Mendes v. Johnson

• Decision Date: 13 June 1978
• Docket Number: No. 10279.,10279.
• Citation: 389 A.2d 781
• Parties: Fortunato J. MENDES, Appellant, v. Montina JOHNSON, Appellee.
• Court: D.C. Court of Appeals

Page 781

389 A.2d 781

Fortunato J. MENDES, Appellant, v. Montina JOHNSON, Appellee.

No. 10279.

District of Columbia Court of Appeals.

Submitted June 23, 1976.

Decided en banc June 13, 1978.

Fortunato J. Mendes, pro se.

John A. Lynch, Jr., and Harold A. Levy, Washington, D.C., were on the brief for appellee. Joseph R. Cooney, Washington, D.C., also entered an appearance.

Before NEWMAN, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER, NEBEKER, YEAGLEY, HARRIS, MACK and FERREN, Associate Judges.^*

MACK, Associate Judge:

Appellant landlord seeks reversal of the judgment entered in favor of the appellee (plaintiff) in an action for unlawful eviction. He argues that the complaint failed to state a cause of action inasmuch as in evicting appellee, he was simply exercising the right of a landlord to use self-help to evict a tenant, a right recognized at common law and, according to appellant, still viable under the case law of this jurisdiction. Resolution of this question turns on whether or not the various statutory remedies for reacquiring possession have abrogated the common law right of self-help. In Section I, we hold that those statutory remedies are exclusive (overruling our prior decision to the contrary) and that an action will lie in tort against a landlord who evicts a tenant without legal process. In Section II, we analyze the issue of prospective versus retroactive application, and give this overruling decision partially retroactive application. In Section III, we treat the issue of punitive damages. We affirm the judgment of the trial court except as to the award of punitive damages.

Appellee was a tenant by the month in a house owned and managed by appellant. He evicted her by packing up and removing all her possessions. Appellee and her daughter had to pay for a motel before finding other lodging. The complaint sought exemplary or punitive damages in addition to actual damages of more than one thousand dollars. The trial court awarded Ms. Johnson one hundred dollars for actual damage to and loss of furniture, and three hundred dollars in punitive damages. This appeal followed.

I.

Appellant argued at trial that the complaint should be dismissed for failure to state a cause of action. He claimed, as noted above, that in the District of Columbia, the common law right of a landlord lawfully entitled to possession¹ to evict a tenant by effecting a peaceful² reentry survived the enactment of specific statutory remedies for reacquiring possession. Two cases, Burford v. Krause, 89 F.Supp. 818 (D.D.C.1950), and Snitman v. Goodman, D.C.Mun.App., 118 A.2d 394 (1955), were cited in support of this position. The trial court rejected this view, adopting instead the reasoning of Chief Judge Greene as set forth in Wheeler v. Thompson, 98 D.W.L.R. 41 (D.C.Gen.Sess., L&T No. 103875-69, Jan. 9, 1970). Before turning to these authorities, an outline of the historical background of this dispute may be helpful.

A.

Under early common law, a landlord was privileged to enter upon his land and recover it by force, using violence if necessary. However, this privilege was modified as early as 1381, when a statute was passed making such forcible entry a criminal offense.³ This criminal statute was accepted as part of the common law, or reenacted, by nearly all of our states.⁴ In addition, most states provided a summary procedure whereby a landlord could quickly reacquire possession from a defaulting tenant with the aid of judicial process.⁵

These "forcible entry and detainer" statutes, both civil and criminal, have been variously interpreted. In England, the Statute of Richard II was held not to provide any basis for a civil action for trespass to the land, since a tenant, having no rightful claim to the land, could not be injured by its deprivation; the landlord would be liable for criminal prosecution, but the tenant had no claim for damages. However, in Newton v. Harland, 1 Man. & G. 644, 133 Eng.Rep. 490 (1840), it was held that an action for assault and battery would lie when force was used upon the person of the occupant in the course of the eviction. Thus a distinction was developed between forcible entry, which was a criminal offense but not a civil wrong against one wrongfully in possession, and forcible eviction, which was actionable civilly as an invasion of the occupant's interests in bodily security and exclusive custody and control of his chattels.⁶ Before being overturned in England in 1920 (Hemmings v. Stoke Poges Golf Club, 1 K.B. 720 (1920)), this view gained a wide following among the states. The current English view is that the privilege extends to the use of reasonable force both to reenter the premises and evict the occupant and his possessions.⁷

