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January 17, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. William C. Gardner, Trial Judge)

Before Terry and Steadman, Associates Judges, and Newman, Senior Judge.

The opinion of the court was delivered by: Steadman

STEADMAN, Associates Judge: In this case, a tenant of mixed residential/commercial premises *fn1 sought to recover damages against her landlord on several disparate tort theories, including wrongful eviction, constructive eviction, intentional infliction of emotional distress, and abuse of process. *fn2 The trial court granted summary judgment in favor of the landlord on all these counts, and the tenant appeals. We agree with the trial court that the undisputed facts in this case, involving a fairly unremarkable lease disagreement, could not support liability under any of these tort theories. Accordingly, we affirm.


As the tenant acknowledges, the relevant facts to the summary judgment issue are "not disputed." The lease, dated August 20, 1983, to commence on October 1, 1983, for a three-year term, covered the two upper floors of a house on MacArthur Boulevard. In addition, the lease gave the tenant an "option to add basement after one year" for an additional $300 per month "on or after September 1, 1984." *fn3

The landlord on December 1, 1984, rented the basement to a third person for two years at a monthly rental of $600. *fn4 By letter of August 27, 1985, the tenant attempted to exercise the option in her lease. In a reply letter two days later, the landlord gave the tenant a notice to quit, "because of a failure to pay rent timely, and for other reasons." *fn5 On November 8, 1985, the landlord filed a complaint for possession to recover the premises. The tenant filed an answer setting forth her defenses and denying the landlord's right to possession. About February 28, 1986, with the action still pending, the tenant vacated the premises.

On February 27, 1987, the tenant filed a six-count action against the landlord alleging breach of contract, wrongful eviction, constructive eviction, intentional infliction of emotional distress, malicious prosecution, and abuse of process, and seeking compensatory damages of $1,325,000 and punitive damages of $3,800,000. After filing an answer and counterclaim, *fn6 the landlord moved for summary judgment on all counts. The motion was granted as to all counts except that alleging breach of contract. Subsequently, the parties by stipulation dismissed the contract count and the counterclaim. *fn7 An appeal of the grant of summary judgment on the remaining counts was thereupon taken by the tenant and is now before us for decision.


On appeal, the tenant challenges the summary judgment with respect to the eviction counts, the count for intentional infliction of mental distress, and the count for abuse of process. *fn8 We review under the familiar standard that summary judgment is to be granted only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Super Ct. Civ. R. 56(c); Hill v. White, 589 A.2d 918, 920-21 (D.C. 1991).


The tenant's major attack on appeal is to the dismissal of the constructive eviction count. It is not disputed that the tenant herself made the decision to leave the premises in February 1986. However, she argues, a constructive eviction occurs where the tenant "abandons the premises in consequence of an act or omission of the landlord . . . which deprives the tenant of possession of part or all of the leased property." Rittenberg v. Donohoe Constr. Co., 426 A.2d 338, 342 (D.C. 1981). See also, e.g., International Comm'n on English v. Schwartz, 573 A.2d 1303, 1305 (D.C. 1990). Constructive eviction, like actual eviction, is a violation of the covenant of quiet enjoyment implied in leases. Weisman v. Middleton, 390 A.2d 996, 1001 (D.C. 1978). *fn9 Here, the alleged evictive acts of the landlord were, first, the issuance of the notice to quit and institution of the suit for possession, and, second, the refusal to allow the tenant to take possession of the basement space to which the lease option applied.

We do not think that either of these acts fairly falls within the doctrine of constructive eviction as the basis for an independent action apart from breach of contract. The tenant never in fact had possession of the basement space, and hence there was never any possession of the tenant upon which any sort of "eviction" could operate. *fn10 The dispute was simply over the true meaning of the option provision of the contract. Likewise, the institution of the suit in no way affected the tenant's actual existing possession of the property. These same considerations are fatal to plaintiff's action for wrongful eviction. Both concepts deal with acts of the landlord which have an immediate actual impact upon the tenant's existing use of the premises. They are in the modern legal framework ill-suited to disputes over the meaning of contractual language, for whose peaceful resolution only the procedures of the court system are invoked. *fn11

In Parker v. Stein, 557 A.2d 1319, 1322 (D.C. 1989), we manifested this understanding of the nature of the eviction tort. There, the landlord, without notice, removed all of the tenant's worldly possessions from his apartment and sent them away as trash in a garbage truck. We noted that thus the case "was similar in principle to wrongful eviction" and cited the earlier holding of Robinson v. Sarisky, 535 A.2d 901, 905 (D.C. 1988). *fn12 In Robinson, the purchaser at a tax sale had repeatedly boarded up and changed the locks of the property, despite notification from the plaintiff that he was lawfully living in the premises. And in Weisman v. Middleton, supra, we specifically held that the landlord's suit for possession was not itself a breach of the tenant's quiet enjoyment since she remained in possession of the apartment in question. 390 A.2d at 1001 ("The covenant is not broken unless there is an eviction from, or some actual disturbance in, the possession by the landlord," quoting from Hyde v. Brandler, 118 A.2d 398, 399-400 (D.C. 1955)).

