George S. Thanos v. District of Columbia and District of Columbia v. George S. Thanos , 109 A.3d 1084 ( 2014 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 12-CV-324 & 12-CV-325
GEORGE S. THANOS, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE,
AND
12-CV-350 & 12-CV-411
DISTRICT OF COLUMBIA, CROSS-APPELLANT,
V.
GEORGE S. THANOS, CROSS-APPELLEE,
&
VIP THERAPY, INC., ET AL., CROSS-APPELLEES.
Appeals from the Superior Court
of the District of Columbia
(CAB 6897-08 & CAB 856-11)
(Hon. Brook Hedge, Trial Judge)
(Argued January 22, 2014 Decided December 31, 2014)
Thomas T. Heslep, for appellant/cross-appellee.
Stacy L. Anderson, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and
2
Donna M. Murasky, Deputy Solicitor General, were on the brief, for
appellee/cross-appellant District of Columbia.
Nathan Baney for cross-appellees VIP Therapy, Inc., and Deborah
Poindexter. J. Chapman Peterson was on the brief for cross-appellees VIP
Therapy, Inc., and Deborah Poindexter.
Before BECKWITH and EASTERLY, Associate Judges, and BELSON, Senior
Judge.
BECKWITH, Associate Judge: At the conclusion of a one-day trial, the trial
court in this case found that property owned by appellant George Thanos and
leased by VIP Therapy, Inc. (VIP), constituted a prostitution-related nuisance
pursuant to the Drug or Prostitution-Related Nuisance Abatement Act, D.C. Code
§ 42-3101 et seq. (2012 Repl.).1 The court issued a permanent injunction and
assessed attorney‟s fees and costs against Mr. Thanos, VIP, and VIP‟s owner,
Deborah Poindexter, but denied the District‟s request for income disgorgement and
damages. Mr. Thanos appeals the issuance of the permanent injunction and
imposition of attorney‟s fees and the District cross-appeals the denial of its request
for income disgorgement. For the reasons discussed below, we affirm the court‟s
permanent injunction and attorney‟s fees rulings and we reverse the trial court‟s
conclusion that it did not have authority to order income disgorgement and remand
for further proceedings on that count.
1
All subsequent D.C. Code citations are to the 2012 Replacement volume.
3
I. Background
Since 1986, George Thanos owned a four-story building on Connecticut
Avenue, N.W., and ran a dry-cleaning business out of the first floor of that
building. He rented out the three upper floors to a variety of tenants. In 2001, a
Metropolitan Police Department (MPD) investigation revealed that the fourth floor
tenant, Supra Spa, was operating as a prostitution front. Mr. Thanos met with
District government representatives and expressed unwillingness to assist MPD in
investigating the alleged prostitution problem in his building, indicating, among
other things, that he felt like MPD was asking him to “spy” on his tenants. The
investigation was not pursued any further at that time. As Detective Mark
Gilkey—a supervising manager in the MPD Prostitution Enforcement Unit—later
explained at trial, MPD shifted its investigatory focus to “street” prostitution for a
period of several years following Mr. Thanos‟s initial contact with the department.
Seven years later, Mr. Thanos and his fourth floor tenants once again came
to MPD‟s attention when officers made two prostitution-related arrests at that
location.2 On May 23, 2008, the District obtained a preliminary injunction against
Supra Spa precluding it from doing any business on the property until it obtained a
2
Detective Gilkey testified that, as an undercover detective at the premises
on March 4, 2008, he was offered sex for money after a brief conversation with a
Supra Spa employee.
4
certificate of occupancy and a basic business license. In July, MPD made two
more prostitution-related arrests at Supra Spa.3
The District contacted Mr. Thanos in August 2008 to put him on notice that
he once again had a prostitution-related nuisance on the fourth floor of his
building. See D.C. Code 42-3103 (b). The letter informed Mr. Thanos of his
responsibilities under the Drug or Prostitution-Related Nuisance Abatement Act
and explained that the District could file suit against Mr. Thanos if he failed to
abate the nuisance. See D.C. Code 42-3102. Although Mr. Thanos took no action,
Supra Spa vacated the premises that August. Because the District had not yet
received a reply from Mr. Thanos, the District filed a complaint against him
seeking an injunction ordering Mr. Thanos to evict Supra Spa as a tenant. Mr.
