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Akassy v. Williampenn Apartments Limited Partnership

February 2, 2006

HUGUES DENVER AKASSY, APPELLANT/CROSS-APPELLEE,
v.
WILLIAMPENN APARTMENTS LIMITED PARTNERSHIP, APPELLEE/CROSS-APPELLANT.



Appeals from the Superior Court of the District of Columbia (LT 32108-01) (Hon. Anna Blackburne-Rigsby, Trial Judge). (Hon. Gregory E. Mize, Trial Judge).

The opinion of the court was delivered by: Wagner, Senior Judge

Argued March 5, 2003

Before WASHINGTON, Chief Judge, FARRELL, Associate Judge, and WAGNER, Senior Judge.*fn1

William Penn Apartments Limited Partnership (the landlord), appellee/cross-appellant, filed a complaint for possession of real property against appellant/cross-appellee, Hugues Denver Akassy (the tenant), based upon the tenant's failure to pay rent. The court entered a default judgment against the tenant when he failed to appear for the scheduled hearing. Before any eviction could take place, the parties agreed to the entry of a consent order under the terms of which the default judgment remained in effect with its execution stayed conditioned upon the tenant's payment of past due rent and court costs by a date certain and compliance with a "pay-on-time" provision for one year. Before that year ended, the landlord notified the tenant of a rent increase, but the tenant tendered payment in the former amount and subsequently filed a tenant-petition challenging the rental increase with the District of Columbia Department of Consumer & Regulatory Affairs (DCRA). The trial court (Judge Blackburne-Rigsby) granted the landlord's motion to vacate the stay, and the tenant appealed from that order. Thereafter, the trial court (Judge Gregory Mize) granted the tenant's motion for a stay of the writ of eviction pending appeal, and the landlord appeals from that order. The tenant's principal argument on appeal is that the trial court erred in setting aside the stay based on the alleged breach of the "pay-on-time" provision of the consent order where the tenant refused to pay a contested rent increase implemented after the consent order was entered and challenged its legality administratively. He also contends that the trial court improperly permitted unilateral modification of the agreement, misconstrued the term "rent" as used in it, and failed to set aside the agreement based on a mistake of fact. In its appeal, the landlord argues that the trial court erred in granting a stay pending appeal.

We find no error arising out of the trial court's interpretation of the agreement nor any showing of a mistake of fact or unilateral modification. However, we hold that where, as here, the determination of whether a tenant has breached a consent agreement, thereby entitling the landlord to evict him, rests solely upon the legality of a rental increase which the tenant has challenged before the agency having primary jurisdiction over that issue, the trial court must stay the proceeding under the principles enunciated in Drayton v. Poretsky Mgmt. Inc., 462 A.2d 1115 (D.C. 1983), pending final disposition of the administrative proceeding.*fn2 Therefore, we reverse and remand for further proceedings consistent with this opinion. With respect to the landlord's challenge to the pendente lite stay, we find no error warranting reversal.*fn3

I. Factual Background

The landlord filed a complaint for possession of the apartment that the tenant leased from it alleging that the tenant had failed to pay rent due for June and July 2001 totaling $1723. At that time, the tenant's monthly rent was $879.00. The tenant failed to appear on the scheduled hearing date, and a default judgment for possession was entered against him on August 15, 2001. The landlord had issued a writ of eviction. On August 29, 2001, the tenant appeared, ex parte, and requested a stay of the writ, and the trial court (Judge Joan Zeldon) granted the stay and continued the case to secure the presence of the landlord's counsel. On September 5, 2001, the parties entered an agreement settling their dispute which was approved by the court (Judge John Bayly). The consent judgment stated:

Defendant [tenant] agrees that Plaintiff [landlord] is entitled to the default judgment for possession entered on August 15, 2001. In addition, the court will enter a [T]rans [L]ux*fn4 amount in the amount of $1,931.34 representing the current balance of rents costs owed throught [sic] September 30, 2001. Plaintiff agrees to a continuance of the stay, entered by J. Zeldon on 8/29/01, of the judgment for possession until September 18, 2001, at which time plaintiff will be entitled to an immediate issuance of a writ of possession if Defendant has not then paid said balance of $1,931.34 in full. Defendant agrees to [waive] his right to seek further stay of the judgment for possession entered in this matter. Defendant further agrees to waive any further right of redemption in this matter. Defendant agrees that all future monthly rental payments be made before the 5th day of each month, without demand, for the next one (1) year (said obligation ending October 2002). Should any future monthly payment be made untimely, after the 5th day of the month, within said (one) 1 year period, Landlord shall be entitled, upon filing a motion [with] at least 5 days notice to tenant to seek a judgment for possession; and tenant shall waive his right to seek a stay or redeem any judgment entered based upon his failure to pay his rent timely as hereto agreed. If the payment of $1,931.34 is paid as agreed, on or before September 18, 2001, the writ of eviction entered in this matter shall be permanently quashed.