This is not to say that the landlord's actions would not be relevant to a determination in an action for breach of contract whether the tenant had the right to declare that the lease as a contract was no longer in effect and thus leave the premises. In this regard, however, normal contractual principles of rescission and damages would control. Over twenty years ago, it was observed by our sister federal court, in a decision controlling in our jurisprudence, *fn13 that "courts have been gradually introducing more modern concepts of contract law in interpreting leases. . . . In our judgment, the trend toward treating leases as contracts is wise and well considered. Our holding in this case reflects a belief that leases of urban dwelling units should be interpreted and construed like any other contract." Javins v. First Nat'l Realty Corp., 138 App. D.C. 369, 373, 428 F.2d 1071, 1075 (1970). We ourselves have likewise stated that "the substantive rules of contract law govern (in a lease dispute), for we have recognized that leases of urban dwelling units are to be construed as any other contract." Management Partnership, Inc. v. Crumlin, 423 A.2d 939, 941 (D.C. 1980). We have no occasion to determine precisely what contract damages might apply here, the parties having stipulated with respect to that count.

In sum, reliance on the orderly processes of law to resolve a leasehold dispute need not, and should not, in itself provide the basis for a discrete cause of action in eviction. To the extent that such processes are misused, the other traditional forms of redress for such situations are as open to parties to a lease as to any other person aggrieved by such misuse. We thus turn to the tenant's remaining claims.


With respect to the count for intentional infliction of emotional distress, the tenant rightly acknowledges that her burden is high. As we have said, liability "has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982), quoting RESTATEMENT (SECOND) OF TORTS § 46, comment d at 73 (1965); see also Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980) (acts giving rise to liability must be both "beyond all the bounds of decency" and "without just cause or excuse") (citation omitted); District of Columbia v. Thompson, 570 A.2d 277, 290 (D.C. 1990).

Here, the tenant asserts as the basis for recovery the fact that the landlord sought to evict her without justification when she attempted to exercise the option and that he continued his suit for possession even after he had no right to do so. In both instances, however, the landlord took no overt acts of self-help but, on the contrary, resorted to legal processes. Thus, this case markedly differs from the facts, described above, of Parker v. Stein, supra, and Robinson v. Sarsky, supra, relied on by the tenant. These cases bear no resemblance to that presented here. The trial court did not err in concluding that the facts relied upon could not meet the requisite standard for recovery on a theory of intentional infliction of emotional distress.


Finally, the tenant challenges the summary judgment on the count of abuse of process. That tort lies where the legal system "has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be required to do." Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980), quoting from Jacobson v. Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (D.C. 1967).

The tenant asserts that this cause of action is not dependent upon the invalidity of the action brought by the landlord, and thus lies even if the landlord was rightfully entitled to possession. *fn14 She asserts that the landlord brought the suit for possession in an effort to have her withdraw her option for the basement.

In Morowitz itself, we set forth our cautious approach in defining the scope of those torts based on the institution of litigation. We said:

It is the announced policy of this jurisdiction to allow unfettered access to our courts. In an effort to avoid infringing upon the right of the public to utilize our courts, we are cautious not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues. We are likewise cognizant of our obligations to protect the innocent against frivolous litigation and to make victims of groundless lawsuits whole where they suffer special injury as the result of the suit. Predictably our decisions have evolved in response to these competing interests.

423 A.2d at 197-98. In that case, two physicians had filed a suit against a patient in small claims court for payment of an outstanding medical bill. The patient, through counsel, responded with a counterclaim for malpractice. The trial court dismissed the physicians' subsequent suit against the patient's counsel for abuse of process, malicious prosecution, and professional negligence. In affirming, we invoked our rule that to recover for malicious prosecution, the plaintiff must show "special damages," beyond injuries normally incident to the service of process on anyone involved in a civil suit. We noted that our case reaffirming this minority rule had opted to do so "in the belief that it best promotes this jurisdiction's policy of encouraging free access to the courts." Id. at 198, citing Ammerman v. Newman, 384 A.2d 637 (D.C. 1978).

With respect to the physicians' cause of action for abuse of process, we noted that the issuance of litigation was not actionable, "no matter what ulterior motive may have prompted it." 423 A.2d at 198. Rather, in addition to ulterior motive, there must have been a "perversion of the judicial process and achievement of some end not contemplated in the regular prosecution of the charge." Id. Thus, the fact that the patient filed the malpractice counterclaim with the ulterior motive of coercing settlement was insufficient to bottom liability, where there was no showing that the process was, in fact, used to accomplish an end not regularly or legally obtainable.

This holding is controlling here. With respect to the abuse of process claim, the complaint alleges no more than that "the complaint for possession filed by the defendant was meant to deprive the plaintiffs of their right to exercise their option to rent the basement apartment." However, Morowitz establishes that the institution of litigation in itself is insufficient, and, as in Morowitz, the trial court was directed to nothing further upon which to bottom the abuse of process action.

Accordingly, the order of the trial court granting summary judgment in favor of the appellee must be


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