Thanos sent a letter, dated September 22, 2008, informing the District that Supra
Spa had vacated the premises and that the man who was currently leasing the space
would be responsible for disposing of any items left behind by Supra Spa. Mr.
Thanos later explained at trial that the new tenant, Don Gardner, was sleeping on
the fourth floor to protect the premises from former Supra Spa customers who
banged on the door at night attempting to gain entry. Mr. Gardner was paying Mr.
3
Ray Melvin of the MPD Prostitution Enforcement Unit testified at trial
that he went undercover to Supra Spa on July 24, 2008, and was offered both “sex
and oral sex” by a young woman.
5
Thanos one dollar per month in rent.
On November 28, 2008, Mr. Thanos leased the fourth floor of his building to
VIP, another massage provider.4 VIP opened for business in April 2009. MPD
began receiving complaints shortly thereafter from community members and
nongovernmental organizations indicating that prostitution was once again
occurring on Mr. Thanos‟s premises. Officers made four more prostitution-related
arrests on June 30, 2009, including VIP‟s owner, Deborah Poindexter.5
On July 17, 2009, the court granted the District‟s motion for leave to amend
its complaint against Mr. Thanos to add Ms. Poindexter and VIP as defendants and
to incorporate new facts. A trial on the District‟s request for injunctive relief was
set for March 22, 2010. Two more prostitution-related arrests were made on
October 28, 2009, while the matter was awaiting trial.
Shortly after the trial but before the judge issued a ruling, MPD Officer Roy
Melvin was involved in a June 16 undercover investigation at VIP—then doing
4
The lease specified that VIP was not to use the premises for any unlawful
purposes or engage in “sexually oriented activity.”
5
Detective Gilkey testified that when he entered the spa while working
undercover, Ms. Poindexter directed him to a room and brought “a girl” to him,
“and then there was an agreement with the girl she brought back”—namely, “oral
sex for money.”
6
business as “Asian Mist”—that led to the arrest of one person for solicitation and
prostitution as well as the recovery of a large salt container filled with
approximately 1000 used condoms and a flashlight hiding a stash of new condoms.
While awaiting the court‟s ruling regarding a permanent injunction, the
District again moved for a TRO on October 8, 2010, to stop Mr. Thanos from
continuing to rent the property to VIP and for other related relief based on two
additional prostitution-related arrests made a month before on the fourth floor of
Mr. Thanos‟s property.6 The court granted the District‟s request on February 9,
2011, and enjoined Mr. Thanos from renting his property to VIP or any other
business that involved touching, prohibited VIP from engaging in any business on
the premises or elsewhere in the District, and directed Mr. Thanos to change the
locks on the building and place a sign on the property indicating that the massage
parlor was closed for business.
On March 11, 2011, the court issued its decision from the March 2010 trial
concluding that Mr. Thanos‟s property constituted a prostitution-related nuisance
as defined by the Drug or Prostitution-Related Nuisance Abatement Statute, that
Mr. Thanos received statutorily sufficient notice of the nuisance, and that he failed
6
The undercover operation, prompted again by citizen complaints, also led
to the seizure of $14,000 in cash.
7
to abate the nuisance as required by the statute. The court also found that VIP and
Ms. Poindexter failed to cease the illegal activities. The court entered a judgment
of liability against Mr. Thanos, VIP, and Ms. Poindexter, and ordered that the
February 9, 2011, TRO remain in effect pending final determination and entry of
an appropriate remedy.
On May 18, 2011, the court held an evidentiary hearing to determine
damages and equitable relief. The District sought per diem fines at a rate of $100
per day that VIP leased the unit in Mr. Thanos‟s building (totaling $82,200), rents
and other monies collected by Mr. Thanos from VIP during that period ($122,281),
and the gross revenues of VIP‟s illegal business (which the District approximated
at $3,225,600). Finally, the District sought attorney‟s fees ($76,451.93 from Mr.
