February 15, 2007
NOKOMIS N. HINTON, APPELLANT,
SEALANDER BROKERAGE CO., APPELLEE.
Appeal from the Superior Court of the District of Columbia (CA-7988-03) (Hon. Melvin R. Wright, Trial Judge).
The opinion of the court was delivered by: Ferren, Senior Judge
Submitted December 12, 2006
Before FISHER and THOMPSON, Associate Judges, and FERREN, Senior Judge.
This appeal presents an unusual, ostensibly inconsistent combination of circumstances: a landlord's wrongful, self-help eviction, followed by the tenant's holdover as a trespasser on the premises. The pro se tenant, Nokomis Hinton, filed an action in forma pauperis against her landlord, Sealander Brokerage Co., for allegedly locking her out of her single family rental house before she had been able to move out all her furniture and personal belongings.*fn1 The landlord then filed a counterclaim for unpaid rent attributable to the tenant's holding over by leaving property in the house after she had left. The trial judge ruled for the landlord on both the claim and the counterclaim. We vacate the judgment and remand the case for further proceedings.
The tenant filed her complaint on September 29, 2003, alleging that she had given the landlord a "30 day notice" that she was leaving the premises;*fn2 that the landlord had changed the locks before her "30 day[s were] up" and that the landlord had denied her access to her "belongings" that remained in the house.*fn3
She sought $16,000 in damages. The landlord answered, alleging among other things that the tenant had "abandoned the property" (both real and personal) and had no "lawful right" to it. More than eight months later, the landlord received the court's permission to file a counterclaim alleging that "in September 2003," the tenant had become "delinquent in her monthly rent" and owed the landlord "rent in the sum of $6,615.00." Despite two orders from the court to answer the counterclaim, the tenant never formally did so. In her pretrial statement, however, she alleged in response to the "Counterclaim for monies owed" that "no money was due." Thereafter, both the landlord and the trial judge treated the counterclaim as if issue had been joined. Then, after a bench trial, the trial court ruled for the landlord on both the claim and the counterclaim and awarded money damages against the tenant totaling $7,808.30 (plus statutory interest from March 21, 2005) as compensation for storing the tenant's personal property on the premises for ten months ($7,000) and, thereafter, in a U-Haul storage facility ($808.30).
The tenant now appeals, arguing (with the benefit of reasonable inferences from her pleadings) that her "rent was paid in full" through September 2003; that the "lease was over" when she moved out beginning September 3, but that she was entitled to "30 day[s]" within which to remove her furniture and other property; that the landlord had engaged in an "illegal lock out," changing the locks "on September 19[,] 2003" with "half of the appellant's furniture lock[ed] in the house"; that the landlord had "refused" to give a key to the tenant; that the landlord's actions therefore amounted to an "illegal withholding" of the tenant's "furniture and things"; and that "there was no agreement" that the tenant would pay for storage on the premises.*fn4
II. Wrongful Eviction
"In resolving an appeal from a non-jury trial, we may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." Crescent Props. v. Inabinet, 897 A.2d 782, 789-90 (D.C. 2006) (internal quotations omitted) (citing Zoob v . Jordan, 841 A.2d 761, 764 (D.C. 2004)); D.C. Code § 17-305 (a) (2001). The trial court's findings of fact will not be disturbed unless they are clearly erroneous, Crescent Props., 897 A.2d at 790, and the evidence will be viewed in the light most favorable to the prevailing party. Real Estate Escrow, Inc. v. Fitzgerald, 846 A.2d 289, 290 (D.C. 2004) (citing Drevenak v. Abendschein, 773 A.2d 396, 415-16 (D.C. 2001)).
In order to establish wrongful eviction, a tenant must prove that the landlord performed "some act of a permanent character with the intention and effect of depriving the tenant of the enjoyment of the demised premises or a part thereof." International Comm'n on English in Liturgy v. Schwartz, 573 A.2d 1303, 1305 (D.C. 1990)(citing Hughes v. Westchester Dev. Corp., 64 App. D.C. 292, 293, 77 F.2d 550, 551 (1935)).*fn5 "Whether the landlord performed an act with the intent to evict the tenant is a question of fact for the trial court." Id.*fn6 The law is clear in this jurisdiction, moreover, that a landlord is prohibited from using self-help to evict a tenant and must proceed instead by using the process provided by law. Mendes v. Johnson, 389 A.2d 781, 783-87 (D.C. 1978) (en banc) (landlord's common law right of self-help eviction by removing tenant's belongings from premises abrogated by exclusive statutory remedy mandating reliance on legal process), abrogated in part by Davis v. Moore, 772 A.2d 204 (D.C. 2001) (en banc). Nothing, however, precludes a landlord from securing a vacant unit to prevent theft and vandalism. See 14 DCMR § 6800.3 (2006) ("[T]he owner of a vacant building is required to maintain the building . . . [by ensuring that] [d]oors, windows, areaways, and other openings are . . . secured against entry by . . . trespassers . . .").*fn7
The tenant testified at trial that she had paid her rent through September 30; that she had sent the landlord "a notice of 30-day moveout . . . on the 3rd of September"; that she had been moving out "constantly" from September 3 to September 20, 2003; that on the 20th she had found the landlord's locksmith "chang[ing] the locks on the door"; and that when she had asked the landlord's representative for a key so that she "could continue to move [her] things[,] . . . [h]e refused."
