Appeal from the Superior Court of the District of Columbia; (Hon. Henry H. Kennedy, Jr., Motions Judge), (Hon. Robert A. Shuker, Trial Judge)
Before Terry, Steadman, and Wagner, Associate Judges.
The opinion of the court was delivered by: Wagner
WAGNER, Associate Judge: Appellant, Richard I. Johnson, appeals from a decision of the trial court granting the request of appellee, Fairfax Village Condominium IV Unit Owners Association (the Association), for judicial foreclosure of a lien against Johnson's condominium unit. This case was previously before this court upon appellant's successful challenge to the trial court's grant of summary judgment in favor of the Association. See Johnson v. Fairfax Village Condominium IV Unit Owners Ass'n, 548 A.2d 87 (D.C. 1988) (Johnson I). In the present appeal, Johnson argues for reversal on the grounds that the trial court erred in the proceedings following remand by: (1) granting the Association leave to amend its complaint for possession and to substitute a claim for judicial foreclosure; (2) denying him a jury trial; (3) barring his challenge to the Association's actions on the ground that its Board of Directors was improperly elected; (4) declining to hold that the two prior foreclosures were wrongful; and (5) denying his claim for damages for wrongful foreclosure. We conclude that, at least with respect to Johnson's claim for damages for wrongful foreclosure, a legal issue was raised for which he was entitled to a jury trial on any remaining meritorious claims. As to the other issues raised on appeal, we find no reversible error. Therefore, we affirm in part and reverse in part.
The factual background prior to remand is set forth in detail in this court's opinion in Johnson I. Only a brief summary of the facts underlying the prior appeal is required here for an understanding of the issues arising out of the proceedings after remand. Johnson concededly ceased paying the condominium assessments for his unit to the Association in 1981. In 1983, the Association, purportedly acting pursuant to the power of sale provision in D.C. Code § 45-1853 (c) (1990), sold the unit, subject to the first mortgage, at a public sale to one Esther Wiggins, who paid the delinquent assessments as part of the purchase price. Wiggins was unable to obtain possession from Johnson, and she ceased paying the required assessments. Therefore, the Association, after notice to Johnson and Wiggins, foreclosed again, relying on the statute. The Association purchased the unit at the second auction, there being no other bidders, although Johnson attended.
Thereafter, the Association filed a suit for possession in the Landlord-Tenant Branch of the Superior Court because Johnson failed to vacate the premises. Johnson asserted a plea of title and demanded a jury trial; therefore, the case was certified to the Civil Division of the court. *fn1 There it was consolidated with a claim Johnson had filed after the first foreclosure sale in which he challenged the Association's power to sell the unit in the absence of a judicial foreclosure proceeding. *fn2 Johnson sued the Association, certain members of its Board of Directors, and Esther Wiggins, the purchaser at the first foreclosure sale of the subject property. In his amended complaint in that action, Johnson alleged wrongful foreclosure and sought alternatively reconveyance of the property or damages in the amount of the premises sold and punitive damages against the individual defendants, except for Wiggins. He made no jury demand in that complaint. *fn3 The trial court granted summary judgment for the Association. Johnson had contended that the statutory power of sale provision under which the Association foreclosed was not contemplated by, nor incorporated into, the by-laws for the condominium. The by-laws had been adopted before the enactment of D.C. Code § 45-1853 (c). *fn4 In Johnson I, we reversed the grant of summary judgment for the Association because the trial court failed to address this issue, which required its consideration of various condominium instruments. 548 A.2d at 94. *fn5
Following remand, the trial court (Judge Paul Webber) vacated the order granting summary judgment for the Association after the Association was unable to "direct the court's attention to any provision of the contract of sale for the condominium unit, or other relevant condominium instruments, which might demonstrate that impliedly or expressly consented to be bound by future amendments to the Condominium Act, so as to entitle [the Association] to judgment as a matter of law." The court then granted the parties 15 days within which to file motions and certified the case to the Civil Assignment Office for the scheduling of a trial date. The Association filed a Motion for Leave to File an Amended Complaint in order to seek judicial foreclosure. The trial court (Judge Henry Kennedy) granted the motion on April 18, 1989 and deemed the previously tendered amended complaint filed as of that date.
In the amended complaint, the Association abandoned its prior claim for possession and sought only judicial foreclosure based upon Johnson's failure to pay condominium fees, late charges and attorney's fees. In answer to the amended complaint, Johnson admitted that the Association was entitled to petition for judicial foreclosure, "but under the terms as determined by the court. . . . "He also admitted that he had not personally paid the assessments on the unit, although they had been paid. *fn6 Johnson also asserted as defenses (1) that the Association's Board, which made the initial assessments, lacked authority to do so; (2) that the amount claimed due was not correct; (3) that he was entitled to an offset for his damages arising out of the Association's wrongfully holding title; and (4) that the Association failed to provide a detailed accounting as required by law. Without leave of court, Johnson also filed a counterclaim for compensatory and punitive damages for two wrongful foreclosures, and he demanded a jury trial on all triable issues. Although the Association objected to Johnson's counterclaim, it conceded that the issue in the pending consolidated claim was basically the same and presented the same issue.
