Etdh Assoc.s v. Waterfall Ventures LLC
| Citation | 999 A.2d 22 |
| Decision Date | 01 July 2010 |
| Docket Number | No. 05-CV-1339.,05-CV-1339. |
| Parties | ETDH ASSOCIATES, et al., Appellants,v.WATERFALL VENTURES, LLC, Appellee. |
| Court | Court of Appeals of Columbia District |
Marta Bertola, Washington, DC, for appellants.
Donald R. Dinan, Washington, DC, for appellee.
Before RUIZ and FISHER, Associate Judges, and NEBEKER, Senior Judge.
Appellants, ETDH Associates (“ETDH”) and 6425 14th Street, N.W., LLC (“LLC”), for the second time appeal the trial court's judgment in favor of appellee, Waterfall Ventures, LLC (“Waterfall”), which enforced a lien for delinquent water and sewer charges and calculated the overdue principal to be $101,295.29, with interest of one percent compounded monthly (which as of the time of trial in 2004 nearly equaled the principal amount, and continues to accrue), and awarded $84,708.88 for appellee's attorney's fees.1 Per sections I. and II. A-D of Judge Ruiz's opinion, we hold that the lien for water and sewer services is enforceable against appellants, that attorney's fees are recoverable pursuant to D.C.Code § 34-2407.02(a), and that the trial court did not err, either in finding that the required notice was given to appellant before the filing of the appellee's complaint, or in determining the amount of attorney's fees due. Judge Fisher files an opinion with respect to the amount of the lien, in which Judge Nebeker concurs. Thus, Part I through Part II. D of Judge Ruiz's opinion and the opinion of Judge Fisher together constitute the opinion of the court, affirming the judgment of the trial court. Judge Ruiz has filed a partial dissent, and would remand the case for recalculation of the principal amount due on the lien.
The water and sewer fees at issue relate to an apartment building that had been abandoned, located at 6425 14th Street, N.W. Appellant ETDH became the record owner of the property in 1979. On July 8, 1983, the District of Columbia filed a “Certificate of Delinquent Water/Sewer Service Charges” with the Recorder of Deeds based on unpaid water and sewer services provided to the property in the amount of $6,384.22. The certificate, however, erroneously listed Procenko Real Estate, the property's management company, as the record owner.
On January 16, 1985, the District of Columbia held a tax sale for the property to recover unpaid property taxes. See District of Columbia v. Mayhew, 601 A.2d 37, 40 (D.C.1991). When no one bid on the property at the tax sale, the District purchased the property, and on June 3, 1988, issued itself a tax deed and took possession of the building. Id. This court, however, voided the tax sale and deed because the District had failed to provide adequate notice of the tax sale to ETDH, the owner of record. Id. at 45. Pursuant to our decision, the District subsequently deeded the property back to ETDH by a “Deed of Correction,” dated October 12, 1993.
On January 6, 1999, the District of Columbia Water and Sewer Authority (“WASA”) 2 assigned the lien against the property based on the outstanding water and sewer charges to Breen Capital Investment Corporation (“BCIC”). The property again accumulated unpaid property taxes, and the District held a tax sale and issued a tax deed on October 5, 2000, to appellant 6425 14th Street, N.W., LLC. After LLC paid the overdue real property taxes, the tax deed was recorded on October 12, 2000.3
Although the property tax bill was satisfied, the delinquent water and sewer charges remained unpaid. On July 19, 2001, BCIC, as assignee of the water and sewer lien, filed a complaint in Superior Court against appellants to determine the amount due for the delinquent water and sewer charges, and for forfeiture of the property to collect the amount secured by the lien, plus attorney's fees.4 After filing suit, BCIC assigned the lien to appellee, Waterfall, on June 27, 2002; Waterfall was substituted as plaintiff in the trial court.
On September 7, 2002, the trial court granted summary judgment to Waterfall, and determined that the amount of the water and sewer lien was $175,556.43. Appellants appealed, and on October 22, 2003, we vacated the summary judgment and remanded the case for the trial court to reconsider three issues:
ETDH Assocs., No. 02-CV-1172, order at 3-4.
