Cormier v. Water and Sewer Authority

• Decision Date: 30 October 2008
• Docket Number: No. 06-CV-1371.,No. 06-CV-1370.,06-CV-1370.,06-CV-1371.
• Citation: 959 A.2d 658
• Parties: David CORMIER, et al., Appellants/Cross-Appellees, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Appellee/Cross-Appellant.
• Court: D.C. Court of Appeals

959 A.2d 658

David CORMIER, et al., Appellants/Cross-Appellees, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Appellee/Cross-Appellant.

No. 06-CV-1370.

No. 06-CV-1371.

District of Columbia Court of Appeals.

Argued March 5, 2008.

Reissued October 30, 2008.^*

Peter T. Enslein, with whom Patrick Guilfoyle was on the brief for appellants/cross-appellees.

Nat N. Polito, Washington, with whom Benjamin F. Wilson and Avis M. Russell were on the briefs, for appellee/cross-appellant.

Vytas V. Vergeer, Washington, Rebecca Lindhurst, Barbara McDowell, Eric Angel, and Peter G. Wilson filed a brief on behalf of Bread for the City Legal Clinic and Legal Aid Society of the District of Columbia, amici curiae. This brief was filed in response to the Order to Show Cause issued by this court on June 27, 2008.

Before RUIZ and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.

SCHWELB, Senior Judge:

David Cormier, who owns eight residential properties in northwest Washington, D.C., brought this action alleging negligence, product liability, breach of contract and seven other claims. He alleged that over a period of many years, the District of Columbia Water and Sewer Authority (WASA) has delivered corrosive water to his properties, thereby causing pinhole leaks in, and damaging, the pipes and other plastic fixtures in his buildings. Cormier asked the court to award compensatory and punitive damages, as well as injunctive and declaratory relief.

Following extensive discovery, WASA filed a motion for summary judgment. On June 12, 2006, the trial judge ruled, inter alia, that Cormier had not produced sufficient evidence of his damages, and he granted partial summary judgment in favor of WASA and denied Cormier's claim for damages with respect to all of Cormier's properties. The judge denied WASA's motion for summary judgment with respect to Cormier's request for injunctive and declaratory relief.

Cormier then moved to dismiss, without prejudice, his claims for injunctive and declaratory relief, and he requested that final judgment be entered. On October 26, 2006, the trial judge granted Cormier's motion. The judge dismissed without prejudice Cormier's request for an injunction and for a declaratory judgment, and he entered final judgment in favor of WASA.

Cormier filed a timely appeal from the final judgment entered against him. WASA cross-appealed, and now contends that the trial judge erred in declining to dismiss Cormier's claims for equitable and declaratory relief with prejudice.

We reverse the award of summary judgment to WASA as to Cormier's request for monetary damages, although we sustain the judge's ruling that certain of Cormier's claims are time-barred. We affirm the order dismissing Cormier's claim for equitable relief without prejudice. Concluding that Cormier's request for declaratory relief is patently lacking in merit, we direct that the trial judge dismiss that claim with prejudice.

I. BACKGROUND

It is undisputed that during the period at issue in this action, WASA provided water to all eight of Cormier's residential buildings. WASA purchased finished water (i.e., water that is ready for consumption) from Washington Aqueduct (a non-party to this litigation). WASA then delivered that water to the properties in question.

On July 15, 1998, Cormier wrote a brief letter to WASA in which he challenged the water bill for his property at 1460 Euclid Street, N.W. He asserted in this letter that "[c]hemicals in the water are attacking my water pipes and plastic parts in faucets and toilets, resulting in water leaks and excessive water usage." According to Cormier, WASA took no corrective action in response to his complaint. On January 1, 2000, Cormier wrote a second letter, and he reiterated the claims that he had made eighteen months earlier. On February 2, 2000, Cormier wrote to WASA again, this time in relation to his building at 1300 Harvard Street, N.W. In this letter, Cormier reported that "poor water quality" was damaging the water and sewer systems in the building.

On February 21, 2003, more than three years after he sent WASA the last of his three letters, Cormier filed a ten-count complaint seeking, inter alia, compensatory and punitive damages and injunctive and declaratory relief. Cormier alleged that

defendants[¹] have failed to monitor copper levels in plaintiffs' [sic] drinking water, to test the source water for corrosiveness, or to timely remediate the corrosivity problem in its water. As a consequence, defendants for years have supplied plaintiffs [sic] with drinking water that is excessively corrosive. It has pitted and corroded plaintiffs' [sic] water pipes, raised levels of copper in their drinking water to potentially unsafe and hazardous levels, and caused staining of their fixtures and appliances. Further, plaintiffs' [sic] fixtures been permanently damaged, and they [sic] have suffered loss in the value of their [sic] property.

