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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 17-CV-339

                 TIGER STEEL ENGINEERING, LLC, APPELLANT,
                                                                       11/8/2018

                                       V.

                   SYMBION POWER, LLC, et al., APPELLEES.

                        Appeal from the Superior Court
                         of the District of Columbia
                               (CAB-8963-15)

                      (Hon. Maurice A. Ross, Trial Judge)
(Argued February 14, 2018                           Decided November 8, 2018)

      Edmond M. Amorosi, with whom Zachary D. Prince was on the brief, for
appellant.

      Erik H. Beard, with whom Timothy A. Diemand was on the brief, for
appellees.

      Before FISHER and THOMPSON, Associate Judges, and FARRELL, Senior
Judge.


      THOMPSON, Associate Judge:       Appellant Tiger Steel Engineering, LLC

(“Tiger Steel”) challenges (1) a March 3, 2017, order of the Superior Court

entering summary judgment in favor of appellees Symbion Power, LLC and

Symbion Power Services U.S., Inc. (together, “Symbion”) on the ground that Tiger
                                          2

Steel’s action for breach of contract was time-barred, and (2) the court’s October 4,

2016, order awarding Tiger Steel only $500 in attorney’s fees and expenses for its

efforts in pursuing a successful motion to compel discovery.



      For the reasons stated herein, we hold that Tiger Steel’s action on Symbion’s

failure to pay as Symbion promised in a debt acknowledgment letter is subject to

the general three-year limitations period applicable to actions for breach of contract

rather than the four-year limitations period applicable to actions for breach of

contracts for sale under the Uniform Commercial Code (“UCC”), even though the

debt arose out of the parties’ contract for the sale of goods.1 We also agree with

the Superior Court’s determination that Symbion did not lull Tiger Steel into

inaction so as to excuse Tiger Steel’s failure to file its Complaint before the end of

the three-year limitations period. We therefore affirm the trial court’s grant of

summary judgment. However, we vacate the October 4, 2016, order and remand

for further proceedings with respect to the award of Tiger Steel’s reasonable

expenses, including attorney’s fees, incurred in connection with its motion to

compel.


      1
          We acknowledge Symbion’s argument, disputed by Tiger Steel, that the
underlying purchase orders were for design services as well as goods, and thus,
were not subject to the UCC limitations period, but we need not address that point
to resolve this matter.
                                         3



                        I. Factual and Procedural Background



      Between December 2008 and March 2009, Tiger Steel, a manufacturer of

steel goods used in construction projects, and Symbion, the general contractor for a

power plant construction project, executed three purchase orders and a related

change order, under which subcontractor Tiger Steel was to fabricate and deliver,

and Symbion was to purchase, steel products for the project, at a total price of

approximately $3.2 million. Symbion did not pay as agreed, and Tiger Steel

stopped performing between May and June 2009 after Symbion failed to honor its

requests for payment.



      On September 15, 2009, the parties agreed that Symbion would pay Tiger

Steel $666,988.60, in addition to “compensation . . . for the current late

payment/delay,” i.e., interest (at a rate of 6% per annum). In the months that

followed, Symbion continued to default on payment. In 2011, Tiger Steel asked

Symbion to send it a letter confirming its intent to pay the debt to address concerns

expressed by Tiger Steel’s auditors. On November 23, 2011, Symbion sent Tiger

Steel a letter (the “debt acknowledgment letter”) signed by “Group Financial
                                         4

Director”    Mike    Madden     acknowledging     its   indebtedness.   The    debt

acknowledgment stated:


             This letter serves as confirmation that Symbion Power
             LLC owes an amount of USD 707,007.92 [t]o Tiger Steel
             Engineering.

             Such amount is correctly recorded within the Company’s
             financial statements and will be paid in full and in due
             course.

             We will appraise you of any developments periodically
             and in the meantime will ensure that full settlement is
             effected soonest.


The acknowledged amount, rounded to $711,008, is the amount that the record

shows had been the “final account agreed” to by the parties on September 15,

2009.



