United States District Court, D. Columbia.
KEELY D. PARR, Plaintiff,
MASHAALLAH EBRAHIMIAN et al., Defendants
[Copyrighted Material Omitted]
KEELY D. PARR, Plaintiff, Pro se, Brooklyn, NY.
For KEELY D. PARR, Plaintiff: Shannon Hadley Rutngamlug, LEAD ATTORNEY, SAUL EWING LLP, Washington, DC.
For MARSHAALLAH EBRAHIMIAN, RIMCOR LLC, Defendants: Robert C. Gill, LEAD ATTORNEY, SAUL EWING LLP, Washington, DC; Shannon Hadley Rutngamlug, SAUL EWING LLP, Washington, DC.
For TIMOTHY WALKER, WALKER GROUP LLC, Defendants: David Drake Hudgins, LEAD ATTORNEY, Juliane Corroon Miller, Sean C.E. McDonough, HUDGINS LAW FIRM, P.C., Alexandria, VA; Shannon Hadley Rutngamlug, SAUL EWING LLP, Washington, DC.
PAUL L. FRIEDMAN, United States District Judge.
This matter is before the Court on separate motions for summary judgment filed by two sets of defendants, as well as on the plaintiff's cross-motion for partial summary judgment with respect to certain claims against one set of defendants. The case stems from the plaintiff's purchase of a condominium in the District of Columbia; she claims that the defendants made numerous misrepresentations to her in conjunction with this purchase, causing her to suffer injury. Upon consideration of the parties' respective motions, the relevant legal authorities, and the entire record in this case, the Court will grant in part and deny in part the defendants' motions, and it will deny the plaintiff's cross-motion.
In late 2006, plaintiff Keely Parr bought a condominium located at 51 Rhode Island Avenue, Northwest, in the District of Columbia. Ms. Parr purchased her condominium from Rimcor, LLC, of which Mashaallah Ebrahimian was the sole member (collectively " the Rimcor defendants" ). Rimcor had, in turn, purchased the property in 2005 from Timothy Walker, who, operating through the Walker Group, LLC (collectively " the Walker defendants" ) had overseen the transformation of 51 Rhode Island Avenue from a single-family dwelling into a four-unit building. On October 23, 2006, Ms. Parr received a Public Offering Statement (" POS" ) advertising Unit 3 for sale as a condominium. Two days later, she entered into a contract with Rimcor, LLC, for the purchase of the unit at a price of $369,000. The contract included a Home Inspection Contingency Clause, which enabled Ms. Parr to conduct an inspection of the unit and then to demand the repair of items identified as needing attention. See Pl.'s Ex. 1 [Dkt. No. 118-3], at ECF page 14. Ms. Parr hired Homes Are US, Inc., which conducted a pre-settlement inspection and issued a report that identified sixteen items of concern. See Pl.'s Ex. 4 [Dkt. No. 118-5]. After receiving an assurance from Mr.
Ebrahimian that these items had been addressed, Ms. Parr proceeded to settlement on November 17, 2006.
Eight months after settlement, on July 4, 2007, Ms. Parr wrote a letter to Mr. Ebrahimian seeking to rescind the contract, citing various purported misrepresentations made in connection with Rimcor's sale of the condominium to her. See Pl.'s Ex. 6 [Dkt. No. 118-5]. Rimcor, through its attorney, refused Ms. Parr's request for rescission. See Pl.'s Ex. 7 [Dkt. No. 118-5]. She filed this lawsuit in September 2007. In her complaint, Ms. Parr sought rescission of her contract with Rimcor as well as compensatory and punitive damages from both the Rimcor defendants and the Walker defendants. The defendants filed separate motions to dismiss Ms. Parr's complaint, which the Court denied without prejudice in light of the issuance of a pertinent decision by the D.C. Court of Appeals. See Parr v. Ebrahimian, Memo. Opinion & Order (D.D.C. Sept. 25, 2008) [Dkt. No. 19]. The parties then entered into mediation, but, by March 2009, they reported to the Court that they had failed to reach a settlement of the case. See Joint Status Report & Request for Briefing Schedule [Dkt. No. 31].
