Rayner v. Yale Steam Laundry Condo. Ass'n. ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 21-CV-122 & 22-CV-58
JONATHAN HAWKES RAYNER, APPELLANT,
V.
YALE STEAM LAUNDRY CONDOMINIUM ASSOCIATION, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(2020-CA-004077-R(RP))
(Hon. Hiram E. Puig-Lugo, Trial Judge)
(Submitted November 8, 2022 Decided February 16, 2023)
Jonathan Hawkes Rayner, pro se.
Laura M.K. Hassler was on the brief for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, ALIKHAN, Associate Judge, and
FERREN, Senior Judge.
FERREN, Senior Judge: For conduct involving his dogs, Jonathan Hawkes
Rayner was disciplined by the Yale Steam Laundry Condominium Association
(“the Association”) where he lived. Rayner sued the Association, alleging that the
disciplinary proceedings failed to comply with the Association’s Enforcement
Procedures in its bylaws (“Enforcement Procedures”). The trial court (1)
2
dismissed Rayner’s case pursuant to Super. Ct. Civ. R. 12(b)(6) 1 for failure to state
a claim; (2) denied him leave to amend his complaint; and then (3) denied his
motion to vacate the dismissal and reinstate his complaint under Super. Ct. Civ. R.
60(b). 2 Rayner appeals the judgment by challenging all three rulings. We affirm.
I. Background
Rayner is a member of his building’s condominium association. He lives
with two dogs, an older, male German Shepherd mix (“Dog 1”) and a younger,
female German Shepherd mix (“Dog 2”). On December 26, 2019, Rayner and his
leashed dogs left his apartment and entered a shared hallway where his neighbor,
Timothy O’Connor, stood nearby. The dogs briefly barked at O’Connor as Rayner
walked them down the hallway toward him. Dog 2 then “jumped up at Mr.
O’Connor” and tore his suit jacket. Rayner immediately offered to pay O’Connor
to replace the jacket, and O’Connor accepted.
1
Super. Ct. Civ. R. 12(b)(6) provides that “a party may assert the following
defenses by motion . . . failure to state a claim upon which relief can be granted.”
2
Super. Ct. Civ. R. 60(b) gives the trial court discretion “[o]n motion and
just terms . . . [to] relieve a party or its legal representative from a final judgment,
order, or proceeding for” several enumerated reasons.
3
The next day, O’Connor submitted a complaint to the community building
manager about the incident with Rayner’s dogs. The building manager, in turn,
emailed Rayner, asking him to “kindly and quickly move [Rayner’s] dogs from
[O’Connor’s] presence” when the dogs and O’Connor “are in the same immediate
area.” On December 31, Rayner sent the Association a statement about the
December 26 incident.
A few weeks later, Rayner received notice that the D.C. Animal Care and
Control Agency (“Animal Control”) was investigating the December 26 incident.
He then received written notice (“First Hearing Notice”) from the Association that
a hearing on the December 26 incident would occur on February 4, 2020 (“First
Hearing”). This notice did not include a copy of O’Connor’s complaint.
A second incident occurred on January 24, 2020, before the First Hearing.
This time, Rayner was entering his front door when Dog 2—unleashed—passed by
him, entered the hallway, and “ran towards Mr. O’Connor.” The dog stopped short
of O’Connor after Rayner commanded her to return and she obeyed. O’Connor
submitted a complaint to the Association the same day. The Association emailed
Rayner on January 27, 2020, referencing the January 24 incident and reminding
him “to keep your pets on a leash when in the common areas of the building.”
4
Rayner emailed the Association that same day, explaining that he could not attend
the First Hearing due to a death in his family.
No hearing occurred on February 4, and on February 5, Rayner sought to
stay the First Hearing until Animal Control completed a District of Columbia
Freedom of Information Act (“FOIA”) request 3 regarding the December 26
incident. Rayner also sought clarification from the Association about “why any
community proceeding is necessary.” The Association responded by explaining its
“fiduciary responsibility to the community . . . to determine whether there has been
a violation of bylaws” and assured Rayner that a hearing “gives you due process
rights to try to explain why there was no violation.” Then on February 7, the
Association sent Rayner notice that his hearing would be on February 18.
On the morning of February 18, Rayner emailed the Association alleging
procedural defects in the notice he received for the hearing. He also asked the
Association to delay his hearing pending a response to his FOIA request to Animal
Control. The First Hearing occurred, however, on February 18, and Rayner did not
attend. The Association issued its hearing decision on March 3 (“First Hearing
3
See D.C. Code § 2-532(a) (“Any person has a right to inspect, and at his or
her discretion, to copy any public record of a public body . . . .”).
5
Decision”). This decision fined Rayner $100 for the January 24 incident, declared
his dogs a nuisance, and called for their removal from the condominium.
