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Columbus Properties, Inc. v. O'Connell

July 7, 1994


Appeal from the Superior Court of the District of Columbia; (Hon. Arthur L. Burnett, Sr., Trial Judge)

Before Ferren* and Terry, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Gallagher

GALLAGHER, Senior Judge: Appellant, lessor of a commercial office building, appeals from the jury verdict and the trial court's denial of its motion for judgment notwithstanding the verdict in favor of appellee, a lessee who brought a breach of contract action against appellant due to deficiencies in the leased premises. Appellant contends that (1) expert testimony was required in order to establish the value of appellee's damages, and that (2) appellee failed to introduce evidence with respect to the valuation of her damages. Finding no error, we affirm.


In April of 1983, appellee Marjorie A. O'Connell, an attorney in search of office space for her practice, entered into a ten-year commercial lease agreement with 1710 Rhode Island Avenue Associates, a limited partnership. Pursuant to this agreement, O'Connell leased a full-floor suite on the sixth floor of an office building located at 1710 Rhode Island Avenue, Northwest, in the District of Columbia. In the following year, O'Connell expanded her law offices and entered into a second lease for a full-floor suite on the seventh floor of the same building. The term of the second lease was for approximately eight and one-half years, commencing on December 1, 1984. Both leases were on identical forms in which O'Connell agreed to pay a base rent *fn1 as well as a proportionate share of any increases in the operating expenses for the building during the lease terms. In 1989, appellant Columbus Properties, Inc. ("Columbus Properties") purchased the office building from 1710 Rhode Island Avenue Associates. Shortly thereafter, O'Connell made numerous complaints to Columbus Properties through its managing agent *fn2 concerning the building's plumbing problems and the general decline of the building services. As a result of these deteriorating conditions and services, O'Connell filed an action alleging that Columbus Properties breached the lease agreement as of April 1989.

During her testimony at trial, O'Connell described the defective conditions in the common areas of the building and the deficient building services which had ultimately led her to vacate the premises in November of 1992. O'Connell testified that these problems included water flooding in the restrooms due to broken commodes, *fn3 broken amenities in the restrooms, *fn4 burned out light bulbs in the restrooms, elevator breakdowns, security door malfunctions, and a defective central heating and air conditioning system. O'Connell further recalled that on December 31, 1991, the computers in her sixth-floor office were short-circuited as a result of water flooding from the seventh and eighth floors. *fn5 In addition to these problems, O'Connell testified that her offices were not provided daily cleaning service, as required under the lease, and that an odious stench had permeated the hallways as a result of the flooding in the restrooms. Based on her own opinion, O'Connell testified that her ability to use her office had decreased between thirty-three and fifty percent due to these defective conditions in the building.

At the end of the evidence, Columbus Properties moved for a directed verdict on grounds that O'Connell neither offered expert testimony as to the valuation of her damages nor any evidence from which a jury could properly assess her claim for damages. The trial court denied the motion for directed verdict and submitted the case to the jury. The jury found in favor of O'Connell and awarded her an abatement in rent of $1,875.00 per month for the sixth-floor suite, and an abatement of $1,687.00 per month for the seventh-floor suite during the period of January 1992 through October 1992. The jury did not award O'Connell any damages for the period of April 1989 through December 1991. Relying upon the same grounds as in its motion for a directed verdict, Columbus Properties filed a motion for judgment notwithstanding the verdict. The trial court denied this motion. In its order, the trial court ruled that O'Connell was not obligated to offer expert testimony to establish her damages. The trial court also noted that the deficiencies in the instant case were of the same type that ordinary people experience in residential leases and that the jury's award was supported by O'Connell's testimony. Columbus Properties filed a timely appeal.


We first address whether O'Connell was required to provide expert testimony on the valuation of her damages. It is well accepted in this jurisdiction that "expert testimony is required . . . when the subject matter at issue is 'so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman.'" Washington Metro. Area Transit Auth. v. Davis, 606 A.2d 165, 170 (D.C. 1992) (quoting District of Columbia v. Davis, 386 A.2d 1195, 1200 (D.C. 1978)). See, e.g., Garvey v. O'Donoghue, 530 A.2d 1141, 1146 (D.C. 1987); Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 727 n.17 (D.C. 1985); District of Columbia v. White, 442 A.2d 159, 164 (D.C. 1982); District of Columbia v. Barriteau, 399 A.2d 563, 568-69 (D.C. 1979). In this case, O'Connell testified that pursuant to the lease agreement, Columbus Properties was responsible for the building's utilities, maintenance and cleaning services. She further testified that despite these lease obligations, there was a continuing problem with the elevators, the plumbing in the restrooms, and the lighting in the restrooms. Based upon these and other deficiencies in the building, O'Connell opined that her use of the leased office space diminished between thirty-three and fifty percent.

