Jonathan Woodner Co. v. Adams, 86-1170.

• Decision Date: 28 October 1987
• Docket Number: No. 86-1170.,86-1170.
• Citation: 534 A.2d 292
• Parties: JONATHAN WOODNER COMPANY, Appellant, v. Margaret ADAMS, et al., Appellees.
• Court: D.C. Court of Appeals

Page 292

534 A.2d 292

JONATHAN WOODNER COMPANY, Appellant, v. Margaret ADAMS, et al., Appellees.

No. 86-1170.

District of Columbia Court of Appeals.

Argued October 6, 1987.

Decided October 28, 1987.

Arthur D. McKey, Washington, D.C., for appellant.

Roy L. Pearson, Jr., Washington, D.C., for appellees.

Before PRYOR, Chief Judge, and FERREN and ROGERS, Associate Judges.

ROGERS, Associate Judge:

This is an appeal by a landlord from an adverse judgment in a nonpayment of rent action. The tenants counterclaimed alleging that housing code violations had voided their leases, and, alternatively, that the landlord had breached its implied warranty of habitability. After trial by jury a money judgment was entered for the tenants. On appeal, the landlord contends that the pretrial judge erred in failing to give collateral estoppel effect to certain facts it alleged were decided in prior litigation between the parties, and that the trial judge erred in refusing to judicially notice an appellate decision or to permit portions of that decision to be read to the jury. We affirm.

I

In June, 1979, appellant Jonathan Woodner Company ("Woodner") filed separate actions for possession alleging nonpayment of rent against Margaret Adams and the other remaining tenants ("tenants") in Park Towers, 2440 Sixteenth Street, N.W.¹ In August, 1980, Woodner filed additional actions for possession against many of the same tenants alleging they had breached their leases by refusing Woodner access to their apartments. These cases were consolidated in 1979 and 1980. In November, 1980, the trial court granted Woodner's motion to dismiss the actions based on nonpayment of rent after Woodner successfully moved to dismiss the tenants' counterclaims. In December, 1980, a jury found that all but one of the defendants in the possessory actions had breached their leases, and Woodner was awarded judgment which was affirmed by this court in Joyner v. Jonathan Woodner Co., 479 A.2d 308 (D.C. 1984).

The tenants appealed the dismissal of their counterclaims and in Adams v. Jonathan Woodner Co., 475 A.2d 393 (D.C. 1984), this court reversed and remanded the case for trial. In the trial court Woodner's motion to reinstate its claim for a money judgment was granted. In pretrial proceedings Woodner sought collateral estoppel effect regarding two issues it alleged had been litigated in Joyner. Woodner contended that the tenants were estopped from denying, first, the validity of the leases, and, second, that they had refused Woodner access to their apartments to do repair work in 1980. After a careful review of the record in Joyner, the pretrial judge rejected Woodner's collateral estoppel arguments. At trial the judge rejected Woodner's request to take judicial notice of the Joyner opinion and refused to allow portions of the opinion to be read to the jury. Following a month long trial, the jury found for the tenants and a $52,396.96 judgment was entered in their favor.

II

We address first the preliminary issue of the record on appeal. Prior to oral argument and nearly one year after filing its Notice of Appeal and Designation of Record, Woodner requested leave to file a supplementary designation of record on appeal. This request was in addition to its request for this court to "take judicial notice of the record in the Joyner case." Brief for Appellant at 2; see note 12, infra. Since then, on the eve of oral argument, Woodner has filed two additional requests to supplement the record. We deny the requests.

The pretrial judge's ruling on collateral estoppel, like any trial court judgment, is to be treated as presumptively correct. Auxier v. Kraisel, 466 A.2d 416, 418 (D.C. 1983). Appellant has the burden of demonstrating trial court error and must provide the appellate court with a record sufficient to show affirmatively that error occurred. Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982); T.V.T. Corp. v. Basiliko, 103 U.S.App.D.C. 181, 183, 257 F.2d 185, 187 (1958). Appellant bears the burden of perfecting the appellate record and may not shift that responsibility to this court. Cobb v. Standard Drug Co., supra, 453 A.2d at 111.

The deadline for designating the record and transcript that Woodner wishes to rely upon in its appeal expired nearly one year ago. D.C.App.R. 10(a)(1) provides:

The appellant shall serve upon the appellee and file with the Clerk of the Superior Court six copies of a designation of the portions of the trial court record to be included in the record on appeal within ten days from the date of the filing of the notice of appeal. . . .

