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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CV-0033
MAHMOOD NAWAZ, APPELLANT
V.
BLOOM RESIDENTIAL, LLC, et al., APPELLEES.
Appeal from the Superior Court of the District of Columbia (2021-CA-000703-B)
(Hon. Robert R. Rigsby, Trial Judge)
(Submitted February 14, 2023 Decided February 8, 2024)
Richard J. Bianco was on the brief for appellant.
Stephen O. Hessler was on the brief for appellee William Clayton Batchelor, Successor Trustee.
Spencer B. Ritchie, with whom Richard W. Luchs, and Gwynne L. Booth, were on the brief, for appellee Bloom Residential, LLC.
Before EASTERLY and MCLEESE, Associate Judges, and GLICKMAN, Senior Judge.
EASTERLY, Associate Judge: Appellant Mahmood Nawaz entered into a
contract with appellee William Clayton Batchelor, the Successor Trustee of Francis 2
Lorson 40th Street, NW (“the Trustee”) to purchase a four-unit property at 2216 40th
Street, NW (“the property”). The Trustee and co-appellee Bloom Residential, LLC,
who together held all the tenants’ assigned rights under the Tenant Opportunity to
Purchase Act of 1980, D.C. Code § 42-3404.01 to -3404.13 (“TOPA”), subsequently
entered into a contract for Bloom Residential to purchase the property. After they
were unable to close on the sale on the contracted date for settlement because
Mr. Nawaz maintained he still had an enforceable contract, the Trustee and Bloom
Residential successfully sued Mr. Nawaz for a declaratory judgment that their
contract held priority over Mr. Nawaz’s contract and that his third-party contract,
though earlier in time, was unenforceable under TOPA.
Mr. Nawaz now challenges the Superior Court’s decision to award summary
judgment on Bloom Residential and the Trustee’s claim for declaratory relief under
TOPA, as well as the court’s decision to direct payment of Bloom Residential’s and
the Trustee’s fees and costs and to impose sanctions for Mr. Nawaz’s failure to post
security pursuant to D.C. Code § 15-703(a) (requiring out-of-state plaintiffs to post
security). We affirm the Superior Court’s ruling on the declaratory judgment claim
and reject Mr. Nawaz’s arguments that the Bloom Residential contract had expired
or that the Trustee was obligated to close on his contract before Bloom Residential
had an opportunity to make an offer to purchase the property—arguments which
reflect a fundamental misunderstanding of TOPA. We also reject Mr. Nawaz’s 3
argument that he was entitled to discovery before the Superior Court ruled on the
declaratory judgment claim. Because Mr. Nawaz does not appear to raise additional
grounds to challenge the Trustee’s entitlement to summary judgment on his claim
that Mr. Nawaz tortiously interfered with the Bloom Residential contract, we affirm
the Superior Court’s global summary judgment award as to that claim as well.
Lastly, we affirm the Superior Court’s order awarding attorney’s fees and costs to
both Bloom Residential and the Trustee but reverse its order sanctioning Mr. Nawaz
for failing to post security for the Trustee’s costs under D.C. Code § 15-703(a),
which we hold has no application to Mr. Nawaz as an out-of-state counterclaimant.
I. Facts and Procedure
Around September 2020, the Trustee informed the tenants of the four-unit
property that he intended to sell. Unit #3 stood vacant. The tenants in Units #2 and
#4 promised to assign the Trustee their purchase rights under TOPA upon receipt of
notice of a third-party offer. The tenants in Unit #1 retained their TOPA rights at
this time.
On October 5, 2020, the Trustee ratified a GCAAR form contract 1 to sell the
1 GCAAR (the Greater Capital Area Association of Realtors) is a local realtor association that, among other things, provides members with access to standard real estate forms. Real Estate Forms, Greater Capital Area Ass’n of Realtors, https://gcaar.com/realtor-tools/contract-forms; https://perma.cc/5QB2-8KQF (last visited Jan. 5, 2024). 4
building to Mr. Nawaz. The Trustee also ratified a Tenancy Addendum for the
District of Columbia which made it clear that, pursuant to TOPA, the property’s
tenants had a right to notice of Mr. Nawaz’s third-party contract and would retain “a
right of first refusal” to purchase the property on the same terms within fifteen days
of being given notice. 2 The Trustee provided the property’s tenants notice of the
Nawaz contract on October 9. On October 12 and 25, the Unit #2 and #4 tenants
executed an assignment of their TOPA rights to the Trustee.
On October 17, 2020, the tenants in Unit #1 assigned their TOPA rights to
Bloom Residential. Bloom Residential then informed the Trustee on October 19,
2020, that it wished to exercise its assigned right of first refusal under TOPA; it was
“ready to perform under the terms presented” in the Nawaz contract; and it would
be “ready to go to closing on or before December 15th, 2020, if the Seller responds
quickly to this assignment.” On November 4, 2020, Bloom Residential and the
Trustee ratified a contract using the GCAAR form that was nearly identical to the
2 In fact, tenants in a 2–4-unit building may have more time to exercise their right of first refusal under D.C. Code § 42-3404.10 (“The tenants may respond to an owner’s offer first jointly, then severally. Upon receipt of a written offer of sale from the owner that includes a description of the tenant’s rights and obligations under this section, or upon the Mayor’s receipt of a copy of the written offer of sale, whichever is later, a group of tenants acting jointly shall have 15 days to provide the owner and the Mayor, by hand or by sending by certified mail, with a written statement of interest. Following that time period, if the tenants acting jointly have failed to submit a written statement of interest, an individual tenant shall have 7 days to provide a statement of interest to the owner . . . .”). 5
Nawaz contract and included a Tenancy Addendum. Like the Nawaz contract, the
Bloom Residential contract required title to be “good of record, marketable, and
insurable by a licensed title insurance company with no additional risk premium.”