However, the decision stayed the dogs’ removal as long as they wore muzzles in
common areas.
Later in March, Rayner sent the Association a settlement offer which the
Association declined. On March 31, Rayner received a response to his FOIA
request from Animal Control. The response noted that “there was no bite wound”
and that Animal Control “found no basis to declare [Rayner’s] dogs dangerous or
potentially dangerous.”
After receiving the FOIA response, Rayner proffered further settlements
with the Association in April and May, which the Association declined. In early
July, the Association sent Rayner written notice (“Second Hearing Notice”) of a
second hearing about the December 26 and January 24 incidents, to be held on
August 4, 2020. This notice listed removal of one or both dogs as a possible
sanction; included O’Connor’s complaints from both incidents; and explained that
the hearing would address the incidents, including Rayner’s “ability/efforts to
properly keep your dogs under control generally,” whether the dogs “constitute
6
‘orderly domestic pets’” under the Association’s bylaws, and whether the dogs
“constitute a nuisance” under those bylaws and other relevant rules.
On July 21, 2020, Rayner asked the Association to continue the Second
Hearing, citing alleged violations of the Enforcement Procedures. 4 The
Association rescheduled the Second Hearing for September 15, 2020 and provided
Rayner with notice of this new date on September 1. Rayner contends that, before
the Association chose September 15, he told the Association that he would be busy
on September 15. On September 10, Rayner asked the Association to delay the
Second Hearing for “good cause,” but the Association declined.
The Second Hearing proceeded on September 15 and Rayner did not attend.
On September 21, Rayner filed a complaint against the Association in Superior
Court. Nine days later, on September 30, the Association issued its hearing
decision to Rayner (“Second Hearing Decision”). This decision explained how the
Association “agreed to re-start the process” after the first hearing, stressing that
this second decision “entirely supersedes, replaces, and overrides the decision
issued on March 3, 2020.” The Association fined Rayner $500 per dog for the
Rayner also sought from the Association several segments of surveillance
4
footage of his dogs around this time. The Association provided some of these
videos within the constraints of its recording and record-keeping technology.
7
December 26 incident and $100 total for the January 24 incident, for a sum of
$1,100 in fines, and required him to provide proof of Dog 1’s rabies vaccination
and both dogs’ licensing.5 Further, the decision “implore[d]” Rayner to follow
Animal Control’s recommendations of muzzling the dogs in common areas,
communicating with passersby about the dogs, and preventing the dogs from
jumping on people. The decision, however, neither declared the dogs a nuisance
nor ordered their removal.
Rayner filed an Amended Complaint on October 13, 2020, alleging six
counts. Count I sought injunctions against the Association, claiming that it failed
to “ma[k]e a prudent and reasonable attempt to ensure due process according to
the . . . Enforcement Procedure.” Count II alleged breach of contract based on how
the Association implemented the Enforcement Procedures. Counts III and IV
alleged the Association committed the torts of negligence and breach of its
fiduciary duty by breaching its duties to Rayner. Count V sought damages for
“pain and suffering.” Count VI alleged retaliatory action, pointing to the fines
levied against Rayner.
5
The Second Hearing Decision referred to Rayner’s male dog as “Dog 2”
and his female dog as “Dog 1.” To avoid confusion, we follow the complaint’s
naming convention and call Rayner’s male dog, “Dog 1” and his female dog, “Dog
2.”
8
In response, the Association filed a motion to dismiss under Super. Ct. Civ.
R. 12(b)(6). Rayner filed an opposition to the motion and sought leave to amend
Counts I and V (seeking injunctions and damages), amend Count III (negligence)
“into” his breach of contract claim, and amend Count VI (retaliatory action) to
clarify its statutory basis in D.C. Code § 42-1903.08(a)(11). 6 The trial court
granted the Association’s Rule 12(b)(6) motion and declined to grant Rayner leave
to amend his complaint.
In dismissing the breach of contract claim, the court began with the
Association’s preliminary investigation into the incidents with Rayner’s dogs. The
order noted that the Enforcement Procedures do not require the Association “to
undertake specific efforts during a preliminary investigation,” but that, in any
event, the Association had received statements from Rayner and O’Connor during
this investigation.
6
D.C. Code § 42-1903.08(a)(11) provides that a condominium unit owners’
association “shall have the . . . [p]ower to . . . after notice and an opportunity to be
heard, levy a reasonable fine for violation of the condominium instruments or rules
and regulations of the unit owners’ association.”
9
As for the Association’s adherence to the Enforcement Procedures more
generally, the court explained that the Enforcement Procedures “provide [the
Association] latitude to carry out its duties” as long as the Association provides
due process. Accordingly, the court reasoned, Rayner could not sustain a breach of
contract claim without “alleg[ing] facts establishing he was not afforded due
process”—facts he did not establish here, said the court, because to the contrary
(reflecting due process) he submitted a statement about the incident, received prior
notice of both hearings and of their rescheduling at his request, received video
footage to aid in his case, “and was notified of his right to be present and
participate at both hearings.” Further, explained the court, the Association
restarted the disciplinary process with its Second Hearing Notice, which “cured
any alleged deficiencies” in due process in the first hearing.