In addition, D.C.App.R. 10(c)(1) provides:

If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the record shall include the reporter's transcript of all evidence relevant to such finding or conclusion.[²]

Although Woodner's primary contention on appeal is that the pretrial judge erred in refusing to grant collateral estoppel effect to the decision in Joyner, it did not order a transcript of the hearing before the pretrial judge.³ Further, Woodner inexplicably failed to designate the transcript, or any other portion of the record in Joyner, that it relies upon in this appeal.⁴ Obviously Woodner cannot affirmatively show that the pretrial judge's findings on collateral estoppel are clearly erroneous without providing, at a minimum, a transcript of the pretrial hearing, the transcript of the Joyner trial and other relevant portions of the Joyner record. One reason appellants are required to designate a record on appeal in a timely fashion is to provide appellees an opportunity to decide whether they wish to counterdesignate portions of the record. The tenants researched and briefed the issues on appeal in reliance upon the record that Woodner indicated would be the entire record on appeal. The record reveals no basis for permitting Woodner to circumvent this court's procedural rules by supplementing the record⁵ on appeal at this late date. Cf. Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 518 (D.C. 1985) (knowledge of court rules ordinarily imputed to counsel).

III

Woodner contends that the pretrial judge erred in ruling that the tenants were not collaterally estopped⁶ by Joyner from denying the validity of their leases in the instant case. The general rule of collateral estoppel is stated in the RESTATEMENT (SECOND) OF JUDGMENTS 27 (1982):

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. quoted in Ali Baba Co. v. Wilco, Inc., supra note 6, 482 A.2d at 421 (footnotes omitted). See also Henderson v. Snider Bros., Inc., 439 A.2d 481, 483 (D.C. 1981) (en banc) (collateral estoppel involves relitigation of factual matters which were necessarily determined in first ligitation). Woodner's assertion that the validity of the leases was actually litigated because the tenants stipulated⁷ to their validity is directly contradicted by RESTATEMENT (SECOND) OF JUDGMENTS § 27 comment e (1982), which states that "Mil issue is not actually litigated . . . if it is the subject of a stipulation between the parties." A stipulation may bind the parties in a subsequent action "if the parties have manifested an intention to that effect." Id. Woodner does not claim, however, and our review of the record on appeal does not disclose, any manifestation of an intention by either party to be bound on the issue of lease validity.⁸

Woodner also contends that the validity of the leases was actually litigated in Joyner because it was the principal element of its prima facie case. Although this argument was not directly advanced before the pretrial judge, see supra note 7, as we understand it this is a reformulation of Woodner's argument below that a determination that the leases were valid was "inherent in the jury's verdict." Regardless of how the argument is framed, the validity of the leases could not have been actually litigated or essential to the judgment if the parties entered into a stipulation to that effect. The record before us provides no indication that the jury in Joyner ever considered whether the leases were valid during the course of its deliberations, and we decline to make such an inference.⁹

Woodner further claims that the pretrial judge erred in ruling that the tenants were not collaterally estopped from litigating the issue of whether they had denied Woodner access to their apartments for all purposes by refusing to make their keys available. Section seven of each tenant's lease has four disjunctive provisions relating to access:

7. That he will allow Landlord and its agents to have access to said premises at any time for purposes of inspection, or in the event of fire or other property damage, or for the purpose of installing or removing screens, or for the purpose of making any repairs Landlord considers necessary and desirable.

(Emphasis added). In Joyner, each of the jury verdict forms read as follows:

1. That the defendant DID x DID NOT ____

deny the plaintiff access to his/her apartment in violation of his/her lease at any time during the period from January 1980 to July 3, 1980.

2. That the defendant DID ____ DID NOT x

cure the violation of the lease agreement during the 30-day period from July 3, 1980 through August 3, 1980.

A careful reading of the jury interrogatories together with section seven of the lease reveals that a juror could decide in Woodner's favor if the juror concluded that a tenant had violated any one of the provisions at any time within the specified period. Due to the lack of specificity in the jury verdicts, it is impossible to determine conclusively which of the lease provisions the tenant violated. See Copening v. United States, 353 A.2d 305,...