        Symbion had still not paid any of the acknowledged debt amount when, on

September 28, 2013, Symbion sent Tiger Steel a letter that discussed the financial

difficulties Symbion had experienced from the collapse of a major project and the

four years of arbitration that had followed, and that set out what Symbion called a

“final settlement offer.” Writing that “[i]t is quite frankly a miracle that Symbion

survived” and that the company had “lost a significant amount of money . . . and is

still losing money,” Symbion stated that it was “in the unavoidable circumstance of
                                          5

urging [Tiger Steel] to take a ‘hair cut’ on the original amount due” and offered

Tiger Steel $300,000. Tiger Steel rejected that offer. On November 20, 2013,

Symbion informed Tiger Steel that it could not “realistically make any

improvement on the offer at this time.”



      From late 2013, through May 2014, Tiger Steel repeatedly reached out to

Symbion’s CEO Paul Hinks and other Symbion representatives by email, in the

expressed hope that Symbion “would come up with a better proposal.” Symbion

staff informed Tiger Steel on multiple occasions that Hinks was “traveling” and

therefore unavailable. On January 8, 2015, Symbion’s in-house counsel contacted

Tiger Steel regarding “the pending settlement offer.” Tiger Steel asserts that it was

only at this point that it realized that Symbion would never voluntarily repay the

debt it had acknowledged in the November 23, 2011, debt acknowledgment letter.

Tiger Steel filed its Complaint in this matter, alleging breach of contract, ten

months later, on November 18, 2015.



      In its Answer and in subsequent discovery responses, Symbion denied that

Madden had actual authority to sign the debt acknowledgment letter. Tiger Steel

moved to compel discovery relating to the issue, and the trial court granted Tiger

Steel’s motion (and Symbion eventually stipulated that it would not contest that
                                        6

Madden had apparent authority to issue the debt acknowledgment letter). Without

seeking input from the parties relating to reasonable attorney’s fees expenses and

without explaining its reasoning, the court issued an order awarding Tiger Steel

$500 in “costs and fees.”



      After the close of discovery, Symbion filed a motion for summary judgment

arguing, inter alia, that Tiger Steel’s complaint was time-barred.     Both sides

agreed that the November 23, 2011, debt acknowledgment letter had extended the

statutory limitations period. See D.C. Code § 28-3504 (2012 Repl.). The parties

disagreed, however, as to the length of that extension. Symbion argued that the

debt acknowledgment had extended the limitations period only by three years, the

limitations period generally applicable to actions for breach of a simple contract

(with the result that the November 18, 2015, Complaint was untimely), while Tiger

Steel contended that the extension was for four years, the limitation period that

applies with respect to claims of breach of a contract for the sale of goods under

§ 2-275 of the UCC. See D.C. Code § 28:2-725 (1) (2012 Repl.) (“An action for

breach of any contract for sale must be commenced within four years after the

cause of action has accrued.”). Tiger Steel argued in the alternative that Symbion

was estopped from raising the statute-of-limitations bar because its conduct had

lulled Tiger Steel into inaction.
                                          7



      On March 3, 2017, the Superior Court granted Symbion’s motion for

summary judgment, concluding that Tiger Steel’s claim was time-barred. The

court reasoned that “a debt acknowledgment . . . becomes a new contract, with a

new [three-year] statute of limitations[,]” that had run by the time Tiger Steel filed

suit, and also that the lulling doctrine did not apply. This appeal followed.



                                      II. Analysis



      This court reviews the trial court’s grant of summary judgment de novo.

Farmer-Celey v. State Farm Ins. Co., 163 A.3d 761, 765 (D.C. 2017) (citing Young

v. U-Haul Co., 11 A.3d 247, 249 (D.C. 2011)). Summary judgment is proper if

“the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law.” Farmer-

Celey, 163 A.3d at 765.



      In the absence of material issues of fact, “[e]xpiration of the statute of

limitations is a question of law, . . .” which we review de novo.           Bailey v.
                                          8

Greenberg, 516 A.2d 934, 940 (D.C. 1986); Daniels v. Potomac Elec. Power Co.,

100 A.3d 139, 143 (D.C. 2014).



             A. The Limitations Period



      In our jurisdiction, “decisional law regards an acknowledgment [of a debt]

as an implied promise to pay [the] preexisting debt, supported by past

consideration in the form of an obligation to honor the old debt.” Griffith v. Butler,

571 A.2d 1161, 1165 (D.C. 1990) (citations omitted).2          “[The] effect [of the

acknowledgment] on the statute of limitations is to extend the period for enforcing

the debt: the creditor’s remedy is not barred by the statute of limitations period

until the lapse of the full period commencing with the time of the new promise.”3

Id. (internal quotation marks and italics omitted).


