Callahan V. Kabbani

No. ______

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In The Supreme Court of the United States

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F. PATRICIA CALLAHAN,

Petitioner, v.

ZIAD KABBANI and 515 DC, LLC,

Respondents.

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On Petition For A Writ Of Certiorari To The Court Of Appeals Of The District Of Columbia

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PETITION FOR A WRIT OF CERTIORARI

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F. P ATRICIA CALLAHAN 222 South Royal Avenue Front Royal, VA 22630 (202) 244-6277 [email protected]

Counsel of Record

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QUESTION PRESENTED

Do the requirements of due process under the Fifth and Fourteenth Amendments protect a homeowner from being twice abused after a forced foreclosure – first with the loss of her home, and then with the loss of proceeds from the sale?

TABLE OF CONTENTS Page QUESTION PRESENTED...... i TABLE OF CONTENTS ...... ii TABLE OF AUTHORITIES ...... iv OPINIONS BELOW ...... 1 JURISDICTION ...... 1 CONSTITUTIONAL AND PROCEDURAL PROVISIONS INVOLVED ...... 1 STATEMENT OF THE CASE ...... 2 REASONS FOR GRANTING THE PETITION ..... 6 I. THE DECISION BELOW DIRECTLY CON- FLICTS WITH ESTABLISHED PRO- CEDURES OF NINE CIRCUITS AND THE HIGHEST COURTS OF THE DIS- TRICT OF COLUMBIA AND NUMER- OUS STATES ...... 6 II. THE DECISION BELOW IS WRONG IN TWO OTHER RESPECTS ...... 10 A. The Appeals Court Erred In Denying A Petition For A Rehearing Under Rule 40 When The Basis For The En- try Of Judgment Was Shown To Be Clearly Erroneous ...... 11 B. Equitable Conversion As A Doctrine Of Liability Is Not Applicable To The Facts And Circumstances Of This Case ...... 15 CONCLUSION ...... 18 iii

TABLE OF CONTENTS – Continued Page APPENDIX Memorandum Opinion and Judgment, filed July 20, 2011 ...... App. 1 Final Order and Judgment ...... App. 5 Order denying rehearing, filed September 2, 2011 ...... App. 9 Rule 15 of the District of Columbia Superior Court Rules of Civil Procedure ...... App. 10

TABLE OF AUTHORITIES Page

CASES Deere & Co. v. Johnson, 271 F.3d 613 (5th Cir. 2001) ...... 8 Griffin v. Griffin, 327 U.S. 220 (1946) ...... 7, 10, 15 Int’l Tours & Travel, Inc. v. Kahlil, 491 A.2d 1149 (D.C. 1985) ...... 7, 12 Lowrey v. Glassman, 908 A.2d 30 (D.C. 2006) ...... 10 Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311 (1963) ...... 10 Nat’l Licorice Co. v. NLRB, 309 U.S. 350 (1940) ...... 10 SMS Assocs. v. Clay, 868 F. Supp. 337 (D.D.C. 1994) ...... 16 Walters v. Chi. & N.W. Ry., 216 F.2d 332 (7th Cir. 1954) ...... 7 Werfel v. United States, 83 F. Supp. 507 (S.D.N.Y. 1948) ...... 7, 15

CONSTITUTIONAL PROVISIONS U.S. Const. amends. V and XIV ...... 1, 7, 15

RULES Fed. R. Civ. P. 15 ...... 1, 6 District of Columbia Super. Ct. R. Civ. P. 15 ...... 1, 6, 10, 12 District of Columbia Super. Ct. R. Civ. P. 40 ...... 11 v

TABLE OF AUTHORITIES – Continued Page

OTHER PUBLICATIONS AND AUTHORITIES 61A Am. Jur. 2d Pleading § 694 (Westlaw database updated Nov. 2011) ...... 6 1

OPINIONS BELOW The memorandum opinion and judgment of the Appeals Court of the District of Columbia was entered on July 20, 2011. App. 1-4. The decision of the Superior Court of the District of Columbia is un- reported and reproduced at App. 5-8. A petition for rehearing filed by the appellant was denied on Sep- tember 2, 2011. App. 9.

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JURISDICTION This Court has jurisdiction under 28 U.S.C. § 1257(a).

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CONSTITUTIONAL AND PROCEDURAL PROVISIONS INVOLVED This case implicates the due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution, which provide in pertinent part that no person shall be deprived of life, liberty, or property without due process of law. The procedural provision involved is Rule 15 of the District of Co- lumbia Superior Court Rules of Civil Procedure, App. 10-13, which parallels Rule 15 of the Federal Rules of Civil Procedure.

