAS FURTHER REPORTED THAT ON MARCH 13, 1961, THE OFFER OF RESTORATION WAS WITHDRAWN BY THE CORPS OF ENGINEERS; THAT TWICE DURING MARCH 1961 MR. STUART INDICATED THAT HE WAS IN THE PROCESS OF MAKING REPAIRS AND THAT HE WOULD SUBMIT A CLAIM THEREFOR. BY LETTER DATED MAY 3, 1961, YOUR ATTORNEY SUBMITTED ON YOUR BEHALF A CLAIM FOR $10,302.25 REPRESENTING 58 ITEMS COVERING COSTS AND EXPENDITURES ASSERTED TO HAVE BEEN INCURRED BY YOU IN RESTORING THE PROPERTY TO ITS CONDITION WHEN THE GOVERNMENT ENTERED INTO POSSESSION ON MAY 20, 1957. THE THREE LARGEST ITEMS INCLUDED IN THE CLAIM REPRESENTED CLAIMS FOR $2,127.84 FOR REPLACEMENT OF ALL GENERAL ELECTRIC APPLIANCES, $2,000 FOR SERVICES ASSERTED TO HAVE BEEN PERFORMED BY YOU AND MR. STUART FOR SUPERVISION AND RESTORATION WORK FROM FEBRUARY 6, 1961, TO MARCH 27, 1961, AND $1,500 FOR ,LANDSCAPING AND RETURNING LOT TO ITS PROPER GRADE AND DRAINAGE THAT EXISTED AT INCEPTION OF SUBJECT LEASE.'

BY LETTER DATED AUGUST 24, 1961, YOUR ATTORNEY FILED AN AMENDED CLAIM FOR $12,734.52. THE ADDITIONAL AMOUNT CLAIMED NAMELY, $2,432.27 WAS SUBSTITUTED FOR ITEM NO. 58 OF YOUR ORIGINAL CLAIM FOR LANDSCAPING, GRADING AND DRAINAGE OF YOUR LOT. THE ADDITIONAL AMOUNT INCLUDED INCREASED COSTS AND EXPENDITURES FOR THESE SAME ITEMS TOGETHER WITH $1,800 FOR SUPERVISORY SERVICES OF MR. STUART FROM JULY 1, 1961, THROUGH AUGUST 22, 1961, LOSS OF REGULAR INCOME AND RENT. ON NOVEMBER 17, 1961, THE REVISED CLAIM WAS RESUBMITTED WITH "SUBSTANTIATING" EVIDENCE CONSISTING OF BIDS, INVOICES, CANCELLED CHECKS AND EXCERPTS OF MR. STUART'S DAILY DIARY. THE RECORD SHOWS THAT ON FEBRUARY 1, 1962, AN INVESTIGATOR FROM THE OFFICE OF THE DISTRICT ENGINEER AT SACRAMENTO REQUESTED MR. STUART FOR AN INTERVIEW AND HE CONSENTED BUT THAT WHEN PERMISSION WAS REQUESTED TO BRING AN APPRAISER MR. STUART REFUSED TO MEET WITH THE INVESTIGATOR. THEREAFTER, ON FEBRUARY 5, 1962, THE INVESTIGATOR VISITED YOUR HOME ALONE AND DISCUSSED VARIOUS FEATURES OF THE CLAIM INCLUDING THE DRAPERIES AND ELECTRIC APPLIANCES. ALSO, HE EXAMINED THE DRAINAGE FACILITIES. THE INVESTIGATOR REPORTED THAT THE INTERVIEW TURNED OUT TO BE UNSATISFACTORY BECAUSE YOU AND MR. STUART OBJECTED TO HIS ACTION IN CHECKING ON THE COST OF MATERIAL FOR THE DRAPERIES AND HIS INTERVIEW WITH THE APPLIANCE SALESMAN WHO STATED THAT MOST OF THE APPLIANCES HAD BEEN ABUSED BUT THAT THEY COULD HAVE BEEN REPAIRED.

