Burgess v. Pelkey

• Decision Date: 30 September 1999
• Docket Number: No. 97-CV-1473.,97-CV-1473.
• Citation: 738 A.2d 783
• Parties: Richard A. BURGESS Jr., Appellant, v. G. Raymond PELKEY, et al., Appellees.
• Court: D.C. Court of Appeals

738 A.2d 783

Richard A. BURGESS Jr., Appellant, v. G. Raymond PELKEY, et al., Appellees.

No. 97-CV-1473.

District of Columbia Court of Appeals.

Argued January 12, 1999.

Decided September 30, 1999.

Richard A. Burgess Jr., pro se.

Michael P. Broderick, Silver Spring, for appellees.

Before STEADMAN, FARRELL and RUIZ, Associate Judges.

RUIZ, Associate Judge:

Appellant Richard A. Burgess, Jr., challenges the trial court's decision to dismiss his lawsuit on summary judgment, asserting that material facts remained in dispute regarding, inter alia, whether the Board of Directors of appellee Square 3324 Hampshire Gardens Apartments (Hampshire Gardens),¹ a cooperative association, was in breach of contract when it enforced amendments to the cooperative's bylaws and house rules which affected certain rights and benefits previously held by appellant when he originally purchased a share in the cooperative. We affirm.

I.

The proprietary lease which Burgess, as lessee, entered into with Hampshire Gardens in 1974² permitted the lessee to sublet the apartment upon the approval of the cooperative's Board of Directors.³ Burgess never personally occupied his one bedroom apartment, and instead, subleased it to a series of tenants from the date of purchase until September 1989. In October 1981, the Board amended the bylaws to require that seventy-five percent of the apartments be occupied by their owners.⁴ In October 1983, the Board again raised the owner-occupancy requirement, this time to ninety percent. However, the 1983 amendment also provided that the Board could "exercise its discretion" and waive the ninety percent occupancy requirement "if it so deems to be necessary." Burgess did not object to any of these amendments and, in fact, did not become aware of them until on or about November 13, 1984, when Burgess received a letter informing him that if his apartment became vacant he would have to sell the unit "because the Board will no longer approve new subleases."

Burgess' last tenant moved out on September 30, 1989, and Burgess put his unit up for sale in March 1990 after being informed by Board members that, as stated in the November 1984 letter, new subleases would no longer be approved. During the spring of 1990, workers repairing the unit damaged the interior of the apartment. The unit was not sold until February 7, 1992, and as a condition for settlement, Burgess was also required to pay Hampshire Gardens $4,575.26 in past due maintenance fees. Burgess subsequently filed a complaint against Hampshire Gardens on February 6, 1995, alleging principally that Hampshire Gardens' 1981 and 1983 amendments to its bylaws breached the terms of his proprietary lease by preventing him from subletting his apartment. Burgess also sought damages for Hampshire Gardens' negligent repair of his apartment during the spring of 1990.

The trial court initially dismissed the suit on summary judgment, holding that Burgess' claims had been barred by the three-year statute of limitations for negligence and contract actions, D.C.Code Ann. § 12-301 (1981). We reinstated Burgess' contract claims in Burgess I, holding that the proprietary lease qualified as an instrument under seal, and that accordingly, the twelve-year statute of limitations was applicable. See Burgess I, supra note 1, 691 A.2d at 1157. Burgess did not, however, challenge the trial court's dismissal of his negligence claim on appeal. See id. at 1154 n. 1. On remand, the trial court again dismissed Burgess' remaining contract claims on summary judgment, relying substantially on Hampshire Gardens' motion.

II.

We review a motion for summary judgment by assessing the record independently and viewing it in the light most favorable to the non-moving party. See Kelley v. Broadmoor Co-op. Apartments, 676 A.2d 453, 456 (D.C.1996)

(citing Walton v. District of Columbia, 670 A.2d 1346, 1353 (D.C.1996)). The trial court's grant of summary judgment will be affirmed if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Holland v. Hannan, 456 A.2d 807, 814 (D.C.1983) (quoting Super. Ct. Civ. R. 56(c)).

