MONTGOMERY BLAIR SIBLEY v. ST. ALBANS SCHOOL , 2016 D.C. App. LEXIS 54 ( 2016 )

District of Columbia
Court of Appeals
No. 14-CV-434 MAR 24 2016
MONTGOMERY BLAIR SIBLEY,
Appellant,
v. CAB-2202-10
ST. ALBANS SCHOOL, et al.,
Appellees.
On Appeal from the Superior Court of the District of Columbia
Civil Division
BEFORE: FISHER and EASTERLY, Associate Judges; and RUIZ, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment on appeal is affirmed.
For the Court:
Dated: March 24, 2016.
Opinion by Senior Judge Vanessa Ruiz.
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
No. 14-CV-434 3/24/16
MONTGOMERY BLAIR SIBLEY, APPELLANT,
v.
ST. ALBANS SCHOOL, et al., APPELLEES.
Appeal from the Superior Court of the
District of Columbia
(CAB-2202-10)
(Hon. Judith N. Macaluso, Trial Judge)
(Argued February 4, 2015 Decided March 24, 2016)
Montgomery Blair Sibley, pro se.
Laird Hart for appellees.
Before FISHER and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
RUIZ, Senior Judge: Appellant Montgomery Blair Sibley appeals from the
trial court‟s grant of summary judgment dismissing his various claims against
appellees St. Albans School, the Cathedral Church of St. Peter and St. Paul (the
National Cathedral), and the Protestant Episcopal Cathedral Foundation (PECF),
and granting appellees‟ counterclaim and request for attorney‟s fees. We conclude
that there is no error that warrants reversal and affirm.
2
I. Facts
The facts, as gleaned from the evidence presented by the parties for
consideration on summary judgment are as follows. St. Albans School, a private,
all-boys school, and the National Cathedral, both in the District of Columbia,
operate under an umbrella corporation, PECF. In July 2007, appellant‟s then-10-
year-old son, A.B.S., began to audition for the National Cathedral Choir of Men
and Boys and he was offered a place as a Boy Chorister in 2008. One of the
conditions of the offer was attendance at St. Albans School, and A.B.S.‟s
admission to the school was, in turn, contingent upon A.B.S.‟s commitment to the
chorister program through the eighth grade. Appellant was required to sign a letter
accepting A.B.S.‟s appointment to the choir “beginning in September 2008 until
June 2013 or early voice change.” A.B.S. joined the choir and enrolled at St.
Albans School as a fifth-grader (Form B) for the 2008-09 school year. For his
participation in the choir he received a stipend of $13,514, approximately forty-
three percent of that year‟s school tuition. That year appellant‟s father signed the
enrollment contract with St. Albans School and paid the remainder of A.B.S.‟s
tuition for the school year.1
1
According to appellant, his father (A.B.S.‟s grandfather), a St. Albans
School alumnus who had been a choir boy at the National Cathedral, had
encouraged A.B.S. to apply for the choir. He promised that if A.B.S. was accepted
(continued . . .)
3
In February of 2009, appellant signed a contract re-enrolling A.B.S. in sixth
grade (Form A) for the 2009-10 school year. By signing the contract, appellant
promised to pay A.B.S.‟s tuition for the year, less his choral stipend (that year,
$8,907, or twenty-seven percent of tuition) and financial aid (in the amount of
$6,000), leaving a balance of $17,990, with the initial payment due July 3, 2009.
On July 16, 2009, appellant notified St. Albans that he would need to secure
A.B.S.‟s tuition from the estate of his father, who had recently died. On January
25, 2010, Gregory A. Parker, St. Albans School‟s Director of Finance, sent a letter
informing appellant that A.B.S. would be expelled and not permitted to reenroll for
the following year if the outstanding tuition was not paid. On February 17, in a
telephone conversation, appellant informed Parker that he would be able to pay
$2,000 in the near future and would pay the rest of the tuition once his father‟s
estate was settled, but that the matter was in litigation because his father‟s will had
not explicitly provided for A.B.S.‟s tuition payments. During a telephone
conversation on February 24, Parker offered that A.B.S. could complete the school
year if appellant paid $2,000, but that he would not be allowed to reenroll for the
following school year. On March 2, appellant contested this decision with Vance
Wilson, the Headmaster of St. Albans School. Wilson responded in writing on
_________________________
(. . . continued)
to the choir and St. Albans School, he would pay the balance of tuition after the
chorister stipend and financial aid.
4
March 10, and again informed appellant that A.B.S. would be allowed to finish the
year if the $2,000 payment was received before spring break but that he would not
be permitted to return for the 2010-11 school year if the outstanding tuition balance
was not also paid in full.
Appellant and St. Albans School exchanged several letters in March and
April of 2010, attempting to establish a payment schedule based on the expected
probate of appellant‟s father‟s estate. On March 17, St. Albans School agreed to
reconsider its decision not to allow A.B.S. to re-enroll if it received confirmation
by March 19 that the estate would pay the outstanding tuition balance by the end of
March and the following year‟s tuition by July 5. On March 19, St. Albans
received a check for $2,000 from A.B.S.‟s step-grandmother. Appellant approved
that the check be applied to payment of outstanding tuition to ensure that A.B.S.
could finish the 2009-10 school year. Consequently, St. Albans School agreed to
refrain from expelling A.B.S.; it also agreed to again modify the deadline for
payment, upon receipt by April 8 of a letter on behalf of the estate confirming that
settlement had been reached and that the estate would pay the remaining 2009-10
tuition ($15,990) by April 13, and the 2010-11 tuition (less any choir stipend and
financial aid) by July 5. On March 25, appellant asked to meet with Parker to
discuss additional flexibility in the payment schedule due to further delay in the
probate proceedings. Appellant provided a copy of appellant‟s settlement
5
agreement with the estate, which provided for payment of the outstanding tuition,
and the following year‟s tuition by the dates set by St. Albans School. He also
attached a copy of a letter from the estate‟s attorney setting out the steps necessary
to obtain court approval and implement the settlement.2 St. Albans School
remained firm, however, and on April 1, Parker informed appellant that A.B.S.
would not be able to return for the 2010-11 school year if the tuition (for both
2009-10 and 2010-11) was not paid in accordance with the previously established
timetable.
On April 2, appellant wrote a letter to Wilson, in which he reprised the
situation and the impossibility due to legal requirements in the probate proceeding
of a payment from his father‟s estate by the deadlines in Parker‟s letter.
“[I]nvoking the last available option to me,” appellant stated that he would institute
litigation if St. Albans School did not agree “to wait the 45 or 50 days it will take
to get the Florida Probate Court‟s approval for the payments that are due St.
Albans.” He attached a copy of the proposed complaint naming the School, the
2
In the letter, the estate‟s attorney noted that “there are a number of persons
who must sign the agreement before we have an agreement” and several motions
that had to be filed in court before there could be a final order approving the
settlement. Counsel added that “I personally will make it a priority to move the
process along and hopefully reach the point of the fully executed and court-
approved agreement. You however will need to be the person who communicates
with St. Albans and lets them know where the process stands.”
6
National Cathedral and PECF as defendants that, appellant said, would “open a
Pandora‟s box of legal issues.” On April 15, Parker responded on Wilson‟s behalf,
stating that although A.B.S. would be permitted to complete the year, “[i]n light of
the fact that the deadline for paying your son‟s long past-due tuition has come and
gone,” A.B.S. could not return for the following school year. On April 22, the
Director of Music of the National Cathedral notified appellant that if A.B.S. was
no longer enrolled at St. Albans School, he could not continue as a Boy Chorister
the following term.
On April 6, appellant filed the complaint he had previewed to Wilson in the
Superior Court, raising several claims for declaratory judgment and damages
related to the tuition dispute with St. Albans School; he filed an amended
complaint on May 21. On May 27, appellees answered and filed a counterclaim
seeking the balance of unpaid tuition for the 2009-10 school year and attorney‟s
fees. On September 29, appellant moved to amend his first amended complaint to
add a new count, which the trial court denied on June 1, 2011. Appellant and
appellees each filed two motions for partial summary judgment. The trial court
denied appellant‟s motions for summary judgment and granted appellees‟ motions
for summary judgment, with the result that appellant‟s complaint was dismissed
and appellees‟ counterclaim for unpaid tuition was granted. The trial court entered
its final Order of Judgment on April 7, 2014, in which it granted attorney‟s fees to
7
appellees. Appellant filed a timely notice of appeal.
II. Analysis
Appellant raises a number of issues on appeal, which we have grouped into
categories: procedural claims, summary judgment, and judicial bias.
A. Procedural Claims
1. Amendment to Complaint
Appellant contends that the trial court erroneously denied his request to
amend his First Amended Complaint to add a claim for negligent infliction of
emotional distress, which he argues only became legally possible following this
court‟s decision in Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 816 (D.C.
2011) (en banc).
We review a trial court‟s denial of a motion to amend a complaint for abuse
of discretion. Taylor v. D.C. Water & Sewer Auth., 957 A.2d 45, 51 (D.C. 2008).
Once a responsive pleading has been served, a party may amend a pleading only by
consent of the adverse party or with leave of the court, which must permit the
amendment if “justice so requires.” Id. (quoting Sherman v. Adoption Ctr. of
8
Washington, Inc., 741 A.2d 1031, 1037 (D.C. 1999)). In exercising discretion, the
trial court considers several factors: “(1) the number of requests to amend made by
the movant; (2) the length of time the case has been pending; (3) bad faith or
dilatory tactics on the part of the movant; (4) the merit of the proffered pleading;
and (5) prejudice to the nonmoving party.” Id. (quoting Sherman, 741 A.2d at
1038).
