Petition for Writ of Certiorari — Roda T. Gidey, Petitioner v. Settlement Corp., et al.

App. 2

the settlement company that held in escrow the pro­

ceeds from the sale of the property Gidey challenges

the trial court's November 19,2019, and April 20,2020,

rulings on several dispositive motions as well as the

court’s rulings pertaining to attorney’s fees and costs.

For the reasons that follow, we affirm the trial court’s

rulings.

I.

Factual Background and Procedural History

In 1993, Gidey and Yehdego purchased a home lo­

cated at 5401 8th Street, N.W. (the “Property”), which

they held as tenants by the entireties. In 1996, Yehdego

filed for divorce, and he obtained a default judgment

against Gidey after she failed to timely respond. The

judge in the divorce case awarded Yehdego sole title to

the Property. In 2008, Yehdego used the Property as se­

curity to obtain a $180,000 loan through a Home Eq­

uity Line of Credit (“HELOC”) from Bank of America

(the “Bank of America loan” or the “HELOC loan”).

In 2014, Gidey filed a motion for relief from the

default judgment entered against her in the divorce

case, asserting that she had not been properly served,

and, initiating a separate case, also filed a complaint

for Declaratory Judgment against Yehdego, requesting

that the court find that the Property was joint marital

property and enjoin Yehdego from encumbering, sell­

ing, or transferring it unilaterally. The two cases were

consolidated, and in 2016, the court granted relief to

Gidey: it vacated the divorce, entered a declaratory

judgment that the Property was joint marital property,

App. 3

and prohibited Yehdego from encumbering, selling, or

transferring it unilaterally.

In February 2018, Gidey and Yehdego signed a

Standard Purchase Agreement (“SPA”) to sell the

Property to a purchaser that subsequently assigned its

rights to the Property to 5401 8th St. The SPA identi­

fied the Bank of America loan as an “existing lien” on

—the-pr^per-ty-and-pr-ovided- that -Gidey-and-Yehdego- •

would “convey the Premises free and clear of all liens.”

The SPA also set out the following “per diem damages

clause”:

When Seller is able to convey the property

free from liens .. . the parties shall proceed to

Settlement either: (1) as scheduled on the

----- Settlement-Date4March-31v20181;-(2)-if-there—was a delay in obtaining the title report or

survey, if needed, within the 10 business

days noted above; or, (3) within 7 days after '

clearing any and all issues in order to satisfy

Seller’s obligations. If Seller delays closing

more than 7 days beyond any of the time peri­

ods noted in the prior sentence, then Pur­

chaser shall have the option to either

terminate the contract immediately ... or

charge a per diem of $150.00 for each day clos­

ing is delayed beyond 7 days, the total amount

of which shall be credited to Purchaser from

Seller’s proceeds at Settlement.

In addition, the SPA provided that:

In any action or proceeding involving a dis­

pute between Purchaser and Seller arising

" " ~ out of this Contract, Purchaser will be entitled '

App. 4

to receive from Seller reasonable attorney’s

fees, court costs, and process server’s fees and

expenses. In the event a dispute arises result­

ing in the Settlement or Escrow Agent being

made a party to any litigation or if those

agents are required to bring litigation to en­

force or interpret this Contract, Purchaser

and Seller agree to indemnify the Settlement

and Escrow Agents ... for all attorney fees

and costs of litigation.

Settlement was delayed after a dispute arose be­

tween Gidey and Yehdego as to whose share of the sale

proceeds would be used to pay off the HELOC loan. The

parties agreed to change the settlement date to May 1,

2018, to allow Gidey and Yehdego additional time to

resolve the dispute. On May 1, 2018, with Gidey and

Yehdego still unable to resolve their dispute, Gidey,

Yehdego, 5401 8th St, and Settlement Corp. signed an

Escrow Agreement (sometimes hereafter referred to as

“the Agreement”) that allowed the closing on the sale

of the property to occur.

The Escrow Agreement provided that the sale pro­

ceeds would be placed in an escrow account, to be held

by Settlement Corp., until Gidey and Yehdego came to

“a written agreement as to the division of sales pro­

ceeds.” The Escrow Agreement further provided:

[T]he parties agree that said escrow shall not

be held for a period exceeding 30 days, at

which time [Settlement Corp.] shall proceed

to file an interpleader action in the Superior

Court of the District of Columbia placing the

escrowed funds in the Registry of the Court

App. 5

until such time as the Court determines how

the sales proceeds are to be divided....

The Agreement also contained other provisions rele­

vant to the instant dispute, described below.

Thirty days passed, and Gidey and Yehdego were

still unable to resolve their dispute. On or about June

3, 2018, with Settlement Corp. having not yet filed an

interpleader action, Gidey requested that Settlement

Corp. not release any of the escrowed funds pending a

challenge she intended to bring to the validity of the

HELOC lien. Thereafter, on July 17, 2018, Gidey com­

menced a quiet title action against Yehdego and Bank

of America. Multiple times, Gidey communicated that

Settlement Corp. was not to file an interpleader action

------ and-was-to-keep-the-sale^-proceed s-in-the-escrow-ac­

count.2 On April 17, 2019, the court in the quiet title

case ruled in favor of Gidey, ordering that the HELOC

indebtedness be fully satisfied from Yehdego’s portion

of the sale proceeds. Thereafter, Settlement Corp. paid

off the HELOC loan using Yehdego’s portion of the

2 The trial court found, for example, that on June 9, 2018,

Gidey’s counsel emailed Settlement Corp. and 5401 8th Street,

stating that “all proceeds from the sale of the property should be

kept in the escrow account until [Gidey] obtain [s] the declaratory

judgment from the courts.” On June 13, 2019, Gideys counsel

wrote a letter to 5401 8th St and Settlement Corp., saying, Tt

seemed obvious that in view of [the quiet title case] there was no

need to file a separate interpleader action to determine how the

sale proceeds should be divided and to deposit the escrow funds

in the court registry.... [Tjhere is therefore no issue or contro­

versy arising from the terms of the escrow agreement that re­

quires an interpleader action. . . .”

App. 6

proceeds, and on June 20, 2019, 5401 8th St obtained

clear title to the Property.

With the HELOC loan repaid, Gidey requested

disbursement of her share of the remaining sale pro­

ceeds. Settlement Corp. responded by advising Gidey

and Yehdego that, pursuant to the SPA’s per diem

damages clause, it proposed to pay $88,976 of the pro­

ceeds to 5401 8th St based on the sellers’ delay in

providing clear title to the Property. After Gidey ob­

jected that 5401 8th St was not entitled to damages for

the delay, Settlement Corp. filed the instant inter­

pleader action, naming Gidey, Yehdego, and 5401 8th

St as defendants.

5401 8th St filed an answer as well as a cross­

claim against Gidey and Yehdego for breach of con­

tract. In addition to answering Settlement Corp.’s com­

plaint and 5401 8th St’s cross-claim, Gidey filed three

counterclaims against Settlement Corp. for breach of

fiduciary duty, breach of contract, and recovery of un­

paid interest on the escrowed funds; a cross-claim

against 5401 8th St for breach of contract; and a cross­

claim against Yehdego for indemnification for any costs

or damages Gidey might be ordered to pay to Settle­

ment Corp. or 5401 8th St. 5401 8th St sought dismis­

sal of Gidey’s cross-claim against it for failure to state

a claim, and the court granted that motion on Novem­

ber 19, 2019.

On March 11, 2020, the court held a hearing at

which it entered judgment against Yehdego on 5401

8th St’s cross-claim. Also at this hearing, the court

App. 7

ordered Gidey’s counsel to personally pay 54018th St’s

attorney’s fees in connection with its motion to extend

time for discovery due to counsel’s failure to respond

appropriately to discovery requests.

Settlement Corp., 5401 8th St, and Gidey each

filed a motion for summary judgment on their various

claims,, counterclaims,, and cross-claims. On.April 20,

-2020-the-t-iial-eGurt-issued-its-rulings-Gn-these-vaiious----motions.3 On May 18, 2020, the trial court also entered

judgment against Gidey and Yehdego and in favor of

5401 8th St and Settlement Corp. for their legal fees

and costs. Finally, on June 8, 2020, the tfiar potcPt jen­

tered judgment against Gidey on her cross-claim

against Yehdego. We consolidated Gidey’s appeals from

these yarious rulings,^

3 The- court-granted -Settlement Corp.’s motion to interplead,

in part and denied it in part. In its motion, Settlement Corp. re­

quested that the court 1) require Gidey, Yehdego, and 5401 8th

St to litigate their competing claims to the remaining sale pro­

ceeds; 2) allow Settlement Corp. to deposit the sale proceeds into

the court registry; and 3) award Settlement Corp. $2,000 to cover

the cost of bringing the interpleader case. The trial court granted

the motion as to the first and third requests. It denied the motion

as moot as to the second request because the court had already

ruled, on March 11, 2020, that the portion of the Escrow Agree­

ment requiring Settlement Corp. to deposit the funds into the

court registry was unenforceable, given that the court was not a

party to the case. Gidey assigns error to the trial court’s failure to

order Settlement Corp. to disburse funds to her, but does not spe­

cifically challenge the court’s ruling relating to the availability of

the court registry. We express no opinion as to whether that rul­

ing was legally correct.

4 Gidey’s reply brief asserts that H[o]n May 31, 2021, this

Court entered an Order granting (ajppeliant’s motion which

App. 8

II.

Standard of Review

We review the trial court’s rulings on the motions

for summary judgment de novo, applying the same

standard the trial court was obligated to apply. Santos

v. George Washington Univ. Hosp., 980 A.2d 1070,1073

(D.C. 2009). Thus, we will assess whether the moving

parties demonstrated “that there [was] no genuine is­

sue of material fact and that they [were] entitled to

judgment as a matter of law.” Colbert v. Georgetown

Univ., 641 A.2d 469, 472 (D.C. 1994) (en banc) (citing

Super. Ct. Civ. R. 56(c)). Our review is also de novo with

regards to the trial court’s ruling on the motion to dis­

miss for failure to state a claim. Abdullah v. Roach, 668

A.2d 801, 804 (D.C. 1995). We review the trial court’s

order that Gidey’s counsel pay 5401 8th St’s attorney’s

fees related to the motion to extend time for discovery

under an abuse of discretion standard. Roe v. Doe, 73

A.3d 132, 135 (D.C. 2013). “We disturb a discovery

sanction on appeal only if the trial judge has abused

his or her discretion by imposing a penalty too strict or

unnecessary under the circumstances.” Id. (internal

quotation marks omitted). Our review is de novo as to

issues of contract interpretation. Tillery v. District of

Columbia Contract Appeals Bd., 912 A.2d 1169, 1176

(D.C. 2006).

asked the Court to grant the relief requested in her Brief...We

have no record of such an order and thus disregard this assertion.

App. 9

III.

Analysis

A. Settlement Corp.’s Summary

Judgment Motion to Interplead and

for Contractual Indemnity

In granting Settlement Corp.’s motion for sum­

mary judgment on its count asking that the defendants

be required to interplead, the trial court found that

there was no genuine dispute as to the existence of a

disagreement over the proper disbursement of the sale

proceeds. The court noted that Gidey’s only argument

in opposition was that 5401 8th St’s claim to the sale

proceeds was “plainly false* and “frivolous,* such that

Settlement Corn, was not actually exposed to multiple

liabilities and, therefore, an interpleader action was

___ unwarranted.-Gidey-.makes- no ..claim,-however,-that.

Settlement Corp. proceeded in bad faith in seeking in­

terpleader,5 and we agree with the trial court’s reason­

ing that the merit uel non of 5401 8th St’s claim to a

portion of the escrowed funds did not negate Settle­

ment Corp.’s right to file an interpleader action where

the parties disagreed about their rights to the funds.6

5 Gidey highlights that Settlement Corp. “willfully” and “in­

tentionally” avoided adhering to the deadline specified in the Es­

crow Agreement for filing an interpleader action, but she does not

suggest that Settlement Corp. lacked a good faith belief as to the

existence of a dispute between the parties as to their entitlement

to the escrowed funds. Moreover, Gidey’s communications convey­

ing that there was “no need” to file an interpleader action (see

supra note 1) undermine Gidey’s willfulness argument to the ex­

tent that it attributes an improper motive to Settlement Corp.

6 Cf. Union Cent. Life Ins. Co. v. Hamilton Steel Prods., Inc.,

448 F.2d 501, 504 (7th Cir. 1971) (“[S]o long as there exists a real

and reasonable fear of exposure to double liability or the vexation

App. 10

On the record before us, we are entirely unpersuaded

by Gidey’s argument that the trial court “wrongly de­

clared that Gidey doesn’t dispute that a disagreement

exists between 5401 8th St, on the one hand, and Gidey

. . . related to the disbursement of the purchase pro­

ceeds.”

On appeal, Gidey raises new arguments as to why

interpleader was improper: (1) the Escrow Agreement

did not authorize disbursement of any proceeds to

5401 8th St; (2) the Escrow Agreement provided for an

interpleader action only in the event of a dispute be­

tween the two sellers, not in the event of a dispute be­

tween the sellers and the purchaser; (3) the

interpleader action is “unseasonable” because the Es­

crow Agreement required Settlement Corp. to bring it

thirty days after settlement, if at all; and (4) Settle­

ment Corp. was obligated to disburse the funds to

Gidey (and Yehdego) once the (clear title) condition in

the Escrow Agreement was fulfilled because, at that

time, Settlement Corp. ceased being the dual agent of

sellers and purchaser and became the sole agent of the

sellers as to the sale proceeds.

of conflicting claims .. . , jurisdiction in interpleader is not de­

pendent upon the merits of the claims of the parties inter­

pleaded. . . .” (internal quotation marks omitted)); W. Coast Stock

Transfer, Inc. v. Terra Tech Corp., No. SACV 19-745 JVS(JDEx),

2019 U.S. Dist. LEXIS 221994, at *19 (C.D. Cal. July 23, 2019)

(reasoning that even if the interpleader plaintiff was ultimately

shielded from liability based on indemnification, the threat of lit­

igation made interpleader appropriate).