Ms. Parr filed an amended complaint, see 1st Am. Compl., which both the Rimcor and Walker defendants moved to dismiss. Ms. Parr asserted claims against all of the defendants for fraud, negligent misrepresentation, and negligence, and for violation of the District of Columbia's Consumer Protection Procedures Act and Condominium Act. She also brought claims against the Rimcor defendants for breach of contract and breach of the implied warranty of good faith and fair dealing. In an Order and an accompanying Opinion, the Court granted in part and denied in part the defendants' motions to dismiss. Parr v. Ebrahimian, 774 F.Supp.2d 234 (D.D.C. 2011). With respect to the Rimcor defendants, the Court dismissed Ms. Parr's claim for breach of the implied warranty of good faith and fair dealing, but concluded that she had set forth allegations sufficient to state claims under each of her other causes of action. Id. at 240-45. As to the Walker defendants, the Court dismissed all but the negligence claim. Id.
After taking some discovery, Ms. Parr moved the Court to reconsider the dismissal of her claims against the Walker defendants, citing certain newly discovered evidence in the form of the Rimcor defendants' answers to her interrogatories. Ms. Parr simultaneously sought leave to file a second amended complaint to incorporate allegations based on this evidence. The Court granted in part and denied in part Ms. Parr's motion for reconsideration, and it reinstated her claims for fraud and negligent misrepresentation against the Walker defendants. Parr v. Ebrahimian, Opinion & Order (D.D.C. Mar. 26, 2013) [Dkt. No. 94], at 11-12. The Court also granted Ms. Parr leave to file her second amended complaint. Id. After the close of discovery, the Rimcor and Walker defendants each filed motions for summary judgment, while Ms. Parr filed her own
cross-motion for partial summary judgment as to the statutory claims brought against the Rimcor defendants.
II. LEGAL STANDARD
Summary judgment is appropriate when " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Fed.R.Civ.P. 56(a), (c). In making that determination, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; Talavera v. Shah, 638 F.3d 303, 308, 395 U.S.App.D.C. 7 (D.C. Cir. 2011). A disputed fact is " material" if it " might affect the outcome of the suit under the governing law." Talavera v. Shah, 638 F.3d at 308 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute over a material fact is " genuine" if it could lead a reasonable jury to return a verdict in favor of the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Paige v. DEA, 665 F.3d 1355, 1358, 398 U.S.App.D.C. 492 (D.C. Cir. 2012). " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment. Thus, [the court] do[es] not determine the truth of the matter, but instead decide[s] only whether there is a genuine issue for trial." Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 358, 404 U.S.App.D.C. 439 (D.C. Cir. 2013) (quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604, 390 U.S.App.D.C. 178 (D.C. Cir. 2010)); see also Tolan v. Cotton, 134 S.Ct. at 1866; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.
A. Claims Against Both Sets of Defendants
1. Fraud and Negligent Misrepresentation
The Court, in its Opinion addressing the defendants' motions to dismiss Ms. Parr's first amended complaint, concluded that she had stated claims against the Rimcor defendants for fraud and negligent misrepresentation based on two alleged misrepresentations. First, Ms. Parr alleged that the Rimcor defendants had either knowingly or negligently failed to inform her that the condominium was built as a result of the conversion of a single-family dwelling into a multi-unit building. Parr v. Ebrahimian, 774 F.Supp.2d at 240. Second, Ms. Parr alleged that the Rimcor defendants had falsely claimed that the structural elements of the condominium were either built in compliance with the District of Columbia housing code, or had been approved by a District of Columbia housing inspector. Id. This latter representation was first made to Ms. Parr in the Public Offering Statement, but, as this Court already has noted, Ms. Parr's complaint did not assert reliance on that document with respect to the matter of housing code compliance. See Parr v. Ebrahimian, Opinion & Order (D.D.C. Mar. 26, 2013) [Dkt. No. 94], at 6-8. Instead, Ms. Parr claims that she relied on Mr. Ebrahimian's
assurance to her, subsequent to the home inspector's identification of numerous items of concern, that those items had been adequately addressed. See id. In addition, upon Ms. Parr's subsequent motion for reconsideration of the Court's Opinion, the Court agreed that the Walker defendants also might be liable for fraud or negligent misrepresentation due to their connection to the alleged misrepresentations regarding the conversion of 51 Rhode Island Avenue and regarding the building's structural soundness. Id. at 11-12.
