Farris v. Dist. of Columbia

• Decision Date: 19 August 2021
• Docket Number: No. 19-CV-552,19-CV-552
• Citation: 257 A.3d 509
• Parties: George P. FARRIS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

257 A.3d 509

George P. FARRIS, Appellant,

v.DISTRICT OF COLUMBIA, Appellee.

No. 19-CV-552

District of Columbia Court of Appeals.

Argued May 20, 2021

Decided August 19, 2021

George R.A. Doumar, Arlington, with whom Jonathan E. Levine was on the brief, for appellant.

Thais-Lyn Trayer, Assistant Attorney General, for appellee. Karl A. Racine, Attorney General for the District of Columbia, Washington, Loren L. AliKhan, Solicitor General, Washington, Caroline S. Van Zile, Principal Deputy Solicitor General, Carl J. Schifferle, Deputy Solicitor General, and Lucy E. Pittman, Assistant Attorney General, Washington, were on the brief for appellee.

Before Glickman and McLeese, Associate Judges, and Fisher, Senior Judge.

Opinion by Associate Judge McLeese, concurring in the judgment in part and dissenting in part, at page 519.

Glickman, Associate Judge:

George Farris seeks to hold the District of Columbia liable for extensive flooding damage to his home, which he attributes to the District's neglect of an alleyway that drained onto his adjacent property. The Superior Court granted summary judgment to the District on Mr. Farris's negligence claim, on the ground that he did not provide the District with timely pre-suit notice of the damage he sustained, as D.C. Code § 12-309(a) (2012 Repl.) required him to do. In addition, the court denied Mr. Farris's request to amend his answer to assert claims for just compensation under the Takings Clause of the Fifth Amendment, on the ground that the claims were legally insufficient. Mr. Farris challenges each of those rulings in this appeal. We affirm the rulings and the judgment of the Superior Court.

I.

The property that is the subject of this case is an end-unit row house in Northeast D.C. that Mr. Farris purchased in 1980. On its north side, the row house abuts an alleyway owned by the District. After purchasing the property, Mr. Farris noticed that water drained from the alley into his basement and pooled against his foundation wall. Beginning in 1985, and again in 1991, 1992, 1999, and 2002, Mr. Farris sent letters to the Mayor complaining about the "increasing seepage and leakage" problem created by the deterioration of the alley, unspecified "damage" to his home from the water drainage, and the District's continuing unresponsiveness to his calls and letters and its failure to repair the alley. In the last of these letters, Mr. Farris stated "[t]he ongoing damage reached the point last November [i.e., November 2001] that we could not in good conscious [sic ] rent our property in our absence."¹ The District did not respond to any of these letters and took no action to address the drainage problem.²

None of the foregoing letters mentioned structural damage from the drainage. At some point, though, Mr. Farris became aware that the water seepage was eroding the foundation of his row house. On his own initiative, in 2002, Mr. Farris engaged a professional engineer to install steel bracing to prevent the foundation wall adjacent to the alley from collapsing. The bracing did not solve the problem, however. A structural engineer who inspected the foundation wall for Mr. Farris in 2008 found the wall "had already failed" by then, meaning it had "collapsed inside the basement." The engineer informed Mr. Farris that the wall needed to be "reconstructed, rebuilt."

Mr. Farris does not claim to have done anything further to repair the foundation wall or address the drainage problem until December 2015, when, he reported, the foundation wall "imploded" due to a "build up [sic ] of hydrostatic pressure caused by the pooled drainage from the deteriorated [a]lley." Mr. Farris claims that, the following month, he provided timely written notice to the District of this structural damage in accordance with the requirements of D.C. Code § 12-309(a). Mr. Farris's letter, addressed to the Mayor, read in pertinent part as follows:

My wife and I purchased our home at 732 6th Street, NE; Washington, DC 20002, in December 1980. From that time until now we have suffered increasing seepage and leakage into our home from the adjacent District alleyway, which continues to deteriorate due to the negligence of the District and DDOT. The house has been uninhabitable because of this since 2008.

On 24 December 2015, the deterioration of the alley reached the point to allow water to percolate down and build enough hydrostatic pressure again [sic ] our historic foundation to cause a partial collapse into our cellar.