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STATEMENT OF THE CASE An award of $126,000 for fair rental value of petitioner’s property during the time she challenged a wrongful foreclosure by her condominium association turned a surplus into a $45,000 deficiency. Through- out the litigation and up until the disputed award, petitioner’s liabilities had always been in terms of condominium fees and interest on mortgage notes. Petitioner had been a long-term homeowner at 4200 Cathedral Avenue, a condominium in Northwest DC. In early 2003, petitioner became embroiled in a controversy with her condominium association over lack of services and began to escrow her condo fees. When she tendered payment in response to a demand, the association refused to accept any payment unless it included attorneys’ fees for sending the demand notice. Petitioner refused on the belief that such fees were not permitted under the By-laws. The association then accelerated her condo fees for non- payment and on September 22, 2003, foreclosed on dwelling Unit 515 and Parking Space 43. These were two separate parcels bought at two different times: the dwelling Unit 515 was purchased in 1978 with a mortgage; the parking space was bought a few years later for cash. Ziad Kabbani (who ultimately founded 515 DC, LLC to handle this transaction) was the successful bidder for $96,000, subject to first and second trusts of approximately $74,111.08. He tendered a deposit of $5,000. The trusts were a $21,263.15 principal amount 3 first trust held by ABN AMRO (the “ABN AMRO Trust”) and a $51,640.62 5.5% second trust held by Wachovia (the “Wachovia Trust”), a home equity line providing for interest only payments, which were at that time $231.44 a month. On September 30, 2003, petitioner through counsel filed a wrongful foreclosure action to set aside the sale. 2003 CA 008005. In September 2004, Kabbani – by then an intervenor in the pending wrongful foreclosure action – acquired the Wachovia Trust and in April 2005 extinguished the ABN AMRO Trust. In early 2005, the condo association and Kabbani obtained an uncontested default order dismissing the case. When petitioner learned of this action after the fact, she sought to have her wrongful foreclosure action reinstated. As a condition, the trial court required her to pay all past due condo fees and interest on the notes into a court registry, as well as the principal balance of both mortgages, for a total amount of approximately $130,000. In September 2005, petitioner deposited nearly $50,000 into court, representing fees and interest but did not include the principal balances of her mortgages, and moved for reconsideration of the sums required for reinstatement. On September 29, 2005, the trial court denied petitioner’s motion for reconsideration and dismissed her case with prejudice, which she appealed. On August 31, 2007, the appeals court upheld the dismissal and issued a mandate. 4

On May 15, 2008, without any notification to petitioner, the condo association and respondent Kabbani completed the foreclosure sale at the offices of Stewart Title, which then commenced an interpleader action to determine the distribution of funds. In the fall of 2008, various answers, counter- claims, and cross claims were filed. In none of these pleadings, did Kabbani or 515 DC indicate any inten- tion to charge petitioner with fair rental value of her property. The trial court had ordered that all claims must be made by September 17, 2008. 515 DC by its counsel filed its claim to the Interpleader Fund on September 16, 2008 and did not include any reference to fair rental value. To the contrary, all claims related to interest and fees on mortgage notes, taxes paid, condominium assessments, and related expenses. On November 15, 2008, 515 DC through counsel filed a Partial Consent Motion for Judgment relative to “the settlement proceeds” and included a statement that the “time for parties to file their claims expired on or about September 17, 2008.” Included in that was a sum for the newly discovered parking space rent. Petitioner vacated the dwelling unit on or about September 25, 2008. Shortly thereafter, Kabbani learned that the parking space had been leased from January 2007 through September 2008, and filed a claim for the rent received on the space by petitioner. This amount totaled $2,625. Petitioner did not dis- pute the right of Kabbani to recover rent from May 15 5 on, as he was then the record owner of the parking space. The sum of rent for that period amounted to $562.50 (4.5 months times $125). However, petitioner objected to any claim for the time when she was record owner of the parking space, and was being assessed condo fees and taxes as the owner. At trial, Kabbani showed up with a chart for fair rental value of $2,100 per month from October 2003 through September 2008 for both the dwelling unit and the parking space, for a total of $126,000. After offsetting for condo fees and interest payments on the mortgages, the chart then added in the rental from the parking space lease of $2,625 and interest on the Wachovia note of $17,529.36 for a judgment at trial of $69,348.15. As reflected on page 3 of the June 7, 2010 Order, the court entered final judgment in favor of 515 DC in the amount of $120,639.23. On August 2, 2011, petitioner moved the appeals court to reconsider its entry of judgment dated July 20, 2011, which affirmed the trial court’s rulings. The primary focus of her petition for a rehearing was the award of $126,000 to respondent for the fair rental value of her property (at the monthly rate of $2,100) for a period of five years, from October 2003 through September 2008. On September 2, 2011, the appeals court denied the petition for rehearing, without explanation. Petitioner does not seek review by this Court of the other issues decided by the Appeals Court of the District of Columbia but rather petitions for review of 6 the primary issue in this case: the awarding of $126,000 for fair rental value of her property without requiring that a claim for such be filed pursuant to Rule 15.

