INTERNATIONAL COM'N ON ENGLISH v. SCHWARTZ, 88-766

• Decision Date: 03 May 1990
• Docket Number: No. 88-766,No. 88-1327,No. 88-1152,88-766,88-1152,88-1327
• Parties: INTERNATIONAL COMMISSION ON ENGLISH IN the LITURGY, Appellant, v. Peter N.G. SCHWARTZ, Appellee.
• Court: D.C. Court of Appeals

573 A.2d 1303

INTERNATIONAL COMMISSION ON ENGLISH IN the LITURGY, Appellant, v. PeterN.G. SCHWARTZ, Appellee.

Nos. 88-766, 88-1152 and 88-1327.

District of Columbia Court of Appeals.

Argued February 7, 1990.

Decided May 3, 1990.

Appeal from the District of Columbia Superior Court, Bruce D. Beaudin, J.

Philip M. Musolino, Washington, D.C., for appellant.

David P. Blackwood, with whom Richard W. Luchs, Washington, D.C., was on the brief, for appellee.

Before NEWMAN, BELSON and TERRY, Associate Judges.

BELSON, Associate Judge:

This appeal arises from a dispute between a landlord and tenant of commercial space. After trial without jury, the trial court ruled that the tenant, International Commission on English in the Liturgy (ICEL), had wrongfully abandoned the premises before the expiration of the lease, and awarded damages to the landlord, Schwartz. ICEL appeals, contending that the trial court committed the following reversible errors: ruling that another tenant's interference with ICEL's use and enjoyment of the premises did not amount to constructive eviction by the landlord; concluding that the landlord fulfilled his duty to mitigate damages; awarding attorneys' fees to the landlord; and striking ICEL's jury demand. We affirm.

ICEL is a non-profit organization which provides translations of the liturgical books of the Roman Catholic Church. According to ICEL, its work requires a scholarly and professional environment. In 1983, ICEL and Schwartz's assignor executed a five-year lease agreement for commercial space in the building located at 1234 Massachusetts Avenue, Northwest. Schwartz subsequently purchased the building and was assigned the lease. During its occupancy, ICEL had intermittent problems with cleaning and repair services provided by the landlord. On September 1, 1984, the Dawson Early Learning Center leased and took possession of premises across the hall from ICEL. Several witnesses testified that theoccupants of the child care center caused some noise and disruption, although ICEL's executive secretary acknowledged that ICEL was never greatly inconvenienced by the child care center during the time that both ICEL and the child care center occupied the building. On October 4, 1984, ICEL wrote to the landlord's management company stating that the landlord had breached the terms of the lease by renting to the child care center, and that ICEL was terminating its lease as of December 31, 1984. In November, ICEL informed Schwartz that it had entered into a new lease for premises at a different location and would be terminating the lease on January 31, 1985. ICEL vacated the premises on January 27, 1985. In October 1986, after some renovation, Schwartz relet the premises vacated by ICEL. Schwartz's suit against ICEL sought back rent and rent that was to accrue through 1988 pursuant to the terms of the lease. The court found in favor of Schwartz, awarding him as damages the amount of money he would have received as rent for the balance of the lease term, offset by the amount of rent to be received from the new tenant over the balance of that term.

We affirm the trial court's ruling that ICEL was not constructively evicted from the premises by virtue of disruptions caused by the child care center.¹ To constitute constructive eviction, "the landlord must have done, or be responsible for, 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." Hughes v. Westchester Dev. Corp., 64 App.D.C. 292, 293, 77 F.2d 550, 551 (1935). "[A] landlord is not liable to his tenants for interference by third persons with the tenant's possession, absent any wrongful acts or omissions by the landlord." Rittenberg v. Donohue Constr. Co., 426 A.2d 338, 342 (D.C. 1981). Whether the landlord performed an act with the intent to evict the tenant is a question of fact for the trial court. Hughes, 64 App. D.C. at 293, 77 F.2d at 551.

Here, the trial court found that the landlord did not intend to deprive ICEL of its use and enjoyment of the premises by leasing space in the building to the child care center. This finding must be sustained on appeal as it is neither plainly wrong nor without evidentiary support. See D.C.Code § 17-305(a) (1989 Repl.). The mere letting of the premises to the child care center does not make the landlord responsible for whatever interference may have been caused by invitees of the child care center, and there was nothing in the lease which restricted the landlord's ability to lease other premises in the building. Cf. Dietz v. Miles Holding Corp., 277 A.2d 108, 110 (D.C. 1971) (lessee could not hold landlord responsible for interference caused by "hippie people" frequenting anti-Viet Nam war organizations in landlord's building absent allegation that the "hippie people" were acting under landlord's direction or with its knowledge and permission).

It was incumbent upon ICEL to complain to the landlord and to give the landlord an opportunity to cure the problem if the child care center was in fact interfering with ICEL's use and enjoyment of its premises. Because ICEL did not complain prior to giving notice that it was terminating the lease, this aspect of the record provides an additional ground for the trial court's ruling that the allegedly disruptive activities were not attributable to the landlord. See RESTATEMENT (SECOND) OF PROPERTY § 6.1 comment e (1977) (lessee cannot hold landlord responsible for interference caused by another tenant unless landlord fails to eliminate the interference promptly after a request to do so). In sum, therefore, the trial court's determination that the landlord did not constructively evict ICEL is supported by the record and not contrary to law.

ICEL also contends that Schwartz did not fulfill his duty to mitigate damages because he renovated the space vacated by ICEL and sought higher rent. We do not agree. When tenants wrongfully abandon premises, landlords have three options:

[the landlords] could accept the abandonment and thereby terminate the...