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Callahan v. 4200 Cathedral Condominium

August 30, 2007

F. PATRICIA CALLAHAN, APPELLANT,
v.
4200 CATHEDRAL CONDOMINIUM, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CAB8005-03) (Hon. Frederick H. Weisberg, Trial Judge).

The opinion of the court was delivered by: Reid, Associate Judge

Argued October 17, 2006

Before WASHINGTON, Chief Judge, and REID and BLACKBURNE RIGSBY, Associate Judges.

Appellant, F. Patricia Callahan, filed a complaint against appellee 4200 Cathedral Condominium ("4200" or "the Condominium") seeking to enjoin foreclosure of her property. The trial court dismissed her claim without prejudice. Ms. Callahan filed a motion for reinstatement of her claim. The trial court issued an order which conditioned reinstatement of the claim on Ms. Callahan's deposit into the court's registry of $129,491.43, as security for defendant and intervenor, due to her unpaid mortgage and condominium fee payments, and because of her dilatory actions in prosecuting her claim. The order stated that failure to deposit the required amount would result in dismissal of the claim with prejudice. On September 29, 2005, the trial court dismissed Ms. Callahan's complaint with prejudice. Ms. Callahan argues that the trial court improperly dismissed her complaint, whether under Super. Ct. Civ. Rule 59 (e) or Rule 60 (b). We affirm the judgment of the trial court.

FACTUAL SUMMARY

The record shows that in July 2003, 4200 began foreclosure proceedings against Ms. Callahan by recording a lien against her condominium unit, number 515, and her parking space, number 43. The Condominium sent a notice of a foreclosure sale to Ms. Callahan on August 18, 2003, and on September 22, 2003, 4200 foreclosed on Ms. Callahan's unit. Ziad Kabbani, on behalf of 515 DC, LLC ("515 DC"), acquired Ms. Callahan's property at the September 22, 2003 public auction, subject to her first and second trusts. On September 29, 2003, Ms. Callahan filed a complaint against 4200 to enjoin foreclosure of her property, and later filed a lis pendens to enjoin transfer of her property pending the outcome of her lawsuit. Subsequently, on December 19, 2003, the trial court granted Mr. Kabbani's emergency motion to intervene, and tolled the time for resolving the foreclosure action pending the outcome of Ms. Callahan's legal action.

After preliminary motions were resolved, the case proceeded to discovery, preparation of pretrial statements, and the filing of dispositive motions in 2004. The Condominium filed a motion for summary judgment against Mr. Kabbani on July 6, 2004, which intervenor opposed; and the trial court denied the motion on July 30, 2004.*fn1 On November 17, 2004, 515 DC filed a motion for summary judgment, and on November 29, 2004, 4200 submitted a pleading consenting to and supporting intervenor's motion for summary judgment. On December 3, 2004, the trial court signed an order requiring Ms. Callahan to file her opposition to the pending summary judgment motion,*fn2 and indicating that sanctions were appropriate since she failed to attend a pre-trial conference, without explanation. The court warned that because of Ms. Callahan's "blatant failure to cooperate, the ultimate sanction of dismissal must be considered," but the court delayed that consideration due to "the many admonitions by [this court] that the [trial] court should reject the ultimate sanction and choose a lesser sanction if it is sufficient under the circumstances to address the underlying conduct and any prejudice created by it." The trial court denied intervenor's motion for summary judgment on December 15, 2004. On February 28, 2005, defendant and intervenor filed a joint motion to dismiss Ms. Callahan's action when she failed to attend a second pretrial conference. They alleged dilatory actions on Ms. Callahan's part in an effort to avoid past, present, and future payments of condo fees and monies due on her first trust.*fn3

Ms. Callahan not only failed to attend two pretrial conferences, but also did not file an opposition to 4200 and 515 DC's motion to dismiss. As a result, on March 25, 2005, the trial court signed an order dismissing Ms. Callahan's claim, without prejudice, because of her (1) failure, and that of her counsel, to attend two pretrial conferences, without justification of their failure to appear; (2) failure, and that of her counsel, to participate in preparation of the Joint Pretrial Statement; (3) non-payment of monthly condominium fees since June 2003; and (4) non-payment of any trust payments since September 8, 2003 on her condo unit and parking space; "all to the extreme prejudice of both Defendant and Intervenor." This order was docketed on March 30, 2005, and reinstatement of Ms. Callahan's complaint was dependent upon deposit in the court registry of due and owing and future trust and condo fee payments, as well as an additional specified sum "to secure an award attorneys' fees to Defendant and Intervenor as a sanction for Plaintiff's conduct of the litigation to date."

