Personal Jurisdiction Over Non-Resident Defendant Can Be Established by Advertising in Newspapers and Yellow Pages, Even without Connection between Plaintiff's Injury and the Advertising

Shoppers Food Warehouse v. Moreno, 715 A.2d 107 (D.C. 1998). Opinion by Reid, joined by Farrell; Schwelb dissenting.

FACTS: District resident slipped and fell in Maryland grocery store. Plaintiff sued in D.C. Superior Court. Defendant Shoppers contended court lacked personal jurisdiction over it, since it is a Maryland corporation with no stores in the District. Trial court found jurisdiction based on advertising by Shoppers in the Washington Post and District of Columba Yellow Pages. Jury found for plaintiff. Shoppers appealed on personal jurisdiction (and other issues).

OUTCOME: Judgment for plaintiff AFFIRMED.

HOLDING: 1. (First impression) Extensive and repeated advertising in the District is sufficient to permit exercise of personal jurisdiction over nonresident defendant. (Trial courts had been divided on this issue.)

2. Arising from requirement of D.C. long-arm statute, D.C. Code ' 13-423(b), does not require direct relationship between defendant's forum activities and tortious injury to this plaintiff.

COMMENT Dissent argues that plain language of statute -- When jurisdiction over a person is based solely upon this section [13-423], only a claim for relief arising from acts enumerated in this section may be assereted against him. -- requires in this case that the advertising in the District led plaintiff to shop at the defendant's Maryland store. On this record, plaintiff would have suffered same injury in same store even if Shoppers had never advertised in the District. Majority says only a practical link is necessary -- here, the predictability that D.C. residents exposed to the defendant's advertising will shop in the defendant's stores and will seek relief for shopping-related injuries in the forum where they reside.

NOTE: For a case reaching the opposite result and collecting authorities, see Chedid v. Boardwalk Regency Corp., 756 F.Supp. 941 (E.D. Va. 1991). Virginia man slipped and fell in Atlantic City casino. He sued in Virginia, claiming the casino's ads in Virginia prompted his trip to the casino. Held: no jurisdiction.

Proof of Intent Not to Perform a Contract Can Give Rise to Claim of Fraud

Chedick v. Nash and Capital City Mortgage Corp., __ F.3d __ (D.C. Cir. 1998). Opinion by Buckley, joined by Edwards and Henderson.

FACTS: Woman about to lose her house to foreclosure took out a 5-year loan for $42,000 from Capital City at 20% interest rate for first four years and 30% final year, with provision that if any payment was 45 days or more late, the interest rate immediately went up to 30% for the rest of the loan. Three months after taking out the loan, she stopped making payments because Capital City included improper charges in the amount it claimed was due. She found a buyer the next year but the sale fell through when Capital City demanded $98,000 to retire the loan. She then sued Capital City for breach of contract and fraud. She alleged that Capital City never intended to perform its loan contract with her but instead planned to prevent her from repaying the mortgage so it could foreclose on the property, as it had done with other lenders. She provided evidence that it repeatedly miscalculated her monthly payment, captialized closing costs rather than charging them as separate expenses, and overestimated the amount needed to pay off the loan, thus scuttling her sale. Jury awarded her compensatory and punitive damages for the fraud.

OUTCOME: Verdict for plaintiff AFFIRMED.

HOLDING: (1) Proof of intent not to perform a contractual duty at the time of entering the contract can give rise to a tort action for fraud. (First impression.)

(2) Circumstantial evidence was sufficient to prove lack of intent to perform contract in good faith, even though plaintiff lacked smoking gun. Jury was entitled to take account of Capital City's past pattern of using faulty accounting plus onerous loan terms to confuse and overburden its borrowers, thereby forcing them into default.

COMMENT: This is first case in District of Columbia to hold that proof that a promisor had no intent at the time of making a contract to carry it out gives rise to a claim for fraud which qualifies for punitive damages. The general rule is that mere breach of a contract, even if aggravated, does not qualify for punitive damages.

District of Columbia Does Not Have a Non-Delegable Duty for Prisoners' Health Care

Herbert v. District of Columbia, __ A.2d __ (D.C. 1998). En banc opinion by Schwelb, joined by Steadman, Farrell and King; dissent by Terry, joined by Wagner and Reid.

FACTS: Plaintiff, a D.C. jail prisoner, suffered serious injury from admitted medical malpractice by a physician's assistant employed by an independent contractor corporation. Corporation's employees were not supervised by Department of Corrections personnel, although corrections officials did monitor performance of medical care contract. Plaintiff won judgment against physician's assistant and now-defunct corporation but couldn't collect. She appealed on judgment against her in favor of the District of Columbia. Divided panel ruled in her favor, 691 A.2d 1175 (D.C. 1997) on non-delegable duty doctrine.

