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             DISTRICT OF COLUMBIA COURT OF APPEALS

                         Nos. 17-CV-370 & 17-CV-1186

         WASHINGTON NATIONALS STADIUM, LLC, ET AL., APPELLANTS,

                                        v.

           ARENAS, PARKS AND STADIUM SOLUTIONS, INC., APPELLEE.

                        Appeals from the Superior Court
                          of the District of Columbia
                                (CAR-1938-15)

                       (Hon. Neal E. Kravitz, Trial Judge)

(Argued May 30, 2018                              Decided September 6, 2018)

      James A. Sullivan, with whom William R. Martin and Sasha E. Hodge-Wren
were on the brief, for appellants.

      Donald A. Rea, of the bar of the State of Maryland, pro hac vice, by special
leave of court, with whom Nicholas C. Stewart was on the brief, for appellee.

      Before BLACKBURNE-RIGSBY, Chief Judge, FISHER, Associate Judge, and
RUIZ, Senior Judge.

      BLACKBURNE-RIGSBY, Chief Judge: The Washington Nationals Stadium,

LLC and Washington Nationals Baseball Club, LLC (“appellants”) appeal a March

2, 2017, order of judgment and a September 13, 2017, amended order of judgment

entered against them after a jury trial before Judge Neal E. Kravitz in favor of
                                          2

Arenas, Parks and Stadium Solutions, Inc. (“appellee”).1         The case involves

competing breach of contract claims related to appellee’s installation of a

decorative floor throughout the Nationals Park (“Park”). Appellants had refused to

pay appellee even after most of the work was complete, claiming the floor was too

slippery. On appeal, appellants contend that, during trial, the trial court (1) abused

its discretion in not allowing them to call two independent fact witnesses to testify

to the slippery condition of the floor; (2) erred as a matter of law in denying their

motions for judgment on appellee’s anticipatory breach claim; and (3) abused its

discretion in limiting their claim for attorney’s fees solely to those fees associated

with the Rust-Oleum mechanic’s lien on the Park. We affirm.



                                          I.



      Appellants entered into a series of contracts with appellee in which appellee

agreed to install a decorative floor throughout the Park. The largest of these

contracts, the “Prime Contract,” was signed on November 11, 2013, and was worth

$3,268,680, to be paid in six equal annual installments through January 31, 2019.




      1
         The original judgment was amended to account for an attorney’s fees
award to appellants in the amount of $66,731.35.
                                        3

Appellee subcontracted with Majestic Flooring Solutions Corporation (“Majestic”)

to provide labor and Rust-Oleum to provide supplies.



      Prior to completion of the project, the relationship between appellants and

appellee deteriorated. The triggering event seems to have been when appellee

failed to timely pay Rust-Oleum, and in response Rust-Oleum filed a mechanic’s

lien against the Park in early May of 2014.         Shortly thereafter, appellants

terminated contact with appellee and refused to give them access to the Park to

complete the rest of the work. Appellants justified their actions by claiming that

appellee breached the Prime Contract first by installing a defectively slippery

floor.2 At the same time, appellants began separately and secretly negotiating with

Rust-Oleum, appellee’s materials subcontractor, for a recoat of the floor and

release of the mechanic’s lien. On September 12, 2014, Majestic also filed a

mechanic’s lien against the Park for $532,262.64 as Majestic had not been timely

paid by appellee.




      2
           The Prime Contract did not provide any specifications for the slip
resistance of the floor, but stated that the work was to “be performed in a
professional manner consistent with the industry standard of care for such work in
the local jurisdiction.”
                                         4

      On December 29, 2014, appellee filed a mechanic’s lien for $2,786,385, the

amount that appellee alleged was owed under the Prime Contract. Appellants

refused to make any of the installment payments that were due on January 31 in

2015, 2016, and 2017.