The question now is whether Ms. Parr -- who would bear the burden of proof at trial on these claims -- can point to evidence in the record that would support a reasonable jury's verdict in her favor. See Czekalski v. Peters, 475 F.3d 360, 363, 374 U.S.App.D.C. 351 (D.C. Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). To prevail on a claim for common law fraud, a plaintiff must demonstrate that there was " (1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and [that] (5) an action [was] taken in reliance upon that representation." Pearson v. Chung, 961 A.2d 1067, 1074 (D.C. 2008). In addition, the plaintiff's reliance must have been a substantial factor in causing her to suffer injury. Va. Acad. of Clinical Psychologists v. Group Hosp. & Med. Servs., Inc., 878 A.2d 1226, 1238 (D.C. 2005); see also Wetzel v. Capital City Real Estate, LLC, 73 A.3d 1000, 1002-03 (D.C. 2013) (claim for fraud requires showing of damages). " A false representation may be either an affirmative misrepresentation or a failure to disclose a material fact when a duty to disclose that fact has arisen." Saucier v. Countrywide Home Loans, 64 A.3d 428, 438 (D.C. 2013) (quoting Rothenberg v. Aero Mayflower Transit Co., 495 F.Supp. 399, 406 (D.D.C.1980)). The elements of a claim for negligent misrepresentation are similar to those for fraud, except that they do not include the same scienter requirement. Instead, the plaintiff must show that the defendant " made a false statement or omitted a fact that he had a duty to disclose," that the false statement or omission " involved a material issue," and that the plaintiff " reasonably relied upon the false statement or omission to [her] detriment." Redmond v. State Farm Ins. Co., 728 A.2d 1202, 1207 (D.C. 1999).
The Court first addresses Ms. Parr's contention concerning housing code compliance, and, relatedly, the resolution of the items identified in the pre-settlement housing inspection report. The defendants maintain that Ms. Parr has failed to substantiate her allegation that Mr. Ebrahimian's assurances to her on these matters were false. See Rimcor Reply at 5-9; Walker MSJ at 8; Walker Reply at 6-10. The defendants also assert that, even assuming such misrepresentations were made to Ms. Parr, she has not been able to link them to any identifiable injury that she suffered. See Rimcor MSJ at 13-14, 15-16; Rimcor Reply at 20-21, 23-24; Walker MSJ at 11-13.
a. Railing to Spiral Stairway
Ms. Parr places primary emphasis on one purported structural defect of the condominium, contending that the railing to the spiral stairway leading from her balcony to the ground outside was not compliant with applicable safety standards. Pl.'s Walker Opp. at 12-13; see also 2d Am. Compl. ¶ ¶ 20, 86(c), 108(c). In the home
inspection report ordered by Ms. Parr prior to settlement, the inspector noted: " Side rails to circular stairs off balcony do not conform to current safety standards. Investigate to determine if units have been inspected by City. Major safety hazard." Pl.'s Ex. 4 [Dkt. No. 118-5]. Subsequently, Mr. Ebrahimian assured Ms. Parr that the issue had been addressed. See Pl.'s First Affidavit ¶ 5 (Pl.'s Ex. 2) [Dkt. No. 118-3]; see also Rimcor Defendants' Objections & Answers to Plaintiff's First Set of Interrogatories (Pl.'s Ex. 12) [Dkt. No. 118-7] (answer to No. 9). It now appears that Mr. Ebrahimian's assurance was based on a letter that had been provided to him by Mr. Walker, in which Walker asserted that the " code for the District of Columbia states that the railing [must] be 36 inches in height, which the railing is," and that the staircase also featured a necessary emergency release valve feature. See Pl.'s Ex. 11 [Dkt. No. 118-6]. Ms. Parr ...