      2
          See also Hayden v. International Banking Corp., 41 F.2d 107, 109 (D.C.
Cir. 1930) (“If a debtor simply acknowledges an old debt, the law implies from
that simple acknowledgment a promise to pay it; for which promise the old debt is
a sufficient consideration.”) (quoting Ruppert v. Beavans, 2 App. D.C. 298, 302
(D.C. Cir. 1894)).
      3
            This rule appears to assume that the new promise is “immediately
performable,” such that there is an immediate breach if the debt is not paid
contemporaneously with the new promise being made. 3 Corbin on Contracts §
9.10 at p. 281 (rev. ed. 1996), (“The new statutory period is counted only from the
breach of the new promise.”) (footnote omitted). Symbion’s express promise in
the November 23, 2011, debt acknowledgment letter was to pay “in due course”
                                                                        (continued…)
                                         9



      D.C. Code § 28-3504 (2012 Repl.), which we applied in Griffith, provides in

pertinent part that:


             In an action upon a simple contract, an acknowledgement
             [sic], or promise, by words only is not sufficient evidence
             of a new or continuing contract whereby to take the case
             out of the operation of the statute of limitations or to
             deprive a party of the benefit thereof unless the
             acknowledgement [sic], or promise, is in writing, signed
             by the party chargeable thereby.


We said in Griffith that the acknowledgment of a debt “is enforceable as a new

promise, and the creditor’s rights are measured by it, not the old promise.” 571

A.2d at 1165 (italics added). Tiger Steel acknowledges that statement, but asserts

that what are measured by the new promise are matters such as the sum owed and

the payment terms, not the length of the limitations period. Emphasizing that

Griffith does not address what limitations period applies to enforcement of the new

promise, Tiger Steel again urges that the full limitations period that commenced

upon the new promise set out in the November 23, 2011, debt acknowledgment



(…continued)
and “soonest,” but Tiger Steel has not suggested that the vagueness of the due date
means that the limitations period began to run at some date after November 23,
2011. It agrees that “the date of the acknowledgment is the date from which the
statute of limitations begins to run again.”
                                         10

letter is not the three-year limitations period established by § 12-301 (7),4 but

instead the four-year limitations period applicable “to actions for breach or

contracts for sale governed by [D.C. Code] § 28:2-725,” D.C. Code § 12-301; see

also D.C. Code § 28:2-725 (1) (2012 Repl.) (“An action for breach of any contract

for sale must be commenced within four years after the cause of action has

accrued.”).



      According to the Corbin treatise, the general rule is that:


              The statutory period that is applicable against the new
              right of action depends upon the character and form of
              the new promise and the provisions of the various state
              statutes. It is not determined by the character and form
              of the original transaction . . . . If the new promise is
              merely implied from an acknowledgment . . ., the period
              is that which the statute provides for implied contracts.
              This is true, even though the original transaction was a
              contract under seal.


3 Corbin on Contracts § 9.10 at p. 281 (rev. ed. 1996), (footnotes omitted);5 see

also RESTATEMENT (SECOND) OF CONTRACTS, § 82, cmt. c, illus. 8 (AM. LAW INST.,


      4
         Section 12-301 (7) states that “actions for the following purposes may not
be brought after the expiration of the period specified below from the time the right
to maintain the action accrues: . . . on a simple contract, express or implied — 3
years.”
      5
         As footnotes in the Corbin treatise acknowledge, however, some courts
have held that the limitations period applicable to an action for breach of the new
                                                                       (continued…)
                                         11

1981) (“A is indebted to B on a bond under seal, which is barred by a twelve-year

statute of limitations, and makes a promise to B in a signed writing not under seal

to pay the debt. The statute of limitations for debts under written contracts not

under seal is six years. An action on the subsequent promise is subject to the six-

year statute.”).



