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Weinstein v. District of Columbia Housing Auth.

United States District Court, District of Columbia

March 21, 2013

STANFORD B. WEINSTEIN, Plaintiff and Counter-Defendant,
v.
DISTRICT OF COLUMBIA HOUSING AUTHORITY, Defendant & Counter-Claimant

Page 179

Re Document No.: 40, 42, 43.

For STANFORD B. WEINSTEIN, Plaintiff, Counter Defendant: Judah Lifschitz, Laura Fraher, SHAPIRO, LIFSCHITZ & SCHRAM, P.C., Washington, DC.

For DISTRICT OF COLUMBIA HOUSING AUTHORITY, Defendant, Counter Claimant: Hans Froelicher, IV, LEAD ATTORNEY, MARYLAND OFFICE OF THE ATTORNEY GENERAL, Department of Housing and Community Development, Crownsville, MD; Nicola N. Grey, LEAD ATTORNEY, DC HOUSING AUTHORITY, Washington, DC.

OPINION

RUDOLPH CONTRERAS, United States District Judge.

Page 180

MEMORANDUM OPINION

Denying the Plaintiff's Motion to Strike; Denying the Parties' Cross-Motions for Summary Judgment

I. INTRODUCTION

The plaintiff is a landlord who entered into a contract to lease non-residential property to the District of Columbia Housing Authority (" DCHA" ). He alleges that the tenant has breached the contract in various ways, owing the landlord for unpaid rent, late payment fees, penalties, water and sewer charges, and taxes. The landlord also alleges that the tenant failed to maintain the property and made alterations that damaged the property when the tenant vacated it, thereby owing the landlord for the cost of restoring the property to its original condition. The tenant has filed a counterclaim, alleging that the landlord miscalculated the amount owed and that the debt was settled with an accord and satisfaction, or that in the alternative, the tenant overpaid late fees, penalties, and taxes owed, entitling it to a credit. The tenant also contends that it does not owe repair costs because the property was not in turnkey condition at the time the lease began, that the tenant made alterations to bring the property up to code, and that it did not damage the property. The parties have filed cross-motions for summary judgment, and the landlord has also filed a motion to strike the tenant's motion for summary judgment. Because the landlord

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has failed to demonstrate that it was prejudiced by the tenant's late filing of its motion, and has not shown that the tenant introduced new and contradictory evidence after a Rule 30(b)(6) deposition, the landlord's motion to strike is denied. Further, because there are genuine disputes of material fact as to the landlord's claims for an outstanding debt and for repairs, and as to the tenant's claim of an accord and satisfaction, the parties' cross- motions for summary judgment are denied.

II. FACTUAL & PROCEDURAL BACKGROUND

The landlord is the owner of a warehouse and adjacent parking lot (collectively " the property" ) in the District of Columbia. Pl.'s Stmt. of Mat. Facts ¶ 1. In October of 1997, the landlord entered into a written agreement to lease this property to the tenant. Id. ¶ 2. From time to time thereafter, the parties entered into written extensions and addendums to the lease. Id. ¶ 3. The latest and final addendum to the lease was in August of 2008. Id. ; Def.'s Stmt. of Mat. Facts. ¶ 2. The lease required that all rental payments would be paid to the landlord, and that if the tenant was delinquent " in the payment of any rental installment for more [than] seven (7) calendar days past the due date," that the [tenant] would pay both a late charge of 5% and interest of 1.5 % per month or fraction thereof. Compl., Ex. 1 (" Lease" ) ¶ 4. The lease also stipulated that the tenant would pay " as additional rent" all real estate taxes payable on the property for the duration of the lease. Id. ¶ 5. If the tenant did not timely pay such taxes, it was required to pay both a late charge of 5% and interest of 1.5 % per month or fraction thereof. Id. ¶ 5.

In addition, the lease allowed the tenant to install any furniture, fixtures, and equipment necessary to the conduct of its business, but that if the property was damaged while installing or removing these items, the tenant was to pay to restore the property to its original condition or to reimburse the landlord for the cost of removal. Id. ¶ 7(b). The tenant was also required to make all repairs and replacements necessary to keep the property, including its fixtures and equipment, in good repair and proper sanitary condition. Id. ¶ 9. The lease further stipulated that the tenant would not make any alterations or structural changes, among other things, without the landlord's written approval. Id. ¶ 10.

As mentioned earlier, in August of 2008, the parties signed an addendum to the lease (" addendum" ). See Compl., Ex. 2, (" Lease Addendum" ). The addendum stated that the lease would end on May 31, 2010, and that it would be automatically renewed for two years, until May 31, 2012. Id. ¶ 2. But the lease could be terminated before May 31, 2012, if either party gave a notice of termination six months in advance. Id. ¶ 23. In addition, the landlord was required to take steps to obtain a reduction in the assessed value and taxes due on the property, where, after taking into account any attorney's fees and other costs incurred in obtaining the reduction, the parties would share equally in the resulting benefit. Id. ¶ 24.

