Rotunda v. Marriott Int'l, Inc.

• Decision Date: 03 September 2015
• Docket Number: No. 14–CV–618.,14–CV–618.
• Citation: 123 A.3d 980
• Parties: Donald ROTUNDA, Appellant, v. MARRIOTT INTERNATIONAL, INC., Appellee.
• Court: D.C. Court of Appeals

123 A.3d 980

Donald ROTUNDA, Appellant

v.MARRIOTT INTERNATIONAL, INC., Appellee.

No. 14–CV–618.

District of Columbia Court of Appeals.

Argued June 24, 2015.

Decided Sept. 3, 2015.

Paul D. Cullen, Sr., and Joyce E. Mayers, Washington, DC, with whom Toni J. Ellington was on the supplemental brief, for appellant.

Holly Drumheller Butler, Baltimore, MD, and Bruce V. Spiva, Washington, DC, with whom Rhett P. Martin and Charles P. Scheeler, Baltimore, MD, were on the brief, for appellee.

Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, Bennett Rushkoff, Chief, Public Advocacy Section, and

Nicholas Bush, Assistant Attorney General, filed a brief amicus curiae on behalf of the District of Columbia.

Before THOMPSON and BECKWITH, Associates Judges, and FARRELL, Senior Judge.

Opinion

FARRELL, Senior Judge:

Appellant Donald Rotunda brought this suit for damages under D.C.Code § 28–3905(k)(1) (2012 Repl.), part of the District of Columbia Consumer Protection Procedures Act (CPPA), on behalf of himself and the “general public.” In the complaint Rotunda expressly disclaimed any intention to seek class certification under Superior Court Rule of Civil Procedure 23. The trial court dismissed the representative portion of the suit for that reason.¹ We affirm, because we find no explicit statement of an intention by the Council of the District of Columbia to supplant with ad hoc procedures the framework long established by Rule 23 to govern representative suits in the Superior Court.

I. Background

Rotunda sued appellee Marriott International, Inc. under the CPPA for alleged deception in quoting prices for rooms at its Russian hotels in U.S. dollars, when payment at checkout was required to be in Russian rubles at an internal exchange rate invariably more favorable to the hotel than that day's Central Bank exchange rate. The suit was brought on behalf of Rotunda personally and all those members of “the general public,” D.C.Code § 28–3905(k)(1), who had allegedly been victimized by this practice. It sought statutory or actual damages.

The case came before Judge Weisberg on Marriott's motion to dismiss the representative action because Rotunda had expressly declined to seek class certification and compliance with the procedures of Rules 23 and 23–I. The judge recognized that the same issue had been decided by Judge Bartnoff in an earlier unrelated case, Margolis v. U–Haul Int'l, Inc., 2007 CA 5245, 2009 WL 5788369, 2009 D.C.Super. LEXIS 8 (D.C.Super.Ct. Dec. 17, 2009), and he dismissed largely on the strength of Judge Bartnoff's reasoning and dismissal there. Specifically, he agreed with her “that a CPPA claim for money damages brought by an individual on behalf of himself and other similarly situated members of the general public is in essence a class action, whether pled as such or not, and must satisfy the requirements of Rule 23 ” (emphasis by Judge Weisberg). The fact that the D.C. Council, in year 2000 amendments to the CPPA, “intended to permit representative claims for money damages” did not, in Judge Weisberg's view,

answer the question of whether the Council intended to exempt such claims from the requirements of Rule 23. The legislative history is silent on the point, but the Council is presumed to legislate with knowledge of the applicable Civil Rules, and there is no reason to assume the Council did not expect and intend the Rule 23 procedural requirements to apply to a CPPA claim for money damages brought by an individual on his own behalf and on behalf of similarly situated members of the general public, particularly where those requirements are rooted in due process considerations.

Rotunda now challenges the dismissal, which presents an issue of law that we decide de novo.²

II. Jurisdiction

We consider first whether Rotunda has standing to bring this appeal, an issue that arises because, after Judge Weisberg dismissed his representative claim, Rotunda settled his individual claim with Marriott. The settlement, approved by the trial court in a Consent Order and Final Judgment, was expressly conditioned on Rotunda's ability to appeal the dismissal of the representative claim, but at oral argument this court posed the question—not raised by Marriott—of whether, by settling, Rotunda had forfeited the standing required by our decisions. See Grayson v. AT & T Corp., 15 A.3d 219 (D.C.2011) (en banc). Specifically, we asked whether Rotunda was like the plaintiff/appellant Breakman in Grayson, who “rest[ed] his claim entirely ‘on the legal rights or interests of third parties,’ ” and so could not “demonstrate the requisite [personal] injury-in-fact for standing in our courts.” Id. at 246–47 (citation omitted). We directed supplemental briefing on the issue.