OUTCOME: Panel opinion vacated and trial court AFFIRMED in dismissing case against D.C.

HOLDING: (1) District of Columbia has no non-delegable duty to provide health care for its prisoners that would subject it to liability for the negligence of contractors over whom the District has no control.

(2) District does have a duty under D.C. Code ' 24-442 to provide health care for its prisoners, but it can satisfy those responsibilities by exercising reasonable care in the selection and supervision of its independent contractors.

(3) District also has limited non-delegable duty not to inflict cruel and unusual punishment under Eighth Amendment.

QUOTE: To hold that the duty not to be cruel or wanton or obdurate cannot be delegated away is one thing; to expand that doctrine to make the District liable for the ordinary negligence of a contract health care provider, without proof of lack of due care on the part of the District, is quite another.

COMMENT Dissent would impose non-delegable duty on District based on special relationship doctrine since prisoner has no choice of doctors. Because the District has thus assumed the right to make decisions about providing health care for the prisoner, it should also be obliged to accept the consequences when those decisions go awry.

Negligence Per Se: Statute Can Supply Standard of Care Without Need for Expert Testimony

Bell Atlantic-Washington, D.C., Inc. v. Nazario Construction Co., Inc., __ A.2d __ (D.C. 1998). Opinion by Schwelb, joined by Wagner and Gallagher.

FACTS: Excavation contractor drove spikes into ground and hit underground telephone cables owned by Bell Atlantic. Phone company sued contractor. At bench trial, court held against phone company for failing to have expert on standard of care required of excavators. Court also refused to let Bell Atlantic re-open case to call an employee as a witness to supply standard of care testimony.

OUTCOME: Judgment for contractor REVERSED.

HOLDING: D.C. Underground Facilities Protection Act, D.C. Code ' 43-1701, provides standard of care by specifying clearance that must be maintained between any excavacting equipment and underground facilities to prevent damage. Act thus places statutory duty on excavators not to damage underground cables, and unexplained violation of the standard makes the defendant negligent as a matter of law, quoting Ceco Corp. v. Coleman, 441 A.2d 940, 945 (D.C. 1982).

COMMENT Court also notes in fn.2 that Bell Atlantic should have been allowed to call its own employee as an expert even though employee had not been identified as expert under Rule 26(b)(4), since that rule doesn't apply to professionals whose knowledge was acquired as participants in the underlying events, quoting Adkins v. Morton, 494 A.2d 652, 657 (D.C. 1985).

Civil Procedure: Two Cases on Perennial Topics Important to Know

Seventh Amendment: Party Has Right to Jury Trial When Legal and Equitable Claims Are Tried in Same Case

Materials Supply Int'l Inc. V. Sunmatch Industrial Co. Ltd., __ F.3d __ (D.C. Cir. 1998). Importer of power tools lost a trademark in a dispute with the foreign manufacturer of the tools. Importer sued to reverse decision of Trademark Trial and Appeal Board and also brought damages claims for trademark infringement, unfair competition, fraud, etc. District court held bench trial on challenge to trademark board's decision simultaneously with a jury trial on the other claims in the case. While jury was deliberating, court announced that it had decided factual question of who owned the trademark in favor of the foreign manufacturer, and court took away same fact question from jury on non-equitable counts. Court of Appeals REVERSED and held that trial court was obligated to let jury decide all factual issues common to both the legal and equitable claims and then rule on the equitable count consistently with the jury's factual findings.

Dismissal Without Prejudice Doesn't Toll Statute of Limitations

Johnson v. Marcheta Investors Ltd Partnership, __ A.2d __ (D.C. 1998). Plaintiff's timely personal injury case was dismissed without prejudice for failure to prosecute. Plaintiff then obtained new lawyer and moved to vacate dismissal, which trial judge declined to do, albeit without prejudice. Instead of appealing dismissal and refusal to vacate dismissal, plaintiff filed a new suit, which was now more than three years after the injury. New suit dismissed on statute of limitations, based on settled law that District doesn't recognize equitable tolling of SOL. Sayyad v. Fawzi, 674 A.2d 905 (D.C. 1996). Plaintiff then moved under Rule 60(b) to vacate dismissal of first suit. Court AFFIRMS refusal to vacate dismissal, holding that plaintiff made fatal error in not appealing dismissal of first suit and that a Rule 60(b) motion couldn't substitute for a timely appeal.