On remand, the trial court held a hearing and, in an order issued on April 15, 2004, found that there was a water and sewer lien on the property “for which the record owners, including 6425 14th Street LLC are responsible,” 5 and that the assignments of the lien from WASA to BCIC and from BCIC to Waterfall had been recorded. The court found that Waterfall could recover fees and costs under D.C.Code §§ 34-2407.02(a) and 47-1403.4(h) (2001), but did not determine the amount of the lien or of the fees and costs at that time. On October 11, 2005, after having heard testimony and reviewed documents concerning the water and sewer account for the property, the trial court redetermined the amount of the lien for water and sewer services from the $175,556.43 it had previously determined (as of September 2002), to $101,295.29 in principal as of that date, plus interest of one percent compounded monthly, for a total of $193,168.05 as of May 2004 (with continuing interest compounding monthly at 1%).6 The trial court also concluded that Waterfall was entitled to attorney's fees in the amount of $84,708.88.
Appellants challenge the trial court's judgment, arguing that the trial court erred in (1) finding them liable on the lien, (2) calculating the lien amount, and (3) awarding attorney's fees to appellee. The parties before this court are the owners of the property (appellants ETDH and its sole partner, 6425 14th Street, N.W., LLC), and the lien holder (appellee Waterfall, BCIC's assignee).
Appellants first argue that WASA lacks the authority to sell the lien for delinquent water and sewer charges. As a result, according to appellants, WASA's assignment of the lien to BCIC was invalid, and BCIC had no interest in the delinquent water and sewer charges on the property that it purported to assign to Waterfall. We disagree that WASA's assignment of the lien exceeded its authority.7
WASA was created by statute in 1996 and its powers are statutorily defined. See District of Columbia Water & Sewer Auth. v. Delon Hampton & Assocs., 851 A.2d at 412. WASA has the power to “acquire, by purchase, gift, lease, or otherwise, and to own, hold, improve, use, sell, convey, exchange, transfer, lease, sublease, and dispose of real and personal property of every kind and character, or any interest therein, for its corporate purposes.” D.C.Code § 34-2202.03(5) (2001) (emphasis added). Moreover, we interpret the grant of authority broadly, as the legislature has made clear that WASA may “undertake any public project, acquisition, construction, or any other act necessary to carry out its purposes.” Id. at § 34-2202.03(13). We, therefore, conclude that WASA was authorized to assign its lien for delinquent water and sewer charges to BCIC, which subsequently assigned it to appellee Waterfall.
The statute that governed the District of Columbia Water and Sewer Utility Administration (“WASUA”), WASA's predecessor agency, provided that “[t]he District shall have a continuing lien for water charges upon any land and the improvements thereon to which water or water service is or has been furnished.” D.C.Code § 43-1529(a) (1981). Unlike the current statute, the statute in force in 1983 when the lien was filed had no recordation requirement as a condition to the lien. Cf. D.C.Code § 34-2407.02(a)(2) (2009 Supp.) (“Upon filing, the certificate of delinquency shall constitute a continuing lien against the real property....”).8 Appellants argue that “there [was] no perfection [of the lien] and no cause of action for foreclosure” on the lien can be maintained because the “Certificate of Delinquent Water/Sewer Service Charges” issued with respect to the property erroneously listed Procenko Real Estate, instead of the actual record owner, ETDH, and did not list the square and lot numbers of the property. We find no merit to this argument.
That the certificate erroneously listed the property's management company instead of the record owner does not necessarily invalidate the lien or render it unenforceable. The statute plainly provided-and continues to provide-that a lien for delinquent water and sewer charges runs with the land. See D.C.Code § 43-1529(a) (1983) (); D.C.Code § 34-2407.02(a)(1) and (2) (2009 Supp.) . Moreover, the certificate issued in 1983 itself “certif[ies] that ... the District of Columbia has a continuing lien for delinquent water/sewer service charges upon the land and the improvements thereon at the above service address.” (Emphasis added.) Thus, by the terms of both the statute and the certificate, the lien attaches to a particular property and is not specific to the owner of that property. Therefore, because the lien attaches to the property, ETDH, all subsequent owners are responsible for the delinquent charges ...
To continue reading
Request your trial