The court then dismissed Rayner’s tort claims of negligence and breach of
fiduciary duty because these claims did not exist independent of Rayner’s and the
Association’s contractual relationship and thus could not be sustained given the
“independent tort doctrine.” 7 The court then dismissed Rayner’s retaliation claim
7
See Choharis v. State Farm Fire & Cas. Co., 961 A.2d 1080, 1089 (D.C.
2008) (explaining that for a tort claim to coexist with a contract claim, “the tort
must exist in its own right independent of the contract, and any duty upon which
10
because retaliation is a statutory claim whereas Rayner’s claim lacked a statutory
foundation. With only Rayner’s claims for injunctive relief and pain and suffering
remaining, the court recognized that these claims “are not standalone causes of
action” and thus could not be granted because Rayner’s other causes of action were
dismissed.
Finally, the court declined to grant Rayner leave to amend his complaint.
The court recognized that Rayner already had amended his complaint once and
concluded that in any event his requested amendments would be futile. The court
explained that the requested amendments to the injunctive and pain and suffering
claims would not convert those remedies into a cause of action. More specifically,
incorporating the negligence claim into the breach of contract claim would not add
any new facts or arguments to the dismissed breach of contract claim. Finally,
concluded the court, “no amendment or clarification will cure the lack of authority
in District of Columbia law for a cause of action for retaliation.”
Rayner appealed both the dismissal and the denial of leave to amend on
February 20, 2021. Nearly one year later, in January 2022, Rayner filed a motion
the tort is based must flow from considerations other than the contractual
relationship”).
11
to vacate the order of dismissal and reinstate his case under Rule 60(b). The trial
court denied this motion with an order explaining that the Rule 60(b)(2) remedy
concerning “newly discovered evidence” is “expressly limited to cases that
proceeded to trial.” 8 Further, the court noted, for the sake of argument that it did
“not find that Plaintiff’s proffered factual amendments would have produced a
different result if presented before this Court granted Defendant’s motion to
dismiss. Thus, providing Plaintiff a third opportunity to amend his complaint
would be futile.” Rayner timely appealed this denial and his appeals were
consolidated.
II. Analysis 9
8
See Super. Ct. Civ. R. 60(b)(2) (allowing a court to relieve a party from a
final judgment for “newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under Rule 59(b)”
(emphasis added)).
9
As a preliminary matter, on November 3, 2022, Rayner filed a motion in
this court under D.C. App. R. 10(e)(3) seeking to supplement the record with a
new exhibit and additional facts. The Association opposed this motion and Rayner
filed a reply to the Association’s opposition. Supplementing the record would
require further findings of fact, which is the function of the trial court, not this
court. See Lihlakha v. United States, 89 A.3d 479, 490 (D.C. 2014) (“As an
appellate court, we do not make findings of fact and therefore may not rule on our
own reading of the evidence unaided by the trial court’s findings . . . .”).
Accordingly, we deny Rayner’s motion to supplement the record and rely only on
those facts that were presented to the trial court, whose decisions we review on
appeal.
12
On the record here, Rayner challenges (1) the dismissal of his case under
Rule 12(b)(6), (2) the trial court’s decision to deny him leave to amend his
complaint, and (3) the trial court’s denial of his Rule 60(b) motion to vacate the
dismissal. We address these arguments in turn and affirm the trial court’s rulings.
A. Motion to Dismiss
Rayner argues that the trial court erred in dismissing his claims against the
Association for failure to state a claim for which relief can be granted. We review
the dismissal of claims under Rule 12(b)(6) de novo. 10 On appeal, “we accept the
allegations of the complaint as true, and construe all facts and inferences in favor
of the plaintiff.” 11 Our review of “a Rule 12(b)(6) motion may not rely on any
facts that do not appear on the face of the complaint itself.” 12 To survive a
10
Grayson v. AT & T Corp., 15 A.3d 219, 228 (D.C. 2011) (en banc).
11
Solers, Inc. v. Doe, 977 A.2d 941, 947 (D.C. 2009) (quoting In re Est. of
Curseen, 890 A.2d 191, 193 (D.C. 2006)).
12
Kitt v. Pathmakers, Inc., 672 A.2d 76, 79 (D.C. 1996) (quoting Am. Ins.
Co. v. Smith, 472 A.2d 872, 873-74 (D.C. 1984)); see Wetzel v. Cap. City Real
Est., LLC, 73 A.3d 1000, 1006 n.5 (D.C. 2013) (“In ruling on a Rule 12(b)(6)
motion to dismiss, the court may consider only ‘documents incorporated into the
complaint,’ such as . . . [documents] that were attached to appellants’ complaint.”
