Petition for Writ of Certiorari — Mirek Machala, Petitioner v. Libuse Kral, et al.

APPENDIX A

FILED

NOV 25 2019

DISTRICT OF COLUMBIA

COURT OF APPEALS

DISTRICT OF COLUMBIA COURT OF

APPEALS

No. 18-CV-1277

MIREK MACHALA, APPELLANT,

V.

LIBUSE KRAL, et al., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(CAB-6775-17)

(Hon. Hiram E. Puig-Lugo, Trial Judge)

(Submitted November 19, 2019 Decided November

25, 2019)

Before THOMPSON and MCLEESE, Associate

Judges, and NEBEKER, Senior Judge.

MEMORANDUM OPINION AND JUDGMENT

PER CURIAM: Appellant, Mirek Machala,

appeals the trial court’s grant of summary judgment

in favor of defendants-appellees Libuse Krai and

Nicholas A. Brown. Appellant presents four issues,

which we condense into one: whether the trial court

erred in granting the defendants-appellees’ joint

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motion for summary judgment.1 We conclude that it

did not, and, therefore, affirm.

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1 Appellant also contends that the affidavit of Sharka Walhof

should have been stricken pursuant to Rule 56(c)(4) of the

Superior Court’s rules of civil procedure. However, appellant

raises this issue for the first time in his reply brief. The issue,

therefore, is waived. See Washington Convention Ctr. Auth. v.

Johnson, 953 A.2d 1064, 1092 (D.C. 2008) (“[A]rguments raised

for the first time in a reply brief come too late for appellate

consideration^]”).

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2

I.

On October 6, 2017, appellant filed suit

against appellees, alleging that: (1) appellee Krai

acted in bad faith and failed to comply with the

requirements of the Tenant Opportunity to Purchase

Act (“TOPA”) because she did not provide him with a

building floor plan, a rent roll, an itemized hst of

major operating expenses, and a schedule of capital

expenditures related to prior construction; and (2)

appellee Brown knew appellant had rights under

TOPA and interfered with those rights by purchasing

the property. Both appellees denied liability.

Thereafter, on October 1, 2018, appellees filed

a joint motion for summary judgment. In the motion,

appellees argued that the sole issue before the court

was whether appellee Krai complied with the

requirements of TOPA. Appellees further contended

that the undisputed facts showed that appellee Krai

complied with all requirements under TOPA. In

support of their claims, appellees filed a statement of

material facts not in dispute and attached exhibits,

including affidavits and deposition testimony.

Specifically, appellees argued that TOPA

requires that, before an owner of a housing

accommodation may sell the accommodation, the

landlord must give the tenant an opportunity to

purchase the accommodation at a price and terms

which represent a bona fide offer of sale. Appellees

contended that the undisputed facts showed that

appellee Krai provided appellant with two notices,

via certified mail and personal process server,

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informing him of her intent to sell, listing the asking

price and material terms of the sale, and informing

him that, if he was interested, she would make

available the required documents. Appellees claimed

that, when appellant requested an itemized list of

monthly expenses, appellee Krai complied, and

provided him with more than 140 pages of

documents. Then, according to appellees, appellant

submitted various requests for a floor plan, rent roll,

and capital expenditures related to construction.

Appellees claimed that appellee Krai repeatedly told

appellant that the documents he requested did not

exist and, therefore, could not be provided to him. In

addition, appellees maintained that appellant acted

as the property manager and, therefore, was aware

of the nature of those expenses. Nevertheless,

according to appellees, appellant continued to

request the same documents. Then, the time period

in which he had a right to purchase the property

expired, and appellee Krai sold the property to

appellee Brown. Thus, according to appellees, the

undisputed facts defeated appellant’s claim, and the

court should grant summary judgment in their favor.

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3

On November 19, 2018, the trial court granted

the motion for summary judgment. The court found

that the undisputed facts showed the following: (1)

appellant acted as appellee Krai’s property manager

for more than twenty years, and received rent

concessions as payment; (2) as property manager,

appellant had direct knowledge of the information he

sought from appellee Krai; (3) under TOPA, appellee

Krai’s statement to appellant that there was no floor

plan sufficed to fulfill the requirement to provide a

floor plan; (4) appellee Krai provided appellant with

more than 140 pages of documents related to the

property’s expenses; and (5) appellant made no offer

to purchase the property during the allotted

negotiation period. Thus, according to the trial court,

the undisputed facts showed that appellee Krai

complied with the requirements of TOPA, thereby

entitling appellees to summary judgment in their

favor.

II.

