Bagley v. FOUND. FOR PRES. OF HIST. GEORGETOWN

• Decision Date: 26 April 1994
• Docket Number: 93-CV-87.,No. 92-CV-1462,92-CV-1462
• Citation: 647 A.2d 1110
• Court: D.C. Court of Appeals
• Parties: Smith W. BAGLEY, et al., Appellants, v. FOUNDATION FOR the PRESERVATION OF HISTORIC GEORGETOWN, Appellee.

647 A.2d 1110

Smith W. BAGLEY, et al., Appellants, v. FOUNDATION FOR the PRESERVATION OF HISTORIC GEORGETOWN, Appellee.

Nos. 92-CV-1462, 93-CV-87.

District of Columbia Court of Appeals.

Argued April 5, 1994.

Decided April 26, 1994.^*

Ronald M. Miller, Greenbelt, MD, for appellants.

Richard B. Nettler, Washington, DC, for appellee.

Before FERREN, SCHWELB and KING, Associate Judges.

SCHWELB, Associate Judge:

In this action by the Foundation for the Preservation of Historic Georgetown against Smith W. Bagley and Elizabeth A. Frawley (collectively Bagley) to enforce the terms of an easement agreement, the trial court granted summary judgment in favor of the Foundation and awarded the Foundation substantial counsel fees. Bagley makes numerous contentions on appeal, and claims in particular that there were genuine issues of material fact precluding the entry of summary judgment and that the award of counsel fees was excessive. In No. 92-CV-1462, we dismiss as premature, sua sponte, Bagley's appeal from the decision to award the Foundation counsel fees. As to the remainder of No. 92-CV-1462, and in No. 93-CV-87, we affirm.

I.

In 1988, Bagley executed an easement agreement with the Foundation relating to his home, which is located at the corner of 29th and Q Streets, N.W., Washington, D.C. Running 22 pages, the agreement prohibits Bagley from building any structure on his property, encroaching on any presently open space, or obstructing a view of the building facade from the street, without first obtaining the written consent of the Foundation for any such action. In late 1989, Bagley began constructing a two-story addition on the back side of the house. The stated purpose of the structure was to provide support for new air conditioning units which Bagley was installing because the older ones allegedly presented a fire hazard.¹

Upon learning of the addition in December, 1989, the Foundation informed Bagley that he had violated the agreement by failing to obtain the Foundation's permission before beginning construction. The Foundation also claimed that the addition itself violated the easement by increasing the area (footprint) of the existing house. In a letter to the Foundation, Bagley acknowledged that he "probably should have requested special permission to make changes." Bagley nevertheless requested an accommodation which would permit him to retain the addition. The Foundation advised Bagley that it would consider alternative design proposals only after he had removed the addition.

Bagley declined to comply with the Foundation's demands and, in February, 1991, the Foundation filed a two-count complaint against him in the Superior Court. In Count I, the Foundation alleged violations of the easement agreement. In Count II, the Foundation claimed that Bagley had violated D.C.Code § 5-426 (1989) by constructing the addition without first having obtained a building permit and appropriate zoning variances. The Foundation sought an injunction requiring Bagley to remove the addition, as well as declaratory and other relief and an award of counsel fees.

Bagley filed an answer in which he disputed the Foundation's construction of the agreement.² He also counterclaimed, alleging selective enforcement of the agreement by the Foundation,³ as well as what he characterized as "due process" violations by this private organization.⁴ Bagley requested $1,000,000 in damages and the reformation or rescission of the easement agreement.

The Foundation filed a motion for summary judgment in its favor as to both counts of its complaint. On November 2, 1991, Judge Shellie Bowers denied the motion "without prejudice to its being re-submitted and reconsidered following discovery relating to Bagley's Amended Answer and Counterclaim."⁵ On the same date, the judge also denied Bagley's motion to dismiss Count II of the Foundation's complaint. Following extensive discovery by Bagley on the purported selective enforcement issue, the Foundation renewed its motion for summary judgment. Bagley filed his own motion for summary judgment, in which he requested dismissal of Count II of the Foundation's complaint on the ground that the Foundation lacked standing to enforce the proscriptions contained in § 5-426.

