UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____________________________ ) TERRY L. HUME, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1742 (RWR) ) SHAWN WATSON et al., ) ) Defendants. ) _____________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiff Terry Hume sued defendants Shawn Watson and

Kraftwerks, Inc. in part for taking advance payment from her on

home improvement work they were unlicensed to perform, in

violation of the District of Columbia Consumer Protection

Procedures Act (“DCCPPA”) (

(dd)), and the

District of Columbia Municipal Regulations. Hume moves for

partial summary judgment on Count II of the complaint against

Watson in light of his guilty plea stemming from his conduct with

Hume. Because there is no issue of fact remaining regarding the

defendant’s liability on Count II of the amended complaint and

the plaintiff is entitled to judgment as a matter of law as to

liability, Hume’s motion will be granted.

BACKGROUND

Hume alleges that defendants Watson and Kraftwerks, Inc.

fraudulently induced her to enter into a contract to buy a copper

roof, and then installed it improperly in breach of the contract - 2 -

specifications. (Am. Compl. ¶¶ 1-34.) Count II of the amended

complaint alleges that the defendants committed an unfair trade

practice in violation of the DCCPPA “[b]ecause Defendants were

not licensed by the District of Columbia to perform home

improvement work,” as Title 16, § 800.1 of the District of

Columbia Municipal Regulations required them to be.1 (Am. Compl.

¶ 37.) Watson pled guilty in the Superior Court for the District

of Columbia to one count of accepting payment for a home

improvement contract in advance of completion while not being

licensed as a home improvement contractor, one count of engaging

in a home improvement business without a valid license, and one

count of engaging in home improvement work without a basic

business license, all in connection with the contract with Hume.

(Pl.’s Mem. in Supp. of Mot. for Partial Summ. J., Ex. A (“Plea

Tr.”) at 7, 22.) Watson admitted that on behalf of defendant

1 D.C. Municipal Regulation, Title 16, § 800.1 provides:

No person shall require or accept any payment for a home improvement contract in advance of the full completion of all work required to be performed under the contract unless that person is licensed as a home improvement contractor or as a licensed salesperson employed by a licensed contractor in accordance with the provisions of this chapter.

D.C. MUN. REG. tit. XVI, § 800.1. “[V]iolation of this regulation . . . requires disgorgement of any payments received.” Luna v. A.E. Eng'g Servs., LLC,

, 750 n.20 (D.C. 2007) (citing Cevern, Inc. v. Ferbish,

(D.C. 1995). - 3 -

Kraftwerks, Inc., he contracted with Hume to install a copper

roof on her house and he accepted payment for that work before

the work was completed, even though Kraftwerks was not licensed

to do business in the District of Columbia and Watson was not

licensed to do home improvement work in the District of Columbia.

(Plea Tr. 21-22.) Watson was sentenced to 270 days in jail and

ordered to pay restitution to Hume in the amount of $16,922.50.

The jail sentence was suspended pending payment of restitution.

(Plea Tr. 44-47.)

The defendants argue that partial summary judgment is

inappropriate because a guilty plea is not conclusive evidence of

a civil claim, and because Watson should not be held liable in

his individual capacity for a violation of municipal regulation

§ 16-800.1.2 (Defs.’ Mem. in Opp’n to Pl.’s Mot. for Partial

Summ. J. (“Defs.’ Opp’n”) at 3, 5.)

DISCUSSION

Summary judgment may be appropriately granted when the

moving party demonstrates that there is no genuine issue as to

any material fact and that moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). “In considering a

2 Defendants argue unpersuasively that under

- 3905(k)(1), an action seeking damages under

may be brought only in the Superior Court of the District of Columbia. (Defs.’ Opp’n at 6.) However, the language of § 28- 3905(k)(1) states merely that an action for a violation of § 28- 3904 may be brought in Superior Court, not that such an action must be brought in Superior Court. - 4 -

motion for summary judgment, [a court is to draw] all

‘justifiable inferences’ from the evidence . . . in favor of the

nonmovant.” Cruz-Packer v. Dist. of Columbia,

(D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp.,

(1986). However, a non-moving

party cannot defeat summary judgment by “simply show[ing] that

there is some metaphysical doubt as to the material facts.”

Moore v. Hartman,

(D.C. Cir. 2009) (quoting

Matsushita,

). “Briefs containing mere

allegations or merely denying the movant's pleading are not

enough to prevent summary judgment; instead, a non-movant must go

beyond the pleadings to proffer specific facts rebutting the

movant's assertions.” Graham v. Holder, Civil Action No. 03-1951

(RWR),

(D.D.C. September 29, 2009) (citing

Greer v. Paulson,

(D.C. Cir. 2007), and Burke

v. Gould,

(D.C. Cir. 2002)). “The relevant

inquiry ‘is the threshold inquiry of determining whether there is

a need for a trial - - whether, in other words, there are any

genuine factual issues that properly can be resolved only by a

finder of fact because they may reasonably be resolved in favor

of either party.’” Single Stick, Inc. v. Johanns,

(D.D.C. 2009) (quoting Anderson,

). A

genuine issue is present in a case where the “evidence is such - 5 -

that a reasonable jury could return a verdict for the non-moving

party,” in contrast to a case where the evidence is “so one-sided

that one party must prevail as a matter of law.” Anderson,

.