The landlord's representative told a different story. He acknowledged that the tenant's rent had been paid through September 30, 2003, but said that she had "never notified" him that she was leaving. He further testified that "approximately on the 26th of September" 2003, he learned from a former neighbor of the tenant that the house was vacant and "unsecured" -- the "doors were open." He then testified that when he had gone right away to check on the property, "[i]t looked like someone had abandoned it, left it, and that somebody was ransacking." In particular, "[w]indows were broken, doors had been torn off the hinges[;] . . . it looked like someone was trying to, you know, maliciously damage the place." He found that the house still contained "many items" of personal property "in various states of [dis]array." (He took photos of the property inside the house and offered them as exhibits at trial.) He then elaborated:
I tried to close the door in the back as best I could and close the front door. I was able to lock the front door with a small hand lock but all the other locks had been removed, both on the gate and on the main door. The dead bolts had all been removed.
Accordingly, he said, in order to protect the tenant's property as well as the landlord's, he made arrangements with a locksmith "to put locks on the doors" three days later, September 29, 2003. Also on the 29th, the landlord's representative posted a notice on the front door of the house containing a phone number for the tenant to call in order to gain entry for removal of her belongings. The notice added that a "message has been left with your new landlord[;] we have no telephone number for you." The landlord's representative further testified that, on other occasions during the ensuing months, the landlord had informed the tenant that she "could pick up her things at any time."
The tenant contradicted the testimony of the landlord's representative that she had never notified him of her intention to leave, stating that she had told him this perhaps "ten or eleven" times between September 20 and 29. She acknowledged on cross-examination, however, that once he became aware that she was leaving, the landlord's representative had told her that she "could come and immediately remove [her] things," and that she had had multiple opportunities to retrieve what was hers. Nonetheless, she had declined to do so, she said, because the landlord's representative had refused to give her a key. He preferred instead to meet her at the house and open the door for her, a resolution she rejected apparently because of prior legal proceedings with the landlord which had led the tenant to believe that she was "not supposed to go around him."*fn8 In giving his reasons for refusing the tenant a key, the landlord's representative testified:
The building had been ransacked. Doors had been torn off their hinges. Windows had been broken. We weren't sure who did that. We didn't know whether it was [the tenant], we didn't know whether it was neighbors, we didn't know whether it was some vandals cruising the neighborhood. We didn't know. What we did know was that that property was unsecured at the time and that's why we put the locks on.
Implicitly, the landlord's representative was saying that he did not trust the tenant with the key to a house that she had given up and perhaps even trashed herself.
"[B]ased upon the credibility of the witnesses," the trial judge ruled for the landlord in the wrongful eviction action.
The court accepts the testimony of the [landlord's representative] in that the . . . [tenant] seems to focus all of her case on the fact that she was not given a key in order to come in and get the property.
It's clear from the evidence here and from the [tenant's] own testimony that she had an opportunity to get the property that was in the house, that she either refused or chose not to exercise the ability she had to achieve those -- that goal.
The landlord's willingness to accommodate the tenant does not end the inquiry, however. The tenant has claimed an "illegal lock out." See, e.g., Robinson v. Sarisky, 535 A.2d 901, 904-06 (D.C. 1988) (successful wrongful eviction action against tax sale purchaser who repeatedly boarded up property and changed locks despite notification that plaintiff was lawfully living in premises). The landlord admittedly installed new locks on September 26 and 29 and refused to give the tenant a new key, excluding her from freely entering the premises. The tenant, as a result, is claiming that the landlord did so before her lease expired. Further, she claims in effect that the landlord's withholding of the key amounted to a self-help eviction that violated the teaching of our en banc decision in Mendes, supra, limiting eviction to legal process.*fn9 More specifically, three questions underlying the Mendes issue are presented here: (1) whether the landlord was entitled to install new locks on the premises without the tenant's participation; (2) if so, whether the landlord installed them (and refused to provide a key) at a time when the lease was still in effect, knowing that the tenant had not abandoned her personal property remaining on the premises; and, if so, (3) whether the lock change, when coupled with the landlord's willingness to open the premises for the tenant to remove her property, was action benign enough to foreclose a Mendes violation.
