Kurth v. Dobricky

487 A.2d 220, 1985 D.C. App. LEXIS 311
CourtDistrict of Columbia Court of Appeals
DecidedJanuary 18, 1985
Docket83-1046
StatusPublished
Cited by19 cases

This text of 487 A.2d 220 (Kurth v. Dobricky) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kurth v. Dobricky, 487 A.2d 220, 1985 D.C. App. LEXIS 311 (D.C. 1985).

Opinion

FERREN, Associate Judge:

This is an appeal from an order granting a renewed motion for summary judgment in an action for unpaid rent, after another judge had denied such a motion. We conclude that the trial court erred in granting the renewed motion because the two motions were virtually identical, the amplified record in support of the second motion contained no meaningful new information, and there had been no intervening change in substantive law. Accordingly, we reverse and remand for trial.

I.

Charles Kurth, the defendant-appellant, contracted with Weaver Bros, in the summer of 1981 to purchase an office condominium on MacArthur Boulevard. According to Kurth, Weaver Bros.’ agent, Steve Swaney, initially promised that the condominium would be ready for occupancy by September 15. On August 14, however, Swaney informed Kurth that the office would not be ready on time but that he could temporarily use office space at 2233 Wisconsin Avenue. Swaney assured Kurth that this space was available because Weaver Bros, had a “special relationship” with the owner, Norbrick Realty Co. (of which John Dobricky, the plaintiff-appellee, is a general partner). Kurth accordingly moved into the Wisconsin Avenue property.

The MacArthur Boulevard premises were still not ready by the end of September, however, so Kurth remained on Wisconsin Avenue until his new premises were completed in January 1982.

In September 1982, Dobricky served a complaint alleging that Kurth had failed to pay rent due and owing for the period between October 1, 1981 and January 1, 1982. Kurth answered that, although he had discussed matters such as phone installation and parking availability with Swaney on August 14, there had been no discussion at that time about rent for the temporary space. Shortly thereafter, however, Swa-ney had advised him that Norbrick Realty Co. had requested a lease and required “one month’s estimated utilities” as “token rent.” Swaney also allegedly stated that Kurth would pay no other charges, except a charge for minor wiring. Kurth signed the requested lease 1 and paid one month’s *223 rent for September 1981. Kurth further answered that, during the period between September 1981 and January 1982, he had frequent discussions with Weaver Bros.’ representatives but received no demand for additional rental payments until September 1982 — eight months after he had left Wisconsin Avenue — when he was served with the summons in this action.

On November 19, 1982, Dobricky filed a motion for summary judgment, claiming that the allegations in Kurth’s answer did not constitute a sufficient defense at law and that “[tjhere is no dispute as to the amount of money due and owing under the lease.” 2 The accompanying memorandum of points and authorities invoked the parol evidence rule as a bar to consideration of alleged oral agreements made before execution of the lease and noted that the lease contained an integration clause. Dobricky also disputed any suggestion that either an alleged oral agreement or the terms of the lease itself {supra note 2) might give rise to ambiguity requiring judicial construction. Kurth opposed this motion, claiming that he had been obliged to pay only one month’s rent and that he had, in fact, paid it.

After argument, Judge Morrison denied summary judgment, concluding that the lease was ambiguous. He noted that the parties had typed in a provision setting the lease term at “one month” but that the remainder of the lease contained references to “monthly” rent and parking. Judge Morrison concluded that the record raised sufficient doubt as to “whether or not there is a genuine factual dispute ... that summary judgment is inappropriate,” citing Holladay Corp. v. Turkin, 443 A.2d 1328 (D.C.1982); Scrimgeour v. Magazine, 429 A.2d 187, 188 (D.C.1981); and Glekas v. Boss & Phelps, Inc., 437 A.2d 584, 587 (D.C.1981) (“[Wjhen there is ‘[a] question of interpretation of an integrated agreement [summary judgment should be denied if interpretation] ... depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence.’ ”) (citations omitted).

Subsequently, Dobricky’s counsel deposed Kurth, eliciting admissions that Kurth had signed the lease after “scanning” the provisions that “related to the agreement between myself and Mr. Swa-ney_” (e .g., provision 2.01, supra note 1). Kurth repeated his earlier assertion that he had, based on Swaney’s representation, understood that he was signing only a “one-month lease” and that after the month he could stay for free. The rest of the deposition consisted primarily of Kurth’s reading aloud certain other provisions of the lease at the request of Do-bricky’s counsel and acknowledging that he was familiar with commercial leases.

Dobricky then submitted a renewed motion for summary judgment, which was identical to the first motion except that the supporting memorandum of points and authorities summarized portions of the intervening deposition. Kurth failed to oppose this motion, which Judge McArdle granted by simply noting that “no opposition ... [was] filed.”

*224 II.

Kurth essentially argues that Judge McArdle erred in granting the renewed motion for summary judgment, despite Kurth’s failure to oppose it, because Judge Morrison earlier had ruled that the lease was ambiguous and because the subsequent deposition added nothing to clarify the situation. Kurth therefore seeks an opportunity to present evidence, at trial, of the oral agreement he allegedly entered into with Weaver Bros.’ agent, Steve Swa-ney (then representing Dobricky), limiting rent to one month regardless of how long Kurth had to remain on Wisconsin Avenue.

Dobricky responds that the court properly granted his renewed motion and suggests that, in light of Kurth’s deposition testimony, no genuine issues of material fact remain. Dobricky also cites Super.Ct. Civ.R. 12-I(e) for the proposition that the court may treat an unopposed motion for summary judgment “as conceded.” 3

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Super.Ct.Civ.R. 56(c); Nader v. de Toledano, 408 A.2d 31 (D.C.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). However, “the party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is required.’’ 6 Pt. 2 J. MooRE & J. Wicker, Moore’s Federal Practice ¶ 56.22[2] (2d ed.

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Bluebook (online)
487 A.2d 220, 1985 D.C. App. LEXIS 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kurth-v-dobricky-dc-1985.