Appeal from the Superior Court of the District of Columbia, (CAB7459-04) (Hon. Mary A. Gooden Terrell, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, KRAMER and OBERLY, Associate Judges.
This case concerns Urban Development Solutions, LLC's ("UDS") bid proposal challenge to the District of Columbia's selection of another firm to purchase and develop District-owned land adjacent to a subway station. The trial court dismissed UDS's lawsuit on the ground that the selection committee enjoyed absolute immunity. UDS appealed; it contends that the District is not shielded by absolute immunity in this case. The District concedes that it does not have absolute immunity; it argues, however, that it is entitled to judgment as a matter of law on UDS's claims. UDS takes the position that this court should resolve all outstanding issues where there are no disputes of material fact. We conclude that on this record the District is entitled to judgment as a matter of law, and hence, we affirm - on different grounds - the trial court's judgment dismissing UDS's lawsuit.
The record before us shows that in August 2002, the District issued a Request for Expression of Interest ("RFEI") in the development of land located at the Georgia Avenue-Petworth Metro Station ("the Georgia Avenue Project"). UDS expressed interest in developing a retail/residential complex on the site. Subsequently, the District published a Request for Proposals ("RFP") on August 1, 2003, after the Council of the District of Columbia approved the disposition of the land through an RFP process. The RFP called for a mixed residential development, with retail establishments and community amenities. It also set forth specific submission requirements and criteria for evaluating proposals. In February 2004, the District notified Petworth Investment Partners ("PIP")/UDS, one of the bidders, of its decision to select Donatelli & Klein ("D&K") and Petworth Metro Ventures ("PMV") as the developer of the site. UDS informed the District of its decision to protest the selection of D&K and PMV.
On September 30, 2004, UDS filed its complaint against the District seeking (1) injunctive relief to compel the District (a) to award the Georgia Avenue Project to UDS, or (b) to conduct a new procurement process (Count I); (2) a declaratory judgment that the procurement process resulting in the selection of D&K and PMV was flawed (Count II); and (3) damages and attorneys' fees (Count III). The trial court denied injunctive relief. UDS lodged an amended complaint against the District in early 2005. The amended complaint incorporated UDS's initial complaint by reference and added the following new claims: (1) breach of an implied contract to "process bids fairly and in good faith, and award the project to the bidder earning the highest score when the bids were reasonably judged" (Count IV); (2) promissory estoppel based upon an implied promise to administer the selection process fairly and in good faith (Count V); (3) violation of D.C. Code § 10-801 pertaining to the disposition of real property owned by the District, due to the District's alleged "bad faith and illegal conduct" (Count VI); (4) intentional torts, accusing the District of "rigging the award process" and acting "fraudulently, collusively, in bad faith, and arbitrarily and capriciously" (Count VII); (5) deprivation of UDS's "vested right" in the Georgia Avenue Project (Count VIII); (6) unjust enrichment of D&K and PMV (Count IX); (7) conspiracy "to commit the various violations alleged" in the prior counts and "to damage UDS... and to deprive UDS of the award to which it was entitled" (Count X).*fn1 UDS sought lost profits, estimated at $15,000,000, bid preparation expenses of approximately $241,805, punitive damages, attorneys' fees, costs, and other appropriate relief.
The District filed its first motion to dismiss the complaint for lack of jurisdiction on November 29, 2004, arguing mainly that the trial court had no subject matter jurisdiction to review the actions of the Mayor and Council relating to the discretionary disposition of the District's surplus real property. The Honorable Neal E. Kravitz orally denied the District's motion on December 17, 2004, after determining that the trial court had subject matter jurisdiction under the applicable statute. The District lodged another motion to dismiss on March 4, 2005, contending that UDS failed to provide timely notice of its claim to the District, in accordance with D.C. Code § 12-309 (2001). In the alternative, the District requested summary judgment on UDS's claims concerning alleged conspiracy, intentional torts, promissory estoppel, implied contract, and vested rights. Judge Kravitz denied the motion on July 27, 2005.*fn2
In March 2006, the case was reassigned to the Honorable Mary A. Gooden Terrell. Following discovery, the District filed a July 20, 2006 motion to dismiss UDS's amended complaint for lack of jurisdiction,*fn3 and for failure to state a claim upon which relief can be granted.*fn4 The District also maintained, in part that, because of a lack of evidence, it was entitled to judgment as a matter of law on all of UDS's counts alleging "bad faith or unjust conduct," and on UDS's demand for punitive damages because no evidence substantiated "egregious conduct" by the District.
On April 27, 2007, Judge Terrell denied the District's motion to dismiss or, in the alternative, for summary judgment, in part, because as to Counts III -- X, "the record contains genuine factual disputes regarding several material issues, including but not limited to whether defendant breached an implied contract, whether the award was made in bad faith, whether unjust enrichment occurred, and whether defendant violated statutory provisions." The court declared that Count II (declaratory judgment) was moot due to resolution of the injunctive relief claim, and that UDS "agreed to withdraw its claims for punitive damages and attorneys' fees." In its motion for reconsideration, filed on July 3, 2007, the District pressed its argument that the UDS's lawsuit should be dismissed because the District enjoyed absolute immunity.
While awaiting the trial court's response to the District's motion for reconsideration, the parties moved closer to trial. The District filed a Motion in Limine, on September 8, 2007, in an effort to preclude UDS from presenting evidence at trial on several issues, including "bad faith." The parties followed the District's filing with an eighty-six page Joint Pretrial Statement on September 18, 2007. The statement listed UDS's remaining claims as:
Count [III]: Damages for bid preparation costs; Count [IV]: Implied contract;
Count [V]: Promissory estoppel;
Count [VI]: Statutory violation (D.C. Code § 10.1- 801);
Count [VII]: Intentional torts;
Count [VIII]: Vested rights;
Count [IX]: Unjust enrichment;
The District's "affirmative defenses" included "reasonable" and "lawful" actions "within scope of employment" and "in accord with law." UDS identified ninety-nine allegedly disputed issues but ...