March 29, 2018
from the Superior Court of the District of Columbia
(CAB-3221-16), (Hon. Steven M. Wellner, Trial Judge)
O. Hessler, Washington, for appellant.
Sokolow, with whom Morris R. Battino, Washington and
Vivianette Velázquez were on the brief, for appellee.
Blackburne-Rigsby, Chief Judge, and Glickman, Associate
Judge, and Ferren, Senior Judge.
appeal, we are asked to determine whether the landlord,
Dianne Quander, waived the deadline for the tenant, SJ
Enterprises, lease renewal option, by her actions and
communications with the tenant after the renewal option
deadline had already passed.
present case, after the lease renewal option deadline had
passed but before the original contract term expired, Ms.
Quander e-mailed SJ Enterprises. The subject line of the
e-mail stated: "reminder of lease increase and
renewal." In the body of the e-mail, Ms. Quander wrote
I just wanted to remind you that your first five[-]year lease
agreement comes to an end on November 30, 2015. Please
confirm that you want to continue with the lease. There is an
increase of 3% each year starting in December, 2015 [sic] and
the rent will be $ 4326 a month.
trial, Ms. Quander claimed that the e-mail was an inquiry as
to whether SJ Enterprises would be remaining at the property
after the initial lease term ended, in a holdover tenancy,
which she could terminate upon thirty-days notice. SJ
Enterprises, however, testified that it believed that the
e-mail constituted an offer to renew the lease for an
additional five-year term, which it accepted by responding to
the e-mail: "Thanks, Dianne, for the reminder. Will
start next month."
trial judge found in favor of SJ Enterprises on an
alternative legal theory, that the parties e-mail exchange
constituted a new five-year lease agreement, but the trial
judge limited the new lease to one year because it violated
the statute of frauds, D.C. Code § 42-306(b) (2012 Repl.).
However, we conclude that Ms. Quanders e-mail constituted a
clear and unequivocal waiver of her right to timely notice of
SJ Enterprises option to renew for an additional five-year
term, which the tenant accepted and exercised by her e-mail
response. We therefore reverse and vacate the trial courts
decision and remand for the trial court to enter judgment in
favor of SJ Enterprises.
I. Factual and Procedural Background
August 2012, SJ Enterprises opened its business, "North
Indian/Pakistani bar/restaurant known as Cusbah, South Asian
Spice Bar " at the subject property located 1128 H
Street Northeast, Washington, D.C. ("Property").
The leases initial term was for five years, but SJ
Enterprises had a Renewal Option under paragraph five of the
agreement to renew the lease for up to two additional
five-year terms, so long as SJ Enterprises gave Ms. Quander
"not more than twelve (12) and not less than five (5)
months notice of" its intent to exercise the option to
extend the lease agreement. The initial lease term was set to
expire on November 30, 2015, and SJ Enterprises needed to
notify Ms. Quander "of such intention" to exercise
the Renewal Option between December 2014 and July 2015. SJ
Enterprises did not timely exercise its option.
on September 16, 2015, the landlord, Ms. Quander, of her own
accord sent SJ Enterprises co-owner Julie
Hussain an e-mail entitled "reminder of
lease increase and renewal ." (Emphasis added).
On November 2, 2015, Julie Hussain responded to Ms. Quanders
e-mail: "Thanks, Dianne, for the reminder. Will start
Consistent with this e-mail exchange, SJ Enterprises remained
in the Property after the initial lease term expired on
30, 2015, and began paying the increased rent in December
2015. However, on March 16, 2016, Ms. Quander issued SJ
Enterprises a Notice to Vacate by April 30, 2016. SJ
Enterprises did not vacate the Property on April 30, 2016,
and filed a suit for breach of contract in Superior Court.
Ms. Quander counter-sued for a non-redeemable judgment of
bench trial on the issue of possession of the Property, the
trial judge heard testimony from three witnesses: Landlord,
Dianne Quander, and SJ Enterprises co-owners Julie and
Soophia Hussain. Ms. Quander testified that the intent behind
her September 16, 2015, e-mail was to inquire from SJ
Enterprises whether it would be vacating the Property at the
end of the initial lease term or if SJ Enterprises intended
to remain at the Property on a month-to-month basis as a
holdover tenant. However, Ms. Quanders e-mail never used the
phrase "month-to-month" or any terminology to
suggest that by remaining, SJ Enterprises would be treated as
a holdover tenant.
Hussain testified that her understanding of the September 16,
2015, e-mail from Ms. Quander was that Ms. Quander
"wanted [Julie Hussain] to respond ... [with whether SJ
Enterprises] wanted to continue with the lease ... [f]or the
next five years; " and if SJ Enterprises was to continue
the lease, that the rent would increase. Julie Hussain
believed that because she paid the increased rent in
December, she was complying with Ms. Quanders e-mail,
agreeing to extend the lease for a second five-year lease
term. Soophia Hussain testified consistent with Julie
Hussains testimony, that it was her understanding that they
were renewing the lease based on the e-mail exchange and that
the rent increase would begin in December 2015.
trial judge credited Julie and Soophia Hussains testimony
and did not credit Ms. Quanders testimony because he found
that her testimony contradicted the plain language of her
e-mail. The trial judge held, as a matter of law, that SJ
Enterprises did not timely exercise the Renewal Option, that
Ms. Quanders e-mail was an offer to enter into a new lease
agreement, and SJ ...