Ezra Co. v. PSYCHIATRIC INSTITUTE OF DC

• Citation: 687 A.2d 587
• Decision Date: 30 December 1996
• Docket Number: No. 95-CV-1122.,95-CV-1122.
• Parties: FRED EZRA COMPANY, Appellant, v. PSYCHIATRIC INSTITUTE OF WASHINGTON, D.C., et al., Appellees.
• Court: Court of Appeals of Columbia District

687 A.2d 587

FRED EZRA COMPANY, Appellant, v. PSYCHIATRIC INSTITUTE OF WASHINGTON, D.C., et al., Appellees.

No. 95-CV-1122.

District of Columbia Court of Appeals.

Argued September 12, 1996.

Decided December 30, 1996.

Mark A. Gilday, with whom Douglas M. Bregman, Bethesda, MD, appeared on the brief, for appellant.

Jeffrey J. Hines, Washington, DC, counsel for appellee, Pat Dixson. Thomas D. Eidt, Fessende, entered an appearance for Pat Dixson.

Before RUIZ and REID, Associate Judges, and KRAMER,^* Associate Judge, Superior Court.

REID, Associate Judge:

Appellant, The Fred Ezra Company, Inc., appeals from a trial court order granting summary judgment to appellees, Psychiatric Institute of Washington, D.C., Inc.; its parent company NME Specialty Hospitals, Inc., successor to the Psychiatric Institutes of America, Inc.; Dr. Howard Hoffman, medical director of the Psychiatric Institute of Washington, D.C.; and Pat Dixson, a District of Columbia real estate broker employed by Pat Dixson Realty and the former wife of Dr. Hoffman. (Hereafter, we refer to the Psychiatric Institute of Washington, D.C., NME Specialty Hospitals, Inc., and the Psychiatric Institutes of America, Inc., collectively as "the Institute.") The trial court granted summary judgment on the ground that Ezra's April 29, 1994, complaint for breach of contract, unjust enrichment and tortious interference with contract is barred by the applicable statute of limitations.¹ Ezra contends that under the discovery rule and the doctrine of fraudulent concealment, the applicable limitations period was tolled. We affirm the grant of summary judgment to the appellees on the unjust enrichment count of Ezra's complaint.² We reverse, however, on the breach of contract and tortious interference with contract claims on the ground that there are genuine issues of material fact that preclude summary judgment on those claims.

FACTUAL SUMMARY

In May 1986, the Institute entered into an exclusive agreement with Ezra "to locate and negotiate ... a building site in the downtown Washington area." The Institute agreed to "refer to Ezra all site offerings and solicitations which we may have on file or shall receive from sellers, brokers or others, for possible action and evaluation." The agreement described Ezra as the Institute's "exclusive broker," but specified that Ezra "shall look to the building owners or their agents for brokerage commissions." On October 8, 1986, the agreement was modified to designate Ezra as the Institute's "exclusive real estate broker . . . to locate and negotiate for space for the Institute in the Washington Metropolitan area." The other terms of the agreement remained the same. The Institute terminated the agreement on April 22, 1987.

On April 29, 1994, Ezra filed a verified complaint against the Institute, Dr. Hoffman and Ms. Dixson. Ezra sued the Institute for breach of contract.³ It alleged that before its contract was terminated, the Institute, without notice to or involvement by Ezra, and in direct breach of the exclusivity terms of that contract, had begun negotiating with another broker, Ms. Pat Dixson, for a property the Institute should have referred to Ezra, and which it ultimately leased. Ezra also sued Dr. Hoffman and Ms. Dixson for tortious interference with contract, and alleged that they both knew that their negotiations for the property were in breach of Ezra's agreement with the Institute, and maliciously interfered with the contract in order to obtain the commission due Ezra. During discovery, the parties set forth their respective accounts of transactions relating to Ezra's complaint.

During the period the agreement was in effect, Ezra informed the Institute of the availability of a building located at 4228 Wisconsin Avenue, N.W. Dr. Howard Hoffman, the medical director of the Institute who was in charge of the office relocation, rejected the building because its uptown location "would compete with an existing Institute location on MacArthur Boulevard." Shortly after its agreement was terminated on April 22, 1987, Ezra learned that the Institute was negotiating the purchase of a building located at 4228 Wisconsin Avenue. The negotiations were being conducted by Ms. Dixson. Ms. Dixson was then the wife of Dr. Howard Hoffman, the person designated to head the Wisconsin Avenue office. The Institute executed a lease for 4228 Wisconsin Avenue on December 2, 1987, and Ms. Dixson received a one hundred seventy-five thousand dollar referral fee, which she shared with Dr. Hoffman.⁴ The Institute occupied the property in early 1989, erected a sign outside the building, and commercially advertised itself at that location.

