E-Alert Case Updates

Lis pendens claim improperly based on noise nuisance warrants attorneys’ fees

Bloom v. Beam
___A.3d___ (2014)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://caselaw.findlaw.com/dc-court-of-appeals/1677776.html

Bloom was the owner and occupant of condominium Unit #9, which was directly below Unit #13, owned and occupied by Beam. In 2009, Beam installed a new floor in his unit. As a result of this new floor installation, Bloom filed a Complaint alleging that the installation of the new floor created a noise nuisance that established a constructive trust that permitted him to access the property for the purpose of repairing the defective flooring installation. Bloom later amended the Complaint changing the allegation from a constructive trust to a constructive easement. When Bloom learned that Beam was attempting to sell his unit, Bloom recorded a memorandum of lis pendens, which stated that the lawsuit “affects title and interest” in Beam’s property, and recounted the allegations of the lawsuit. As a result of the lis pendens filing, Beam was unable to sell his property, and he filed a counterclaim for slander of title. Beam also filed a motion for partial summary judgment seeking to dismiss the easement claim and cancel the lis pendens, as well as impose sanctions and punitive damages against Bloom. The Court dismissed the claim for constructive easement and ruled that it could not be the basis for a lis pendens. The lis pendens memorandum was withdrawn prior to trial by agreement of the parties. At the trial, the jury rejected Bloom’s nuisance claim and awarded Beam $99,738 in special damages for maintenance expenses during the period in which he was unable to sell the unit. The Court, however, rejected the assessment of punitive damages against Bloom, finding there was insufficient evidence to send the issue to the jury. Both sides filed post-trial motions, including a motion by Beam for sanctions pursuant to D.C. Code § 42-1207(d) in the amount of $32,775. The trial court granted Beam’s motion for sanctions, and denied Bloom’s motions for judgment notwithstanding the verdict. Bloom appealed the verdict, and Beam cross-appealed on the issue of the punitive damages.

The Court of Appeals for the District of Columbia, first rejected Bloom’s argument that the lis pendens was absolutely privileged and, therefore, could not be the basis for a slander of title claim, as Bloom had failed to raise the argument below. The court then addressed the elements of the slander of title, noting:

To establish a claim for slander of title, the plaintiff must prove: (1) a communication relating to the title of property was false and malicious; (2) damages resulted from the publication of the statement; and (3) if special damages are sought, the underlying damages must be pled with specificity.

Id. The Court limited their analysis to the “falsity” element, finding that Bloom’s lis pendens filing was not false, as it only recounted the nature of the underlying litigation that “affected … other interest in real property.” D.C. Code § 42–1207(a) (2001). This complied with the 2001 lis pendens statute, which was significantly modified by the 2010 amendment that would have eliminated Bloom’s right to record the lis pendens memorandum. Since the lis pendens was properly filed, the Court ordered the slander of title judgment be vacated.

The Court then addressed the attorney’s fees. Bloom claimed that a portion of the fee was for the purpose of defending the properly filed lis pendens, and therefore not compensable under the statute that permitted attorneys’ fees for unsupported lis pendens actions. The Court acknowledged that while the lis pendens did not constitute slander of title, the filing was without a supportable legal basis. However, as the Court noted:

Despite repeated requests from the court, Bloom failed to provide the court with any authority or compelling rationale to support his proposition that a noise nuisance claim could support the imposition of a constructive easement. The record, therefore, reveals that Bloom’s claim of a constructive easement had “absolutely no chance” of being recognized as a property interest resulting from a noise nuisance.

Bloom v. Beam, ___ A.3d at 3. The Court held that the amount of the attorneys’ fees was not so inappropriate as to constitute an abuse of discretion, especially in light of the fact that it took nearly a year for Bloom’s to withdraw the lis pendens after offering to do so in the 2009 mediation. The Court, however, advised that the trial court had the discretion to revisit the attorneys’ fees in light of Court’s ruling to vacate the slander of title claim. The Court affirmed in part and remanded the action with instructions to vacate the slander of title verdict and the special damages award, and to permit reconsideration of the sanctions award amount.