Prologue — Sisson v. Preister

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES SISSON,

Petitioner,

v.

DANA PREISTER,

Respondent.

On Petition for Writ of Certiorari to the District of Columbia

Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

John Umana

Law Office of John Umana

6641 32™ Street, NW

Washington, D.C. 20015

(202) 244-796]

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether Petitioner’s right to Due Proc °ss guaranteed

by the Fourteenth Amendment was denied him’?

PARTIES TO THE PROCEEDING

Petitioner is Charles Sisson. He is appellant in the

Court of Appeals and a defendant in the D.C. Superior Court.

Respondent is Dana Preister. He is an appellee in the Court

of Appeals and plaintiff in the Superior Court. Robert

Cerullo, Esquire and his law firm, Houlon & Berman, are

appellees in the Court of Appeals and co-defendants in the

Superior Court.

TABLE OF CONTENTS

Question Presented for Review

Parties to the Proceeding

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Citations of Opinions Below

Jurisdiction

Constitutional Provisions ....................... Ce ae

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Reasons for Granting the Writ

The Court of Appeals Decision Eviscerates the

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Court of Appeals Decision Violates Petitioner’s

eae WS ES TONNE 5 oo oo reese 23

A. Petitioner’s Substantive Due Process

Rights Have Been Violated.....................25

B. The Parties Failed to Agree on Profit

Sharing or Financial Contributions............ 28

C. Even the Proposed Members of Any

Joint LLC Kept Changing..................... 2

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TABLE OF CITED AUTHORITIES

Cases:

Bank of Columbia v. Okely, 4 Wheat.

NN 5 ik circa cu chan dcedecnisbuovesbacesvcveowsts i

Belmont Reality Corp. v. Rhode Island Hosp. Trust Nat’}

Bank, 116 B.R. 21 (Bankr. D.R.I. 1990)

Chamberlain v. Barry, 606 A.2d 156 (D.C. 1992).......... 21

Chatman v. Lawlor. 831 A.2d 395 (D.C. 2003)............. 21

Cook v. Edgewood Mgmt. Corp., 825 A4.2d 939

Se Lb ick Parcel nck cis inate obinenddwodpecadsueneuaberes

Coan v. Orsinger, 265 F.2d 575 (D.C. Cir. 1959)

Collins v. Harker Heights, 503 U.S. 115 (1992).......... oe

County of Sacramento v. Lewis, 523 U.S. 833 (1998).....1-

Croley v. Republican National Committee,

Se ee ee I Es heb dbiaates es hinen iid ewnenick ]

Daniels v. Williams, 474 U.S. 327 (1986)

Davidson v. Cannon, 474 U.S. 344, 348 (1986)

iv

DeShaney v. Winnebago County Dept. of Social Servs.,

ee a Bt hs iis nikdiis dheiicdnicnsacsnnicdedionwen 27

District of Columbia v. Barriteau, 399 A.2d 563

UR UP cde ed eT or ar de ae 12

Doe v. Binker, 492 A.2d 857 (D.C. 1985)

Edmund J. Flynn Co. v. LaVay, 431 A.2d 543

a i EEG Gs he ha GAs ede a 26

Fitzgerald v. Hunter Concessions, 710 A.2d 863

(D.C. 1998)

Fuentes v. Shevin, 407 U.S. 67 (1972)................00.008 13

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)............ 30

Hackney v. Morelite Construction, D.C. Corp.,

418 A.2d 1062 (D.C. 1980)

Lloward Univ. v. Lacy, 828 A.2d 733 (D.C. 2003)......... 27

Huyhes v. Pender, 391 A.2d 259 (D.C. 1978)............... |

Hurtado v. California, 110 U.S. 516 (1884)... 000000000022. 1:

In re U.S. Office Prod. Co. Sec. Litig.. 251 F.

