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New 3145 Deauville, L.L.C. v. First American Title Insurance Co.


August 25, 2005


Appeal from the Superior Court of the District of Columbia. (CA-8050-02). (Hon. Stephanie Duncan-Peters, Trial Judge).

The opinion of the court was delivered by: Steadman, Senior Judge

Argued May 23, 2005

Before WASHINGTON, Chief Judge,*fn1 RUIZ, Associate Judge, and STEADMAN, Senior Judge.

Appellant, The New 3145 Deauville, L.L.C. ("New Deauville"), and appellee District of Columbia Water and Sewer Authority ("WASA") are in dispute over unpaid water and sewer bills. The trial court entered summary judgment in favor of WASA for $369,450.55, plus interest of $65,347.71.

In doing so, the trial court ruled, among other things, that New Deauville's allegations were too conclusory to create any genuine issue of material fact as to the balance owed and that the statute of limitations is inapplicable to WASA as a sovereign entity. We hold that WASA is not generally exempt from the bar of the statute of limitations, but that, except for the possible application of the statute to bar the older portion of the claimed balance, summary judgment was properly granted.

I. Facts

On March 25, 2002, New Deauville entered into a contract to sell the property located at 3145 Mt. Pleasant Street, N.W., Washington D.C. to Deauville Partners, L.L.C. ("Deauville"). At the time of the contract, New Deauville had a dispute with WASA over unpaid water and sewer bills in excess of $357,000. As a result, New Deauville and Deauville executed an escrow agreement with the First American Title Insurance Company ("FATICO"). Pursuant to the escrow agreement, New Deauville deposited $600,000 in an escrow account held by FATICO as a precondition to FATICO's insuring the sale of the property.

The escrow agreement set forth two situations in which FATICO had authority to release the funds to pay the bills. First, upon written receipt from WASA of a delinquent balance less than $357,000, and with New Deauville's agreement, FATICO was to pay the lesser amount to satisfy New Deauville's liability.*fn2 Second, if by September 1, 2002, FATICO had not received from WASA a written statement agreeing to accept an amount less than $357,000, FATICO would obtain a bill from WASA and pay the amount due.*fn3 The escrow agreement also authorized FATICO to tender the escrow funds to the registry of a competent jurisdiction where FATICO believed it to be justified to do so.*fn4

WASA did not agree to accept a lesser amount than $357,000. On July 31, 2002, New Deauville, disputing WASA's final balance figure of $369,450.55, instructed FATICO to keep the funds in escrow and not to satisfy any debt owed to WASA. On September 13, FATICO filed an interpleader action with the Superior Court of the District of Columbia against WASA, New Deauville, and Deauville. The complaint asserted that FATICO was a disinterested stakeholder in the property and sought the court's permission to deposit the disputed escrow funds into the court registry. Both WASA and New Deauville answered the interpleader complaint. New Deauville raised multiple challenges to WASA's claim, contending, among other things, that some of the bills were barred by the three-year statute of limitations and that the alleged amount of debt owed to WASA was inaccurate.*fn5

At the end of discovery, WASA moved for summary judgment, relying on its ledger accounts and an affidavit by its acting collection manager. In opposing summary judgment, New Deauville presented as evidence only an affidavit of John Redmond, the managing member of New Deauville. The trial court granted summary judgment in favor of WASA, ruling, among other things, (1) that the Redmond affidavit was too conclusory to create any genuine issue of material fact as to the balance due asserted by WASA, and (2) that WASA was not subject to the statute of limitations under the common law doctrine of nullum tempus occurrit regi (no time runs against the sovereign). New Deauville's appeal is limited to a challenge of these two rulings.

II. Summary Judgment

We review a trial court order granting summary judgment de novo. Brown v. George Washington Univ., 802 A.2d 382, 385 (D.C. 2002). The various factors relevant to such a determination are well-settled. They were recently reviewed at length in Va. Acad. of Clinical Psychologists v. Group Hospitalization & Med. Servs., No. 03-CV-392, slip op. at 9 (D.C. July 14, 2005). In brief, a motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Super. Ct. Civ. R. 56 (c); Chang v. Inst. for Public-Private P'ships, Inc., 846 A.2d 318, 323 (D.C. 2004). The court must view all the evidence presented in the light most favorable to the nonmoving party and draw all reasonable inferences from the evidence for that party. Holland v. Hannan, 456 A.2d 807, 815 (D.C. 1983). The role of the court is not to try an issue as factfinder, but rather to decide whether there are genuine issues of material fact to be decided by the jury. Id. at 814-15. The nonmoving party cannot survive a summary judgment motion on merely conclusory allegations or denials of the adverse party's pleadings; rather, "the [] response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial." Super. Ct. Civ. R. 56 (e); see Chang, 846 A.2d at 323-24. "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Brown, 802 A.2d at 385 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). "[T]o summarize, the test for deciding a motion for summary judgment is essentially the same as that for a motion for a directed verdict." Weakley v. Burnham Corp., 871 A.2d 1167, 1173 (D.C. 2005) (citation omitted).