“This court reviews the grant of a motion for

summary judgment de novo, applying the same

standard as that utilized by the trial court.” Hollins

v. Federal Nat’l Mortg. Ass’n, 760 A.2d 563, 570 (D.C.

2000). A trial court will grant summary judgment if

“there is no genuine issue as to any material fact and

. . . the moving party is entitled to judgment as a

matter of law.” Wallace v. Eckert, Seamans, Cherin &

Mellott, LLC, 57 A.3d 943, 949 (D.C. 2012) (internal

quotations and citations omitted). The moving party

bears the initial burden of identifying portions of the

record that demonstrate the absence of a genuine

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issue of material fact. See Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the movant makes

the required showing, then the burden shifts to the

non-moving party to present sufficient evidence to

support a conclusion that a factual dispute exists,

such that a judge or jury must resolve the conflicting

assertions at a trial. See Clay Props., Inc. v.

Washington Post Co., 604 A.2d 890, 893-94 (D.C.

1992). Such opposition must “be supported by

affidavits or other competent evidence tending to

prove disputed material issues of fact.” Hamilton v.

Howard Univ., 960 A.2d 308, 318 (D.C. 2008).

“Conclusory allegations . . . are insufficient... to

defeat the entry of summary judgment.” Id. at 313.

We conclude the trial court did not err in

granting the motion for summary judgment in favor

of appellees. The sole issue before the court was

whether appellee Krai complied with the TOPA

requirements — whether she served appellant with

the required TOPA notices and whether she provided

the required information. Appellees carried their

burden of showing no genuine issue of material fact.

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4

As to the service of TOPA notices, appellees

presented affidavits from process servers, in which

the process servers stated the notices had been

delivered. Appellant did not provide competent

evidence disputing the affidavits; rather, appellant

made a conclusory allegation that he had not

received the TOPA notices, which is insufficient to

create a genuine issue of material fact. The trial

court did not err, therefore, in finding that the

undisputed facts showed appellant had been served

with the required notices.

As to whether appellee Krai provided

appellant with the required information, appellees

presented letters, deposition testimony, and an

affidavit from appellee Krai all stating that appellant

had either been provided with the documents he

requested or the document did not exist, but

appellant nevertheless had personal knowledge of

the expense because he served as property manager.

Appellant did not present competent evidence to the

contrary; rather, he made a conclusory denial, which

is insufficient to create a genuine issue of material

fact. The trial court did not err, therefore, in holding

that the undisputed facts showed appellee Krai

complied with the requirements under TOPA.

For these reasons, we conclude that the trial

court did not err in granting summary judgment in

favor of appellees.

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For the foregoing reasons, the decision of the

trial court is hereby

Affirmed.

ENTERED BY DIRECTION OF THE COURT:

Signature

JULIO A. CASTILLO

Clerk of the Court

Copies to:

Honorable Hiram E. Puig-Lugo

Director, Civil Division

Copies e-served to:

Mirek Machala

Roy L. Kaufmann, Esquire

Mark Schweitzer, Esquire

Craig M. Palik, Esquire

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APPENDIX B

FILED

DEC 20 2019

DISTRICT OF COLUMBIA

COURT OF APPEALS

DISTRICT OFCOLUMBIA

COURT OF APPEALS

No. 18-CV-1277

MIREK MACHALA,

Appellant,

v.

CAB6775-17

LIBUSE KRAL, et al,

Appellees

BEFORE: Thompson and McLeese, Associate Judges,

and Nebeker, Senior Judge.

ORDER

On consideration of appellant’s petition for

rehearing, it is

ORDERED that appellant’s petition for rehearing is

denied.

PER CURIAM

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Copies mailed to:

Honorable Hiram E. Puig-Lugo

Director, Civil Division

Quality Management Unit

Copies e-served to:

Mirek Machala

Roy L. Kaufmann, Esquire

Craig M. Palik, Esquire

Pii

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APPENDIX C

Filed

D.C. Superior Court

11/19/2018 11:38AM

Clerk of the Court

SUPERIOR COURT OF THE DISTRICT OF

COLUMBIA

CIVIL DIVISION

MIREK MACHALA

Plaintiff,

Case No. 2017CA006775 B

Judge Hiram E. Puig Lugo

LIBUSE KRAL, et al. Defendants.

ORDER

This matter comes before the Court upon

consideration of Joint Defendants Libuse Krai and

Nicholas A. Brown's Motion for Summary Judgment

and Request for a Hearing ("Defs. Mot. Summ. J."),

filed on October 1, 2018; Plaintiffs Motion for

Discovery Under the Superior Court of the District of

Columbia Rule of Civil Procedure 56(D) ("Pl.'s Mot.

