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Pellerin v. 1915 16th Street Cooperative Association

October 1, 2009

ELLA M. PELLERIN, APPELLANT,
v.
1915 16TH STREET COOPERATIVE ASSOCIATION, INC., APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAB3327-02) (Hon. Michael L. Rankin, Trial Judge).

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

Argued September 10, 2009

Before WASHINGTON, Chief Judge, and KRAMER, Associate Judge, and NEWMAN, Senior Judge.

This case has been here before. Pellerin v. 1915 16th St., N.W. Coop. Ass'n, 900 A.2d 683 (D.C. 2006). There we remanded the case for the trial court to decide whether to permit appellant, Ella M. Pellerin (Pellerin), "to amend her complaint to add her quorum claim . . . [and to] . . . clarify and, if necessary, modify its award of attorney's fees . . . ." Id. at 690. Pellerin now appeals the trial court's rulings adverse to her on both issues. We affirm.

I.

These cases stem from the termination of Pellerin's mother's proprietary lease and cooperative membership by 1915 16th Street Cooperative Association (the "Cooperative"). Pellerin's mother, Melissa Sawyer, resided in a cooperative apartment in northwest Washington, D.C., until her illness and death in April 2000. Upon Sawyer's death, the Cooperative notified Pellerin, the personal representative of her mother's estate, that the Cooperative would terminate her mother's proprietary lease and cooperative membership unless Pellerin paid approximately $18,000 in overdue maintenance fees, non-occupancy fees, and related charges. Pellerin did not render full payment.

Members of the Cooperative held a meeting on April 2, 2002, to address Pellerin's non-payment of her mother's arrearages. Pellerin was notified of the April 2 meeting in advance. Pellerin's attorney was present when the Cooperative voted by seventeen to one, with one abstention, to terminate Sawyer's proprietary lease and cooperative membership. The Cooperative gave Pellerin until May 1 to pay the outstanding balance or relinquish her mother's membership and possession of the apartment.

Pellerin sued the Cooperative for breach of contract and adverse possession. The trial court granted the Cooperative's motion to dismiss the adverse possession count but left the breach of contract counts intact. The Cooperative then counterclaimed for maintenance fees, non-occupancy fees, and related charges owed by Sawyer, as well as attorneys' fees pursuant to Article 3 of Sawyer's lease. After the close of discovery, the Cooperative moved for summary judgment on the breach of contract counts and for partial summary judgment on its counterclaim. Pellerin opposed these motions.

The Cooperative filed motions in limine, one of which sought to limit Pellerin to the claims articulated in her complaint. The trial court did not rule on these motions. While the Cooperative's motion for summary judgment was pending, the parties filed a joint pretrial statement. For the first time, Pellerin claimed that the April 2 meeting was invalid for want of a quorum, as defined in the Cooperative's by-laws. According to Pellerin, seven or eight members had voted by proxy, which she argued was prohibited under D.C. Code § 29-914 (2001).

The trial court granted summary judgment for the Cooperative on Pellerin's breach of contract claims. Following a bench trial on the Cooperative's counterclaim, the court found Sawyer's estate liable for most of the assessed fees and charges. The trial court then awarded attorneys' fees to the Cooperative in the amount of $18,574.

On remand, the trial court denied Pellerin's motion to file an amended complaint to assert the quorum claim and reduced the award of attorneys' fees to $14,057.67 from the $18,574.00 originally awarded. This appeal followed.

II.

A. Quorum Issue

Because Pellerin's attorney was present at the April 2 meeting and failed to raise the quorum issue at that time, Pellerin has waived this claim. See Jones & Artis Constr. Co. v. District of Columbia Contract Appeals Bd., 549 A.2d 315, 324 (D.C. 1988) (concluding that "Jones & Artis' failure to raise the quorum issue before the Board was an acquiescence, tantamount to a stipulation under the rules, that the Chairman could act on behalf of the Board . . . upon stipulation, irrespective of quorum requirements."); see also Will v. View Place Civic Ass'n, 61 Ohio Misc. 2d 476, 482 (Ohio Com. Pl. 1989) (concluding that failure to raise issue of whether quorum was ...


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