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CALVETTI v. ANTCLIFF

November 16, 2004.

FREDERICK F. CALVETTI, et al., Plaintiffs,
v.
DAVID ANTCLIFF, et al., Defendants.



The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

The plaintiffs, Fred and Barbara Calvetti, initiated this breach of an oral contract action because the defendants allegedly failed to complete repair work on two of the plaintiffs' Washington, D.C. properties. The defendants have now filed separate motions for summary judgment.*fn1 As to defendant Charles Antcliff, currently before the Court are: (1) the defendant Charles Antcliff, Antcliff Windows & Doors, Inc., and Antcliff Aluminum Products Installations, Inc. [collectively "Charles Antcliff" or "C.A."] Motion for Summary Judgment ("Def. C.A.'s Mot.");*fn2 (2) the plaintiffs' Memorandum of Points and Authorities in Opposition to the Motion for Summary Judgment by Charles Antcliff, Antcliff Windows & Doors, Inc., and Antcliff Aluminum Products Installations, Inc. ("Pls.' Opp'n to C.A.'s Mot."); and (3) the defendants' Reply in Support of Motion for Summary Judgment ("Def. C.A.'s Reply"). Also, as to the defendant David Antcliff, currently before the Court are: (1) defendant David Antcliff's Motion for Summary Judgment ("Def. D.A.'s Mot."); (2) the plaintiffs' Memorandum of Points and Authorities in Opposition to David Antcliff's Motion for Summary Judgment ("Pls.' Opp'n to D.A.'s Mot."); and (3) the defendant David Antcliff's Response to plaintiffs' Opposition to his Motion for Summary Judgment ("Def. D.A.'s Reply"). For the following reasons, this Court will grant in part and deny in part both motions of the defendants and deny David Antcliff's motion to strike the plaintiffs' expert report.

I. Factual Background

  Plaintiff Fred Calvetti and defendant David Antcliff are cousins. Defendant Charles Antcliff's Statement of Material Facts not in Dispute ("Defs.' Stmt.") ¶ 1. Fred Calvetti's father, Victor Calvetti, and David Antcliff's father, defendant Charles Antcliff, are half-brothers. Id. ¶ 1. At the end of 1997 or beginning of 1998, David Antcliff and his wife moved into the home of Victor Calvetti in Michigan, and began doing significant renovations to the home, such as the installation of a shower and a bathtub, painting, and renovation of the kitchen. Id. ¶ 2. In July 1997, Charles Antcliff allegedly informed the Calvettis that David Antcliff could complete various home renovation projects on two Calvetti owned properties in the District of Columbia. Plaintiffs' Statement of Disputed Issues of Material Fact ("Pls.' Stmt.") ¶ 4. According to the Calvettis, they discussed with both Charles Antcliff and David Antcliff the scope of the work that would be performed, and Charles Antcliff agreed to oversee David Antcliff's work. Id. ¶ 4. Then, in March 1998, while David Antcliff was still renovating Victor Calvetti's home in Michigan, Fred Calvetti allegedly entered into an oral agreement with David Antcliff for the renovation of the two Calvetti owned properties located in the District of Columbia. Defs.' Stmt. ¶ 5.

  Under the March agreement, David Antcliff agreed to perform the work for the Calvettis at cost plus ten percent. Pls.' Stmt. ¶ 26. Moreover, the parties allegedly agreed that David Anticliff would provide receipts to the plaintiffs verifying the payments that were made to him. Id. ¶ 8. Work on the Calvetti properties began on or around March 24, 1998 and was expected to take two to three months to complete. Id. ¶ 9. After advancing David Antcliff money to begin the renovation work, Fred Calvetti became concerned when work was not being completed and David Antcliff and his crew abandoned the sites. Id. ¶ 14. By May 1998, the plaintiffs claim they had advanced over $160,000 to David Antcliff for the renovations, which they contend were never completed. Id. ¶ 21.

  In this lawsuit, the plaintiffs assert five claims against David Antcliff, Charles Antcliff and Antcliff Aluminum: fraud, breach of contract, unlawful trade practices, conversion, and breach of trust. Compl. ¶¶ 46-97. The plaintiffs seek both compensatory and punitive damages. Compl. ¶¶ 93-97; Pls.' Stmt. ¶ 21.

