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Bagley v. Foundation for Preservation of Historic Georgetown

April 26, 1994


Appeals from the Superior Court of the District of Columbia; (Hon. Stephen F. Eilperin, Trial Judge

The Publication Status of the Document has been Changed by the Court from Unpublished to Published.

Before Ferren, Schwelb and King, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: In this action by the Foundation for the Preservation of Historic Georgetown against Smith W. Bagley and Elizabeth A. Frawley (collectively Bagley) to enforce the terms of an easement agreement, the trial court granted summary judgment in favor of the Foundation and awarded the Foundation substantial counsel fees. Bagley makes numerous contentions on appeal, and claims in particular that there were genuine issues of material fact precluding the entry of summary judgment and that the award of counsel fees was excessive. In No. 92-CV-1462, we dismiss as premature, sua sponte, Bagley's appeal from the decision to award the Foundation counsel fees. As to the remainder of No. 92-CV-1462, and in No. 93-CV-87, we affirm.


In 1988, Bagley executed an easement agreement with the Foundation relating to his home, which is located at the corner of 29th and Q Streets, N.W., Washington, D.C. Running 22 pages, the agreement prohibits Bagley from building any structure on his property, encroaching on any presently open space, or obstructing a view of the building facade from the street, without first obtaining the written consent of the Foundation for any such action. In late 1989, Bagley began constructing a two-story addition on the back side of the house. The stated purpose of the structure was to provide support for new air conditioning units which Bagley was installing because the older ones allegedly presented a fire hazard. *fn1

Upon learning of the addition in December, 1989, the Foundation informed Bagley that he had violated the agreement by failing to obtain the Foundation's permission before beginning construction. The Foundation also claimed that the addition itself violated the easement by increasing the area (footprint) of the existing house. In a letter to the Foundation, Bagley acknowledged that he "probably should have requested special permission to make changes." Bagley nevertheless requested an accommodation which would permit him to retain the addition. The Foundation advised Bagley that it would consider alternative design proposals only after he had removed the addition.

Bagley declined to comply with the Foundation's demands and, in February, 1991, the Foundation filed a two-count complaint against him in the Superior Court. In Count I, the Foundation alleged violations of the easement agreement. In Count II, the Foundation claimed that Bagley had violated D.C. Code § 5-426 (1989) by constructing the addition without first having obtained a building permit and appropriate zoning variances. The Foundation sought an injunction requiring Bagley to remove the addition, as well as declaratory and other relief and an award of counsel fees.

Bagley filed an answer in which he disputed the Foundation's construction of the agreement. *fn2 He also counterclaimed, alleging selective enforcement of the agreement by the Foundation, *fn3 as well as what he characterized as "due process violations by this private organization. *fn4 Bagley requested $1,000,000 in damages and the reformation or rescission of the easement agreement.

The Foundation filed a motion for summary judgment in its favor as to both counts of its complaint. On November 2, 1991, Judge Shellie Bowers denied the motion "without prejudice to being re-submitted and reconsidered following discovery relating to [Bagley's] Amended Answer and Counterclaim." *fn5 On the same date, the Judge also denied Bagley's motion to dismiss Count II of the Foundation's complaint. Following extensive discovery by Bagley on the purported selective enforcement issue, the Foundation renewed its motion for summary judgment. Bagley filed his own motion for summary judgment, in which he requested dismissal of Count II of the Foundation's complaint on the ground that the Foundation lacked standing to enforce the proscriptions contained in § 5-246.

On June 19, 1992, Judge Stephen F. Eilperin, to whom the case had been transferred, *fn6 granted the Foundation's motion for summary judgment and ordered Bagley to obtain a demolition permit and to remove the addition. The Judge also dismissed Bagley's counterclaim with prejudice, and held, in conformity with a specific provision of the easement agreement, that Bagley would be required to pay the Foundation's counsel fees. Bagley filed a motion to alter or amend the judgment regarding the award of counsel fees and requested a ruling on his own motion for summary judgment. While this motion was under consideration, the Foundation submitted an affidavit in support of its claim for counsel fees and costs.

The trial Judge denied both of Bagley's motions. Although the amount of counsel fees had not yet been determined, Bagley filed a notice of appeal. *fn7 He requested this court to stay the trial court's injunction pending appeal and to order the trial court not to hold a scheduled hearing to determine the amount of counsel fees. On December 18, 1992, this court stayed the injunction pending appeal, but declined to stay the scheduled hearing. The trial Judge then held the hearing and, at the Conclusion thereof, ordered Bagley to pay $78,304.85 in costs and fees. *fn8 Bagley noticed a second appeal, *fn9 and the two appeals were consolidated by order of this court.


The legal standard applicable to a motion for summary judgment is well-established, see, e.g., Super. Ct. Civ. R. 56; Holland v. Hannan, 456 A.2d 807, 814-15 (D.C. 1983), and we need not repeat it here. In controversies regarding the correct interpretation of a contract, summary judgment may be granted when the agreement is unambiguous and where there is no question as to the parties' intent. Id. at 815. "Absent such ambiguity, a written contract duly signed and executed speaks for itself and binds the parties without the necessity of extrinsic evidence." Id. A contract is not ambiguous simply ...

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