In addition, the Bloom Residential contract included a statement that
The Contract is being entered into pursuant to the exercise of tenant rights under the Rental Housing Conversion and Sale Act, D.C. code sec 43-402 et seq (“Act”). To the extent the terms of the Contract are inconsistent with the Act, the provisions of the Act shall apply.
The Bloom Residential contract also included a General Addendum that stated that
the property’s tenants had been given notice of a third-party contract—clearly the
Nawaz contract—on October 9, 2020, and stated that settlement “shall take place on
or before December 15, 2020.”
Also on November 4, 2020, the Trustee asked Mr. Nawaz to release him from
their contract. Mr. Nawaz refused. As a result, Bloom Residential’s title insurance
company would not issue title insurance for the property, and the Trustee and Bloom
Residential could not close by the December 15, 2020, deadline. The Trustee and
Bloom Residential then sued Mr. Nawaz in Superior Court on March 5, 2021.
In their complaint, Bloom Residential and the Trustee alleged that they were
entitled to a declaratory judgment that, pursuant to TOPA, the Bloom Residential
contract was valid and binding and the Nawaz contract was void, and requested an
award of attorney’s fees. The Trustee also alleged that Mr. Nawaz tortiously 6
interfered with the Bloom Residential contract, entitling the Trustee to damages,
attorney’s fees, and costs.
Mr. Nawaz, initially appearing without a lawyer, answered the complaint and,
as relevant here, denied that the “Bloom Contract . . . supersedes the Nawaz contract
pursuant to TOPA.” In the preface to his counterclaims, Mr. Nawaz asserted that
because the Trustee and Bloom Residential had failed to timely close on their
contract, the Bloom Residential contract had “lapsed,” and his third-party contract
was “restored to its priority.” On this basis, Mr. Nawaz requested (1) a declaratory
judgment that the Bloom Residential contract expired on the settlement date—
December 15, 2020—designated in that contract and was therefore void and (2) an
order that the Trustee perform on the Nawaz contract. In a series of orders detailed
below, the Superior Court denied Mr. Nawaz’s requests and granted relief to the
Trustee and Bloom Residential.
A. First Omnibus Order
The Superior Court’s first omnibus order, issued on August 2, 2021, awarded
Bloom Residential summary judgment on its request for declaratory relief and on
Mr. Nawaz’s counterclaims. 3 After finding that it was undisputed that the Trustee
3 The court also granted the Trustee summary judgment but, by a separate order issued that same day, vacated this award, acknowledging that it had granted Mr. Nawaz’s newly retained counsel leave to file an opposition to the Trustee’s summary judgment motion which the Trustee had filed after Mr. Nawaz filed his pro 7
and Bloom Residential possessed all the TOPA rights to the property at the time they
entered into a contract and that Mr. Nawaz did “not dispute the superiority of
Bloom’s TOPA rights to his purchase rights,” the court rejected Mr. Nawaz’s
argument that the Bloom Residential contract had lapsed because the parties had
failed to close by December 15, 2020. The court reasoned that the December date
was intended to be “a placeholder” and that, even if the parties had not agreed to an
extension, the COVID-19 Response Emergency Amendment Act of 2020, D.C.
Act 23-247 § 312(a), 67 D.C. Reg. 3093 (Mar. 17, 2020), suspended all tenant
deadlines under TOPA. Having concluded that Bloom Residential was a prevailing
party under TOPA, the court awarded it attorney’s fees and costs under D.C. Code
§ 42-3405.03 (authorizing, among other things, an “aggrieved” tenant to seek
judicial enforcement of any right or provision under TOPA, and, “upon
prevailing, . . . seek an award of costs and reasonable attorney[’s] fees”).
The Superior Court also denied Mr. Nawaz’s motion to reconsider its order
granting the Trustee’s unopposed request that Mr. Nawaz, a Virginia resident, be
se opposition to Bloom Residential’s earlier-filed motion for summary judgment. In fact, the Superior Court had, at a July 2, 2021, status hearing, orally granted Mr. Nawaz’s counsel an opportunity to file a new opposition motion to both Bloom Residential’s and the Trustee’s motions for summary judgment. But rather than vacating the order granting summary judgment as to both parties, the Superior Court, in its August 2, 2021, order, left standing its August 2, 2021, grant of summary judgment to Bloom Residential. 8
required to post security for costs under D.C. Code § 15-703(a) (authorizing a
“defendant in a suit instituted by a nonresident of the District of Columbia” to require
a plaintiff to post “security for costs and charges that may be adjudged against him”).
Apparently hewing to the Trustee’s theory that he was a defendant to Mr. Nawaz’s
counterclaims, the court stated that it “remain[ed] satisfied” on the record presented
that security for costs was appropriate.
