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02/25/92 ELLEN DE SZUNYOGH v. WILLIAM C. SMITH &

February 25, 1992

ELLEN DE SZUNYOGH, APPELLANT
v.
WILLIAM C. SMITH & COMPANY, INC., APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Susan Holmes Winfield, Trial Judge)

Before Ferren and King, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor

PRYOR, Senior Judge: Appellee Atlantic Realty, Inc. *fn1 initiated an action for possession of Apartment #304, Park Crest Building, 2070 Belmont Street, N.W., leased to appellant Ellen De Szunyogh. After a jury trial had begun, the court granted appellee's motion for directed verdict based on appellant's admitted breach of her lease agreement. Appellant was not permitted to present a defense of retaliatory eviction. The court then entered judgment for possession in favor of appellee. Soon thereafter, the trial court granted appellant's motion for a stay of execution of the judgment, thus permitting appellate review of the proper scope of Wahl v. Watkis, 491 A.2d 477 (D.C. 1985). Specifically, appellant appeals on two grounds: (1) the trial court erred in granting appellee's motion for directed verdict, and (2) appellant is entitled to present a defense of retaliatory eviction. We reverse.

Appellant entered into a lease agreement with appellee's predecessor in interest, Atlantic Realty Co., Inc., for the rental of a one bedroom apartment. Appellant, an elderly widow, stored a substantial accumulation of personal possessions in the apartment for lack of other storage space. *fn2 In response to what she perceived as a lack of security in the building, appellant periodically replaced the locks on her door, and refused to provide appellee with duplicate keys to the new locks. Appellant testified that her possessions had been damaged and stolen, allegedly by maintenance persons who entered the apartment while appellant was not present. On one occasion, she stated that a maintenance man entered the apartment with a key provided by appellee while appellant was bathing.

In the summer of 1986, appellant testified that her apartment was in need of repair. Appellant claimed that the air conditioning unit malfunctioned, leaked, and caused water damage to her clothing, carpeting and floors. At one point, the toilet was inoperable. Appellant stated that repair work on the air conditioning unit left a gaping hole in the apartment's ceiling, and repairs on the ceiling left appellant without use of her bathtub for several weeks. Admitted into evidence were letters from appellant to appellee *fn3 complaining about the condition of the apartment.

Appellee served a "Notice to Cure Violation of Tenancy or Vacate" to appellant in December 1986. The notice was posted on appellant's door on December 15, 1986. *fn4 The notice was sent to appellant by certified mail, the receipt for which appellant signed on December 26, 1986. In its notice, appellee indicated that appellant violated the terms and conditions of tenancy by allowing hazardous material to accumulate, failing to provide the landlord with a duplicate key, and failing to provide access to her apartment. Appellant failed to cure the violations as the notice specified within the thirty-day period required by law. *fn5

Appellee sought possession of the premises on two grounds: appellant's failure to provide duplicate keys to the premises, *fn6 and the accumulation of hazardous materials within the apartment. *fn7 Appellant challenged appellee's action for possession on the ground that, in spite of appellant's violation of her lease, appellant's actions were justified given unauthorized entries, broken locks, and damage to her personal property. Relying on appellant's conceded refusal to provide appellee with duplicate keys to the premises, the trial court granted appellee's motion for directed verdict *fn8 and entered judgment for appellee. *fn9

The trial court's refusal to permit appellant to present a defense of retaliation was based upon its reading of Wahl v. Watkis, supra. Housing providers cannot take retaliatory action against a tenant who exercises rights conferred by law. D.C. Code § 45-2552 (a) (1990). In determining whether an action taken by a housing provider against a tenant is retaliatory action,

the trier of fact shall presume retaliatory action has been taken, and shall enter judgment in the tenant's favor unless the housing provider comes forward with clear and convincing evidence to rebut this presumption, if within the 6 months preceding the housing provider's action, the tenant:

(1) Has made a witnessed oral or written request to the housing provider to make repairs which are necessary to bring the housing accommodation or rental unit into compliance with the housing regulations;

(2) Contacted appropriate officials of the District government, either orally in the presence of a witness or in writing, concerning existing violations of the housing regulations in the rental unit the tenant occupies or pertaining to the housing accommodation in which the rental unit is located, or reported to the officials suspected violations which, if confirmed, would render the rental unit or housing accommodation in noncompliance with the housing regulations;

(3) Legally withheld all or part of the tenant's rent after having given a reasonable notice to the housing provider, either orally in the presence of a witness or in writing, of a violation of the housing regulations;

(4) Organized, been a member of, or been involved in any lawful activities pertaining to a tenant organization;

(5) Made an effort to secure or enforce any of the tenant's rights under the tenant's lease or contract ...


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