Queen v. Postell, 84-1702.

• Decision Date: 05 August 1986
• Docket Number: No. 84-1702.,84-1702.
• Citation: 513 A.2d 812
• Parties: Phoebes QUEEN t/a Phoebes Queen Real Estate, Appellant, v. Jeffrey POSTELL, et al., Appellees.
• Court: D.C. Court of Appeals

Page 812

513 A.2d 812

Phoebes QUEEN t/a Phoebes Queen Real Estate, Appellant, v. Jeffrey POSTELL, et al., Appellees.

No. 84-1702.

District of Columbia Court of Appeals.

Argued May 7, 1986.

Decided August 5, 1986.

Margaret A. Beller, with whom Carolyn R. Just, Washington, D.C., on brief, for appellant.

Robert J. Greenleaf, Silver Spring, Md., for appellees.

Before PRYOR, Chief Judge, NEBEKER, Associate Judge, and REILLY, Senior Judge.

REILLY, Senior Judge:

This is an appeal from an order denying a motion for judgment notwithstanding the verdict, following an action for damages on a complaint alleging wrongful eviction, breach of covenant of quiet enjoyment, and conversion of personalty. The challenged verdict was returned by a jury in an action against a real estate broker, Phoebea Queen, brought by Jeffrey Postell, the lessee of an apartment, and his wife Claudia Rowell. They had been evicted from his apartment some four months previous to the commencement of this action on a writ of restitution issued after a default judgment for summary possession had been entered against them in the Landlord and Tenant Branch of the trial court.¹

Appellant, the defendant below, contends that (1) the action was barred under the doctrine of res judicata by reason of the default judgment, (2) on the evidence adduced at trial, no jury could reasonably have returned a verdict in plaintiffs' favor, and (3) there was no evidence to support the jury's award of punitive damages. We agree only with the last contention.

The evidence at trial may be summarized as follows:

Postell testified that on or about May 17, 1982, he signed an agreement with Queen² for lease of an apartment unit in a building on Oklahoma Avenue, N.E. The lease called for monthly payment of rent in the amount of $231.91, as well as a down payment of $230 as a security deposit.³ Because the lease commenced in mid-month, rent for the month of May was prorated to $126 — an amount also paid in advance.

Postell and Claudia Rowell (later Mrs. Postell), did not move into the apartment until May 27, although the term of the lease began 10 days earlier. His testimony was that he could not obtain the keys to the apartment until May 25, and then discovered that these keys would not unlock the front door, and that despite complaints to Queen, the door could not be properly closed until he obtained a new lock himself.

This portion of the testimony was contradicted by Queen and by a maintenance man. Her position was that the unit was ready for occupancy and that any delay in moving in was occasioned by Postell's own failure to keep an appointment with her when she visited the unit to see that the defective door was repaired. This controversy soon became the subject of a rental dispute.

When the June rent was due, the tenants forwarded to Queen $116 in a letter stating that this sum represented payment of the rent for that month less a set-off of rent paid in May for the period Postell claimed the unit unavailable for occupancy. Queen replied in a letter, dated June 8, that this deduction was unacceptable and that the sum of $77.63 was still owed the landlord.

When Postell did not answer promptly, the landlord on June 22 began an action for summary possession predicated upon a refusal to pay rent. Postell was aware that the accompanying summons required his appearance in court on July 12, for in a letter enclosing the July rent — which Queen received early that month — he restated his reasons for not paying the disputed portion of the May rent, but offered to compromise by paying the sum of $33.63. The letter stated that if Queen was still dissatisfied, he would "see [her] in court on July 12th."

Postell, however, did not appear in court on the trial date, and a default judgment was entered. Soon thereafter, a writ of restitution was issued to the office of United States Marshal. On July 27, a marshal with a moving crew came to the Postell apartment and finding neither occupant there arranged the removal of furniture and other contents of the apartment to the sidewalk. According to Postell's testimony, the eviction was entirely unexpected, as he had assumed from information his fiancee had given him that Queen had withdrawn the suit for possession pursuant to a settlement arrived at in a telephone conversation between the two women on July 9. On that particular day, he left the city to join the Baltimore Colts at their football training camp in Reistertown, Maryland, thinking it was not necessary to appear in court on July 12th in the landlord and tenant action.