B. Second Omnibus Order
The Superior Court’s second omnibus order, issued on August 26, 2021,
awarded the Trustee’s motion for summary judgment on his declaratory judgment
claim, duplicating word for word its analysis in its first omnibus order addressing
Bloom Residential’s request for a declaratory judgment. 4 In doing so, the court did
not address Mr. Nawaz’s new argument through retained counsel disputing that “the
4 As noted, see n.3 supra, at a July 2021 status hearing, the court orally granted Mr. Nawaz’s new counsel leave to file an opposition to both the Trustee and Bloom Residential’s pending summary judgment motions by August 2, 2021. But the day Mr. Nawaz’s joint opposition was due, the court went ahead and issued summary judgment to the Trustee and Bloom Residential. Partially recognizing its mistake, the court then vacated the summary judgment order only with respect to summary judgment for the Trustee. At that point, Mr. Nawaz’s counsel did not move for reconsideration or argue that the court had given him more time to file an opposition to both motions. He simply acted in conformance with the court’s oral ruling and filed a joint opposition to both the Trustee’s and Bloom Residential’s requests for summary judgment on the merits. The Superior Court’s second omnibus order did not revisit its decision to award Bloom Residential summary judgment and only considered summary judgment in favor of the Trustee. 9
Nawaz Contract was subordinate to the Bloom [Residential] Contract.” The court
also failed to address Mr. Nawaz’s new argument that he should have been granted
discovery pursuant to Rule 56(d) before the court ruled on the Trustee’s motion for
summary judgment. 5
Analyzing the Trustee’s TOPA claim but saying nothing about its claim for
tortious interference, the court concluded that the Trustee was entitled to summary
judgment in full and to fees under TOPA, D.C. Code § 42-3405.03. The court also
granted the Trustee’s motion for sanctions based on Mr. Nawaz’s continued failure
to post security pursuant to D.C. Code § 15-703(a), as previously directed.
C. Third Omnibus Order
In its third omnibus order, the Superior Court denied Mr. Nawaz’s motion for
reconsideration of its Second Omnibus Order, in which he challenged the court’s
failure to address his arguments that the Nawaz contract was not subordinate to the
Bloom Residential contract. Mr. Nawaz also continued to assert that he was entitled
to “full discovery related to facts that” he claimed “the parties agree are material to
the disposition of the case.” The court summarily rejected Mr. Nawaz’s motion for
reconsideration, concluding that Mr. Nawaz had presented “no error of law, or new
5 Mr. Nawaz had asserted in his pro se opposition to Bloom Residential’s motion for summary judgment that discovery was needed but he did not cite Rule 56(d) or file a motion with the requisite affidavit requesting discovery under the rule. 10
evidence,” and awarded the Trustee and Bloom Residential the attorney’s fees and
costs in the specific amounts they had requested.
This timely appeal followed.
II. Analysis
A. The Superior Court’s Grant of Summary Judgment to Bloom
Residential and the Trustee on Their Claim for a Declaratory Judgment
Mr. Nawaz challenges the Superior Court’s decision to award summary
judgment to Bloom Residential and the Trustee on the merits of their declaratory
judgment claims. “We review a grant of summary judgment de novo, applying the
same standard as the trial court.” Kolowski v. District of Columbia, 244 A.3d 1008,
1012 (D.C. 2020) (internal quotation marks and italics omitted). The moving party
“is entitled to summary judgment only upon demonstrating that no genuine issue of
material fact remains for trial and that judgment is warranted as a matter of law.”
MobilizeGreen, Inc. v. Cmty. Found. for the Cap. Region, 267 A.3d 1019, 1024
(D.C. 2022) (internal quotation marks omitted). To determine whether summary
judgment is proper, “[w]e view the record in the light most favorable to the non-
moving party.” Kolowski, 244 A.3d at 1013 (internal quotation marks omitted).
In granting Bloom Residential and the Trustee summary judgment, the
Superior Court found that Mr. Nawaz had conceded that the Bloom Residential
contract was superior under TOPA to the Nawaz contract and rejected Mr. Nawaz’s 11
argument that the Bloom Residential contract expired when the parties did not close
by the closing date specified in the contract, December 15, 2020. On appeal to this
court, Mr. Nawaz renews the arguments he made in his second opposition motion
(arguments the Superior Court did not address, see I.B. supra) and disputes that the
Bloom Residential contract was superior under TOPA to the Nawaz contract.
Mr. Nawaz asserts (1) that his contract with the Trustee had priority status under the
statute because “TOPA compliance” was achieved, either when the tenants in Units
#2 and #4 assigned their purchase rights to the other party to his contract, the Trustee,
or when the tenants in Unit #1 assigned their rights to Bloom Residential.
Alternatively, Mr. Nawaz argues, as he did in his first and second opposition
motions, that (2) the Bloom Residential contract became void once the parties failed
to close on December 15 and the parties failed to agree (or put forward any evidence
of an agreement) to extend the closing deadline, and (3) the Superior Court’s grant
of summary judgment was premature because the parties had not yet conducted
discovery. We address and reject each of these arguments in turn.
1. Superiority of the Bloom Residential Contract under TOPA
Mr. Nawaz argues as he did in Superior Court that his contract was in fact
superior to the Bloom Residential contract under TOPA. Although the Superior
Court did not acknowledge, much less address this argument, we conclude that we
need not remand this claim to the court for consideration in the first instance. For 12
the reasons set forth below, this argument fails as a matter of law, and remand would
be futile. See, e.g., United States v. Brown, 700 A.2d 760, 762 (D.C. 1997)
(declining to remand where trial court failed to make essential findings because there
could “be only one result . . . as a matter of law”).
Because Mr. Nawaz’s argument about the superiority of his third-party
contract reflects a fundamental misunderstanding of TOPA, we review some basic
principles. TOPA is a remedial statute that aims to “protect tenant[s]” by giving
tenants the “opportunity to purchase” housing accommodations before the owner
may sell those accommodations to a third party. 1618 Twenty-First St. Tenants’
Ass’n v. Phillips Collection, 829 A.2d 201, 203-04 (D.C. 2003). Any third-party
contract to purchase housing is “conditional upon [the] exercise of tenant rights.”
D.C. Code § 42-3404.04. Among the rights that TOPA extends to tenants is “a right
of first refusal on any sale contract the landlord negotiates with a third party.” 1836
S Street Tenants Ass’n, Inc. v. Est. of B. Battle, 965 A.2d 832, 838 (D.C. 2009).