App. 11

This court has long maintained that “[ojrdinarily,

arguments not made in the trial court are deemed

waived on appeal.” Hollins v, Fed. Natl. Mortg. Ass’n,

760 A.2d 563, 572 (D.C. 2000); see also Williams v. Gerstenfeld, 5-14 A.2d 1172, 1177 (-D.-C. 1-986) (noting that

we may “deviate [ 3 from this principle only in excep­

tional situations and when necessary to prevent a clear

miscarriage ofjustice apparent from the record”). How­

ever, even considering Gidey’s new arguments, we dis---------e&m-no-eiT-or-in-t-he-t-ria-l-eou-r-t-s-decisien-t-o-req-uire-t-hedefendants to interplead.7

; fiursuant'.to Ruie ^2 of the. Superior Court Rules

of Civil Procedure, “[pjersons with claims that may ex­

pose a plaintiff to double or multiple liability may be

.......... .joined..as„defendants_and_required_to_interpleadSuper. Ct. Civ. R. 22(a)(1). In this case, the dispositive fact

was not the particular terms of the Escrow Agreement,

but the fact that multiple parties asserted claims to

the same sale proceeds in Settlement Corp.’s custody,

exposing Settlement Corp. to potential multiple liabil­

ity. Thus, permitting interpleader was an appropriate

application of Rule 22. Further, because Settlement

Corp., and not just the sellers and purchaser, was a

party to the Escrow Agreement, paragraph 4.e of that

Agreement entitled it to bring a court action (which it

brought as a complaint for interpleader) to resolve the

• -7 We do not say that our analysis that follows is necessary to

avert a clear miscarriage of justice, but we are mindful of Gidey’s

representations about her difficult financial circumstances, and

we also share the trial court’s concern that Gidey—who asserts

that to date she has received none of the sale proceeds—may have

been ill-served by some of the legal advice she received.

App. 12

issue of the sellers’ and purchaser’s entitlement to the

escrowed funds. While, as Gidey emphasizes, para­

graph 2.d of the Escrow Agreement did specify that

Settlement Corp. was to bring an interpleader action

within thirty days after settlement if Gidey and

Yehdego could not agree in writing on a division of the

sale proceeds, paragraph 4.e of the Agreement sepa­

rately and more broadly authorized any of the parties

to seek court assistance “if the parties . . . shall be in

disagreement about . . . their rights and obligations”

under the Agreement, and it also specifically provided

that Settlement Corp “shall be fully protected in sus­

pending all or a part of its activities under this Agree­

ment until a final judgment, order or decree in the

[court] action is received.”

Finally, with regard to Gidey’s argument that Set­

tlement Corp. was the sellers’ sole agent as to the sale

proceeds, an escrow agent becomes sole agent to a

party only “in respect to those things placed in escrow

to which [the] party has . . . become entitled.” Ferguson

v. Caspar, 359 A.2d 17, 22 (D.C. 1976). Here, because

the SPA contemplated that per diem damages might

be “credited to Purchaser from Seller’s proceeds at Set­

tlement,”8 and because there was a dispute regarding

the entitlement of the sellers and purchaser to a

8 Thus, it is of no moment that “neither the settlement state­

ment nor the escrow agreement contained any provision author­

izing the distribution of the net sales proceeds, or any portion, to

54018th St.” And, contrary to Gidey’s argument in her reply brief,

5401 8th St was not required to “file a separate complaint for

money judgHment against the sellers” in order to assert an ad­

verse claim to a portion of the escrowed funds.

App. 13

portion of the proceeds of the sale transaction, an issue

existed as to whether Gidey had become entitled to the

portion of the escrowed funds that 5401 8th St also

claimed.

We also agree with the trial court’s determination

that, pursuant to the Escrow Agreement, Settlement

Corp. was entitled to recover $2,000 toward its fees for

and costs of bringing the interpleader action. The

Agreement specified that the parties would reserve

$2,000 of the sale proceeds to cover Settlement Corp.’s

costs in filing the contemplated interpleader action.

Gxdey*s only rationale for assigning error to the trial

court’s determination regarding the $2,000 is her ar­

gument, which we have already rejected, that Settle:____ ment. __Corp__was_not_ entitled_to_._maintain _an__

“unseasonable” interpleader action. But even if the

$2,000 was not authorized for costs of an interpleader

action filed outside the 30-day window specified in par­

agraph 2.d of the Escrow Agreement, it was authorized

by the Agreement’s provision requiring Gidey and

Yehdego to indemnify Settlement Corp. for “any and all

costs ... which it may incur ... by reason of its acting

as Escrow Agent under this Agreement” (the “indem­

nification clause”).

We uphold the trial court’s ruling that Settlement

Corp. established its entitlement to contractual indem­

nity for its fees, costs, and expenses incurred in bring­

ing and defending itself in this case. In the trial court,

Gidey did not state a reason for her opposition to Set­

tlement Corp.’s motion for summary judgment on its

indemnification claim, but on appeal, she argues,

App. 14

without citation to authority or reference to specific

language of the Agreement, that the indemnification

clause applies only to costs incurred as a result of

claims by third parties, and not to claims by parties to

the agreement. Again, we generally deem arguments

not made before the trial court to be waived, but even

if we were to consider this argument, we would find it

unpersuasive. We see no reasonable reading of the in­

demnification clause under which it would apply only

to costs incurred because of claims brought by third

parties, and we are aware of no law dictating such a

reading.9

B.

5401 8th St’s Motion for Summary Judgment

In granting summary judgment on 5401 8th St’s

cross-claim against Gidey for breach of contract, the

trial court found that undisputed facts established all

of the requisite elements: the existence of a valid con­

tract between the parties, an obligation arising from

that contract, a party’s breach of that obligation, and

damages caused by that breach. See Tsintolas Realty

Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009). The trial

court found that the SPA—a valid contract—unambig­

uously obligated Gidey and Yehdego to provide clear ti­

tle to 5401 8th St upon settlement; that it was

undisputed that they did not provide clear title upon

9 As described above, a provision of the SPA provided for both

the sellers and purchaser to indemnify Settlement Corp. for its

fees and costs incurred in litigation to enforce or interpret the

SPA. Gidey has not argued that 5401 8th St is jointly liable for

Settlement Corp.’s fees and costs, so we do not consider that issue.

App. 15

settlement; and that damages had arisen from the

breach of that obligation.

On appeal, Gidey again raises three arguments

that she raised before the trial court: that considera­

tion of the SPA is barred by the parol evidence rule;

that the SPA was not breached because the require­

ment to settle was. contingent on the resolution of all

issues; and that the per diem damages clause is a pen­

alty and therefore unenforceable as against public pol­

icy10

None, of the foregoing arguments is persuasive. As

to the first, we agree with the trial court that the parol

evidence rule is inapplicable here. Under the parol ev­

idence rule, “when the parties to a contract have re‘ducedHieir entire"agreemenTtcfwfi'fing,^tKe^coufTwiir

disregard and treat as legally inoperative parol evi­

dence of the prior negotiations and oral agreements.”

Stamenich v. Markovic, 462 A.2d 452, 455 (D.C. 1983)

10 Gidey also raises a new argument: that 5401 8th St ac­

cepted the Property “as is,” excusing Gidey and Yehdego from any

obligation to provide clear title at settlement. She cites a rule that

“if the purchaser delays the settlement while attempting to have

the seller remedy a claimed defect in the title of the property, he

must, when it becomes clear that seller [sic] will not meet his de­

mands either accept the title as it is, or cancel the contract.” The

case Gidey cites as support for this proposition (Clark v. Route,

951 A.2d 757 (D.C. 2008)) not only states that rule but also ex­

plains that the recourse of a purchaser in that situation who ac­

cepts title is to “complete the closing and then take appropriate

legal action to require the seller to comply with that term of the

contract.” Id. at 764. That essentially is what 5401 8th Street did

by proceeding against Gidey for per diem damages payable until

clear title was arranged.

App. 16

(quoting Giotis u Lampkin, 145 A.2d 779, 781 (D.C.

1958)). In this case, the SPA was neither a prior nego­

tiation nor an oral agreement but instead was a writ­

ten contract in and of itself. Because the SPA and

Escrow Agreement were separate contracts that gov­

erned separate aspects of the parties’ transaction, it

cannot be said that the trial court was required to dis­

regard the terms of the SPA as parol evidence with re­

spect to the Escrow Agreement. Further, the court did

not look to the SPA to help interpret the Escrow Agree­

ment but instead applied the terms of the SPA itself.

We also reject Gidey’s argument that the SPA’s per

diem damages clause is inconsistent with, and thus

was overridden by, the Escrow Agreement. Although

the Escrow Agreement does not mention the SPA’s per

diem damages provision, one of the Escrow Agree­

ment’s recitals explicitly acknowledges the SPA, and

no language in the Escrow Agreement purports to su­

persede any term of the SPA other than the scheduled

settlement date (May 1, 2018, rather than March 31,

2018). We note that although Gidey now suggests that

the Escrow Agreement alone “governs this case,” the

record shows that earlier, through counsel, she

acknowledged that the SPA’s per diem damages clause

was in effect.

Also unpersuasive is Gidey’s argument that she

did not breach the SPA because the terms of the SPA

were conditioned on the “clearing of the Sellers’ is­

sues.” Instead, what triggered the SPA timeline was

the “clearing [of] any and all issues in order to satisfy

Seller’s Obligation” (emphasis added). Gidey is correct

App. 17

that “any and all issues” were not cleared until after a

Superior Court judge ruled that the HELOC loan was

to be paid off from Yehdego’s share of the sale proceeds.

But, as the trial court reasoned, the question of which

seller was responsible for paying off the HELOC loan

was not one that had to be answered before paying off

the loan from the total sale proceeds so that the Bank

of America lien'could be removed, clear title could be

achieved, and settlement with clear title (the “Seller’s

Obligation”) could be effected; apportionment of rc‘ sponsibilityasbetween Gidey and Yehdego-could-come

.JaterJThus, when. Gidey insisted that Settlement Corp.

refrain 'from' disbursing funds to pay off the HELOC

loan—a pay-orf that was necessary so that lien-free ti­

tle could be conveyed—this caused a breach of the

Seilers1 obligation" under tii^rSPAto proceedlo settle1"

ment with clear title. Gidey emphasizes that 5401 8th

St accepted the title as it was and completed the sale

transaction—i.e., participated in settlement—by

transferring the purchase money to be held in escrow,

but we agree with the trial court that the sellers’

breach was in their failure to timely settle by convey­

ing clear title.

The trial court did not address Gidey’s argument

that the per diem damages clause was unenforceable

as against public policy. However, this court has long

upheld contractually agreed-upon liquidated damages

provisions. See Burns v. Hanover Ins. Co., 454 A.2d 325,

327 (D.C. 1982) (“It is well-settled that parties to a con­

tract may agree in advance to a sum certain to be for­

feited as liquidated damages for breach of contract.”).

App. 18

Gidey has not shown why this rule would not apply

here.

Finally, we agree with the trial court that 5401 8th

St is entitled to attorney’s fees and costs associated

with bringing the cross-claim, pursuant to the unam­

biguous language of paragraph 11 of the SPA entitling

it to such: “In any action or proceeding involving a dis­

pute between Purchaser and Seller arising out of this

Contract, Purchaser will be entitled to receive from

Seller reasonable attorney’s fees, court costs, and pro­

cess server’s fees and expenses.”

C.

Settlement Corp.’s Motion for Summary

Judgment as to Gidey’s Counterclaims

Next, we address the trial court’s grant of Settle­

ment Corp.’s motion for summary judgment on Gidey’s

counterclaims against it for breach of fiduciary duty,

breach of contract, and unpaid interest on the es­

crowed funds. Gidey alleged that Settlement Corp.

breached fiduciary and contractual duties to (1) file an

interpleader action on June 1, 2018, (2) to disburse the

escrowed funds to Gidey and Yehdego following the

April 17, 2019, determination that the HELOC loan

should be paid off solely using Yehdego’s share of the

sale proceeds, and (3) to deposit the escrowed funds in

an interest-bearing account. We agree with the trial

court that Settlement Corp. was entitled to judgment

as a matter of law on all three claims.

There is no dispute that Settlement Corp. failed to

file its interpleader action by the specified date and

App. 19

that the Escrow Agreement declared time to be of the

essence. But the Escrow Agreement also contained a

provision that Settlement Corp. "shall not be. liable for

any mistakes of fact, or errors of judgment, or for any

acts or omission of any kind unless caused by its willful

misconduct or gross negligence ” Like the trial court,

we see nothing in the record that would support a find­

ing that Settlement Corp. engaged in 'willful 'miscon­

duct or gross negligence by failing to file an

interpleader action once 30 days had passed given the

undisputed evidence that Gidey, through counsel, re­

peatedly insisted, in the days following, that.failure,

that Settlement Corp. not do so (even admitting that it

was "obvious’1 that there was no need to do so). See su­

pra note 2. Effectively, Gidey waived any claim that

"Settlement~~Corp. committed-!*-breach”by“del ayin|pits"

filing of an interpleader action.

