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REDMOND v. BIRKEL

July 2, 1996

BERTHA REDMOND, Plaintiff,
v.
RALPH A. BIRKEL, et al., Defendants.



The opinion of the court was delivered by: HARRIS

 Before the Court are the Birkel defendants' motion for summary judgment on Counts II and III of plaintiff's amended complaint, plaintiff's opposition thereto, and defendants' reply. *fn1" Upon careful consideration of the entire record, defendants' motion for summary judgment is granted.

 Background

 The Court briefly discusses the long history of this action. Plaintiff Bertha Redmond, the sole remaining plaintiff in this action, and three other plaintiffs (plaintiffs Lucy Redmond, Linda Allsop, and Ernestine Williams) filed a lawsuit against defendants William and Mary Bailey and Ralph and Mary Birkel on January 21, 1988, and plaintiffs filed an amended complaint against defendants on December 13, 1988. Plaintiffs claimed in Count I of their amended complaint that defendants violated the District of Columbia Rental Housing Conversion and Sale Act ("the Rental Housing Act"), D.C. Code Ann. § 45-1601 et seq. (1990), when the Birkels sold plaintiffs' apartment complex, Halley Terrace, to the Baileys for $ 238,000 in late 1986, without giving notice to the tenants of the complex of their intent to sell the complex. (The Rental Housing Act, inter alia, guarantees tenants of an apartment complex the right to receive notice of an impending sale and the opportunity to purchase the property.) Plaintiffs also claimed in Counts II and III of their complaint that defendants conspired to defraud plaintiffs and that defendants fraudulently misrepresented to plaintiffs that their apartment complex had not been sold to the Baileys, when in fact it had been. *fn2" At the time plaintiffs' complaint and amended complaint were filed, all plaintiffs were represented by T. Clarence Harper, Esq.

 On April 6, 1988, the Baileys filed a cross-claim for indemnification against the Birkels; they also filed a third-party complaint against the law firm of Williams & Huffman for breach of contract. On January 5, 1989, the Birkels filed a cross-claim against the Baileys and Williams & Huffman for indemnification.

 On August 24, 1989, plaintiffs filed a Motion for Partial Summary Judgment as to Count I of plaintiffs' Complaint. On September 9, 1989, plaintiff Bertha Redmond moved the Court to withdraw T. Clarence Harper as her attorney. Thereafter, on October 11, 1989, plaintiffs moved for leave to withdraw their motion for partial summary judgment. On January 23, 1990, this Court granted plaintiffs' request to withdraw their motion for partial summary judgment and granted plaintiff Redmond's request to withdraw T. Clarence Harper as her attorney.

 Bertha Redmond initially filed notice with the Court on March 23, 1990, that she would be appearing pro se. (She was later appointed counsel, as discussed below.) On August 3, 1990, Bertha Redmond filed a motion for summary judgment as to all counts of the amended complaint. On December 31, 1990, plaintiffs Lucy Redmond, Williams, and Allsop, still represented by counsel, filed a motion for partial summary judgment as to Count I of the amended complaint. On August 18, 1992, this Court granted plaintiffs' motions for summary judgment as to Count I of the amended complaint and denied plaintiff Bertha Redmond's motion for summary judgment as to Counts II and III of the amended complaint.

 Plaintiffs Allsop, Williams, and Lucy Redmond filed a motion to dismiss the complaint and for an award of attorney's fees, on August 4, 1993. Plaintiff Bertha Redmond also joined the motion for attorney's fees, for the period of time during which she was represented by T. Clarence Harper. This Court granted the three plaintiffs' motion to dismiss on September 24, 1993, and referred the case to Magistrate Judge Robinson for a report and recommendation on the issue of attorney's fees and costs. Magistrate Judge Robinson issued a report and recommendation finding the Birkel and Bailey defendants, but not the third-party defendants, liable for attorney's fees and costs, and on April 22, 1994, this Court granted plaintiffs' motion for attorney's fees and costs.