TOPA also allows tenants to “broadly assign[]” their rights to third parties.
Morrison v. Branch Banking & Trust Co. of Va., 25 A.3d 930, 935 (D.C. 2011); see
D.C. Code § 42-3404.06. Tenants may assign their purchasing rights to any party,
Allman v. Snyder, 888 A.2d 1161, 1167-68 (D.C. 2005), and to ensure that the
assignment is “something of value” that can benefit tenants, id. at 1169-70, the
assignee stands fully in the shoes of the tenants vis-à-vis any purchase. 13
Here, it is undisputed that, after learning of the proposed sale to Mr. Nawaz,
the Unit #1 tenants assigned their TOPA rights to Bloom Residential. Bloom
Residential then exercised its assigned right of first refusal and contracted to buy the
subject property from the Trustee. Because Bloom Residential contracted to
purchase the property as a TOPA-assignee, its contract supplanted Mr. Nawaz’s
conditional right to purchase the subject property pursuant to his third-party contract.
See D.C. Code § 42-3404.04.
Mr. Nawaz is mistaken that his contract was superior because “TOPA
compliance” was achieved before the Bloom Residential contract was signed. First,
the fact that the tenants in two of the units assigned their TOPA rights to the Trustee
as seller did not give Mr. Nawaz’s contract any special status. The Trustee could
acquire the tenants’ TOPA rights by assignment because tenants may assign their
rights to anyone. D.C. Code § 42-3404.06; Allman, 888 A.2d at 1167-68. But
because TOPA only affords special rights to tenant assignees hoping to purchase
housing accommodations, not to sell them, see D.C. Code § 42-3404.02(a), the
Trustee acquired these rights for the purpose of ensuring no one else could exercise
them—not for the purpose of purchasing the property which the Trust already
owned. The only assignment of rights that gave any contract superiority was the
assignment of the Unit #1 tenants’ rights to Bloom Residential as a buyer.
Mr. Nawaz’s ability to purchase the property as a third-party buyer was therefore 14
contingent on whether Bloom Residential decided to exercise its assigned TOPA
rights. See, e.g., William J. Davis, Inc. v. Tuxedo LLC, 124 A.3d 612, 618 (D.C.
2015) (explaining that “a third-party purchaser only has a conditional right to the
property, subject to the exercise of tenant rights under the Act”) (internal quotation
marks omitted). Once Bloom Residential chose to purchase the property,
Mr. Nawaz’s contract took a back seat.
Second, Mr. Nawaz’s contract did not become enforceable under TOPA when
the Unit #1 tenants assigned their TOPA rights to Bloom Residential. Mr. Nawaz
claims that at that point, with all three tenants having assigned their rights, the
Trustee achieved “TOPA Compliance,” as defined in the Nawaz contract, triggering
a duty to settle even before Bloom Residential had the opportunity to enter into a
contract with the Trustee. But the statute, not the Nawaz contract, defines the
parties’ obligations under TOPA, see, e.g., D.C. Code § 42-3404.07 (tenant’s right
to receive an offer of sale under TOPA is not waivable), and, under the statute, the
Trustee was not free to proceed to settlement with Mr. Nawaz once the Unit #1
tenants had assigned their rights, see D.C. Code §§ 42-3404.08 (requiring owners to
give tenants time to exercise their right of first refusal); 42-3404.10 (granting tenants
time to respond to an offer of sale, negotiate a contract, and secure financing).
Indeed, had the Trustee proceeded to closing with Mr. Nawaz, without negotiating
with Bloom Residential, he would have violated the statute. See D.C. Code 15
§§ 42-3404.02 (granting tenants the opportunity to purchase); 42-3404.05(a)
(requiring owners to negotiate in good faith). 6 Rather, TOPA obligated the Trustee
to treat Bloom Residential as a tenant and give it the “opportunity to purchase” the
property, an opportunity Bloom Residential attempted to exercise. See D.C. Code
§ 42-3404.02(a); Allman, 888 A.2d at 1169-70 (TOPA assignees must be treated as
tenants for purposes of the Act).
In short, Mr. Nawaz is wrong to claim that his contract held priority in spite
of Bloom Residential’s attempt to exercise its TOPA rights.
2. Viability of the Bloom Residential Contract under TOPA
Next, we consider whether, even if initially superior to the Nawaz contract,
the Bloom Residential contract lost priority and expired on December 15, 2020. In
6 Mr. Nawaz argues, in the alternative, that if the Trustee was not required to close on the Nawaz contract, it was because the Trustee breached the Nawaz contract by failing to contact the Settlement Agent to determine how to reach “TOPA Compliance.” Using somewhat circular language, the Nawaz contract required the Trustee to “contact [the] Settlement Agent within 3 Business Days of Ratification to determine that Seller is either in compliance with both TOPA Notice requirements and title insurance underwriting requirements . . . or to establish the necessary steps to be in compliance with such requirements (either of which shall constitute ‘TOPA Compliance’).” But again, regardless of the language in the contract, the statute, and not the contract, defines the parties’ rights under TOPA and controls whether the Trustee could legally proceed to closing on the Nawaz contract. And again, even if the Trustee had contacted the Settlement Agent within three days of ratifying the Nawaz contract, the Trustee would not have been able to proceed to closing on the Nawaz contract, as he was required to give the Unit #1 tenants, and Bloom Residential as their assignee, time to negotiate to purchase the property. 16
its first and second orders, the Superior Court determined that the Bloom Residential
contract had not expired, and therefore still held priority under TOPA because
Bloom Residential and the Trustee intended the December 15, 2020, settlement
deadline in the Bloom Residential contract “to be a placeholder with the settlement
date contracted as ‘30 days following TOPA compliance.’” 7 Undertaking an
“independent review of the record,” we disagree. MobilizeGreen, 267 A.3d at 1024
(internal quotation marks omitted).