Here, the record reveals that WASA, in support of its motion for summary judgment, presented the affidavit of Rosie Jenkins, WASA's acting collections manager, and the ledger reports for the two accounts associated with the property. The affidavit elaborated on the ledger reports showing that as of July 18, 2002, the total amount owed on the accounts for the property was $369,450.55. The evidence, if uncontroverted at trial, would allow WASA to collect the $369,450.55. Further, WASA pointed out that New Deauville had failed to develop any evidence during discovery to dispute the amount of the bills asserted by WASA.*fn6 The record indicates that at the time WASA filed its motion for summary judgment, New Deauville disputed the water bills in its answer to the interpleader complaint only in general terms, such as assertions that "water meters were broken, pipes contained leaks, and property did not possess occupancy level capable of producing such high water bills."

In its response in opposition to WASA's motion for summary judgment, New Deauville filed an extensive statement of alleged material facts in dispute but, in support thereof, relied only on an affidavit of John Redmond, managing member of the property. In the affidavit and opposition, New Deauville made multiple assertions, including that "the balance on the account is not as alleged;" "[t]he meter readings by WASA personnel were not actual reads from the meter;" "[t]he WASA system depended on estimated readings . . . and the WASA system was not 100% accurate each month;" "WASA failed to give proper credit to bills that were paid on time;" WASA "made no attempt to investigate and detect meter malfunctioning;" and failed to "validate the results by a certified lab," and "WASA and its attorneys have, in bad faith, refused to negotiate or discuss the water bill account." However. the affidavit failed to set forth detailed facts of which the affiant had personal knowledge or to give specific facts underlying its broad assertions, but spoke only in generalities. Without further proof or specificity, the affidavit contained merely conclusory reiterations of the allegations of New Deauville's answer to the interpleader complaint.*fn7

In sum, on our examination of the record, we agree with the trial court that "New Deauville, despite its statements to the contrary, has not alleged any specific facts that would constitute a challenge to the charges levied by WASA."*fn8 In the posture of this case, the trial court quite rightly concluded that summary judgment could be properly entered with respect to the amount of the unpaid bills, provided it was correct in its ruling that no portion of that amount was subject to the legal defense of the statute of limitations as properly raised by New Deauville in its answer. We turn to that issue.

III. Statute of Limitations

New Deauville contends that the trial court erred in ruling that WASA could invoke the doctrine of nullum tempus to avoid the statute of limitations. The common law has long accepted the principle nullum tempus occurrit regi -- neither laches nor statutes of limitations will constitute a defense to suit by the sovereign in the enforcement of a public right. See District of Columbia v. Owens-Corning Fiberglas Corp., 572 A.2d 394, 401 (D.C. 1989). The District of Columbia, like a state government, is entitled to the protection of the doctrine of nullum tempus, a protection that is now codified in perhaps even broader application in D.C. Code § 12-301.*fn9 The trial court concluded that WASA was an "arm of the State" in performing its functions here and hence not subject to the statute of limitations.

However, subsequent to this determination by the trial court, we held in D.C. Water & Sewer Auth. v. Delon Hampton & Assocs., 851 A.2d 410, 416 (D.C. 2004), that "functions and activities of WASA, a separate corporate body distinct from the District of Columbia, are proprietary in nature and thus beyond the protection of nullum tempus" and likewise of the exception in § 12-301. Thus, WASA is subject to the statute of limitations with respect to that portion of the outstanding debt of New Deauville to WASA to which the statute of limitations could constitute a defense.

WASA argues that even if it is subject to the statute of limitations as a general matter, the statute does not prevent its collection of any portion of the debt here. It raises several arguments for the inapplicability of the statute, notably that by the execution of the escrow agreement, New Deauville reacknowledged the debt in writing, thus extending the statute of limitations, and that New Deauville waived any challenge to the water bills, including its claim that portions of the bills were barred by the statute of limitations, when it failed to exhaust the procedures set forth in the municipal regulations for challenging water bills.*fn10 Neither of these arguments as related to the application of the statute of limitations was addressed by the trial court, given its ruling that the statute of limitations did not apply at all to WASA. Their resolution may involve factual elements not clear in the record on appeal. The case would be remanded for calculation as to the amount of the debt to which the statute of limitations applies, if at all. Overall, we conclude that the preferable course of action is to permit the trial court to address in the first instance these further arguments of WASA with respect to the statute of limitations. See Jones v. Williams, 861 A.2d 1269, 1270 (D.C. 2004); Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546, 560 (D.C. 2001).

The case is remanded for further proceedings consistent with this opinion.

So ordered.

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