By letter dated December 1, 2009, the tenant sent the landlord a notice to terminate the lease, stating that the lease would be terminated on May 31, 2010. Def.'s Stmt. of Mat. Facts ¶ 3; Compl., Ex. 3 (" Def.'s Notice of Nonrenewal." On December 4, 2009, the U.S. Postal Service attempted to deliver the notice, was unsuccessful, and then made several subsequent attempts to deliver it. Def.'s Opp'n to Pl.'s Mot. for Summ. J. at 9. The notice remained unclaimed at the landlord's local post office until it was returned to the

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tenant in January of 2010, id., marked " Undeliverable as Addressed," Pl.'s Response to Def.'s Stmt. of Mat. Facts ¶ 25. The tenant asserts that the notice was mailed to the landlord's address of record, where the tenant had also mailed its monthly rent payments prior and subsequent to mailing the notice. Def.'s Stmt. of Mat. Facts ¶ 4; Def.'s Opp'n to Pl.'s Mot. for Summ. J. at 8; see also Pl.'s Response to Def.'s Stmt. of Mat. Facts ¶ 4. Upon receiving the returned notice, the tenant sent it to the landlord via Federal Express overnight delivery. Def.'s Opp'n to Pl.'s Mot. for Summ. J. at 9. On or about January 20, 2010, the landlord accepted and acknowledged receipt of the notice. Id.

On April 30, 2010, the landlord sent a letter to the tenant, indicating that the landlord was owed $77,762.97 for unpaid rent, real estate taxes, water and sewer charges, and accrued late charges. Def.'s Stmt. of Mat. Facts ¶ 9. On May 21, 2010, the tenant mailed the landlord a letter in response, stating that the tenant sought to settle all lawful charges owed pursuant to the lease (" May 2010 letter" ). Id. ¶ 10; Compl., Ex. 4 (" Def.'s May 2010 Letter" ) at 1. The letter claimed that the landlord's April 2010 letter had miscalculated the amount owed, and outlined in detail the discrepancies between the parties' calculations. See generally Def.'s May 2010 Letter. The tenant also proposed in the letter to pay $65,082.44 plus insurance costs, and thereby settle all lawful amounts pursuant to the lease and resolve any outstanding concerns regarding the termination of its tenancy. Id. at 4-5. On June 1, 2010, the tenant sent a check to the landlord in that amount (" June 2010 check" ). Def.'s Stmt. of Mat. Facts ¶ ¶ 14-15.

On June 10, the landlord met and spoke with DCHA employees. Pl.'s Response to Def.'s Stmt. of Mat. Facts at 16; Def.'s Stmt. of Mat. Facts ¶ 15. At that meeting (" June 10 meeting" ), the tenant received a letter dated June 10, 2010 (" June 2010 letter" ) stating that the landlord disagreed with the tenant's position in its May 2010 letter, and that the landlord did not accept the tenant's proposed payment as payment in full under the lease, but instead as a payment on account to be applied against the balance due. Def.'s Stmt. of Mat. Facts ¶ 15; Def.'s Mot. for Summ. J., Ex. 2, at 28. The letter further stated that even after depositing the tenant's check, the landlord was still due $39,056.34. Def.'s Mot. for Summ. J., Ex. 2, at 28. On June 11, 2010, the landlord deposited the check. Def.'s Stmt. of Mat. Facts ¶ 16. On June 21, 2010, the tenant emailed the landlord, stating that the tenant's General Counsel was currently reviewing the information that the landlord had provided, that some of the tenant's employees planned to meet with the General Counsel regarding the landlord's " settlement offer," and that they would get back to the landlord shortly thereafter. Pl.'s Mot. for Summ. J., Ex. 20 at 15. On June 30, 2010, the tenant vacated the property. Pl.'s Stmt. of Mat. Facts ¶ 41.

The landlord then filed this action, claiming that the tenant breached the contract by failing to pay in full late payment fees, penalties, water and sewer charges, taxes, and expenses for restoring the property to its original condition after the tenant had damaged it. The tenant has filed a counterclaim, alleging that other than the landlord's claim for post-tenancy clean-up and repair costs, it settled all debts with an accord and satisfaction, or that in the alternative, it is owed a credit for overpayments (e.g., deposit and prepaid rent). The tenant also alleges that it owes no post-tenancy clean-up or repair costs. The parties have filed cross-motions for summary judgment, and the landlord has also filed a motion to strike the tenant's motion for summary judgment. The court

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now turns to the parties' arguments and the applicable legal standards.

III. ANALYSIS

A. Legal Standard for a Rule 56 Motion for Summary ...


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