The parties agree that the question here is not strictly one of standing but of mootness,³ since, unlike Breakman, Rotunda concededly alleged concrete injury to himself in the complaint and up to the dismissal and settlement. See, by contrast, Grayson, 15 A.3d at 247 (“Because [Breakman] failed to allege the requisite injury-in-fact, ... the trial court properly dismissed [his] claim for want of subject matter jurisdiction.”).

Standing and mootness are, of course, related concepts. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (citation omitted) (“[M]ootness [is] the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).”). This court nevertheless, though in general adhering closely to Article III's constitutional requirement of standing, see discussion at pages [987–88], infra, has “not followed strictly federal justiciability requirements” in regard to “the doctrine of mootness.” Grayson, 15 A.3d at 235 n. 38. See Atchison v. District of Columbia, 585 A.2d 150, 153 (D.C.1991) (“this court ... enjoys flexibility in regard to mootness not possessed by the federal courts”). Illustrating that flexibility, in Atchison the emergency legislation under review had since expired, yet the court chose to entertain the appeal because the significance of the issue presented “ ‘extends well beyond the rights of the specific parties.’ ” Id. at 154 (quoting Pendleton v. District of Columbia Bd. of Elections & Ethics, 449 A.2d 301, 303 n. 1 (D.C.1982) ); see also Hessey v. Burden, 615 A.2d 562, 572 n. 17 (D.C.1992) (exercising similar “discretion” not to dismiss because of the reach of the issue beyond the parties). Even construing Article III constitutional law, we have observed that, while “[l]ack of standing always deprives a court of the power to adjudicate a claim, ... the doctrine of mootness is subject to recognized exceptions that allow a court to proceed to judgment.” Mallof v. District of Columbia Bd. of Elections & Ethics, 1 A.3d 383, 395 n. 54 (D.C.2010).

We choose likewise to reach the merits of this appeal despite Rotunda's settlement of his individual claim. The question of whether the D.C. Council in the 2000 amendments meant to abrogate the procedures of Rule 23 as applied to CPPA representative claims clearly extends in significance beyond the rights and obligations of the instant parties, including the sub-set of the general public that Rotunda purports to represent. And, despite the settlement of his own claim, the case exhibits “sharply presented issues in a concrete factual setting and self-interested parties [who have] vigorously advocate[ed] opposing positions,” thus satisfying the “imperatives of a dispute capable of judicial resolution.” Geraghty, 445 U.S. at 403, 100 S.Ct. 1202 ; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191–92, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[B]y the time mootness is an issue, the case has been brought and litigated, often ... for years. To abandon the case at an advanced stage may prove more wasteful than frugal.”). Finally, it is not even certain that dismissal of the appeal would end the dispute in this case. Rotunda makes a serious argument that if the settlement mooted the necessary basis for his representative claim, then the trial court order embodying the settlement rested on a mutual mistake of law—failure of the parties (and the trial court) to recognize the obstacle the settlement imposed to this court's jurisdiction—and would be voidable on remand on Rotunda's motion.⁴ The issues presented would then return to us inevitably, Rotunda asserts, as questions certified by the trial court under Super. Ct. Civ. R. 54(b).⁵ We need not decide whether Rotunda is correct in this reasoning, but the obvious complexity of a situation in which a settlement expressly meant to preserve a right of appeal is now argued to have mooted that right confirms the advisability of entertaining the appeal.

III. The Merits

As in Grayson, supra, the issue we decide here arises under amendments made in the year 2000 to the CPPA. Among other changes, whereas formerly D.C.Code § 28–3905(k)(1) allowed a consumer to bring suit under the statute if he or she had been “victimized by [an] unlawful trade practice [ ],” District Cablevision Ltd. P'ship v. Bassin, 828 A.2d 714, 717 (D.C.2003), the statute as amended “expand[ed] the potential plaintiff class so as to permit representative actions on behalf of consumers,” broadly defined as “the general public.” Ford v. ChartOne, Inc., 908 A.2d 72, 81 n. 8 (D.C.2006) (citation omitted).⁶ The amended statute also expanded the remedies available to redress unlawful trade practices to include injunctive relief and, “in representative actions, additional relief as may be necessary to restore to the consumer” gains from an unlawful trade practice. D.C.Code § 28–3905(k)(1)(E).

However, despite now including “the general public” as a potential plaintiff in representative actions, the 2000 amendments were virtually...