Thanos and $48,236.93 from VIP) and costs ($3,308.55). The District was
represented throughout the proceedings by a so-called “Special Assistant Attorney
General,” a private attorney acting in pro bono capacity on behalf of the District.
On February 10, 2012, the court granted the District‟s request for attorney‟s fees
and issued a permanent injunction but denied its request for income disgorgement,
finding such a remedy unsupported by the statute.
Mr. Thanos appeals the trial court‟s issuance of the permanent injunction
and attorney‟s fees. The District cross-appeals, arguing that the court abused its
8
discretion by denying the government‟s request for disgorgement of Mr. Thanos‟s
and VIP‟s revenues.
II. Analysis
The Drug or Prostitution-Related Nuisance Abatement Act gives the District
authority—after making a reasonable attempt to notify the owner of the property—
to file an action in the Superior Court to abate, enjoin, and prevent a prostitution-
related nuisance when the District has reason to believe that such a nuisance exists.
D.C. Code § 42-3102. A prostitution-related nuisance is defined as “[a]ny real
property, in whole or in part, used or intended to be used to facilitate
prostitution . . . that has an adverse impact on the community” or “any real
property, in whole or in part, used or intended to be used to facilitate any violation
of” various District of Columbia anti-prostitution statutes. D.C. Code § 42-3101
(5)(B)-(C). The statute clarifies that, for the purposes of this Act, “adverse impact”
means the presence of at least one of several conditions. Those relevant here
include:
(C) Increased volume of vehicular and pedestrian traffic
to and from the property that is related to prostitution[;]
(G) Investigative . . . actions relating to prostitution by
undercover law enforcement officers at or near the
property;
9
(H) Arrests of persons on or near the property for
criminal conduct relating to prostitution[; or]
(I) Search warrants served or executed at the property
relating to prostitution.
D.C. Code § 42-3101 (1). If the court finds the existence of a prostitution-related
nuisance, the Act specifies that it “shall enter an order permanently enjoining,
abating, and preventing the continuance or recurrence of the nuisance.” D.C. Code
§ 42-3110 (a). Such an order may include per diem damages for each day the
nuisance is unabated after the date the defendant had actual or constructive
knowledge of the nuisance, and may also include relief in the form of attorney‟s
fees and costs and “any other remedy which the court, in its discretion, deems
appropriate.” D.C. Code §§ 42-3110 (b), 42-3111. In fashioning such an order,
the court “shall consider, without limitation,” several factors, including:
(1) The extent and duration of the . . . prostitution-related
nuisance and the severity of the adverse impact on the
community;
(5) The number of times the owner or tenant has been
notified of . . . prostitution-related problems at the
property;
(6) Prior efforts or lack of efforts by the defendant to
abate the drug or prostitution-related nuisance;
(8) The costs incurred by the jurisdiction . . . in
investigating, correcting, or attempting to correct the . . .
prostitution-related nuisance;
10
(9) Whether the . . . prostitution-related nuisance was
continuous or recurring;
(10) The economic or financial benefit accruing or likely
to accrue to the defendant as a result of the conditions
constituting the . . . prostitution-related nuisance; or
(11) Any other factor the court deems relevant.
D.C. Code § 42-3110 (c). Although the Act “shall be construed liberally in
accordance with its remedial purposes,” and “the availability of other remedies
under the law or other equitable relief” is not limited, the statute makes clear that
“[t]his action is civil in nature and none of its provisions should be interpreted as
punishment.” D.C. Code §§ 42-3113, 42-3114.
A. Permanent Injunction
In its order granting the District‟s request for a permanent injunction, the
trial court considered the relevant factors under the Act and noted the “pervasive
nature of the activity and defendants‟ knowledge” as well as Mr. Thanos‟s
“repeated disregard of the law” and “creativity” in flouting it. The court concluded
that “wide-ranging injunctive relief is necessary to ensure that the nuisance
remains abated” and fashioned a permanent injunction requiring that any lease or
sale of the building be preapproved by the District and that Mr. Thanos rent only to
businesses that do not involve touching, other than to a licensed physician.