       The Williston treatise summarizes the general rule as follows:          “[T]he

indebtedness is . . . extended for the period allowed by the law for the enforcement

of simple, informal contracts, unless the natural construction of a statute

governing the matter leads to a different result.” 4 Williston on Contracts, § 8:45

at 720 (4th ed. 2008) (italics added) (footnote omitted). Although the Williston

treatise states that “courts should, and perhaps most courts would, follow the

Restatement drafters’ lead” and apply the “simple, informal contract statute of

limitations to the new promise” since “the plaintiff is suing on the new promise,”

he also notes that “[l]argely because of the confusion that existed, . . . a

construction has been put upon particular statutes which . . . allows the



(…continued)
promise is the same as the limitations period that applied to an action to enforce the
old promise. See, e.g., Ingram v. Harris, 5 S.E.2d 624, 626 (Va. 1939) (“[I]t is
perfectly clear, we think, that after a new promise the statute of limitations began
anew and ran for the period applicable to the original contract.”).
                                         12

enforcement of the claim during a new period equal to that allowed by the law for

the enforcement of the original indebtedness.” Id. at 721, 722.6



      Tiger Steel underscores the comments in the secondary sources about

deference to “the provisions of the various state statutes.”7 3 Corbin, § 910 at 281;

4 Williston § 8:45 at 720. It argues that the most natural reading of our debt

acknowledgment statute, § 28-3504, is that “the same limitations period will apply

upon acknowledgment as applied to the underlying action.” Tiger Steel highlights

that § 28-3504 refers to “tak[ing] the case out of the operation of the statute of

limitations” (italics added) and that the case law also refers to the creditor’s

remedy not being barred by “the” statute of limitations period.8 It argues that in


      6
          Thus, “if the statute of limitations allowed 10 years, for example, for the
enforcement of the original obligation, a new promise would start a new period of
10 years, although the period allowed for the enforcement of a simple, informal
contract obligation might be considerably shorter.” Id. at 721 (footnote omitted).
      7
          Tiger Steel also cites a number of cases in which courts and parties
assumed that the UCC § 2-725 statute of limitations applied to actions predicated
on enforcement of acknowledgments of debts arising out of underlying contracts
for sale. As Symbion points out, however, and Tiger Steel does not dispute, in
none of the cited cases was the applicable limitations period an issue that the court
analyzed.
      8
             Griffith, 571 A.2d at 1165 (stating that the effect of the debt
acknowledgment is that “. . . the creditor’s remedy is not barred by the statute of
limitations period until the lapse of the full period commencing with the time of
the new promise” (internal quotation marks omitted) (italics added)); Hayden, 41
                                                                       (continued…)
                                            13

each case the “the” is a reference to a “singular limitations period”: the same

period that would be operable but for the debt acknowledgment. If there is any

doubt about this, Tiger Steel argues, case law dictates that the issue should be

resolved in favor of the longer limitations period. See In re Estate of Derricotte,

744 A.2d 535, 541 (D.C. 2000) (“Where two constructions as to the limitations

period are possible, the courts prefer the one which gives the longer period in

which to prosecute the action . . . . If there is any reasonable doubt in a statute of

limitations problem, the court will resolve the question in favor of the complaint

standing and against the challenge.”).



       We are not persuaded by Tiger Steel’s linguistic argument. We agree that

the “the” in § 28-3504 and the cases denotes a reference to the limitations period

that would govern but for the debt acknowledgment, but all that these authorities

say is that a written acknowledgment takes the matter out of the operation of the

previously running limitations period. They do not say what limitations period will

apply to actions that are “take[n] . . . out of [its] operation.”9


(…continued)
F.2d at 110 (referring to a debt acknowledgment “reliev[ing] the bar of the statute
of limitations” (internal quotation marks omitted) (italics added)).
       9
          In that regard, § 28-3504 may be contrasted with UCC Article 3, which
“takes sales contracts out of the general laws limiting the time for commencing
                                                                        (continued…)
                                         14



      We also do not have such doubt about which limitations period applies that

we are compelled to rule that the longer limitations period applies. The general

rule stated in the secondary sources about what limitations period applies to actions

on the new promise contained in a debt acknowledgment — that the “simple,

informal contract statute of limitations [applies] to the new promise,” 4 Williston

§ 8:45 at 722 — is consistent with our case law that a written debt

acknowledgment is enforceable as a new promise and that the creditor’s rights are

measured by that new promise. See Griffith, 571 A.2d at 1165. In addition, we

arrive at the same conclusion by way of a different analysis, as follows.



      Tiger Steel sued for breach of contract, and it contends that its action is “[a]n

action for breach of [a] contract for sale” within the meaning of § 28:2-725.