Gidey also argues that Settlement Corp. breached

its contractual duty to disburse the escrowed funds to

Gidey and Yehdego once the sellers' dispute over the

division of the funds was resolved. In granting Settle­

ment Corp.'s summary judgment motion on this issue,

the trial court found that this issue was barred by col­

lateral estoppel because, in an order in the quiet title

action, the judge presiding over that case stated that

Gidey was "mistaken in her apparent belief that the

[c]ourt ordered [Settlement Corp.) to release escrowed

funds to her.” Gidey v. Bank ofAmerica, No. 2018 CA

005066, slip op. at 2 (D.C. Super. Ct. Aug. 6, 2019).

Gidey argues on appeal that the trial court was mis­

taken in holding that her claim was barred by

App. 20

collateral estoppel because the court in the quiet title

case merely clarified that it had not previously ordered

Settlement Corp. to release escrowed funds to Gidey,

and did not determine that Settlement Corp. had no

obligation to do so.

We agree with Gidey on this point; the trial court

erred in finding that Gidey’s claim was barred by col­

lateral estoppel. However, considering the merits of

Gidey’s claim that Settlement Corp. breached its con­

tractual duty to disburse the escrowed funds to Gidey

and Yehdego once their dispute over the division of the

funds was resolved, we conclude that Settlement Corp.

was nonetheless entitled to judgment as a matter of

law on this claim. Although by its terms the Escrow

Agreement required Settlement Corp. to release the

escrowed funds to Gidey and Yehdego once their dis­

pute was resolved in writing, Settlement Corp. was fac­

ing a competing claim by 5401 8th St to a sizeable

portion of the same funds. Because it was proper for

Settlement Corp. to file an interpleader action before

releasing the funds to Gidey and Yehdego, and because

the Escrow Agreement authorized Settlement Corp to

“suspend! 1 all or part of its activities under the Agree­

ment” until it received a court resolution and, further,

indemnified Settlement Corp. for its actions as an es­

crow agent, even for “errors of judgment,” we conclude

that Gidey cannot succeed on this claim as a matter of

law.

Finally, we agree with the trial court that Settle­

ment Corp. is entitled to judgment as a matter of law

on Gidey’s claim that it breached its fiduciary duty by

App. 21

failing to place the escrowed funds in an interest-bear­

ing account. The trial court treated this as a breach of

contract claim (which failed because the Escrow Agree­

ment was silent as to the funds being placed in an in­

terest-bearing account), but Gidey insists that it is a

breach of fiduciary duty claim. However, Gidey cites no

authority supporting her argument that an escrow

agent has a fiduciary duty to place escrowed funds in

ah interest-bearing account when not required to do

so by the escrow agreement.11 Further, the persuasive

authority of which we are aware is-to the contrary. See

Hannon v. W. Title Ins. Co.. 260 Cal. Rptr. 21. .24 (Cal.,

Ct\ App. 1989) (holding 'that "an escrow holder has no

duty to deposit funds in an interest-bearing account,

absent instruction to do so”). Furthermore, the Escrow

Agreement explicitly providedThaTSeLtleinenfCofpT’s'

duties “shall be limited to the safe-keeping of the Es­

crow Funds and the disposition of the same in accord­

ance with the terms” of the Agreement; that

Settlement Corp. undertook to perform "only such du­

ties as are expressly set forth” in the Agreement; and

that “no implied duties or obligations” were to be read

into the Agreement against Settlement Corp. We see

no evidence upon which a jury could conclude that Set­

tlement Corp. had any duty to place the funds in an

interest-bearing account.

11 Settlement Corp. argues that Gidey must support her fi­

duciary duty claims with expert testimony on the standard of care

applicable to an escrow agency. We need not address that argu­

ment because Gidey has not supported her claim with any author­

ity, let alone expert testimony.

App. 22

Accordingly, we affirm the trial court’s grant of

Settlement Corp.’s motion for summary judgment on

all three of Gidey’s counterclaims. We also affirm the

trial court’s ruling that Settlement Corp. is entitled to

legal fees and costs incurred in defending against

Gidey’s counterclaims, pursuant to the indemnification

clause of the Escrow Agreement.

D. Gidey’s Motions for Summary Judgment

Having affirmed the trial court’s rulings on 5401

8th St’s motion for summary judgment on its cross­

claim against Gidey and on Settlement Corp.’s motion

for summary judgment on Gidey’s counterclaims

against it, we also affirm the trial court’s denial of

Gidey’s motions for summary judgment in her favor re­

garding those same claims. Gidey’s only remaining mo­

tion for summary judgment is on her cross-claim

against Yehdego. Gidey claims that Yehdego should in­

demnify her for any damages or costs she may be re­

quired to pay Settlement Corp. or 5401 8th St, on the

ground that, by refusing to pay off the HELOC loan

from his share of the sale proceeds, Yehdego caused

Gidey to incur liability. She further argues that

Yehdego owed her an implied duty, in light of their

marital relationship, not to encumber their marital

property and to pay off the lien in a timely manner.

We have said that “a right to indemnity exists

where a duty to indemnify may be implied out of a re­

lationship between the parties to prevent a result

which is unjust.” Howard Univ. v. Good Food Serv., Inc.,

App. 23

608 A.2d 116,123 (D.C. 1992). The trial court found no

basis in the record for concluding that Yehdego should

be required to indemnify Gidey to prevent injustice. We

uphold that ruling because, as the trial court found, the

record shows that Gidey committed her own breach

when, through counsel, she caused the delay in clear­

ing title by instructing Settlement Corp. not to dis­

burse the funds to pay off the Bank of America loan

while she pursued her quiet title claim. Therefore, even

-----assumi-ng-arguendo-t-hat-spouses-who-are-t-ena-nt-s-bythe-entireties have the general non-encumbrance-duty

.Gidey.ppsjtSj.. we .cannot sav that it was unjust to mipose-on Gidey'joint and several liability to indemnify

Settlement Corp. for expenses and damages incurred

from the escrow arrangement, as she agreed to do in

signing the Escrow Agreement,19, and to hold her liable

for the per diem damages payable to 5401 8th St based

on the delay in conveying clear title.

E.

Trial Court’s Order That Gidey’s

Attorney Pay Attorney’s Fees

We also affirm the trial court’s order that Gidey’s

attorney pay 54018th St’s attorney’s fees in connection

with its motion to extend discovery as a result of

Gidey’s counsel’s failure to respond appropriately to

discovery requests. The court found that Gidey’s attor­

ney’s discovery responses were “insufficient, incom­

plete, and deficient”; that his assertions of the

12 Gidey highlights that she signed the SPA prior to being

represented by counsel, but she had counsel when she signed the

Escrow Agreement.

App. 24

work-product doctrine were baseless; and that it would

not be fair to Gidey to make her pay the consequences

of her counsel’s failure to respond to discovery. On ap­

peal, Gidey argues again that these documents were

covered by the work-product doctrine and, citing Road­

way Express, Inc. v. Piper, 447 U.S. 752, 767 (1980),

faults the trial court for requiring her counsel to pay

5401 8th St’s attorney’s fees without having made a

finding of bad faith by counsel.

Roadway Express recognized the inherent author­

ity of courts to impose contempt sanctions “absent a

statute or rule expressly notifying counsel of that po­

tential sanction.” Charles v. Charles, 505 A.2d 462,466

(D.C. 1986) (interpreting and applying Roadway Ex­

press). The Roadway Express Court also recognized,

however, that “Federal Rule of Civil Procedure 37(b)

authorizes sanctions for failure to comply with discov­

ery orders.”Roadway Express, 447 U.S. at 763. Because

the district court had relied on civil rights statutes in­

stead of Rule 37 in imposing sanctions, the Court re­

manded to allow the lower court to consider sanctions

under FRCP Rule 37, or in the alternative, to impose

sanctions using its inherent authority to do so upon a

specific finding of bad faith. Id. at 756, 767. Here, be­

cause Superior Court Rule of Civil Procedure 37(b) ex­

pressly authorized sanctions for failure to cooperate in

discovery, the court did not need to rely on its inherent

authority to impose sanctions and, thus, was not re­

quired to make a specific finding of bad faith.

We also agree that the work-product doctrine did

not cover the documents Gidey’s attorney refused to

App. 25

produce. Gidey argues that she should not have been

required to produce “e-mail communications with Set­

tlement Corp., and others, in preparation for the [quiet

title] lawsuit” because they “were exchanged in prepa­

ration of that lawsuit” and contained the attorney’s

“mental impressions, opinions and believes [sic].” The

trial court properly found that the work-product doc­

trine did not protect these emails from discovery be­

cause, even if they contained the attorney’s “mental

-impressionsrlegal-researchyor-theories—Gidey-s-attor—

neywoluntarily sent them to third parties: See United

States xu JJeloittet LLR. .610 F 3d 129... 140 (D.C. Cir...

20T0)-(“[T]h’e voluntary disclosure of attorney work

product to an adversary or a conduit to an adversary

waives work-product protection for that material.”).

"Gicley’s counsel complainslilTatThe courfentefed'its order without affording him an opportunity to call wit­

nesses and present evidence, but her brief does not

explain what witnesses could have added, what evi­

dence could have been presented, or how such evidence

was relevant.

We discern no reason to disturb the trial court’s

factual finding that Gidey’s counsel had “no intention

of cooperating with [the discovery] process” or its con­

clusion that a sanction therefore was warranted. We

are not persuaded that the sanction was “too strict or

unnecessary under the circumstances,” Roe v. Doe, 73

A.3d 132, 135 (D.C. 2013), given that Gidey’s counsel

was required to pay only the attorney’s fees associated

with 5401 8th St’s motion to extend discovery, which

App. 26

was the direct consequence of counsel’s failure to pro­

vide appropriate discovery responses.

F.

5401 8th St’s Motion to Dismiss

Finally, we turn to, and affirm, the trial court’s

grant of 5401 8th St’s motion to dismiss Gidey’s cross­

claim against it for failure to state a claim upon which

relief could be granted. In her cross-claim, Gidey as­

serted that 5401 8th St breached the Escrow Agree­

ment and SPA by requesting that per diem damages

be paid to it from the sale proceeds and opposing the

disbursement of funds to the sellers without that ad­

justment. To survive a motion to dismiss on a breach of

contract claim, the complaint must have alleged the el­

ements of a legally viable breach of contract claim: the

existence of a contract, a duty arising from that con­

tract, a breach of that duty, and damages resulting

from the breach. See Francis v. Rehman, 110 A.3d 615,

620 (D.C. 2015). Here, Gidey’s cross-claim did not al­

lege what duties, arising from either the Escrow Agree­

ment or the SPA, 5401 8th St allegedly breached.

Viewing the cross-claim in the light most favorable to

Gidey, we cannot find that it identifies a breach of ei­

ther contract.

IV.

Conclusion

For the foregoing reasons, the judgment of the

trial court is affirmed. We remand to the trial court,

however, to address whether Settlement Corp. has an

obligation to disburse any funds to Gidey after

App. 27

applying the escrowed funds toward the awards up­

held in this opinion. See note 3 supra.

So ordered.

ENTERED BY DIRECTION

OF THE COURT:

is! Julio A. Castillo

JULIO A. CASTILLO

Clerk of the Court

Copies sent to:

Honerable-Hir

E. Puig-Lugo

Director. Civil Division QMU

Workneh Chumet. Esquire

Gregory L. Sussman, ilisquire

Justin M. Flint, Esquire

Gabriel T. Bluestone, Esquire

Michael Z. Bluestone, Esquire

Yeekkalo Yehdego

P.O. Box 34193

Washington DC 20043

App. 28

SUPERIOR COURT OF

THE DISTRICT OF COLUMBIA

CIVIL DIVISION

SETTLEMENT CORP. DBA

SETTLEMENTCORP

Case Number:

2019 CA 004678 B

v.

Judge:

Hiram E. Puig-Lugo

RODA GIDEY, et al.

ORDER

(Filed Apr. 20, 2020)

The parties in this case have filed a plethora of

motions as part of this protracted litigation. The plead­

ings related to these motions are (1) plaintiff/counter­

claim defendant Settlementcorp’s Opposed Motion for

Summary Judgment to Interplead the Escrowed

Funds and for Contractual Indemnity, filed March 4,

2020, defendant/counterclaim plaintiff/crossclaim de­

fendant/crossclaim plaintiff Roda Gidey’s Opposition,

filed March 17, 2020, and Settlementcorp’s Reply, filed

March 20,2020; (2) defendant/crossclaim plaintiff5401

8th Street NW LLC’s Motion for Summary Judgment

Against crossclaim defendants Roda T. Gidey and

Yeekkalo Yehdego, filed March 9, 2020, Roda Gidey’s

Opposition, filed March 24, 2020, and 5401 8th Street

NW LLC’s Reply, filed April 14,2020; (3) plaintiff/coun­

terclaim defendant Settlementcorp’s Opposed Motion

for Summary Judgment Regarding Roda Gidey’s Coun­

terclaim, filed March 11, 2020, Roda Gidey’s Opposi­

tion, filed March 26, 2020, and Settlementcorp’s Reply,

filed April 1, 2020; and (4) defendant/counterclaim

App. 29

plaintiff/crossclaim defendant/crossclaim plaintiff Roda

Gidey’s Motion for Summary Judgment against Settlemcntcorp, 5401 8th Street NW LCG, and Yeekkalo

Yehdego, filed March 12, 2020, Settlementcorp’s Oppo­

sition, filed March 26, 2020, and 5401 8th Street NW

LLC’s Opposition, filed April 14, 2020.