As to the first, the evidence indicates that, regardless of whether the tenant gave the landlord a thirty-day notice of intent to vacate, the tenant's rental house had become open, with door locks missing, inviting ransacking by others -- which had already occurred. Upon learning of the situation, therefore, the landlord had a right, indeed a responsibility, under 14 DCMR § 6800.3 to secure the premises, based on a reasonable, initial perception that the tenant had abandoned*fn10 the house and her personal property, perhaps even damaging the premises herself while leaving. The landlord's right is reinforced by the lease itself. According to clause 6, "Tenant will allow the Landlord or his Agent access to the premises at any reasonable time for the purpose of inspection or repair." Because the tenant herself was gone from the premises and had not provided the landlord with a telephone number where she could be reached, it was not unreasonable for the landlord to enter for purposes of repair without the tenant present to grant permission.
As to the second question, the record reveals that the landlord changed the locks and refused the tenant a key at a time when the lease was still in effect, knowing that the tenant had not abandoned the furniture and other belongings she had left in the house. In the first place, the tenant claimed that her "rent was paid" through September 30 (which the landlord does not dispute), that she had given a "30-day notice to move," and that she had given her notice on "September 3rd." We shall assume for the sake of argument that the tenant gave the landlord a September 3 notice, as claimed. However, we see no basis for a finding that she intended for the lease to run through October 3, a date three days beyond any intention of the tenant to pay rent. Moreover, the tenancy itself, which became month-to-month on April 1, 1998, see supra note 2, could end only upon the last day of an ensuing month upon proper notice, see Dorado v. Loew's, Inc., 88 A.2d 188, 190 (D.C. 1952), and the record does not permit an inference that the tenant intended October 31, rather than September 30, as the termination date. Accordingly, we must conclude as a matter of law that the tenant claimed the lease to be in effect through September 30 -- but no later.
The landlord, on the other hand -- as evidenced by its counterclaim -- never intended the lease to expire until the tenant's property had been removed in full from the house. The landlord did not consider the lock change to be an eviction; at most it was seen as a recapture of premises perceived on September 26 to be abandoned. The landlord soon came to realize, however, no later (but not demonstrably earlier) than September 29 -- the day the tenant filed her wrongful eviction action and motion for temporary restraining order -- that the tenant, although vacating the premises, had not abandoned her personal property or her right to enter for the purpose of retrieving that property. See supra note 10 (distinguishing "vacating" from "abandoning" the premises). Thus, the landlord understood on September 29 that the house was still occupied, constructively, by the tenant. Accordingly, having accepted rent through September 30 pursuant to the terms of the lease, the landlord is estopped to claim that the tenancy ended any sooner. And, having refused the tenant a key during the brief, two-day period (September 29-30) when the lease was still in effect, the landlord is further estopped to claim that the tenancy extended any later than September 30, the date through which the tenant claimed a right to occupy the premises.*fn11
We turn to the third, dispositive question under Mendes: the legal significance of the change in locks. It does not necessarily follow that the landlord's right to secure the vandalized house under lease to the tenant justified withholding a key for the new locks -- a withholding the landlord acknowledges. The tenant's right to a key -- to untrammeled entry -- reflects a fundamental obligation of the landlord under any standard residential lease.*fn12
Nonetheless, rather than allow the tenant free rein to haul away her belongings from the premises during the last two days of her tenancy, the landlord insisted on supervising her every entry, despite her having paid full rent through September 30. The landlord thus faced a choice: give the tenant a key or be willing to pay damages for excluding the tenant from the house for two days.*fn13
We accept the trial judge's findings crediting the landlord's representative's testimony but we must conclude, even so, that the judge erred as a matter of law in ruling that the tenant had not been evicted unlawfully. We are satisfied that, by constraining the tenant's right of entry for the two-day period while the lease was still in effect (September 29-30), the landlord intended to deprive the tenant of full use of the premises, see supra note 6, and exercised a kind of self-help proscribed by Mendes, supra. We conclude, accordingly, that the tenant is entitled to damages for that eviction to the extent provable.*fn14
We turn to the counterclaim. The landlord seeks recovery of unpaid rent for the period after the tenant moved out but left furniture and other personal property on the premises. As we have noted, by refusing to give the tenant a key to the house after the broken or missing locks had been replaced, the landlord evicted the tenant on September 29 while the lease was still in effect. As of the 29th, therefore, the tenant's obligation to pay rent ended,*fn15 and she was entitled to damages from the landlord for ousting her before the lease terminated at midnight on September 30.*fn16 Because she had left property in the house, however, she was still potentially liable to the landlord for damages for holding over.