However, what the November 23, 2011, letter acknowledged was the “final

account agreed,” and, in substance,10 Tiger Steel’s claim is a type of contract action


(…continued)
contractual actions” but then “selects a four-year period as the most appropriate to
modern business practice.” Hahn v. Atlantic Richfield Co., 625 F.2d 1095, 1105
(3d Cir. 1980).
      10
           See Green v. Louis Fireison & Assocs., 618 A.2d 185, 189-90 (D.C.
1992) (explaining that the nature of a complaint “is determined by the relief
sought, not by its label or caption.”) (internal quotation marks omitted); see also
                                                                         (continued…)
                                        15

that the case law refers to as an action in “assumpsit . . . for money due upon an

account stated.”11   An action in “assumpsit” is “[a]n action based on the

defendant’s breach of an implied promise to pay a debt to the plaintiff.”

Assumpsit, BLACK’S LAW DICTIONARY (10th ed. 2014).12 An “account stated” is

“[a] balance that parties to a transaction . . . agree on, either expressly or by


(…continued)
Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 549 n.5 (D.C. 1981) (“The legal
label for relief sought is not controlling.”).
      11
            Kennaird v. Jones, 50 Va. (9 Gratt.) 183, 184 (Va. 1852); see also
Ruppert, 2 App. D.C. at 302 (“An acknowledgment . . . will revive the original
cause of action, . . . [which] . . . may amount to a new assumpsit for which the old
debt is a sufficient consideration[.]”) (internal quotation marks omitted).

       We are not the first to recognize that an action on a debt acknowledgment
can be equivalent to an action on an account stated. See Moorman Mfg. Co. of
California v. Hall, 830 P.2d 606, 608 (Or. Ct. App. 1992) (Rossman, J., dissenting
in part but concurring in relevant part) (“The four-year Statute of Limitations that
applies to contracts for the sale of goods [under the UCC] is inapplicable to
plaintiff's account stated claim, because the claim is based on a new and separate
contract that was created when defendants acknowledged their indebtedness to
plaintiff.”).
      12
          See also 3 Corbin on Contracts § 9.5 at 259 (rev. ed. 1996), (“Originally,
the rule enforcing new promises to pay debts . . . was . . . pursuant to the writ
known as indebitatus assumpsit or general assumpsit.”); RESTATEMENT (SECOND)
OF CONTRACTS, § 82 (AM. LAW INST. 1981), Historical note: types of indebtedness
(noting that the rule about the binding nature of a promise to pay an antecedent
contractual indebtedness “was established in the action of general or indebitatus
assumpsit”). An action in assumpsit is a remedy for the recovery of an amount due
on a simple contract. See Mansfield v. Winter, 10 App. D.C. 549, 557 (D.C. Cir.
1807).
                                          16

implication.” Id. at 21; see also Exxon Corp. v. International Concrete Corp., 335

A.2d 236, 237 (D.C. 1975) (“The essence of . . . an action [on account stated] . . . is

that the party charging and the party to be charged have agreed or struck a balance

from which an obligation to pay can be implied.” (citing First Nat’l Realty Corp. v.

Impact Advert., Inc., 206 A.2d 579, 580 (D.C. 1965)).13



      The Corbin treatise describes the nature of an action on an account stated as

follows:

             If a claimant renders an account and it is assented to as
             correct by the other party with an express or implied
             promise to pay, an action may be maintained on the
             promise. The account stated is a new, independent cause
             of action superseding and merging the antecedent causes
             of action represented by the particular items included in
             the computation.

             ...

             An action on an account stated is not an action for the
             breach of a contract for sale. Rather, it is an action to
             enforce a subsequent promise to pay an account.




      13
           See also Eimco-BSP Serv. Co. v. Valley Inland Pac. Constructors, Inc.,
626 F.2d 669, 671-72 (9th Cir. 1980) (“An account stated is an agreement between
persons having previous monetary transactions that fixes the amount due in respect
to such transactions and promises payment. As such, an account stated is itself an
independent contract that is enforceable without regard to the underlying
transactions on which it is based.” (citations omitted)).
                                         17

See 13 Corbin on Contracts § 72.4 (2), at 466-67, 473 (rev. ed. 2003) (italics

added) (footnotes omitted); see also 3 Corbin on Contracts § 9.2 at p. 244 (rev. ed.

1996) (noting that “[o]ne of the very frequent illustrations of [a new promise to pay

an antecedent debt that gives the creditor the full statutory period in which to sue]

is the ‘account stated’”).