Ezra claims that its principal, Mr. Fred Ezra, learned at a January 7, 1994, dinner party, attended by Ms. Dixson and mutual friends, Graham and Pat Kelley, that Ms. Dixson made a referral of the Wisconsin Avenue property to the Institute during the period of Ezra's agreement.⁵ Ezra maintains that sometime in 1987, shortly after the termination of its agreement, Ezra specifically asked Dr. Hoffman and Russell D. Ragland, the Executive Vice President and the Chief Financial Officer of the Institute whether Ms. Dixson had referred the Wisconsin Avenue property during the period of Ezra's agreement. According to Ezra, both Dr. Hoffman and Mr. Ragland informed Mr. Ezra that the building had not been located or referred to the Institute prior to the termination of Ezra's agreement. Mr. Ezra further insists that he specifically told Mr. Ragland that if the building had been located during the period of its agreement, Ezra was entitled to a commission as broker, and that Mr. Ragland "assured Ezra that it was not." With these assurances, Ezra decided to pursue other matters he believed would be more productive.

The appellees dispute Ezra's account of events. Ms. Dixson asserted that she became involved with the Institute's relocation project in May 1987 "as the result of a chance luncheon meeting." However, she also indicated that the lease negotiations lasted more than a year from the time the Wisconsin Avenue building was referred to the Institute to the date the lease agreement was executed on December 2, 1987, which would mean that her work on the project actually began during the term of Ezra's agreement. Ezra also takes issue with Ms. Dixson's account based on the fact that the Institute filed a complicated ninety-three page Certificate of Need application with the District of Columbia government on June 16, 1987, less than two months after the termination of Ezra's agreement.⁶ Ezra insists that the steps required to complete the application could not have been completed in less than two months.

After the close of discovery, the defendants moved for summary judgment. The Institute and Dr. Hoffman's motion for summary judgment, joined by Ms. Dixson, was based on the grounds that (1) Ezra's claims are time-barred by the applicable three-year statute of limitations and (2) Ezra could not prevail on the merits of its claims. They argued that the discovery rule does not apply to Ezra's causes of action because that rule has been applied "only in cases involving professional negligence or malpractice." Furthermore, they maintained that the record did not support the existence of fraudulent concealment. In her separate motion for summary judgment, Ms. Dixson not only argued the statute of limitations, but also asserted that (1) she took no "affirmative steps to conceal from Ezra its cause of action" and (2) she "did not know about Ezra's contract."

Ezra opposed the summary judgment motions on the ground that there are genuine issues regarding material facts that should be resolved at trial. Ezra attached a listing of some forty-seven "facts as to which there is a genuine issue necessary to be litigated." These facts included:

(1) Dr. Hoffman and Mr. Ragland stated that the Wisconsin Avenue building was located after the termination of Ezra's agreement.

(2) In 1986, Dr. Hoffman asked Ms. Dixson to `be on the lookout for a building.'

(3) Ms. Dixson actively sought a building for the Institute in 1986.

(4) Ms. Dixson knew of Ezra's involvement with the Institute's search for a building.

(5) Dr. Hoffman was an officer of Pat Dixson Realty from 1981 to 1983.

(6) Ms. Dixson did not refer the building to the Institute until 1987.

(7) Negotiation of the lease on the Wisconsin Avenue building took more than a year.

(8) Ms. Dixson could not find her files relating to the Wisconsin Avenue building, even though her policy is to retain all files dating back to 1981 and continuing to the present.

(9) Dr. Hoffman received half of Ms. Dixson's referral fee pertaining to the Wisconsin Avenue building.

(10) Ms. Dixson told Mr. Ezra on January 9, 1994, that she knew Ezra was involved with the search for a building for the Institute, but `I thought you were involved downtown.'

(11) Mr. Ezra was surprised by Ms. Dixson's 1994 revelation regarding her knowledge of Ezra's agreement with the Institute.

The trial court concluded that: (1) Ezra's claims were barred by the statute of limitations because "Ezra knew or should have known that it had a cause of action in this matter as early as 1987, and certainly by 1989"; (2) the statute was not tolled under the discovery rule; (3) Ezra failed to "establish that the fraudulent concealment exception applies to this case"; and (4) "there are no genuine issues of material fact and the defendants are entitled to judgment as a matter of law." Except for its statement that "the `additional' information Ezra gained at the January 1994 dinner conversation with Dixson was no more than confirmation of the same rumor Ezra had heard seven years earlier," the trial court's memorandum and order granting summary judgment is silent regarding the factual issues raised by Ezra. Because of its ruling on the issue concerning the statute of limitations, the trial court did not make findings of fact or set...