The trial court did not abuse its discretion in denying appellant‟s motion to
amend because it considered “the merit of the proffered pleading” and properly
concluded that appellant‟s proposed claim for negligent infliction of emotional
distress did not have merit. In Hedgepeth, we articulated the elements of a claim
for negligent infliction of emotional distress where the allegedly injured person
(here, A.B.S.) was not in the “zone of physical danger” that had previously been a
required element of the cause of action. 22 A.3d at 799-800. To make out a claim
under the principles laid out in Hedgepeth, appellant must establish that “(1)
[appellees had] a relationship with [A.B.S.], or [had] undertaken an obligation to
[A.B.S.], of a nature that necessarily implicates [A.B.S.‟s] well-being, (2) there is
an especially likely risk that [appellees‟] negligence would cause serious emotional
distress to [A.B.S.], and (3) negligent actions or omissions of [appellees] in breach
of that obligation have, in fact, caused serious emotional distress to” A.B.S. Id. at
810-11.
9
Appellant‟s proposed amended complaint failed to allege facts necessary to
satisfy these required elements. There is no allegation to support the first prong:
that appellees had the type of relationship with A.B.S. or had undertaken an
obligation to A.B.S. that necessarily implicated his emotional well-being, as
required by Hedgepeth. This is a determination of law for the court. See id. at
812-15 & n.39. The relationship between a student and his school or the musical
director of his choir program is not enough, without more, to impose the predicate
duty of care for a claim of negligent infliction of emotional distress. Moreover, in
this case, the decision not to permit A.B.S. to re-enroll for 2010-11 that appellant
claims was negligent and injured his son was taken by appellees pursuant to the
2009-10 enrollment contract appellant signed. Even though the existence of a
contract between the parties does not automatically disqualify a claim in tort for
negligence, contractual terms nonetheless govern the contracting parties‟
respective rights and responsibilities. See Hedgepeth, 22 A.3d at 816 n.42. The
enrollment contract at issue in this case expressly disallows “special, incidental or
consequential damages arising out of . . . any suspension or dismissal of the
student, regardless of any notice of such damages.” In addition, the proposed
amendment to the complaint does not allege facts to support serious emotional
distress of the type and degree required to sustain an action for negligent infliction
of emotional distress, even if we assume that A.B.S. would have been
10
understandably disappointed and hurt when he was unable to re-enroll at St.
Albans School and continue to sing in the choir.3 See id. at 817 (referring to
“serious and verifiable” emotional distress that is “acute, enduring or life-
altering”). For these reasons, the trial court did not abuse discretion in denying
appellant‟s motion to amend the complaint to add a claim for negligent infliction of
emotional distress.
2. Discovery
Appellant contends that the trial court also abused its discretion in limiting
his ability to conduct discovery. Appellant filed a motion to compel production of
“[a]ll Documents relating to the application for financial aid to Defendant St.
Albans School on behalf of each student in Forms A, B, C, I and II for the school
3
In an affidavit, appellant states that A.B.S. was deeply troubled about the
prospect of not being able to finish the chorister program and was “emotionally
traumatized . . . by [that] prospect. . . . and has suffered . . . as a result of the hostile
chorister environment” that was created once it was known he would not be
returning as a Boy Chorister. Specifically, appellant states that once, during a
performance, the sheet music was taken from A.B.S. and he was forced to sit out
the service while the other boys continued; A.B.S. was denied solo performances
with “full knowledge” that doing so would dishearten him; the appointment of
another Form A student as Head Chorister was announced with knowledge that it
“would be used—and was used—to humiliate A.B.S. by his peers.” According to
appellant, these actions evidenced “a pattern and practice of intentionally
undermining A.B.S.‟s self-confidence and worth by creating a hostile Chorister
environment.”
11
years 2008-2009 and 2009-2010 with redactions of identifying personal
information.” Appellees refused to comply on the ground that the documents
requested were irrelevant and production would be unduly burdensome. The trial
court denied appellant‟s motion, concluding that (1) the financial aid documents
concerning other students were not reasonably calculated to lead to the discovery
of admissible evidence concerning the promises exchanged between appellant and
appellees with respect to financial assistance for A.B.S., and (2) production of the
requested documents would be unduly burdensome to appellees even if identifying
information were redacted.
To warrant reversal of the trial court‟s denial of a motion to compel
discovery, the movant must show both that the trial court abused its discretion and
that the denial caused prejudice. See Franco v. District of Columbia, 39 A.3d 890,
896 (D.C. 2012). A party is entitled to discover relevant admissible evidence and
relevant information that “appears reasonably calculated to lead to the discovery of
admissible evidence.” Super. Ct. Civ. R. 26 (b)(1). A trial court has broad
discretion in considering motions to compel discovery and may weigh a variety of
factors in reaching a decision. See Kay v. Pick, 711 A.2d 1251, 1256 (D.C. 1998).
A request may be denied if it is overly broad or is “not warranted by [the] facts and
circumstances of” the case. Phelan v. City of Mount Rainier, 805 A.2d 930, 942-
44 (D.C. 2002). This court will reverse a trial court‟s decision only if it is “clearly
12
unreasonable, arbitrary, or fanciful.” Kay, 711 A.2d at 1256.
Appellant argues that the trial court‟s decision was “unreasonable and
arbitrary” because relevancy, for discovery purposes, is construed “most liberally,”
citing Dunn v. Evening Star Newspaper Co., 232 A.2d 293, 295 (D.C. 1967), and
the financial aid documents he requested would help prove that, contrary to
representations about the manner in which all students, including choristers, would
be treated with regard to financial aid, “it was the practice of St. Albans School to
not grant financial aid to Boy Choristers in the same amounts that non-Boy
Choristers received.” Appellant argues that the financial aid documents of other
students are relevant to his claim that St. Albans School made four
misrepresentations: (1) every student admitted to St. Albans School would be able
to attend regardless of his family‟s financial situation; (2) a family‟s financial
situation would not prevent a student from attending; (3) twenty-seven percent of
students received financial aid, with an average amount of $21,053 in aid; and (4)
the National Cathedral would pay choristers a stipend of forty-five percent of the
annual tuition. Had St. Albans School provided to A.B.S. the “average” amount of
aid plus the forty-five percent chorister stipend, A.B.S.‟s tuition would have been
fully covered. Instead, appellant argues, A.B.S. was “punished” for being a Boy
Chorister because the stipend he received for his chorister duty was less than had
been represented and was taken into account in determining the amount he would
13
receive in financial aid. Appellant also argues that appellees offered no proof that
production of the financial aid documents would be unduly burdensome.
We conclude that the trial court did not abuse discretion in denying
appellant‟s motion to compel discovery of other students‟ financial aid documents.
Even assuming that the records or derivative evidence would be admissible,
appellant does not explain how these documents would support his claim that
A.B.S. was “punished financially” because his stipend as a Boy Chorister was
taken into account in evaluating his application for financial aid. The financial aid
documents appellant sought cannot prove that A.B.S. was “penalized” because,
although appellant argues to the contrary, there is no admissible evidence that St.
Albans School promised him that the chorister stipend would not be considered in
awarding financial aid, see infra Part B.3.b (noting that appellant‟s evidence of this
assertion is inadmissible hearsay). In fact, the evidence in the record is to the
contrary as appellees have provided evidence, through the affidavit of the Director
of Finance at St. Albans School, that “all sources of tuition payment, including
chorister scholarships” are considered when reviewing financial aid applications,
such that all families were treated the same in determining the basis on which
financial aid awards were calculated. In short, the applications for financial aid
and awards to other students would not prove or lead to evidence that A.B.S. was
penalized and not treated like other students because his chorister stipend was
14
considered a source of tuition payments in the evaluation of his request for
financial aid.
Additionally, there is scant reason to believe that the requested financial aid
documents would support appellant‟s claim that four specific misrepresentations
were made to him. Appellant‟s first two alleged misrepresentations are essentially
the same: that St. Albans School falsely represented that the family‟s financial
situation would not affect A.B.S.‟s ability to attend St. Albans School once he was
admitted. It is difficult to see how financial aid records that pertain to other
students who were already attending the school would shed light on the alleged
falsity of this statement as it pertained to A.B.S.‟s family‟s financial situation.
Appellant‟s second alleged misrepresentation—that twenty-seven percent of St.
Albans School students received financial aid, with an average award of $21,053—
is irrelevant to his ultimate claim; regardless of whether the financial aid records
confirmed or discredited this figure, the average amount of financial aid awarded
to students with varying financial resources would not prove appellant‟s overall
claim of disparate treatment of A.B.S. because he was a Boy Chorister. Finally,
the financial aid records of other students would not prove that, as appellant
alleged, the National Cathedral falsely represented to appellant that A.B.S. would
receive forty-five percent of tuition as an annual stipend for being a chorister.
15
Considering the dubious relevance of the requested documents against the
burden of redacting and risk of exposing confidential financial information of
students‟ families in a small school community, the trial court did not abuse
discretion in denying appellant‟s motion to compel production of St. Albans
School‟s financial aid records.
B. Summary Judgment
1. Constitutionality of Summary Judgment
Appellant makes a frontal challenge to summary judgment, contending that
it is a denial of the constitutional right to a jury trial. His argument is that because
a jury has the right to determine “both law and fact” in civil trials, summary
judgment, as a means of final adjudication, is unconstitutional under the Seventh
Amendment. Appellant is wrong about the role of the jury and his legal argument
is without merit.4
“[T]he constitutionality of summary judgment has long been settled” by the
Supreme Court. Mixon v. Wash. Metro. Area Transit Auth., 959 A.2d 55, 58 (D.C.
4
Appellant‟s constitutional challenge is at odds with his trial strategy, as he
sought summary judgment on his claims against appellees.