11
Mr. Thanos argues on appeal that the trial court abused its discretion and
committed legal error in issuing the permanent injunction.7 He contends that the
court erroneously granted the permanent injunction because the District possessed
“unclean hands” in that it never attempted to revoke the massage therapy license of
VIP or any of its employees, owners, or operators. He emphasizes, too, that none
of the District‟s arrests led to any conviction. While the District could have
attempted to solve the nuisance through more traditional means, the Act provides
the District with an additional tool to combat prostitution. Nothing in the Act
requires the District to revoke any licenses or convict anyone for injunctive relief
to be proper. The Act specifically provides that “[a] previous conviction of the
defendant, or any tenant or owner of the property, shall not be required to
demonstrate a . . . prostitution-related nuisance.” D.C. Code § 42-3106. Mr.
Thanos nonetheless argues that “[u]nder a rational theory of statutory
7
Mr. Thanos also argues that the Temporary Restraining Order was
improperly granted, but because the court subsequently entered a permanent
injunction against Mr. Thanos, his challenges to the TRO are moot. See Yates v.
District of Columbia, 868 A.2d 866 (D.C. 2005) (holding that challenges to a
preliminary injunction become moot upon the entry of a permanent injunction).
Similarly, we find no merit in his contention that the permanent injunction was
improper because the trial court failed to hold a hearing on the District‟s requests
for a preliminary injunction within ten business days as required by D.C. Code §
42-3104 (a). Failure to hold a preliminary injunction hearing as required would
only affect the propriety of a preliminary injunction, which Mr. Thanos admits was
never issued against him.
12
interpretation,” the exclusion of a conviction requirement for the defendant or any
tenant or owner of the property “cannot possibly mean that no one need be
convicted in order to trigger this statute,” but rather “[t]he fact that these specific
people are excluded, must mean that there must be some sort of conviction of
someone, if arrests are the only evidence of a nuisance.” (emphasis in original).
We disagree. When interpreting a statute, our task is “to ascertain and give
effect to the legislative intent and to give legislative words their natural meaning.”
In re D.R., 96 A.3d 45, 49 (D.C. 2014) (citation omitted). Section 42-3106, which
is entitled “Conviction not required,” states that the District can obtain relief under
the Act without first convicting any of the individuals one expects to be involved
in a property-based nuisance—defendants (for example, landlords), property
owners, or tenants. It is counterintuitive to suggest that this explicit rejection of a
conviction requirement for the most likely participants in a nuisance demonstrates
that the Council intended to create—but chose not to do so expressly—a contrary
requirement that the District must convict another individual who is not likely to be
involved in a nuisance.
Mr. Thanos also challenges the entry of the permanent injunction by
arguing that, under the facts and circumstances of this case, no “nuisance” with the
requisite “adverse impact on the community” can be found. The record contains
13
ample evidence, however, upon which the trial court could conclude both that a
nuisance existed and that it adversely affected the community as defined by D.C.
Code § 42-3101.
To find a nuisance under the Act, the court must conclude that the property
is “in whole or in part, used, or intended to be used, to facilitate prostitution” and
“has an adverse impact on the community.” D.C. Code § 42-3101 (5)(B) (2012
Repl.). This standard consists of two separate inquiries. The first inquiry—
whether the property is used or intended to be used in whole or in part to facilitate
prostitution—is not defined by the statute8 and is thus interpreted according to its
“ordinary meaning.” Hood v. United States, 28 A.3d 553, 559 (D.C. 2011). Here
the record contains considerable evidence that Mr. Thanos‟s property was at least
being “used in part” by VIP for prostitution—the testimony of several undercover
officers regularly receiving solicitations for prostitution at the property, coupled
with the sizeable stash of both used and new condoms found on the premises,
belies Mr. Thanos‟s argument to the contrary.
The second inquiry is whether the property use has an adverse impact on the
community. The Act makes clear that even one enumerated condition is sufficient
8
This inquiry is neither guided nor bound by the factors in § 42-3101 (1),
which relate solely to “adverse impact.”
