Dingwall v. WATER, SEWER AUTHORITY, No. 99-CV-79

• Decision Date: 15 February 2001
• Docket Number: No. 99-CV-80., No. 99-CV-79
• Citation: 766 A.2d 974
• Parties: Carolyn A. DINGWALL, Appellant, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Appellee.
• Court: D.C. Court of Appeals

766 A.2d 974

Carolyn A. DINGWALL, Appellant, v. DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, Appellee.

Nos. 99-CV-79, 99-CV-80.

District of Columbia Court of Appeals.

Submitted November 28, 2000.

Decided February 15, 2001.

Carolyn A. Dingwall, filed a brief pro se.

Robert R. Rigsby, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and James C. McKay, Jr., Assistant Corporation Counsel, filed a brief for appellee.

Before STEADMAN, SCHWELB, and GLICKMAN, Associate Judges.

SCHWELB, Associate Judge:

Carolyn A. Dingwall appeals from an order of the trial court dismissing her suit against the District of Columbia Water and Sewer Authority (WASA). The trial judge held that the action failed because Ms. Dingwall had not provided pre-suit notice to WASA, as required in actions against the District of Columbia by D.C.Code § 12-309 (1995). Ms. Dingwall contends that WASA is a separate corporate entity that is amenable to suit in its own name, that her action was not brought against the District of Columbia, and that § 12-309 therefore does not apply. We agree with Ms. Dingwall's position on this issue.

The District contends, in the alternative, that the judgment should be affirmed because Ms. Dingwall lacked standing to bring the suit. We agree with the District with respect to the first of the two claims asserted in the complaint, but we conclude that Ms. Dingwall had standing to bring her second claim. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

I.

This suit concerns a three-story Victorian house located at 459 Florida Avenue N.W. in Washington, D.C. The building is owned by one Lucille Y. Baguidy. According to the allegations of the pro se complaint, the original plaintiffs, Ms. Dingwall, Delphine Jones, and Jacqueline M. King, were "property managers" for and tenants of the premises.¹ At the time the complaint was filed, the plaintiffs were renting the top floor of the house, and they "intended to use this space for the purpose of operating a business."² The complaint alleged that the second floor unit was "unoccupied pending the arrival of [a] new tenant family."

In their complaint, the plaintiffs asserted a claim of negligence (Count I) and a claim of "breach of covenant of quiet enjoyment (private nuisance)" (Count II).³ In Count I, the plaintiffs alleged that WASA failed to exercise due care in investigating and remedying a disputed water bill. According to the plaintiffs, WASA's negligence resulted in the disruption of water service and the loss of water pressure at the premises.

Although Ms. Baguidy, the owner of the premises, was not a party to the action, the plaintiffs purported to assert their negligence claim on Ms. Baguidy's behalf. According to Paragraph 12 of the complaint, "[WASA]'s negligenc[e] by improperly handling the problem of no water at the 459 Florida Avenue address resulted in a loss of revenue for the owner." In their prayer for relief with respect to the negligence count, the plaintiffs demanded judgment against WASA as follows:

1. Compensatory damages of $9,699 for lost revenue from an inability to collect rents totaling $1,200 per month, payable to Lucille Y. Baguidy.

2. Consequential damages of $2,000 for expenses in cleaning, plumbing and painting of premises due to a lack of water, payable to Lucille Y. Baguidy.

(Emphasis added.)

In Count II of their complaint, the plaintiffs reiterated their prior allegations and asserted that they had personally suffered damages as follows:

i. an inability of the [p]laintiffs to obtain proper occupancy permits, etc. for [their] business; [and]

ii. a loss of some business in the District of Columbia.

The plaintiffs further alleged that, on some occasions, the conduct of WASA's representatives had been "unprofessional, conscious, willful, and in utter disregard of the [p]laintiffs' private rights to the use and enjoyment of the premises in question." The plaintiffs prayed for "compensatory and consequential damages" of $10,000 and for punitive damages in the same amount.

In response to the suit, WASA filed a motion to dismiss the complaint or, in the alternative, for summary judgment.⁴ The motion was grounded on the plaintiffs' failure to give notice to the District pursuant to § 12-309. In a footnote to the motion, WASA asserted that "this case is further subject to dismissal on the grounds that the plaintiffs herein lack standing to bring an action on behalf of a property owner." On December 21, 1998, in a brief written order, the trial judge dismissed the action on the ground that "proper notice was not given under D.C.Code § 12-309." The judge did not reach WASA's claim that the plaintiffs lacked standing to sue. Ms. Dingwall filed a timely notice of appeal.