Upon consideration of the parties’ filings, the rele­

vant statutory and case law, and the entire record

herein, plaintiff/counterclaim defendant Settlementcorp’s Opposed Motion for Summary Judgment to

Interplead the Escrowed Funds and for Contractual

Indemnity is - GRANTED IN PART, defehdahi/cfbssolaim plaintiff 5401 8th Street NW LLC’s Motion for

Summary Judgment Against crossclaim defendants

^oda-3r-Gidey-and-Yeeldcalo-Yehdego-is-GRANTEp,-— plaintiff/counterclaim defendant Settlementcorp’s Op­

posed Motion for Summary Judgment Regarding Roda

Gidey’s Counterclaim is GRANTED, and defend­

ant/counterclaim plaintiff/crossclaim defendant/cross­

claim plaintiff Roda Gidey’s Motion for Summary

Judgment against Settlementcorp, 5401 8th Street

NW LLC, and Yeekkalo Yehdego is DENIED AND DE­

NIED AS MOOT.

Procedural Posture

On July 17,2019, Settlementcorp filed a complaint

for Interpleader and Declaratory Relief (“the Inter­

pleader Case”) against Yeekkalo Yehdego (‘Yehdego”),

Roda Gidey (“Gidey”), and 5401 8th Street NW LLC

(“5401 8th Street”).

App. 30

On August 13, 2019, 5401 8th Street filed an an­

swer to Settlementcorp’s complaint and a crossclaim

against Yehdego and Gidey alleging Breach of Con­

tract.

On October 7, 2019, Gidey filed an answer to Set­

tlementcorp’s complaint and 5401 8th Street’s cross­

claim and also filed three counterclaims against

Settlementcorp alleging Breach of Fiduciary Duty,

Breach of Contract, and Unpaid Interest on the Es­

crowed Funds, one crossclaim against 5401 8th Street,

and one crossclaim against Yehdego.

On November 15, 2019, Yehdego, pro se, filed an

Answer.1

On November 19, 2019, the Court granted 5401

8th Street’s motion to dismiss Gidey’s crossclaim, filed

October 29, 2019.

On December 3, 2019, Settlementcorp filed an an­

swer to Gidey’s counterclaims.

On March 11, 2020, the Court granted 5401 8th

Street’s Partial Consent Motion for Judgment against

Yehdego, filed February 14, 2020, and judgment was

entered against Yehdego on 5401 8th Street’s cross­

claim.

1 Yehdgeo did not clarify whether his Answer was in re­

sponse to Settlementcorp’s complaint, 5401 8th Street’s Cross­

claim, Gidey’s Crossclaim, or all three. Given the latitude afforded

to pro se parties in matter of pleadings, the Court will construe

Yehdego’s Answer as responding to all three.

App. 31

Accordingly, the claims still active in this lawsuit

are (1) Settlementcorp’s complaint for Interpleader

and Declaratory Relief against Yehdego, Gidey, and

5401 8th Street; (2) 5401 8th Street’s crossclaim

against Gidey; (3) Gidey’s counterclaims against Settlementcorp; and (4) Gidey’s crossclaim against

Yehdego.

Background

-This matter is -part-of a- long and complicated his­

tory between Gidey and Yehdego, which includes liti­

gation over real property located at 5401 8.th Street

N\V, Washington, DC 2 AA1 1 (“the Property”). The relevant timeline of events is summarized below.

In 1993, Gidey and Yehdego purchased the Prop­

erty in dispute. They were married at the time. Settlementcorp SOMF *1 1. Some three years later, on June

14,1996, Yehdego filed a complaint for absolute divorce

in Case No. 1996 DRB 001728 (“Divorce Case”). See id.

H 2. On October 21, 1996, an order of default was en­

tered against Gidey in the Divorce Case after Gidey

failed to timely respond pursuant to Rule 55. Gidey

SOME f 3. On January 28, 1997, Judge Suda entered

a default judgment awarding Yehdego an Absolute Di­

vorce from Gidey and sole title to the Property. Id. Ten

years later Yehdego recorded a Deed of Property trans­

ferring to himself sole ownership of the Property. Settlementcorp SOMF 2. In 2008, as the sole owner of

record, Yehdego obtained a Home Equity Line of Credit

(“HELOC”) for $180,000 from Bank of America and

App. 32

executed a Credit Line Deed of Trust on the Property

to secure the HELOC. Id.

On August 11, 2014, almost twenty years after

Yehdego was awarded sole title to the Property in the

Divorce Case and six years after he obtained the

HELOC, Gidey filed a complaint against Yehdego for

Declaratory Judgment in Case No. 2014 CA 004950

(“Declaratory Judgment Case”). See Case Docket 2014

CA 004950. In her complaint, Gidey requested that the

Court find that the Property was joint marital property

and enjoin Yehdego from encumbering, selling, or

transferring it. Id.

On September 2, 2015, while the Declaratory

Judgment Case was pending in the Civil Division,

Gidey filed a motion in Family Court to vacate the Jan­

uary 28, 1997 order granting a default judgment.

Gidey SOMF f 7. In her motion for relief from judg­

ment, Gidey claimed that she had not been properly

served with Yehdego’s complaint for Absolute Divorce.

Id. Because the Divorce Case and the Declaratory

Judgment Case involved the same parties and common

questions of law and fact, the cases were consolidated

before Judge McCabe. See Case Docket 1996 DRB

001728.

On February 26, 2016, a hearing took place before

Judge McCabe on Gidey’s motion for relief from judg­

ment. Id. Gidey, represented by counsel, and Yehdego,

pro se, appeared for the hearing. Id. Based on the par­

ties’ representations, Judge McCabe granted Gidey’s

motion for relief from judgment and vacated both the

App. 33

October 21, 1996 default entered against Gidey and

the January 28, 1997 Judgment for Absolute Divorce,

including the order awarding the Property to Yehdego.

See Case No. 1996 DRB 001728, Mar. 1, 2016 Judge

McCabe Order; accord Gidey SOMF 'll 8. Subsequently,

Gidey and Yehdego appeared for a status hearing on

May 11, 2016. See Case Docket 1996 DRB 001728. At

the hearing. Judge McCabe granted Gide/s request for

injunctive relief in the Declaratory Judgment Case

■^nd_entered_an~'order~finding^hat-the”Property-wasowned by Gidey and Yehdego as joint marital property

transferring the Property. See 2014 CA 004950, May

12, 2016 Judge McCabe Order; accord Gidey SOMF

1 9. On May 12, 2016, the Declaratory Judgment Case

arid the Divorce Case were closed. See Case Docket

1996 DRB 001728.

Some time around February or March 2018, Gidey

and Yehdego executed a Standard Purchase Agree­

ment (“SPA”) selling the Property to Residential

Growth Properties, LLC for $600,000.2 Settlementcorp

SOMF H 3. Gidey, Yehdego, and the purchaser agreed

to proceed to final Settlement on March 31, 2018. 5401

8th Street SOMF f 4. At the time the parties executed

the SPA, the HELOC that Yehdego transacted in 2008

2 Residential Growth Properties, LLC is not a party to this

action. Shortly after executing the SPA, Residential Growth

Properties, LLC assigned its rights under the SPA to 5401 8th

Street. 5401 8th Street Summ. J. at 1 n.2. Accordingly, to avoid

confusion throughout this section, the Court will refer to Residen­

tial Growth Properties, LLC and 5401 8th Street as “the pur­

chaser ”

App. 34

remained attached to the Property and was identified

in the SPA as an “existing lien” to be paid off prior to

Settlement. Id. K 3. Under terms of the SPA, should

Gidey and Yehdego fail to convey clean title to the

Property within seven days of final Settlement, the

purchaser would be entitled to receive $150.00 each

day that Settlement was delayed for failure to convey

clean title. Id. M 8-9.

On March 31, 2018, the HELOC had not been paid

off as Gidey and Yehdego disagreed as to whose share

of the purchase proceeds should be used to repay the

loan. Id. 10. Thus, the parties agreed to extend the

final Settlement date to May 1, 2018 to allow Gidey

and Yehdego time to resolve their dispute. Id. But alas,

Gidey and Yehdego were unable to come to an agree­

ment as to how the HELOC should be repaid by May

1,2018. Id. 5 12. Consequently, the parties were unable

to complete Settlement because Gidey and Yehdego

could not convey clean title to the Property. Id. How­

ever, to allow the sale of the Property to close, Gidey,

Yehdego, and the purchaser3 executed an Escrow

Agreement with Settlementcorp to place the funds

used to purchase the Property into an Escrow Account.

Id.

The Escrow Agreement noted the following: (1)

that Gidey and Yehdego entered into a SPA selling the

Property to the purchaser for $600,000; (2) that Gidey

3 At the time the parties executed the Escrow Agreement, the

rights of the purchaser had been assigned to 5401 8th Street.

Thus, 5401 8th Street is a named party of the Escrow Agreement.

App. 35

and Yehdego disputed how to distribute the purchase

proceeds between them, centering on whose obligation

it was to repay the HELOC; (3) that Gidey, Yehdego,

and the purchaser agreed to place the purchase pro­

ceeds and any and all seller payments in an Escrow

Account held by Settlementcorp; and (4) that the pur­

chase proceeds and any and all seller payment's would

be held by Settlementcorp until Gidey and Yehdego

came to an agreement on the division of the purchase

■proceedsrSettlementeorp S0MFff5^rTmYhe~evenir

Gidey and Yehdego were unable to agree how the purchase-proceed^-shouJd foe- disbursed* the agreement,

provided for Settlementcorp to file an interpleader ac­

tion. Id. f 12.

------Between-^lay—1—20-l-8-nnd-June-3^-20-l-8-G-idey,Yehdego, and the purchaser attempted to come to an

agreement on how to divide the purchase proceeds af­

ter repayment of the HELOC and compensation to the

purchaser for delay in transferring clean title to the

Property. Id. 17. The negotiations were unsuccessful

as Gidey refused to repay the HELOC with her portion

of the purchase proceeds. 5401 8th Street SOMF % 5.

Therefore, on June 3, 2018, Gidey requested to cancel

the settlement agreement. Settlementcorp SOMF 1 18.

However, one day later, Gidey withdrew her request to

cancel the settlement agreement and instead re­

quested that all of the purchase proceeds be held in the

Escrow Account until she was able to challenge the va­

lidity of the HELOC. Id. ^ 20. On June 9, 2018, present

counsel for Gidey sent a follow up email to Settle­

ment-carp and the purchase1* rehers.tir»g.foer demand

App. 36

“that all the proceeds from the sale ... be kept in the

Escrow account until [she] obtain [ed] [a] declaratory

judgment from the Courts.” Id. tfl<][ 21-22.

Subsequently, on July 17, 2018, Gidey filed a com­

plaint in Case No. 2018 CA 005066 seeking quiet title

to the Property against Yehdego and Bank of America

(“Quiet Title Case”). Id. 1 23. On December 28, 2018,

Gidey filed an agreed motion for entry of consent judg­

ment as to Bank of America. Gidey SOMF f 21. On

February 6,2019, Yehdego filed an Answer. Id. On Feb­

ruary 19, 2019, Gidey filed a motion for judgment on

the pleadings against Yehdego. Id. Yehdego failed to re­

spond to both the agreed motion for entry of consent

judgment and the motion for judgment on the plead­

ings. Id. *J[ 22. Accordingly, on April 17,2019, Judge Pan

granted Gidey’s agreed motion for entry of consent

judgment and Gidey’s motion for judgment on the

pleadings and ordered that the “[HELOC] shall be sat­

isfied in full from defendant Yeekkalo Yehdego’s por­

tion of the proceeds from the sale of the Property. . . .”

See 2018 CA 005066, April 17, 2018 Judge Pan Order;

accord Gidey SOMF % 22. Thus, on May 28, 2019, Settlementcorp paid off the HELOC from Yehdego’s por­

tion of the purchase proceeds, and on June 20,2019 the

purchaser obtained clean title to the Property. 54018th

Street SOMF ff 20-21.

Throughout the pendency of the Quiet Title Case,

Gidey’s counsel requested that Settlementcorp abstain

from filing an interpleader action and keep the pur­

chase proceeds in the Escrow Account. Settlementcorp

SOMF f 24. However, once the HELOC had been

App. 37

repaid, Gidey requested that Settlementcorp disburse

her share of the purchase proceeds. Id. 1 27. Settle­

mentcorp then provided Gidey and Yehdego with a

breakdown of proposed disbursements noting that

Gidey’s portion of the purchase proceeds was

$250,947.95 while Yehdego’s portion of the purchase

proceeds was $62,177.25. Id. H 28. Taken out of

Yehdego’s portion was the $180,000 repayment of the

HELOC, pursuant to Judge Pan’s Order. Id. M 29-30.

In addition, both Gidey and Yehdego’s portions were

reduced by $44,488 to reflect a total payment of

-$S8^976£oihe, purchaser-based oruthe delay in-provid­

ing clean title to the Property. Id.

After receiving the proposed disbursement, Gidey

-refused-to-a-llow-the-purGhase-nroGeeds-to-be-distidb-uted, arguing that the purchaser was not entitled to

any payment based on the delay in providing clean ti­

tle. Id. 1 29. Accordingly, the purchaser advised Settle­

mentcorp to file an interpleader action for judicial

determination as to distribution of the purchase pro­

ceeds. Id. ?[ 34. Gidey opposed the purchaser’s request

for an interpleader action and filed a motion for an or­

der to show cause in the Quiet Title Case against Set­

tlementcorp alleging that Settlementcorp violated

Judge Pan’s April 17, 2019 order by failing to disburse

the purchase proceeds to Gidey. Id.

32, 36.

On July 17,2019, before an order issued to resolve

Gidey’s motion to show cause, Settlementcorp filed the

Interpleader Case naming Gidey, Yehdego, and 5401

8th Street as defendants. Id. H 38. Shortly thereafter,

on August 6,2019, Judge Pan denied Gidey’s motion to

App. 38

show cause concluding that Gidey “is mistaken in her

apparent belief that the Court ordered [Settlementcorp] to release the escrowed funds to her.” See

2018 CA 005066, August 6, 2019 Judge Pan Order; ac­

cord Settlementcorp SOMF f 37. Thus, the Quiet Title

Case remained closed, and the parties continued to lit­

igate their dispute over the purchase proceeds in the

Interpleader Case.