  II. Standards of Review

  The defendant, Charles Antcliff, has filed a motion for summary judgment and has provided to the Court a detailed record in which to evaluate his motion. However, the papers submitted by David Antcliff, although captioned as a motion for summary judgment under Federal Rule of Civil Procedure 56(c), appear to be more accurately a motion for judgment on the pleadings pursuant to rule 12(c). This is because the majority of David Antcliff's arguments assert that the plaintiffs' complaint is legally insufficient. For example, when discussing the fraud claim, David Antcliff opines that "fraud has not been plead with particularity and proven by clear and convincing evidence." Def. D.A.'s Mot. at 10. Moreover, to the extent that David Antcliff is seeking summary judgment, this Court is unable to undertake such a review because he has failed to provide with his motion any evidence through affidavits, deposition transcripts, or responses to interrogatories. See, e.g., Aetna Cas. & Sur. Co. v. William M. Mercer, Inc., 173 F.R.D. 235, 236 (N.D. Ill. 1997) (noting that the defendant's motion would be treated as a judgment on the pleadings because the defendant did not submit any materials outside the pleadings). Therefore, this Court will construe the bulk of David Antcliff's motion as one for judgment on the pleadings*fn3 as opposed to a motion for summary judgment.

  Despite the deficiencies of the papers submitted by David Antcliff in support of his request for summary judgment relief, in some instances, both David and Charles Antcliff make the same legal arguments and advance the same factual allegations in support of their motions. Thus, to the extent possible, this Court has incorporated the factual support provided by Charles Antcliff into David Antcliff's motion so that it can, in those instances, collectively address whether both parties are entitled to summary judgment. Cf. J. Maury Dove Co. v. Cook, 32 F.2d 957, 958 (D.C. Cir. 1929) (party is entitled to benefit from all evidence that favors him even if produced by his adversary). The Court has concluded that this is the proper way to proceed because the plaintiffs were afforded the opportunity to respond to and challenge the evidentiary foundation for the legal arguments, albeit in their papers filed in response to Charles Antcliff's motion for summary judgment. Moreover, this result is especially appropriate in this case in light of the fact that the responses to Charles Antcliff's factual allegations would have been the same as any factual challenge to David Antcliff's legal challenges had the plaintiffs taken the opportunity to challenge Charles Antcliff's factual allegations. Accordingly, the plaintiffs will not be prejudiced by the Court proceeding in this manner.*fn4

  (A) Motion for Summary Judgment

  Summary judgment is generally appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c). In assessing a summary judgment motion, the Supreme Court has explained that a trial court must look to the substantive law of the claims at issue to determine whether a fact is "material," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and must treat a "genuine issue" as "one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action." Sanders v. Veneman, 211 F. Supp. 2d 10, 14 (D.D.C. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477 U.S. at 248).

  While it is generally understood that when considering a motion for summary judgment a court must "draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true[,]" Greene v. Amritsar Auto Servs. Co., 206 F. Supp. 2d 4, 7 (D.D.C. 2002) (citing Anderson, 477 U.S. at 255), the non-moving party must establish more than "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position. . . ." Anderson, 477 U.S. at 252. To prevail on a summary judgment motion, the moving party must demonstrate that the non-moving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Even when material facts are in dispute, however, summary adjudication may be appropriate if, with all factual inferences drawn in favor of the nonmovant, the movant would nonetheless be entitled to judgment as a matter of law." Young Dental Mfg. Co., Inc. v. Q3 Special Prods., Inc., 112 F.3d 1137, 1141 (Fed. Cir. 1997) (citing Stark v. Advanced Magnetics, Inc., 29 F.3d 1570, 1572-73 (Fed. Cir. 1994)). The District of Columbia Circuit has stated that the non-moving party may not rely solely on mere conclusory allegations. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Thus, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).

  (B) Motion for Judgment on the Pleadings

  A court will grant judgment on the pleadings "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Longwood Village Rest., Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 66 (D.D.C. 2001) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). "[I]f there are allegations in the complaint which, if proved, would provide a basis for recovery[,]" the Court cannot grant judgment on the pleadings. Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). Accordingly, all factual doubts are resolved in favor of the plaintiffs. Id.

  III. Legal Analysis

  Charles and David Antcliff seek judgments in their favor based upon their arguments that the plaintiffs have not met their burdens of establishing any of their claims — fraud, breach of contract, unlawful trade practices, conversion, and breach of a building trust*fn5 — as well as their requests for ...


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