16
2008) (citing Sartor v. Ark. Nat. Gas Corp., 321 U.S. 620, 627 (1944), and Fidelity
& Deposit Co. v. United States, 187 U.S. 315, 320 (1902)). The jury is a finder of
fact; it does not determine the law. The jury is charged with applying the law, as
instructed by the judge, to the facts found by the jury. Consequently, if there is no
material fact in dispute, the parties do “not suffer injury to any interest protected by
the Seventh Amendment.” Id.An appellate court reviews the trial court‟s grant of summary judgment de
novo, using the same standard the trial court uses to evaluate the motion. See
Young v. U-Haul Co. of the District of Columbia, 11 A.3d 247, 249 (D.C. 2011).
Summary judgment is proper if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law.” Id. (quoting Bruno v. Western Union Fin. Servs.,
Inc., 973 A.2d 713, 717 (D.C. 2009)); Super. Ct. Civ. R. 56 (c). The movant has
the initial burden to demonstrate the absence of a genuine issue of material fact,
but once the movant has done so, the burden shifts to the non-movant to show a
factual dispute, by presenting admissible evidence of a prima facie case to support
his cause of action. See id. Here, the trial court did not deprive appellant of his
constitutional right to a jury trial because, as we discuss infra, there were no
material facts in dispute and appellees were entitled to summary judgment as a
17
matter of law.
2. Appellant’s Claims for Declaratory Judgment
a) PECF’s Corporate Status
Appellant contends that the trial court was without authority to enforce the
payment provision in the 2009-10 re-enrollment contract because PECF is not
validly incorporated and therefore its actions, being ultra vires, have no legal
effect. His argument is that because PECF was originally chartered by Congress
for the purpose of “promot[ing] religion,” its government charter is prohibited by
the Establishment Clause of the First Amendment, and, a fortiori, Congress did not
have the authority to create PECF. The trial court denied appellant‟s first motion
for partial summary judgment, which sought to establish that PECF was not validly
incorporated, and granted appellees‟ motion for summary judgment on that claim,
concluding that no issue of material fact existed regarding PECF‟s incorporation
status and that appellees were entitled to judgment as a matter of law on that issue.
The trial court did not err in granting summary judgment to appellees on the
issue of PECF‟s incorporation status because the evidence of record establishes
that PECF is properly incorporated as a nonprofit corporation under the law of the
District of Columbia. There is therefore no need to address appellant‟s First
18
Amendment challenge, based on PECF‟s original congressional charter. Although
PECF was originally chartered by Congress in 1893, Act of Jan. 6, 52 Cong. Ch.
20, 27 Stat. 414 (1893), the evidence of record is that it was re-incorporated in
1998 under the District of Columbia Nonprofit Corporation Act (Act), D.C. Code
§§ 29-401 et seq. (2012 Repl.).5 The Act allows for the incorporation of nonprofit
organizations for “any lawful purpose,” D.C. Code § 29-403.01, including
religious organizations or organizations with religious purposes. D.C. Code § 29-
401.02 (4) & (32); -403.01.6 Once the articles of incorporation are filed, a business
entity is incorporated under the Act. D.C. Code § 29-402.03 (b) (“The filing of the
articles of incorporation . . . is conclusive proof that the incorporators satisfied all
conditions precedent to incorporation . . . .”). Appellees submitted Parker‟s
affidavit, dated April 28, 2010, which attested to PECF‟s incorporation under the
Act in 1998 and attached PECF‟s Certificate of Acceptance of the terms of the
5
At the time PECF incorporated under District of Columbia law, the Act
was codified at D.C. Code §§ 29-301.01 et seq. (2001 & 2007 Supp.). The Act
has since been amended and recodified at D.C. Code §§ 29-401 et seq. (2012
Repl.). For ease of reference, we use the current codification where it is
substantively unchanged with respect to the relevant provisions cited.
6
Appellant makes no argument that the Act‟s provisions for religious
organizations violate the First Amendment‟s Establishment Clause. See
Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 653
(1980). (“[A] legislative enactment does not contravene the Establishment Clause
if it has a secular legislative purpose, if its principal or primary effect neither
advances nor inhibits religion, and if it does not foster an excessive government
entanglement with religion.”).
19
Act.7 Appellant has not presented evidence controverting that PECF is
incorporated under the Act. Consequently, the evidence of record supports that
PECF is a valid District of Columbia nonprofit corporation. The trial court
therefore properly granted summary judgment in favor of appellees because there
was no disputed issue of fact regarding PECF‟s corporate status, and appellees
were entitled to judgment as a matter of law on the question of whether they may
enter into and enforce contracts.8 See D.C. Code § 20-403.02 (2012 Repl.) (setting
out that powers of nonprofit corporation are “the same powers as an individual to
do all things necessary or convenient to carry out its affairs”).
b. Harriet Lane Johnston’s Bequest
Appellant contends that St. Albans School was required to permit choristers
to attend the school without paying tuition, pursuant to the bequest of Harriet Lane
7
In 1998, the Act provided that upon the issuance of a Certificate of
Acceptance, a corporation “shall be entitled to and be possessed of all of the
privileges and powers and franchises and be subject to all of the provisions of this
chapter as fully and to the same extent as if such corporation had been originally
incorporated under this chapter. . . .” D.C. Code § 29-599.6 (1998) (repealed
2012).
8
We also question whether appellant has standing to challenge PECF‟s
actions as ultra vires; appellees, however, have not made this argument. See D.C.
Code § 29-403.04 (prohibiting challenges to validity of nonprofit corporation‟s
actions as ultra vires except by certain specified individuals, e.g., the Attorney
General, directors, members of the corporation).
20
Johnston that provided for the establishment of the School. Appellant contends
that the 1903 Codicil to Ms. Johnston‟s Will requires the School to offer free
education to all choir boys that serve the National Cathedral. The Codicil states:
Whereas, by a codicil to my said will, the said codicil
being dated June tenth, 1899, I have bequeathed to the
Protestant Episcopal Cathedral Foundation the sum of
two hundred thousand dollars ($200,000.), upon certain
trusts in said codicil set forth; Now I hereby modify said
bequest by increasing the same to the sum of three
hundred thousand dollars ($300,000.) and by these
further provisions, namely: That not more than one half
of the said sum, that is not exceeding one hundred and
fifty thousand dollars ($150,000) shall be used for
construction of the building, which is to be known as the
“Lane Johnston Building” the site for which and the
necessary appurtenant grounds for which are to be
provided by the said Protestant Episcopal Cathedral
Foundation, and the balance of said sum of three hundred
thousand dollars ($300,000.) not used for the
construction of the said building shall be invested by said
Protestant Episcopal Cathedral Foundation as an
Endowment fund to be known as the “Lane Johnston
Fund” and the income to be used for the maintenance of
said school for boys. While not restricting the general
objects of said School it is my wish that the said school
shall be so conducted and the said Fund so applied as
specifically to provide for the free maintenance,
education and training of Choir-boys, primarily those in
the service of the Cathedral. Reposing special
confidence in the discretion in this regard of the Rev.
Philip M. Rhinelander, I further direct that he shall have
charge and supervision of the selection of the site for and
the construction of the said School building and of the
organization and management of the School, but in the
event of his death or inability or declination to act the
whole of said matters are committed to the said
21
Protestant Episcopal Cathedral Foundation.
(Emphasis added to highlight provision relied upon by appellant). The trial court
denied appellant‟s motion for partial summary judgment, and granted appellee‟s
motion, on the interpretation and effect of Ms. Johnston‟s Codicil, concluding that
the language in the Codicil was precatory rather than mandatory. Appellant argues
that the trial court‟s conclusion that the language of the Codicil was precatory
misinterprets Harriet Lane Johnston‟s intent.
To determine the testator‟s intent, the court looks first to the language of the
document; it will consider extrinsic evidence only if the language is ambiguous.
See Davis v. Davis, 471 A.2d 1008, 1009 (D.C. 1984) (holding that trial court
properly construed the language of the will as unambiguous and that extrinsic
evidence was therefore not necessary). The trial court considered only the
language of the document and did not find it to be ambiguous. Therefore, no
extrinsic evidence was considered. Appellant does not argue that the Codicil‟s
language is ambiguous and extrinsic evidence should have been considered. Thus,
as no issue was presented that required fact-finding by a jury, the matter was
properly considered for summary judgment. See Davis, 471 A.2d at 1009.
Interpretation of the language of a will within the four corners of the document, as
with interpretation of a contract, is a question of law for the court. See Wyman v.
22
Roesner, 439 A.2d 516, 523 n.6 (D.C. 1981). Thus, we review the court‟s
interpretation of the Codicil de novo.
Generally, a court will interpret a provision addressed to the executor of a
will as a mandatory directive concerning the disposition of the bequest, while
language presented as a “wish” directed to the devisees is merely precatory (i.e.,
the expression of a preference rather than a mandatory directive or command) and
does not control the disposition of the property. Davis, 471 A.2d at 1009; see also
Cabaniss v. Cabaniss, 464 A.2d 87, 91-92 (D.C. 1983) (noting that the nature of
the language—whether it was mandatory or precatory—is a factor the court uses to
determine if an individual intended to create a trust).
We agree with the trial court that the Codicil is unambiguous and precatory
with respect to Ms. Johnston‟s “wish” for the free education of choristers. As an
initial matter, in the portion of the Codicil on which appellant relies (highlighted
above) Ms. Johnston was addressing the devisee under the Will, PECF, rather than
the executor. Moreover, this section of the Codicil states how Ms. Johnston
“wish[es]” that the bequest be used by PECF in the operation of the school. The
language of the Codicil itself demonstrates that Ms. Johnston was capable of
distinguishing—and did distinguish—between precatory and mandatory language.
In comparison to the surrounding language in the Codicil and the rest of the Will,
23
the provision in the Codicil that refers to free education for choir boys is precatory.