When a landlord terminates a tenancy unlawfully, as in this case, the tenant has an election of remedies. She may either take legal action to reinstate the lease and obtain legal and equitable relief, as appropriate;*fn17 or, as she did here, take action premised on an end of the lease by suing for damages.*fn18
If, however, that wrongfully evicted tenant, in seeking damages, nonetheless remains in some way on the premises without acting to reinstate the lease, the landlord -- despite evicting unlawfully -- will retain the right, through setoff or counterclaim, to recover its own damages*fn19 for the tenant's continued occupancy beyond the period reasonably necessary for her to remove her property after the landlord abruptly terminated the lease.*fn20
With this background in mind, we address the question whether the amount of personal property the tenant left behind was sufficient to generate liability for holding over. That is a question for the trier of fact to answer. Beck v. Troiano, 138 A.2d 492, 493 (D.C. 1958).*fn21 We are satisfied -- given the testimony and photographs revealing a list of over fifty items of significant value -- that the trial judge did not err in finding that the tenant left enough property in the house for holdover liability, at least for the period after a reasonable time for removing her property had expired (an issue the judge did not address).
In ruling on the counterclaim, the trial judge determined that the tenant owed "$700 a month rent for a 10 month period" (October 2003-July 2004, the period the property remained in the house before it was moved to outside storage). Although the presumptive measure of damages, at least for continuous use of the premises, is the rent prescribed for the lease term,*fn22 the judge erred in failing to come to grips with whether that presumptive value applied to the facts over that entire ten-month period. He characterized the $7,000 he ordered the tenant to pay for storage in the house simply as "rent," as though the lease were continuing, without converting the assessment to a damages analysis. The trial judge instead should have calculated the reasonable value for use of the premises during the tenant's holdover, beginning after the period reasonably required to allow the tenant to remove her property after the landlord's termination of her lease. See supra note 20.
The tenant's holding over after September 30 did not give her rights as a statutory "tenant by sufferance"*fn23 or as a tenant in limbo pending resolution of a dispute with the landlord over, say, alleged overcrowding*fn24 or housing code violations.*fn25 Rather, the actions of both parties brought termination of the lease -- the landlord by withholding the key, the tenant by rejecting the lease and suing for damages. The question thus becomes: by the choice she made, did the tenant forfeit her right to insist on a key and instead create for herself an obligation to retrieve her property under reasonable conditions proposed by the key-holding landlord?
We conclude that the answer must be yes. In this jurisdiction a holdover tenant, as such, is technically a "wrongdoer,"*fn26 but she is not necessarily without rights reflected by the lease. According to the RESTATEMENT (SECOND) OF PROPERTY: LANDLORD AND TENANT § 14.7:
Subject to the rules [prohibiting a landlord's self-help (unless permitted by statute), and permitting a landlord to impose another term on, or to recover damages (including special damages) from, a holdover tenant], the legal relationships of the landlord and tenant during the period in which the tenant improperly holds over after the termination of the lease are the same as during the period of the lease, except to the extent a modification of the legal position of one or the other is required by the circumstances of the holding over. [Emphasis added.]
The authors elaborated in comment e:
Generally, all the landlord's obligations under the terminated lease, those imposed by agreement as well as by law, continue into the period in which the tenant holds over, with the exception of duties of action or omission clearly intended to prevail only during the period of the original lease. [Emphasis added.]
All things considered, we believe that the situation here fits the Restatement exceptions italicized above. A key is not necessary to accomplish the tenant's retrieval of her property -- assuming, as the trial judge's credibility findings require us to do, that the landlord stood ready at all reasonable times to open the house for the tenant to pick up her belongings. Accordingly, we do not perceive any reason why a tenant who repudiates the lease should be entitled to a key, as though the lease were still alive, rather than having to go along with a reasonable proposal*fn27 by the landlord to facilitate retrieval of her property using the landlord's key. By her actions in holding over with her unremoved personal property, and in repudiating the lease, the tenant has no claim to any kind of tenancy, other than the bare right of entry to retrieve her belongings within a reasonable period of time after the lease was terminated. See supra note 20. Aside from that brief period, for which the landlord has agreed to facilitate her retrieval by opening the door, she stands in no stronger relationship to the landlord than a trespasser who, by definition, has no right to a key.*fn28
That does not end the analysis, however. By claiming an "illegal withholding" of her property in addition to an "illegal lockout," the tenant can be said to have raised a mitigation defense.*fn29
(Tenant claiming she informed landlord "[y]ou can't hold my things.") Essentially, the tenant maintains that the landlord could have reduced or eliminated its damages by giving her a key, permitting prompt retrieval of her property from the premises. The focus, therefore, shifts to the landlord's responsibility, if any, to mitigate damages while standing firm on its right -- which we here sustain -- to withhold the key after the lease ended.
