Appeal from the Superior Court of the District of Columbia. (Hon. Henry F. Greene, Trial Judge).
Before Farrell and King, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: King
KING, Associate Judge: In this civil action which grew out of a landlord-tenant dispute, Thomas Norris, a commercial landlord, ("Norris" or "landlord") appeals from a jury verdict which awarded him damages on his counterclaim for rent and damages, which he contends is inadequate, the denial of his motion for entry of judgment n.o.v. or in the alternative to amend the judgment, and his request for an award of attorney fees. We agree with the landlord that he is entitled to a larger award than that made by the jury. We therefore reverse the judgment and remand with direction to enter judgment for the correct amount. We also reverse the trial court's order denying an attorney fee award, and remand for reconsideration in light of what we hold in this opinion.
In November 1988 the landlord and the tenant, Judy C. Green, ("tenant") entered into a five-year lease and/or option to purchase agreement under which the tenant would operate a restaurant and nightclub on the property located at 7331 Georgia Avenue, N.W., Washington, D.C. (the "property"). The lease provided for a $2,600 monthly payment due on the first of each month, beginning on January 1, 1989, with a one hundred dollar late fee for each five-day period the rent was late ($500 per month if over a month late). The lease also granted the landlord or his agent access to the property for physical inspections. Other provisions of the lease relevant to the dispute are: (a) the landlord would not be liable for loss of, or damages to, personal property and improvements arising from a leaking roof, bursting, leaking or overflowing water, sewerage, steam pipes or from heating or plumbing fixtures; (b) the tenant was required to make all interior and exterior repairs, replacements, and decorations, including plumbing, at the tenant's own cost and expense; (c) in the event the premises were damaged by fire or other cause covered by the landlord's insurance, without fault or negligence of the tenant or her agents, the landlord was required to repair the damages at his cost and expense, and the rent apportioned according to the usable part of the premises, until such repairs were made; (d) if the tenant defaulted on the rent, or performance of any lease condition, the landlord was entitled to recover possession of the property, and the tenant remained liable and answerable in damages for deficiency or loss of rent and any other amounts due and owing under the terms of the lease; (e) if the landlord commenced an action to recover rent due, or to compel tenant's performance of any lease obligation, the landlord "shall be entitled to recover from lessee its costs of such proceedings or suit, including a reasonable attorney's fee."
B. Events leading to the eviction
After the tenant took possession, she made separate payments to Norris in the amount of $5,000 and $20,000 toward the $50,000 purchase price for the equipment that had previously been installed in the building. She also contracted with Norris to build some benches and booths for the restaurant, paying him $4,000 of the $8,000 cost. *fn1 During this period the tenant obtained a certificate of occupancy and a restaurant license, but was unable to obtain a liquor license. She testified that sometime in early March 1989, a major water problem developed which resulted in the flooding of the basement and the ladies room, ruining the carpet. The tenant also testified that because Norris failed to correct the flooding, she withdrew the funds from her checking account which resulted in her bank dishonoring the rent check she had given Norris for the January, February and March rent. No other rent payments were made by the tenant.
Norris brought an action for possession in the Landlord/Tenant Branch of the Superior Court ("L&T action") on March 27, 1989, for non-payment of rent for January, February and March. The court later entered a judgment of possession in June 1989 because the tenant failed to make any of the protective order payments. Norris reacquired possession of the building by formal eviction on July 6, 1989, and on that same day, he displayed both "For Sale" and "For Rent" signs in the large picture windows which faced Georgia Avenue. Norris testified that shortly thereafter he received several inquiries, and in September 1989, he contracted to sell the building, closing the sale and transferring title to the buyer in early January 1990. The building was conveyed to the buyer with all the equipment that the tenant had paid for or paid to have installed.
Upon learning of the sale, the tenant instituted the present action for unjust enrichment, seeking compensation for the value of the equipment for which she paid. Norris counter-claimed for back rent from January to July 6, 1989 (the date of eviction), and damages, in lieu of rent, from July 7, 1989, to December 1989 (the last month before the property was conveyed to the buyer). The jury awarded the tenant $31,576 in unjust enrichment damages; that finding is not challenged in this appeal. The jury also awarded the landlord a $500 per month late fee for the months of January, February and March, 1989, and the full $2,600 per month rent for the months of January and February, 1989. For March, however, the jury only awarded rent up to March 27, 1989, the date on which Norris filed the L&T action. The jury awarded no rent for the period between the filing of the L&T action and the eviction date. The jury also awarded no damages from the eviction date through December 1989.
Following the trial, Norris moved for judgment n.o.v. and for an amended judgment, maintaining that, as a matter of law, he was entitled to rent or damages for the entire period of March 27 through December 1989, i.e., rent for the lease amount ($2,600 plus $500 late charge) for March 27 to June 1989, and damages at the rate of $3,100 per month, from July to December 1989, and to an award of reasonable attorney fees. The trial court denied the motions and this appeal followed.