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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 ...

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