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Whitt v. American Property Construction P.C.

Court of Appeals of Columbia District

April 4, 2017

Suzanne Whitt, Appellant,
v.
American Property Construction, P.C., et al., Appellees.

          Argued January 24, 2017

         Appeal from the Superior Court of the District of Columbia (CAB-6365-13) (Hon. Stuart G. Nash, Trial Judge)

          Ursula Werner for appellant.

          Nicholas Andrews, with whom Amy Leete Leone was on the brief, for appellee American Property Construction, P.C.

          Troy A. Priest, with whom Jean Marie Sylla, Jr., and Del Wright, Jr., were on the brief, for appellee Washington Gas Light Company.

          Before Blackburne-Rigsby, Chief Judge, [*] Fisher, Associate Judge, and Ferren, Senior Judge.

          Fisher, Associate Judge.

         Suzanne Whitt appeals from Superior Court judgments rejecting her claims for tortious interference with business relations, intentional infliction of emotional distress ("IIED"), and negligence. She argues that the trial judge erred by omitting a proposed jury instruction, by dismissing her negligence claim after applying the "economic loss doctrine, " by disqualifying one of her attorneys, and by directing verdicts for appellee Washington Gas Light Company ("Washington Gas") while limiting the scope of her claims against appellee American Property Construction, P.C. ("APC"). We affirm the trial judge's disqualification of appellant's attorney. However, we reverse the trial court's rulings regarding the proposed jury instruction, the economic loss doctrine, one of the directed verdicts for Washington Gas, and the limitation of the factual predicate on which APC's liability was determined. We remand for further proceedings on all claims except IIED.

         I. Background

         From 2011 to 2013, Washington Gas and APC, along with two former defendants in this case-660 Pennsylvania Avenue Associates, LLC ("660 Penn"), and Stanton Development Corporation ("Stanton")-undertook a construction project next to appellant's hair salon at 323 7th Street, S.E.[1] 660 Penn owned the properties under construction, Stanton was a development company, APC served as general contractor, and Washington Gas allegedly was responsible for excavating the alley, laying a gas line, and re-paving the alley.[2]

         On July 1, 2011, 660 Penn obtained a permit that allowed it to close a section of the public alley to perform the construction. The permit specified that 660 Penn "[w]ill not block access via C Street or business entrances of 7th Street alley."

         The principal entrance to appellant's salon was in the 7th Street alley. Customers could reach the entrance by walking down the alley to a staircase near the back of a townhouse. That staircase led up to appellant's salon, which was on the second floor. Although there technically was another entrance via the first floor of the building-which would not require one to enter the alley-appellant was not on good terms with the owners of the store on that floor, and one of the owners testified that he was not aware of any lease terms that would require him to allow appellant to use that entrance.

         Viewed in a light favorable to her, the evidence showed that appellant encountered many problems during construction. For instance, the activity of workers and the presence of trash, construction equipment, and other miscellaneous items made it difficult to navigate the alley. At times, construction vehicles were parked directly in front of the salon entrance, filling the narrow alley so as to make access difficult, if not impossible. Road signs warning of construction activity were placed at the alley's entrance. During one multi-week stretch, the entire entrance to the alley was blocked off with yellow "caution" tape and red cones, bricks were stacked near the entrance to the alley, and black plastic sheets covered the surface of the alley leading to appellant's salon. Witnesses also testified that a port-a-potty emitting noxious odors and leaking a bluish liquid was placed near appellant's door.

         Appellant complained to Stanton, APC, and her city councilmember's office, but the situation did not improve. She alleged that she steadily lost customers due to these problems and incurred approximately $265, 000 in losses. She ultimately closed the salon and moved to South Carolina.

         Appellant filed suit in the Superior Court against 660 Penn, Stanton, APC, and Washington Gas, alleging tortious interference with business relations, trespass, IIED, and negligence. She later voluntarily dismissed her trespass claim. In preparation for trial, one of appellant's attorneys, Ursula Werner, created a summary of appellant's 2014 income so that appellant's expert could calculate damages. This was necessary because appellant had not yet filed her tax return for 2014. Ms. Werner created the summary from entries in appellant's appointment book, which listed the names of customers on the day they visited the salon. Appellant told Ms. Werner the sums she would have received based on her knowledge of the services each customer requested.