The parties have engaged in extensive motions

practice within the Interpleader Case culminating in

the four motions for summary judgment now pending

before this Court. The Court addresses each motion in

turn.

Standard of Review

To prevail on a motion for summary judgment, the

moving party must establish that there is no genuine

issue as to any material fact, and that the moving

party is entitled to judgment as a matter of law. Hunt

u. District of Columbia, 66 A.3d 987, 990 (D.C. 2013)

(citing Grant u. May Dep’t Stores Co., 786 A.2d 580, 583

(D.C. 2001)); Super. Ct. Civ. R. 56(c). A material fact is

“one which, under the applicable substantive law, is

relevant and may affect the outcome of the case.” Rajabi v. Potomac Elec. Power Co., 650 A.2d 1319, 1321

(D.C. 1994). The moving party has the initial burden of

proving there is no genuine issue of material fact in

dispute; after satisfying that burden, the burden shifts

to the non-moving party to establish that such an issue

exists. Bradshaw v. District of Columbia, 43 A.3d 318,

App. 39

323 (D.C. 2012) (quoting Beard v. Goodyear Tire &

Rubber Co., 587 A.2d 195, 198 (D.C. 1991)). The non­

moving party must set forth “significant probative ev­

idence tending to support the complaint,” Barrett v.

Covington & Burling LLP, 979 A.2d 1239, 1245 (D.C.

2009) (internal citations omitted), consisting of specific

facts showing there is a genuine issue for trial. See also

Super. Ct. Civ. R. 56(e) (“Supporting and opposing affi­

davits shall be made on personal knowledge, shall set

'forth-such-facts-as-would-be-admissible-in-evidencej and shall show affirmatively that the affiant is competentJboiestiiy to the-inatters.Btate<Ltberein._”),..

In considering the merits of the moving party’s re­

quest, the Court reviews the record in the light most

-favorable toUiejion^moving-party, “drawing-all reason=__

able inferences from the evidence in the non-moving

party’s favor.” See Medhin v. Hailu, 26 A.3d 307, 310

(D.C. 2011). The Court may not “resolve issues of fact

or weigh evidence at the summary judgment stage.”

Barrett, 979 A.2d at 1244 (internal citation omitted). In

ruling upon a motion for summary judgment, the

Court reviews “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, to determine whether there is a

genuine issue as to any material fact.” See District of

Columbia v. Gray, 452 A.2d 962,964 (D.C. 1982) (inter­

nal citations omitted).

App. 40

1.

Plaintiff/Counterclaim Defendant Settlementcorp’s Opposed Motion for Summary

Judgment to Interplead the Escrowed

Funds and for Contractual Indemnity (“Mo­

tion to Interplead”)

On July 17,2019, Settlementcorp filed a two-count

complaint against Gidey, Yehdego, and 5401 8th Street.

Count 1 is an “Action for Interpleader” and requests

that the Court (1) require Gidey, Yehdego, and 54018th

Street to litigate their conflicting and competing

claims as to their entitlement to the remaining pur­

chase proceeds; (2) allow Settlementcorp to deposit the

purchase proceeds into the court registry; and (3)

award Settlementcorp $2,000 from the escrowed funds

to cover fees associated with bringing the Interpleader

Case. See generally Settlementcorp Compl. ff 7-20.

Count 2 seeks to enforce the contractual indemnity

clause of the Escrow Agreement requiring Gidey and

Yehdego to indemnify Settlementcorp for all costs and

fees incurred in bringing the Interpleader Case as well

as defending against Gidey’s counterclaims. See id.

21-23.

In the Motion for Summary Judgment to Inter­

plead, Settlementcorp seeks judgment on Counts 1 and

2 of its complaint. Gidey opposes Settlementcorp’s re­

quest. For the following reasons, the motion is granted

in part.

App. 41

A. Settlementcorp’s Request to Interplead,

Deposit Purchase Proceeds into the Court

Registry, and Receive Fees Associated

with Bringing the Interpleader Case

Settlementcorp asserts that it is entitled to judg­

ment on Count 1 of its.complaint as “the existence of a

disagreement between [Gidey and 5401 8th Street]

about how to divide up and distribute the [purchase

proceeds] is not in dispute.” Mot. to Interplead at 9. Ac"cordingly”because the partiesliisagree on how tottis1burse the purchase proceeds, pursuant to the terms of

• -the- Escrow Agreement* Scttlcmcntcarp-is required “to file an interpleader action in the Superior Court of the

District of Columbia placing all proceeds and seller re­

lated payments in the Registry of the Court.” Id. at 3

(citing Escrow Agreement § 2(d)).

In her opposition, Gidey does not dispute that a

disagreement exists between the parties related to the

disbursement of the purchase proceeds. Moreover,

Gidey does not dispute that section 2(d) of the Escrow

Agreement requires Settlementcorp to file an inter­

pleader when the parties are unable to agree how to

divide the purchase proceeds. Rather, Gidey challenges

the merits of 5401 8th Street’s crossclaim as “plainly

false” and “frivolous” and asks the Court to deny Set­

tlementcorp’s Motion to Interplead on this ground

alone. Gidey Opp’n at 1.

Gidey misses the point in her opposition. Whether

or not 5401 8th Street will ultimately prevail on its

claim against Gidey has no bearing on whether the

App. 42

parties should be required to interplead. Pursuant to

Rule 22, “[plersons with claims that may expose a

plaintiff to double or multiple liability may be joined

as defendants and required to interplead.” Super. Ct.

Civ. R. 22(a)(1). Here, Gidey and 5401 8th Street have

asserted conflicting and competing claims to the pur­

chase proceeds that could expose Settlementcorp to

double or multiple liability. See id. Moreover, the Es­

crow Agreement contemplated the situation in which

the parties now find themselves. Gidey provides no

reason why the Court should not effectuate the parties’

intent to resolve this dispute through an interpleader

action. Accordingly, the request to require Gidey,

Yehdego, and 5401 8th Street to interplead is granted.

Furthermore, consistent with the terms of the Es­

crow Agreement, Settlementcorp is entitled to receive

$2,000 of the escrowed funds to cover fees associated

with bringing the interpleader action. See Settle­

mentcorp Summ. J. at Ex. E “Escrow Agreement” at

para. 7 (“The parties agree that an initial payment of

$2000 be collected as a line item ... to cover initial fil­

ing fees for the interpleader action, and any costs re­

lated thereto, including legal fees to Settlementcorp.”).

With respect to Settlementcorp’s request to de­

posit the purchase proceeds into the court registry, the

Court denies the request as moot as the Court ruled on

March 11, 2020, that the portion of the Escrow Agree­

ment requiring the Court to keep all proceeds and

seller related payments in the court registry is not en­

forceable. The Superior Court of the District of Colum­

bia is not a party to this case and the parties have

App. 43

failed to provide any legal authority supporting their

request for funds to be placed in the court registry.

B. Settlementcorp’s Request that Gidey

and Yehdego Indemnify Settlementcorp

pursuant to the Escrow Agreement

Settlementcorp asserts that it is entitled to judg­

ment on Count 2 of its complaint as section 4(d) of the

Escrow Agreement states,

Yehdego and Gidey jointly and severally agree

to- indemnify Settlementcorp-. and - hold it - harmless from any-and all costs; claims, liabil­

ities, losses, actions mistakes of fact, errors of

judgment, acts or omissions, suits or proceed----- ings-aHaw-orin-equity-or-any-other-expenses;-----fees or charges of any character in nature,

which it may incur or with which it may be

threatened by reasons of its acting as Escrow

Agent under this Agreement, and in connec­

tion therewith, to indemnify Settlementcorp

against any and all expenses, including attor­

ney’s fees and the costs of filing or defending

any action, suit or proceeding or resisting any

claims.

See Settlementcorp Summ. J. at Ex. E “The Escrow

Agreement.” Accordingly, Settlementcorp claims that

it is entitled to receive its full amount of attorney’s

fees, costs, and expenses incurred in bringing the In­

terpleader Case and defending against Gidey’s coun­

terclaims. Id. at 11.

App. 44

Gidey’s opposition ignores Settlementcorp’s re­

quest for relief under Count 2 of its complaint. Thus,

the Court finds that there is no genuine dispute of ma­

terial fact that Gidey and Yehdego signed a valid con­

tract to indemnify Settlementcorp against all costs and

fees, including attorney’ fees, incurred in connection

with filing and defending this litigation. Consistent

with the terms of the contract they signed, Gidey and

Yehdego are jointly and severally liable for those ex­

penses.

Accordingly, Plaintifl/Counterclaim Defendant

Settlementcorp’s Opposed Motion for Summary Judg­

ment to Interplead the Escrowed Funds and for Con­

tractual Indemnity is granted in part as to Count 1

and granted as to Count 2.

2.

Defendant/Crossclaim Plaintiff 5401 8th

Street NW LLC’s Motion for Summary

Judgment Against Crossclaim Defendants

Roda T. Gidev and Yeekkalo Yehdego

5401 8th Street seeks summary judgment on its

crossclaim for Breach of Contract against Gidey and

Yehdego.4 In addition, 5401 8th Street requests that

the Court award it attorney’s fees and costs arising

4 As previously mentioned, judgment has already been en­

tered against Yehdego on 5401 8th Street’s crossclaim See 2019

CA 4678, Mar. 11, 2020 Judge Puig-Lugo Order. Accordingly,

5401 8th Street “requests that this motion [be] construed against

Gidey only.” 5401 8th Street Summ. J. at 1 n.l.

App. 45

from this action. Gidey opposes 5401 8th Street’s re­

quest. For the following reasons, the motion is granted.

To prevail on a claim of breach of contract, a party

must establish (1) a valid contract between the parties;

(2) an obligation or duty arising out of the contract; (3)

a- breach of that duty; and (4) damages caused by

breach.” Tsintolas Realty Co. v. Mendez, 984 A.2d 181,

187 (D.C. 2009).

In this motion, 5401 8th Street claims that it is

entitled to summary judgment as the undisputed facts

-establish, as am&tter.of law, the required elements for

its breach of contract claim. 5401 8th" Street’ Suinm. J.

at 1. Specifically, 5401 8th Street contends that there

is no dispute that (1) the SPA is a valid and enforceable

contract; (2) tne~SPA~obiigated~Gidey and Yehdego to

convey clean title to the Property; (3) Gidey and

Yehdego breached the SPA when the Property was com

veyed encumbered by the HELOC; and (4) 5401 8th

Street suffered damages as a result of Gidey and

Yehdego’s breach. Id. at 9.

The requirement that Gidey and Yehdego convey

clean title to the Property appears twice in the SPA.

Paragraph 3 of the SPA identified that an existing

Bank of America Lien remained on the property that

was to be paid off prior to Settlement. Id. at Ex. 1 “SPA”

% 3(B). Directly underneath Paragraph 3 reads that

“[Gidey and Yehdego] shall deliver to Purchaser before

the day of settlement written payoff statements signed

by the Hen holder(s) itemizing the total payoff

amouutCs) - - Td.. In addition. Paragraph. 9 of the SPA

App. 46

addresses when Gidey and Yehdego were required to

convey clean title the Property: “[Gidey and Yehdego]

shall sign and deliver all required documents to convey

the [Property] free and clear of all liens ... to complete

settlement conditions (“Settlement”) on or about

March 31, 2018.” Id. at Ex. 1 “SPA” f 9. Moreover, Par­

agraph 9 explains how damages will be calculated for

failure to comply with a settlement condition: “If

[Gidey and Yehdego] delay closing more than 7 days .. .

Purchaser shall have the option to . . . charge a per

diem of $150.00 for each day closing is delayed beyond

7 days, the total amount of which shall be credited to

Purchaser from [Gidey and Yehdego’s] proceeds at Set­

tlement.” Id.

5401 8th Street contends that Gidey and Yehdego

breached the SPA in two ways. Id. at 8. First, 5401 8th

Street maintains that “[Gidey and Yehdego] were re­

quired to proceed to Settlement on March 31,2018, and

when they failed to do so, 5401 8th Street became en­

titled to per diem damages for the delay.” Id. at 9. Sec­

ond, 5401 8th Street claims that Gidey and Yehdego

breached the SPA when Gidey refused to repay the

HELOC with purchase proceeds and caused the

HELOC to encumber the Property when it was con­

veyed. Id. As a result of these breaches of the SPA,

clean title was not provided until June 20, 2019, 439

days after the original Settlement date. Id. at 10. Ac­

cordingly, 5401 8th Street states that it is entitled to

judgment on its Breach of Contract claim because it is

disputed that Gidey and Yehdego failed to timely con­

vey clean title to the Property.

App. 47

Gidey, in opposition, argues that 5401 8th Street

is not entitled to summary judgment for three reasons.

None of Gidey’s arguments create a genuine dispute of

material fact as to whether or not Gidey breached the

SPA.

First, Gidey claims she could not have breached

the SPA because title to the Property was clean and

unencumbered when transferred to 5401 8th Street as

“there [was] no Bank of America Lien on the property.”

Gidey Opp’n at 13. The basis for this argument is the

belief that two prior judicial rulings rendered title to

the" property clean and' unencumBeredT Specifically,

Gidev contends that the Property was unencumbered

based on Judge McCabe’s May 12, 2016 Order in the

-Declaratory-Judgment-Case-and-Judge-Pan’s-AprilJ.Z,

2019 Order in the Quiet Title Case. Gidey argues that

these two orders “clearly and unambiguously provided

that the title was clean and unencumbered and re­

mained to [sic] such until the transfer. . . .” Id. at 3.