To successfully establish a claim for a violation of

(dd) predicated on a violation of Municipal

Regulation § 16-800.1, Hume must show: “(1) that a home

improvement contract for a residential property existed . . . ;

(2) the contract was for at least $300.00; (3) [under] the

contract, defendant[s] required or accepted payment in advance of

the full completion of all work required” to be performed under

the contract; and (4) defendants were not licensed in the

District of Columbia as home improvement contractors. Djourabchi

v. Self,

(D.D.C. 2008) (citing Carlson

Constr. Co, Inc. v. Dupont W. Condo., Inc.,

(D.C. 2007) and Nixon v. Hansford,

(D.C. 1991)); see also Cevern, Inc. v. Ferbish,

, 19

n.1 (D.C. 1995).

Defendants argue that Watson’s guilty plea, while an

admission, is not conclusive evidence that he violated Municipal

Regulation § 16-800.1, and that there is a genuine issue of fact

as to whether a contract existed between Hume and Watson

personally, as opposed to between Hume and Kraftwerks. “Courts

have often held that issues determined in connection with a - 6 -

criminal conviction may be preclusively established in later

civil trials.” Miller v. Holzmann,

(D.D.C. 2008) (quoting Otherson v. Dep't of Justice,

(D.C. Cir. 1983)). While issue preclusion is generally

unavailable when the parties in the initial action are different

than the parties in the current action, “district courts in this

Circuit have routinely treated criminal convictions -- including

those based on guilty pleas -- [a]s conclusive proof of the facts

supporting the conviction, and have thus given them preclusive

effect in subsequent civil actions.” Miller,

(internal quotations omitted); see also Hinton v. Shaw Pittman

Potts & Trowbridge,

(D.D.C. 2003)

(“A criminal conviction is conclusive proof and operates as an

estoppel on the defendants as to the facts supporting the

conviction in a subsequent civil action.”) Defendants cite Crane

v. Dunn,

(Md. 2004), for the proposition that

“a plea of guilty . . . may be introduced in a subsequent civil

proceeding, [but] the guilty plea may be rebutted or explained in

the subsequent proceeding.”

However, even if Watson’s

conviction were treated as less than conclusive evidence of

liability, the defendants have come forth with absolutely nothing

to rebut Hume’s assertions establishing all four elements of a

violation of

(dd) predicated on a violation of

Municipal Regulation § 16-800.1. Watson’s conviction by guilty - 7 -

plea established that the contract for Hume’s roof repair was

valued at more than $300, that Hume paid in advance of full

completion of all work, and that Watson and Kraftwerks were not

licensed in the District of Columbia as home improvement

contractors. (See Am. Compl. ¶¶ 8, 15, 32-33; Plea Tr. 21-22.)

While Watson argues that there remains a genuine issue of

fact as to whether he was individually liable on the contract for

the repair of Hume’s roof, a plain reading of the regulation at

issue does not require Watson to be a contracting party for

liability to be imposed on him. Municipal Regulation § 16-800.1

provides in part that “[n]o person shall require or accept any

payment for a home improvement contract[.]” As the defendants

even note in their opposition, Watson admitted in his plea

hearing that he accepted payment for the contract to install

Hume’s roof. (Defs.’ Opp’n at 2; Plea Tr. 22.) The defendants

provide no support for their assertion that, despite the fact

that Watson accepted payment for the home improvement contract,

he cannot be liable for violating the municipal regulation if the

contract was made between Hume and Kraftwerks. The defendants

have provided nothing but speculation to rebut the evidence Hume

provided supporting liability on Count II of the amended

complaint. Therefore, Hume’s motion for partial summary judgment

will be granted on the issue of liability. - 8 -

CONCLUSION AND ORDER

Because Hume has shown that there is no genuine issue of

fact necessitating a trial regarding liability on Count II, it is

hereby

ORDERED that Hume’s motion [41] for summary judgment on

Count II of the amended complaint be, and hereby is, GRANTED, and

judgment is entered against Watson on the issue of liability on

Count II of the amended complaint. It is further

ORDERED that the parties be, and hereby are, DIRECTED to

file a joint status report and proposed order by February 4,

2010, proposing a schedule upon which this case should proceed.

SIGNED this 14th day of January, 2010.

/s/ RICHARD W. ROBERTS United States District Judge