Lenkin-N Ltd. Partnership v. Nace, 88-594.

• Citation: 568 A.2d 474
• Decision Date: 05 January 1990
• Docket Number: No. 88-594.,88-594.
• Parties: LENKIN-N LIMITED PARTNERSHIP, et al., Appellants, v. Barry NACE, Appellee.
• Court: D.C. Court of Appeals

568 A.2d 474

LENKIN-N LIMITED PARTNERSHIP, et al., Appellants, v. Barry NACE, Appellee.

No. 88-594.

District of Columbia Court of Appeals.

Argued November 15, 1989.

Decided January 5, 1990.

Glenn M. Cooper, with whom David A. Slacter, Bethesda, Md., was on the brief, for appellants.

John J. Sellinger, Mercer, Pa., with whom Lynn S. Spradley, Washington, D.C., was on the brief, for appellee.

Before BELSON, STEADMAN and FARRELL, Associate Judges.

FARRELL, Associate Judge:

This case involves a dispute over whether a delay in completing construction of certain "raw" commercial space leased by the law firm of Paulson & Nace (PN)¹ from appellant Lenkin-N Limited Partnership (Lenkin) constituted a breach of the lease agreement. Plaintiff-appellee brought suit in Superior Court contending that because of unreasonable delay by Lenkin in preparing the entire premises for occupancy, the firm was forced, for a period of several months, to pay the entire rent on office space that was only partially occupiable. Plaintiff sought damages amounting to that portion of the rent and electricity expenses attributable to the unoccupied portion of the office, which was the first floor. Lenkin defended on the ground that no unreasonable delay had occurred and that, pursuant to the terms of the lease, plaintiff was responsible for the entire amount of the rent even though construction on a portion of the premises was not yet completed when he moved in. The jury found for plaintiff and awarded damages of $6,316.

On appeal, Lenkin argues that plaintiff's failure to present expert testimony that any delay in "building out" this commercial office space was unreasonable rendered his evidence insufficient to create a jury issue, so that Lenkin's motion for a directed verdict should have been granted at the end of plaintiff's case.² For the reasons that follow, we agree and reverse.

I

On July 5, 1985, PN and Lenkin signed a lease agreement to rent commercial office space located at 1814 N Street in Northwest Washington, D.C. At the time the lease was signed, the space was "raw"; that is, it was completely bare with concrete floors, no ceilings and no walls. It therefore had to be "built out" before it could be used.

Section 2 of the lease stated that the rental term would begin on one of three dates:

the earlier ... of the following: (a) the date tenant opens for business; or (b) the later of (1) October 1, 1985,³ or (2) fifteen (15) days after tenant receives written notice from landlord that so much of the building standard work as is not dependent on prior installation or completion of special items ordered by or for tenants will have been substantially completed.... (Emphasis added.)

Under section 24 of the lease, Lenkin was required to supply and install all "building standard work" at its own expense. This included the work necessary to construct a standard office space such as walls, ceilings, doors, electrical and telephone outlets, and heating and air conditioning. Any additional or more elaborate "special items" were PN's responsibility, for which they could hire Lenkin or subcontract elsewhere. In either case, PN acknowledged that

the installation or completion of Special Items may take longer than would the installation or completion of Building Standard items, and may delay the installation or completion of Building Standard work to be done. Accordingly, Tenant... must accept delivery ... even though the Landlord's Work may not have been completed by the Tenant Occupancy date as a result of delays occasioned by special items.

PN chose to hire Lenkin for a substantial portion of the special item work.