For example, with regard to the increase in the bequest sum, the erection of the
building, the establishment of the school, and selection of the supervisor for the
building of the school, Ms. Johnston used clear mandatory language such as
“shall” and “I direct.” By contrast, the language in the clause concerning the “free
maintenance, education and training of Choir-boys” is preceded by the language “it
is my wish” and is further conditioned (“[w]hile not restricting the general objects
of said School”), signifying that PECF is to have discretion in how the bequested
funds are used in the operation of the school. It is thus apparent that although Ms.
Johnston‟s intent was to require that one half of the bequest be used to build the
school and the other half to maintain and operate the school, she expressed a
preference, if feasible in conjunction with the operation of the school, that choir
boys be able to attend without paying tuition. Similarly, the language of the rest of
Ms. Johnston‟s Will demonstrates measured and deliberate use of mandatory
language, see, e.g., Johnston Will at 9 para. 569 (using “I charge” and “shall”); 9
para. 57 (using “I direct” and “shall”); 11 para. 67 (using “[i]t is my will” and
“shall”), which contrasts with the use of other clearly conditional language in the
Will, see, e.g., id. at 3 para. 21 (using “upon condition that”), and the “wish”
9
Like the trial court, we refer to the numbered pages in the version of the
Will filed in the trial court, as well as the paragraph number, as counted by the trial
court.
24
language in the Codicil.
We agree with the trial court that the language of Ms. Johnston‟s bequest is
unambiguous and does not mandate that choristers attend St. Albans School
tuition-free.
c. Promise of choral stipend
Appellant‟s complaint alleged that “as an inducement to commit to the
Chorister program” appellees promised to pay forty-five percent of tuition at St.
Albans School if A.B.S. agreed to join the National Cathedral choir. The
complaint sought a declaratory judgment that appellees were bound by their
promise and had breached it when the chorister stipend was reduced to twenty-
eight percent in 2009-10. The trial court granted summary judgment to appellees
on this claim, ruling that appellant had not presented evidence that created a
question of fact as to whether such a promise was made and that the evidence
appellant had presented would not support a jury verdict in his favor.
Appellant contends that his affidavit suffices to defeat summary judgment.
In the affidavit appellant states that the National Cathedral‟s Music Director
Michael McCarthy promised a choral stipend at least in the amount of forty-five
25
percent of A.B.S.‟s tuition. The alleged promise took two forms, a letter dated
February 28, 2008, and an oral statement. This evidence is insufficient, as a matter
of law, to base a judgment for appellant. The letter to appellant from McCarthy
concerned the 2008-09 school year, and did not constitute a binding promise;
rather, McCarthy stated that, although the scholarship amounts had not been
determined, the National Cathedral hoped that the stipend would amount to forty-
five percent of that year‟s tuition. (“At the time of writing this letter the value of
the scholarship for 2008-2009 has not been confirmed. However, we are hopeful
that you should expect somewhere between 43% - 45% of the annual fees for St.
Albans School, as determined by the Cathedral.”). By its terms, McCarthy‟s letter
did not create a binding promise—but expressed a “hope”—that National
Cathedral would provide such a stipend, and made clear that the amount was yet
to be “determined by the Cathedral.” A.B.S. did, in fact, receive a stipend in that
range (forty-three percent) for the 2008-09 school year, and appellant makes no
claim with respect to the 2008-09 stipend. As appellant states in his affidavit of
July 28, 2010, the National Cathedral informed him in February of 2009 that the
chorister stipend for the 2009-10 school year would be reduced to twenty-eight
percent, which prompted appellant to apply for financial aid, which he received.
Appellant‟s statement that McCarthy also made an oral promise does not fill the
evidentiary gap. Appellant‟s affidavit of May 5, 2010, filed in opposition to
appellees‟ first motion for partial summary judgment alleges that McCarthy told
26
him “in the summer and fall of 2007 and the spring of 2008. . . that the Chorister
Stipend was presently 45% of the Defendant St. Albans School tuition and that it
was likely to increase.” This alleged statement arguably could be interpreted as
referring to future years. As with the letter, however, appellant‟s statement about
what McCarthy allegedly said is not a promise but a guess (or hope) about the
“likely” value of future stipends for choristers. Neither McCarthy‟s letter nor his
statement, or both together, would permit a reasonable jury to find that appellees
made a binding promise that A.B.S. would receive a stipend worth forty-five
percent of tuition each year he was a chorister. We, therefore, agree with the trial
court‟s grant of summary judgment to appellees on the claim of breach of
promise.10
3. Appellant’s Claims for Damages
a) Breach of implied covenant of good faith
Appellant contends that there were two disputed facts that prevented
10
We also doubt that appellant could prove that there was a breach. As
noted, A.B.S. received a choral stipend of forty-three percent of tuition for the
2008-09 school year. The following school year he received a choral stipend of
$8,907 plus $6000 in financial aid, which taken together, amounted to forty-five
percent of the $32,990 tuition for 2009-10. As we discuss infra at B.3.b., there is
no evidence to support appellant‟s claim that the stipend would not be considered
as part of a package of tuition assistance.
27
summary judgment for appellees on his claim that St. Albans School breached the
covenant of good faith implied in the 2009-10 re-enrollment contract: (1) St.
Albans School‟s reason for denying A.B.S.‟s re-enrollment for 2010-11, and (2)
whether the discretionary language of the 2009-10 re-enrollment contract is
unconscionable.
The first point is factually contested, appellant argues, because St. Albans
School provided conflicting testimony regarding the school‟s basis for denying
A.B.S. re-enrollment for the 2010-11 school year. Appellant contends that Parker
first stated in his April 27, 2010 affidavit that A.B.S. was not permitted to return
because of appellant‟s actions, which “made a positive and constructive
relationship impossible and that such a step would be in the school‟s best
interests.” Appellant then points to the June 10, 2010 deposition of headmaster
Wilson, in which he stated that the only reason that A.B.S. was not permitted to re-
enroll was because appellant failed to pay his tuition. Appellant argues that
Wilson then “changed his reason,” explaining in a supplemental affidavit, dated
August 31, 2010, that A.B.S. was not permitted to return both because of the
unpaid tuition and because of appellant‟s actions.
We disagree that the statements appellant identifies suffice to call into
question that St. Albans School could lawfully deny re-enrollment to A.B.S. We
28
note that as Wilson explained in his August 31 affidavit, the two reasons were
interrelated. Even if the statements reveal some ambiguity about the precise or
primary reason or reasons for the decision not to permit A.B.S.‟s re-enrollment,
that fact is not material to appellant‟s claim that the action was taken in bad faith
and therefore is insufficient to defeat summary judgment. The 2009-10 re-
enrollment contract required appellant to pay A.B.S.‟s tuition in full; failure to do
so constituted grounds for expulsion and denial of re-enrollment for the next
school year. St. Albans School also had the discretionary authority afforded to
Wilson under a separate provision of the contract to decline A.B.S.‟s re-enrollment
under certain circumstances. Whether St. Albans School had one or more grounds
for the denial of A.B.S.‟s re-enrollment is not material to appellant‟s claim for
breach of contract based on the implied covenant of good faith as both reasons
cited were grounded in the contract that appellant signed.
The implied duty of good faith imposes an obligation on a contracting party
not to “evade[] the spirit of the contract, willfully render[] imperfect performance,
or interfere[] with performance by the other party,” Allworth v. Howard Univ., 890
A.2d 194, 201 (D.C. 2006) (quoting Paul v. Howard Univ., 754 A.2d 297, 310
(D.C. 2000)), but it does not require a party to waive or rewrite the terms of the
contract. Here, in fact, St. Albans School accommodated appellant by not
exercising the option of expelling A.B.S. mid-year, accepting only a $2,000
29
payment to allow him to complete the school year, even though approximately half
of his tuition remained unpaid. Moreover, on at least three occasions, at
appellant‟s request St. Albans School extended the due date of the outstanding
tuition balance before finally deciding not to allow A.B.S. to re-enroll for the
following school year when the extended deadlines were not met. Appellant‟s
argument is essentially that St. Albans School should have continued to forbear,
especially once he provided evidence that he had reached a proposed settlement
with his father‟s estate that would cover A.B.S.‟s tuition. But the letter from the
estate‟s counsel he provided to the School pointed out that there were still a
number of further signatures required and steps to be taken before the settlement
received court approval. Although the situation looked promising, it was not a sure
thing. Appellant‟s argument that his inability to pay should have been foreseen
because he had advised the school that his personal financial situation was
precarious,11 ignores that appellant was obviously aware of his own straitened
financial circumstances when he signed the contract agreeing to pay his son‟s
tuition. On this record, no reasonable jury could find that the school acted in bad
faith, arbitrarily or unreasonably. Id. at 202.
Appellant also contends that the “unbridled” discretion to expel or deny re-
11
In the financial aid application filed in 2009, appellant indicated he had
no income and that his wife had a significant decrease in her income.
30
enrollment to A.B.S. granted to the St. Albans School headmaster under the
contract is unconscionable because the object of the contract was a child, and it
allowed appellees to “economic[ally] exploit[]” A.B.S.‟s service to the National
Cathedral choir and harm his “mental, spiritual, moral and social development by
denying him the right to complete his promised pilgrimage,” i.e., his three-year
participation as a chorister in the National Cathedral. Appellant also argues that St.
Albans School used the discretionary clause to prevent appellant from exercising
his First Amendment right to petition for judicial relief.