THE RECORD FURTHER SHOWS THAT THE CORPS OF ENGINEERS HAS CONSISTENTLY ACKNOWLEDGED THAT THERE WAS SOME DAMAGE BEYOND ORDINARY WEAR AND TEAR. THE CORPS HAS FOUND, HOWEVER, THAT THE DAMAGES CLAIMED ARE EXCESSIVE, WITHOUT ANY CONSIDERATION OF REASONABLE ORDINARY WEAR AND TEAR INCIDENT TO THE PURPOSES FOR WHICH THE PREMISES WERE LEASED AND WITHOUT ANY CONSIDERATION FOR YOUR FAILURE TO PERFORM ANY MAINTENANCE DURING THE GOVERNMENT'S OCCUPANCY AS REQUIRED BY PARAGRAPH 9 OF THE LEASE AND YOUR REFUSAL, EXCEPT IN ONE INSTANCE, TO PAY FOR MAINTENANCE OF THE ELECTRICAL APPLIANCES. IN ADDITION, THE CLAIMS OFFICER FOUND THAT SINCE CERTAIN ITEMS OF YOUR CLAIM, FOR EXAMPLE FLOOR MOPS, WERE CONSUMED IN ORDINARY USE DURING THE GOVERNMENT'S OCCUPANCY, REIMBURSEMENT THEREFOR WAS NOT AUTHORIZED. THE CLAIMS OFFICER, AMONG OTHER THINGS, FOUND DUPLICATIONS IN SOME OF THE ITEMS CLAIMED; THAT SOME OF THE ITEMS REPLACED COULD HAVE BEEN REPAIRED; THAT THE REPLACED DISPOSAL WAS DELUXE MODEL WHEREAS THE ORIGINAL ONE WAS AN ECONOMY MODEL REPRESENTING A DIFFERENCE IN COST OF $59.50; THAT WHILE $38.50 WAS CLAIMED UNDER ITEM NO. 10 OF YOUR CLAIM FOR FURNISHING AND INSTALLING 10 TENSION-TYPE WINDOW SCREENS ONLY TWO WERE FOUND MISSING BY THE INSPECTORS; THAT THERE WAS NO SHOWING IN THE RESTORATION REPORT THAT THE LIGHT FIXTURES NEEDED REPLACING; AND THAT THE ITEM FOR $50 IN YOUR REVISED CLAIM STATED AS "ARTHUR M. LEBOW, ATTORNEY AT LAW" REPRESENTED SERVICES PERFORMED BY THE LAWYER IN THE PREPARATION OF A LETTER TO YOUR NEXT DOOR NEIGHBOR RELATING TO A CONTROVERSY WITH HIM CONCERNING A DRAINAGE LINE CONSTRUCTED BY THE NEIGHBOR AND, THEREFORE, WAS NOT AUTHORIZED. WITH RESPECT TO THE ITEM OF $1,800 FOR SUPERVISORY SERVICES BY MR. STUART INCLUDED IN THE AMENDED CLAIM OF AUGUST 24, 1961, IT HAS BEEN POINTED OUT THAT IF ALL OF THE TERMS OF THE SUBMITTED INVOICES HAD BEEN CARRIED OUT THERE WOULD HAVE BEEN LITTLE IF ANYTHING FOR MR. STUART TO DO IN THE WAY OF SUPERVISING THE RESTORATION WORK.