14
to support a finding of adverse impact to the community. D.C. Code § 42-3101 (1)
(“„Adverse impact‟ means the presence of any one or more of the following
conditions . . . .”).9 Evidence of several of those conditions appeared in the record,
including “[i]nvestigative . . . actions relating to prostitution by undercover law
enforcement officers at or near the property,” “[a]rrests of persons on or near the
property for criminal conduct relating to prostitution,” and “[s]earch warrants
served or executed at the property relating to prostitution.” D.C. Code § 42-3101
(1) (G)-(I). The trial court also noted that Mr. Thanos hired a security guard to
watch over the property after the massage business left because “customers were
banging on the door in the middle of the night.” That finding demonstrates the
existence of another enumerated condition—“[i]ncreased volume of vehicular and
pedestrian traffic to and from the property that is related to prostitution. . . .” D.C.
9
Mr. Thanos argues that this literal reading of the statute produces an
“absurd result” because the court could find adverse impact based on just one
instance of officer investigation into prostitution, or just one arrest for prostitution,
or just one approach by a person seeking to engage in prostitution. But this
concern reflects his conflation of the two parts to the nuisance definition. Adverse
impact alone is insufficient to support a judgment of liability: the court still must
have made a threshold factual determination that the property is used for
prostitution in whole or in part, and—although we do not attempt to pinpoint
where that line falls in this case—one investigation or arrest or approach is
undoubtedly insufficient evidence to support such a finding.
Furthermore, a trial court is not required to find adverse impact solely
because one factor is present; the ultimate decision still lies in the court‟s
discretion.
15
Code § 42-3101 (1)(C). The trial court committed no error in concluding that a
prostitution-related nuisance existed on Mr. Thanos‟s property and that it adversely
impacted the community pursuant to the statute.10
Lastly, Mr. Thanos states that the permanent injunction should not have been
issued because “if there was a nuisance, it had already been abated” and he “had
shown no tendency to ignore any Court Order.” Mr. Thanos made the same
argument below, and we echo the trial court‟s response: “[T]he record and the
Court‟s Findings of Fact are replete with examples . . . [showing] that defendant
Thanos has flagrantly and arrogantly chosen to ignore the law, despite repeated
notice that prostitution activities were occurring on his premises. . . . The evidence
is overwhelming that [Mr.] Thanos will not abide by the law if left to his own
word.” These findings are not clearly erroneous and we therefore reject Mr.
Thanos‟s contention that a permanent injunction was unnecessary to abate the
10
Mr. Thanos argues, in the alternative, that if the facts and circumstances
of the case do allow for a finding of a “nuisance” with the requisite “adverse
impact on the community,” then the Act is unenforceable as an unconstitutional
taking of Mr. Thanos‟s property under both substantive and procedural due process
pursuant to the Fifth and Fourteenth Amendments to the United States
Constitution. This contention has no merit. See Lucas v. S.C. Coastal Council,
505 U.S. 1003, 1022 (1992) (recognizing “a long line of this Court‟s cases
sustaining against Due Process and Takings Clause challenges the State‟s use of its
„police powers‟ to enjoin a property owner from activities akin to public
nuisances”).
16
nuisance and prevent its recurrence. See Hinton v. Sealander Brokerage Co., 917
A.2d 95, 101 (D.C. 2007) (on appeal from a bench trial, “[t]he trial court‟s findings
of fact will not be disturbed unless they are clearly erroneous”).
B. Attorney’s Fees
Pursuant to D.C. Code § 42-3110 (b)(1), which authorizes the assessment of
“reasonable attorney fees and costs to the prevailing party,” the trial court decided
that it was “reasonable to order that the defendants pay the prevailing party‟s fees
and costs in this matter given the ongoing nature of the prostitution-related
nuisance, the parties‟ knowledge of the nuisance, and the distinct lack of efforts on
behalf of all defendants to abate the nuisance as the record so amply
demonstrates.” Using the well-established Laffey matrix,11 the court awarded the
District $76,451.93 against Mr. Thanos. Absent “a very strong showing of abuse
of discretion,” we may not set aside the trial court‟s fee award. Steadman v.
Steadman, 514 A.2d 1196, 1200 (D.C. 1986).
11
See Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C.