On June 19, 1992, Judge Stephen F. Eilperin, to whom the case had been transferred,⁶ granted the Foundation's motion for summary judgment and ordered Bagley to obtain a demolition permit and to remove the addition. The judge also dismissed Bagley's counterclaim with prejudice, and held, in conformity with a specific provision of the easement agreement, that Bagley would be required to pay the Foundation's counsel fees. Bagley filed a motion to alter or amend the judgment regarding the award of counsel fees and requested a ruling on his own motion for summary judgment. While this motion was under consideration, the Foundation submitted an affidavit in support of its claim for counsel fees and costs.

The trial judge denied both of Bagley's motions. Although the amount of counsel fees had not yet been determined, Bagley filed a notice of appeal.⁷ He requested this court to stay the trial court's injunction pending appeal and to order the trial court not to hold a scheduled hearing to determine the amount of counsel fees. On December 18, 1992, this court stayed the injunction pending appeal, but declined to stay the scheduled hearing. The trial judge then held the hearing and, at the conclusion thereof, ordered Bagley to pay $78,304.85 in costs and fees.⁸ Bagley noticed a second appeal,⁹ and the two appeals were consolidated by order of this court.

II.

The legal standard applicable to a motion for summary judgment is well-established, see, e.g., Super.Ct.Civ.R. 56; Holland v. Hannan, 456 A.2d 807, 814-15 (D.C.1983), and we need not repeat it here. In controversies regarding the correct interpretation of a contract, summary judgment may be granted when the agreement is unambiguous and where there is no question as to the parties' intent. Id. at 815. "Absent such ambiguity, a written contract duly signed and executed speaks for itself and binds the parties without the necessity of extrinsic evidence." Id. A contract is not ambiguous simply because the parties have disputed interpretations of its terms. The question whether ambiguity exists is one of law, and must be decided by the court. Id.

In the present case, the trial judge correctly concluded that the easement agreement is clear on its face and that it unambiguously proscribes Bagley's erection of the addition. The agreement expressly prohibits, among other things, the erection of additional structures on the property and the extension of the existing building into presently open space. The agreement also requires Bagley to obtain the written consent of the Foundation before making any changes in the facade of the improved structure, or before constructing anything on the premises which would encroach on the open land area surrounding the structure and interfere with the public view of the facades. Bagley's claims to the contrary notwithstanding, nothing in the language of the agreement purports to limit its application to the front of the house and property only. Although the agreement authorizes Bagley to replace air-conditioning units, this provision obviously does not permit him to erect otherwise prohibited structures.

We have considered all of Bagley's claims of ambiguity in relation to the application of the agreement to the unauthorized construction in which he engaged, and find each to be altogether unpersuasive. "The court may not create ambiguity where none exists." Carey Canada, Inc. v. Columbia Casualty Co., 291 U.S.App.D.C. 284, 292, 940 F.2d 1548, 1556 (1991); see also Lowman v. United States, 632 A.2d 88, 92 n. 6 (D.C.1993) (court must resolve an ambiguity, but may not beget one).

Section (4)(f) of the agreement provides that the Foundation will "exercise reasonable judgment and care in performing its obligations and exercising its rights under the terms of this easement." Bagley contends that it was unreasonable for the Foundation to demand that Bagley demolish the addition before any negotiations could take place, when the Foundation had allegedly negotiated with other persons who had granted the Foundation similar easements and had sometimes waived its rights. Section 10 of the agreement, however, authorized the Foundation, at its option, either to bring suit to correct any violation by Bagley, or, in the alternative, to "enter upon the Premises, correct any such violation, and hold Bagley responsible for the cost thereof." Since the Foundation had the right, under the agreement, to tear down the unauthorized construction, its insistence that Bagley do so prior to any negotiations was a less harsh response to Bagley's breach than at least one permissible alternative course of action. The Foundation's exercise of a right unambiguously authorized by the agreement was reasonable as a matter of law.

Accordingly, we conclude that the judge correctly granted summary judgment to the Foundation on its contractual claim. We therefore need not and do not reach the issues presented regarding Count II of the complaint, in which the Foundation claimed to have standing to enforce the provisions of D.C.Code § 5-426.

III.

The legal theories on which Bagley's counterclaim was founded are, in our view, altogether lacking in merit. The Foundation, a private non-profit corporation, is not subject to constitutional restrictions on state action. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002-05, 102 S.Ct. 2777, 2784-86, 73 L.Ed.2d 534 (1982). Bagley has proffered, at most, unilateral error on his own part as to the meaning of the agreement, and he is not entitled, after the fact, to its rescission or reformation in the absence of some showing that the Foundation knew or should have known of his erroneous understanding. See Flippo Constr. Co. v. Mike Parks Diving Corp., ...