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REASONS FOR GRANTING THE PETITION I. THE DECISION BELOW DIRECTLY CON- FLICTS WITH ESTABLISHED PROCE- DURES OF NINE CIRCUITS AND THE HIGHEST COURTS OF THE DISTRICT OF COLUMBIA AND NUMEROUS STATES. The court of appeals allowed an award of fair rental value, in an aggregate sum of $126,000, without requiring that the respondent’s original claims be amended under Rule 15 of the Superior Court Rules of Civil Procedure for the District of Columbia (which parallels Rule 15 of the Federal Rules of Civil Proce- dure). “A party wishing to amend a pleading general- ly must file an appropriate application or motion seeking leave to do so.” 61A Am. Jur. 2d Pleading § 694 (Westlaw database updated Nov. 2011). The trial court made the award under the principle of equitable conversion, which sprouted up on the day of trial. This principle of equitable conversion had not been advanced in previous filings or explained in the trial court’s final order and judgment dated June 7, 2010, and furthermore was in contradiction with the appeals court’s own ruling of July 20, 2011, which ruling recited the broad discretion afforded a trial 7 judge to allow a party to amend its claims under International Tours & Travel, Inc. v. Kahlil, 491 A.2d 1149 (D.C. 1985). Because the decision drastically departs from the mainstream of American jurispru- dence (as well as violating petitioner’s constitutional due process rights), it warrants review. See Werfel v. United States, 83 F. Supp. 507 (S.D.N.Y. 1948) (where plaintiff in bringing action against War Assets Ad- ministration for breach of contract to sell certain drug item as surplus property did not sue for difference between contract price and market value but for loss of anticipated profits from a resale, and failed to amend his pleadings to seek such relief, no recovery could be had for difference between contract price and market price); see also Walters v. Chi. & N.W. Ry., 216 F.2d 332 (7th Cir. 1954) (employee, who originally sued railroad for damages for discharge and for decree reinstating her to her former position with seniority, pension, vacation, and pass rights unim- paired and had not amended complaint could not change the theory of her action). The constitutional right to due process requires notice and an opportunity to be heard and defend in an orderly proceeding. U.S. Const. amends. V and XIV. It is also well established that for a court to render an award, a claim must be filed and the merits for the claim recited, including a sum certain of the amount sought. See Griffin v. Griffin, 327 U.S. 220 (1946) (where arrears of alimony awarded by a prior divorce decree were docketed as a judgment without actual notice to, or any service of process on, former 8 husband, who was thereby deprived of making any defenses open to him, there was a want of due process). Here no such procedure was followed. More- over, “in the absence of express consent, trial of unpled issues by implied consent is not lightly to be inferred under Rule 15(b), and such inferences are to be viewed on a case-by-case basis and in light of the notice demands of procedural due process.” Deere & Co. v. Johnson, 271 F.3d 613 (5th Cir. 2001) (quantum meruit claim upon which district court had entered judgment in favor of equipment seller, after amending pleadings postverdict to include such a claim, was not tried by implied consent of parties, such that district court should not have amended pleadings, where evidence as to rental value of equipment was intro- duced solely by way of offset to buyer’s claim for return of down payment, and parties never raised or litigated any whisper of quantum meruit claim at trial). Throughout the entire course of litigation, start- ing with petitioner’s wrongful foreclosure action in 2003 and her unsuccessful efforts to overturn a default judgment dismissing her suit in 2005, to the instant interpleader action in 2008 brought to determine the distribution of funds from the sale of her properties, petitioner’s liabilities were always defined in terms of condominium fees and interest on mortgage notes, all indices of ownership. Furthermore, she continued to be responsible for property taxes, anoth- er indicator of property ownership. 9