In proceedings prior to trial before Judge Shuker, Johnson conceded that the determination of whether the 1982 and 1985 foreclosures were wrongful and whether a judicial sale was warranted were equitable issues for consideration by the court. However, Johnson took the position that his claim for money damages resulting from the Association's improper foreclosures by power of sale and how much money he owed the Association were legal issues. As to these legal issues, he contended that he was entitled to a jury trial. The court decided to proceed with the equitable issues without a jury before considering "whether there [was a legal damages question]."
The trial court determined that the Association had valid liens at the time of the 1982 and 1985 foreclosures, although the Association used an improper means to enforce them. The court then turned to the Association's claim for judicial foreclosure. Johnson again requested a jury trial, arguing that if damages were awarded against the Association for the improper foreclosures, the sums awarded should offset any amounts claimed by the Association as the basis for the judicial foreclosure action. Johnson cited in support of his position the case of Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 511, 3 L. Ed. 2d 988, 79 S. Ct. 948 (1959) (only under the most imperative circumstances will "right to a jury trial of legal issues be lost through prior determination of equitable claims"). The trial court ruled that judicial foreclosure is an equitable proceeding in which the amount due by the obligor is always an issue and that it could not convert the proceeding to a legal one. The court rejected Johnson's argument that his separate claim for damages should be joined with the judicial foreclosure proceeding because any damage recovery might be sufficient to offset the sums due, and thereby defeat the basis for foreclosure. The court determined that the suit for damages for wrongful foreclosures in 1982 and 1985 was not "a joinable action on the issue of foreclosure at this time."
Following these proceedings, the trial court issued a written order making the following findings and Conclusions: (1) the contract documents for the Association did not authorize foreclosure by power of sale upon Johnson's unit, since Johnson purchased the unit prior to the effective date of the Condominium Act of 1976; (2) Johnson owed the Association condominium fees, late fees, simple interest, and attorney's fees as of the date of the court's order in the total amount of $10,150.21, which would be the redemption amount; *fn7 (3) the Association's improper execution of its clear right to foreclose did not entitle Johnson to damages and that there was no evidence of malice; and (4) Johnson was collaterally estopped from contesting the validity of the election of the Board of Directors. Therefore, the court ordered that the deeds conveying title to Wiggins and subsequently to the Association be declared null and void and that legal title was vested in Johnson. The court granted the Association's request for judicial foreclosure, allowing Johnson to avoid it by paying the redemption amount which the court reduced by the $5,087.57 he had deposited into the Registry of the Court. Finally, the court denied Johnson's request for attorney's fees and for damages for wrongful foreclosure.
Johnson argues that the trial court abused its discretion in granting the Association leave to amend the complaint to substitute a claim for judicial foreclosure. After the filing of responsive pleadings, leave to amend is within the discretion of the trial court. Super. Ct. Civ. R. 15 (a); Gordon v. Raven Systems & Research, Inc., 462 A.2d 10, 13 (D.C. 1983). Leave to amend is to be granted freely "when Justice so requires." Super. Ct. Civ. R. 15 (a); see also Bennett v. Fun & Fitness of Silver Hill, Inc., 434 A.2d 476, 478 (D.C. 1981). Absent a clear showing of an abuse of discretion, the trial court's exercise of its discretion either way will not be disturbed on appeal. Brown v. Dyer, 489 A.2d 1081, 1084 (D.C. 1985); Gordon, 462 A.2d at 13. "Although the decision is a matter of trial court discretion, the policy favoring resolution of cases on the merits creates 'a virtual presumption' that a court should grant leave to amend where no good reason appears to the contrary." Bennett, 434 A.2d at 478 (citations omitted).
In considering a motion to amend, several factors guide the trial court's exercise of its discretion, as well as this court's determination of whether the trial court has abused its discretion in ruling thereon. Among these are: (1) the number of requests to amend; (2) the length of time that the trial has been pending; (3) the presence of bad faith or dilatory reasons for the request; (4) the merit of the proffered amended pleading; and (5) any prejudice to the non-moving party. Bennett, supra, 434 A.2d at 478-79; Bronson v. Borst, 404 A.2d 960, 963 (D.C. 1979). Johnson argues that weighing in his favor are three of these factors, i.e., the length of the pendency of trial, bad faith and dilatory motive, and prejudice. This case had been pending almost four years when the Association sought leave to amend to substitute its request for judicial foreclosure. Therefore, as ...