1983), rev’d in part on other grounds, 746 F.2d 4 (1984) (hourly rates for attorneys
practicing law in the D.C. metropolitan area could be categorized by years in
practice and adjusted yearly for inflation). The “Laffey matrix” is compiled yearly
by the Civil Division of the United States Attorney‟s Office and is regularly used
to calculate attorney‟s fees when there is a statutory entitlement. Lively v. Flexible
Packaging Ass’n, 930 A.2d 984, 990 (D.C. 2007).
17
Mr. Thanos‟s primary complaint on appeal is that the District should not
have been eligible for attorney‟s fees because it was represented by a Special
Assistant Attorney General—a private lawyer acting in a pro bono capacity for the
District. Relying on Link v. District of Columbia, 650 A.2d 929, 934 (D.C. 1994)
(holding that attorney‟s fees are calculated no differently for nonprofit legal service
providers than they are for private attorneys), the trial court awarded the District
fees because “[t]he District‟s Special Counsel was akin to a nonprofit legal service
provider.” Mr. Thanos contends that the rationale for awarding attorney‟s fees in
Link and related cases—that such reimbursement allows for the continued
availability of free legal services despite the fact that no fees are actually
charged—is absent here. Because the District‟s pro bono representation was in aid
of a “powerful government entity” and the private provider will neither receive the
fees nor be “encouraged or enabled” by them, as in the case of free legal services
for poor people, Mr. Thanos argues that such fees, as applied here, amount to
“punitive . . . back door damages.”
In Link, we reversed the trial court‟s decision to award only a token $100 in
attorney‟s fees to Neighborhood Legal Services because that service provider
offered representation free of cost and therefore the fees would simply add to the
nonprofit‟s coffers rather than alleviate the client‟s burden. Link, 650 A.2d at 934.
We explained our rationale for imposing the fees:
18
When free legal services are provided there may be no
direct barrier to the courtroom door, but if no fees are
awarded, the burden of the costs is placed on the
organization providing the services, and it
correspondingly may decline to bring such suits and
decide to concentrate its limited resources elsewhere.
Id. (internal quotation marks and citations omitted). We disagree with Mr. Thanos
that this rationale is inapplicable to the case at bar, where the District and its pro
bono assistant brought an action in the public interest to abate a prostitution-related
nuisance. That the District is a government entity and not an impoverished citizen
is legally irrelevant to the question of attorney‟s fees. Had the District been
represented by a salaried Assistant Attorney General, it would have been entitled to
attorney‟s fees at a reasonable market rate based on the lodestar method (“the
number of hours reasonably expended multiplied by a reasonable hourly rate,”
Envtl. Def. Fund, Inc. v. Envtl. Prot. Agency, 672 F.2d 42, 51 (D.C. Cir. 1982)),
not based on the attorney‟s actual salary. D.C. Code § 42-3110 (b)(1) (“Any order
issued under this section may include . . . [a]ssessment of reasonable attorney fees
and costs to the prevailing party.”); see Neal v. Honeywell, Inc., 191 F.3d 827, 833
(7th Cir. 1999) (“The difference between the actual-cost approach and a
„reasonable cost‟ approach is considerable.”). In this case, community-based
organizations and government entities alike are empowered to bring nuisance-
abatement actions. D.C. Code § 42-3102 (a). Whether the prevailing plaintiff is
the U.S. Attorney‟s Office, the District of Columbia Office of the Attorney
19
General, or a community-based group, that plaintiff is entitled to reasonable
attorney‟s fees. It would be inconsistent with the holdings in Link and Henderson
to conclude otherwise, and the trial court did not abuse its discretion in assessing
reasonable fees and costs against Mr. Thanos despite the unusual nature of the
District‟s representation.
Because we conclude that the attorney‟s fees awarded against Mr. Thanos
were reasonable, we reject the contention that the fees are effectively an award of
damages. We also reject Mr. Thanos‟s argument that the attorney‟s fees the court
awarded against him were too high because the award included the number of
hours spent on the District‟s nonmeritorious claim for damages. In awarding the
full amount of fees nonetheless, the court noted, “[e]ven though the Court did not
award damages, the Court is awarding all fees and costs because the factual
development of the monetary amounts received by the defendants was necessary
for an analysis of § 42-3110 (c)(10) when considering injunctive relief.” We have
recognized that “it is often impossible to distinguish hours spent on individual
claims that are ultimately unsuccessful from time spent on the overall successful
litigation.” Natural Motion by Sandra, Inc. v. District of Columbia Comm’n on
Human Rights, 726 A.2d 194, 198 (D.C. 1999) (citing Hensley v. Eckhart, 461
U.S. 424, 435 (1983)). Therefore, “[t]he fee award should not be reduced simply
because the [party] failed to prevail on every contention raised in the lawsuit.” Id.
