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Killingham v. Wilshire Investments Corporation

September 30, 1999


Before Terry, Farrell, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Farrell, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Frederick H. Weisberg, Trial Judge)

Submitted January 28, 1999

Opinion for the court by Associate Judge Farrell.

Dissenting opinion by Associate Judge Ruiz at p. ___.

In this landlord and tenant action, Marilyn Killingham appeals from a jury verdict which, while abating somewhat the back rent she owed, awarded possession of her apartment to her landlord, Wilshire Investments Corp. (hereafter the Landlord), as well as a money judgment of $1295.87 plus costs to the Landlord. On appeal, Killingham's primary arguments relate to the trial Judge's decisions permitting the Landlord to amend its complaint to exclude a claim for back rent for an apartment unit she no longer occupied, and correspondingly refusing to let her introduce evidence of housing code violations for the unit no longer occupied. We reject these and the remainder of her contentions, and affirm.


At the time of trial, Ms. Killingham had resided in the Marina View Apartments since 1984, successively occupying apartments 507, 609, and 510. While occupying apartment 609, Killingham paid monthly rent of $550 *fn1 until April 1994 when she effectively stopped paying her rent, claiming that the Landlord had failed to correct violations of the housing code. On October 12, 1994, in response to her complaints, the Landlord permitted her to relocate to apartment 510. In September 1995, the Landlord filed suit for summary possession and back rent in the Landlord & Tenant Branch of Superior Court, claiming a rent arrearage of $3541. Because Killingham had previously filed administrative proceedings challenging a requested increase in the rent ceiling, she moved for and was granted a stay of the court proceedings under Drayton v. Poretsky Management, 462 A.2d 1115 (D.C. 1983). After the stay was lifted to permit the Landlord to proceed with its suit based on the existing rent level (i.e., minus the challenged increase), Killingham answered the complaint and filed a counterclaim for damages, in which she asserted, inter alia, multiple breaches of the implied warranty of habitability going back to 1992.

On January 22, 1997, the Landlord moved to amend the complaint asserting that its claim for back rent had mistakenly included rent for the unit no longer occupied by Killingham (609). It asked that the complaint be made to reflect only "the correct time and the correct amount of rent due from October 12, 1994 for unit #510." The Landlord explained its delay in discovering the error by pointing to the Drayton stay, which had drawn its attention away from the court case. The Landlord further moved to dismiss Killingham's counterclaim for damages other than as related to apartment 510, pointing out that the Landlord no longer sought to enforce her obligation to pay rent before October 1994 so long as she did not sue independently for damages relating to her occupancy during that period. The Landlord argued that, in light of its relinquishment of any claim for rent related to apartment 609, Super. Ct. L&T R. 5 (b) barred any defense with respect to that unit, since the rule requires defenses and counterclaims to summary possession actions to be "based on the payment of rent or on expenditures claimed as credits against rent or for equitable relief related to the premises" (emphasis added). Killingham opposed the motion to amend and to dismiss her counterclaim by asserting that the Landlord had shown bad faith and inexcusable delay, and that she would be prejudiced if the motions were granted because, under the applicable three-year statute of limitations, she would be barred from suing independently for damages related to her occupancy before 1994 at a time when she was still paying the rent. She further argued that the Landlord's "premises" argument under Rule 5 (b) was invalid because she had signed no new lease in moving to apartment 510, so that neither her leasehold nor the "premises" had in fact changed.

The trial Judge granted the Landlord's motions, finding that "[a]ny prejudice to [Killingham in permitting amendment] was minimal," because the landlord "has stipulated that it will not sue [her] for unpaid rent from April 1, 1994 through October 12, 1994 unless [she] brings an affirmative action against plaintiff for damages or excess rent relating to her occupancy of her previous apartment." "Moreover," the Judge said, "granting the [Landlord] leave to amend will not leave [Killingham] without a remedy" because she "may, if she chooses, reassert the portion of her counterclaim that is cut off in an affirmative action against the plaintiff in the Civil Division of the court." The Judge added:

Although a counterclaim in a landlord and tenant action for possession can relate to a period which precedes the alleged non-payment of rent (Hines v. Sharkey, 449 A.2d 1092 (D.C. 1982)), it must relate to the premises. See Super. Ct. L&T R. 5(b); Campos v. Aquila, 464 A.2d 132 (D.C. 1983). If plaintiff's claim is limited to alleged non-payment of rent for unit 510 from October 12, 1994 to the present, defendant's counterclaim for the period preceding October 12, 1994 would relate neither to the alleged unpaid rent nor to the premises.

Thus, the complaint was amended, and Killingham's counterclaim and defense regarding the housing conditions in apartment 609 were dismissed from the action.


Killingham argues that the Judge abused his discretion in allowing amendment of the Landlord's complaint, and that even if the amendment was proper, he erred in dismissing her counterclaims and refusing to let her introduce evidence of housing code ...

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