Gidey misreads and misinterprets both orders.

Judge McCabe’s May 12, 2016 Order prohibited

Yehdego from solely “encumbering, selling, or transfer­

ring” the Property as of May 12, 2016. See 2014 CA

004950, May 12, 2016 Judge McCabe Order. The order

said nothing about the validity of the HELOC that had

been obtained eight years prior to the Declaratory

Judgment and that remained on the Property when

Judge McCabe issued his order There is no reason to

read into the order a result that it does not state and

which relates to an issue that was not brought to Judge

McCabe's attention tor his consideration.

App. 48

Similarly, Judge Pan’s April 17, 2019 Order does

not support any conclusion that the Property was un­

encumbered at the time the Property was conveyed to

5401 8th Street. See 2018 CA 005066, Apr. 17, 2019

Judge Pan Order. In fact, Judge Pan’s April 17, 2019

Order notes that the HELOC still encumbered the

Property when the parties executed the SPA. Indeed,

noting the existence of the HELOC, Judge Pan ruled

that Yehdego was responsible for payment of the debt

from his share of purchase proceeds. See id. It stands

to reason that if at the time Judge Pan issued the April

17, 2019 Order the Property was still encumbered by a

HELOC transacted in 2008, then Property was simi­

larly encumbered when the parties executed the SPA

a year prior to the order. Contrary to Gidey’s assertion,

the orders that Judge McCabe and Judge Pan issued

did not render the Property unencumbered on May 1,

2018.

It is disingenuous for Gidey to claim that the

HELOC did not exist when the SPA and Escrow Agree­

ment both expressly identify the existence of the

HELOC. And it was a need to address the existence of

the HELOC which prompted Gidey to file a complaint

for Quiet Title and triggered events that culminated in

the instant case. Even Gidey, herself, relies on the ex­

istence of the HELOC as a foundation for her counter­

claims against Settlementcorp and her crossclaim

against Yehdego. Simply put, Gidey cannot rewrite his­

tory to create a factual dispute that does not exist.

Second, Gidey argues “that the [SPA] should not

be looked at to assess the rights and obligations

App. 49

between her and 5401 8th Street because the [SPA] is

inadmissible parol evidence.” 5401 8th Street Reply at

8; accord Gidey Opp’n at 15-17. The parol evidence

does not apply to the present litigation.

The parol evidence rule provides that extrinsic ev­

idence which contradicts, varies, adds to, or subtracts

from the terms of a valid, plan and unambiguous, writ­

ten contract is inadmissible in disputes related to the

contract. See Segal Wholesale, Inc. v. United Drug Ser­

vice, 933 A.2d 780, 783 (D.C. 2007).

^ J^J^hi^..ca6eI.jGidey^Yebde^o,_a;ndJ:he^urchas_er____

signed the SPA to address the terms of the sale of the

Property, "including representations and warranties,

requirements to deliver clean title, the purchase price,

and~3amages- for delays".”154'OT13llT^treet-Reply at~8^

After the parties executed the SPA, Gidey, Yehdego,

5401 8th Street, and Settlementcorp entered into the

Escrow Agreement to address the dispute between

Gidey and Yehdego related to the HELOC and when

the Escrow Agent would distribute purchase proceeds.

Accordingly, the parol evidence rule is inapplicable for

the simple fact that the SPA and the Escrow Agree­

ment are two separate contracts. As separate con­

tracts, language of neither “contradicts, varies, adds to,

or subtracts” from the terms of the other. See id. Thus,

as a signatory to the SPA and the Escrow Agreement,

Gidey is required to comply with the obligations set

forth under both contracts and can be held liable for

damages caused from breaching either contract.

App. 50

Third, Gidey argues that even if the HELOC ex­

isted, she did not breach the SPA because Gidey and

Yehdego were not required to convey clean title to the

Property if conveyance was not possible. Gidey Opp’n

at 18. This argument contradicts the plain lan­

guage of the SPA.

Under Paragraph 9 of the SPA, Gidey and Yehdego

were required “to convey the [Property] free and clear

of all liens ... on or about March 31, 2018.” 5401 8th

Street Summ. J., Ex. 1 “SPA” f 9. It is clear that the

SPA unambiguously obligated Gidey and Yehdego to

convey clean title to the Property as a condition prece­

dent to Settlement. Here, there is no dispute that the

Property was not conveyed with clean title on March

31, 2018. To the extent that Gidey claims that the SPA

did not require her to provide clean title if she was un­

able to do so, Gidey has failed to provide any basis, be­

yond her own demand that the HELOC not be repaid

with the purchase proceeds, for why she was unable to

convey clean title to the Property by March 31,2018. It

was possible to pay the debt from purchase proceeds

and then apportion responsibility for the HELOC be­

tween Gidey and Yehdego. There was no need to delay

conveyance of the property until after Gidey and

Yehdego had resolved their dispute.

In moving for summary judgment, the moving

party carries the initial burden of showing there is no

genuine issue of material fact in dispute. See Brad­

shaw, 43 A.3d at 323. 5401 8th Street has fulfilled its

burden related to Gidey. Even when viewing the facts

in the light most favorable to Gidey, the Court does not

App. 51

find a genuine issue as to any material fact. Under the

SPA, Gidey agreed to convey the Property free and

clear of all liens prior to March 31,2018. After the par­

ties were unable to proceed to Settlement on March 31,

2018, the parties agreed to extend the final Settlement

date to May 1,2018. In the event the Property was not

conveyed with clean title within seven days of Settle­

ment, the SPA entitled 5401 8th Street to receive

$150.00 per day for each day that clean title was not

-provided,-Here,-the-record-is-clear_that_the_property .

was not conveyed with clean title until June 20, 2019.

Accordingly, after viewing the evidence in the light

most favorable to Gidey and drawing all reasonable inXC1

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Gidey and is awarded $150.00 for each day between

May 8, 2018 and June 20, 2019. Moreover, under the

SPA, 5401 8th Street is entitled to its legal fees and

costs incurred in bringing this action. See 5401 8th

Street Summ. J., Ex. 1 “SPA” 1 11 (“In any action or

proceeding involving a dispute between [5401 8th

Street] and [Gidey and Yehdego] arising out of [the

SPA], [5401 8th Street] will be entitled to receive from

[Gidey and Yehdego] reasonable attorney’s fees, court

costs, and process serve’s fees and expenses.”).

Accordingly, Defendant/Crossclaim Plaintiff 5401

8th Street NW LLC’s Motion for Summary Judgment

Against Crossclaim Defendants Roda T. Gidey and

Yeekkalo Yehdego is granted.

App. 52

3.

PlaintifiyCounterclaim Defendant Settlementcorp’s Opposed Motion for Summary

Judgment Regarding Roda Gidev’s Coun­

terclaim

On October 7, 2019, Gidey filed three counter­

claims against Settlementcorp alleging Breach of Fi­

duciary Duty, Breach of Contract, and Unpaid Interest

on the Escrowed Funds. In its motion, Settlementcorp

seeks summary judgment as to all three of Gidey’s

counterclaims and requests that the Court award it at­

torney’s fees and costs incurred in connection with de­

fending against Gidey’s counterclaims. Gidey opposes

Settlementcorp’s motion. For the following reasons, the

motion is granted.

A. Gidey’s Counterclaim for Unpaid Inter­

est on the Escrowed Funds

Gidey’s counterclaim for unpaid interest alleges

that Settlementcorp “is liable to pay interest on the es­

crowed funds since June 1, 2018, to present, the dead­

line set forth in the escrow agreement for depositing

the escrowed funds in the court registry.” Gidey Coun­

terclaim f 32. While not labeled as such, Gidey’s coun­

terclaim for unpaid interest is fundamentally a breach

of contract claim. Therefore, Gidey must establish (1) a

valid contract between the parties; (2) an obligation or

duty arising out of the contract; (3) a breach of that

duty; and (4) damages caused by breach.” Tsintolas Re­

alty Co., 984 A.2d at 187.

App. 53

Settlementcorp moves for summary judgment on

grounds that Gidey is unable to make out a prima facie

case for breach of contract. Settlementcorp asserts that

it did not have a duty or obligation under the Escrow

Agreement to maintain the escrowed funds in an inter­

est-bearing account. Settlementcorp Summ. J. at 1112 . Settlementcorp' notes that the Escrow Agreement

is the only contract between Gidey and Settle­

mentcorp. Id. Thus, Settlementcorp argues that noth­

ing in the record supports Gidey*s counterclaim. Id. at

12.

, Gidey fails to identify any evh

dence to establish that Settlementcorp had an obliga­

tion under the Escrow Agreement to maintain the

escrowed funds in an interest-bearing account. Rather,

Gidey relies on the conclusory statement that “in

breach of its obligations under the Escrow Agreement,

Settlementcorp held the escrowed funds in a non-inter­

est bearing account” without citing to any language

within the Escrow Agreement that supports her posi­

tion. Gidey Opp’n-at 2.

Accordingly, the Court finds that Gidey has failed

to proffer sufficient evidence for a jury to reasonably

conclude that Settlementcorp owed Gidey a duty to

place the funds in an interest-bearing account and

breached that duty as alleged in her counterclaim.

Thus, Settlementcorp is entitled to judgment as a mat­

ter of law on Gidey’s counterclaim for unpaid interest

on the escrowed funds.

App. 54

B. Gidey’s Claims for Breach of Fiduciary

Duty and Breach of Contract

Gidey’s counterclaims for breach of fiduciary duty

and breach of contract maintain that Settlementcorp

breached the Escrow Agreement and breached its fidu­

ciary duties by (1) failing to file an interpleader by

June 1, 2018, (2) failing to disburse the purchase pro­

ceeds to Gidey after repayment of the HELOC, and (3)

failing to keep the escrowed funds in an interest-bear­

ing account. Gidey Counterclaim ff 18(B)-(D), 25(A)(C).

As an initial matter, the Court notes that for the

reasons discussed above, Gidey cannot maintain either

counterclaim on the ground that Settlementcorp failed

to keep the escrowed funds in an interest-bearing ac­

count. See Supra at 18-19. In addition, the issue of

whether Settlementcorp was obligated to disburse the

escrowed funds to Gidey after repayment of the

HELOC was actually litigated in the Quiet Title Case,

and was resolved by a valid, final judgment on the mer­

its by Judge Pan. See Case No. 2018 CA 005066, Aug.

6, 2019 Judge Pan Order (“[Gidey] is mistaken in her

apparent belief that the Court ordered Settlementcorp

to release escrowed funds to her.”). Thus, Judge Pan’s

August 6, 2019 Order collaterally estops Gidey from

claiming, yet again, that Settlementcorp breached its

obligations under the Escrow Agreement by failing to

disburse the purchase proceeds to Gidey after the

HELOC was repaid. Thus, the only remaining cause of

action within Gidey’s counterclaims for breach of con­

tract and breach of fiduciary duty is whether

App. 55

Settlementcorp breached its duties under the Escrow

Agreement by failing to file an interpleader by June 1,

2018.

In its motion, Settlementcorp contends that the

Court should grant its motion for summary judgment

because Gidey has not identified any expert witnesses,

produced any expert opinions to establish the applica­

ble standard of care, or explained how Settlementcorp

violated any applicable standard of care. Settle­

mentcorp Summ. J. at 8-iO. Settlementcorp asserts

that, without this evidence, there is no necessary and

' ’Campeteritry evidence ' co prove -thatr Settlementcorp

breached its duties under the Escrow Agreement. See

id at 7. In addition, Settlementcorp also asserts that it

is entitled to judgment based on a limited liability provision in the Escrow Agreement. Id. at 12.

In opposition, Gidey argues that Settlementcorp is

not entitled to summary judgment as (1) the Escrow

Agreement required Settlementcorp to file an inter­

pleader action within thirty days of signing the Escrow

Agreement; (2) Settlementcorp failed to timely file an

interpleader action pursuant to the Escrow Agree­

ment; and (3) expert testimony is not necessary to

prove either counterclaim at trial. Gidey Opp’n at 2-3.

Gidey does not address Settlementcorp’s argument

based on the limited liability provision in the Escrow

Agreement.

It is not necessary to address Settlementcorp’s ar­

gument that Gidey has failed to produce the requisite

expert testimony to establish her entitlement to relief

App. 56

at trial because Gidey agreed in the Escrow Agreement

that “Settlementcorp shall not be liable for any mis­

takes of fact, or errors ofjudgment, or any acts or omis­

sion of any kind unless caused by its wilfull misconduct

or gross negligence.” Settlementcorp Summ. J. at 12

(quoting Escrow Agreement f 4(f)). Moreover, Gidey

fails to explain how Settlementcorp engaged in “wilfull

misconduct or gross negligence” when it was her attor­

ney who repeatedly instructed Settlementcorp to delay

in filing an interpleader and Settlementcorp complied

with the request.