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Disc. Rule 56(D)"), filed October 24, 2018; and,

Defendant Brown's Opposition to Plaintiffs Motion

for Discovery under the Superior Court of the

District of Columbia Rule of Civil Procedure 56(D)

("Def. Brown's Opp'n PL ' s Mot. Disc. Rule 56(D)"),

filed November 6, 2018. The Court has considered

the pleadings, the relevant law, and the record. For

the following reasons,

Defendants' Motion for Summary Judgment is

GRANTED.

BACKGROUND

On October 6, 2017, Plaintiff Mirek Machala

("Machala") filed the above-captioned matter against

Defendants Libuse Krai and Nicholas A. Brown

("Krai" and "Brown"). Complaint at 1. This matter

concerns a subject property that was run by Krai as a

"4-unit apartment house" for more than twenty-three

years. Complaint at 3. The subject property was

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occupied by Machala and subject to the D.C. Tenant

Opportunity to Purchase Act ("TOPA"). Id. Machala

alleges that on or about December 14, 2016, the

subject property was listed for sale, which triggered

Machala's TOPA rights. Id. On February 23, 2017,

an "Offer of Sale with Third Party" contract was

delivered to Machala at the subject property. Id.

On February 27, 2017, as required by Title IV of the

Rental Housing Conversion and Sale Act of 1980,

D.C. Code § 42-3404 as amended, Machala provided

a written statement of interest and request for

information to Krai and the D.C. Department of

Housing and Community Development, Rental

Conversion and Sales Division ("DC DHCD").

Complaint at 3.

On or about March 8, 2017, Krai responded to

the request for information as required by TOPA.

Complaint at 4. Krai's response contained over 140

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pages of detailed information on recurring expenses,

including utility bills, real estate taxes and

insurance. Id. Machala asserts that the "[sjchedule

(itemized list) of major operating expenses related to

core operations of the property. . . building floor plan.

. . rent roll

[and] [s]chedule of Capital Expenditures

describing illegal2 construction" were missing from

Krai's response. Complaint at 4. Thereafter, between

March 21, 2017 and September 4, 2017, Machala

sent repeated requests to Krai for the alleged

missing information. Complaint at 4 — 7. Krai, by

way of her attorney, repeatedly responded that she

had provided all information in her possession, had

no further information, and reiterated her invitation

to Machala to enter into negotiations, advising

2 Machala attempts to assert through language that illegal

construction look place on the subject properly, and as such, a

floor plan was necessary (o assess the feasibility of purchasing

the properly. This Court will address this accusation, as this

Motion for Summary Judgment (urns on whether Defendants

complied with the TOPA requirements.

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Machala that the negotiation period had commenced.

Answer and Counterclaim of Defendant/Counter Plaintiff Libuse Krai at 7 _ 10.

On or about September 13, 2017, Machala

learned that Krai had sold the subject property to a

third party purchaser, Brown, and that Brown

recorded the deed of trust. Complaint at 9. Machala

asserts that Krai intentionally failed to comply with

the TOPA statute without reasonable justification for

doing so; carried out the TOPA process in bad faith;

and, violated Machala's TOPA rights. Complaint at

8. Machala also asserts that Brown had actual and/or

constructive knowledge of Machala's superior rights

at the time it acquired the subject property, and

therefore was not a bona fide purchaser. Complaint

at 9.

On October 23, 2018, both Defendants jointly filed a

Motion for Summary Judgment and Request for a

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Hearing. Both Defendants argue that there is no

genuine dispute of fact that Krai complied with

TOPA; that Machala had been the property manager

at the property for decades with intimate knowledge

and familiarity with the property; and, that Machala

failed to exercise his TOPA rights within the

negotiation period. The Court agrees with the

Defendants.

LEGAL STANDARD

Superior Court Rule of Civil Procedure 56(a)(b) provides that either a claimant or a defending

party may move, with or without supporting

affidavits, for a partial or complete Summary

Judgment in the party's favor. Based on the entirety

of the record, including the pleadings, depositions,

and any affidavits, "[a] judgment sought shall be

rendered forthwith if [the record] show[s] that there

is no genuine issue as to any material fact and that

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the moving party is entitled to a judgment as a

matter of law." See Super. Ct. Civ. R. 56(c); Han v.