American jurisdictions have been neither consistent nor uniform in their approach to these issues.⁸ Thus some states still adhere to the current English view that the landlord may use reasonable force to evict the tenant and his possessions without being civilly liable.⁹ Some jurisdictions grant the landlord the right to reenter if he can do so peaceably.¹⁰ A large number of states have adopted the rule that the landlord must in all cases, resort to the courts to dispossess a tenant or be liable to the tenant for forcible eviction.¹¹

These varying results are, in effect, reflections of the judicial response to two separate questions: (1) does the criminal forcible entry and detainer statute provide a basis for a civil action as well; and (2) is the summary possessory action created by statute an exclusive remedy. It is the second inquiry which directly concerns us here. As noted, appellant's view is that under the case law of the District of Columbia, the statutory remedy is merely an alternative, and the self-help doctrine has been abrogated only to the extent of requiring that it be exercised without violence. Because the entry and eviction here were accomplished peaceably, appellant claims that he may not be held liable in tort, simply for failure to resort to judicial process.

B.

Although the question has arisen infrequently, appellant's position is not without support in the case law of this jurisdiction. The first case squarely to address the issue was Burford v. Krause, supra, which involved a tenant of commercial property who sought to recover compensatory and punitive damages from his landlord who reentered the premises after breaking a lock and removed the plaintiff's possessions to a warehouse. The court noted that the common law rule permitting the use of "any force necessary to expel the tenant" had been "qualified to prevent physical violence, force and breach of the peace." Id. at 819. Nonetheless, it concluded that:

The presence of the local forcible entry and detainer statutes does not supplant the common law right of self help in peaceably entering into premises on which a lease has expired where such entry is accomplished without breach of the peace. They merely afford additional means to which the parties may resort and under some circumstances may prove more orderly and less costly than the method employed in the case herein. [Id. at 820.] The Burford case was relied upon by our Municipal Court of Appeals five years later in Snitman v. Goodman, supra, which affirmed a directed verdict on behalf of the defendants in a suit brought by the former tenant of a parking lot to recover possession thereof. In considering whether the legislatively created summary proceeding was the exclusive remedy, the court quoted at length from Burford, and then continued:

In Lindner v. District of Columbia, D.C. Mun.App., 32 A.3d 540, 543, we said that "unless so declared in express terms or by necessary implication, a statutory remedy is merely cumulative and does not abolish an existing common law remedy." There is no express provision in the statute under consideration which abolishes the landlord's common law right and we see no necessary implication to that effect.

A second basis for the Snitman ruling was the fact that the criminal forcible entry and detainer statute forbids

(1) forcible entry and (2) unlawful detention by force although entry was without force. It appears to us that this statute recognizes that one who is lawfully entitled to possession has a right of entry if he can make such entry without the use of force. [118 A.2d at 397-98 (emphasis in original).]

However, more recent decisions suggest that the Snitman approach is not widely favored even in this jurisdiction. Thus the circuit court in an action brought by a commercial tenant for wrongful eviction, trespass and breach of contract observed that punitive damages might be allowed for trespass and wrongful eviction where the landlord engaged in "the dark-of-night lock-changing method of eviction . . . instead of invocation of the process of the law for that purpose." Camalier & Buckley-Madison, Inc. v. Madison Hotel, Inc., 168 U.S.App.D.C. 149, 162 n. 93, 513 F.2d 407, 420 n. 93 (1975).

The only reported decision addressing the right of self-help in the residential context is Wheeler v. Thompson, supra, upon which the trial court relied in the instant case. The tenant, who had been forcibly evicted from her apartment by the landlord, sought an order restoring her to the premises and protecting her possession from further disturbance except through normal court processes. The landlord, relying on Snitman v. Goodman, supra, argued that he was not limited to court action to dispossess a tenant. Unable to overrule Snitman, the trial court chose to distinguish it factually from the case before it, and held that for public policy reasons, a landlord of residential property could not rely on self-help to evict his tenant. We find Chief Judge Greene's reasoning persuasive.

It is true, of course, as the Snitman court observed, that a statutory remedy is, as a rule, merely cumulative and does not abolish an existing common law remedy unless so declared in express terms or...