Specifically, Gidey contends that Settlementcorp

breached the Escrow Agreement and breached its fidu­

ciary duties when it failed to file an interpleader by

June 1, 2018. Gidey Opp’n at 2. Thus, Gidey seeks to

hold Settlementcorp liable for an act or omission, an

outcome the Escrow Agreement expressly precludes

absent evidence of wilfull misconduct or gross negli­

gence. See Escrow Agreement f 4(f). Gidey fails to

proffer any evidence upon which a jury could reasona­

bly rely to conclude that Settlementcorp engaged in

wilfull misconduct or gross negligence. Moreover, the

record makes obvious that the reason why Settle­

mentcorp did not file an interpleader action was be­

cause Gidey repeatedly instructed Settlementcorp

NOT to file an interpleader action.5 Therefore, it was

5 For example, on June 3,2018, Gidey’s counsel, emailed Set­

tlementcorp and 5401 8th Street asking Settlementcorp to keep

the escrowed funds in the escrow account “until resolution of the

[Quiet Title Case]....” Settlementcorp. Summ. J., Ex. E. Then

again, on June 9, 2018, Gidey’s counsel emailed Settlementcorp

and 5401 8th Street reiterating that “all proceeds from the sale of

App. 57

Gidey who created the situation for which she now

seeks remedy. For these reasons Settlementcorp is en­

titled to judgment as a matter of law on Gidey’s breach

of contract and breach of fiduciary duty counter­

claims.6

Finally, Settlementcorp is entitled to its legal fees

and costs incurred in defending against this action, as

provided for in section 4(d) of the Escrow Agreement.

Settlementcorp Summ. J. at Ex. D “Escrow Agreement”

(“Yehdego and Gidey jointly and severally agree to . . .

indemnify Settlementcorp against any and all ex­

pense;

- i-i_-

'3 »t>

the property should be kept in the escrow account until [Gidey]

obtairi[s] the declaratory judgment from the courts.” Jd., Ex. F.

On June 13, 2019, more than one year after the date Gidey now

claims Settlementcorp needed to file an interpleader, Gidey’s

counsel sent a letter to Settlementcorp and 5401 8th Street stat­

ing, “It seemed obvious that in view of the Quiet Title Case], there

was no need to file a separate interpleader action to determine

how the sale proceeds should be divided and to deposit the escrow

funds in the court registry.... there is therefore no issue or con­

troversy arising from the terms of the agreement that requires an

interpleader action.... I advise the escrow holder not to comply

with [5401 8th Street’s] instructions to file an interpleader ac­

tion. .. rid., Ex. F.

6 In the alternative, assuming without deciding that Gidey

did have a viable claim for breach of contract and breach of fidu­

ciary duty under the theory that Settlementcorp breached its du­

ties under .the Escrow Agreement by (1) failing to disburse the

purchase proceeds to Gidey after repayment of the HELOC or (2)

failing to keep the escrowed funds in an interest-bearing account,

Gidey has failed to proffer evidence in this record that either ac­

tion was caused by Settlementcorp’s wilfull misconduct or gross

negligence:

...

App. 58

or defending any action, suit or proceeding or resisting

any claims.”).

Accordingly, Plaintiff/Counterclaim Defendant

Settlementcorp’s Opposed Motion for Summary Judg­

ment Regarding Roda Gidey’s Counterclaim is

granted.

4.

Defendant/Counterclaim Plaintiff/Crossclaim Defendant/Crossclaim Plaintiff Roda

Gidev’s Motion for Summary Judgment

Against Plaintif^Counterclaim Defendant

Settlementcorp. Defendant/Crossclaim Plain­

tiff 5401 8th Street NW LLC. and Defendant/

Crossclaim Defendant Yeekkalo Yehdego

Gidey requests that the Court enter summary

judgment in her favor on (1) 5401 8th Street’s breach

of contract crossclaim; (2) her three counterclaims

against Settlementcorp; and (3) her crossclaim against

Yehdego. Based on the Court’s ruling granting judg­

ment in favor 5401 8th Street on its crossclaim against

Gidey and in favor of Settlementcorp on Gidey’s three

counterclaims, see supra 13-22, Gidey’s motion is de­

nied as moot for these two requests. Accordingly, the

only remaining issue for the Court to address is

Gidey’s request for summary judgment on her cross­

claim against Yehdego. For the following reasons, the

Court denies Gidey’s request for summary judgment

on her crossclaim against Yehdego and sua sponte re­

quests Gidey to show cause why the Court should not

dismiss her crossclaim against Yehdego for failure to

state a claim.

App. 59

Gidey filed a crossclaim against Yehdego on Octo­

ber 7, 2019. Gidey writes in her crossclaim that

Yehdego should “cover her losses that caused the pur­

chaser to sue her for damages for the delay caused by

the lawsuit she filed against Yehdego when Yehdego re­

fused to pay the loan that he borrowed from Bank of

America.” Gidey Crossclaim at 1. On November 15,

2019, Yehdego filed an answer stating that he “disa­

gree [d] totally.”

In the instant motion, Gidey claims that she is en­

titled to summary judgment as Yehdego’s Answer “con­

stitutes an admission of the essentia! elements of

Defendant Gidey's crossclaim.” Gidey Summ. J. at 9.

Therefore, Gidey requests that the Court enter an oruer requiring Yehdego “to indemnify . . . Gidey if this

Court orders her to pay damages or costs to either [Settlementcorp or 5401 8th Street].”Id. at 10.

To prevail on a motion for summary judgment, the

moving party must establish that there is no genuine

issue as to any material fact, and that the moving

party is entitled to judgment as a matter of law. Hunt,

66 A.3d at 990 (D.C. 2013) (citing Grant, 786 A.2d at

583 (D.C. 2001)); Super. Ct. Civ. R. 56(c). Gidey fails to

establish that she is entitled to judgment as a matter

of law.

The common law remedy of indemnity may arise

from an express or implied contract “giving right of re­

imbursement to one party who has been compelled to

pay that which should have been paid by another.”

Howard Univ. v. Watkins, 856 F. Supp. 2d 67, 72-73

App. 60

(D.D.C. 2012); see Quadrangle Dev. Corp. v. Otis Eleva­

tor Co., 748 A.2d 432, 435 (D.C. 2000); cf. Hercules Inc.

v. United States, 516 U.S. 417 (1996). Where there is no

express contract provision, the Court may require a

party to indemnify another to prevent injustice. Quad­

rangle Dev. Corp., 748 A.2d at 435 (citing East Penn

Mfg. Co. v. Pineda, 578 A.2d 1113,1126 (D.C. 1990)).

Here, Gidey has not produced either an express or

implied contract providing her the right to be indem­

nified by Yehdego. Moreover, there is nothing in the

record that leads the Court to conclude that Yehdego

should indemnify Gidey to prevent injustice. The dam­

ages awarded to 5401 8th Street were based on Gidey

and Yehdego’s failure to meet their joint and several

contractual obligations under the SPA. Accordingly, as

both Gidey and Yehdego breached the SPA, neither is

entitled indemnity against the other. Allowing Gidey

to shift responsibility from herself to Yehdego for her

own breach would be contrary to indemnity principles.

Similarly, the damages awarded to Settlementcorp

were based on an express provision in the Escrow

Agreement where Gidey agreed to be jointly and sev­

erally liable for Settlementcorp’s attorney’s fees and

costs. Gidey cannot evade her contractual obligations

under the Escrow Agreement. Thus, Gidey has not met

her burden under Rule 56 showing that she is entitled

to judgment as a matter of law on her crossclaim

against Yehdego.

Accordingly, defendant/counterclaim plaintiff/

crossclaim defendant/crossclaim plaintiff Roda Gidey’s

App. 61

Motion for Summary Judgment against Settle­

mentcorp, 5401 8th Street NW LLC, and Yeekkalo

Yehdego is denied as moot and denied.

For the reasons stated above, Gidey is directed to

show cause why her crossclaim against Yehdego

should not be dismissed. See Super. Ct. Civ. R.

41(b)(l)(A)(ii)(Kthe court may, on its own initiative, en­

ter an order dismissing the action or any claim.”). If

Gidey is unable to identify any valid legal authority

supporting'heFpbsitioh that her claim "is actionable,'

the Court may enter an order dismissing Gidey’s cross' 'Ci

,o

Accordingly, it is this 20th day of April, 2020,

hereby:

1.

ORDERED that plaintiff/counterclaim defendant

Settlementcorp’s Opposed Motion for Summary

Judgment to Interplead the Escrowed Funds and

for Contractual Indemnity is GRANTED IN

PART; and it is further

a.

ORDERED that Settlementcorp’s request to

deposit the Escrowed Funds into the Court

Registry is denied as moot; and it is further

b.

ORDERED that Settlementcorp is awarded

$2,000 of the Escrowed Funds; and it further

c.

ORDERED that judgment is entered against

Yeekkalo Yehdego and Roda Gidey for the full

amount of attorneys’ fees, costs, and expenses

incurred by Settlementcorp with filing and de­

fending this case, as certified to the Court

within fifteen days of this Order.

App. 62

2.

3.

ORDERED that defendant/crossclaim plaintiff

5401 8th Street NW LLC’s Motion for Summary

Judgment Against crossclaim defendants Roda T.

Gidey and Yeekkalo Yehdego is GRANTED; and it

is further

a.

ORDERED that judgment is entered against

Roda Gidey and Yeekkalo Yehdego, jointly and

severally, and in favor of 5401 8th Street NW

LLC in the amount of $61,200, plus prejudg­

ment interest in the amount of $4,609.77, plus

reasonable legal fees and costs, as certified to

the Court within fifteen days of this Order,

plus post judgment interest at the applicable

statutory rate; and it is further

b.

ORDERED that Settlementcorp pay to 5401

8th Street NW LLC $61,200 from the es­

crowed funds it holds pursuant to the sale of

real property located at 5401 8th Street NW,

Washington, DC 20011, within five days of en­

try of this order, plus any amounts later

awarded for legal fees and any other costs is­

sued by the Court in this matter.

ORDERED that plaintiff/counterclaim defendant

Settlementcorp’s Opposed Motion for Summary

Judgment Regarding Roda Gidey’s counterclaim is

GRANTED; and it is further

a.

ORDERED that Roda Gidey’s Counterclaim

against Settlementcorp is dismissed with

prejudice; and it is further

b.

ORDERED that judgment is entered against

Yeekkalo Yehdego and Roda Gidey for the full

amount of attorneys’ fees, costs, and expenses

App. 63

incurred by Settlementcorp with defending

Roda Gidey’s Counterclaim, as certified to the

Court within fifteen days of this Order.

4.

ORDERED that defendant/counterclaim plain­

tiff/crossclaim defendant/crossclaim plaintiff Roda

Gidey’s Motion for Summary Judgment against

. Settlementcorp, 5401. 8th Street * NW LLC, and

Yeekkalo Yehdego is DENIED AND DENIED AS

- >

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-* - *

a.

ORDERED that Roda Gidey has up to and

including May 18, 2020 to file a response

showing cause why her crossclaim against

Yeekkalo Yehdego in thiscaseTs actionable by

this Court; and it is further

b.

ORDERED that Yeekkalo Yehdego has up to

and includiuxt ;Tnn p-9-trr frlip a rg»nl\r-------W

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SO ORDERED.

/s/ Hiram E. Puig-Lugo

Hiram E. Puig-Lugo

Associate Judge

Signed in Chambers

COPIES TO:

Copies e-served to:

Justin Flint, Esq.

Gregory Sussman, Esq.

Gabriel Bluestone, Esq.

Michael Bluestone, Esq.

Workneh Churnet, Esq

App. 64

Copies sent by First Class Mail to:

Yeekkalo Yehdego

P.O. Box 34193

Washington, DC 20043

Yeekkalo Yehdego

817 Walker Road,

Great Falls, VA 22066

App. 65

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

CIVIL DIVISION

SETTLEMENT CORP. DBA

SETTLEMENTCORP

v.

RODA GIDEY, et al

Case Number:

2019 CA 004678 B

Judge:

Hiram E. Puig-Lugo

ORDER

(Filed May 18, 2020)

This matter comes before the Court on defendant/

crossclaim, plaintiff 5401 8th Street NW LLC’s (5401

8th Street’s) Certification of Bill of Fees and Costs

Pi]rsiia:nt7 tr)-A-pnl'-20p20-20-Order.-filed-A-pril 23,2020,—

and plaintifE/counterclaim defendant Settlementcorp’s

(“Settlementcorp’s”) Certification of Bill of Fees and

Costs Pursuant to April 20, 2020 Order, filed May 5,

2020. The Court addresses each Certification in turn.

Background

On April 20, 2020, this Court issued an Order (1)

granting in part Settlementcorp’s Opposed Motion for

Summary Judgment to Interplead the Escrowed

Funds and for Contractual Indemnity; (2) granting

5401 8th Street’s Motion for Summary Judgment

Against crossclaim defendants Roda T. Gidey (“Gidey”)

and Yeekkalo Yehdego (“Yehdego”); (3) granting Settle­

mentcorp’s Opposed Motion for Summary Judgment

Regarding-Gidey’s counterclaim; .and (4) denying, and.

App. 66

denying as moot Gidey’s Motion for Summary Judg­

ment against Settlementcorp, 5401 8th Street, and

Yehdego. As part of its April 20, 2020 Order, the Court

entered judgment against Gidey and Yehdego for the

“reasonable legal fees and costs” incurred by 5401 8th

Street pursuant to paragraph 11 of the Standard Pur­

chase Agreement (“SPA”) and for “the full amount of

attorneys’ fees, costs, and expenses” incurred by Settle­

mentcorp pursuant to section 4(d) of the Escrow Agree­

ment. See April 20, 2020 Judge Puig-Lugo Order at 26,

27. The Court ordered 5401 8th Street and Settle­

mentcorp to submit their legal fees and costs incurred

along with a certification that the bill is true and cor­

rect. Pursuant to this Court’s Order, on April 23,2020,

5401 8th Street filed its Certification of Bill of Fees and

Costs, and on May 5,2020, Settlementcorp filed its Cer­

tification of Bill of Fees and Costs.

