Appeal from the Superior Court of the District of Columbia; (Hon. Steffan W. Graae, Trial Judge)
Before Rogers, Chief Judge, and Ferren and Farrell, Associate Judges. Opinion for the court by Associate Judge Ferren. Dissenting opinion by Chief Judge Rogers at p. 9.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge : In this home improvement contract case, plaintiff-appellant (the homeowner) seeks review of: (1) a partial directed verdict in favor of defendant-appellees (the contractor and its owner), (2) the denial of appellant's motion for an award of treble damages and attorney's fees, and (3) an order granting appellees' motion for judgment n.o.v., by which the trial court overturned a jury verdict awarding appellant damages totaling $17,900. Emphasizing this last alleged error, appellant argues that the trial court erroneously rejected her claims under the Consumer Protection Procedures Act, D.C. Code § 28-3904 (n) and (x) (1991). The trial court concluded, after verdict, that these claims had not been sufficiently identified in the pleadings. Appellant counters that they had been set forth in her pretrial statement and incorporated by reference in the pretrial order, that they were actually litigated, and thus that they were properly sent to the jury. Rejecting appellant's contentions, we affirm.
Appellees failed to complete installation of a heating and air conditioning system in appellant's house, as they had contracted to do. Appellant sued on four counts: *fn1 (1) breach of contract; (2) failure to obtain a home improvement license; (3) negligence and gross negligence; and (4) fraud. The trial court directed a verdict on the breach of contract claim on the ground that appellant had failed to present evidence on the proper measure of damages. The trial court also directed a verdict for appellees on the claim of failure to obtain a home improvement license, because licensed air conditioning mechanics are specifically exempted from the regulation requiring home improvement licenses, see 16 DCMR 899.1 (1987), and appellant presented no evidence to demonstrate that appellees were not covered by the exemption. The trial court likewise directed a verdict on the fraud count because no evidence of fraud had been presented. Appellant herself dismissed the negligence count.
During extensive Discussions in chambers after the Judge had directed the verdicts against appellant, appellees argued that the case was at an end while appellant argued that she had claims remaining -- although they had not been specifically pleaded -- under the Consumer Protection Procedures Act, D.C. Code §§ 28-3901, et seq. (1991). Appellant asserted that her remaining claims had been implied or "incorporated" in the paragraphs of her claims for breach of contract and failure to obtain a license. Specifically, appellant argued that she had implicitly pleaded violations of D.C. Code § 28-3904 (n) and (X). *fn2 The trial court decided that the interests of Justice would best be served by allowing these allegedly "implied" claims to go to the jury. *fn3 See Corley v. BP Oil Corp., 402 A.2d 1258, 1263 (D.C. 1979).
The jury returned a verdict in favor of appellant, awarding damages totaling $17,900. Appellant moved for an award of treble damages and attorneys' fees. Appellees moved for a judgment n.o.v., which the trial court granted.
Appellant claims the trial court erred in directing the verdict in appellees' favor on the breach of contract claim. Viewing the facts in the light most favorable to the non-moving party, e.g., Washington v. A & H Garcias Trash Hauling, 584 A.2d 544, 545 (D.C. 1990), the trial court concluded that appellant had presented "no evidence whatsoever" on the reasonable cost of completing the contract -- the appropriate measure of damages here. We agree.
Appellant contends that this case is controlled by Robinson v. Sarisky, 535 A.2d 901 (D.C. 1988), in which we affirmed an award of compensatory and punitive damages in the case of a wrongful eviction. She argues that appellees' abandonment of the job of installing a heating system in mid-winter rendered her home uninhabitable and amounted to constructive eviction and an intentional infliction of emotional distress. We conclude, however, as did the trial court, that such a claim was not pleaded and was not supported by the evidence. We perceive no error in the trial court's decision to grant appellees' directed verdict motion on the breach of contract claim.
