Brandywine Apartments, LLC v. McCaster

• Decision Date: 29 January 2009
• Docket Number: No. 07-CV-699.,No. 06-CV-1181.,06-CV-1181.,07-CV-699.
• Citation: Brandywine Apartments, LLC v. McCaster, 964 A.2d 162 (D.C. 2009)
• Parties: BRANDYWINE APARTMENTS, LLC, Appellant, v. Willie McCASTER, Appellee.
• Court: D.C. Court of Appeals

964 A.2d 162

BRANDYWINE APARTMENTS, LLC, Appellant, v.Willie McCASTER, Appellee.

No. 06-CV-1181.

No. 07-CV-699.

District of Columbia Court of Appeals.

Argued November 5, 2008.

Decided January 29, 2009.

Todd Kelting, for appellant.

William C. Johnson, Jr., Washington, for appellee.

Before RUIZ and FISHER, Associate Judges, and FARRELL,^* Senior Judge.

FISHER, Associate Judge:

Having found violations of the District of Columbia Human Rights Act and the Consumer Protection Procedures Act, a jury awarded damages to appelleeWillie McCaster.The court later awarded attorney fees to his counsel, and appellant challenges these judgments on appeal.We affirm in part and reverse in part.

I.The Factual and Procedural Background

On August 23, 2003, appelleeWillie McCaster and his common-law wife, Falicia Richmond, filed an application to rent an apartment in The Brandywine, a building located at 4545 Connecticut Avenue, N.W., and owned by Brandywine Apartments, LLC.Mr. McCaster testified that he wanted to rent the apartment so that he and his son could live there and his son could continue attending the elementary school located in the same district as The Brandywine.Although he intended that Ms. Richmond live with them, Mr. McCaster testified that he would have rented the apartment even if she had not been allowed to occupy the premises.

The Brandywine's policy required that each adult who intended to live in an apartment fill out an application and submit to a credit check and a criminal record check, so appellee and Ms. Richmond submitted separate applications.The Brandywine used the Markswright Qualification Standards,¹"criteria for qualifying prospective residents," which state, in relevant part:

If, in the screening process, the inclusion of a person causes the application to be denied on the basis of credit information, you may withdraw that person from the screening process and proceed with the rest of the applicants and/or occupants.Applicants and occupants denied on the basis of criminal background check shall not be allowed to occupy the premises.

Mrs. Chandra Marks, the "representing managing agent" of The Brandywine, testified that this guideline meant that if two persons applied to live in the same apartment, and one of them was unable to pass the background check, the other person would be able to proceed with his or her own application to live in the apartment without the unacceptable person.When persons applied to live in the same apartment, "[t]heir whole process is handled in one step-by-step fashion together," and she treated Mr. McCaster and Ms. Richmond as having jointly applied.

At the start of the application process, The Brandywine ran a credit check on both Mr. McCaster and Ms. Richmond; Mr. McCaster's credit was approved, but Ms. Richmond's credit precluded her from proceeding with the application unless she provided a co-signer.²Mrs. Marks stated that she spoke with Ms. Richmond's mother, who agreed to co-sign on behalf of her daughter.Mrs. Marks testified that she never received the co-signed application; however, the lack of a co-signer became irrelevant when, on August 27, 2006, Mrs. Marks received the results of the criminal background check showing that Ms. Richmond had twice been arrested for misdemeanors.³On this basis, Ms. Richmond's application was immediately denied.⁴Mrs. Marks testified that the applications of Mr. McCaster and Ms. Richmond were "for all intents and purposes ... one application," and therefore Mr. McCaster's application was denied concurrently with Ms. Richmond's.

When asked by appellee's counsel whether it is "permissible for an accepted husband to get an apartment when his wife was unaccepted," Mrs. Marks first responded that she did not know because "[t]hat situation hasn't happened to me."She clarified that she had never encountered a husband who sought to rent an apartment in The Brandywine, knowing that his wife would be precluded from living there.Nevertheless, Mrs. Marks stated that appellee would have been allowed to withdraw his wife from his application.Appellee never informed The Brandywine that he was interested in renting the apartment without Ms. Richmond; nor was he expressly informed of that option.

Appellee asserted that The Brandywine never told him why his application was rejected, and that he hired an attorney after he had been unable to get in touch with the management to find out any information.However, Mrs. Marks testified that on August 27, 2006, she told both Ms. Richmond and Mr. McCaster, in separate phone calls, why the application had been denied."I told him that the application was denied because of Ms. Richmond's criminal background."Appellee said that he would have his attorney call her.Later that afternoon, the attorney called and Mrs. Marks "told him that they were denied because of [Ms. Richmond's] background."