Se. Acad, of Scholastic Excellence Pub. Charter Sch.,

32 A.3d 413, 416 (D.C. 2011). The record is reviewed

in the light most favorable to the non-moving party,

however conclusory allegations are insufficient to

avoid Summary Judgment. See Doe v. Safeway, Inc.,

88 A.3d 131, 132 (D.C.2014).

The party moving for Summary Judgment

bears the initial burden of identifying portions of the

record that demonstrate the absence of a genuine

issue of material fact. See Celolex Corp.v. Catrett, 477

U.S. 317, 323 (1986); Wash. Inv. Partners of Del.,

LLC u. sec. House, KSCC, 28A.3d 566, 573 (D.C.

2011).

Once the movant makes the requisite showing, the

burden shifts to the non-movant party to present

sufficient evidence to support a conclusion that a

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factual dispute exists, such that a judge or jury must

resolve the conflicting assertions at a trial.

See Clay Props., Inc. v. Wash. Post Co., 604 A.2d 890,

893-94 (D.C. 1992). To survive a request for

Summary Judgment, the non-movant "must set forth

specific facts showing that there is a genuine issue

for trial," and cannot rely upon conclusory

statements in its pleadings. See Kibunja u. Alturas,

LLC, 856 A.2d 1120, 1127-28 (D.C. 2004); Hamilton

v. Howard Uniu., 960 A.2d 308, 318 (D.C. 2008) (the

opposition "must. be supported by affidavits or other

competent evidence tending to prove disputed

material issues of fact.")

ANALYSIS

Machala's Statements and Actions Confirm

Him as Property Manager

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Machala argues that Krai did not comply with

requests for information, as required by TOPA § 423404.03 "Offer of Sale." Specifically, Machala's

repeated requests for information state that Krai

failed to provide a "[sjchedule (itemized list) of major

operating expenses related to core operations of the

property. .. building floor plan. .. rent roll [and]

[sjchedule of Capital Expenditures describing illegal

construction." Complaint at 4. Defendants assert

that they do not have the information that Machala

is seeking because Machala, himself, has the very

information he seeks by virtue of having been the

property manager of the subject property for over

twenty years. Def. Mot. Summ. Judgment at 6, 14.

Under § 47-2853.141 of the D.C. Code, the

term "property manager" means "an agent for the

owner of real estate in all matters pertaining to

property management which are under his or her

direction, and who is paid a commission, fee, or other

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valuable consideration for his or her services." D.C.

Code § 47-2853.141 (2018).

Whether an agency relationship exists in a given

situation depends on the particular facts of each

case. Judah u. Reiner, 744 A.2d 1037, 1040 (D.C.

2000). "An agent acts with actual authority when, at

the time of taking action that has legal consequences

for the principal, the agent reasonably believes, in

accordance with the principal' s manifestations to

the agent, that the principal wishes the agent so to

act." Restatement (Third) of Agency: Actual

Authority § 2.01 (2006). Actual authority can be

created expressly or by implication through "written

or spoken words or other conduct of the principal,

which reasonably interpreted, causes the agent to

believe that the principal desires him so to act on the

principal's account." A-J Marine, Inc. v. Corfu

Contrs., Inc., 810 F. supp. 2d 168, 175 (D.D.C. 2011).

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While Machala denies that he was property

manager of the subject property, his admissions in

letters to Krai and his continued actions over the

past twenty-three years show that he acted with

reasonable belief that the principal (here, Krai)

wished him to act. Machala admits that,

For the past 23 years I was keeping your rental

business running, including all the responsibilities of

the building owner, i.e. tenant responsibilities, rent

collection, building maintenance, grounds

maintenance, snow removal, leaf removal, tree

pruning, cleaning the gutters, etc. These activities

were not paid. I think you would agree that 23 years

of work and everything that was done in the building

is not a freebie.

Def. Mot. Summ. Judgment at 14, citing Exhibit 23.

Machala clearly states instances that affirm

his role as property manager, going on in the same

letter to state, "Using third-party services would

have resulted in high costs and potentially lossmaking business, 'I was able to arrange and secure

the full renovation of the basement, „and other

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changes and renovations in the building, e.g. the

kitchen, new closet, floors, electric range hookup etc.

were also done." Def. Mot. Summ. Judgment, citing

Exhibit 23. Machala states in another letter,

"Enclosed please find the payments for rent and

utilities; the girl has not paid, she has not shown up

here this year yet, I will send it immediately upon

receipt." Def. Mot. Summ. Judgment, citing Exhibit

23. In that same letter, Machala states that he

"managed to arrange the repair of the ceiling" and

deducted the cost of the repair from his rental

payment. Id.