The record demonstrates that, prior to entering the contract, Bloom
Residential expressed a desire to close on the property by December 15, 2020.
Rather than make the settlement timeline in their contract flexible, Bloom
Residential and the Trustee signed a contract addendum explicitly providing that
“[s]ettlement shall take place on or before December 15, 2020.” (emphasis added).
Contrary to Bloom Residential’s and the Trustee’s argument and the Superior
7 The Superior Court also concluded that, “even if the [appellees] had not agreed to an extension,” the Bloom Residential contract did not expire on December 15, 2020, because the District’s COVID-19 Response Emergency Amendment Act of 2020, D.C. Act 23-247 § 312(a), “tolled all TOPA deadlines.” It is unclear if the contractual December 15 closing date was a TOPA deadline such that it could have been tolled by the Emergency Amendment Act, see D.C. Act 23-247 § 312(a) (providing that “[a]ll deadlines for tenants and tenant organizations to exercise rights under [TOPA] that will occur during a period of time for which a public health emergency has been declared . . . are extended to a date 30 days following the end of the public health emergency”). But because we conclude we may affirm on other grounds, see infra, we need not reach this question. 17
Court’s conclusion, there is no evidence in the record that Bloom Residential and
the Trustee believed the December 15 date to be flexible in spite of the addendum’s
express language. While the Tenancy Addendum stated that “if Settlement does not
occur on the Settlement Date due to Seller not having accomplished TOPA
compliance, . . . then the Settlement Date shall automatically be extended,” it also
clarified that this automatic extension would not apply if the “Buyer and Seller”
“otherwise agreed.” And although the contract required the Trustee to provide
Bloom Residential with marketable and insurable title, we disagree that that
requirement, on its own, could be “reasonably interpreted to constitute an extension
of negotiations.” Tuxedo, 124 A.3d at 618 (internal quotation marks omitted). There
is also no evidence in the record that Bloom Residential and the Trustee sought to
extend the settlement date after signing the contract. Indeed, Bloom Residential and
the Trustee submitted no evidence of any communication between them after they
ratified the contract.
Based on the record, we cannot conclude that Bloom Residential and the
Trustee believed the December 15 settlement date to be a flexible “placeholder” that
they intended to modify at some later point in time. That said, the record contains
no indication that either Bloom Residential or the Trustee intended to walk away
from the contract after the December 15 date passed. Quite the opposite, they sued
Mr. Nawaz so that they could perform their obligations under the contract. Because 18
Mr. Nawaz was the impediment to their ability to close on the agreed upon date, we
reject his challenge to the Bloom Residential contract on the grounds that it had
expired.
As the record establishes, Bloom Residential’s title insurance company would
not issue an insurance policy for the property while Mr. Nawaz held a competing
contract. Without the insurance policy, Bloom Residential and the Trustee could not
proceed to closing under contract’s terms. Mr. Nawaz perpetuated this stalemate by
refusing to release the Trustee from the Nawaz contract, despite knowing that the
Trustee had entered into a contract for the property with Bloom Residential pursuant
to its assigned TOPA rights.
As this court has reiterated, “TOPA is a remedial statute, and it is to be
generously construed toward the end of strengthening the legal rights of tenants or
tenant organization[s] to the maximum extent permitted under law.” Richman
Towers Tenants’ Ass’n, Inc. v. Richman Towers LLC, 17 A.3d 590, 601 (D.C. 2001)
(quoting D.C. Code § 42-3405.11) (internal quotation marks omitted). To effectuate
that intent, we must “deal with the substance rather than the form of transactions”
and look to the “practical consequences of the existing situation.” Id. at 602 (internal
quotation marks omitted). We must also be mindful of “sophisticated as well as
simple-minded modes of nullification or evasion,” id. (internal quotation marks
omitted), and ensure that “the rights of the tenants [remain] paramount in relation to 19
those of others,” Tuxedo, 124 A.3d at 618. Allowing putative third-party buyers
such as Mr. Nawaz to obstruct the performance of a tenant’s contract until a tenant
loses priority under TOPA would render meaningless tenants’ right of first refusal.
See D.C. Code § 42-3404.08.
We therefore hold that where a third party obstructs a tenant’s ability to
exercise their rights by preventing the tenant from being able to close on a contract
entered into pursuant to TOPA, the third party cannot challenge the priority of the
tenant’s contract based on that same failure to close. To meet this standard, the third-
party obstruction must be clear, and it must be the cause of the tenant’s inability to
proceed to settlement. Cf. Psaromatis v. English Holdings I, L.L.C., 944 A.2d 472,
487-88 (D.C. 2008) (rejecting claim that a third-party buyer prejudiced a seller’s
ability to close on a contract with a tenants’ association under TOPA by refusing to
lift a notice of lis pendens where “[a]mple record evidence” demonstrated that “other
impediments under [the seller]’s control . . . prevented [it] from conveying insurable
and marketable title”). A tenant or seller may show clear obstruction, for example,
by demonstrating that the third party’s actions meet each of the elements of tortious
interference with contract, apart from damages. See Murray v. Wells Fargo Home
Mortg., 953 A.2d 308, 325 (D.C. 2008) (“To prevail on a claim
of tortious interference with contract, a plaintiff must establish: (1) the existence of
a contract, (2) defendant’s knowledge of the contract, (3) defendant’s intentional 20
procurement of the contract’s breach, and (4) damages resulting from the breach.”)
