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03/28/91 HOWARD BERNSTEIN AND MAXINE BERNSTEIN v.

March 28, 1991

HOWARD BERNSTEIN AND MAXINE BERNSTEIN, T/A H & M ENTERPRISES, APPELLANTS,
v.
DAYSI P. FERNANDEZ, APPELLEE. DAYSI P. FERNANDEZ, APPELLANT, V. HOWARD BERNSTEIN AND MAXINE BERNSTEIN, T/A H & M ENTERPRISES, APPELLEES



Appeals from the Superior Court of the District of Columbia; Hon. Shellie F. Bowers, Trial Judge. Previously Reported at: Rogers, Chief Judge,* and Belson and Terry, Associate Judges. Opinion for the court by Associate Judge Terry. Concurring opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Terry

Daysi Fernandez sued her landlords, Howard and Maxine Bernstein, trading as H & M Enterprises (H & M), because of leaking and falling ceilings that were frequently torn down and repaired, but always leaked and crumbled anew, and because of rodent infestation that was never eliminated, although traps and poison did kill some rodents. Fernandez sought compensatory damages for breach of a settlement agreement and consent order (in which H & M had agreed to correct the ceiling and rodent problems, among numerous others), breach of implied warranty of habitability, nuisance, and intentional infliction of emotional distress, as well as punitive damages on all four claims. After a seven-day trial, the jury found for Fernandez on every claim, but the trial court granted a judgment notwithstanding the verdict on the emotional distress claim and set aside its compensatory and punitive damage awards. We hold that the trial court correctly granted this judgment n.o.v. In addition, however, we hold that it should have directed a verdict for H & M on the nuisance claim, and should also have set aside the other punitive damage awards because punitive damages are not available for contract-based claims. We therefore affirm the judgment in part and reverse it in part.

I. FACTUAL BACKGROUND

In October 1977 Mrs. Fernandez moved into a ground-floor apartment at 2633 Adams Mill Road, N.W., a four-story, multi-unit building, with her husband, aunt, and uncle. Some time thereafter she had a child, and in November 1982 her three children from El Salvador began living there as well, joined by a foster child who arrived in 1986. The record does not reveal what became of the husband, aunt, and uncle, but Mrs. Fernandez testified that from November 1982 onward only she and the children lived in the apartment.

Fernandez's dispute with her landlord began early in 1981. After January 31, 1981, she began to withhold her rent because of defects in the apartment, and in response H & M filed a suit for possession in the Landlord and Tenant Branch of the Superior Court. This suit was resolved by a settlement agreement which provided that H & M would make various repairs by May 31, 1982, whereupon rent payments deposited in the court registry would be divided and disbursed to the parties. The agreement also provided that, if the repairs were not made, the rent would be reduced by twenty percent. The settlement agreement covered a period of slightly more than one year, from May 5, 1982, through May 30, 1983.

In August 1982 Mrs. Fernandez went back to court, alleging that H & M had not fulfilled its part of the settlement agreement, in that it had not made some of the agreed-upon repairs and had performed others in a less-than-workmanlike manner. In a consent order dated August 12, H & M agreed that it would complete the repairs by August 31, and that if Fernandez had to return to court to enforce the order, she would be entitled to reasonable attorney's fees.

In November 1983 Mrs. Fernandez filed a civil action against H & M, alleging inter alia that she had been injured when part of the kitchen ceiling in her apartment fell on her head. The complaint in that case recited some of the past history of defects in the apartment and H & M's failure to repair them satisfactorily. Fernandez's personal injury claims were promptly settled, but the settlement agreement expressly did not resolve any of her "non-personal injury claims in [the landlord-tenant case]."

In June 1984 Fernandez filed a second civil action - the instant case - against H & M for breach of implied warranty of habitability, breach of the May 1982 settlement agreement and the August 1982 consent order, nuisance, intentional infliction of emotional distress, and specific performance of the lease agreement (the specific performance count was later voluntarily dismissed). Shortly before the case came to trial, H & M filed a motion in limine to limit Fernandez's proof to events occurring after the November 1983 settlement and to foreclose litigation about events occurring after the filing of her complaint in June 1984. The court denied the motion.