Whether the re-enrollment contract contains unconscionable provisions is
not a material question of fact in dispute. As a threshold matter, we reiterate that
St. Albans School had grounds to deny A.B.S.‟s re-enrollment for non-payment of
tuition as the contract provides for expulsion or non-enrollment of students “whose
tuition and fees are not paid as scheduled,” independent of the further discretion
provided for in the contract. Moreover, the contract does not vest “unbridled
discretion” in the headmaster: a student cannot be expelled or refused re-
enrollment for any reason; rather, the contract permits such action “if the
Headmaster concludes, in his sole and absolute discretion, that the actions of the
student‟s parent (or guardian) make . . . a positive and constructive relationship
impossible or otherwise interfered with the school‟s accomplishment of its
mission” or if “such action would be in the best interest of the student or the
31
school.” In this case, the school has cited specific examples to support the denial
of A.B.S.‟s re-enrollment based on appellant‟s conduct: that appellant “falsely led
the school to believe that payment of the tuition for the 2009-10 school year was
imminent”; that appellant responded to the school‟s final deadline for resolving the
unpaid tuition “with angry words and by threatening the school with litigation”;
and that appellant “threatened that, unless the school acceded to his demands, he
would challenge whether the Protestant Episcopal Cathedral Foundation was
properly chartered and he would embarrass the school with adverse publicity.”
The cited reasons were specific and not fanciful; they are supported by the record
in this case, as appellant in fact followed through: he sued and, among other
things, challenged PECF‟s corporate status, a challenge that, as we have discussed,
is totally without merit. Appellant‟s First Amendment argument concerning his
right to seek judicial redress is also without merit, as the Constitution imposes
limits on the state or state agents, not private parties such as appellees. See Lloyd
Corp. v. Tanner, 407 U.S. 551, 567 (1972). Moreover, appellant‟s actions in the
trial court and in this court belie his claim that his desire to petition for judicial
relief has been stymied by appellees.
b) Misrepresentation
32
In his complaint for damages, appellant claims that appellees made several
misrepresentations that induced him, in 2008, to sign a multi-year commitment that
A.B.S. would fulfill his duties as a Boy Chorister at the National Cathedral through
the eighth grade, which required that he also be enrolled as a student at St. Albans
School. Specifically, appellant claims that the following representations were
made to him and were false: (1) that each chorister would receive a stipend worth
forty-five percent of tuition at St. Albans in recognition of his time commitment to
the National Cathedral choir; (2) that this stipend would not be considered by St.
Albans School in arriving at awards for financial aid; (3) that a family‟s financial
situation would not prevent a student who has been admitted from attending St.
Albans School; and (4) that financial aid awards are calculated using a
computerized system that treats each family the same in assessing their
demonstrated need.
In granting summary judgment for appellees on the claim of
misrepresentation, the trial court concluded that even assuming that the false
statements appellant alleged were made, they would not support an actionable
claim for misrepresentation. The trial court reasoned that appellant was already
aware of the amounts that A.B.S. would receive in the form of a choir stipend and
financial aid for the 2009-10 school year and, therefore, could not have reasonably
relied on the alleged misrepresentations when he signed the enrollment contract for
33
that year, in which he agreed to pay the tuition balance. On appeal, appellant
argues, and we agree, that the trial court‟s temporal focus was too narrow. If all
that were at issue in the litigation with respect to the misrepresentation claims were
a defense to appellees‟ counterclaim for the 2009-10 tuition, we would agree with
the trial court‟s reasoning. But as appellant points out, his complaint took a
broader view and was grounded on his reliance on those misrepresentations when
he made the multi-year commitment in 2008, before the initial enrollment of
A.B.S. at St. Albans School for the fifth grade, which required that A.B.S. remain
enrolled at St. Albans School through the eighth grade as a condition of A.B.S.‟s
participation in the National Cathedral choir.12 Appellant thus claims economic
12
The Eighth Claim of appellant‟s complaint, seeking damages for
misrepresentation, alleged as follows:
46. Defendants made false representations to Plaintiff, to
wit, that (i) in recognition of the time commitment
required of Boy Choristers, a choral stipend in the
amount of 45% of the Defendant St. Albans School
tuition would be given to each Boy Chorister, (ii) that the
Chorister Stipend is not consider[ed] by Defendant St.
Albans School in making the Financial Aid
determination, (iii) a family‟s financial situation would
not prevent a student from attending St. Albans School
and (iv) St. Albans School‟s Financial Aid Committee
awarded financial aid based upon the review of a
computerized systematic analysis of the family‟s
financial situation and treated each family the same.
(continued . . .)
34
and personal injury to him and his son as a result not only of the tuition dispute for
2009-10, but also the subsequent disruption of A.B.S.‟s choral and school
experience when he was not permitted to return to St. Albans School for the 2010-
11 and subsequent school years, which rendered him ineligible to complete the
choir commitment.
Nonetheless, even with that broader understanding of the scope of
appellant‟s misrepresentation claim, we conclude that summary judgment was
properly granted to appellees. See Young, 11 A.3d at 249 (noting that on appeal of
summary judgment, review is de novo, taking into account whether “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law” (quoting Bruno v. Western
Union Fin. Servs., Inc., 973 A.2d 713, 717 (D.C. 2011)); Super. Ct. Civ. R. 56 (c).
We come to this conclusion based on application of the substantive legal elements
_________________________
(. . . continued)
47. The aforementioned representations were material
facts upon which Plaintiff relied in enrolling his son in
the multi-year Chorister Program and St. Albans School.
48. Defendant St. Albans School, with knowledge of
falsity of the aforementioned representations and with the
intent to deceive Plaintiff, made the aforementioned
representations.
35
of fraudulent misrepresentation and heightened evidentiary standard that apply to
such a claim.
It is well established that to succeed on a claim of fraudulent
misrepresentation, the claimant must prove six elements: (1) that a false
representation was made, (2) in reference to a material fact, (3) with knowledge of
its falsity, (4) with intent to deceive, and (5) action taken in detrimental reliance
upon the representation. See Virginia Acad. of Clinical Psychologists v. Grp.
Hospitalization & Med. Servs., Inc., 878 A.2d 1226, 1233 (D.C. 2005) (citing
Bennett v. Kiggins, 377 A.2d 57, 59 (D.C. 1977)). Moreover, to be actionable,
reliance on the misrepresentation must (6) have been justifiable. See Sundberg v.
TTR Realty, LLC., 109 A.3d 1123, 1131 (D.C. 2015) (“A misrepresentation is
„material‟ if it would be „likely to induce a reasonable person to manifest his
assent, or if the maker knows that it would be likely to induce the recipient to do
so.‟” (quoting Saucier v. Countrywide Home Loans, 64 A.3d 428, 438-39 (D.C.
2013))). To prevail at trial on a claim of fraudulent misrepresentation, the claimant
has the burden to prove the elements by a heightened evidentiary standard, clear
and convincing evidence. Bennett, 377 A.2d at 59.13
13
Special pleading requirements apply to claims of fraudulent
misrepresentation. Because fraud is never presumed, it must be pled with
particularity. See Virginia Acad. of Clinical Psychologists, 878 A.2d at 1233;
(continued . . .)
36
At the summary judgment stage, the trial court does not make credibility
determinations or weigh the evidence, which are functions reserved for the trier of
fact. But to survive a motion for summary judgment, there must be “at least
enough evidence to make out a prima facie case in support of” the nonmovant‟s
position if credibility determinations and inferences were drawn in the claimant‟s
favor. Id. (quoting Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1281-82
(D.C. 2002)). “And of particular relevance here, „[i]f the claim must be
demonstrated by heightened proof to succeed, the nonmovant claimant must
produce more substantial evidence to successfully oppose summary judgment.‟”
Id. (quoting 11 MOORE‟S FEDERAL PRACTICE § 56.03[4] (3d ed. 2005)); see
Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986) (noting that “inquiry
_________________________
(. . . continued)
Super. Ct. Civ. R. 9 (b) (“In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity. Malice, intent,
knowledge and other condition of mind of a person may be averred generally.”).
To comply with the more rigorous pleading requirement of Rule 9 (b), a complaint
must allege “such facts as will reveal the existence of all the requisite elements of
fraud. Allegations in the form of conclusions on the part of the pleader as to the
existence of fraud are insufficient.” Bennett, 377 A.2d at 59-60. Rule 9 (b)‟s
“particularity” standard requires that the complaint include the time, place and
content of the false representations, the fact misrepresented, and what the
defendant gained (or the plaintiff lost) as a result of the fraud. United States ex rel,
Totten v. Bombardier Corp., 286 F.3d 542, 551-52 (D.C. Cir. 2002). Where the
complaint names a number of defendants, Rule 9 (b) requires that the identity and
role of individual defendants alleged to have made false representations be
specified in the complaint. See Luce v. Edelstein, 802 F.2d 49, 54 (2d Cir. 1986).
37
involved in a ruling on a motion for summary judgment . . . necessarily implicates
the substantive evidentiary standard of proof that would apply at a trial on the
merits”). If there is a genuine dispute on a material fact, summary judgment
cannot be granted. However, for there to be a “genuine” dispute, the evidence
must be “such that a reasonable jury could return a verdict for the nonmoving
party.” Id. (quoting Super. Ct. Civ. Pro. R. 56(c)) (cited in Lowry v. Glassman,
908 A.2d 30, 36 (D.C. 2006)).
Appellant argues that several items of evidence created genuine disputes of
material fact requiring resolution by the fact-finder such that his claim of
misrepresentation should have survived summary judgment. These include his
August 13, 2011, affidavit in support of his opposition to appellees‟ motion for
summary judgment14; the St. Albans School website; and statements made by
14
Appellant‟s August 13, 2011, affidavit states, at ¶ 17:
The St. Albans School web page upon which I
relied in enrolling my son states: “St. Albans wants to
ensure that every boy admitted to the school knows that
he will have the opportunity to attend, regardless of his
family‟s financial situation.” It was affirmative[ly]
represented to me by Mike McCarthy, Defendant‟s
Musical Director[,] that in recognition of the time
commitment required of Boy Choristers, a choral stipend
at least in the amount of 45% of the Defendant St. Albans
School tuition would be given to each Boy Chorister and
that the rate was likely to rise. Additionally, the
(continued . . .)