Notwithstanding termination of a lease by a landlord's wrongful eviction, coupled with the tenant's election not to seek reinstatement, the terms of the lease may still govern damages;*fn30 and, as a result, the contract principles requiring mitigation may apply.*fn31 For example, if a landlord specifically reserves the right to re-enter and re-let the premises upon termination of the lease while holding the tenant liable for damages, it is the landlord's "duty to make reasonable efforts to that end and thereby minimize his damages." McIntosh v. Gitomer, 120 A.2d 205, 206 (D.C.1956). See also Lennon, supra note 31, 287 U.S. App. D.C. at 206, 920 F.2d at 1000 ("Under District law . . . a lease provision giving the reentering lessor a right to lost rent is construed as creating a right to damages, subject to the mitigation doctrine, i.e., to a requirement that the lessor use "reasonable efforts" to relet."). In this case, clause 12 of the lease provides that after termination of the lease the landlord "may, without notice, re-enter the said premises and remove . . . all contents." However, this lease provision (the validity of which we do not address) is premised on the landlord's lawful termination of the lease; literally, it does not apply in the context of an unlawful, self-help eviction.
In the absence of contractual provisions in the lease that dictate the respective liabilities of the landlord and tenant after a mutual effort to terminate, as in this case, general principles of property and tort law are available. Here, we have concluded that upon termination of the lease the tenant became a trespasser, entitling the landlord to damages for intrusion upon its property. With no governing contractual provision in the lease, therefore, we may draw on the doctrine of avoidable consequences -- the tort formulation for mitigation -- for calculation of damages.*fn32 "The avoidable consequences doctrine is that 'one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort. . . .'" Flowers v. District of Columbia, 478 A.2d 1073, 1077 (D.C. 1984) (quoting RESTATEMENT (SECOND) OF TORTS § 918 (1979)). Surely, if a landlord must mitigate damages assessable against a holdover tenant when the landlord has terminated the lease lawfully, a landlord also must mitigate damages payable by a holdover -- though technically trespassing -- tenant when the landlord has terminated the lease unlawfully.
Although we have held that under the circumstances of this case the tenant was not entitled to a key after eviction, the court did not consider the landlord's own responsibility to mitigate damages, for example, by promptly moving the property to an outside storage facility and re-letting the premises, or by confining the tenant's property to an area of the house, such as the basement, that might have permitted attraction of a new tenant.*fn33 There may, in other words, have been a way for the landlord to have handled the situation less expensively for the tenant than full rent over ten months while the tenant was persisting in her demand for a key. From this record, however, we cannot tell what, if any, reasonable possibilities for mitigation there were.
It follows, from the foregoing discussion, that the $7,000 in "rent" awarded on the counterclaim must be revisited in a "damages" analysis. This means that the trial judge will have to allocate responsibility over a ten-month period between a tenant who claimed to want her property but was insisting on a key to get it, and a landlord who refused to give the tenant a key and retained her property in the house, but stood willing to open the house, as needed, to permit removal of that property.
The court also awarded $808.30 to the landlord for the costs of eventually moving the tenant's property to the U-Haul storage facility. Such damages are appropriately awardable to the landlord.*fn34 It is possible, although not at all predictable, that in reevaluating the damages awardable to the landlord for storing the tenant's property at the house, the trial judge may find that the amount of damages awardable for off-site storage should be recalculated -- a result that we find permissible but not required.
In sum, we vacate the judgment and remand the case for evaluation of damages payable to the tenant for her wrongful eviction, as well as for reconsideration of damages payable to the landlord for the tenant's holding over on the former rental premises by leaving her property there after her lease had expired. In particular, the trial judge shall consider the responsibility of each party to mitigate damages. We leave it to the judge to determine how much additional testimony and other evidence, if any, will be needed to resolve the matter. In view of the complex issues presented, we hope that the tenant will find counsel on remand. If she cannot afford to pay for a lawyer, we trust that the trial judge will acquaint her with legal services available from the law schools, the organized bar, and other nonprofit organizations.
Judgment vacated and case remanded.