(internal quotation marks omitted). 8
Here, Bloom Residential and the Trustee have met the necessary elements to
demonstrate that Mr. Nawaz obstructed their contract, such that we will not deem it
to have lapsed. Bloom Residential and the Trustee have shown that they entered
into a contract to purchase the property, Mr. Nawaz knew Bloom Residential had
entered the contract as a tenant-assignee, and Mr. Nawaz refused to release his
competing contract to allow the Bloom Residential contract to proceed to
settlement. 9
8 We conclude that a tenant need not establish damages to demonstrate obstruction sufficient to meet this standard because requiring a tenant to wait to seek a declaratory judgment until they incur and can prove damages, such as through a lost contract, would similarly undermine TOPA’s remedial intent. See D.C. Code § 42-3405.11. 9 Mr. Nawaz nevertheless asserts that, even if Bloom Residential held a superior, unexpired contract under TOPA, TOPA does not obligate him to release his contract to allow Bloom Residential’s contract to move forward. That may be so. But TOPA also does not allow Mr. Nawaz to use a tenant’s inability to perform on a contract because of his refusal to grant a release as a basis to void the tenant’s contract. Instead, TOPA permits aggrieved owners and tenants to seek a declaratory judgment to resolve uncertainty between competing contracts and clarify their rights under the statute. See D.C. Code § 42-3405.03 (authorizing “[a]n aggrieved owner [or] tenant” to “seek enforcement of any right or provision under [TOPA] through a civil action”). That is precisely what Bloom Residential and the Trustee did here, enabling the Superior Court to declare the Bloom Residential contract superior and the Nawaz contract void. 21
3. Mr. Nawaz Was Not Entitled to Discovery Pursuant to
Rule 56(d)
Mr. Nawaz claims that the court erred in granting Bloom Residential and the
Trustee summary judgment because he was entitled to more time for discovery under
Super. Ct. Civ. R. 56(d). Again, the Superior Court did not address this argument,
and again we conclude that remand is not required. Even though Mr. Nawaz’s
entitlement to discovery implicates a question of discretion, see Travelers Indem.
Co. of Ill. v. United Food & Com. Workers Int’l Union, 770 A.2d 978, 993 (D.C.
2001) (identifying abuse of discretion as the standard for review when the Rule was
designated 56(f)), as we explain, no judge could have reasonably granted
Mr. Nawaz’s request.
Rule 56(d) “affords protection against the premature or improvident grant of
summary judgment.” McAllister v. District of Columbia, 653 A.2d 849, 852 (D.C.
1995) (explaining standard when rule was designated as Rule 56(f)). A court may
deny a motion for summary judgment under Rule 56(d) if the party opposing the
motion “adequately explains why, at that timepoint, it cannot present by affidavit
facts needed to defeat the motion.” Travelers, 770 A.2d at 994. “[A] nonmovant
can invoke this protection by filing an affidavit stating how discovery would enable
him or her to effectively oppose the summary judgment motion.” McAllister, 653
A.2d at 852. A party’s request must be specific; “the party must demonstrate 22
precisely how additional discovery will lead to a genuine issue of material fact.”
Travelers, 770 A.2d at 994. To seek protection under the rule, a party must also
“have been diligent in pursuing discovery before the summary judgment motion it
is opposing was made.” Id.
We cannot say on this record that Mr. Nawaz was “diligent in pursuing
discovery” prior to his Rule 56(d) request. Id. Bloom Residential and the Trustee
filed their complaint on March 5, 2021. Mr. Nawaz, voluntarily appearing without
counsel, filed an answer and counterclaims on April 12, 2021. Mr. Nawaz sought
no discovery after filing his answer and before Bloom Residential moved for
summary judgment on May 24, 2021. Mr. Nawaz asserted in his opposition to
Bloom Residential’s motion for summary judgment that he should “be allowed to
go through discovery,” but he did not file a Rule 56(d) affidavit and did not explain
that summary judgment was premature under the rule. Even after Mr. Nawaz hired
a lawyer, he did not request discovery. Instead, Mr. Nawaz first argued that he was
entitled to discovery under Rule 56(d) in his second motion opposing summary
judgment to which he appended a Rule 56(d) affidavit. At this point, he argued that
Bloom Residential’s and the Trustee’s motions “were filed prior to the entry of a
scheduling order” and that counsel had only been “engaged approximately thirty
(30) days ago.” But, as we have previously explained, the absence of a scheduling
order does not preclude a court from appropriately awarding summary judgment. 23
Kibunja v. Alturas L.L.C., 856 A.2d 1120, 1125 (D.C. 2004). Neither did the timing
of Mr. Nawaz’s decision to retain counsel. See id. at 1124-25 (explaining that the
month between when plaintiff filed for summary judgment and defendant opposed
was sufficient time to seek discovery such that a denial of a discovery extension was
not an abuse of discretion). Having failed to act diligently in pursuing discovery,
Mr. Nawaz cannot invoke Rule 56(d) now to “relieve [his] lack of diligence.”
Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995).
In addition, Mr. Nawaz’s discovery request under Rule 56(d) failed to explain
with specificity what facts he needed to oppose summary judgment and why they
were material to the legal claims at issue. See Hollins v. Fed. Nat’l Mortg. Ass’n,
760 A.2d 563, 577-78 (D.C. 2000) (rejecting additional discovery where requests
were general or asked for information that was immaterial); see also Travelers, 770
A.2d at 994 (explaining that blanket statements that a nonmovant “requires
additional information” are facially insufficient to meet Rule 56(d)’s standards).