      Citing the Corbin treatise, the Supreme Court of Michigan has held that an

action on an account stated is not governed by the four-year limitations period for

actions on contracts for sale prescribed in Article 2 of the UCC. See Fisher Sand

& Gravel Co. v. Neal A Newbie, Inc., 837 N.W.2d 244 (Mich. 2013).


             Because the language of [UCC § 2-725] plainly states
             that it only applies to actions on the sale of goods, and an
             action on an account stated is an action on a promise to
             pay a certain amount that has nothing to do with any
             underlying sales transactions, the Court of Appeals erred
             by . . . concluding that the four-year limitations period
             applies because the nature of the underlying transactions
             is immaterial.


Id. at 254-55 (footnote omitted). Instead, the Michigan court held, “it being

established that an account stated is a contract based on assent to an agreed

balance, an action on an account stated is subject to the . . . limitations period

governing general contract actions[.]” Id. at 255 (internal quotation marks and

footnote omitted). We find the Michigan court’s analysis persuasive.
                                          18



      The November 23, 2011, debt acknowledgment letter “revive[d]”14 and

promised to pay the amount ($711,008, representing $666,988.60 plus 6% interest)

that the record shows was the “final account agreed” to by the parties on

September 15, 2009, upon Symbion’s computation of the final costs for each

purchase order and Tiger Steel’s “OK.” In response to a Tiger Steel request for

admission, Symbion admitted that this amount was recorded in its accounting

records as a liability and indebtedness to Tiger Steel, and Tiger Steel sued for the

$666,988.60 amount plus interest and fees in its Complaint. Following the analysis

in Fisher Sand, we conclude that in suing on the debt acknowledgment letter, Tiger

Steel in effect sued on an account stated and, for that reason, its suit was subject to

the limitations period governing general contract actions under §12-301 (7). See

Fisher Sand & Gravel Co., 837 N.W.2d at 255. Thus, the trial court did not err in

determining that the applicable limitations period was three years.



             B. Lulling



      Tiger Steel argues in the alternative that even if the limitations period was

three years, the trial court erred in determining that no genuine dispute of material

      14
           Ruppert, 2 App. D.C. at 302 (internal quotation marks omitted).
                                         19

fact existed as to whether Symbion “lulled” Tiger Steel into inaction that equitably

tolled the running of the limitations period that commenced on the date of the debt

acknowledgment.15 Specifically, Tiger Steel cites correspondence from Symbion

in mid-2014 that “left open the possibility that Symbion would honor its

commitments” and a communication as late as January 2015 that “indicated that

payment was still a possibility although not at the agreed amount.” Tiger Steel

asserts that even after Symbion told Tiger Steel that Symbion lacked funds to pay

the full agreed-upon amount, Symbion “continued to lull Tiger Steel into

complacency by delaying [Tiger Steel’s] requests to speak to Symbion’s CEO

personally, and suggesting that Symbion was rethinking its offer.”



      In the District of Columbia, “a defendant cannot assert the bar of the statute

of limitations[] if it appears the defendant has done anything that would tend to lull

the plaintiff into inaction, and thereby permit the limitation prescribed by the

statute to run.” Daniels, 100 A.3d at 142 (internal quotation marks and brackets in


      15
           Tiger Steel does not identify which material facts purportedly remain in
dispute. Instead, it appears to argue that the reasonableness of its conduct (the
facts of which do not appear to be in controversy) remains at issue. Where the
facts are undisputed, the question of reasonableness is for the court. Cf. Greycoat
Hanover F St. Ltd. P’ship v. Liberty Mut. Ins. Co., 657 A.2d 764, 768 (D.C. 1995)
(“Reasonableness will often be a question for the jury, but where, as here, the
evidence as to timing is uncontradicted, reasonableness of the delay may become a
question of law.”).
                                         20

original omitted). To establish lulling, the plaintiff must show that the defendant

engaged in affirmative misconduct; “mere silence or failure to disclose” is

generally not enough. Id. (internal quotation marks and alterations in original

omitted). In addition, and importantly in this case, “[i]f ample time to file suit

within the statutory period exists after the circumstances inducing delay have

ceased, there is no estoppel against pleading the bar of the statute.” Interdonato v.

Interdonato, 521 A.2d 1124, 1135 (D.C. 1987) (internal quotation marks omitted).