13
12(b)(6) motion, a complaint must “contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” 13 Thus, a complaint that “fails
to allege the elements of a legally viable claim” will not survive. 14 We first assess
Rayner’s breach of contract claim, and then turn to his tort claims of negligence
and breach of fiduciary duty, his retaliation claim, and his claims for injunctive
relief and damages for pain and suffering.
1. Breach of Contract
Rayner’s breach of contract claim relies on at least eight provisions in the
condominium Enforcement Procedures, but two other provisions swayed the trial
court’s analysis. The first provision the trial court relied on, Section II.B, specifies
that “[t]he Board[15] may determine the specific manner in which the provisions of
(quoting Washkoviak v. Student Loan Marketing Ass’n, 900 A.2d 168, 178 (D.C.
2006)).
13
Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 543 (D.C.
2011) (quoting Super. Ct. Civ. R. 8(a)).
14
Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1023 (D.C. 2007).
15
The Association has a Board of Directors (“the Board”) that acts on the
Association’s behalf. For consistency, we use the party name, “the Association,”
to refer to both the Board and the Association.
14
this Resolution[16] are to be implemented, provided that reasonable due process is
afforded.” 17 The second, Section II.C, provides that “[a]ny inadvertent omission or
failure to conduct any proceeding in exact conformity with this Resolution shall
not invalidate the results of such proceeding, so long as a prudent and reasonable
attempt has been made to ensure due process according to the general steps set
forth in this resolution.” 18 We agree with the trial court that these provisions gave
the Association sufficient latitude to survive Rayner’s breach of contract claims,
provided that the Association afforded Rayner due process. And we agree that
Rayner received the process he was due.
The core of the alleged breaches concerns the Association’s failure to follow
the Enforcement Procedures to a tee. For example, Section I.C.1 states that, when
planning a hearing, the Association “shall serve a Notice of Hearing and a copy of
16
The Association adopted its Enforcement Procedures via a “Special
Resolution” pursuant to its powers under Article IV, Section 4.1 of the
Association’s bylaws. Accordingly, the Enforcement Procedures document refers
to itself as “this Resolution.” We refer to this document as the Enforcement
Procedures for internal consistency.
17
SA313-17 (“Enforcement Procedures”) § II.B.
18
Enforcement Procedures § II.C. Section II.A is also relevant: “This
Resolution is intended to serve as a protection to owners and residents to ensure
that their rights are protected and to serve as a guideline for the Board as it carries
out its duties to enforce the Governing Documents.” Enforcement Procedures
§ II.A (emphasis added).
15
the complaint on the respondent.” 19 In Rayner’s case, the First Hearing Notice did
not contain a copy of the complaint, although the Second Hearing Notice did
contain copies of the complaints for both the December 26 and January 24
incidents. Admittedly, therefore, Rayner’s complaint is correct in alleging that the
Association’s actions (including, for example, the failure to include the complaint
with the First Hearing Notice) did not perfectly mirror the Enforcement
Procedures. That said, however, those Procedures explain that “failure[s] to
conduct [the] proceeding in exact conformity with this Resolution shall not
invalidate the results of such proceeding” if the Association made “prudent and
reasonable attempt[s] . . . to ensure due process according to the general steps set
forth in this resolution.” 20 Here, no breach of contract occurred because, as
elaborated below, the Association ensured the due process essentials required
under the Enforcement Procedures.
Due process in this context—not a constitutional matter—does not require
perfect adherence to the Enforcement Procedures. After all, these procedures
recognize that a “prudent and reasonable attempt [can] be[] made to ensure due
19
Enforcement Procedures § I.C.1; see Am. Compl. ¶ 87.
20
Enforcement Procedures § II.C.
16
process” even in the face of “[a]ny inadvertent omission or failure to conduct any
proceeding in exact conformity with” the Enforcement Procedures. 21
Here, the Association made multiple prudent and reasonable attempts to
ensure the process required. As the trial court recognized, Rayner’s complaint
established that he (1) had the opportunity to and did submit a statement about the
incident, (2) received prior notice of both hearings, (3) received notice of when the
hearings were rescheduled at his request, (4) requested and received video footage
to aid in his case, and (5) was notified of his right to be present and participate at
both hearings. 22 Moreover, the Association’s decision to issue the Second Hearing
Notice, hold the Second Hearing, and issue the Second Hearing Decision
specifically remedied many of the procedural issues that Rayner flagged, such as
the missing complaint in the First Hearing Notice.
Rayner contends that he was denied due process in the Second Hearing
because the Association used “the improperly held first hearing as the basis for
new sanctions.” This argument overlooks the Second Hearing Decision’s
explanation that “this decision . . . entirely supersedes, replaces, and overrides” the
21
Enforcement Procedures § II.C.