While “the specific basis and explanation for the need for discovery . . .
should ordinarily be set forth in the Rule 56[d] affidavit itself,” we also consider the
arguments in Mr. Nawaz’s second motion in opposition to summary judgment that
may have “alert[ed] the . . . court of the need for further discovery.” Id. at 995-96
(internal quotation marks omitted). Even considering the arguments in Mr. Nawaz’s
opposition motion, his request for discovery falls short. 24
Mr. Nawaz first asserted that he needed discovery into the “tenants’
occupancy status at the time of the Nawaz Contract,” to determine whether the
tenants occupied the property when they assigned their TOPA rights and whether
the Trustee breached the provision of the Nawaz contract requiring the seller to get
the buyer’s consent before “modify[ing] the terms of or terminat[ing] . . . [the
property’s] tenanc[ies].” But whether the tenants physically occupied the property
when they assigned their rights is legally irrelevant; a “tenant” with rights under
TOPA is a person “entitled to the possession, occupancy or benefits of a rental unit,”
regardless of whether they physically occupy the premises. D.C. Code
§ 42-3401.03(17) (emphasis added). And we disagree that the Trustee breached the
Nawaz contract by complying with TOPA and permitting the tenants to exercise
their rights thereunder.
Second, Mr. Nawaz claimed that he needed discovery into “the dates and other
details surrounding the tenants’ purported assignment of TOPA Rights to the Trustee
and Bloom.” But Bloom Residential had already attached the Unit #1 tenants’
assignment of their TOPA rights as an exhibit to its motion for summary judgment
and the Trustee later provided Mr. Nawaz with the Unit #2 and #4 assignments.
While Mr. Nawaz continues to argue that he “should be entitled to verify that the
assignments are effective under TOPA,” he has not explained what more he could
be seeking that would create a genuine issue of material fact. 25
Third, Mr. Nawaz claimed that he needed discovery into “the Trustee’s
communications with third parties such as the Settlement agent,” to investigate
whether the Trustee contacted the Settlement Agent, as required under the Nawaz
contract. But, as explained above, whether the Trustee contacted the Settlement
Agent within the timeframe required by the Nawaz contract has no material impact
on whether Bloom Residential and the Trustee are entitled to a declaratory judgment
that their contract holds priority. Because Mr. Nawaz did not show that the
discovery he sought would “lead to a genuine issue of material fact,” Travelers, 770
A.2d at 994, and was not diligent in pursuing discovery prior to his Rule 56(d)
request, he was not entitled to additional time for discovery under Rule 56(d).
Having concluded (1) the Bloom Residential contract held priority under
TOPA, (2) Mr. Nawaz may not challenge the contract as expired, and (3) Mr. Nawaz
was not entitled to additional discovery under Rule 56(d), we uphold the Superior
Court’s grant of summary judgment on Bloom Residential’s and the Trustee’s claim
for a declaratory judgment that their contract holds priority and the Trustee may
perform free and clear of any obligation under the Nawaz contract.
B. Summary Judgment on the Trustee’s Claim that Mr. Nawaz Tortiously
Interfered with the Bloom Residential Contract
In addition to requesting a declaratory judgment, the Trustee also moved for
summary judgment on his claim that Mr. Nawaz tortiously interfered with the Bloom 26
Residential contract. The Superior Court did not separately analyze the tortious
interference claim; nevertheless, it granted the Trustee’s motion for summary
judgment in full. Although we question whether the Trustee established that there
was no material dispute of fact that he had been damaged by Mr. Nawaz’s actions—
in his summary judgment motion the only support the Trustee provided for his claim
of damage was a paragraph in the complaint that references only future “potential
damages,” see Cormier v. D.C. Water & Sewer Auth., 959 A.2d 658, 667 (D.C. 2008)
(explaining that a party alleging damages must demonstrate that damages “exist and
are not entirely speculative”)—Mr. Nawaz has never identified damages as a
contested issue of fact precluding summary judgment as to tortious interference. The
only argument regarding the tortious interference claim he made in his brief is that
it fails because the Trustee, by complying with TOPA, breached the Nawaz contract,
an argument we have rejected above. See II.A.3. supra. In our adversarial system
we rely on parties, particularly when they are represented by counsel, to preserve the
arguments that may bring them relief and press them on appeal. See, e.g., Oparaugo
v. Watts, 884 A.2d 63, 75 (D.C. 2005) (explaining that “[p]oints not raised and
preserved in the trial court [generally] will not be considered on appeal”); Rose v.
United States, 629 A.2d 526, 536-37 (D.C. 1993) (“It is a basic principle of appellate
jurisprudence that points not urged on appeal are deemed to be waived.”).
Accordingly, we affirm the Superior Court’s grant of summary judgment to the 27
Trustee on its claim of tortious interference.
C. Attorney’s Fees and Costs
In addition to challenging the award of summary judgment, Mr. Nawaz
contests the Superior Court’s order awarding Bloom Residential and the Trustee
attorney’s fees and costs under D.C. Code § 42-3405.03. We review the Superior
Court’s decision to award attorney’s fees and costs for abuse of discretion and,
discerning none, affirm. Vining v. District of Columbia, 198 A.3d 738, 745 (D.C.
2018).
“In general, parties before the District’s courts are responsible for paying the
costs and fees that their own attorneys incur during the course of litigation, a practice
known as the ‘American rule.’” Yeh v. Hnath, 294 A.3d 1081, 1087 (D.C. 2023).