      The Superior Court determined that the documentary evidence showed that

by 2013, a year before the three-year limitations period ran in November 2014, “it

was clear . . . that the only amount that Symbion would pay was $300,000, far

below the debt,” and that Tiger Steel “knew or reasonably should have known at

that point that [it was] not going to recover” under the terms of the debt

acknowledgment letter. We agree with that determination. Tiger Steel has not

identified any affirmative conduct by Symbion after Symbion sent Tiger Steel the

September 28, 2013, letter describing Symbion’s financial difficulties and offering

Tiger Steel the “haircut” sum of $300,000 as a “final settlement,” “that could have

caused Tiger Steel reasonably to believe that Symbion would pay the full debt

acknowledged in the November 23, 2011, letter. In November 2013, Symbion

reaffirmed that it would not pay the full amount of debt it had acknowledged. The
                                         21

record then shows that Symbion ignored Tiger Steel’s repeated attempts over four-

and-a-half months to contact Symbion’s CEO. We cannot find that Symbion

“lull[ed] Tiger Steel into complacency” or somehow “suggest[ed] that Symbion

was rethinking its [$300,000] offer” by avoiding substantive contact with Tiger

Steel for months on end, conduct that was akin to “mere silence.” As to CEO

Hinks’s brief email of May 15, 2014, which Tiger Steel points to as suggesting that

Symbion “was rethinking its offer,” the email states only that when Hinks was

back from travel, he would “give [Tiger Steel] a proper answer.” The email cannot

reasonably be read to imply that the proper answer would be “revert[ing] back” to

the amount Symbion acknowledged in the November 23, 2011, letter.



      In short, any act of lulling ceased more than a year before the expiration of

the new limitations period. Since there was still “ample time to file suit”16 within

the three-year statutory period after Tiger Steel knew or reasonably should have

known that Symbion did not intend to pay its debt voluntarily, the Superior Court

properly ruled that the lulling doctrine — a “very narrow equitable exception”17 —




      16
           Interdonato, 521 A.2d at 1135.
      17
           Daniels, 100 A.3d at 142 (internal quotation marks omitted).
                                        22

did not apply, and the court did not err in granting summary judgment in favor of

Symbion and against Tiger Steel. We therefore affirm the judgment.



                        III.   The Award of Costs and Fees



      We turn finally to the issue of attorney’s fees and costs. If the trial court

grants a motion to compel discovery, then “the court must, after giving an

opportunity to be heard, require the party . . . whose conduct necessitated the

motion . . . to pay the movant’s reasonable expenses incurred in making the

motion, including attorney’s fees.” Super. Ct. Civ. R. 37 (a)(5)(A) (emphasis

added).18 We review the trial court’s decision respecting attorney’s fees for abuse

of discretion, Ill. Farmers Ins. Co. v. Hagenberg, 167 A.3d 1218, 1232

(D.C. 2017) (citation omitted), and “[w]e have held that a trial court abuses its

discretion by:   (1) failing to consider a relevant factor; (2) relying upon an

improper factor; or (3) failing to provide reasons that support the trial court’s

conclusions.” In re Estate of McDaniel, 953 A.2d 1021, 1023–24 (D.C. 2008)

(citing Johnson v. United States, 398 A.2d 354, 366–67 (D.C. 1979)).


      18
          The Superior Court Rules of Civil Procedure were amended on June 1,
2017, long after the trial court granted the motion to compel. The version of
Super. Ct. Civ. R. 37 in effect at the time of the court’s ruling on the motion to
compel is identical to the current version.
                                        23



      We determine that the trial court abused its discretion for two reasons. First,

after granting the motion to compel, the trial court failed to afford the parties an

opportunity to be heard separately on the issues of attorney’s fees and costs as

required by Rule 37 (a)(5)(A).      Second, the trial court did not provide any

reasoning to support its conclusion that only a de minimis amount of expense

reimbursement was warranted (and, as Tiger Steel asserts, it appears that the court

had no record evidence of the actual fees and costs claimed by Tiger Steel).

Accordingly, we vacate the trial court’s October 4, 2016, award of fees and costs

and remand this matter to the Superior Court to determine anew the reasonable

expenses to which Tiger Steel may be entitled.19



                                             So ordered.




      19
          Symbion’s motion to strike Part II of Tiger Steel’s reply brief is denied
as moot. The motion of Zachary Prince to withdraw as counsel for Tiger Steel for
business reasons is granted.