We have received no response from your predecessors and no work on the District's alleyway since before we lived there, which is will [sic ] soon be 36 years. Would you please intervene and have the appropriate District agencies come to our aid before we lose our home?

Mr. Farris included copies of his earlier complaint letters as attachments to this January 2016 letter.

Although the District does not acknowledge it received this letter, District officials came to inspect the foundation wall of Mr. Farris's row house shortly after the December 24 "implosion." They confirmed the wall had collapsed, informed Mr. Farris that a District regulation requires homeowners to maintain "a safe, firm, and substantial" foundation, and told him he was responsible for abating the violation of that regulation.³ After it became clear Mr. Farris would not repair the foundation wall, the District sought to perform the necessary repairs itself.⁴ However, Mr. Farris refused to allow District employees to enter his house to carry out the required repairs.

In September 2017, the District filed suit in Superior Court to enjoin Mr. Farris from interfering with its efforts to abate the housing code violation. Mr. Farris answered the complaint pro se. After retaining counsel, he sought leave of court to amend his answer to assert counterclaims. The proposed counterclaims included (as pertinent here) a claim asserting that the District was negligent in failing to maintain the alley so as to prevent it from flooding his property, and two claims asserting that the resulting flooding damage amounted to an unconstitutional taking of his property by the District without just compensation. One of the takings counts pled a federal cause of action for deprivation of constitutional rights under 42 U.S.C. § 1983, and the other alleged the taking as an inverse condemnation.⁵

The trial court eventually granted the District's motion for judgment on the pleadings and request for an injunction. Those rulings are not at issue in this appeal. At the same time, the court also granted Mr. Farris's motion for leave to file and pursue the negligence counterclaim. The court denied him leave to file his other proposed counterclaims, though. It held that the § 1983 and inverse condemnation counterclaims did not state a plausible claim for relief because they failed as a matter of law to allege a governmental taking within the meaning of the Fifth Amendment.

The District thereafter filed two motions for summary judgment on Mr. Farris's negligence claim. In its first motion, the District argued, inter alia , that the negligence claim was time-barred. The court denied the motion. After that denial, the District argued in a second motion that Mr. Farris failed to provide it with written notice within six months of sustaining the damage to his property on which his negligence claim was based, a precondition of his suit for unliquidated damages imposed by D.C. Code § 12-309(a). The court agreed that Mr. Farris did not give the District timely notice of his claim, and granted the second motion for summary judgment on that ground.

II.

Mr. Farris presents two claims of error. First, he argues that his January 2016 letter to the Mayor satisfied the statutory pre-suit notice requirement, and that the trial court erred in ruling that it was untimely. Second, he contends the trial court abused its discretion by denying his motion to add the counterclaims for the unconstitutional taking of his property on the ground that the takings claims would be futile as a matter of law on the facts he alleged.⁶ We address each claim of error in turn.

A. The Pre-Suit Notification Requirement

In reviewing the award of summary judgment to the District on Mr. Farris's negligence claim, we "apply[ ] the same standard as the trial court in considering the motion for summary judgment."⁷ That means we view the facts in the light most favorable to the non-moving party (Mr. Farris) and affirm the grant of summary judgment when there are no genuine issues of material fact and the moving party (the District) is entitled to judgment as a matter of law.⁸

On the record before us, the issue of Mr. Farris's "[c]ompliance with § 12-309(a) is a question of law that we review de novo ."⁹ The statute provides that, with immaterial exceptions,

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.^{[10 ]}

This notice requirement was enacted "(1) to allow the District to investigate potential claims so that evidence may be gathered while still available, ... (2) to enable the District to correct defective conditions, thus increasing public safety, and (3) to facilitate settlement of meritorious claims and resistance of frivolous ones."¹¹

The trial court ruled that, based on the undisputed facts, Mr. Farris did not send written notice "within six months after the injury or damage was sustained." It reasoned that the "damage was sustained" in 1980, when Mr. Farris discovered that the alley was draining into his basement. Because he did not send notice within six months of the initial leak, the court concluded, Mr. Farris's negligence claim is barred by § 12-309.

Mr. Farris argues that the "damage" he is complaining...