He testified that he did not become aware that any eviction was in prospect until July 27, when he telephoned the apartment from the training camp. A man answered the call, identifying himself as a marshal carrying out an eviction. Postell then called his wife at work. She returned home and found their furniture on the street. According to Postell, his wife then discovered that several items were broken and that other articles were missing.

The testimony of Rowell was that she informed Postell that she had telephone Queen on July 9 and had made an offer, which was then accepted by Queen, to settle the rent dispute by paying $77.63 on August 1 with that month's rent. On the basis of this agreement, Rowell assumed the rental dispute had been resolved and no appearance in court was required.⁴ Rowell added that there was no communication with Queen between July 9 and July 27, the date of eviction. Rowell testified further that although she and Postell received notice of Queen's suit of possession, neither received notice that the eviction would be carried out.

Queen's account of the events in July created a sharp conflict of testimony on every critical issue. She testified that there was no telephone conversation with Rowell on July 9, and that she did not hear from either tenant after receiving the letter from Postell on the first of the month stating that he would see her in court on July 12th, until July 22, when Rowell telephoned her. By that time, the default judgment had been entered, for Rowell alluded to her receipt of a writ of "eviction" — presumably either a writ of restitution or a notice of the judgment creditor's application for such a writ.⁵ According to Queen, Rowell then inquired "if she could pay the rent that was past due in with the rent, August 1, 1982," but she rejected this offer stating that unless she [Rowell] paid up prior to or on the date of the eviction, she would be evicted. The witness said there was no further response from the tenants until July 27, when Rowell telephoned to complain about the eviction in process, and threatened to sue.

Queen also testified that she did not return the security deposit to the lessee, explaining that she expended the balance in paying for the costs of the eviction and for cleaning the vacated apartment before showing it to prospective tenants.

Prior to trial, defendant Queen had moved for dismissal of the action, asserting that the default judgment for summary possession amounted to res judicata. This motion was denied, the court noting that the pending complaint for wrongful eviction was based "on some form of fraud or misrepresentation" in procuring that judgment.

In charging the jurors, however, the court did not say that the eviction could be deemed wrongful only if they found that the defendant engaged in fraud or misrepresentation. After stating that if they believed Queen's testimony they should return a verdict for the defendant, the court then instructed the jury as follows:

Now, as to the claim for a wrongful eviction. A tort is a personal wrong committed by one person against another as opposed to a crime where the wrong is committed against the State. In this jurisdiction, the wrongful eviction of a tenant by a landlord is a tort and entitles the tenant to sue the landlord. In deciding the plaintiffs' claim for wrongful eviction, you should determine whether the eviction violated an alleged compromise or settlement concerning any outstanding balance on the plaintiffs' account.

You should first determine by preponderance of the evidence whether you believe a settlement or compromise was created concerning the payment of the outstanding balance.

For the purpose of this case, no particular form of agreement and no writing is essential to achieve a valid compromise or settlement. Where concessions are mutually made, a compromise or settlement will be found and, thereafter, one party may not cancel it without the other parties' consent.

If you believe the dispute over the payment of the outstanding balance was settled or compromised, then you are instrutted that the defendant's eviction of the plaintiffs is wrongful if it violated that settlement or compromise. In that case, your verdict should be for the plaintiffs and you should proceed to determine what, if any, compensatory or punitive damages should be awarded to the plaintiffs. . . .

Implicit in this instruction is the premise that even though no express commitment was made to dismiss or postpone the pending lawsuit, the party being sued had a right to assume once the settlement offer was accepted that it was under no duty to appear in court or take any other steps to avert a default judgment.

The trial court did not err in giving this instruction. In our opinion if a plaintiff in a lawsuit unequivocally accepts a settlement offer, this has the effect of lulling the defendant into believing that interposing a defense or filing a motion to dismiss is unnecessary. Hence, even if a plaintiff did not deliberately intend to trick his opponent into foregoing a defense or missing a trial date, he may be liable for breach of contract unless he instructs his counsel to act affirmatively to prevent execution of a default judgment. A showing of actual fraud or collusion is unnecessary.⁶ See generally RESTATEMENT (SECOND) OF JUDGMENTS §§ 67, 68, illustration 2 (1982).

Accordin...