At no time during these lengthy proceedings was there any reference to petitioner being a tenant in her own home and being liable for fair rental value. The issue of “rent” first arose after respondent learned that the parking space had been rented out from January 2007 through September 2008 at the monthly rate of $125, for a total of $2,625. In November 2008, respondent so amended his claim. While petitioner argued her right to these proceeds during the time that she was record owner of the property (January 2007 to May 15, 2008), she consented to have the issue of the parking space rental be adjudicated. In support of her right to the proceeds from the parking space rental, petitioner’s counsel argued that as record owner she was entitled to “fair use” of this property. The matter of the dwelling unit was never at issue since it continued to be her primary resi- dence, and she never sought to rent out her dwelling unit while she was its legal owner. Respondent first raised the issue of rent of the dwelling unit in the joint pretrial statement dated April 2, 2009 when he sought monthly rent of $2,100 from May 15, 2008 (when he became record owner) through September 2008, when petitioner vacated the premises. This claim totaled $5,305.50 (monthly rent of $2,100 less $921 in condominium fees for both parcels). Petitioner’s counsel challenged this asser- tion, and on December 10, 2009, filed a motion in limine to exclude any expert testimony about the rental value of the property, which request was granted at the start of trial. Consequently, there was 10 no expert testimony to establish the rental market value. See Lowrey v. Glassman, 908 A.2d 30 (D.C. 2006) (expert testimony was required for property owner to prevail against neighboring veterinary clinic in action alleging that clinic’s parking spaces violated applicable zoning regulations and for private nui- sance). Petitioner was never put on notice of her poten- tial $126,000 liability from the time of the foreclosure in August 2003 to the time she vacated in September 2008. In challenging a wrongful foreclosure, it was never envisioned that her right to a hearing on the merits of her action would potentially subject her to such an extraordinary liability. Furthermore, in order to be held liable, a party must be noticed with the specifics of a claim, including the sums so sought, and these claims must be made pursuant to applicable rules of civil procedure, here Rule 15. “Adequate and timely notice . . . is a prerequisite to a valid judgment.” Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 318 (1963). “It is elementary that it is not within the power of any tribunal to make a binding adjudica- tion of the rights in personam of parties not brought before it by due process of law.” Nat’l Licorice Co. v. NLRB, 309 U.S. 350, 362 (1940); Griffin, 327 U.S. 220.

II. THE DECISION BELOW IS WRONG IN TWO OTHER RESPECTS. Review is also warranted because the ruling below is wrong on the merits. The court of appeals 11 erred in at least two other respects: (1) denying a petition for rehearing under Rule 40 when the basis for the entry of judgment was shown to be clearly erroneous, and (2) allowing a judgment based on equitable conversion because such a doctrine is not applicable to these facts and circumstances. Each error independently requires reversal.

A. The Appeals Court Erred In Denying A Petition For A Rehearing Under Rule 40 When The Basis For The Entry Of Judgment Was Shown To Be Clearly Erroneous. The court below erred in rejecting the longstand- ing requirement that all claims must be made in accordance with established rules of civil procedure, and this includes filing claims and amending claims. At trial, without notice or warning, respondent Kabbani showed up with a one-page chart claiming monthly rental of $2,100 from October 2003 through September 2008, offset by condominium fees and interest on the mortgage notes. The gross amount of the rent totaled $126,000, leaving a net of $69,348.15. App. 6-7, footnote 1. This claim was then added to a previous claim, with the trial judge entering an amount of $120,639.23. App. 6. On August 2, 2011, under Rule 40, petitioner moved the appeals court to reconsider its entry of judgment dated July 20, 2011, which affirmed the trial court’s rulings. Petitioner believed the decision 12 had overlooked or misapprehended important points of law and fact. The focus of her petition included an award of $126,000 for the fair rental value of her property (at the monthly rate of $2,100) for a period of five years, from October 2003 through September 2008. On September 2, 2011, the appeals court denied her petition without explanation. App. 9. Rule 15 allows a party to amend its pleadings only by leave of the court or by written consent of the adverse party. The rule also states that no motion to amend will be considered unless it recites that the movant sought to obtain the consent of the parties affected. Respondent Kabbani never sought leave of the court to amend his claims, filed no motion in furtherance thereof, and never recited that he sought to obtain petitioner’s consent. International Tours & Travel, 491 A.2d 1149, relied upon by the appeals court in its July 20, 2011 memorandum opinion and judgment, discusses the application of Rule 15 to a party’s motion to amend its complaint. The court in that case observed that the rule was drafted to ensure that litigation be decided upon the merits rather than upon technical pleading rules. Implicit in this was notice to the parties, thereby avoiding surprises and allowing for adequate defense. It also recited that leave to amend a complaint under Rule 15(a) is a decision committed to the sound discretion of the trial court, exercised consistent with accepted legal principles. 13