The tenant made the payment of $1,931.34 as required and continued to pay the rent as it fell due through December 2001. By letter dated November 20, 2001, the landlord informed the tenant that the rent ceiling on his apartment was $3818.00 and that his rent would be increased from $879.00 to $1050.00 effective January 1, 2002. However, the tenant sent the landlord a check for the January rent in the amount of $879.00. By letter dated January 7, 2002, the landlord returned the tenant's check and informed him that if he did not provide a replacement check in the amount charged, it would "proceed to court to enforce the agreement." The tenant did not comply. On January 14, 2002, the tenant filed a complaint with the DCRA's Housing Regulation Administration alleging that the rent ceiling was improper and too high for the condition of his apartment. He also alleged that:

(1) the landlord discriminated against him because he complained about the poor condition of the apartment and because of his race and nationality (African-French); and (2) services and/or facilities in his apartment had been eliminated permanently or substantially reduced. The tenant also stated in the petition that although his rent had been increased in the past, this was the largest increase he had ever received.

On January 23, 2002, the landlord filed in the Superior Court a "Motion to Vacate the Stay Imposed by Settlement Agreement" based upon the tenant's failure to pay the rent in the full amount. In its motion, the landlord explained that applicable law authorized a rental increase; that the tenant refused, without lawful reason, to pay the increased amount in violation of the agreement; and that the tenant had given up his right to redeem the tenancy. The landlord requested that the stay be set aside and that it be permitted to file a writ of eviction with no right of redemption for the tenant. The tenant filed an opposition to the motion, pro se, in which he made essentially the same arguments that he made in his filing with the DCRA challenging the rent increase. Following a hearing on the motion, the trial court (Judge Blackburne-Rigsby) granted the landlord's motion and entered an order allowing a writ to issue and providing that "[d]efendant shall have no right to redemption with respect thereto." The tenant filed a notice of appeal from that order.

The tenant, represented by counsel, filed a motion to stay the writ of eviction pending disposition of the appeal. Following a hearing, the trial court (Judge Mize) granted the motion. In granting the motion, the trial court explained:

I believe that given the holding in the Drayton [v. Poretsky Management, Inc., 462 A.2d 1115 (D.C. 1983)] case, the policy in this jurisdiction is to have proceedings in this court stayed while the increase is being contested and this is an unusual situation where the matter comes up after a consent judgment praecipe has been executed. However, that September 5th agreement of the parties does not make it clear that the payments that the defendant was obligated to make on a monthly basis should automatically include a rent increase. It's just not on the face of the document shown to be in the agreement of the parties. And given the lack of clarity in that regard, and the policy of Drayton, I believe the defendant's contesting that increase raises a significant legal issue that justifies a stay.

The court also ordered, and the tenant consented to, a bond requiring the tenant to pay into the court registry each month the full amount of rent, including the increase. The landlord appealed from the trial court's order granting a stay pending appeal. This court consolidated the two appeals for all purposes.

II. Tenant's Arguments

The tenant makes several arguments in support of his position that the trial court erred in setting aside the stay of the writ of eviction based upon his refusal to pay the amount of the rental increase. Specifically, he contends that: (1) the consent agreement is ambiguous with respect to whether the term "rent" included future increases; (2) the agreement requires him to pay only the amount of rent in effect at the time he entered it; (3) the agreement is invalid and unenforceable because it prevents him from exercising his right to challenge the increase; (4) the agreement resulted from a mistake of fact, and therefore, should have been set aside; and (5) he complied with those terms of the agreement that entitled him to a permanent stay of eviction. The landlord responds that there is no ambiguity in the agreement; that the agreement does not preclude lawful rent increases or the filing of a new writ of eviction upon breach of its terms; and that the agreement did not infringe upon the tenant's right to challenge the increase.

A. Ambiguity

It is the tenant's position that the term "rent" as used in the agreement can mean only the amount of rent in effect at the time the landlord sued him and that this is the amount that he agreed to pay. Alternatively, he argues that the term is ambiguous, requiring extrinsic evidence to determine its ...


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