22
1/21/2021 Order at 8-9.
17
First Hearing Decision. 23 Moreover, the alleged due process denial presupposes
bias from the fact that Rayner’s upstairs neighbor was President of the Association
during the preliminary investigation, allegedly creating a conflict of interest. But
the amended complaint provided no basis to conclude that the President of the
Association was biased against Rayner; it only stated that the President “resides in
the unit directly above” Rayner’s. 24 And, to the extent Rayner argues that the
Association should have opened a new investigation before the Second Hearing,
the trial court order correctly observed that the Enforcement Procedures do not
require the Association “to undertake specific efforts during a preliminary
investigation.” 25 In other words, the Association had discretion in conducting
preliminary investigations and acted within its discretion.
Rayner also posits that the Association deprived him of due process because,
after he asked the Association to reschedule the Second Hearing, the Association
chose a date on which he established he was unavailable. When he asked for the
23
Second Hearing Decision at 2.
24
Our review of a 12(b)(6) ruling is limited to “documents incorporated into
the complaint” such as those “that were attached to appellants’ complaint.” Wetzel,
73 A.3d at 1006 n.5 (quoting Washkoviak, 900 A.2d at 178). Thus, Rayner’s
discussion in his briefs about his relationship with the President of the Association
plays no role in our analysis.
25
1/21/2021 Order at 8.
18
hearing to be rescheduled again, the Association declined. Even so, the
Association twice rescheduled hearings on Rayner’s request. Furthermore, the
Enforcement Procedures specify that “management may reset the time and date of
[a] hearing” if a party shows good cause for non-attendance and provides
alternative hearing times and dates. 26 Thus, the Enforcement Procedures do not
require the Association to reschedule hearings. As such, the Association’s
decision not to reschedule Rayner’s Second Hearing a second time did not deprive
him of due process.
Finally, Rayner argues that he was denied due process because the
Association did not let him, at the Second Hearing, present in-person evidence of
his dogs’ behavior. The Enforcement Procedures provide that the Association
“may determine the manner in which the hearing will be conducted, so long as the
rights set forth in this section are protected.” 27 They go on to say that,
“[g]enerally, any relevant evidence shall be admitted if it is the sort of evidence on
which responsible persons are accustomed to rely.” 28 The Association thus had
discretion in admitting evidence, both “[g]enerally” and in specific cases. Here,
26
Enforcement Procedures § I.C.2 (emphasis added).
27
Enforcement Procedures § I.D.3.a.
28
Enforcement Procedures § I.D.3.a.
19
the Association admitted video evidence of Rayner’s dogs’ behavior, instead of an
in-person demonstration. As Rayner’s amended complaint confirms, this evidence
allowed him to demonstrate “Dog 1’s obedient behavior within his unit, including
his ability to discriminate between true and false commands, and Dog 2’s
proclivity to use her paws to manipulate objects.” This decision about how to
present evidence at the hearing fell within the Association’s authority under
Enforcement Procedures Section I.D.3.a and protected Rayner’s right to present
evidence on his behalf.
In sum, the trial court did not err in dismissing Rayner’s breach of contract
claim. The Enforcement Procedures gave the Association flexibility in how it
implemented the procedures. We cannot say that the way the Association
implemented these procedures denied Rayner due process. Accordingly, no breach
of contract occurred.
2. Negligence and Breach of Fiduciary Duty
The trial court correctly concluded that Rayner’s tort claims for negligence
and breach of fiduciary duty cannot survive because they do not arise independent
of the parties’ contractual relationship. When a complaint includes a breach of
20
contract claim and a tort claim, “the tort must exist in its own right independent of
the contract, and any duty upon which the tort is based must flow from
considerations other than the contractual relationship.” 29 As such, “[t]he tort must
stand as a tort even if the contractual relationship did not exist.” 30
Here, the negligence claim would not stand without the contractual
relationship. In trying to establish the “duty” element of negligence, the complaint
states that the Association “has a duty to exercise reasonable care in implementing
the Enforcement Procedure in order to protect Association members such as
Plaintiff and his property.” This duty stems directly from the contractual
relationship and therefore cannot stand. 31 The breach of fiduciary duty claim
29
Choharis, 961 A.2d at 1089.
30
Id.31
In his briefs to this court, Rayner argues for the first time that the
Association’s actions vis-à-vis the Animal Control investigation “f[e]ll under a
general duty for reasonable care,” and thus fell outside the parties’ contractual
relationship. We decline to address this argument because arguments not raised in
the trial court “are normally spurned on appeal.” Crockett v. Deutsche Bank Nat’l
Tr., 16 A.3d 949, 953 (D.C. 2011).