      In May of 2015, appellee and appellants both filed breach of contract claims

against the other in D.C. Superior Court.3 Trial began on February 13, 2017, and

concluded on February 28, 2017. At trial, appellee argued that appellants had

breached the Prime Contract by not permitting it to finish the contract and by

failing to pay the remaining balance owed under the contracts. Appellants argued

that appellee breached the Prime Contract by installing a defective floor4 and in



      3
          On March 23, 2015, Majestic filed a complaint against appellants and
appellee asserting claims including breach of contract for failure to pay for work
performed at the Park and to enforce a mechanic’s lien against appellants’
leasehold interest in the Park. Prior to trial, Majestic settled with appellee. On
December 10, 2015, counsel for appellee also entered their appearance on behalf of
Majestic.
      4
           Appellants presented multiple witnesses who testified to the floor’s
slippery nature. Structural engineer Kenneth Kosteva testified that the “slip
resistance provided by the installed coating did not meet the IBC [International
Building Code] requirement for a slip resistant floor system.” Donald Landin, a
certified walkway auditor safety specialist, testified that the “coated walkways had
been perceived to be excessively slippery when wet” and that he sensed “the floor
was not of high traction.” A number of lay witnesses also testified about the
slippery nature of the floor, and to having observed individuals slip, or to having
                                                                        (continued…)
                                          5

failing to honor its contractual obligations with Rust-Oleum, which resulted in a

mechanic’s lien on the Park. Appellants further argued that they could not breach

the Prime Contract for those installment payments which were not yet due, and

moved for partial judgment as a matter of law under Super. Ct. Civ. R. 50, which

the trial court denied.



      The jury found that appellants breached the Prime Contract and that appellee

was entitled to $1,991,584.40, which represented the amount remaining on the

Prime Contract after deducting a setoff of $794,803.60 to account for appellee’s

breach.5




(…continued)
slipped themselves. Conversely, appellee’s expert witness, architect Lawrence
Dinoff, testified “that the floor was reasonably safe.”
      5
         Although the jury did not specify the nature of appellee’s breach, the trial
court inferred that this breach was not based on the quality of the floor, but rather,
the failure to remove the Rust-Oleum mechanic’s lien—the amount of the set-off
was exactly equal to the sum of the $764,912 appellants paid to remove the Rust-
Oleum lien plus the $29,891.60 in clean-up costs appellants incurred as a result of
appellee’s work.
                                           6

                                          II.



      On appeal, appellants contend that the trial court abused its discretion in

precluding the testimony of two independent fact witnesses, fans Deborah Bailey

and Ann Rafael, who emailed appellants in May of 2014 about the slippery

condition of the stadium floor. Per the amended scheduling order, appellants filed

their witness list on the December 16, 2015, deadline, but did not include these

witnesses. On September 22, 2016, the parties appeared for a pretrial conference

on their original pretrial statement, which did not include these witnesses and also

failed to include the trial exhibits. After this pretrial conference, the trial court

issued a pretrial order which stated that the parties could not offer “any witness . . .

not disclosed at pretrial 6 except for purposes of impeachment” and instructed the

parties to file an “amended pretrial statement with exhibits” (emphasis added).7



      6
         Given that the trial court did not schedule an additional pretrial conference
and instead, set the case for trial, we interpret this clause as meaning “any
witness . . . not disclosed at” the September 22, 2016, pretrial conference.
      7
          The order to file an amended pretrial statement was not tantamount to an
extension of time to file witness lists and reopen discovery, but rather, an order that
the parties amend their prior submission to include exhibits. D.C. Super. Ct. Civ.
R. 16 (e)(2) requires that the parties include any objections to exhibits in their
pretrial statement, whereas (f)(2) requires the parties to bring their trial exhibits to
the pretrial conference. However, in the September 15, 2016, pretrial statement,
the parties stated their intention to file their exhibit lists within thirty days, thus
                                                                         (continued…)
                                         7

The fan witnesses were subsequently added in an amended joint pretrial statement

filed on November 1, 2016, more than seven and a half months after the close of

discovery, and almost a year after the witness lists were due. On January 12, 2017,

appellee filed a praecipe requesting a pretrial status conference, noting that

appellants had identified twenty-eight different individuals as potential witnesses,

but that they had indicated in a prior hearing that they would likely call no more

than six of these individuals. The praecipe included an email from appellee dated

January 7, 2017, in which appellee asked appellant to identify the witnesses they

intended to call, which appellee asserts was never answered.