At trial Mrs. Fernandez testified that the bathroom ceiling continually leaked, and that the ceilings in other rooms leaked intermittently; they were replastered several times, but the repairs did not last. She also told of the repeated presence of dead rats and mice in the kitchen, which caused her to avoid the kitchen entirely, sometimes made her sick to her stomach, and - when she was able to sleep at all - gave her nightmares. Roaches also were a serious problem. In addition, Fernandez testified about other disruptive repairs; for example, a gas leak required tearing out the kitchen ceiling, and new floors had to be installed. During her testimony Mrs. Fernandez often referred to a large number of photographs, which were admitted into evidence, sometimes individually, sometimes in groups. On cross-examination she acknowledged that some of the photographs depicted repairs in progress, such as ceilings torn out in order to be rebuilt, but she added that some of the repairs took a long time to complete (in one instance as long as six weeks), and that in the meantime she had to live amid the mess and the debris.

Mrs. Fernandez's testimony was corroborated by two of her neighbors, Diana White and Joseph Randolph. They both testified that they had been frequent visitors in the Fernandez apartment and had seen the falling ceilings and the generally deplorable conditions. Mrs. White also made reference to the roaches and "the time the mouse ran across the floor" while she was there.

Counsel for H & M then moved for directed verdicts on all the claims. The court denied the motion except with respect to the emotional distress claim and its accompanying request for punitive damages; as to those, it reserved its ruling.

In defense H & M called five repairmen, who testified about their various repairs of the leaking and falling ceilings in the Fernandez apartment. The testimony of the repairmen reinforced H & M's contention that many of the photographs introduced by Fernandez depicted repairs in progress. The repairmen stated that the leaking in the ceilings was principally caused by tenants upstairs who showered by pouring buckets of water over themselves, splashing it all over the floor, and by overflow from a stopped-up sink. One repairman, Horace Johnson, testified that the wooden slabs in the bathroom ceiling were rotten and produced a very bad smell. Another, Malcolm Wells, said he had repaired a drainpipe that was leaking into the Fernandez apartment. Wells and other witnesses testified that Mrs. Fernandez kept the apartment in an unsanitary condition, with dirty dishes in the sink, trash scattered about, and pots and pans - many of them containing food - at various places throughout the kitchen. The resident manager, Daniel Staten, said that the apartment was "very dirty" and that he frequently saw food in uncovered pots and dishes in the kitchen, where they would attract roaches and rodents. He stated that when Mrs. Fernandez asked him how she could get rid of all the rats and mice, he told her that she would "have to move some pots and food out of the way and put in a safe place." Mr. Staten's testimony, like that of Mrs. Fernandez, was supported by photographs, which were introduced into evidence.

Two housing inspectors, Roger Lovett and Catherine Booth, also testified for H & M. On one visit Lovett saw that the bathroom ceiling was wet, with "missing parts" and peeling paint, and noticed the odor of a dead rat behind a kitchen wall. When he returned, however, he found that the ceiling had been replastered; there were also rodent traps out, and the rodent odor was gone. The first visit was on June 29, 1984; reinspection on July 9, ten days later, showed all problems resolved except the rodents. On July 24 he found traps placed here and there in the apartment, showing "abatement" of the rodent problem. An inspection on October 29, 1984, again revealed damp ceilings, dead rodent odor, and rodent droppings, but these problems had disappeared when he returned for a reinspection on November 2.

Booth's testimony was similar to Lovett's. She said that she found several violations between February 1984 and March 1985 in the bedrooms, bathroom, living room, and kitchen. They were all eventually abated, but when she inspected the apartment again on March 2, 1985, she found that many of them had recurred. Some of them were still present when she made her last inspection in April 1985.

The jury returned a verdict for Mrs. Fernandez on all counts, awarding her a twenty percent abatement of rent, the remedy provided in the settlement agreement, for the period governed by that agreement ($464.40); a complete return of rent for the remaining months ($10,578); $45,000 in damages for nuisance; $40,000 for emotional distress; and $50,000 in punitive damages on each of the four counts ($200,000 altogether in punitive damages). The total award was $296,042.40. *fn1 The court later granted a judgment n.o.v. on the emotional distress claim and set aside both the compensatory and punitive damage awards on that claim. In a subsequent order the court directed Mrs. Fernandez to accept a remittitur ...


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