21
suffers from the same defect, as it relies solely on the contractual relationship
between the Association and Rayner. 32
3. Retaliation
Rayner’s complaint argues that the Association’s imposing a fine on him
constituted “retaliatory action.” The trial court correctly dismissed Rayner’s
retaliation claim as lacking a statutory basis. Even construing Rayner’s attack on
the fine as being “unreasonable,” rather than retaliatory, we come to the same
conclusion.
Retaliation is a statutory, not a common-law, cause of action. 33 The statute
that Rayner relied on in his opposition to the motion to dismiss does not create a
32
See Am. Compl. ¶¶ 284-85 (“The Board of Directors has a fiduciary duty
to the Association, and to the Plaintiff specifically as a member of the
Association. . . . By failing to correct known problems with the implementation of
the Enforcement Procedure affecting Plaintiff and with the safety and security of
the Condominium, the Board and thus the Association has breached that fiduciary
duty to Plaintiff.”).
33
See Twyman v. Johnson, 655 A.2d 850, 858 (D.C. 1995) (“[T]here is no
common law authority for a cause of action for retaliation against a landlord.”); see
also Bereston v. UHS of Del., Inc., 180 A.3d 95, 111 (D.C. 2018) (declining “to
recognize a common-law cause of action for retaliation” in the employment
context).
22
cause of action for retaliation. That statute, D.C. Code § 42-1903.08(a)(11),
empowers condominium owners’ associations “after notice and an opportunity to
be heard, [to] levy a reasonable fine for violation of the condominium instruments
or rules and regulations of the unit owners’ association.” 34 It does not empower a
unit owner to sue the owners’ association for retaliation outside the purview of
statutes that expressly authorize causes of action for retaliation. 35 Accordingly, the
trial court did not err in dismissing Rayner’s retaliation claim.
On appeal, Rayner challenges the Association’s fine as a breach of contract
issue because the Enforcement Procedures discuss the Association issuing
“reasonable fines.” Rayner’s complaint, however, challenged the fine only in
connection with its retaliation claim, but in any event the fine was reasonable and
its imposition cannot support a claim of retaliation or breach of contract.
Enforcement Procedures Section III.A empowers the Association to levy
34
D.C. Code § 42-1903.08(a)(11).
35
See, e.g., D.C. Code § 42-3505.02(a) (“No housing provider shall take any
retaliatory action against any tenant who exercises any right conferred upon the
tenant by this chapter, by any rule or order issued pursuant to this chapter, or by
any other provision of law.”); D.C. Code § 2-1402.61(a) (“It shall be an unlawful
discriminatory practice to . . . retaliate against . . . any person in the exercise or
enjoyment of, or on account of having exercised or enjoyed, or on account of
having aided or encouraged any other person in the exercise or enjoyment of any
right granted or protected under this chapter.”).
23
“reasonable fines” as sanctions for violations of the Association’s bylaws. 36 The
Association’s bylaws include a Pet Policy that generally prohibits animals from the
condominium except for “orderly domestic pets . . . provided that their owner
adheres to the following restrictions and, provided further, that the pet behaves in
such a manner as not to disturb other unit owners.” 37 The Pet Policy also enables
the Association to request a pet’s removal from the property if the pet “disturbs
other residents in the building by biting, barking, crying, nipping, scratching or
exhibiting otherwise unhygienic or offensive behavior.” 38 Further, pets must be
carried or leashed when inside the condominium while outside their owner’s unit. 39
Rayner’s amended complaint establishes that Dog 2 damaged O’Connor’s
jacket on December 26, 2019, and ran unleashed through a common hallway
toward O’Connor on January 24, 2020.
As the Second Hearing Decision explained, the December 26 incident
violated the Pet Policy’s provisions requiring “orderly domestic pets” and
36
Enforcement Procedures § III.A.
37
SA287-88 (“Pet Policy”) § I.A.
38
Pet Policy § I.H.
39
Pet Policy § I.F.
24
prohibiting pet behavior that “disturb[s] other unit owners.” 40 The January 24
incident also violated the Pet Policy’s leashing requirement. 41 Given these
violations, the Association did not act unreasonably in fining Rayner $1,100. The
Association has an interest in keeping the premises safe and discouraging behavior
like the December 26 and January 24 incidents, which, as the Association
explained in its motion to dismiss, “present[ed] a potential safety risk, not only to
Mr. O’Connor but to other building residents.” Moreover, the fines present an
issue separate from Rayner’s payment to O’Connor for the damage to O’Connor’s
suit from Rayner’s dog. 42 We see no reason to disturb the trial court’s ruling based
on the Association’s fines levied against Rayner. 43
4. Injunctive Relief and Pain and Suffering
40
Second Hearing Decision 2-3.
41
Second Hearing Decision 3-4.
42
See Pet Policy § I.E (“Residents are liable for any . . . loss or damage
caused by or arising out of the limited privilege of having a pet in the building.”).