      The parties appeared for a second pretrial conference on February 1, 2017.8

Appellants argued that appellee did not file a motion in limine seeking to exclude

the testimony of the two witnesses after the filing of the amended joint pretrial

statement on November 1, 2016.9 Appellants also argued that there was still time


(…continued)
indicating the need for additional time beyond the September 22, 2016, pretrial
conference.
      8
        The case was transferred from Judge Ross to Judge Kravitz on December
30, 2016.
      9
          Given that motions in limine were due the same day as the amended
pretrial statement, the appellants’ argument that appellee should have filed a
motion in limine (with respect to new information first appearing on the amended
                                                                    (continued…)
                                          8

prior to trial for appellee to contact these witnesses. The court set a February 9,

2017, follow-up hearing for additional arguments on this issue.



      At the February 9, 2017, hearing, appellants argued that they had previously

disclosed these witnesses by producing the fan emails in opposition to appellee’s

motion for summary judgment and that it would be unfair to exclude these

witnesses when opposing counsel became aware of their inclusion on the witness

list in November 2016.      In rebuttal, appellee argued that appellants failed to

comply with their Rule 16 disclosure obligation 10 as these witnesses were not

included on the December 16, 2015, witness list, as required by the amended

scheduling order, nor did appellants move to amend their witness list before the

discovery period closed. Appellee further argued that there was insufficient time

to conduct discovery and depositions of these witnesses prior to trial, which was

scheduled to start in less than a week.




(…continued)
pretrial statement filed that same day) indicates that no new witnesses were to be
added in the amended pretrial statement.
      10
           D.C. Super. Ct. Civ. R. 16 (b)(5)(B) states that “[n]o witness may be
called at trial, except for rebuttal or impeachment purposes” unless he or she is
identified on the witness list filed pursuant to the scheduling order.
                                          9

      “The decision whether to allow a lay witness to testify who has not been

identified as a witness in a pretrial order is within the sound discretion of the trial

court, and its decision will not be disturbed absent an abuse of discretion.”

Hechinger Co. v. Johnson, 761 A.2d 15, 23 (D.C. 2000). Here, the trial court

determined that the inclusion of these witnesses would prejudice appellee as trial

was scheduled to start in a week and appellee would not have the time it needed to

complete discovery11 for these witnesses. The trial court emphasized the purpose

of the rules “so that everything is transparent and that each side knows who the

other sides universe of possible witnesses include[s] . . . .” This transparency is

necessary to avoid “trial by ambush” so that parties cannot introduce testimony

without the opposing party having a full and fair opportunity for discovery.

Johnson v. District of Columbia, 728 A.2d 70, 76 (D.C. 1999). At the February 1,

2017, hearing, the trial court recognized that a reasonable party relies on the

witness lists and that it would “really put[] the other side at an unfair disadvantage”

to permit the addition of witnesses after discovery had closed. At the follow-up

hearing on February 9, the trial court also noted that appellants had not taken any

steps since the prior hearing “to put the plaintiff in a fair position” such as

arranging depositions and/or serving subpoenas on the witnesses’ doctors. The

      11
          Discovery could include depositions of the fans themselves, subpoenas
for medical records for any witness alleging they slipped on the floor, and
depositions of third-party medical providers/insurers and/or third-party witnesses.
                                         10

trial court further determined that, although appellants did not act in bad faith in

failing to comply with the pretrial scheduling order and deadlines, the inclusion of

these two witnesses had the potential to significantly delay the trial date and

neither side had asked for a continuance. In placing the burden of the Rule 16

violation on appellants, the trial court properly balanced the factors applicable to