A. Claim 1—Entitlement to damages for negligent repairs.

Although the majority of Burgess' breach of contract claims are premised upon the alleged damage to his original ownership rights as caused by the Board's subsequent changes to the bylaws and house rules, Burgess also contends that he is entitled to reimbursement of expenses paid to repair the damages to his apartment caused by negligent Hampshire Gardens workers. In his original complaint, Burgess sought these damages both under a negligence cause of action as well as under a breach of contract claim. Although the trial court originally ruled that his negligence claim was barred by the three-year statute of limitations for such claims, D.C.Code Ann. § 12-301(3) (1981), which Burgess did not appeal, he now reasserts his entitlement to damages for the negligent repair under the breach of contract claim, relying on Article 4 of the proprietary lease which provides that Hampshire Gardens shall be liable for losses or damages caused to a lessee's unit if the damage "shall have been caused by negligence on the part of the lessor."⁵ We reject appellant's argument because we conclude that his breach of contract claim for damages caused by negligent repair is "completely dependent upon and intertwined with" his negligence claim for the same injury. Morton v. Nat'l Med. Enter., Inc., 725 A.2d 462, 471 (D.C.1999).

"It is well settled that in a determination of the applicable statute of limitations, the plaintiff's characterization of the claim is not controlling," Saunders v. Nemati, 580 A.2d 660, 661 (D.C.1990), and "we must look beyond the conclusory terms of the pleadings to the substantive elements of any alleged causes of action." McCracken v. Walls-Kaufman, 717 A.2d 346, 350 (D.C.1998). In other words, the fact that Burgess now seeks damages for Hampshire Gardens' faulty repair of his premises under a breach of contract theory is not by itself dispositive of the statute of limitations issue. While Article 4 of the proprietary lease does provide that Hampshire Gardens shall be liable for losses or damages caused to the lessee's unit if the damage "shall have been caused by negligence on the part of the lessor," the provision does not impose a new duty on the part of Hampshire Gardens as it already had a common-law obligation to perform any repairs it might make on the property in a non-negligent manner.⁶ Cf. Etheredge v. District of Columbia, 635 A.2d 908, 918 (D.C.1993)

(same course of conduct may support both a claim of assault and battery and a negligence claim as long as the defendant, while engaging in the conduct that included the intentional tort, was also in breach of another recognized duty owed to the plaintiff). See also Walls-Kaufman, 717 A.2d at 351 (same). Thus, although Burgess' claim also may be presented as a breach of contract cause of action, it is nevertheless Hampshire Gardens' underlying negligence which is the basis for the alleged breach of contract. See id. at 350. Accordingly, Burgess may not circumvent the three-year statute of limitations for a negligence action by seeking damages for the identical injury under a breach of contract claim. See Saunders, 580 A.2d at 661 ("The action thus pleaded cannot ... be removed from its place in the law of torts by calling what occurred also [a breach of contract].") (quoting Morfessis v. Baum, 108 U.S.App. D.C. 303, 305, 281 F.2d 938, 940 (1960)).

B. All other claims.

Burgess' remaining claims all stem from the Board's decisions from 1981 to 1983 to amend its bylaws and house rules. Burgess contends that in amending the bylaws to require a higher unit occupancy rate by shareholders, the Board breached the terms of his proprietary lease because the new bylaws prevented him from subletting his condominium unit, a right which he originally enjoyed when he purchased his share in the cooperative. Although Burgess does not challenge the procedures followed by the Board in enacting the amendments, he relies on language in Sections 50 and 51 of the bylaws which provide collectively that no house rules or regulations nor bylaws shall be made "retroactive."⁷ Accordingly, Burgess contends that the Board should not have refused to permit him to sublet his apartment or, once it did so, that it was required by pre-amendment Section 47(2) to make "reasonable efforts" to rent the apartment out on his behalf. In declining to do either, Burgess argues that the Board was in breach of contract.⁸ Under Hampshire Gardens' interpretation of the meaning of the term "retroactive," however, the changes in the rules and bylaws did not violate either Section 50 or 51 of the bylaws because existing subtenants were not asked to vacate their apartments until their subleases had expired, and hence, the amendments were applied prospectively to future efforts to sublease, with notice of the restriction. We agree with Hampshire Gardens' interpretation and reject appellant's argument.

The cooperative instruments, which include the bylaws and sales agreement, constitute a contract governing the legal relationship between the cooperative association and the unit owners. See Johnson v. Fairfax Village Condo. IV Unit Owners Ass'n, 548 A.2d 87, 91 (D.C.1988)

; 15A AM. JUR. 2D Condominium and Co-Operative Apartments § 79 (1976). A purchaser of a unit in a condominium⁹

voluntarily submits himself to the condominium form of property ownership, which requires each owner to "give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization."

Worthinglen Condominium Unit Owners' Ass'n...