Krai presents through her attorney that Machala

and Mr. Martin Krai3 entered into an agreement

where Machala would provide "custodial, janitorial,

and property management services at the property"

3 Mr. Martin Krai was Defendant Krai's husband and is

deceased as of September 2003.

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in exchange for a "very reduced rent rate," also

known as a rent concession. Def. Mot. Summ.

Judgment, citing Exhibit 16. When Mr. Krai passed

away, Mrs. Krai became owner of the property; Mrs.

Krai and Machala agreed that Machala would

continue his property management services in

exchange for the rent concessions. Id. The rent

concessions are shown on the table summaries of the

utilities records, which were provided to Machala on

March 8, 2017. Def. Mot. Summ. Judgment, citing

Exhibit 9.

Machala's statements and actions in the record show

that he took on the duties of property manager,

which included collecting rent, building and grounds

maintenance, and more. These services are the

equivalent of rent roll, major operating expenses, and

potential capital expenditures. The record also shows

that the Machala received consideration in the form

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of rent concessions, in exchange for his services as

property manager for the subject property.

Indeed, it would appear that Machala

continues to request information that he already has

direct knowledge of, causing undue delay in the

negotiation process. Therefore, based on the record,

the undisputed facts show that Machala was in fact

the property manager of the subject property and has

direct knowledge of the information he states he is

seeking.

II. Defendant Krai's Compliance with TOPA

There is no material dispute as to Defendant

Krai's timely reply to Machala's first request for

information pursuant to TOPA. There is also no

dispute that the Act states that, "If the owner does

not have a floor plan, the owner may meet the

requirement to provide a floor plan by stating in

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writing to the tenant that the owner does not have a

floor plan." D.C. Code § 42—3404.03(4) (2018).

According to the record, and undisputed facts, Krai

provided all of the information that she had in a

package of over 140 pages, containing utility bills

and documentation showing recurring monthly

expenses for the property. Def. Mot. Summ.

Judgment, citing Exhibit 9. Krai also stated in

writing that she did not have a floor plan, which

satisfies the TOPA requirement. Id. Machala's

admission and actions as property manager show

that he has access to the remaining information he

states he is seeking, as he was the primary person

responsible for collecting rent and ensuring that

repairs and cleaning services took place. Def. Mot.

Summ. Judgment at 14, citing Exhibit 23.

Based on the record, Krai complied with the

TOPA requirements and Machala's requests for

information and invited Machala into negotiations

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within the allotted time period; however, Machala

failed to provide an offer within the allotted

negotiation period. Despite his assertion, Machala

was not entitled to extra days in the negotiation

period, because Krai complied with the requests for

information and Machala had direct knowledge of

the remaining expenses.

Additionally, while Machala subsequently filed a

Motion for Discovery Under the Superior Court of the

District of Columbia Rule of Civil Procedure 56(D)

("PI.'s Mot. Disc. Rule 56(D)"), and Brown

subsequently filed an Opposition to Machala's

Motion for Discovery under the Superior Court of the

District of Columbia Rule of Civil Procedure 56(D)

("Def. Brown's Opp'n PI.'s Mot. Disc. Rule 56(D)"),

this Court finds that those motions are unnecessary

here.

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Based on the record and docket, all parties have

appeared in multiple hearings before this Court

regarding motions to compel discovery and have had

adequate opportunities to pursue said discovery.

Therefore, based on the record showing that there is

no genuine dispute of material fact, this Court finds

that Defendants are titled to summary judgment.

Accordingly, it is this 19th day of November, 2018,

hereby:

ORDERED that Defendants' Motion for Summary

Judgment, filed October 1, 2018 is

GRANTED; and it is further

ORDERED that the Defendants' Request for a

Hearing, filed October 1, 2018 is

DENIED AS MOOT; and it is further

ORDERED that the Plaintiffs Motion for Discovery

Under the Superior Court of the

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District of Columbia Rule of Civil Procedure 56(D)

filed October 24, 2018 is DENIED AS MOOT; and it

is further

ORDERED that the Pre-Trial Hearing

scheduled for November 27, 2018 and all future

events are VACATED; and it is further

ORDERED that this case is now CLOSED.

IT IS SO ORDERED.

W—

Hiram E. Puig-Lugo

Associate Judge

Signed in Chambers

Copies to:

Mirck Machala

3430 Connecticut Avenue NW #4902

Washington, DC 20008

Plaintiff Pro Se

Via First Class Mail

Mark W. Schweitzer, Esq.

Craig M. Palik, Esq.

Counsel for Defendant Nicholas A. Brown

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Roy Kaufmann

Counsel for Defendant Libuse Krai Served via

Casefile Xpress

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