WITH RESPECT TO DRAINAGE THE CLAIMS OFFICER HAS FURTHER POINTED OUT THAT THE WORK FOR WHICH REIMBURSEMENT IS NOW CLAIMED WAS PERFORMED TO ALLEVIATE A NATURAL DRAINAGE PROBLEM IN EXISTENCE AT THE TIME THE LEASE WAS EXECUTED; THAT WHEN THE RAINS CAME LARGE QUANTITIES OF WATER WERE DISCHARGED ON THE MAIN PORTION OF YOUR PROPERTY; THAT PART OF THE AREA IN THE BACK OF YOUR HOUSE SLIPPED SOMETIME DURING THE GOVERNMENT'S OCCUPANCY; THAT YOUR NEXT DOOR NEIGHBOR CONSTRUCTED SEVERAL WALLS, DRAINS, AND CONCRETE DECKS WHICH CREATED MORE RUNOFF; AND THAT DUE TO THESE CONDITIONS THE DRAINAGE ON YOUR PROPERTY CHANGED AND WAS RENDERED INADEQUATE. THE CLAIMS OFFICER FOUND THAT THE DAMAGE CLAIMED FOR THIS PARTICULAR ITEM WAS CAUSED BY THE ELEMENTS AND YOUR FAILURE TO PROVIDE ADEQUATE DRAINAGE AND THAT THE CONCRETE RETAINING WALLS CONSTRUCTED BY YOU AND THE OTHER WORK UNDER THE ITEM FOR WHICH REIMBURSEMENT IS NOW CLAIMED CONSTITUTES A BETTERMENT OUTSIDE OF THE GOVERNMENT'S RESTORATION OBLIGATION.

THE CLAIMS OFFICER IN SUMMARIZING HIS REPORT ON YOUR CLAIM STATED THAT THE OBJECTIONABLE PART OF YOUR CLAIM IS THAT ONCE DAMAGE WAS FOUND IN ONE PORTION OF THE HOUSE, OR POSSIBLY ONE ITEM, ALL SIMILAR ITEMS OR PORTIONS OF THE HOUSE WERE RECONSTRUCTED; THAT WHILE PAINTING WAS NEEDED IN SEVERAL ROOMS, YOUR CLAIM COVERS COMPLETE HOUSE PAINTING; AND THAT YOUR CLAIM COVERS THE SANDING OF ALL FLOORS RATHER THAN CLEANING AND WAXING. ALSO, THE RECORD DISCLOSES THAT AS EARLY AS AUGUST 14, 1959, MR. STUART ACKNOWLEDGED THAT THE EXTERIOR PAINTING "SHOULD HAVE BEEN ACCOMPLISHED BEFORE NOW" AND THAT "WE HAD EVERY INTENTION OF DOING THIS DURING JUNE OR JULY 1958.' THERE IS NO SHOWING THAT THE HOUSE WAS PAINTED EITHER INSIDE OR OUT AT ANY TIME DURING THE GOVERNMENT'S OCCUPANCY.

FOLLOWING FURTHER INVESTIGATION OF YOUR CLAIM, THE CLAIMS OFFICER RECOMMENDED ALLOWANCE IN THE AMOUNT OF $1,674.50 AND ON THE BASIS OF SUCH RECOMMENDATION THE DISTRICT ENGINEER AT SACRAMENTO OFFERED A PAYMENT OF $1,675 IN LIEU OF RESTORATION, WHICH OFFER IT IS REPORTED WAS EITHER REJECTED OR IGNORED. BY LETTER DATED MARCH 2, 1962, THE DIVISION ENGINEER ADVISED YOU AND MR. STUART THAT IN AN EFFORT TO COMPROMISE THE DIFFERENCE IN VIEWPOINTS WHICH HAD DEVELOPED HE WOULD APPROVE A PAYMENT OF $2,350 IN FULL SATISFACTION OF YOUR CLAIM. HE CAUTIONED, HOWEVER, THAT SUCH OFFER SHOULD NOT BE CONSTRUED AS AN ADMISSION OF LIABILITY FOR THE AMOUNT OFFERED BUT RATHER AS A SINCERE EFFORT TO COMPROMISE THE DIFFERENCE IN VIEWPOINTS WHICH HAD DEVELOPED. THEREAFTER, BY LETTER DATED MARCH 12, 1962, IN REPLY TO YOUR LETTER OF MARCH 5, 1962, REQUESTING THE REASONS FOR DISALLOWING VARIOUS ITEMS IN YOUR CLAIM THE OFFICE OF THE DIVISION ENGINEER REFERRED TO THE TERMINAL SURVEY MADE ON AUGUST 10, 1960, AND EXPLAINED THE BASIS OF THE OFFERED ALLOWANCE OF $2,350.