 On September 14, 1994, plaintiffs Allsop, Williams, Lucy Redmond, and Bertha Redmond (for the period during which she was represented by T. Clarence Harper), along with all defendants and third-party defendants, entered into a settlement agreement pursuant to which the cross-claims filed by the Bailey and Birkel defendants and plaintiffs' claim for attorney's fees would be dismissed with prejudice. On January 26, 1995, the Bailey defendants and third-party defendants Williams & Huffman and Byron Huffman entered into a settlement agreement pursuant to which the third-party complaint filed by the Bailey defendants would be dismissed with prejudice. On February 3, 1995, the parties filed a stipulation and order of dismissal pursuant to the two settlement agreements. *fn3"

 Plaintiff Bertha Redmond was appointed counsel from the Court's Civil Pro Bono Panel on August 16, 1995. *fn4" The only claims now remaining before the Court are her claims of conspiracy to defraud and fraudulent misrepresentation (Counts II and III of the amended complaint) against the Birkel defendants. *fn5"

 Discussion

 Defendants have moved for summary judgment on Counts II and III, arguing that no genuine issue of material fact exists as to whether they conspired to defraud plaintiff or made fraudulent misrepresentations as to the ownership of the Halley Terrace complex, and that defendants accordingly are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). In considering defendants' summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to plaintiff. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Tao v. Freeh, 307 U.S. App. D.C. 185, 27 F.3d 635, 638 (D.C. Cir. 1994). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. (emphasis in original).

 Under District of Columbia law, to prevail on a claim of fraud, a party must show: (1) a false representation of a material fact; (2) knowledge of falsity; (3) "intent to mislead another into relying on the representation;" (4) reasonable reliance; and (5) injury as a result of reliance. Synergistic Technologies, Inc. v. IDB Mobile Communications, Inc., 871 F. Supp. 24, 30 (D.D.C. 1994) (quoting Williston on Contracts (3rd Ed.) at § 1487A); see also High v. McLean Financial Corp., 659 F. Supp. 1561, 1566 (D.D.C. 1987). A fraud plaintiff must prove each of these factors by clear and convincing evidence, see Hercules & Co. v. Shama Restaurant Corp., 566 A.2d 31, 39 n. 16 (D.C. 1989), and lack of proof as to one or more of the elements causes a fraud claim to fail. Wiggins v. District Cablevision, Inc., 853 F. Supp. 484, 498 (D.D.C. 1994) ("a pleader 'must allege such facts as will reveal the existence of all the requisite elements of fraud'") (quoting Higgs v. Higgs, 472 A.2d 875, 876 (D.C. 1984). While a plaintiff need not establish all the elements of fraud in alleging a conspiracy to defraud, she must allege "the formation and operation of the conspiracy, wrongful acts done in furtherance of the common scheme, and damages suffered as a result." Wiggins, 853 F. Supp. at 498 n. 27; Higgs, 472 A.2d at 877. Because plaintiff has not established that defendants' alleged fraud has caused her injury, one of the requisite elements of fraud and of a conspiracy to defraud, Counts II and III cannot stand.

 Were it not for the lack of evidence supporting plaintiff's claims that defendants' actions caused her injury, plaintiff's claims of fraud and conspiracy -- though tenuous indeed -- would perhaps not be fit for summary judgment. The parties' affidavits in support of their motion and opposition muster conflicting facts on several issues relevant to a fraud inquiry. In support of their motion for summary judgment, defendants submit an affidavit from Ralph Birkel regarding the circumstances of the sale of Halley Terrace. Defs.' Mot. for Summ. J., [unnumbered] Ex. 1. In his affidavit, Birkel states that he "knew of a District of Columbia law with respect to selling of apartment units in the District, but was mistakenly under the impression that written notice to tenants was only required in the case of condominium conversion . . . ." Aff. of Ralph Birkel (hereinafter "Birkel Aff.") at 2. Birkel further states that he sent "a written notice to each tenant . . . on December 15, 1986, . . . informing [them] of the pending sale and change of ownership," and that "none of the tenants responded to the notice . . . ." Id. Birkel avers that he had no contact with any of the tenants at Halley Terrace after ...


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