PD See RE ED ho Fis dace vee debaciencsinm an

International Cargo Mgmt. Specialists, Inc. v. EG & G

Dynatrend, Inc., 1995 WL 170376

(D.D.C. 1995)

Vv

Jack Baker, Inc. v. Office Space Dev. Corp..,

Be ee SEs We ick cc idesctconiureccécvsscce pa

Kosower v. Gutowitz, 2001 WL 1488440

(S.D.N.Y. Nov. 21, 2001)

Landow v. Georgetown-inland West Corp.,

454 A.2d 310 (D.C. 1982)

Marathon Enter. Inc. v. H. Angelo and Co.., Inc..,

ee ee Fe savas cbkcevecxivcncdviaviccs 28

Massion v. Mt. Sinai Congregation, 276 P. 930

I scr oad hi edu s a Sadseslauneanviwentossendeowen 19

Morgan v. Psychiatric Inst. of Washington,

692 A.2d 417 (D.C.1997)

Novecon v. Bulgarian-American Enter. Fund,

See Se UY Bs cov cn cccdcdscdcweveugaceaveses

Penick v. Frank E. Basil, Inc., 579 F. Supp. 160

at, RES OR IE res Ur epee ka ee eNO Darter eee

Perry v. Gallaudet Univ., 738 A.2d 1222 (D.C. 1999).....2

Railan v. Katyal, 766 A.2d 998 (D.C. 2061)..........21, 22

Romer v. District of Columbia, 449 A.2d 1097

NE ae Oa cee ot yu Dau len att usb a teas 12

Simon v. Circle Assoc., Inc.. 753 A.2d 1006

SU oh coe swcsaetaathcuecek) oxkeGiaedacaeecnsaweeee ae

Vi

Tauber v. District of Columbia, 511} A.2d 23

(D.C. 1986)

Washington v. Glucksberg, 521 U.S. 702 (1997)........... 27

Wolff v. McDonnell, 418 U.S. 539 (1974)...........0.0002.. 13

Zinermon v. Burch, 494 U.S. 113 (1990)..........0000ccce00- 27

Statutes and Rules:

28 U.S.C. § 1257(a)

1).C Code § 28-3502

a asi Ui ee 3,4, 19

1D.C. Code § 42-1903.16

United States Constitution:

Fifth Amendment

Other Authority:

3 Williston on Contracts § 448 at 344

Sg RRs de hcl pepe Nerney tate Pitan en a a |

37 C.I.S. Frauds, Statute of § 44 (2003)...........0.0.00.. 18.

TABLE OF APPENDICES

APPENDIX A -- OPINION OF THE D.C. COURT OF

APPEALS DATED AND DECIDED SEPTEMBER 26,

2005

APPENDIX B -- VERDICT SHEET OF JURY OF D.C.

SUPERIOR COURT DATED NOVEMBER 26.

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APPENDIX C -- JUDGMENT OF D.C. SUPERIOR

COURT DATED NOVEMBER 26, 2002................. 17a

APPENDIX D -- ORDER OF D.C. SUPERIOR COURT

DA TERPS SULLY 24, BP ocivsrccesvncs i i chnnanaceeiaueeien 20a

APPENDIX E -- EXCERPTS FROM TRIAL

TRANSCRIPTS DATED NOVEMBER 2002............ 23a

PETITION FOR WRIT OF CERTIORARI —

Charies Sisson respectfully petitions the Supreme

Court for a writ of certiorari to review the judgment of the

D.C. Court of Appeals in this case.

CITATIONS OF OPINIONS BELOW

The September 26, 2005 Opinion of the D.C. Court of

Appeals (App. 1-11) affirming the D.C. Superior Court's

judgment entered (App. 17-19) on a jury verdict (App. 12-16)

is unpublished as noted at 883 A.2d 156; 2005 D.C. App.

LEXIS 608 (table) (D.C. 2005).

JURISDICTION

The judgment of the D.C. Court of Appeals was entered

on September 26, 2005. The jurisdiction of this Court is

invoked under 28-U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

The Due Process Clause of the Fifth Amendment of the

United States Constitution provides in relevant part: "No

person shall ... be deprived of life, liberty or property,

without due process of law ...."

The Due Process Clause of the Fourteenth Amendment

provides in relevant part: "No State shall make or enforce

any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal

protection of the laws."

STATEMENT OF THE CASE

Petitioner was denied Due Process. Charles Sisson, who

served in the U.S. Army during the Vietnam War, has had a

distinguished career as a senior economist for the

International Monetary Fund for over 25 years, and holds a

Ph.D. in economics. This petition seeks review of the Court

of Appeals' affirmance of the $650,000 judgment of the D.C.

