Appendix B — Harrison v. Howard University

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BERNARD HARRISON, et al., )

)

Plaintiffs )

)

v. )

)Civil Action No.

HOWARD UNIVERSITY, )No. 93-577

)

Defendant )

)

MEMORANDUM AND ORDER

In November, 1989, these four plaintiffs, all

residents of Maryland, were co-owners in common of

four parcels of land located in Square 2882 in the

District of Columbia in the vicinity of the campus of

defendant Howard University ("Howard"). Most if not

all of the remainder of Square 2882 was owned by

Howard.

On November 13, 1989, the District of

Columbia Zoning Commission issued a final order

rezoning multiple parcels of land in the City, among

them the four lots owned by plaintiffs which were

"down-zoned" from C-M-1 (commercial) to R-5-B

B-2

(residential). Plaintiffs allege that the value of their

properties was so diminished by the rezoning as to

render them of value only to the defendant Howard,

to whom they eventually sold them in March, 1992, at

approximately $2.1 million less than their pre-zoning

value.’

Plaintiffs have brought this diversity action for

damages against Howard for common law "abuse of

process." They allege that Howard University

instigated the down-zoning of their properties by

inducing the D.C. Office of Planning to cause Square

2882 to be included in a rezoning proceeding already

pending before the Zoning Commission, and that it

did so for the express purpose of forcing the plaintiffs

to the distress sale of their properties to Howard that

they ultimately made. Howard has moved to dismiss

or for summary judgment upon the complaint.

Assuming that persuading one public agency to

support a particular result upon a matter pending

before another such agency having the power to

decide it is the equivalent of causing legal “process” to

"The record reflects that plaintiff were granted a

rehearing in october, 1990, but the Zoning Commission

unanimously reaffirmed its decision in February, 1991.

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commence, it is nevertheless no "abuse of that process

in the District of Columbia simply to pursue it to a

conclusion, even if collateral consequences are both

desired and expected to ensue. "Abuse" of process

occurs when the legal process itself is "perverted,"

and the adverse consquences to the victim is not

merely an unfavorable decision. See Bown v.

Hamilton, 601 A.2d 1074, 1078 (D.C. 1992) (citing

Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980).

Plaintiffs contend that an "ulterior motive” on

the part of the one accused of abusing the legal

process, i.e. a purpose other than to obtain the relief

sought, is all that is necessary to establish the element

of "abusiveness.” The only truly apposite case they

cite, however, is Powers v. Leno, 24 Mass. App. Ct.

381, 509 N.E.2d 46 (1987) reversing a directing verdict

in favor of an adjoining landowner whose alleged

covetous opposition to a rezoning petition caused the

collapse of his neighbor's sale of the property

contingent upon rezoning. The Massachusetts court

held that the landowner's "bad intention," if proved,

*E.g. Hall v. Hollywood Credit Clothing Co., 147 A.2d

866 (D.C. 1959( and Hall v. Field Enterprises, Inc. 94 A.2d

479 (D.C. 1953) (fraudulent writs of attachment).

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coupled with the "collateral advantage” he attained in

obstructing the sale, was sufficient to establish an

abuse of process under Massachusetts law. 509 N.E.2d

at 48.

This case, however, is governed substantively by

District of Columbia common law, which, as a federal

court sitting in a diversity case, this Court is obliged to

follow. Erie R. Co. v. Tompkins, 304 U.S. 64, 71

(1938). In Bown v. Hamilton, supra, the District of

Columbia Court of Appeals affirmed summary

jdugment for a defendant landlord whose tenants

alleged that the landlords commencement of eviction

proceedings, motivated by a desire to prevent the

tenant's exercise of an option in her lease, represented

an abuse of process. In the absence of evidence that

the process itself "was, in fact, used to accomplish an

end not regularly or legally obtainable," the Bown

court held that the supposedly iniquitous "ulterior

motive" was legally of no significance, even if true.

601 A.2d at 1080.

In deciding Bown the D.C. Court of Appeals

reaffirmed its decision in Morowitz v. Marvel, supra,

committing the District of Columbia to a rule --

admittedly the minority rule -- that would encourage

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citizens with grievances to resort to the legal process,

even at the cost of tolerating mean-spirited appeals to

that process by which the petitioner hopes to gain

something more than merely the relief allowed. Id.,

citing Morowitz at 423 A.2d at 197-98.

Thus, in the District of Columbia, unlike

Massachusetts, an application to the processes of law,

or of government generally, even if accompanied by

mens rea, is not actionable as an abuse of process

unless the process itself is misued.? "No matter what

ulterior motive may have prompted it,” Morowitz, 423

A.2d at 198 -- whether to defeat a physician's claim for

*Neither party has cited them, but the Court notes at

least two decisions of the U.S. Court of Appeals for the D.C.

Circuit that are arguably inconsistent with Bown, although

also purporting to apply District of Columbia law: Neumann

yv. Vidal , 710 F.2d 856 (D.C. Cir. 1983) (abuse of process

found in litigation initiated to discourage investment in

competitor’s business) and Whelan v. Abell, 953 F.2d 663

(D.C. Cir. 1992) (same, to coerce financial concessions from

business partner). neither decision, however, was preceded

by reference of a certified question to the D.C. Court of

Appeals pursuant to District of Columbia Code section 11-

723(a)(1981). Moreover, Bown v. Hamilton and Whelan v.

Abell were decided the same day (January 17, 1992). Thus,

the Whelan court did not have the benefit of the Bown —

decision at the time it ruled as it did.

Nevertheless, this Court is bound to apply District of

Columbia law as declared by the D.C. Court of Appeals, not

by a federal court of appeals.

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a fee by charging him with malpractice (Morowitz); to |

extinguish a tenant's option by evicting him (Bown); or

to depress the value of another 's property in order to

buy it more cheaply, as alleged here -- one who

invokes the legal process to obtain such releif as it

offers commits no abuse of process. If the relief is

within the power of the court or agency to grant, and

is warranted by the merits, the process have been

lawfully employed.

No actionable abuse of process having been

alleged or shown on the part of Howard University

here, for the foregoing reasons it is, this 8th day of

October, 1993,

ORDERED, that defendant's motion to

dismiss, or in the alternative, for summary judgment, is

granted: and it is

FURTHER ORDERED, that the complaint is

dimissed with prejudice.

Thomas Penfield Jackson

U.S. District Judge