Appeal from the Superior Court of the District of Columbia (No. CA 3327-02) (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before RUIZ and GLICKMAN, Associate Judges, and STEADMAN, Senior Judge.
This appeal is from a grant of summary judgment and an award of attorney's fees in litigation between a housing cooperative and the personal representative of the estate of one of the cooperative's former members. We find it necessary to remand the case for the trial court to decide whether to allow the personal representative to add a new claim in her suit against the cooperative for breach of contract, and for clarification of the attorney's fee award in the cooperative's counterclaim against the estate.
Appellant Ella Pellerin is the personal representative of her mother Melissa Sawyer's estate. Until her final illness and demise in April 2000, Melissa Sawyer resided in Unit 703 of the cooperative apartment building located in northwest Washington, D.C. at 1915 16th Street. Appellee, the 1915 16th Street, N.W., Cooperative Association, subsequently notified Pellerin that her mother's proprietary lease and cooperative membership (which were assets of her estate) would be terminated unless Pellerin paid approximately $18 thousand in overdue maintenance fees, non-occupancy fees and related charges.*fn1 When full payment was not forthcoming, a meeting of the members of the Association was held on April 2, 2002, at which -- according to the minutes -- the vote in favor of termination was seventeen to one, with one abstention. Following the vote, Pellerin was given until May 1 to pay the current outstanding balance or relinquish her mother's cooperative membership and possession of her apartment unit.
In response to this ultimatum, Pellerin sued the Association in Superior Court for breach of contract and "adverse possession." The complaint charged in general terms that the Association's efforts to terminate Sawyer's membership and gain ownership and control of her unit violated both the Association's By-laws and Sawyer's proprietary lease.*fn2 The complaint did not, however, dispute either the validity or amount of the arrearage sought by the Association or the validity of the April 2, 2002, expulsion vote of the membership. The Association moved to dismiss the complaint for failure to state a cause of action. On June 27, 2002, the trial court dismissed the adverse possession count of the complaint but left the breach of contract counts intact.
Two weeks later, the Association counterclaimed for the maintenance fees, non-occupancy fees and related charges that Sawyer owed. The Association also sought its attorney's fees pursuant to Article 3 of Sawyer's lease, paragraph 13 of which provides that if the Lessee is in default under the lease and "the Lessor shall institute an action" against the Lessee "based upon such default," "then the Lessee will reimburse the Lessor" for the reasonable attorney's fees "thereby incurred by the Lessor."*fn3
On January 30, 2003, after the close of discovery, the Association moved for summary judgment on the remaining counts of the complaint and for partial summary judgment on its counterclaim. The Association asserted, inter alia, that it had followed the procedures set forth in its By-laws and in Sawyer's lease for terminating a member and the member's lease for non-payment of required fees. In particular, as required by Article V, Section 9 of the By-laws and Article 1 (h) of the lease,*fn4 the Association had held a membership meeting on April 2, 2002, at which "a majority of the members in attendance" voted to terminate the ownership interests of Sawyer's estate. Pellerin was notified of the meeting in advance and her attorney was present, the Association stated, when the vote was taken.
Pellerin opposed the Association's summary judgment motion on grounds immaterial to this appeal,*fn5 but she still did not question the April 2 membership vote. On May 6, 2003, with a pretrial conference scheduled in two weeks and its summary judgment motion not yet ruled upon, the Association filed motions in limine, one of which sought to limit Pellerin to the specific lease and By-law claims articulated in her complaint.
On May 14, 2003, the parties filed a Joint Pretrial Statement. In this Statement, Pellerin for the first time claimed that the April 2, 2002 meeting was invalid for want of a quorum as defined in Article VI, Section 4 of the By-laws, i.e., "[t]he presence of a majority of the members" of the Association.*fn6 Specifically, Pellerin stated, "[n]o more than 10 persons attended the meeting" on April 2, because "[t]he presence of so-called proxy statements was not the equivalent of a member's presence at the meeting." The seven or eight proxy votes cast at the meeting, Pellerin added, "did not conform with the letter or spirit" of Section 6, Article VI of the By-laws, which allows voting by proxy,*fn7 because the language of the proxies "did not accurately reflect the issues that were the subject of the meeting notice." The Association objected to the last-minute assertion of these new theories of liability, which its pending in limine motion was intended to prevent, because they were based on "facts never previously disclosed despite repeated requests in discovery and motions." In her reply to the Association's objection, which came in an opposition she filed to its motion in limine, Pellerin argued that the Association would suffer no unfair surprise or prejudice by her belated assertion of the quorum claim, especially since the evidence to prove or disprove the claim was within the Association's control and the September 8, 2003 trial date was still four months away.
The trial court did not rule on the Association's in limine motions or its motion for summary judgment at the May 20, 2003 status conference.*fn8 One week after the conference, however, the court issued a brief order granting summary judgment for the Association on Pellerin's remaining breach of contract claims.*fn9 Pellerin moved pursuant to Super. Ct. Civ. R. 5 9 (e) to alter or amend the summary judgment on the ground that the court had "failed to consider the asserted fact referred to in the Joint Pretrial Statement . . . that there was no quorum present at the April 2, 2002 meeting." Pellerin also pointed out (for the first time in her reply to the Association's opposition to her motion) that proxy voting is prohibited by the District of Columbia's cooperative housing association law. See D.C. Code § 29-914 (2001) ("No member shall be permitted to vote by proxy."). The court denied the Rule 59 (e) motion summarily, stating only that Pellerin had not shown "good cause" for the relief she requested.
Thereafter, on September 8, 2003, the court conducted a one-day bench trial on the Association's counterclaim.*fn10 In the end, the court found Sawyer's estate liable for most, but not all, of the assessed fees and charges, and awarded judgment to the Association in the amount of $21,493.06.
The court briefly postponed ruling on the Association's attorney's fee request, which was supported by an affidavit of counsel and an accompanying billing statement, to give Pellerin an opportunity to submit objections. The Association's counsel stated in his affidavit that the legal representation for which the Association requested a total of $23,216.57 in attorney's fees "included all aspects of the litigation between the parties." Pellerin filed an opposition to the fee request, arguing inter alia that the attorney's fee provision in Sawyer's lease entitled the Association to be reimbursed only for fees that were incurred in connection with the prosecution of its counterclaim, and that the host of other activities invoiced by its counsel*fn11 "do not fall within the purview of the attorney's fee provision." In response to this objection, the Association acknowledged that the invoiced activities "went to 'all aspects of the litigation between the parties,'" but insisted that the fees were all recoverable because they were reasonable and were "necessitated directly [by Pellerin's] actions." On October 6, 2003, after receiving the parties' submissions, the court awarded attorney's fees to the Association in the amount of $18,574. A footnote in the court's order states ...