43
Rayner’s argument raised for the first time in his Supplement Brief that
the fine is unreasonable because the Association allegedly inconsistently enforces
its Pet Policy was not before the trial court and thus plays no role in our analysis.
See Crockett, 16 A.3d at 953.
25
The trial court did not err in dismissing Rayner’s Counts I and V for
injunctive relief and damages for pain and suffering. These two “claims” are legal
remedies, not causes of action, 44 and a court cannot grant a remedy without a cause
of action. 45 Accordingly, because the trial court dismissed Rayner’s causes of
action (breach of contract, negligence, breach of fiduciary duty, and retaliation), it
did not err in concluding that the remedies of injunctive relief and damages for
pain and suffering were unavailable.
B. Leave to Amend
Rayner next challenges the trial court’s denial of leave to amend his
amended complaint. He relies on Super. Ct. Civ. R. 15(a)(3), which states that “a
party may amend its pleading . . . [with] the court’s leave. The court should freely
give leave when justice so requires.” 46 Specifically, he sought three amendments:
44
See Baker v. Chrissy Condo. Ass’n, 251 A.3d 301, 307 n.23 (D.C. 2021)
(recognizing that a “count[]” for “pain and suffering” is a “remed[y], not [a]
claim[]”); Caesar v. Westchester Corp., 280 A.3d 176, 192 (D.C. 2022) (noting
that injunctions are remedies).
45
Air Line Pilots Ass’n v. Twin City Fire Ins. Co., 803 A.2d 1001, 1005
(D.C. 2002) (“[O]nly claims or causes of action give rise to relief . . . .” (quoting
Town Crier, Inc. v. Hume, 721 F. Supp. 99, 104 (E.D. Va. 1989)).
46
Super. Ct. Civ. R. 15(a)(3). For the first time on appeal, Rayner argues
that he was entitled to amendment as a matter of course under Super. Ct. Civ. R.
26
to amend Count III (negligence) “into” his breach of contract claim; to amend
Count VI (retaliatory action) to clarify its statutory basis in D.C. Code
§ 42-1903.08 (a)(11); and to amend Counts I and V (seeking injunctions and
damages). “We review a trial court’s denial of a motion to amend a complaint for
abuse of discretion.” 47 When exercising this discretion, the trial court considers
five factors: “(1) the number of requests to amend; (2) the length of time that the
case has been pending; (3) the presence of bad faith or dilatory reasons for the
request; (4) the merit of the proffered amended pleading; and (5) any prejudice to
the non-moving party.” 48 We have declined to find an abuse of discretion when a
trial court “considered ‘the merit of the proffered pleading’ and properly concluded
that appellant’s proposed claim . . . did not have merit.” 49
15(a)(1). We do not address this argument because it was not raised below. See
Crockett, 16 A.3d at 953.
47
Sibley v. St. Albans Sch., 134 A.3d 789, 797 (D.C. 2016).
48
Crowley v. N. Am. Telecomms. Ass’n, 691 A.2d 1169, 1174 (D.C. 1997).
49
Sibley, 134 A.3d at 797; see also Choharis, 961 A.2d at 1091-92(affirming denial of motion to amend, in part, because the trial court considered the
merits of the proposed amendments and found “[t]he proposed new contract claim
was basically cumulative and the remaining amendments, sounding in tort, were
variants on the tort claims upon which summary judgment had been granted”).
27
The trial court here acted within its discretion in denying Rayner leave to
amend his complaint. First, the court recognized that Rayner had previously
amended his complaint. 50 Next, the court examined each of Rayner’s three
proposed amendments and concluded that they were futile, i.e., “that [Rayner’s]
proposed claim[s] . . . did not have merit.” 51 After reviewing the proposed
amendments that Rayner presented to the trial court, we see no basis to second
guess its decision. 52 His proposed amendments fail to overcome the same hurdles
that merited dismissing his claims under Rule 12(b)(6). On breach of contract, his
amendments do not establish that the Association diverged so far from the
Enforcement Procedures to deprive Rayner of due process. As to the alleged
retaliatory action, Rayner did not identify a proper statutory basis for his claim.
Moreover, his proposed amendments could not provide an independent basis for
Rayner’s requested injunctive relief and damages. In sum, we have no basis to
50
See 1/21/21 Order at 12.
51
Sibley, 134 A.3d at 797.
52
Rayner’s brief to this court also included several proposed “Counts” and
claims that he did not raise before the trial court. We do not analyze these new
claims because “[q]uestions not properly raised and preserved during the
proceedings under examination, and points not asserted with sufficient precision to
indicate distinctly the party’s thesis, will normally be spurned on appeal.”
Comford v. United States, 947 A.2d 1181, 1186 (D.C. 2008) (alteration in original)
(quoting Miller v. Avirom, 384 F.2d 319, 321-22 (D.C. Cir. 1967)).
