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11/18/93 PETER ESPENSCHIED v. RAJ MALLICK

November 18, 1993

PETER ESPENSCHIED, APPELLANT
v.
RAJ MALLICK, ET AL, APPELLEES



Appeals from the Superior Court of the District of Columbia; (Hon. Rufus G. King III, Trial Judge), (Hon. Colleen Kollar-Kotelly, Trial Judge)

Before Rogers, Chief Judge, Farrell, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor

PRYOR, Senior Judge: This appeal arises from the Superior Court's grant of summary judgment in favor of appellees, Raj and Theodora Mallick, in their action for possession of real property against appellant, Peter Espenschied. Appellant contends that the trial court erred (1) by denying appellant's motion to quash service of process, and (2) by failing to consider appellee's claim of retaliatory eviction. *fn1 We affirm.

Appellant was a commercial tenant operating a bookstore in a mixed-use building owned and managed by appellees, located at 2603 Connecticut Avenue, N.W., Washington, D.C. Appellant's lease expired on December 31, 1989, and specifically permitted "the Lessor re-enter and repossess the said land and premises without notice or demand thereof." *fn2 At the expiration of his lease term, appellant was notified that his monthly rental payments would increase from $656.25 to $1200. Appellant's refusal to pay the increase prompted this litigation and his subsequent eviction. *fn3

I.

The facts, as credited by the trial court during a hearing on appellant's motion to quash service of process, indicate that on April 27, 1990, Mr. Joseph Green, a process server with more than twelve years of experience, went to the premises to serve appellant with the summons and complaint for possession. After being informed that appellant was in Florida and that Mr. Hitchcock, appellant's employee, was authorized to receive service, he left the summons and complaint with Mr. Hitchcock.

D.C. Code § 16-1502 (1990) provides: "If the defendant has left the District of Columbia, or cannot be found, the summons may be served by delivering a copy thereof to the tenant, or by leaving a copy with some person above the age of sixteen years residing on or in possession of the premises sought to be recovered." The trial court did not err in finding that appellees' service of process complied with the statute and, accordingly, we find no error. *fn4 See Alexander v. Polinger Co., 496 A.2d 267, 269-70 (D.C. 1985); Parker v. Frank Emmet Real Estate, 451 A.2d 62 (D.C. 1982).

II.

Appellant's second contention is that, by granting summary judgment to appellees, the trial court improvidently failed to consider the applicability of a retaliatory eviction defense to commercial leases. Appellant asserts that, by dramatically raising his rent, appellees were retaliating because of

"(1) [appellant's] assistance to the Perry family, residential tenants in the building until about 1985, in their successful defense against the in this Court, (2) [appellant's] assistance to the Shah family, residential tenants in the building until 1988, in pursuing housing violation complaints, (3) [appellant's] own follow-up of the Shahs' complaints, which resulted in orders from the housing inspector to repair the main entrance stairway. . ., and (4) [appellant's] own numerous written and oral complaints about damage and deficiencies in the building structure. . . ." *fn5

Conceding that "the D.C. Housing Code and D.C. Code Section 45-2552 only create an explicit retaliatory eviction defense in residential tenancy cases," appellant propounds "an implied, common law retaliatory eviction defense" under Edwards v. Habib, 130 U.S. App. D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 21 L. Ed. 2d 560, 89 S. Ct. 618 (1969), which, he argues, "should be extended to commercial tenancies in this jurisdiction."

In Edwards, the landlord commenced eviction proceedings against a month-to-month tenant after her complaint to housing authorities led to the discovery of more than forty sanitary code violations. The United States Court of Appeals for the District of Columbia overturned the ruling in the landlord's favor and held that a tenant could offer evidence of the landlord's retaliation or other improper motive as a defense to the possessory action. Reasoning that "to permit retaliatory evictions, then, would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington[,]" id. 130 U.S. App. at 139-140, 397 F.2d at 700-701, the court held that although the landlord could evict for any legal reason or for no reason at all, Congress, in providing jurisdiction over possessory actions, did not intend to permit evictions in retaliation for a tenant's report of housing code violations to authorities. In short, "the underlying rationale of the decision is that the Housing Regulations in this jurisdiction were promulgated at the explicit direction of Congress; their purpose is to secure safe and sanitary housing for the housing dwellers; effective implementation of these regulations depends in part on the private reporting of violations; . . . to permit evictions would undercut the effectiveness of the housing code." Golphin v. Park Monroe Assocs., 353 A.2d 314, 317 (D.C. 1976) (footnote and citation omitted). See R. SCHOSHINSKI, AMERICAN LAW OF LANDLORD & TENANT §§ 12:2, at 721 (1980).

Since Edwards, many states have protected tenant rights either by promulgating statutes which provides protection for tenancy-related activities, *fn6 by directly applying the Edwards rationale, *fn7 or by implying such rights from the tenant's right of habitability. *fn8 In light of appellant's concession that the statutory scheme proscribing retaliatory conduct is limited to the residential sector, *fn9 ...


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