On April 19, 2005, 515 DC paid ABN AMRO $32,791.50 for the first mortgage in order to protect its interest in the 4200 Cathedral property. On April 22, 2005, Ms. Callahan filed a pro se motion for reinstatement of her claim, without tendering any payment, and requesting clarification of the "specific amount of payment for any outstanding condominium fees." The trial court issued an order on June 8, 2005, stating that it was again mindful of the legal principle that adjudication on the merits is preferred, and ordering 4200 and 515 DC to submit and mail to Ms. Callahan affidavits listing the amounts owed by her, and costs and fees. The Condominium and 515 DC submitted affidavits in June 2005 stating the amounts owed. Ms. Callahan filed a pro se supplement to her motion for reinstatement on July 13, 2005 stating, in part, why she was without counsel, and replying to the affidavits; she did not tender any monies for the court registry.

On July 14, 2005, the trial court issued an order primarily requiring Ms. Callahan to "deposit into the [court's] registry [by September 15, 2005,] as security for the Defendant[] and Intervenor and as a condition precedent for the reinstatement of [her] action cash or undertaking backed by surety acceptable to the court in the amount of $129,491.43." The order stated that if Ms. Callahan failed to deposit the required amount into the court's registry, her claim would be dismissed with prejudice. On August 2, 2005, Ms. Callahan moved for an extension of time to file a motion for reconsideration of the court's July 14, 2005 order. Ms. Callahan requested an extension until September 12, 2005 to file a motion for reconsideration on the basis that she was finalizing an agreement to retain new counsel, who would be unavailable until September 5, 2005. Defendant and intervenor opposed the motion. Ms. Callahan deposited the August condominium fee in the amount of $864 on August 1, 2005 with the court's registry and "anticipate[d] substantial, if not full compliance with th[e] court's March 2005 order directing escrow of all past due condo fees and [mortgage] payments by the first of September." On August 24, 2005, Ms. Callahan filed a praecipe with a $242.05 check earmarked as an August 2005 trust payment; she stated that no payment was due on the first mortgage because of a document from ABN AMRO Mortgage Group showing the principal of $53,700.00 "is fully paid, satisfied and discharged on April 27, 2005."

On September 13, 2005, Ms. Callahan's new counsel, submitted a motion for a twoday extension to file a motion for reconsideration of the court's July 14, 2005 order, and $889 was deposited into the court's registry ($864 plus a $25 late fee for the September condo fee). On September 14, 2005, Ms. Callahan filed a motion for reconsideration of the July order, which 4200 and 515 DC opposed. The next day, Ms. Callahan deposited $49,866.38 into the court's registry. Defendant and intervenor filed an opposition to the motion for reconsideration.

In an order dated September 29, 2005, the trial court granted Ms. Callahan's motion for an extension of time in which to file a motion for reconsideration of the court's July 14, 2005 order, but denied her motion for reconsideration, thereby dismissing her complaint with prejudice. The court reasoned that Ms. Callahan had not complied with the July 14, 2005 order requiring dismissal with prejudice in the event of default. The trial court believed that Ms. Callahan "litigated her case in the most dilatory manner imaginable and [] flagrantly flaunted the rules of the court and the rights of opposing parties to an expeditious resolution of this dispute on the merits."

ANALYSIS

Ms. Callahan contends that the trial court's September 29, 2005, order dismissing her complaint with prejudice should be reversed, either under Super. Ct. Civ. R. 60 (b) for good cause, or under Rule 59 (e) as a matter of law. Specifically, she asserts with respect to Rule 59 (e) that the trial court made an error of law "in requiring the Plaintiff Prevails Bond" and that the trial court "tacitly admitted that the Defendant Prevails Bond was the proper amount," that is, that the $49,866.88 (deemed sufficient as a supersedeas bond for the appeal) which she deposited in the court registry on September 15, 2005, "operate[d] to guarantee payment of the judgment in the event defendant's appeal is not successful" (emphasis in original), and that the trial court "was coming to an understanding that the June 2005 Affidavits of [515 DC and 4200] were purposely misleading." She indicates that the trial court's denial of intervenor's motion for summary judgment (which defendant supported) revealed that she was likely to prevail on the merits of the litigation. Furthermore, Ms. Callahan argues that she demonstrated good cause under Rule 60 (b) because of excusable neglect (the "outrageous conduct" of her former trial counsel). She also asserts that her complaint should not have been dismissed because of the misrepresentation and fraud of 515 DC regarding the status of the ABN AMNO trust, and due to its failure to disclose the actual interest acquired, thereby depriving her of an opportunity to cure any alleged default. Appellee 4200 claims that Ms. Callahan filed an untimely notice of appeal, and that in any event, she had actual notice of the trial court's ...


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