38
Music Director McCarthy in his February 28, 2008, letter and in his July 13, 2010
deposition. Having considered this evidence with respect to each of the specific
claims of misrepresentation that appellant has made, and assuming that the jury
would credit appellant‟s statement and draw reasonable inferences in appellant‟s
favor, we conclude that the evidence falls short. In other words, there is no
“genuine” dispute of material fact. Anderson, 477 U.S. at 248.
The 45% Choral Stipend
Appellant argues that his affidavit and McCarthy‟s February 28, 2008, letter
concerning the amount of the choral stipend suffice to create a genuine issue of
material fact that defeats summary judgment on his claims of misrepresentation
regarding the amount of future choral stipends. Consistent with our earlier analysis
of appellant‟s claim of breach of promise, we conclude that McCarthy‟s statement
_________________________
(. . . continued)
Defendants represented that the Chorister Stipend was
not consider[ed] by St. Albans School in making the
Financial Aid determination. Finally, Defendants
represented that St. Albans School‟s Financial Aid
Committee awarded financial aid based upon the review
of a computerized systematic analysis of the family‟s
financial situation and treated each family the same.
Each of these representations upon which I relied turned
out to be false and were known to be false when made by
the Defendants.
39
regarding the choral stipend for the 2008-09 school year did not constitute a
promise that A.B.S. would receive a stipend worth at least forty-five percent of
tuition every subsequent year he remained a chorister. Even read in the light most
favorable to appellant, McCarthy‟s statement in the letter is qualified as a hope and
appellant‟s affidavit makes clear that the alleged statement (to the extent McCarthy
made a statement beyond what was in the letter) related to a future occurrence that
McCarthy thought was “likely.” Given those important qualifications, on the
evidence of record, no reasonable jury could find for appellant on this claim of
misrepresentation. See Carleton v. Winter, 901 A.2d 174, 178 (D.C. 2006) (“[A]
prophecy or prediction of something which it is merely hoped or expected will
occur in the future is not actionable upon its nonoccurrence.” (quoting Bennett,
377 A.2d at 61)).
The Chorister Stipend and Financial Aid
The complaint also claims that appellees told him that the chorister stipend
would not be considered in making financial aid determinations and that this was
false because in making a financial aid award to A.B.S. for the 2009-10 school
40
year, St. Albans School in fact took into account the $9000 stipend, plus a $6000
financial aid to reach the approximately $15,000 of demonstrated financial need.15
To defeat summary judgment, appellant relied on the statement in his
affidavit that appellees “represented that the Chorister Stipend was not
consider[ed] by St. Albans School in making the Financial Aid determination.”
See n.14 supra.16 Viewing the affidavit as a proffer of what appellant‟s testimony
would be at trial and assuming further, as we must, that a jury would credit
appellant‟s statement that such a statement was made to him, we conclude that
appellant‟s testimony would not suffice to permit a reasonable jury to find that
appellant proved, by clear and convincing evidence, that he reasonably relied on
the alleged misrepresentation. The reasonableness of a person‟s reliance on an
asserted false statement is a fact-intensive inquiry that is evaluated “on a case-by-
15
Appellees do not dispute that the chorister stipend is taken into account.
To the contrary, in his July 13, 2010 deposition, Parker stated that it was the policy
of St. Albans School “to consider the chorister stipend, when making financial
awards.”
16
Relatedly, appellant argues that McCarthy‟s statement that in appreciation
for their efforts, boy choristers are given scholarships would be a misstatement if
the stipends are taken into account in considering financial aid awards. Appellant
also argues that the chorister stipends are “earned” by the Boy Choristers who must
devote many hours of rehearsal and performance for the National Cathedral choir,
which derives revenue from their performances. These arguments constitute
reasons why the stipend should not be taken into account in the financial aid
calculation, but they are not evidence that appellees misrepresented to appellant
that it would not be taken into account.
41
case basis based on all the surrounding circumstances.” AES Corp. v. Dow Chem.
Co., 325 F.3d 174, 179 (3d Cir. 2003) (quoted in Burman v. Phoenix Worldwide
Indus., 384 F. Supp. 2d 316, 329 (D.D.C. 2005)); see Hercules & Co. v. Shama
Rest. Corp., 613 A.2d 916, 933 (D.C. 1992) (reliance on representation must be
“objectively reasonable”); see also RESTATEMENT (SECOND) OF TORTS § 537
(1977) (reliance must be “justifiable”); id. at § 538 (whether reliance is justified is
a question of materiality which employs a reasonable person standard). Whether
there has been reasonable reliance is therefore usually a question for the jury,
unless reliance on the misrepresentation is precluded as a matter of law.17 But
even when there is no legal impediment to reliance, there must be some evidentiary
basis upon which the jury may determine whether the claimant‟s reliance was
justified. Moreover, the evidence must be sufficiently probative to permit a jury to
make the necessary finding by clear and convincing evidence. See Bennett, 377
A.2d at 59.
17
See, e.g., Williams v. District of Columbia, 902 A.2d 91, 96 (D.C. 2006)
(affirming grant of summary judgment where proof of reasonable reliance was
legally impossible); Hercules & Co., 613 A.2d at 927-29 (holding that complete
integration clause in contract made reliance on statement made outside of contract
legally irrelevant and could not be considered in support of claim of fraud in the
inducement).
42
In this case, the only evidence of record is appellant‟s affidavit concerning a
“misrepresentation” made by “defendants” that the choral stipend would not be
considered in making financial aid determinations. There is no specification at all
about the manner in which the alleged misrepresentation was made (e.g., was it
orally or in writing?), or about when it was made or the circumstances under which
it was made. Nor is there any specification as to whether one, two or all of the
defendants made the misrepresentation even though three separate operating
entities are named in the complaint as defendants (PECF, National Cathedral, and
St. Albans School). The individual who presumably made the false statement is
not identified, leaving no clue as to the person‟s authority to make the alleged
representation on behalf of any of the defendants. These factual details would be
critical to a jury‟s evaluation of the reasonableness of appellant‟s reliance on the
alleged statement as a credible representation binding any one of the defendants
with respect to the consideration of the chorister stipend in financial aid
determinations. Without such facts, the jury could only speculate.
There is no reason to expect (and appellant does not contend) that sufficient
evidence would have been presented if the case had been allowed to proceed to
trial. Indeed, the record supports the opposite inference. Appellees filed the
motion for summary judgment on the misrepresentation claim on August 4, 2011.
In opposing the motion, appellant referred only to his affidavit of August 13, 2011,
43
which contained the bare assertion that the misrepresentation had been made.
Appellant had already deposed National Cathedral music director McCarthy and
St. Albans School finance director Parker the previous year, on July 13, 2010.
Appellant‟s opposition did not rely on (or even refer to) their affidavits, which
clearly did not support appellant‟s claim that the representations appellant alleged
was made to him.18 Instead, appellant argued that the court should not decide the
summary judgment motion at that time because he needed to complete discovery,
18
The following exchange took place during the July 13, 2010, deposition
of McCarthy:
Q. [Appellant] Did you tell me or my ex-wife, that the
chorister stipend will be applied in some fashion, against
any financial aid[] request made at St. Albans School?
A. [McCarthy] I may or I may not have done that. I do
not know. But usually, the awards are made through St.
Albans School. So, as I understand it, if there is a
financial aid[] request which has been granted by the
school, then the chorister stipend is put to off-set that.
At most, this exchange established that appellant was not informed by
McCarthy that the stipend would be taken into account in the financial aid calculus.
But it does not support the opposite proposition that is the premise of appellant‟s
misrepresentation claim that he was affirmatively and falsely told that the chorister
stipend would not be taken into account.
In his July 13, 2010 deposition, Parker stated that although he did not know
whether the policy to consider chorister stipends in making financial aid
determinations was “communicated to the chorister parents,” he did know “that it
is communicated that the choir stipend is for the payment of tuition at St. Albans
School, and as such, the choir stipend is paid to the school, for the payment of
tuition.”
44
including the re-deposition of McCarthy “regarding tuition scholarships,” of Parker
regarding “the factual basis for denying all but $6000 to [A.B.S.] as financial aid
for the 2009-2010 school year,” and of Headmaster Wilson and others with whom
he consulted regarding the decision not to permit A.B.S. to re-enroll for the 2009-
10 school year. Appellant re-deposed Wilson and others concerning the re-
enrollment question but there is no indication in the record that he re-deposed
McCarthy or Parker, the persons he identified as relevant to the misrepresentation
claim, nor does appellant argue on appeal that he tried but was prevented from
deposing them anew. Thus, at the time the trial court granted summary judgment
on the misrepresentation claim on February 6, 2013, discovery had been completed
and the record was essentially the same as it was when appellees filed their motion
two years earlier, with a vague and general assertion in appellant‟s affidavit about
an alleged misrepresentation made by an undisclosed person on behalf of an
unidentified defendant and without further elaboration about time, place or context.
This does not begin to create a “genuine” issue of material fact for purposes of
Rule 56 (c). We conclude that appellant has not met his burden to counter the
motion for summary judgment with “significant probative evidence tending to
support the complaint so that a reasonable fact-finder could return a verdict for the
non-moving party.” Lowery, 908 A.2d at 36.
45
St. Albans School Website
In opposing summary judgment on his claim of misrepresentation,
appellant‟s affidavit stated that he relied on the statement on the school website
that “St. Albans wants to ensure that every boy admitted to the School knows he
will have the opportunity to attend, regardless of his family‟s financial situation.”
Appellant appears to interpret this statement to mean that A.B.S. should have
received (in addition to the chorister stipend) financial aid in whatever amount was
required to cover any tuition that his family was unable to pay.
Even if we assume that a jury were to credit appellant‟s statement that he
took notice of this statement on the website and that he understood and relied on
the statement as a blanket guarantee when he made the multi-year commitment in
2008, the question remains whether a jury could find, by clear and convincing
evidence, that such reliance was justified.