Under these circumstances, the subject matter of O'Connell's claim was not such that it can be said to be beyond the ken of the average juror. Washington Metro. Area Transit Auth., supra, 606 A.2d at 170. "The causes of action that require expert testimony are 'rare.'" Payne, supra, 486 A.2d at 727 n.17 (citing Salem v. United States Lines Co., 370 U.S. 31, 35, 8 L. Ed. 2d 313, 82 S. Ct. 1119 (1962) (emphasis in original)); see, e.g., Garvey, supra, 530 A.2d at 1146. See also Barriteau, supra, 399 A.2d at 568 ("not every element of damages warrants the use of expert testimony, and the decision to admit expert testimony lies within the sound discretion of the trial court"); Gerber v. Columbia Palace Corp., 183 A.2d 398, 399-400 (D.C. 1962); cf . Hartford Accident & Indem. Co. v. Dikomey Mfg. Jewelers, Inc., 409 A.2d 1076, 1079 (D.C. 1979) ("Generally, 'market value is not a question of science and skill upon which experts alone may give an opinion.'") (quoting ROGERS, THE LAW OF EXPERT TESTIMONY § 26, at 34 (3d ed. 1941)). While expert testimony may have been helpful to the jury in its assessment of O'Connell's claim for damages, it was not necessary for O'Connell to introduce such testimony in order to establish her claim. *fn6


Turning next to Columbus Properties' assertion that O'Connell failed to provide any evidence on the valuation of her damages, it is established that "'a plaintiff is not required to prove the amount of his or her damages precisely; however the fact of damage and a reasonable estimate must be established.'" Bedell v. Inver Housing, Inc., 506 A.2d 202, 205 (D.C. 1986) (quoting W.G. Cornell Co. v. Ceramic Coating Co., 200 U.S. App. D.C. 126, 129, 626 F.2d 990, 993 (1980)). So long as a plaintiff provides "some reasonable basis on which to estimate damages," Bedell, supra, 506 A.2d at 205 (quoting Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C. 1982)), the jury's award of damages will not be disturbed on appeal. If a landlord has failed to meet his or her obligations under a lease, a tenant is entitled to damages, which may include the fair market value of the lease. See RESTATEMENT (SECOND) OF PROPERTY, LANDLORD & TENANT § 10.2 (1977) ("RE STATEMENT"). The fair market value "may be ascertained by calculating the difference between the reasonable rental value of the property for the remainder of the term . . . and the agreed rent." See Garcia, supra note 6, 599 A.2d at 1143 (citing RESTATEMENT § 10.2, comment b & illustration 1).

O'Connell testified that the use of her office space had diminished between thirty-three to fifty percent due to the office building's deficiencies. We regard O'Connell's testimony on the diminishment of use of her office as admissible lay opinion testimony on the value of her damages. See Carter v. United States, 614 A.2d 913, 919 (D.C. 1992) ("'Modern rules of evidence permit non-expert witnesses to express opinions as long as those opinions are based on the witness' own observation of events and are helpful to the jury'") (quoting Fateh v. Rich, 481 A.2d 464, 470 (D.C. 1984)); see also S.S. v. D.M., 597 A.2d 870, 879 n.29 (D.C. 1991). The jury was, therefore, allowed to either credit or disregard O'Connell's opinion as to her calculation of damages. Moreover, the fact that O'Connell's testimony "embraced an ultimate issue to be decided by the trier of fact" is of no moment. Fateh, supra, 481 A.2d at 470. Under these circumstances, we conclude that O'Connell's assessment of her damages sufficiently guided the jury in its determination that she was entitled to abatement in her rent of the amounts reached.

Nevertheless, we do not share the trial court's opinion that where the breaches of a commercial lease are of the same nature as breaches in a residential lease, a jury may rely upon its own experience to calculate damages by merely viewing the evidence of the commercial lease violations. As we stated in ...

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