20
(quoting Hensley, 461 U.S. at 435). Thus the trial court did not abuse its discretion
by awarding the District the full amount of fees it claimed.12
C. Income Disgorgement
The District cross-appeals the trial court‟s denial of its request for
disgorgement of both Mr. Thanos‟s and VIP‟s revenue and income derived from
the prostitution-related nuisance.13 In the Superior Court, the District sought the
money Mr. Thanos received from VIP for rent and otherwise, as well as the gross
amount VIP received for providing “massages.”14 The District argues that it is
entitled to income disgorgement under § 42-3110 (7), the “catch-all provision” of
12
To the extent Mr. Thanos argues that the District should not be entitled to
attorney‟s fees because the District‟s various actions were procedurally defective,
because the court failed to find a nuisance with the requisite “adverse impact,” and
because the court failed to hold a hearing on the preliminary injunction motion
within ten days, we have rejected these arguments.
13
VIP has appeared as a cross-appellee on this claim.
14
The District also sought per diem damages in the amount of $100 per day
pursuant to D.C. Code § 42-3111, which provides that “the plaintiffs may request,
and the court in its discretion may order damages for each day the . . . prostitution-
related nuisance is unabated since the defendant first received notice. . . .” The
court interpreted the statute to require that per diem damages be compensatory, not
punitive. See D.C. Code § 42-3113 (“This action is civil in nature and none of its
provisions should be interpreted as punishment.”). Finding that “[t]here is no
evidence in the record as to how the $100 a day is tied to compensating for a
specific harm, including the public interest, other than assessing what might be
viewed as nominal punitive damages,” the court denied the District‟s request, and
the District does not appeal that ruling.
21
the statute, which provides for “[a]ny other remedy which the court, in its
discretion, deems appropriate.” D.C. Code § 42-3110 (7). The trial court
considered this argument in light of the entire statutory scheme and concluded that
it did not have the authority to impose income disgorgement for several reasons:
because the Act is focused on abatement and prevention, not punishment or
compensation, because a different provision—§ 42-3110 (b)(4)—provides for the
capturing of rents for a certain period of time in order to accomplish abatement and
specifies when and why rents can be escrowed, and because the D.C. Council
made its intentions clear in § 42-3113 that “[t]his action is civil in nature and none
of its provisions should be interpreted as punishment.” Although the decision to
grant or deny equitable relief is committed to the sound discretion of the trial court,
see D.C. Code § 42-3110 (b), “[j]udicial discretion must . . . be founded upon
correct legal principles and a trial court abuses its discretion when it rests its
conclusions on incorrect legal standards.” In re J.D.C., 594 A.2d 70, 75 (D.C.
1991) (internal citation omitted).
We disagree that the statute does not authorize income disgorgement as a
matter of law. While the trial court was correct in concluding that it could not
award damages as a legal remedy beyond those authorized in § 42-3111, it does
have the broad authority to fashion equitable relief for the purposes of enjoining,
abating, and preventing the continuation or recurrence of a prostitution-related
22
nuisance. See D.C. Code § 42-3110. Although the District itself referred to
income disgorgement as damages in its request, income disgorgement is widely
viewed as an equitable remedy.15 So v. Suchanek, 670 F.3d 1304, 1310 (D.C. Cir.
2012) (“Disgorgement is an equitable remedy entrusted to the sound discretion of
the district court.”); Cnty. of Essex v. First Union Nat’l Bank, 891 A.2d 600, 609
(N.J. 2006) (“It is obvious that the County‟s cause of action for unjust
enrichment/disgorgement is an equitable claim.”); King Mountain Condo. Ass’n v.