In the present case, respondent Kabbani never sought leave of the court to amend his claims, and never notified other parties, resulting in prejudice to petitioner. In addition, petitioner’s counsel, Mr. Willcox (Jan. 26, 2010 Trial Tr. 91), objected to the testimony of respondent Kabbani as an expert on fair rental value, as it was never disclosed before the 26th. However, the trial judge allowed the testimony, reasoning that Mr. Kabbani would not be testifying as an expert. No expert testified as to the fair rental value of the property and an award was made without a sound basis. (Mr. Willcox pointed out – but to no avail – that the inferior condition of the unit was not factored into the comparables, even after Mr. Kabbani testified, on page 84, that he had to spend nearly $30,000 to fix up the unit.) The end result was that the trial court exercised discretion that was not consistent with accepted legal principles. Respondent Kabbani submitted his claims on September 16, 2008, and requested that the following amounts be released from the interpleader fund: $33,240.28 refund on 10% interim interest paid at closing $14,524.33 interest on the Wachovia note $11,251.91 interest and costs related to the ABN AMRO first trust $1,360.53 refund on real property taxes paid $4,144.00 for payment of condominium fees from settlement through September 2008. 14

An additional claim of $5,000 for an alleged oral contract for a two-week extension of time to vacate the premises was denied by the trial court, which viewed this claim as a landlord-tenant matter. Subsequent to the submission of the above claims, respondent Kabbani discovered that petitioner had leased the parking space for $125 a month and added a claim for $2,625 as equitable owner of the property. In his supplemental claims filed with the trial court in November 2008, respondent Kabbani also added $1,293.36 in property taxes he had paid at closing. This latter claim was not disputed and a Summary Judgment of $18,093.19 was agreed to and granted. While disputing the amount claimed by respondent Kabbani for leased income from the parking space, petitioner consented to the inclusion of this new claim for the trial court’s review. Petitioner, through counsel, had claimed “fair use” of this parcel, hence the introduction of this concept to the discus- sions. However, there was never any reference by petitioner or her counsel, Mr. Willcox, to any application of rental value of the dwelling unit. Petitioner repeatedly emphasized that there were two distinct parcels in the foreclosure action, one a parking space and the other the dwelling unit. Nowhere in court records or on the docket sheet does it show that respondent Kabbani had petitioned the court to amend his claims to add fair rental value of the dwelling unit. Without the filing of such a 15

claim, the lower court cannot make a monetary award. Werfel, 83 F. Supp. 507 (where plaintiff in bringing action against War Assets Administration for breach of contract to sell certain drug item as surplus property did not sue for difference between contract price and market value but for loss of anticipated profits from a resale, and failed to amend his pleadings to seek such relief, no recovery could be had for difference between contract price and market price). Furthermore, the entry of judgment for fair rental value absent the filing of claims is clearly erroneous and a violation of petitioner’s due process rights. See Griffin, 327 U.S. 220. The constitutional right to due process requires notice and an opportunity to be heard and defend in an orderly proceeding. U.S. Const. amends. V and XIV.

B. Equitable Conversion As A Doctrine Of Liability Is Not Applicable To The Facts And Circumstances Of This Case. The doctrine of equitable conversion holds that “equity regards as having been done that which ought to be done, and which equity would order done – namely, the con- veyance of the title to the buyer and payment of the price to the seller.” ROGER A. CUNNINGHAM, WILLIAM B. STOEBUCK, DALE A. WHITMAN, THE LAW OF PROP- ERTY, 735 (2nd ed. 1993) [hereinafter CUNNINGHAM]. The District of Columbia both recognizes and adheres to the doctrine of equitable conversion. See Liberty National 16