TOPA, however, creates an exception to the American Rule. See Psaromatis, 944
A.2d at 490 (explaining that the American Rule ordinarily applies unless certain
exceptions, such as a statute, dictate otherwise). Under D.C. Code § 42-3405.03,
any “aggrieved owner [or] tenant . . . may seek enforcement of any right or provision
under [TOPA] . . . and, upon prevailing, may seek an award of costs and reasonable
attorney[’s] fees.”
Mr. Nawaz challenges the Superior Court’s decision to award fees and costs
to Bloom Residential and the Trustee as prevailing parties under D.C. Code
§ 42-3405.03 because the case involved “novel and difficult questions” of law. But 28
even if we were convinced this were the case, novelty is not a reason to deny a fee
award to a prevailing party. See Khan v. Orbis Bus. Intel. Ltd., 292 A.3d 244, 263
(D.C. 2023) (explaining that a fee request’s novel legal basis “did not make the
award unjust”). Rather, a prevailing party who seeks reasonable fees and costs under
TOPA is entitled to them. D.C. Code § 42-3405.03. On this basis, and in the absence
of any challenge by Mr. Nawaz as to the reasonableness of the fees and costs
requested, we uphold the award of fees and costs to Bloom Residential and the
Trustee.
D. Security for the Trustee’s Costs
Lastly, Mr. Nawaz appeals the Superior Court’s decision ordering Mr. Nawaz
to post security for the Trustee’s costs under D.C. Code § 15-703(a) and, when
Mr. Nawaz did not pay, issuing sanctions against him in the form of a judgment with
interest accruing. D.C. Code § 15-703(a) provides that a “defendant in a suit
instituted by a nonresident of the District of Columbia . . . may require the plaintiff
to give security for costs and charges that may be adjudged against him on the final
disposition of the cause.” (emphasis added). Mr. Nawaz challenges the sanction by
arguing that D.C. Code § 15-703(a) did not provide a statutory basis for the court’s
order that he post security for costs because it does not extend to counterclaimants.
While we normally review a motion to grant sanctions for abuse of discretion,
Woodroof v. Cunningham, 147 A.3d 777, 790 (D.C. 2016), whether D.C. Code 29
§ 15-703(a) supports the Superior Court’s order that Mr. Nawaz post security for
costs is a legal question that we review de novo. Cf. Montgomery v. Jimmy’s Tire
& Auto Ctr., Inc., 566 A.2d 1025, 1029 (D.C. 1989). To interpret the statute, “we
first look to see whether the statutory language at issue is plain and admits of no
more than one meaning.” In re G.D.L., 223 A.3d 100, 104 (D.C. 2020) (brackets
and internal quotation marks omitted). The statute specifies that it applies to “suit[s]
instituted by a nonresident of the District of Columbia.” D.C. Code § 15-703(a)
(emphasis added). “Institute” commonly means “[t]o begin or start” or to
“commence.” Black’s Law Dictionary (11th ed. 2019). While an initial plaintiff
“institute[s]” legal proceedings against a defendant, a defendant bringing
compulsory counterclaims under Super. Ct. Civ. R. 13(a), of the kind at issue here,
does not commence “a suit” but merely responds to the initial action, as he must, to
preserve claims that arise out of the same “transaction or occurrence.” See Super.
Ct. Civ. R. 13(a)(1)(A). The statute’s plain language thus indicates D.C. Code
§ 15-703(a) does not apply to counterclaim plaintiffs. See also Dunlap v. Dunlap,
34 A.D. 2d 890, 890 (N.Y. App. Div. 1970) (concluding similar New York statute
did not apply to counterclaimants).
Our analysis of the plain text is bolstered by our judgment that applying D.C.
Code § 15-703(a) to counterclaimants would create unreasonable outcomes not
supported by the statute’s purpose. See Williams v. Kennedy, 211 A.3d 1108, 1110 30
(D.C. 2019) (explaining that to interpret a statute, we consider “evident legislative
purpose”). When an out-of-state plaintiff chooses the District as a forum, they
ordinarily assent to the procedural rights and consequences that accompany that
choice. See, e.g., Parker v. K & L Gates, LLP, 76 A.3d 859, 869-70 (D.C. 2013)
(explaining that under “choice-of-law rules, procedures of the forum normally
apply”). One such consequence is the potential that a non-resident plaintiff will be
required to post security for costs. D.C. Code § 15-703(a). If a plaintiff wishes to
avoid that possibility, they may consider bringing their suit elsewhere.
Counterclaimants, on the other hand do not have that choice; a counterclaimant must
bring any claims related to the underlying action in the forum that the plaintiff has
already chosen. See Super. Ct. Civ. R. 13(a)(1). If D.C. Code § 15-703(a) were
applied to counterclaimants, their only option to avoid being required to post security
for costs would be to not bring their counterclaims at all. And while D.C. Code
§ 15-703(a)’s aim is to “discourage non-meritorious suits by nonresidents and to
avoid a situation in which a successful defendant, usually a District resident, is
compelled to file suit in a foreign jurisdiction in order to collect costs awarded him
here,” Landise v. Mauro, 141 A.3d 1067, 1076 (D.C. 2016) (internal quotation marks
omitted), disincentivizing all counterclaims is a step too far. Considering the
statute’s plain language and purpose, we conclude that D.C. Code § 15-703(a) does
not support requiring Mr. Nawaz to post security for costs and vacate the Superior 31
Court’s order issuing sanctions for Mr. Nawaz’s failure to pay.
III. Conclusion
For the foregoing reasons, we affirm the Superior Court’s award of summary
judgment to Bloom Residential and the Trustee and affirm the Superior Court’s order
granting both parties’ attorney’s fees and costs. We vacate, however, the Superior
Court’s order sanctioning Mr. Nawaz for failure to post security for the Trustee’s
costs.
So ordered.