YOUR CLAIM WAS FORWARDED TO THIS OFFICE FOR SETTLEMENT ADMINISTRATIVELY APPROVED IN THE AMOUNT OF $1,971.10, THE AMOUNT ALLOWED IN THE SETTLEMENT OF MAY 8, 1962. IN EXPLANATION OF THE ACTION TAKEN IT WAS STATED IN THE SETTLEMENT THAT THE RECORD DISCLOSED THAT THE CLAIM HAD BEEN SUBJECT TO APPRAISALS AND CONFERENCES BETWEEN YOU AS LESSORS, YOUR ATTORNEYS AND GOVERNMENT REPRESENTATIVES AND THAT THE DIFFERENCES CONCERNING THE ACTUAL DAMAGES INCURRED DURING THE GOVERNMENT'S TENURE AND FOR WHICH THE GOVERNMENT IS LIABLE ARE IRRECONCILABLE. IN YOUR LETTER OF MAY 19, 1962, REQUESTING REVIEW YOU STATE THAT THE "RECORD" IS ABSOLUTELY FALSE, FRAUDULENT AND THOROUGHLY DISHONEST. YOU DENY THAT YOU HAVE RECEIVED A FULL AND FAIR PRESENTATION OF YOUR CLAIM TO OUR OFFICE AND YOU REQUEST A PERSONAL REVIEW OF YOUR SUBSTANTIATED DOCUMENTARY CLAIM TRANSMITTED HERE BY SENATOR KUCHEL AND ALL SUBSEQUENT CORRESPONDENCE.

A REVIEW OF THE CLAIMS FILE SHOWS THAT THE CLAIM HAS BEEN THE SUBJECT OF EXHAUSTIVE CORRESPONDENCE AND CONTROVERSIES BETWEEN YOU, YOUR ATTORNEY AND THE GOVERNMENT REPRESENTATIVES AND THAT THE DIFFERENCES CONCERNING THE ACTUAL DAMAGES INCURRED AND FOR WHICH THE GOVERNMENT IS LEGALLY LIABLE ARE IRRECONCILABLE. IN SHORT THE ADMINISTRATIVE OFFICE IS OF THE VIEW YOUR CLAIM IS EXCESSIVE AND NOT WARRANTED BY THE FACTS, PARTICULARLY, SINCE DURING THE ENTIRE THREE YEARS, FOUR MONTHS AND 14 DAYS THE GOVERNMENT OCCUPIED YOUR PREMISES YOU FAILED TO MAINTAIN THE PROPERTY AS REQUIRED UNDER PARAGRAPH 9 OF THE LEASE. IN SUCH SITUATIONS IT IS THE LONG ESTABLISHED RULE OF OUR OFFICE, WHEN THERE IS A COMPLETE DISAGREEMENT, AS HERE, BETWEEN THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS AND THOSE STATED BY THE CLAIMANT, TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. SEE 16 COMP. GEN. 325; 18 ID. 799, 800; 31 ID. 288; AND 37 ID. 568, 570.

THE EXTENT AND AMOUNT OF ACTUAL DAMAGES SUFFERED BY YOU ARE QUESTIONS OF FACT. AS IN THIS INSTANCE, WHERE THERE IS A CONFLICT BETWEEN THE STATEMENT OF A CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE, AND DOUBT AS TO THE ACTUAL FACTS IN ISSUE, IT HAS BEEN DECLARED BY THE COURT OF CLAIMS TO BE THE DUTY OF THE ACCOUNTING OFFICERS TO REJECT SUCH CLAIMS AND LEAVE THE CLAIMANTS TO THEIR REMEDIES IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291, AND CHARLES V. UNITED STATES, 19 CT.CL. 316, 319.

WE HAVE MADE A CAREFUL REVIEW OF THE ENTIRE FILE IN THIS CASE AND ON THE RECORD PRESENTED WE HAVE FOUND NO PROPER BASIS FOR ANY ADDITIONAL ALLOWANCE. ACCORDINGLY, THE SETTLEMENT OF MAY 8, 1962, IS SUSTAINED.