To support the allegations in his complaint, Cormier secured the services of Dr. Marc Edwards, a professor of civil and environmental engineering at Virginia Polytechnic Institute. As noted by the trial judge,

Dr. Edwards' activities, which span the course of two years, fall into one of four categories: (1) examining tap water from the properties; (2) extracting pipe samples for study; (3) inspecting loose pipe samples that Cormier gave to him; and (4) on-site inspection of pipe samples. This forensic evidence forms the heart of Cormier's claims for relief.

Dr. Edwards reported the results of his analysis in letters to Cormier's attorneys dated May 2, 2003 and January 29, 2005.

Dr. Edwards testified extensively on deposition, and he made a number of statements which are claimed by WASA to be favorable to its defense. He acknowledged, for example, that he had no knowledge as to the period of time during which certain chemicals were at an unacceptable level in the water supplied to Cormier's properties by WASA. Dr. Edwards also disclaimed any expertise in, or knowledge of, the amount of Cormier's damages. Relying heavily on what it regarded as statements by Dr. Edwards favorable to its cause, WASA filed a motion for summary judgment seeking dismissal of Cormier's claims with prejudice. In response, Cormier presented a Declaration by Dr. Edwards "under penalty of perjury" in which Dr. Edwards elaborated on his deposition testimony and made assertions more favorable to Cormier. The Declaration was not notarized.

On June 12, 2006, the trial judge issued a 17-page written order in which he granted partial summary judgment in favor of WASA as to all of Cormier's claims for monetary damages. The judge concluded that the evidence of damages was too speculative to raise a genuine issue of material fact. The judge further held that the proof of negligence was insufficient because, inter alia, Dr. Edwards' Declaration was not an "affidavit" within the meaning of Super. Ct. Civ. R. 56(e), and that therefore the Declaration could not be considered. The judge also concluded that as to the two properties regarding which Cormier had written to WASA, namely, 1480 Euclid Street, N.W. and 1300 Harvard Street, N.W., Cormier's claims were time-barred² to the extent that they were based on events that occurred before February 21, 2000.

The judge subsequently granted Cormier's motion to dismiss without prejudice Cormier's claims for injunctive and declaratory relief. Final judgment in WASA's favor was entered accordingly, and Cormier's appeal and WASA's cross-appeal followed.

II. CORMIER'S APPEAL

A. Summary judgment standard.

The question whether summary judgment was properly granted is one of law, and we review the trial judge's order de novo. Allman v. Snyder, 888 A.2d 1161, 1165 (D.C.2005); Abdullah v. Roach, 668 A.2d 801, 804 (D.C.1995). In Colbert v. Georgetown Univ., 641 A.2d 469 (D.C. 1994) (en banc), the full court described the applicable standard as follows:

In order to be entitled to summary judgment, [the moving party] must demonstrate that there is no genuine issue of material fact and that [it is] entitled to judgment as a matter of law. Super. Ct. Civ. R. 56(c); Clyburn v. 1411 K Street Limited Partnership, 628 A.2d 1015, 1017 (D.C.1993). The record is viewed in the light most favorable to the party opposing the motion. Graff v. Malawer, 592 A.2d 1038, 1040 (D.C. 1991). On appeal, we must assess the record independently, but the substantive standard applied is the same as that utilized by the trial court. Northbrook Ins. Co. v. United Servs. Auto Ass'n, 626 A.2d 915, 917 (D.C.1993).

Id. at 472. "Accordingly, if an impartial trier of fact, crediting the non-moving party's evidence, and viewing the record in the light most favorable to the non-moving party, may reasonably find in favor of that party, then the motion for summary judgment must be denied." Weakley v. Burnham Corp., 871 A.2d 1167, 1173 (D.C.2005). If, however, the summary judgment record "demonstrates that, construing all of the facts and inferences to be drawn therefrom in favor of the party against whom the judgment is entered, he would not be entitled to have a jury verdict stand, we have not hesitated to hold that the grant of summary judgment is proper." Nader v. de Toledano, 408 A.2d 31, 42 (D.C.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980) (quoting Time, Inc. v. McLaney, 406 F.2d 565, 571-72 (5th Cir.), cert. denied, 395 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239 (1969)); see also Hendel v. World Plan Exec. Council, 705 A.2d 656, 660 (D.C.1997) (quoting Nader).

We now apply the foregoing standard in examining the grounds upon which the trial judge relied to grant partial summary judgment in favor of WASA.

B. The Edwards Declaration.

In his opposition to WASA's motion for summary judgment, Cormier filed a "Declaration" by his expert, Dr. Edwards. The Declaration was not notarized, but it concluded with the following statement:

I DECLARE UNDER PENALTY...