Bank of Washington v. Smoot, 135 F.Supp. 654, 659 (D.C.1955) (holding that “the District of Columbia follows the general rule that a contract of sale of land effects an equitable conversion of the [the land] into per- sonalty . . . ”); see also Gustin v. Stegall, 347 A.2d 917 (D.C.1975). Equitable conversion makes sense because of the willingness of court to grant specific performance of an enforceable real estate contract. [As has presently occurred]. Because parties to a real estate contract are able to obtain a decree ordering specific performance of their contract, they can under the doctrine qualify as equitable owners of the title to the property or purchase money even before they bring an action for specific performance of the contract. 6A RICHARD R. POWELL & PATRICK J. ROHAN, THE LAW OF REAL PROPERTY, at 81-98 (1994) [hereinafter POWELL & ROHAN]. In all equitable conversion situations, three prerequisites must be met. First, the contract must be valid. Second, the contract must be enforceable. Third, the contract must affect real estate. Id. at 81-99 to 81- 100. SMS Assocs. v. Clay, 868 F. Supp. 337, 340 (D.D.C. 1994). 17

The interpleader action was brought by Stewart Title to determine the distribution of funds collected at settlement in May 2008, which were being held in escrow by Stewart Title and in court registries. These amounts totaled approximately $165,000, and were to be distributed in the following order of priority: claims by the condominium association, claims for interest on the mortgage notes, reimbursable expenses to the respondent, and lastly the residue to petitioner. As understood by the parties, the interpleader action did not envision liability to exceed the sums then being held. In filings with the court, statements were made describing the action of the interpleader “seeking to determine the distribution of approximately $165,000,” and that the Interpleader Agree- ment (of May 19, 2008) “covers Settlement Proceeds (disbursement of the sales proceeds)” and “claims against the escrow.” Furthermore, the Joint Pre-Trial Statement makes reference only to the interpleader funds. On page 3, under Nature of the Case in Paragraph C, the text reads: This litigation seeks a judicial decision as to the rights and priorities of the 4200 Cathe- dral Condominium Unit Owners Association (“4200”), Patricia Callahan (“Callahan”), Ziad Kabbani and 515 DC LLC (“515”) to some or all of an interpleader fund in the amount of $119,705.91. A motion has been granted in the case of F. Patricia Callahan v. 18

4200 Cathedral Condo Assoc., et al, Civil Ac- tion No. 2003 CA 8005 to supplement the interpleader fund by transferring additional court registry funds in the amount of $45,861.93 from that case to this proceeding. All of the parties in this proceeding have asserted conflicting claims to some or all of the fund. It is difficult to understand how the doctrine of equitable conversion was applicable here and could have been manipulated by respondent to impose further liability on petitioner. This was not one of those situations where the doctrine is typically ap- plied – where there is a contract for the sale of lands between the parties. Respondent here acquired the property via a forced foreclosure and had no contractual arrangement with petitioner.

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CONCLUSION For all the foregoing reasons, Petitioner respectfully asks this honorable Court to grant the petition. Respectfully submitted,

F. P ATRICIA CALLAHAN 222 South Royal Avenue Front Royal, VA 22630 (202) 244-6277 [email protected] Counsel of Record App. 1

DISTRICT OF COLUMBIA COURT OF APPEALS No. 10-CV-840

F. P ATRICIA CALLAHAN, APPELLANT, v. CAB3971-08

515 DC, LLC, ET AL, APPELLEE. Appeal from the Superior Court of the District of Columbia Civil Division (Hon. Natalia Combs Greene, Trial Judge) (Submitted June 30, 2011 Decided July 20, 2011)

Before WASHINGTON, Chief Judge, FISHER, Associ- ate Judge, and FARRELL, Senior Judge.

MEMORANDUM OPINION AND JUDGMENT (Filed Jul. 20, 2011)

PER CURIAM: Following a bench trial in this interpleader action arising from the sale at foreclosure of a condominium unit (4200 Cathedral Avenue, Northwest., No. 515), formerly owned by appellant Callahan, to appellee 515 DC, LLC, the trial judge entered separate monetary judgments against Calla- han in favor of 515 DC and appellee 4200 Cathedral Condominium Unit Owners Association (“the Associa- tion”), and similarly awarded attorney’s fees against Callahan in favor of the Association. As relevant here, the sums which the judge ordered Callahan to pay were chiefly for amounts 515 DC had paid to acquire (and extinguish) prior mortgage debts on the property, App. 2

