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Etdh Associates v. Waterfall Ventures

July 1, 2010


Appeal from the Superior Court of the District of Columbia. (CA-5410-01) (Hon. Herbert B. Dixon, Jr., Trial Judge).

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

Argued May 9, 2007

Before RUIZ and FISHER, Associate Judges, and NEBEKER, Senior Judge. Partial opinion for the court by Associate Judge RUIZ at p. 1.

Partial dissenting opinion by Associate Judge RUIZ at p. 19.

Partial opinion for the court by Associate Judge FISHER, in which Senior Judge NEBEKER joins, at p. 28.

Appellants, ETDH Associates ("ETDH") and 6425 14th Street, N.W., LLC ("LLC"), for the second time appeal the trial court's judgment in favor of appellee, Waterfall Ventures, LLC ("Waterfall"), which enforced a lien for delinquent water and sewer charges and calculated the overdue principal to be $101,295.29, with interest of one percent compounded monthly (which as of the time of trial in 2004 nearly equaled the principal amount, and continues to accrue), and awarded $84,708.88 for appellee's attorney's fees.*fn1 Per sections I. and II. A-D of Judge Ruiz's opinion, we hold that the lien for water and sewer services is enforceable against appellants, that attorney's fees are recoverable pursuant to D.C. Code § 34-2407.02 (a), and that the trial court did not err, either in finding that the required notice was given to appellant before the filing of the appellee's complaint, or in determining the amount of attorney's fees due. Judge Fisher files an opinion with respect to the amount of the lien, in which Judge Nebeker concurs. Thus, Part I through Part II. D of Judge Ruiz's opinion and the opinion of Judge Fisher together constitute the opinion of the court, affirming the judgment of the trial court. Judge Ruiz has filed a partial dissent, and would remand the case for recalculation of the principal amount due on the lien.


The water and sewer fees at issue relate to an apartment building that had been abandoned, located at 6425 14th Street, N.W. Appellant ETDH became the record owner of the property in 1979. On July 8, 1983, the District of Columbia filed a "Certificate of Delinquent Water/Sewer Service Charges" with the Recorder of Deeds based on unpaid water and sewer services provided to the property in the amount of $6,384.22. The certificate, however, erroneously listed Procenko Real Estate, the property's management company, as the record owner.

On January 16, 1985, the District of Columbia held a tax sale for the property to recover unpaid property taxes. See District of Columbia v. Mayhew, 601 A.2d 37, 40 (D.C. 1991). When no one bid on the property at the tax sale, the District purchased the property, and on June 3, 1988, issued itself a tax deed and took possession of the building. Id. This court, however, voided the tax sale and deed because the District had failed to provide adequate notice of the tax sale to ETDH, the owner of record.Id. at 45. Pursuant to our decision, the District subsequently deeded the property back to ETDH by a "Deed of Correction," dated October 12, 1993.

On January 6, 1999, the District of Columbia Water and Sewer Authority ("WASA")*fn2 assigned the lien against the property based on the outstanding water and sewer charges to Breen Capital Investment Corporation ("BCIC"). The property again accumulated unpaid property taxes, and the District held a tax sale and issued a tax deed on October 5, 2000, to appellant 6425 14th Street, N.W., LLC. After LLC paid the overdue real property taxes, the tax deed was recorded on October 12, 2000.*fn3

Although the property tax bill was satisfied, the delinquent water and sewer charges remained unpaid. On July 19, 2001, BCIC, as assignee of the water and sewer lien, filed a complaint in Superior Court against appellants to determine the amount due for the delinquent water and sewer charges, and for forfeiture of the property to collect the amount secured by the lien, plus attorney's fees.*fn4 After filing suit, BCIC assigned the lien to appellee, Waterfall, on June 27, 2002; Waterfall was substituted as plaintiff in the trial court.

On September 7, 2002, the trial court granted summary judgment to Waterfall, and determined that the amount of the water and sewer lien was $175,556.43. Appellants appealed, and on October 22, 2003, we vacated the summary judgment and remanded the case for the trial court to reconsider three issues:

(1) [W]hether there is an outstanding water and sewer lien relating to the premises located at 6425 14th St., N.W., for which 6425 14th St., N.W., LLC is responsible.

(2) If such a lien exists, what is the outstanding amount of the lien, the interest, and the penalties, and how were those sums calculated.

(3) Whether [Waterfall] is entitled to attorney's fees or costs, and if so, what is the basis for those fees (e.g., statutory, contractual, or other) and the amount that should be awarded (with a ...

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