Superior Court (App. 17-19) on a jury verdict (App. 12-16)!

against Petitioner in favor of Respondent Dana Preister

("Preister") on a claimed oral contract. A full nine months

after an apartment building was purchased by Mr. Sisson’s

limited liability company, Mr. Preister claimed to be 50%

owner in the multi-million dollar condominium conversion

project undertaken by Mr. Sisson, by virtue of an alleged oral

contract, steadfastly denied by Mr. Sisson. The judgment is

not supportable in the trial record and is shocking to the

conscience. Furthermore, the decision of the Court of

Appeals is predicated on a fundamental Due Process defect

detailed below.

Mr. Preister is a general contractor and operates a

construction company, MidCounty Construction Corporation

("MidCounty"). Prior to this project, he and his wife had

been discharged from a Chapter 13 bankruptcy petition filed

in the U.S. Bankruptcy Court for the District of Maryland,

Greenbelt Division, and had no funds or credit to speak of.

Mr. Preister had no basis to be admitted as a 50% partner in a

multi-million dollar real estate venture. His entire claim

The jury found Mr. Sisson liable to Mr. Preister on theories of

breach of contract, breach of fiduciary duty, and fraud, and awarded

compensatory damages in the amount of $650,000.00 to Mr. Preister.

(App. 12.) Petitioner's motion for a new trial was denied. (App. 20-22.)

hinged on his claimed oral contract with Mr. Sisson relating

to an acquisition and condominium conversion project at

1417 Chapin Street, N.W., Washington, D.C., the renovation

of a shell building. conversion to a 24-unit condominiums,

and sale to the public. Respondent's claim to the oral

contract was pure fiction and was refuted by Preister’s four

proposed agreements, each with different proposed terms, for

a joint limited liability company that Mr. Sisson refused to

sign. Mr. Preister’s subsequent written drafts contradicted

what he claimed as the oral contract.

Prior to trial, Mr. Sisson timely moved for summary

judgment under the Statute of Frauds, for failure of the

parties to agree on material terms, and other grounds. The

claims should have been summarily dismissed under the

Statute of Frauds, D.C Code § 28-3502 (1981), where the

claimed oral contract as to the purchase of the apartment

building, its renovation and condominium conversion, and

sale to the public, could not have been performed in less than

one year. D.C Code § 28-3502 provides: “an action-may not

be brought ... upon an agreement that is noi to be performed

within one year from the making thereof, unless the

agreement upon which the action is brought, or a

memorandum or note thereof, is in writing.” Mr. Preister

testified that the condominium conversion project would take

approximately five years to perform. (App. 28-30) No

condominium conversion in the District of Columbia can be

completed in less than one year, as Respondent's own

testimony established and as the terms of the Mr. Preister’s

draft agreements demonstrated.

The Statute of Frauds requirements were buttressed by the

writing and filing requirements of D.C. Code § 29-1002 that

limited liability companies may only be formed by signed

articles of organization filed with the Mayor. A limited

4

liability company cannot be formed orally. In the

proceedings below, Mr. Preister conceded he had not filed

any signed articles of organization for any joint limited

liability company with the Mayor of the District of Columbia

-- a clear requirement of the District of Columbia Limited

Liability Company Act of 1994, D.C. Code § 29-1002

(2001).

In addition, notwithstanding the Court of Appeals’

conclusory statement that “there was agreement as to all of

the material terms” (App. 8), the parties did not agree on

any of the following material terms for a binding contract:

1) the ownership allocation or profit and loss split; 2) the

financial contribution each was to make; 3) who would be

contracting party, Mr. Preisier or MidCounty; 4) whether

Mr. Preister would be afforded the right to buy out Mr.

Sisson before construction began, as Mr. Preister claimed

in his testimony; and 5) whether Mr. Sisson was to ensure

Mr. Preister against losses, as Mr. Preister claimed.

Significantly, the Court of Appeals concluded ‘iat “[t]here

was no agreement to form an LLC.” (App. 8.) How could

there be a binding contract without agreement as to the

basic form of the business, affecting profits, taxation and

liabilities of the owners? Without an agreement as to each

and every material term, there could be no binding contract.

The failure to agree on material terms was presented

in the summary judgment motion and should have resulted

in dismissal before trial. Although the Pretrial Order stated

that "the court will issue a written memorandum and order

when the outstanding motions have been decided," the trial

court did not do so, effectively depriving Petitioner of

dispositive legal defenses. At the start of trial, the court

cursorily ruled that all pending pretrial motions were

denied.