a sum representing the fair market value of the property during the period Callahan held over (and enjoyed “fair use” of it) as occupant after the foreclosure,1 and interest 515 DC had to pay at settlement that accrued pending Callahan’s later-dismissed suit for wrongful foreclosure. See Callahan v. 4200 Cathe- dral Condominium, 934 A.2d 348 (D.C. 2007) (Calla- han I). On appeal, Callahan challenges on several grounds the monetary awards to 515 DC, and also contests the award of attorney’s fees. We find no error in the trial court’s ruling and affirm. First, given the broad discretion the trial court enjoys on this subject, the judge did not err in allowing 515 DC to amend its claims to include one for the fair market value of the property during the holdover. See Super. Ct. Rule Civ. Pr. 15; International Tours & Travel, Inc. v. Khalil, 491 A.2d 1149, 1152 (D.C. 1985). Second, as a matter of both law and equity, the judge properly required Callahan to reimburse 515 DC for the interest that accrued while her wrongful foreclosure suit effectively prevented settlement on the sold property. Not only did the judge correctly apply the doctrine of impracticability of performance, see, e.g., Whelan v. Griffith Consumers Co., 170 A.2d 229 (D.C. 1961), but, as she explained, “it would be manifestly unjust to reward Ms. Callahan with the interest that

1 The judge found that Callahan had “remained in the property until about October 1st of 2008.” App. 3

515 DC was forced to pay because of [her] actions” in unsuccessfully seeking to undo the foreclosure sale.2 Third, Callahan mistakenly argues that the award for the fair rental value of the property falls afoul of the Rental Housing Act, including its regis- tration provisions. Even if this argument had been preserved (and it was not), Callahan points to no evidence that 515 DC assumed the role of a housing provider, collected rent from her, or had anything resembling a lease arrangement with her within the meaning of the Act. Finally, the trial judge properly awarded attorney’s fees to 4200 Cathedral for the reasons state [sic] at pages 4-6 of the Association’s brief. See D.C. Code § 42-1903.13(c)(6)(B); Concord Enterprises, Inc., v. Binder, 710 A.2d 219, 225 (D.C. 1988 (contractual award of fees as exception to the “American Rule”).

2 In Callahan I, this court recognized that Callahan had “prevented [515 DC] for two full years from enjoying the benefits of [its] purchase.” 934 A.2d at 355. Callahan cites no legal authority for her additional argument that the court lacked power to order reimbursement of interest or other payments to 515 DC beyond those funds held in the court registry pendente lite, and we reject the point. App. 4

Affirmed. ENTERED BY DIRECTION OF THE COURT: /s/ Julio A. Castillo Julio A. Castillo Clerk of the Court [Certificate Of Service Omitted In Printing]

App. 5

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division

STEWART TITLE ) GROUP, LLC. ) ) Case No. 2008 Plaintiff, ) CA 003971 B v. ) Judge Natalia M. ) Combs Greene 515 DC, LLC, et al. ) Next Event: None Defendants and ) Cross-Claimants )

FINAL ORDER AND JUDGMENT Upon consideration of the Joint Motion of the 4200 Cathedral Condominium Unit Owners Associa- tion (the “Association”), 515 DC, LLC (“515 DC”) and Ziad Kabanni for Entry of a Final Judgment, the Release of Funds in the Registry of the Court and for a Deficiency Judgment (the “Joint Motion”) the Opposition thereto, and the entire record herein, the Joint Motion is granted in part. This matter came before the Court for trial. After hearing evidence, the Court ruled in favor of the Defendant Association against Defendant F. Patricia Callahan and awarded a sum in the amount of $55,382.83 representing the principle of unpaid fees to the Association. The Court also awarded interest and attorney’s fees to the Association provided that the Association submit an affidavit regarding attorneys’ fees as well as a recalculation of interest App. 6

through October 2008 using the same calculations accepted at trial. The Court gave Callahan ten days from the submission of the affidavit to challenge the reasonableness of the attorneys’ fees. The Association submitted the affidavit for attorneys’ fees in the amount of $23,728.52 and Defendant Callahan did not challenge the reasonableness of these fees. The Association also submitted the recalculation of interest using the same formula accepted at trial. The Court finds that judgment should be entered in favor of the Association against Callahan in the amount of $23,728.52 representing attorney’s fees and $66,398.19 representing the principle of unpaid fees plus interest through October 2008, for a total judgment in the amount of $90,126.71. At trial, the Court also ruled in favor of Defen- dant 515 DC against Callahan in the amount of $74,870.36, representing the value of the Wachovia note, the fair use of the condominium under the principle of equitable conversion and interest. The Court held during trial that this award was in addition to the $51,290.08 awarded to 515 DC at summary judgment in recognition of the ABN-AMRO note assumed by 515 DC as well as taxes and condominium fees paid by 515 DC on behalf of Callahan. The Court accordingly enters final judgment in favor of 515 DC in the amount of $120,639.23.1