1. 5401 8th Street’s Certification of Bill of Fees

and Costs Pursuant to April 20, 2020 Order

(“5401 8th Street’s Certification”)

5401 8th Street requests $28,874.50 in outstand­

ing legal fees and $403.24 in costs.1 5401 8th Street

1 5401 8th Street states that it has incurred legal fees total­

ing $61,408.50. 5401 8th Street Certification f 3. However, as a

result of this Court’s March 11, 2020 Order granting 5401 8th

Street’s Partial Consent Motion for Judgment against Yehdego,

“5041 8th Street received $31,234 which was credited against its

legal fees incurred through February 5, 2020 . . . reducing the le­

gal fee balance to $30,174.50.” Id. H 7. In addition, “5401 8th

Street received $1,300 from ... counsel for Gidey, as payment to

be made against legal fees incurred pursuant to this Court’s

App. 67

Certification % 3. In support of its request, 5401 8th

Street provided a six-page itemized bill of its fees and

costs. See id., Ex. A.

As noted above, the Court determined that 5401

8th Street is entitled to its reasonable legal fees and

costs based on paragraph 11 of the SPA entered into by

Gidey, Yehdego, and 54018th Street. See April 20,2020

Judge Puig-Lugo Order at 18. Paragraph 11-of the SPA

states, in relevant part, “In any action or proceeding

involving a dispute between Purchaser and Seller aris­

ing out of this Contract, Purchaser will be entitled to

Teceive^ronr -selfer----costs, and process server’s fees and expenses.” (empha­

sis added). Therefore, at this stage, the Court is only

evaluating the reasonableness of 5401 8th Street’s requested amount.

. The-determination of the “reasonableness” of. an

award is within the sound discretion of the trial court.

Frazier v. Franklin Inv. Co., 468 A.2d 1338, 1341 (D.C.

1983). In determining whether attorneys’ fees are rea­

sonable, the Court first determines the “lodestar,”

which is “the number of hours reasonably expended

multiplied by a reasonable hourly rate - and then, in

exceptional cases, make[s] upward or downward ad­

justments as appropriate.” Campbell-Crane & Associ­

ates v. Stamenkovic, 44 A.3d 924, 947 (D.C. 2010).

Several jurisdictions, including our own, have adopted

a list of twelve factors to be considered by the trial

Order of March 11,2020.” Id. 8. Thus, the outstanding legal fees

• - for 54"01'‘8tli*3fciee'(rtufcal5*$28^374'.50'..........................-...........

App. 68

judge in making a fee determination. The list of factors

is:

(1) the time and labor required;

(2) the novelty and difficulty of the questions;

(3) the skill requisite to perform the legal service

properly;

(4) the preclusion of other employment by the at­

torney due to acceptance of the case;

(5) the customary fee;

(6) whether the fee is fixed or contingent;

(7) time limitations imposed by the client or the

circumstances;

(8) the amount involved and the results obtained;

(9) the experience, reputation, and ability of the

attorneys;

(10) the “undesirability” of the case;

(11) the nature and length of the professional re­

lationship with the client; and

(12) awards in similar cases.

Frazier, 468 A.2d at 1341.

There is no basis for rejecting 5401 8th Street’s in­

itial calculations based on the lodestar. However, that

preliminary assessment does not determine the out­

come here. It is necessary to consider the reasonable­

ness of 5401 8th Street’s request as well.

The Court turns to the twelve factors to be consid­

ered by the trial judge in making a fee determination.

For the first factor, “the time and labor required,” 5401

8th Street certifies that its legal fees include 138.9

hours of work by Zachary Bluestone and 34 hours of

work by Gabriel Bluestone. See Frazier, 468 A.2d at

App. 69

1341; 5401 8th Street Certification f 4. The Court finds

that the hours expended are reasonable based on the

plethora of motions filed by the parties as part of this

protracted litigation. Id. Specifically, the Court notes

that many of the work performed by 5401 8th Street’s

counsel was necessitated by the persistent filings of

Gidey. In addition, 5401 8th Street’s itemized bill dis­

closes that counsel spent a significant amount of time

preparing" pleadings and answ"ers, reviewing case doc­

uments, attending hearings, and obtaining discovery

through depositions and interrogatories. Therefore,

the Court does not find it necessary to reduce the num­

ber of hours claimed by 5041 8th Street.

As to the second factor, “the novelty and difficulty

of the questions,” the Court notes that 5401 8th

Street’s crossclaim against Gidey was for Breach of

Contract Id. The Court finds that such claims are not

novel or particularly difficult, but' that reviewing ma­

terials from previous proceedings involving the parties

and responding to Gidey’s multiple filings, including

successfully dismissing Gidey’s crossclaim against

5401 8th Street, added complexity and difficulty to this

case. This factor weighs in favor of 5401 8th Street’s

requested amount.

As to factor three, “the skill requisite to perform

the legal service properly,” the Court finds that compe­

tent litigation skills were needed to properly perform

the services provided here. Id. This factor weighs in

favor of 5401 8th Street’s requested amount.

App. 70

Factor four considers, “the preclusion of other em­

ployment by the attorney due to acceptance of the

case.” Id. The Court finds that there is insufficient in­

formation to a make this determination.

Factor five considers, “the customary fee.” Id. The

Court finds that there is insufficient information to de­

termine the customary fee for such a case, but that the

hourly rate is reasonable as 5401 8th Street’s counsels’

hourly rates are lower than the hourly fee for attorneys

with similar experience set forth in the Laffey matrix.

See 5401 8th Street Certification

4-6.

Factor six considers, “whether the fee is fixed or

contingent.” Frazier, 468 A.2d at 1341. Here, the attor­

neys’ fees appear to be fixed at an hourly rate of $365

for the work of Zachary Bluestone and $315 for the

work of Gabriel Bluestone. 5401 8th Street Certifica­

tion 4-6. This factor weighs in favor of 5401 8th Street’s

requested amount.

The seventh factor considers the “time limitations

imposed by the client or the circumstances.” Frazier,

468 A.2d at 1341. The Court finds insufficient infor­

mation regarding this factor.

Next, the Court considers factor eight, “the

amount involved and the results obtained.” Id. On

April 20,2020, the Court granted 5401 8th Street’s Mo­

tion for Summary Judgment on its crossclaims against

Gidey and Yehdego thereby eliminating the need for

the case to proceed to trial. At the time the Court en­

tered judgment in favor of 5401 8th Street, no pretrial

or trial date had been set. Thus, the Court cannot

App. 71

determine whether 5401 8th Street’s counsel had be­

gun trial preparation. However, this case involved sig­

nificant motions practice, culminating in the filing of

four dispositive motions, and the parties completed

discovery before the Court entered judgment in 5401

8th Street’s favor. The Court finds that these actions,

as wells as the outcome of various hearings, and the

dispositive motions, weigh in favor of awarding 5401

8th Street’s requested amount.

Factor nine considers wthe 'experience, reputation,

and ability of the attorneys.” Frazier, 468 A.2d at 1341.

ill\^ VUUX S, XlxXlXO XXXOIXXX1V1XJ.LXI' XU1VX UAUVIUil lAJgUiUXli^ flic

attorney’s experience and reputation, but counsel pro­

vided competent and effective representation.

------Factor-ten—considers—the—a^rlT^esT^r>?:^hT^IJTfy^,,—of~~the—

case. Id. The Court has no reason to conclude that the

case_was undesirable, although the long an_d compli­

cated history between Gidey and Yehdego, which in­

cludes litigation over the real property at issue,

suggest an acrimonious quality to the litigation.

Factor eleven considers “the nature and length of

the professional relationship with the client.” Id. The

total length of this case was approximately nine (9)

months. During that time, 5401 8th Street devoted

almost 173 hours to this dispute. 5401 8th Street Cer­

tification n 4-6. Based on the number of filings sub­

mitted by the parties that necessitated a response from

5401 8th Street, the Court has no reason to conclude

that the hours expended were unreasonable given the

relatively short life of the case.

App. 72

Lastly, factor twelve considers “awards in similar

cases.” Frazier, 468 A.2d at 1341. The Court lacks in­

formation to make a determination on this factor.

Nonetheless, the Court notes that in Ungar v. District

of Columbia, 535 A.2d 887 (D.C. 1987), the Court of

Appeals affirmed the decision of attorneys’ fees in its

entirety because the hearing examiner properly con­

sidered the Frazier factors in analyzing the requested

fee amount. Here, the Court has carefully analyzed

each of the Frazier factors in their entirety.

The Court has weighed the relevant factors and

determines that there appears no reason to believe

that these fees are excessive based on the hours billed.

Therefore, the Court awards 5401 8th Street legal fees

in the amount of $61,408.50, and costs in the amount

of $403.23. The Court finds that this award takes into

account the claims litigated and the overall reasona­

bleness of the fees.

2. Settlementcorp’s Certification of Bill of Fees

and Costs Pursuant to April 20, 2020 Order

(“Settlementcorp’s Certification)

This Court’s April 20, 2020 Order entered judg­

ment against Gidey and Yehdego for the full amount of

Settlementcorp’s legal fees and costs based on the lan­

guage of the parties’ Escrow Agreement. See April 20,

2020 Judge Puig-Lugo Order at 12, 23. Specifically,

pursuant to section 4(d) of the Escrow Agreement,

“Yehdego and Gidey jointly and severally agree [d] to

indemnify Settlementcorp . . . from any and all costs

App. 73

. . . or any other expenses, fees or charges of any char­

acter or nature, . . . and . . . against any and all ex­

penses, including attorney’s fees and the costs of filing

or defending any action, suit or proceeding or resisting

any claims.” (emphasis added). Notably absent from

section 4(d) of the Escrow Agreement is any qualifying

language that the fees and expenses awarded to-Settlementcorp be determined by a Court as reasonable.

Consequently, 'the Court will not evaluate Vhe'reasonableness of Settlementcorp’s requested amount.

Settlementcorp’s Certification requests $98,960 in

l^gai AWO CAAAIA

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tification f 6. Settlementcorp’s legal fees include 452

hours of work by Gregory Sussman at an hourly rate

of $170, 119.2 hours of work by Justin Flint at an

hourly rate of $185, and .4 hours of work by Channing

L. Shor at an hourly rate of $170. Id. <j[<J[ 7-10. Settlementcorp provided ninety-seven pages of exhibits, in­

cluding itemized bills of its fees and costs for each

attorney on this case and corresponding receipts. See

id., Ex. A. In addition, Settlementcorp provided a cer­

tification that its bill of fees and costs is correct. Id. at

3. Accordingly, consistent with the language of the

Escrow Agreement, the Court will award Settle­

mentcorp its full amount of legal fees and costs. There­

fore, it is this 18th day of May, 2020, hereby:

ORDERED that judgment is entered against

Roda T. Gidey and Yeekkalo Yehdego in favor of 5401

8th Street NW LLC, for its legal fees in the amount of

$61,408.50, and for its costs in the amount of $403.23;

and-it- i-s-fether* -

App. 74

ORDERED that Settlementcorp shall pay to 5401

8th Street NW LLC legal fees of $28,874.50, plus costs

of $403.23, plus prejudgment interest of $4,609.77 (as

awarded in this Court’s April 20, 2020 Order),2 from

the escrowed funds it holds pursuant to the sale of real

property located at 5401 8th Street NW, Washington,

DC 20011, within five days of entry of this order; and

it is further

ORDERED that judgement is entered against

Roda T. Gidey and Yeekkalo Yehdego, in favor of Settle­

mentcorp, for its legal fees in the amount of $98,960,

and for its costs in the amount of $7,512.39, less

$2,000;3 and it is further

ORDERED that Settlementcorp shall withdraw

$104,472.39 from the escrowed funds it holds pursuant

to the sale of real property located at 5401 8th Street

NW, Washington, DC 20011, within five days of entry

of this order.

SO ORDERED.

/s/ Hiram E. Puig-Lugo

Hiram E. Puig-Lugo

Associate Judge

Signed in Chambers

2 In its April 20, 2020 Order, the Court awarded 5401 8th

Street prejudgment interest of $4,609.77 but inadvertently omit­

ted a clause ordering Settlementcorp to release $4,609.77 to 5401

8th Street from the escrowed funds.

3 In its April 20, 2020 Order, the Court awarded Settle­

mentcorp $2,000 of the escrowed funds to cover fees associated

with the bringing the Interpleader Case.

App. 75

COPIES TO:

Copies e-served to:

Justin Flint, Esq.

Cxi egoiy ousSmafl, niSq.

Gabriel Bluestone, Esq.

Michael Bluestone, Esq.

Workneh Churnet, Esq

Copies E-mailed to:

Yeekalo Yehdego at Yeekalo-1 Q4@gm.-ail .-com

App. 76

District of Columbia

Court of Appeals

Nos. 20-CV-356,20-CV-395 & 20-CV-397

RODA T. GIDEY,

Appellant,

CAB4678-19

v.

SETTLEMENT CORPORATION,

et al.,

Appellees.

BEFORE: Blackburne-Rigsby, Chief Judge; Glickman,*

Beckwith, Easterly, McLeese, Deahl,*

Howard and AliKhan, Associate Judges;

Thompson,* Senior Judge.

ORDER

(Filed May 17, 2022)

On consideration of appellant’s petition for rehear­

ing or rehearing en banc, and it appearing that no

judge of this court has called for a vote on the petition

for rehearing en banc, it is

ORDERED by the merits division* that appel­

lant’s petition for rehearing is denied. It is

FURTHER ORDERED that appellant’s petition

for rehearing en banc is denied.

PER CURIAM

App. 77

Copies to:

Honorable Hiram E. Puig-Lugo

Director, Civil Division

Copy e-served to:

Workneh Chumet, Esquire

Gregory Z. Sussman, Esquire

Justin M. Flint, Esquire

Gabriel T-Bluestone, Esquire

Michael Z. Bluestone, Esquire

Copy mailed to:

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P.O. Box 34193

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