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William J. Harnett and the Washington Capital Group, Inc v. Washington Harbour Condominium Unit Owners' Association

July 19, 2012

WILLIAM J. HARNETT AND THE WASHINGTON CAPITAL GROUP, INC., APPELLANTS,
v.
WASHINGTON HARBOUR CONDOMINIUM UNIT OWNERS' ASSOCIATION, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CAB-7452-04) (Hon. Herbert Dixon, Jr., Motions Judge) (Hon. Frederick H. Weisberg, Motions Judge) (Hon. Judith Bartnoff, Trial Judge)

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

(Argued March 9, 2010 )

Before FISHER, Associate Judge, and SCHWELB and RUIZ,*fn1 Senior Judges.

Appellants, William J. Harnett and The Washington Capital Group, Inc., challenge the outcome of their protracted litigation with appellee, the Washington Harbour Condominium Unit Owners' Association. We affirm the trial court's judgment in favor of appellee.

I. Facts and Procedural History

The Washington Harbour Condominium Complex ("WHC") is a residential/commercial development in Georgetown that includes 36 residential condominium units and 48 parking units. In accordance with the District of Columbia Condominium Act, D.C. Code § 42-1901, 1902, 1903 to -1904 (2001), the unit owners own both the residential units and the parking units in fee simple absolute, and hold an undivided interest in the common elements of the condominium. The WHC is governed by appellee Washington Harbour Condominium Unit Owners' Association (the "Owners' Association"), which is in turn overseen by a Board of Directors.

Appellant, William J. Harnett, owns one WHC residential unit (PH-206) and two parking units (P-112 and P-116). Appellant, the Washington Capital Group, which is owned by Harnett, owns two WHC residential units (PH-207 and PH-208) and two parking units (P-123 and P-135). Appellants assert that the Owners' Association violated District laws, breached its fiduciary duty to appellants, and intentionally interfered with the use of their property by creating five new parking spaces in the WHC parking garage. Appellants also allege that the Owners' Association retaliated against Harnett by delaying authorization of necessary repairs on Harnett's residential unit because he publicly opposed the Owners'

Association's decision to create the new parking spaces.

A. The Parking Spaces

There are 48 parking spaces for more than 30 residential units, and many residents would like to be able to park two cars in the complex. When Harnett purchased his WHC residential unit, he purchased parking units P-112 and P-116 because of their large size, location near the elevator, and ease of access. Parking space P-112 had easy access by virtue of an open common area across the aisle from the parking space. Harnett frequently accessed his parking space by driving through this open common area and, to prevent others from blocking the area, he began to park his car there.

In early 2004, the Owners' Association created a Parking Committee tasked with analyzing and addressing the issue of inadequate parking for residents. The Parking Committee surveyed the owners to determine whether they would favor the creation of additional parking spaces. Subsequently, in August 2004, the Board of Directors decided to create five new parking spaces from areas previously designated as common elements in the parking garage and then auction those new spaces to residents with the highest bids. On August 18, 2004, the Board of Directors sent a memo to all unit owners, informing them of the decision to auction the parking spaces. The memo included a copy of the new parking layout as well as procedures and date for bidding on the new spaces. [Id.] New parking space P-2 was to be located in the common area across from Harnett's parking unit, P-112.

On September 9, 2004, WHC's residential director gave Harnett a "pre-auction information form" that requested residents to state whether they were interested in participating in a September 15, 2004 parking space auction. The form stated that residents "should complete the following information form and return it to the residential director no later than September 8th, 2004." Harnett refused to sign the form because it was "already past the due date." Other residential unit owners testified that there was a registration table and that bidders were permitted to sign up on the day of the auction, but Harnett did not register or bid on any of the parking spaces that day. He did, however, hire a court reporter to transcribe the auction proceedings.*fn2 At the auction, five new spaces were sold to the highest bidders. Each bidder entered into a "Parking Space Revocable License Agreement" with the Owners' Association. Harnett was not happy. Once a car was parked in the new parking space across from P-112, he asserted, he could no longer use P-112. According to Harnett, the drive aisle that abuts P-112, which is seventeen feet wide, did not give him sufficient room to maneuver his car into the parking space.

After the auction, the Owners' Association placed a sign on the wall that abuts Harnett's other parking unit, P-116, directing pedestrians to the residential elevator. Harnett complained that the Association did not ask for his permission to hang the sign, and that he would have denied permission because pedestrians passed through his space on the way to the elevators and he had been forced to repair his car "at least once" because "a woman came through with her shopping cart and scratched the car."

B. The Residential Repairs

According to the Owners' Association, the WHC has had a history of structural problems due to water infiltration. Indeed, the Owners' Association decided to hold a parking auction, in part, to raise money for needed structural repairs. In August 2004, shortly before the parking space auction, the Owners' Association informed WHC residents that it had recently lost an arbitration proceeding and would therefore need to authorize building repairs. The Owners' Association adopted a "triage" approach to repairing the condominium complex. The approach set forth two stages for repairs: first, safety hazards such as falling bricks would be addressed; second, the construction firm would focus on repairing active leaks. For efficiency, repairs would be made first to residential units at the top of the complex, so that water would not leak down into newly repaired units. Appellants contend that the Owners' Association engaged in undue delay in repairing their residential units and that this delay was in retaliation for having initiated court proceedings against the Association concerning the creation of new parking spaces.

C. Procedural History

The trial court proceedings spanned nearly four years, and appellants now object to the trial court's handling of nearly every stage of the proceedings. On November 12, 2004, Harnett filed a complaint for declaratory judgment, naming as defendants the Owners' Association and several owners of specific parking spaces. On February 9, 2005, Harnett filed his First Amended and Verified Complaint for Legal and Equitable Relief (the "First Amended Complaint"), naming as defendants the Owners' Association, the Association's Board of Directors as a group, each member of the Board of Directors individually, and the resident of a condominium unit. The First Amended Complaint alleged: (1) the defendants violated the Condominium Act and the Condominium Instruments by creating a Parking Committee and auctioning new parking spaces ("Count I"); (2) the new parking spaces do not comply with the District's zoning laws and are dangerous and unsafe ("Count II"); (3) the defendants breached a fiduciary duty owed to Harnett by "creat[ing] and foster[ing] a scheme whereby New Parking Spaces were created and bid off" ("Count III"); (4) the defendants intentionally interfered with Harnett's use of his property, in particular his use of space P-112 and his use of the Common Elements, by approving the sale of the new parking spaces ("Count IV"); and (5) the defendants failed to make necessary repairs on Harnett's residential unit, rendering his home "uninhabitable," in retaliation for "initiating the present action" ("Count V"). The defendants filed a Rule 12 (b)(6) motion to dismiss, and in January 2006 the motions court, Judge Dixon, dismissed Counts I and II of the First Amended Complaint as well as all claims against the individual defendants.

On February 16, 2007, The Washington Capital Group was added as a plaintiff. Four days later, Harnett and the Washington Capital Group filed a Second Amended and Verified Complaint. The Second Amended Complaint modified Count V (failure to make repairs) to include claims of retaliation regarding the Owners' Association's alleged failure to make repairs to the Washington Capital Group's residential units.

On November 26, 2007, after the close of discovery, the Owners' Association filed a motion for summary judgment, which the court denied. In the December 28, 2007 order ...


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