II.

Section 12-309 provides in pertinent part as follows:

An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless within six months after the injury or damage was sustained, the Claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause and circumstances of the injury or damage.

Compliance with this notice requirement is mandatory in actions to which the statute applies. See, e.g., District of Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C.1995)

. The applicability of § 12-309 turns on whether or not the present action is one against the District of Columbia. We hold that it is not.

WASA was established in 1996 "as an independent authority of the District government." D.C.Code § 43-1672 (1998). It is "a corporate body, created to effectuate certain public purposes, that has a separate legal existence within the District government." Id. WASA is "sui juris"; i.e., it has the power "[t]o sue or be sued" in its own name. D.C.Code § 43-1673(1). WASA is also authorized by law to enter into contracts with, inter alia, "the District, the United States, Maryland, or Virginia, or their political subdivisions." D.C.Code § 43-1673(10) (emphasis added). WASA's authority to enter into a contract with the District is inconsistent with the notion that WASA is indistinguishable from the District; an entity does not contract with itself.⁵

Shortly after WASA was established, Congress enacted legislation authorizing WASA to issue revenue bonds for wastewater treatment facilities. See Pub.L. 109-184 § 3, 110 Stat. 1697 (Aug.1996); D.C.Code § 43-1679. The legislative history of the federal enactment reveals that WASA was intended to have a separate legal and fiscal existence, as well as considerable independence. As stated in the House Report,

[t]he thrust of the Water and Sewer Authority proposal was to separate water and sewer revenues from the General Fund so that further diversion of those funds would not be possible. The Water and Sewer Authority would set the rates it charged at whatever level was required to make it completely self-supporting and it would finance capital projects through revenue bonds secured by its own revenue.

- - -

The new Water and Sewer Authority being created is independent, self-funded, and not in the General Fund of the District of Columbia budget. H.R. 3663 therefore takes the Authority out of the District[']s budget process. Other than nominating and confirming Board members for the Authority, the Mayor and Council will have no other role to play by way of exercising influence over the Authority. While the Mayor and Council may comment on the budget, they can not change it. It is Congress alone that may change the Authority[']s budget under H.R. 3663, and Congress alone will be authorizing and appropriating the Authority[']s budget. As a necessary corollary, the Authority will be exempt from the mid-year budget reductions which may be ordered by the Mayor.

The Committee notes with favor that the Water and Sewer Authority is not only allowed, but is mandated to develop its own personnel and procurement systems. These provisions along with taking the Authority off budget will overcome past personnel problems caused by FTE caps and hiring freezes. Getting the Authority out from under the District[']s cumbersome and ineffective procurement system is expected to greatly improve the efficiency and cost savings available through good management and competitive bidding without an onerous overlay of Council enacted set asides and special considerations.

H.R. REP. NO.104-635, at pp. 6, 16 (1996).

In light of this background, WASA demonstrably is not the same entity as the District of Columbia, and a suit against WASA is not the same thing as a suit against the District. The legislature having provided that WASA can sue and be sued in its own name, a party claiming to be aggrieved by WASA's conduct sues WASA, not the District. Construing the language of § 12-309, as we must, in accordance with its common everyday meaning, see, e.g., James Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 46 (D.C.1989),

we conclude that the statute has no application to a suit brought against WASA to which the District itself is not a party.

In Simmons v. District of Columbia Armory Bd., 656 A.2d 1155 (D.C.1995) (per curiam), the plaintiff purported to bring an action against the District of Columbia Armory Board. He failed, however, to provide pre-suit notice of his claim to the District in conformity with § 12-309. The trial court dismissed the action, and this court affirmed. We did so, however, because (unlike WASA here) the Armory Board was not sui juris. The court explained that "[f]ailure to notify the Mayor within six months of the injury will result in dismissal of the suit unless the entity being sued has been authorized by Congress to be sued." Id. at 1156 (emphasis added; citation omitted). We went on to observe that

[t]he Armory Board is not like the Redevelopment Land Agency which Congress explicitly gave the power to sue and be sued. See

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