         On September 28, 2015, the day trial began, Judge Stuart G. Nash ruled on three of the four major issues in this appeal. First, he declined to include appellant's proposed jury instruction elaborating on the "intent" element of tortious interference with business relations. Appellant had asked for a definition of intent which included conduct that appellees knew was certain or "substantially certain" to interfere with her business. However, Judge Nash concluded that appellant needed to show actual intent, stating that "the idea is that they did this for the purpose of harming Ms. Whitt and her business interests[.]"

         Second, Judge Nash disqualified Ms. Werner from serving as appellant's co-counsel. He stated that the defense should have "the ability to explore" how appellant's expert had arrived at his damages figures, and he noted that Ms. Werner had "unconsciously, without any intention of doing so, . . . injected [herself] into the process of [calculating the amount of appellant's 2014 income] by going through the books and using [her] discretion to come up with a key piece of evidence in this case." Judge Nash ruled that the defense could call Ms. Werner as a witness to describe how she had created the summary of income. Because Ms. Werner would be a necessary witness, she could not serve as counsel. See D.C. Rules of Prof'l Conduct, R. 3.7 (a). Ms. Werner's co-counsel, Ryan Spiegel, represented appellant at trial.[3]

         Finally, Judge Nash ruled that the "economic loss doctrine, " as described in Aguilar v. RP MRP Wash. Harbour, LLC, 98 A.3d 979 (D.C. 2014), barred appellant's claims for economic damages allegedly caused by appellees' negligence. Having previously ruled that appellant could not recover damages for the emotional distress allegedly caused by the negligence, Judge Nash dismissed the negligence claim.

         During trial, appellant testified and called several witnesses, including her expert, former customers, Stanton's co-president, and Ms. Werner. [4] At the conclusion of appellant's case, both Washington Gas and APC moved for directed verdicts on the remaining claims of IIED and tortious interference with business relations.

         Judge Nash directed verdicts for Washington Gas, finding that "[e]ven if . . . acts committed in pursuit of this trenching project were done intentionally to interfere with Ms. Whitt's business or, in the case of the infliction of emotional distress, . . . done recklessly, " there was no evidence "from which a reasonable fact finder could determine whether it was Washington Gas that committed those acts . . . or whether it was one of their subcontractors[.]" Judge Nash further noted that appellant had failed to show "that the ties between Washington Gas and the subcontractors were sufficiently strong and that Washington Gas retained sufficient direction over the project" so that the subcontractors were agents of Washington Gas. Without proof that Washington Gas or its agents had actually performed the work that led to appellant's grievances, Judge Nash found that no "reasonable juror could impose liability on Washington Gas[.]"

         Judge Nash found that appellant had offered evidence that APC was responsible for interference caused by four items: (1) a boom-lift crane, (2) a mini-loader, (3) the port-a-potty, and (4) the road signs. Concluding that a reasonable juror could infer that APC placed these items in such a way as to intentionally inflict emotional distress on appellant or interfere with her business, the court denied APC's motion for directed verdicts. However, Judge Nash refused to "lay blame on APC for all the conditions that existed in the alleyway" because, as with Washington Gas, there was "no testimony as to the relationship between APC and the subcontractors, and whether those subcontractors were independent contractors of APC or agents of APC." Thus, he limited the factual predicate for appellant's claims against APC to the four items for which there was evidence that it was directly responsible. On the verdict form, the jury answered "no" when asked whether it found that APC had committed tortious interference with business relations or IIED.

         II. Analysis

         A. The Proposed Jury Instruction on Intent

         "[W]e review a trial court's refusal to grant a request for a particular instruction for abuse of discretion, which may be found if the court's charge as a whole does not fairly and accurately state the applicable law." NCRIC, Inc. v. Columbia Hosp. for Women Med. Ctr., 957 A.2d 890, 898 (D.C. 2008).

         A prima facie case of tortious interference with business relations requires: "(1) existence of a valid contractual or other business relationship; (2) [the defendant's] knowledge of the relationship; (3) intentional interference with that relationship by [the defendant]; and (4) resulting damages." Newmyer v. Sidwell Friends Sch., 128 A.3d 1023, 1038 (D.C. ...


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