The trial court granted appellees' motion for judgment n.o.v. on the ground that "not even by the most strained reading in [appellant's] favor can it be said that her Amended Complaint implicates or refers to violations of the Consumer Act." Appellant argues that her pretrial statement superceded the pleadings. See Howard v. Kerr Glass Mfg. Co., 699 F.2d 330, 333 (6th Cir. 1983) (issues presented at pretrial conference and incorporated in pretrial order supercede the pleadings). Although appellant argues that her statutory claims based on the Consumer Protection Procedures Act are contained within her pretrial statement and, thus, are within the pretrial order, we have examined both documents, as well as the pleadings, and we share the trial court's surprise. Appellant's second pretrial statement referred to the Consumer Protection Procedures Act only twice: first, in her request for treble damages pursuant to D.C. Code § 28-3905 (k) (1) and, second, in Paragraph 10, requesting that the court judicially notice numerous statutes and regulations, among which was "D.C. Code §§ 28-3900, et seq. " . Appellant never made specific reference in the pleadings or in the pretrial statement to § 28-3904 (n) and (x), the statutory provisions on which the jury's verdict was allegedly based. This scattershot approach at pretrial, where only one provision of a statute is specified and the rest of the statute in general is mentioned, without any focus on what the pleader expects the opponent to defend under the balance of the statute, will simply not do. A defendant is entitled to more notice than that.
"'The purpose of the pretrial conference is to define the claims and defenses of the parties in order to narrow the issues, eliminate unnecessary proof and lessen the opportunity for surprise thereby expediting the trial.'" Daniels v. Beeks, 532 A.2d 125, 128 (D.C. 1987) (emphasis added) (quoting Redding v. Capitol Cab Co., 284 A.2d 54, 55 (D.C. 1971)). See also Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1529 (11th Cir. 1989) ("The purpose of the pretrial order is to narrowly outline the existing issues.") In Taylor v. Washington Hosp. Center, 407 A.2d 585 (D.C. 1979), cert. denied, 446 U.S. 921,100 S.Ct. 1857,64 L.Ed.2d 275 (1980), we affirmed the trial court's denial of plaintiff's motion to modify the pretrial order so as to raise a new theory of negligence against a new defendant. We emphasized that pretrial procedures are designed to remove cases from the realm of surprise. See id. at 592. The trial court may reject an attempt to pursue an issue not listed in the pretrial order. See 6A C. WRIGHT, A. MILLER & M.K. KANE, FEDERAL PRACTICE AND PROCEDURE § 1527 at 271 (1990); see also District of Columbia v. Sterling, 578 A.2d 1163, 1167 (D.C. 1990) (trial court had discretion to refuse to permit District to present a defense not adequately identified in pretrial statement). Furthermore, the trial court may refuse to give an instruction on an issue not embodied in the pretrial order. See 6A WRIGHT, MILLER & KANE § 1527 at 279. We conclude that because the trial court has the discretion to refuse an instruction or to prohibit testimony on an issue not defined in the pretrial order, the court may cure the situation, after having allowed such an issue to go to the jury, by entering a judgment n.o.v. *fn4
Issues not raised by the pleadings may still be adjudicated if those issues are actually tried by the parties by express or implied consent. See Sup. Ct. Civ. R. 15 (b). We have determined the standard for assessing whether issues have been actually litigated:
Whether parties have impliedly contested a matter - i.e., whether parties recognize that an issue not stated by the pleadings entered the case - is determined by searching the trial record for indications that the party contesting the amendment received actual notice of the injection of the unpleaded matters, as well as an adequate opportunity to litigate such matters and to cure any surprise from their introduction.
Moore v. Moore, 391 A.2d 762, 768 (D.C. 1978) (citations omitted). Here, the trial court acknowledged both its own and appellees' surprise at appellant's assertion that she had pled and litigated claims pursuant to D.C. Code § 28-3904 (n) and (x). An examination of the record reveals that the claims were not actually litigated by the parties. *fn5 No testimony, either lay or expert, was directed at violations of those provisions of the Consumer Protection Procedures Act on which the case allegedly went to the jury: § 28-3904 (n) and (x). The jury was not instructed on the law in reference to D.C. Code § 28-3904 (n) or (x), and neither party objected to the instructions as given. *fn6 Nor did the verdict form require the jury to determine affirmatively that the defendant had ceased work in violation of the contract (see § 28-3904 (n)) or sold consumer goods in violation of §§ 28:2-312 through 2-318 or of any federal law (see § 28-3904 (x)). Rather, the verdict form reflected only the jury's determination that Mrs. Adams did not force appellee to abandon the job -- a finding which, contrary to appellant's contention, did not in itself necessarily reflect a violation of § 28-3904 (n). *fn7
Because appellees did not receive, either before or during trial, timely notice that the specific Consumer Protection Procedures Act claims now cited as bases of the verdict were being litigated, they would in effect have been deprived of their "day in court" as to these claims if the trial court had allowed the jury verdict to stand. Moore, 391 A.2d ...