its discretionary ruling. See, e.g., Weiner v. Kneller, 557 A.2d 1306, 1311-12

(D.C. 1989).12 Finally, although not explicitly discussed by the trial court pretrial,

our review of the record on appeal shows that appellants were not significantly

prejudiced by the exclusion of these witnesses as their testimony would have been

cumulative of the multiple fact witnesses who testified to the condition of the floor

and would not have helped the jury answer the central question as to whether

appellee installed a floor which failed to comply with industry standards.13 Thus,

any error would be harmless. 14


      12
           The trial court explicitly considered whether the inclusion of the
witnesses would prejudice appellee, whether the rule violation was inadvertent or
willful, and the impact of allowing the proposed testimony on the orderliness of
trial.
      13
            Moreover, appellants could have called the fan witnesses for
impeachment or rebuttal purposes if necessary during appellee’s presentation of
the evidence. D.C. Super. Ct. Civ. Rule 16 (b)(5)(B).
      14
         Appellants did not make specific arguments before the trial court as to
how the exclusion of these two witnesses would prejudice them, such as their
argument on appeal that these were their only independent corroborating witnesses.
                                         11

                                        III.



      Appellants further contend that the trial court erred in denying their motion

for judgment on appellee’s anticipatory breach of contract claim. “The Court of

Appeals will review a motion for judgment as a matter of law de novo by applying

the same standard as the trial court.” Strickland v. Pinder, 899 A.2d 770, 773

(D.C. 2006). Under Super. Ct. Civ. R. 50 (a), judgment as a matter of law is

proper “only upon a finding that a party has been fully heard” and when “there is

no legally sufficient evidentiary basis for a reasonable jury to find for that party.”

Cardenas v. Muangman, 998 A.2d 303, 306 (D.C. 2010) (internal quotation marks

omitted). “A contract is breached if a party fails to perform when performance is

due[,]” at which time the cause of action accrues “and the statute of limitations

begins to run[.]” Eastbanc, Inc. v. Georgetown Park Assocs. II, L.P., 940 A.2d

996, 1004 (D.C. 2008) (citations and internal quotation marks omitted). “[A]n

aggrieved party also may be entitled to sue prior to breach if the other party has

anticipatorily repudiated the contract.” Id. “For a repudiation of a contract by one

party to be sufficient to give the other party the right to recover for breach, the

repudiating party must have communicated, by word or conduct, unequivocally

and positively its intention not to perform.”         Order of AHEPA v. Travel

Consultants, Inc., 367 A.2d 119, 125 (D.C. 1976).
                                        12



      Appellants contend that the anticipatory breach doctrine does not apply to

unilateral contracts in which one party has completed performance and the only

remaining obligation is payment at a certain time. “A unilateral contract results

from an exchange of a promise for an act, while a bilateral contract results from an

exchange of promises.” 1 Samuel Williston & Richard A. Lord, A Treatise on the

Law of Contracts § 1.17 (4th ed. 1990). Appellants assert that the agreement with

appellee was converted to a unilateral contract “once [appellee] completed its work

and/or breached the Prime Contract[.]” The trial court, however, correctly noted

that appellee had presented evidence that appellants had prevented appellee from

completing installation of the floor. Appellants also acknowledged in their closing

argument that the work was not completed. As such, there was evidence from

which a reasonable jury could find that the contract remained bilateral and subject

to the anticipatory breach doctrine, thus justifying the trial court’s denial of

appellant’s motion for judgment on appellee’s anticipatory breach of contract

claim. Moreover, appellee’s breach could not convert the bilateral contract to a

unilateral contract. The jury found that appellee breached the Prime Contract via

their failure to pay Rust-Oleum to remove the mechanic’s lien. Because this

breach did not defeat the essential purpose of the contract, which was to install a

decorative floor in exchange for payment, this breach is properly deemed a simple
                                         13

breach that would not negate the remaining performance obligations.15 See Neely

v. White, 177 Va. 358, 367 (1941) (“But a failure of an unsubstantial part of the

consideration for a contract is not such an excuse. Such failure of the consideration

is merely a ground for an abatement of the damages.”).