28
believe the trial court erred in its futility analysis, and we perceive no abuse of
discretion in the court’s denying Rayner leave to amend his complaint.
C. Rule 60(b)
Rayner also appeals the trial court’s denial of his motion to vacate the order
of dismissal and reinstate his case under Rule 60(b). His motion argued first that
newly discovered evidence purportedly established his claims, and second that the
trial court should grant him leave to amend his complaint because of his excusable
neglect in drafting his amended complaint. Although the motion did not cite
specific provisions of Rule 60(b), we note that his arguments about newly
discovered evidence fall under 60(b)(2) and those on excusable neglect fall under
Rule 60(b)(1). 53
53
See Super. Ct. Civ. R. 60(b)(2) (“[T]he court may relieve a party or its
legal representative from a final judgment, order, or proceeding for . . . newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b) . . . .”); id. 60(b)(1)
(“[T]he court may relieve a party or its legal representative from a final judgment,
order, or proceeding for . . . mistake, inadvertence, surprise, or excusable
neglect . . . .”); see also Chatman v. Lawlor, 831 A.2d 395, 404 (D.C. 2003)
(“[A]rguments under each component of Rule 60(b) are separate and not
interchangeable.”).
On appeal, Rayner also argues that relief was justified under Rules 60(b)(3)
(“fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
29
The trial court denied this motion. First, it reasoned that because Rule
60(b)(2) concerns newly discovered evidence that “could not have been discovered
in time to move for a new trial,” 54 and because no trial occurred here, Rule
60(b)(2) could not apply to Rayner because he could not move for a new trial
before any trial occurred. 55 The court then concluded that, in any event, Rayner’s
“proffered factual amendments” would not have changed the court’s analysis had
they been before the court when it granted the motion to dismiss. 56 Thus, the trial
court concluded that “providing [Rayner] a third opportunity to amend his
complaint would be futile.” 57
misconduct by an opposing party”) and 60(b)(6) (“any other reason that justifies
relief”). We decline to address these arguments because “[o]rdinarily, arguments
not made in the trial court are deemed waived on appeal.” Hollins v. Fed. Nat’l
Mortg. Ass’n, 760 A.2d 563, 572 (D.C. 2000).
54
Super. Ct. Civ. R. 60(b)(2) (emphasis added).
55
1/31/22 Order at 3.
56
1/31/22 Order at 3.
57
1/31/22 Order at 3.
30
We review the denial of a Rule 60(b) motion for abuse of discretion. 58 The
trial court’s analysis of Rule 60(b)(2) fell within its discretion and we will not
disturb it. Rule 60(b)(2)’s text limits it to cases in which a party can “move for a
new trial,” i.e., those cases in which a trial has occurred. No trial occurred here, so
Rayner could not seek relief under Rule 60(b)(2).
Likewise, the trial court did not abuse its discretion in denying Rayner’s
request to amend his complaint due to excusable neglect. In assessing whether a
movant demonstrated excusable neglect, the question whether the appellant
presented an “adequate defense” can be determinative. 59 When the appellant is a
plaintiff, we examine this “‘adequate defense[]’ in the context of a claim for
relief.” 60 Thus, whether a “complaint failed to state a claim for which relief could
58
See Moradi v. Protas, Kay, Spivok & Protas, Chartered, 494 A.2d 1329,
1332 (D.C. 1985) (“The decision to grant or deny [a Rule 60(b)] motion lies within
the sound discretion of the court.”).
59
See Reshard v. Stevenson, 270 A.3d 274, 283 (D.C. 2022) (“[W]e could
perhaps sustain the trial court’s determination that [appellant] has not shown
‘mistake, inadvertence, surprise, or excusable neglect,’ . . . notwithstanding the
trial court’s failure to consider all of the Starling factors, if [appellant] did not
present an adequate defense.” (quoting Super. Ct. Civ. R. 60(b)(1)).
60
Brown v. Kone, Inc., 841 A.2d 331, 334-35 (D.C. 2004).
31
be awarded” influences whether a plaintiff showed excusable neglect to merit
amending that complaint. 61
Here, the trial court concluded that Rayner’s “newly discovered evidence”
and his “proffered factual amendments” could not state a claim for which relief
could be granted. 62 In other words, granting Rayner leave to amend his complaint
due to excusable neglect “would be futile.” 63 Because the court concluded that
Rayner’s proposed amended complaint could not state a claim for relief, Rayner
did not provide an “adequate defense” and thus did not demonstrate excusable
neglect. The trial court, therefore, did not abuse its discretion in denying Rayner
the opportunity to amend his complaint.
III. Conclusion
For the foregoing reasons, we sustain the three challenged rulings and affirm
the judgment.
61
Id. at 335.
62
1/31/22 Order at 3.
63
1/31/22 Order at 3.
32
So ordered.