Gundlach, 425 So. 2d 569, 572 (Fla. App. 1982) (“[T]he disgorgement of secret
profits . . . is an equitable remedy. . . .”). Instead of compensating victims, as
damages do, income disgorgement serves to prevent unjust enrichment. Cnty. of
Essex, 891 A.2d at 609 (the equitable remedy of disgorgement is “grounded in the
theory that a wrongdoer should not profit from its wrongdoing regardless of
whether the innocent party suffered any damages”); United States v. Lane Labs-
15
VIP argues that the District, having asserted its right to income
disgorgement under a theory of damages below, cannot rely on an alternative
theory on appeal. See Estate of Taylor v. Lilienfield, 744 A.2d 1032, 1035 (D.C.
2000) (“Parties may not assert one theory at trial and another theory on appeal.”).
But the District specifically cited § 42-3110—dealing exclusively with equitable
remedies and not with damages—in its request for income disgorgement.
Although the District called the money it was seeking “damages,” it plainly sought
income disgorgement according to the framework laid out in § 42-3110, analyzing
the factors to consider when fashioning a “remedy” under that section. The
equitable remedy theory asserted by the District is therefore not novel and is
permissible at this stage of litigation.
23
USA, Inc., 324 F. Supp. 2d 547, 576 (D.N.J. 2004) (“Disgorgement differs from
restitution in that it . . . does not turn on compensating the victims.”). Under § 42-
3110, which relates to equitable remedies (as opposed to § 42-3111, which relates
to damages), the court does have the authority to order income disgorgement—not
as a punishment or as victim compensation, but to deprive Mr. Thanos and VIP of
their ill-gotten revenues on the theory that the cross-appellees should not be
permitted to retain the spoils from a prostitution-related nuisance.
The trial court‟s authority to award disgorgement is not unlimited, however.
Disgorgement still must be “necessary” in the specific case at issue to “enjoin[],
abat[e], and prevent[] the continuance or recurrence of the nuisance.” D.C. Code §
42-3110 (a).16 Moreover, disgorgement assessed under the Act cannot be punitive
in nature. D.C. Code § 42-3113. See also Sec. & Exch. Comm’n v. Blatt, 583 F.2d
1325, 1335 (5th Cir. 1978) (“The court‟s power to order disgorgement extends
only to the amount with interest by which the defendant profited from his
wrongdoing. Any further sum would constitute a penalty assessment.”). And,
specifically relevant to Mr. Thanos in this case, disgorgement under the catch-all
16
As the trial court recognized, it is not enough to say that “any monetary
award will help abate crime because it takes the profit out of the activity.”
Disgorgement is only “necessary” as a deterrent to prevent a recurring nuisance if
there is factual support for a conclusion that the nuisance would recur without
disgorgement.
24
provision in subsection (c)(11) cannot be used to collect rental income from the
property—the statute lays out specific procedures for collecting rental income in
subsections (c)(4) and (5), and a court cannot use the general catch-all provision to
circumvent the Council‟s explicit instructions. See Odeniran v. Hanley Wood,
LLC, 985 A.2d 421, 427 (D.C. 2009) (“Although the expressio unius maxim . . .
must be applied with a considerable measure of caution, it is useful where the
context shows that the draftsmen‟s mention of one thing . . . does really
necessarily, or at least reasonably, imply the preclusion of alternatives.”) (internal
citation and quotation marks omitted).
The trial court noted in a footnote that “on this factual record,” disgorgement
would have been “more punitive in nature,” but that conclusion appears ultimately
to have been used to buttress its assertion that it lacked the statutory authority to
order disgorgement. Having clarified the scope of the trial court‟s authority, we
remand to the trial court to determine, within its discretion, whether disgorgement
is an appropriate equitable—and not punitive—remedy that is “necessary” to
enjoin, abate, and prevent the continuance or recurrence of the nuisance under the
circumstances of this case.17
17
Nothing in this opinion should be construed to suggest that disgorgement
is or is not appropriate on the facts of this case.
25
III. Conclusion
For the reasons above, we reverse the trial court‟s denial of the District‟s
request for income disgorgement and remand for a determination whether such a
remedy is appropriate in this case and if so, in what amount. We affirm the trial
court‟s findings and conclusions on all other grounds.
So ordered.