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Smith v. Greenway Apartments LP

Court of Appeals of Columbia District

December 29, 2016

DIONNE SMITH, Appellant,

          Argued May 10, 2016

         Appeal from the Superior Court of the District of Columbia Civil Division (LTB-2205-15) (Hon. Robert Okun, Trial Judge)

          Beth Mellen Harrison, Legal Aid Society of the District of Columbia, with whom Jonathan H. Levy, Legal Aid Society of the District of Columbia, was on the brief, for appellant.

          William P. Cannon, III, with whom John B. Raftery and OffitKurman were on the brief, for appellee. Before Blackburne-Rigsby and McLeese, Associate Judges, and Reid, Senior Judge.

          BEFORE: BLACKBURNE-RlGSBY and McLEESE, Associate Judges; and REID, Senior Judge.


         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the trial court's judgment is vacated, and the case is remanded for further proceedings to determine whether appellant is entitled to rent abatement on her counterclaim in the months of 2012 and 2013 that are not covered by the specific months involved in appellee's 2012 and 2013 possessory action judgments.


          Inez Smith Reid Senior Judge.

         This case involves a January 25, 2015, complaint for possession of real property due to non-payment of one month's rent in January 2015, filed by appellee, Greenway Apartments LP t/a Meadow Green Courts ("Greenway"), and a counterclaim, lodged by appellant Dionne Smith, claiming housing code violations dating back to February 27, 2012, that entitled her to a rent abatement. Prior to trial, the trial court issued an order, dated July 14, 2015, limiting Ms. Smith's counterclaim under the doctrine of res judicata (claim preclusion) to the period beginning on January 11, 2014, because of two prior cases involving complaints for possession filed by Greenway based upon Ms. Smith's non-payment of rent during two months in 2012 and two months in 2013. Ms. Smith did not file counterclaims in those actions.

         After a bench trial in the current case, the trial court concluded that due to serious housing code violations at her residence, Ms. Smith was entitled to fifty percent abatement of her rent dating from January 11, 2014, to the time of the court's decision. The court entered judgment for Ms. Smith in the amount of $3, 775.50.

         On appeal, Ms. Smith contends that the trial court erred by concluding that her counterclaim was compulsory and should have been filed in Greenway's prior actions against her. She argues that under Rule 5 (b) of the Superior Court Rules of Procedure for the Landlord and Tenant Branch ("L&T Branch"), counterclaims are permissive, not mandatory; hence, she maintains that the trial court erred by limiting her counterclaim to housing code violations beginning on January 11, 2014. For the reasons stated below, we hold that counterclaims under Rule 5 (b) of the L&T Branch are permissive and that res judicata did not bar Ms. Smith's counterclaim relating to part of the years 2012 and 2013. Consequently, we vacate the trial court's judgment restricting the counterclaim, and remand this case for a determination of housing code violations in 2012 and 2013, and as necessary, a recalculation of the amount of the rent abatement and the judgment to be awarded to Ms. Smith.


         Testimony presented by Ms. Smith at the trial on her counterclaim and Greenway's complaint revealed that she moved into an apartment building located in the 3500 block of A Street, in the Southeast quadrant in the District of Columbia, sometime in 2011. Her children, ages ten and seven at the time of trial, lived with her. She paid her December 2014 rent in January 2015, and her January and February 2015 rent in January and February, respectively. Beginning in March 2015, she did not pay rent because of what she described as "inhumane" conditions. Mold was present "on and off from 2012" throughout the apartment - the children's bedroom, Ms. Smith's bedroom, the closets, the hallways, the windowsills, the walls, the ceilings, on clothes in the closets - and there was water damage in the apartment. Ms. Smith took pictures depicting the mold that were admitted into evidence.

         About two months after moving into the apartment, Ms. Smith "noticed . . . black stuff." She informed Greenway's manager but nothing was done until the 2012 court complaint for non-payment of rent. Since January 2014, [1] management has "painted over top of [the mold, ] and put . . . compound over [it] to cover it up." In 2015, after an inspector for the District inspected the apartment, Greenway "scraped" wherever the mold appeared and put compound over it. Mold continued to grow around the windowsills. Ms. Smith's apartment was plagued by moisture, leaks, and a flood. The apartment and clothes in the closet smelled because of the mold, moisture, and flooding that saturated the carpet. Clothes in the closets had "green stuff growing" on them. Furniture was damaged.

         In addition to the mold, the apartment was infested with spiders, millipedes, insects, and mice. Greenway engaged an exterminator who gave Ms. Smith some "mouse pellets" to put behind the stove and the refrigerator, but that did not eliminate the problem. Ms. Smith has been bitten "several times" by spiders, some of which were "gigantic."

         Because of the mold and infestation Ms. Smith and her children sleep in the living room - she sleeps on the couch with her younger son and the older son sleeps on the love seat. Ms. Smith suffers from constant coughing and wheezing due to the infestation. Family members refuse to come to her apartment. Ms. Smith cannot entertain guests or work part-time at home. Food preparation is difficult because of the vermin.

         The presence of mold in Ms. Smith's apartment was confirmed by Gift Oboite, a public health technician employed by the District's Department of the Environment. Under the Healthy Housing Program, Ms. Oboite conducts assessments of homes to determine the presence of hazards. Her inspection of Ms. Smith's apartment on October 8, 2014, took place after a referral from Children's Hospital, where one of Ms. Smith's sons was treated for asthma. Ms. Oboite reported finding chipping and peeling paint and water stains in the hallway; "water stains, an active leak, and mold and mildew in the master bedroom" - and water stains on the ceiling in the storage closet as well as moisture on the window; mold, mildew, and moisture on the window and windowsill in the dining room; "mold or mildew on the bottom of a window and water stains on the wall" of the kitchen; "bubbling and chipping paint and mold and mildew on the wall around a window" in the children's bedroom; and "mold or mildew covered with paint on a window pane" in the bathroom. Moisture was the "most likely" cause of the mold and mildew. Ms. Oboite recommended immediate correction of the conditions because "mold and mildew [are] known to cause health effects, especially respiratory reactions."

         Ms. Oboite again inspected Ms. Smith's apartment on November 5, 2014. She discovered that the conditions in the apartment were "worse." For example, the October 8, 2014, inspection "showed paint with mold and mildew growing out of it" with what appeared to be an extra layer of paint, and the November 5, 2014, inspection "showed mold and mildew growing through the paint." Ms. Oboite had not seen mold or mildew on a chair during her October 8 inspection, but during the November 5 inspection, the chair "appeared to have a growth of mold . . . and the ceiling . . . had new spots of bubbling paint." Ms. Oboite did not believe that Greenway had remediated the conditions in the apartment. Ms. Oboite visited the apartment again in February 2015 and did not see the mold, mildew, and dampness. Ms. Smith asserted that Ms. Oboite "didn't really examine the apartment" in 2015; rather, "she asked questions and then she left."

         Rebecca Gallahue, a legal assistant for the Legal Aid Society's housing unit, inspected Ms. Smith's apartment on April 7, 2015. She took pictures of the apartment showing mold growth on a chest and a pillow, mold growing in a closet and on a wall and a windowsill; rodent droppings, cracking and peeling paint in the bedroom; mold growing on a blanket on a mattress in another bedroom, as well as cracking and bubbling paint on the ceiling; mold growing on the windowsill in the bathroom, peeling paint, what appears to be mold growing on faucet knobs, and a black substance around the caulking; peeling and bubbling paint and what appears to be mold growing on a windowsill in the dining area; dark specks or dots along the top of the front door that appear to be ...

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