Appellee testified that he found the experience of being rejected from The Brandywine "stressful," because he was concerned about maintaining his son's placement in the local school.On redirect examination, he added that The Brandywine's alleged failure to respond to his inquiries regarding the reason for the denial was "humiliating" and "upsetting."He presented no evidence of economic damage.

The jury found that The Brandywine had violated the District of Columbia Human Rights Act (DCHRA) by "terminat[ing], refus[ing], or fail[ing] to initiate or conduct a real property transaction with plaintiff on the basis of plaintiff's marital status" and by "impos[ing] conditions not imposed on non-married applicants on the basis of plaintiff's marital status."The jury also found that the appellant had violated the District of Columbia Consumer Protection Procedures Act (CPPA) by "fail[ing] to state a material fact to plaintiff[which failure] tended to mislead plaintiff."It awarded $20,000 in compensatory damages for the DCHRA violation, and $2,500 in damages for the CPPA violation.

Following the verdict, appellee's attorney sought compensation under the DCHRA and the CPPA, both of which authorize the court to award reasonable attorney fees if the plaintiff's attorney wins his case.SeeLively v. Flexible Packaging Ass'n,930 A.2d 984, 989 n. 6(D.C.2007)("The entitlement to attorneys' fees under the D.C. Human Rights Act derives from D.C.Code § 2-1403.13(a)(1)(E)(2001).");D.C.Code § 28-3905(k)(1)(CPPA provision authorizing recovery of "reasonable attorney's fees.").Appellee's counsel, Mr. Johnson, presented time sheets and testified about the hours he spent working on appellee's case, but the court found his records to be "on their face, unreasonable" and "completely inaccurate," and "d[id not] credit [his] testimony."However, "based upon [a] review of the pleadings [and] ... the docket,"the trial court decided "what would be a reasonable amount of time to spend on [ ]this case" and awarded Mr. Johnson $9,000 in attorney fees for his victory on the DCHRA claim, and $4,500 for the CPPA claim.

II.Standard of Review

"It is only in the unusual case, in which only one conclusion could reasonably be drawn from the evidence, that the court may properly grant judgment notwithstanding the verdict."Homan v. Goyal,711 A.2d 812, 817(D.C.1998)(internal editing and citation omitted).Nevertheless, "a court should render judgment as a matter of law when `a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'"Reeves v. Sanderson Plumbing Products, Inc.,530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105(2000)(quotingFed. R.Civ.P. 50(a));accord, Washington Convention Center Authority v. Johnson,953 A.2d 1064, 1072(D.C.2008)("Judgment as a matter of law must be granted if, viewing the evidence in the light most favorable to the non-moving party, there is no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party."(internal quotation marks and citation omitted)).

III.The Human Rights Act Claim

A.May We Consider the Sufficiency Issue?

Appellant challenges the DCHRA judgment on two principal grounds: (1) that Mr. McCaster failed to prove that he was discriminated against — treated differently — because The Brandywine perceived him to be married, and (2) that there was insufficient evidence of any damages resulting from the alleged discrimination.In its motions for judgment, however, appellant did not raise the lack of evidence of discrimination.⁵We have said that "[u]nless a party fairly apprises the trial court of the theory advanced or question presented with some precision, such questions will generally be spurned on appeal."Mitchell v. District of Columbia,741 A.2d 1049, 1052(D.C.1999).The purpose of this requirement "is to call the attention of the opposing party to the alleged deficiency in the evidence at a point in the trial where that party may cure the defect by presentation of further evidence."NCRIC, Inc. v. Columbia Hosp. for Women Medical Center, Inc.,957 A.2d 890, 904(D.C.2008)(internal citations omitted).

However, appellee has not argued on appeal that this claim should be rejected because it was not preserved.He therefore arguably has waived any procedural objection.See, e.g., In re T.L.,859 A.2d 1087, 1090-91 n. 6(D.C.2004)(approving "waiver of the waiver" analysis);United States v. Delgado-Garcia,362 U.S.App. D.C. 512, 515, 374 F.3d 1337, 1340(2004)(same);see alsoWilson-Bey v. United States,871 A.2d 1155, 1156-57 n. 4(D.C.2005)(holding that decision whether to apply "waiver of the waiver" analysis "is a discretionary one for the appellate court"), rev'd on other grounds,903 A.2d 818(D.C.2006)(en banc).⁶Although we rarely exercise our discretion in this manner, we have done so previously where we have found that it would be unjust to "dispose of the appeal on technical grounds not related to the...