On July 16, 1985, PN hired Fran Spector, a professional space planner and interior designer, to design the interior office space. PN expressed a desire for a "traditional" type of office containing a substantial amount of custom woodwork or millwork and other special items that went beyond the building standard work provided by Lenkin.⁴ Pursuant to PN's instructions and the terms of the lease, Spector prepared construction documents and submitted them to Lenkin for pricing on August 8, 1985. Lenkin, after contacting the necessary subcontractors, completed its first pricing proposal on August 30, 1985, and submitted it to Spector and PN for approval. After reviewing the proposal, PN decided to eliminate some of the special items in order to reduce costs. They returned it to Lenkin for revisions on September 4, 1985. Lenkin submitted a revised proposal on September 11⁵ which was once again returned with changes. The third and final proposal was submitted to PN on September 16 and signed on the 23rd. The proposal noted that the millwork would require ten to twelve weeks of lead time and the carpeting six to eight weeks. Construction began on September 24.

On October 17, 1985, Lenkin gave notice that the portion of the building standard work not dependent on installation of special items ordered by PN would be substantially completed in 15 days. A final walk-through was conducted on November 1. The parties agree that the space was not ready for occupancy as of that date. Since the special millwork required to complete the stairs between the first and second floors had not arrived, the stairs were unfinished. Many of the special light fixtures also had not arrived, which delayed installation of the ceilings. Spector testified, however, that as of November 1 Lenkin had substantially completed the standard work that was not dependent on the special items.

PN moved into the second floor on November 25, 1985, and began paying rent as of that date.⁶ The first floor was still unusable. By late January or early February of 1986, PN was able to occupy the entire premises.

II

Plaintiff's case rested essentially on his deposition testimony. In the deposition, he testified that he had expressed a desire to occupy the new space by October 1, 1985, and that Lenkin should not have taken until late January 1986 to complete construction. Plaintiff stated that when he visited the premises before September 23, 1985, no construction activity had begun. On cross-examination, however, he acknowledged that he had twice modified and returned the special item proposals submitted by Lenkin before the third proposal was accepted on September 23. Plaintiff also testified that the millwork should not have taken ten to twelve weeks of lead time, since there had been negotiations on the lease going back to May, and that the work should have been completed before January 1986. On cross-examination, however, he acknowledged that he did not know "how long millwork should take," stating that "I'm not in that area...." Plaintiff presented no expert testimony that the delay in interior construction of the office building was unreasonable.

III

The trial court, in ruling on a defendant's motion for a directed verdict, must view the evidence in the light most favorable to the plaintiff, Ceco Corp. v. Coleman, 441 A.2d 940, 944 (D.C.1982), and the plaintiff must be accorded the full effect of every legitimate inference therefrom. Mahallati v. Williams, 479 A.2d 300, 304 (D.C.1984). Upon review, this court is guided by the same standard. Ceco, supra, 441 A.2d at 994. If the evidence is such that no reasonable person could find for the plaintiff, then the question should not be put before the jury. Id.

In denying Lenkin's motion for a directed verdict at the close of plaintiff's case, the trial court found that

there is some evidence of delay; that is to say, absence of work on the premises. There is some evidence of delay between presentation of ... specifications by Spector and response thereto by Lenkin. And evidence from the Plaintiff indicating the complete absence of any activity on the premises related to readying the premises for ... occupancy ... and possession.

And there was sufficient evidence, therefore, from which the jury could conclude that the work of the contract was not being prosecuted with reasonable diligence, because there was some evidence indicating that it was not being prosecuted, at least on the premises, at all.

Upon review of the record, we conclude that there was no evidence from which a rational juror could find by a preponderance of the evidence that the delay in construction was unreasonable.

At best, plaintiff's testimony established that there was some delay in beginning construction and in completing the millwork. There was no evidence, however, from which the jury could conclude that this delay was unreasonable. The burden was on the plaintiff to establish that the lease agreement had been breached. The agreement specified that the lease would commence either on October 1, 1985, or fifteen days after the building standard work not dependent on the special items had been substantially completed. It also noted that installation of special items could delay completion of the space and that PN was obligated to accept delivery even though the work had not been finished. The pricing proposal for the special items in turn noted that the millwork would require ten to twelve weeks of lead time and the carpeting six to eight weeks. Thus, the possibility of delay was anticipated by both parties and could not by...