                                        IV.



      Appellants also filed a fee petition seeking $659,880.25 in attorney’s fees

and $26,641.43 in costs. Under the Prime Contract, appellants are entitled to

indemnification from appellee for the following:

             [A]ll claims, actions, liabilities, damages, losses, costs
             and expenses (including attorney’s fees) arising out of or
             incidental to: (i) the performance by the Independent
             Contractor of any duties and obligations pursuant to this
             Agreement, or arising out of any negligent acts, errors
             and omissions by the Independent Contractor in the
             performance of Scope of Work under this Agreement;


      15
          Although the trial court instructed the jury on the difference between
material and simple breach, the verdict form as written only permitted the jury to
find a material breach. The verdict form should have separated out the two
possible bases upon which the jury could find appellee in breach (defective floor,
imposition of the Rust-Oleum mechanic’s lien) as the former would constitute a
material breach and the latter, a simple breach. However, although the jury
checked “yes” when asked if appellee “materially breached the Prime Contract[,]”
the amount of the setoff to compensate for appellee’s breach demonstrates that the
jury actually found a simple breach related to the imposition of the Rust-Oleum
lien. See supra note 5.
                                           14

             and/or (ii) the negligent acts or omission of the
             Independent Contractor, its employees or agents.

The trial court, however, limited the claims for fees and costs to those fees and

costs associated with defending against the Rust-Oleum lien.



      The determination of the reasonableness of attorney’s fees is within “the

sound discretion of the trial court.” Fed. Mktg. Co. v. Va. Impression Prods. Co.,

823 A.2d 513, 530 (D.C. 2003) (quoting Frazier v. Franklin Inv. Co., 468 A.2d

1338, 1341 (D.C. 1983)). In interpreting contractual provisions for attorney’s fees,

courts “normally limit such a right to the successful or prevailing party.” Fleming

v. Carroll Publ’g Co., 581 A.2d 1219, 1228 (D.C. 1990). “[W]here a plaintiff has

achieved only partial or limited success, the judge may adjust the fee to reflect the

level of success, and in that regard should consider (1) whether the plaintiff failed

to prevail on claims that were unrelated to the claims on which he succeeded, and

(2) whether the plaintiff achieved a level of success that makes the hours

reasonably expended a satisfactory basis for making a fee award.” Fred A. Smith

Mgmt. Co. v. Cerpe, 957 A.2d 907, 918 (D.C. 2008) (internal quotation marks,

citations, and alterations in original omitted).



      Appellants assert that the issues surrounding the Rust-Oleum lien were

fundamentally intertwined with the rest of the litigation and that the trial court
                                         15

erred in asking them to separate the time in their billing records related to the

lien, and in limiting their petition to only these fees.       Citing to Hensley v.

Eckerhart, 461 U.S. 424, 435 (1983), appellants contend that the court should

focus on the overall relief obtained by a party rather than just the hours an attorney

spends on the litigation. Hensley, however, actually aids appellee in stating that

“[w]here [a party] has failed to prevail on a claim that is distinct in all respects

from his successful claims, the hours spent on the unsuccessful claim should be

excluded in considering the amount of a reasonable fee.” Id. at 440. In the instant

matter, determining whether appellee breached the Prime Contract by failing to

timely pay Rust-Oleum for their materials had no relationship to the main issues of

whether the floor that appellee installed was defective, and whether appellants

anticipatorily breached the contract by indicating their intention not to make any of

the payments called for under the Prime Contract. Appellants lost on the major

issues;16 the indemnification agreement in the Prime Contract did not entitle

appellants to attorney’s fees incurred in unsuccessfully defending against claims of

their own breach.



      Accordingly, the orders on appeal are hereby affirmed.

      16
           At an April 13, 2017, hearing, the trial court acknowledged that
“[appellants] lost on all the disputed issues” and “won on one issue which really
wasn’t disputed [the Rust-Oleum lien offset] . . . .”