1 The Court notes that the $120,639.23 requested in the Joint Motion is less than the $126,160.44 awarded to defendant (Continued on following page) App. 7

Callahan submitted an Opposition to the Joint Motion that attempts to re-litigate the issues decided at trial even though the Court had already considered and denied Callahan’s Motion for Reconsideration for Fair Rental Value. After considering the Opposition, the Court finds no basis to deny the Joint Motion. Even if the Court were to consider Callahan’s Opposi- tion to be a motion for a new trial pursuant to D.C. Sup. Ct. Civ. P. Rule 59, the Court finds no basis to grant such a motion. Accordingly, it is this 7th day or June hereby ORDERED that a final judgment be entered against F. Patricia Callahan in favor of the Associa- tion in the amount of $66,398.19 with interest from the date of judgment at the statutory rate provided by law plus attorney’s fees in the amount of $23,728.52 for a total of $90,126.71; it is further ORDERED that the sum of $90,126.71 be released to the Association from the interpleader fund in the Registry of this Court forthwith and, upon release of said funds, that the judgment entered

515 DC at trial. The Joint Motion arrived at this discrepancy by valuing the January 28, 2010 ruling regarding 515 DC at $69,348.15 while the Court had actually granted judgment in the amount of $74,870.36. The Joint Motion also incorrectly asserted that $51,291.08 had been awarded to 515 DC as part of summary judgment whereas the actual amount was $51,290.08. Based on the Joint Motion and Opposition thereto, the Court finds that judgment in the lesser amount of $120,639.23 will be awarded. App. 8 herein in favor of the Association should be marked as paid and satisfied; it is further ORDERED that a final judgment be entered against F. Patricia Callahan in favor of 515 DC in the amount of $120,639.23 with interest at the statutory rate provided by law; it is further ORDERED that the judgment set forth in paragraph three (3) be credited in the amount of $29,579.20 and that sum be released to 515 DC from the interpleader fund in the Registry of this Court; and that the sum of $45,861.93 on deposit in the Court Registry in Case No. 2003 CA 8005 be released to 515 DC, leaving a balance on said judgment in favor of 515 DC in the amount of $45,198.10 with interest from the date of this final judgment until paid; it is further ORDERED that the Motion to Set a Status Conference is DENIED AS MOOT; SO ORDERED. /s/ N M Combs Greene Natalia M. Combs Greene (Signed in Chambers) [Certificate Of Service Omitted In Printing]

App. 9

District of Columbia Court of Appeals No. 10-CV-840 F. PATRICIA CALLAHAN, Appellant, CAB3971-08 v. 515 DC, LLC, ET AL., Appellees. BEFORE: Washington, Chief Judge Fisher, Associate Judge; Farrell, Senior Judge.

ORDER (Filed Sep. 2, 2011) On consideration of appellant’s pro se petition for rehearing it is ORDERED that the petition for rehearing is denied. PER CURIAM [Certificate Of Service Omitted In Printing]

App. 10

Rule 15. Amended and supplemental pleadings. (a) Amendments. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. If a pleading is dismissed or stricken with leave to amend, an amended pleading must be filed within 20 days unless otherwise provided by Order of Court. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichev- er period may be the longer, unless the Court otherwise orders. No motion to amend will be considered unless it recites that the movant sought to obtain the consent of parties affected, that such consent was denied and the identity of the party or parties who declined to consent. (b) Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to App. 11 conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the Court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The Court may grant a continuance to enable the objecting party to meet such evidence. (c) Relation back of amendments. An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the App. 12 summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The delivery or mailing of process to the United States Attorney, or United States Attorney’s designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of subparagraphs (A) and (B) of the above paragraph with respect to the United States or any agency or officer thereof to be brought into the action as a defendant; and the delivery or mailing of process to the Corporation Counsel of the District of Columbia, or an agency or officer who would have been a proper defendant if named, similarly suffices with respect to the District of Columbia or an agency or officer thereof to be brought into the action as a defendant. (d) Supplemental pleadings. Upon motion of a party the Court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be App. 13 granted even though the original pleading is defective in its statement of a claim for relief or defense. If the Court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, speci- fying the time therefor. COMMENT Identical to Federal Rule of Civil Procedure 15 except for additions to paragraph (a) which specify a time limit within which an amended pleading must be filed, a requirement that the movant seek to obtain the consent of affected parties and an addition to the last sentence of paragraph (c) that refers to amendments which seek to change party designations so as to bring in the District of Columbia or an official or agency thereof as a defendant. See Rule 54(c).