Appellant‟s complaint and affidavit quote the same single sentence which is
plucked from the St. Albans School website. A copy of the webpage itself,
however, is also of record. We must view the sentence appellant claims misled
him in the full context of the webpage to determine whether a jury could find that
appellant reasonably relied on the one sentence to mean that his son would be able
to continue to attend the school regardless of his family‟s changing financial
46
situation during the course of his enrollment at St. Albans School. The sentence
appellant quotes appears in a section of the website describing a fundraising
campaign:
In September 2006, St. Albans School began the
four-year public phase of the Centennial Campaign. Our
“case for support” outlines our goals and opportunities as
we move into our second century. St. Albans wants to
ensure that every boy admitted to the School knows he
will have the opportunity to attend, regardless of his
family‟s financial situation. For this reason, we remain
committed to a policy of meeting the full demonstrated
financial need of all students offered admission to our
School. Currently, approximately one out of four boys
receives scholarship assistance. In the last five years, the
average award has grown more than 58 percent. Looking
ahead, we must provide more students—including the
traditional middle class—with larger awards to continue
to attract and retain an academically superior and well-
rounded student body. The campaign goal for new
financial aid endowment is $4 million.
Viewed in context, we think it is clear that the sentence appellant identifies
as a misrepresentation is not, as appellant contends, a guarantee of 100% financial
support to any particular student throughout the course of his years at St. Albans
School, but rather an aspirational statement of the goal and purpose animating a
fundraising effort to ensure that St. Albans School will be able to attract and
accommodate students from a broader financial spectrum by meeting their “full
demonstrated financial need.” Appellees were entitled to summary judgment on
47
the claim of misrepresentation based on the website statement because (1) there is
no evidence that the mission statement for St. Albans School‟s fundraising
campaign is false and (2) no reasonable jury could find that a person in appellant‟s
position who reads this statement of a campaign goal on a website would have
reasonably taken it as a guarantee that personal financial circumstances would have
no impact on A.B.S.‟s ability to continue to attend St. Albans School.
Use of Computerized Systematic Analysis that Treats Each Family the Same
in Making Financial Aid Determinations
This particular claim of misrepresentation is barely sketched out in the
complaint, and does not meet the requirement that each element of fraud be pled,
much less with particularity. No facts are alleged to support that the alleged
representation was false and, as in the case of the alleged misrepresentation about
the chorister stipend and financial aid determinations, there is no specification of
who made the alleged representation and under what circumstances.
This deficiency is compounded at the summary judgment stage as there is no
evidence, other than appellant‟s affidavit which merely repeats the allegation made
in the complaint. On this bare record, no reasonable jury could find by clear and
convincing evidence that appellees made a representation about the manner in
which they conducted financial aid reviews (i.e., with the aid of a computerized
48
systematic analysis of a family‟s financial situation and treated all families “the
same‟); that the statement, if made, was false; that it was made with the intent to
deceive; and that appellant reasonably relied on the statement to his detriment.
We conclude that because the evidentiary record does not permit a jury
verdict in favor of appellant on any of the allegedly fraudulent misrepresentations,
appellees were entitled to summary judgment on these claims. See Lowry, 908
A.2d at 36.
4. Appellees’ Counterclaim
a) Tuition
Appellant argues that the trial court erred by granting summary judgment for
appellees on their counterclaim for unpaid tuition for the 2009-10 school year
because he stated in his affidavit that the Director of Finance at St. Albans School
told appellant that the $2,000 payment made on March 17, 2010 satisfied the
outstanding tuition debt.
We disagree that appellant‟s affidavit presents a disputed issue of material
fact that precludes summary judgment. The trial court ruled that appellant‟s
affidavit claiming that he was told the $2,000 payment satisfied his debt of $17,990
could be disregarded under the “sham affidavit” doctrine. Under that doctrine,
49
“courts will disregard an offsetting affidavit that is submitted to withstand a motion
for summary judgment when the affidavit contradicts prior deposition testimony
without adequate explanation and creates only a sham issue of material fact.”
Hinch v. Sibley Mem’l Hosp., 814 A.2d 926, 929 (D.C. 2003). For the doctrine to
apply, “the affidavit must clearly contradict prior sworn testimony, rather than
clarify confusing or ambiguous testimony, and the contradiction must lack credible
explanation, such as new evidence.” Id. at 930. Appellant did not assert that
Parker assured him that the $2,000 payment satisfied his debt until an August 13,
2011 affidavit, which was filed after appellees filed their motion for summary
judgment on their counterclaim for unpaid tuition. The record supports that, at all
times before this affidavit, appellant did not regard the $2,000 payment as
satisfaction of the entire outstanding tuition. In an earlier affidavit, dated July 28,
2010, signed “under penalty of perjury,” appellant demonstrates that he and St.
Albans School both understood that there was a remaining balance of unpaid
tuition after the $2,000 payment; appellant even provides the terms for payment of
that balance in his affidavit. Additionally, appellant‟s correspondence with the
school—both before and after the $2,000 payment was made—indicates that both
parties understood that appellant still had an outstanding balance for his son‟s
tuition. Appellant initially was not even aware that the $2,000 payment had been
made, and in informing St. Albans School that it could apply the payment to
A.B.S.‟s tuition, he acknowledged the remaining amount still outstanding. Under
50
the circumstances, the trial court properly disregarded appellant‟s contradictory,
uncorroborated and convenient affidavit, and granted appellees‟ counterclaim for
unpaid tuition based on the uncontradicted evidence of record.
b) Attorney’s Fees
Appellant contends that the trial court erred in awarding attorney‟s fees to
appellees, arguing that under the 2009-10 re-enrollment contract appellees were
entitled to attorney‟s fees only as related to their counterclaim for unpaid tuition
and not for fees related to defending against appellant‟s claims. Again, we
disagree.
The re-enrollment contract states that, “[i]f legal action is necessary to
collect any amounts due,” appellant agrees “that the School shall be entitled to
recover, in addition to such amounts, reasonable attorney‟s fees and court costs.”
We have previously considered such a contractual provision and established that to
determine whether a party is entitled to attorney‟s fees for amounts incurred in
defending against claims made by the party opposing collection of the fees, the
trial court must consider the necessity for the legal services, taking into account:
“(1) whether the party requesting the fees was responsible for precipitating the
litigation; (2) whether the litigation for which the party relying on the contract
51
provision recovers the fees was bona fide and made necessary by the party
opposing payment of such fees; (3) whether the claim asserted by the party
opposing payment of such fees was raised by way of offset in an attempt to reduce
or extinguish the debt owed to the party requesting the fees; and (4) whether it was
necessary for the party requesting the fees to defend against the claim of the party
opposing the fees in order to collect the underlying debt or enforce the underlying
contractual obligation.” Kudon v. f.m.e. Corp., 547 A.2d 976, 980 (D.C. 1988)
(internal quotation marks and citations omitted). Applying these factors to the
circumstances in this case, the trial court determined that appellees could recover
attorney‟s fees incurred in defending against appellant‟s claims in addition to the
fees incurred in prosecuting the counterclaim to collect unpaid tuition. The trial
court considered that: (1) appellant was responsible for precipitating the litigation;
(2) appellees‟ counterclaim was bona fide and made necessary by appellant‟s
nonpayment of tuition; (3) appellant‟s claims, although not raised as an offset to
the counterclaim, in effect related directly to the counterclaim for unpaid tuition
(i.e., appellant‟s claims, if successful, would have nullified appellees‟
counterclaim); (4) it was necessary for appellees to defend against appellant‟s
claims to ensure that collateral estoppel would not bar their counterclaim. As the
trial court‟s determination considered the proper factors and was grounded on the
facts and circumstances of this specific litigation, we perceive no abuse of
discretion in the trial court‟s decision to award attorney‟s fees incurred by
52
appellees both in connection with their counterclaim for unpaid tuition and in
defending against appellant‟s claims.19
C. Judicial Bias
Appellant‟s final contention is that the judgment should be set aside because
the trial court denied him the right to an impartial tribunal, and that the case should
be remanded for trial before a different judge.
We begin by noting that recusal for bias is required whenever a judge has a
personal bias or prejudice for or against either party in a case. See Super. Ct. Civ.
R. 63-I. To require recusal, bias must be “personal in nature and have its source
„beyond the four corners of the courtroom.‟” Anderson v. United States, 754 A.2d
920, 925 (D.C. 2000) (quoting Gregory v. United States, 393 A.2d 132, 142 (D.C.
1978)). Thus, “[o]pinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute bias for a bias or partiality motion unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible.”
Mayers v. Mayers, 908 A.2d 1182, 1194 (D.C. 2006) (quoting Liteky v. United
19
Appellant does not contend that the amount of the fee award is
unreasonable.
53
States, 510 U.S. 540, 555, (1994)). Appellant does not claim that there are
extrajudicial sources for the alleged bias; rather, he points to several actions and
rulings by the trial court in the proceedings as evidence of the trial court‟s
antagonism against him and favoritism toward appellees.
1. Delay
In his motion for recusal and on appeal, appellant argues that the trial court
intentionally delayed the proceedings for the purpose of causing him prejudice.
Specifically, he points to the trial court‟s delay in ruling on discovery motions,
which he claims were not decided until 565 days after the first motion was filed.20
As a result, appellant argues, resolution of his case was delayed, leading to
spoliation of evidence and increased cost of litigation. Regardless of the period in
question, appellant offers no evidence that the trial court delayed his case for an
improper purpose; he simply infers that, because the trial court took a significant
20
Appellees dispute the calculation of the delay involved, stating that the
ruling was made in less than nine months (December 21, 2010 to September 15,
2011). In its order denying the recusal motion, the trial court did not take issue
with appellant‟s calculation of the delay, but ruled that the allegation was
insufficient because it pertained “exclusively to matters intrinsic to this case” and
did not involve “any allegation of prejudice from an extrajudicial source (much
less allegations setting forth specific facts regarding time, place, persons, and
circumstances of such influences).” We, therefore, review the trial court‟s ruling
on the basis on which it was made.
54
amount of time to rule on discovery motions and ultimately stayed discovery to
decide several pending motions for summary judgment, the delay was intended to
prejudice his case. We see no basis for such an inference. There is nothing out of
the ordinary or suspect about the trial court‟s stay of discovery while considering
other motions (including motions for partial summary judgment) that if granted
would have an impact on the scope of discovery, or obviate it altogether. With
respect to prejudice resulting from the delay, appellant does not state what
evidence was lost during this time or how the litigation became more expensive—
appellant represented himself at trial as he does on appeal. Appellant‟s claim that
the trial court‟s delay in ruling evidenced bias and caused him prejudice is
unsubstantiated and therefore insufficient to require recusal.
2. Settlement negotiations
Appellant argues on appeal that appellees‟ counsel improperly revealed the
following confidential settlement information: (1) a letter from appellant to
appellees‟ counsel, dated April 2, 2010, seeking to settle the re-enrollment dispute,
in which appellant said “he had been described by one federal appellate court as a
„leviathan of litigation,‟” that appellees referred to and attached to their opposition
to appellant‟s second motion for summary judgment (2) a comment by appellees‟
counsel, in a motion concerning discovery, that appellant had stated during a
55
telephone call that he was “not a rational plaintiff,” that the case was “about
„payback‟ and „revenge‟ rather than money,” and that appellant was “going to pick
up whatever rock is available and keep throwing until [he was] out of rocks”; and
(3) appellant‟s letter, dated April 8, 2013, indicating appellees‟ willingness to
discuss settlement, accompanied by appellees‟ counsel‟s statement, which
appellant alleges is false, that appellant was unwilling to settle. Appellant claims
that the trial court relied on and was negatively influenced by this information
concerning settlement.
It is well established that a trial court may not “use the information provided
in settlement letters for the purpose of determining what is an appropriate
resolution of a matter.” Lively v. Flexible Packaging Ass’n, 930 A.2d 984, 994
(D.C. 2007); see also Fed. R. Evid. 408 (a)(2) ( stating that “conduct or statement
made during compromise negotiations about the claim” is not admissible “to prove
or disprove the validity or amount of a disputed claim”). Appellant has failed to
demonstrate, however, that appellees‟ counsel‟s “revelations” constituted
settlement information, or that they were relied upon by the trial court in its
rulings. As an initial matter, appellant provides evidence of the trial court‟s
reference to only one of the three alleged improper disclosures: appellant‟s letter
of April 2, 2010. Although appellant cites two occasions on which the trial court
mentioned the April 2, 2010 letter, there is no reason to conclude that the trial court
56
improperly relied on its content in rendering any of its decisions. Appellant
contends that the trial court relied on his letter in deciding to grant summary
judgment for appellees on his claim that the discretionary clause in the re-
enrollment contract was unconscionable. However, as the trial court‟s order
explained in the footnote that referred to the letter, the grant of summary judgment
for appellees was not based on the contract‟s discretionary clause but on the clause
that permitted St. Albans School to refuse A.B.S.‟s re-enrollment for appellant‟s
failure to pay tuition. Consequently, the court‟s reference to the letter in its order
was merely an aside about a matter the trial court said it did not need to decide and
did not rely upon in granting summary judgment to appellees.21 Similarly, there is
no merit to appellant‟s argument that the trial court improperly relied on
21
The trial court had earlier ruled, in partially granting appellant‟s motion to
strike appellee‟s use of the April 2, 2010 letter, that because the letter “invit[ed]
negotiation and compromise,” it would not be admissible “with respect to issues
related to settlement of the then-existing dispute.” It added, however, that the
letter would be admissible for other purposes, such as to show, “by its intemperate
tone . . . that St. Albans had a legitimate basis for concluding that it no longer had a
constructive relationship with” appellant. See Auxier v. Kraisel, 466 A.2d 416,
419-20 (D.C. 1983) (noting that evidence related to settlement is admissible for
issues other than liability). In granting summary judgment to appellees on
appellant‟s claim that St. Albans School could not rely on the contract to deny
reenrollment to A.B.S., the trial court simply reiterated its earlier evidentiary
ruling, noting in a footnote that the letter could be used to show the need for the
discretionary provision in the contract to maintain “a congenial learning
environment” in a “relatively small community.” As explained in the text of the
order, however, that was not the basis for the trial court‟s grant of summary
judgment to appellees because the trial court relied on a separate clause that
authorized St. Albans School to deny reenrollment for failure to pay tuition.
57
appellant‟s characterization of his litigation prowess (a “leviathan of litigation”
who employed “every legal tactic I know”) in awarding attorney‟s fees to
appellees. Even if the statement was “made during compromise negotiations about
the claim,” Fed. R. Evid. 408 (a)(2), it did not go to the substance of the claims
disputed in the letter. Moreover, this characterization added little to what was
already plainly evident to a trial judge who sat through the long and contested
proceedings and, based on personal observations, commented on appellees‟ need to
defend against appellant‟s eight-count complaint “and the assiduity with which
[appellant] pursued his completely non-meritorious case.” As a result, the trial
court concluded, the fact that litigation costs were four times the amount of the
counterclaim amount was a “self-inflicted wound.” We perceive no improper
reliance on statements made during settlement discussions.
3. Request for Trial Court’s Personal Calendar
Appellant contends that the trial court demonstrated partiality by refusing his
request to disclose the court‟s personal trial calendar. Appellant argues that he was
entitled to review the calendar to determine whether the trial court was treating his
case differently than other similar cases over which the judge was presiding.
Appellant cites no authority in support of his request for a trial court‟s calendar,
which is not generally available for release to the public. See Lewis v. U.S. Dep’t
58
of Justice, 867 F. Supp. 2d 1, 13 n.5 (D.D.C. 2011) (noting that the judicial branch
calendar is not subject to the Freedom of Information Act). Moreover, appellant
had already attempted (and failed) to obtain the trial court‟s calendar through
litigation in federal court. See Sibley v. Macaluso, 995 F. Supp.2d 57, 64 (D.D.C.
2013). Under the circumstances, where appellant‟s litigation to obtain the calendar
was rebuffed by the federal court, appellant‟s argument that the trial court‟s denial
of the same request created an appearance of impropriety has no merit.
4. Favoritism for Appellees
Appellant‟s last contention is that the trial court‟s rulings for appellees show
bias against appellant. Specifically, he argues that the trial court: unevenly
applied Superior Court Civil Rule 12-I (a) by permitting appellees to file a motion
without complying with the rule‟s requirement that a certification be included
signifying that consent was sought from the opposing party, yet denying
appellant‟s motion to recuse the judge for failing to comply with the same rule;
denied appellant‟s motion to strike and request to depose appellees‟ counsel after
counsel submitted an allegedly tampered affidavit; and “white-wash[ed]” the
record and denied appellant‟s motion to depose appellees‟ counsel after counsel
made what appellant characterizes as a knowing misrepresentation regarding
incorrect attorney‟s fees charges.
59
We perceive no merit in appellant‟s argument that these rulings support his
claim that the trial court was biased in favor of appellees. The trial court explained
the reason for its uneven application of Rule 12-I (a). Noting that it regularly
denied motions for failing to comply with the rule‟s requirement of advance
consultation with the opposing party, the trial court said it did not penalize
appellees for failing to comply with the rule in filing a motion for summary
judgment because appellant had “wasted the court‟s time with at least one patently
frivolous motion, and a balancing of the equities [did] not entitle him to” relief on
his motion to strike. In contrast, the trial court denied—albeit without prejudice—
appellant‟s motion to recuse for failure to comply with Rule 12-I (a), because
appellant was familiar with the rule and had attempted to invalidate a motion of
appellees for noncompliance with its requirements only one month before his own
failure to comply with the rule. The trial court‟s reasoned explanation for the two
different rulings defeats appellant‟s claim that they were motivated by bias.
Appellant‟s claim about the need to depose appellees‟ counsel for “tampering”
with Vance Wilson‟s affidavit, based on the fact that one of its three pages was
faxed while the other two were laser-printed, is unsupported in light of appellees‟
60
counsel‟s explanation, which appellant has not refuted.22 Appellant‟s third claimed
evidence of bias involves the trial court‟s denial of his request to depose appellees‟
counsel about a minor mistake in the billing records presented with appellees‟
request for attorney‟s fees.23 There is simply no evidence that the trial court
“white-wash[ed]” the record or that the disputed entry was anything other than a
billing error rather than an intentional misrepresentation.
III. Conclusion
We conclude there is no error on the part of the trial court in denying
appellant‟s motions for partial summary judgment, and in granting summary
judgment to appellees on appellant‟s claims; nor is there error in the grant of
summary judgment on appellees‟ counterclaim for unpaid tuition and attorney‟s
fees. We also find no abuse of discretion in the trial court‟s rulings concerning
discovery or the denial of appellant‟s motion to further amend his Amended
22
As appellees‟ counsel explains in the brief on appeal, “[i]nstead of being
numbered „Civ. No. 2202-10,‟ which was an acceptable style in June 2010 . . . , by
August 2010 the case number needed to be stated as „Case No. 2010 CA 002202
B.‟ No other changes to the affidavit were made.” Appellant provides no
explanation for why he thinks this technical correction means Wilson‟s affidavit
was improperly altered.
23
1.8 hours were inappropriately billed and eventually excluded from the
attorney‟s fee award.
61
Complaint. Additionally, we conclude appellant has not supported his claim of
judicial bias or partiality. Accordingly, the judgment is
Affirmed.