Robinson v. Diamond Housing Corporation

• Decision Date: 03 April 1972
• Docket Number: No. 24508.,24508.
• Citation: 463 F.2d 853
• Parties: Lena ROBINSON, Appellant v. DIAMOND HOUSING CORPORATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

463 F.2d 853 (1972)

Lena ROBINSON, Appellant v. DIAMOND HOUSING CORPORATION, Appellee.

No. 24508.

United States Court of Appeals, District of Columbia Circuit.

Argued December 20, 1971.

Decided April 3, 1972.

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Mr. Richard B. Wolf, Washington, D. C., with whom Mr. C. Christopher Brown, Baltimore, Md., and Miss Marilyn Cohen, Washington, D. C., were on the brief, for appellant.

Mr. Herman Miller, Washington, D. C., for appellee.

Before WRIGHT, McGOWAN and ROBB, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

In Edwards v. Habib, 130 U.S.App.D. C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L. Ed.2d 560 (1969), this court held that a tenant may assert the retaliatory motivation of his landlord as a defense to an otherwise proper eviction. In Brown v. Southall Realty Co., D.C.App., 237 A.2d 834 (1968), the District of Columbia Court of Appeals held that a lease purporting to convey property burdened with substantial housing code violations was illegal and void and that hence the landlord was not entitled to gain possession for rent due under the invalid lease. Cf. Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970). The case before us involves the intersection of these two principles. Specifically, it raises the question whether a landlord who has been frustrated in his effort to evict a tenant for nonpayment of rent by successful assertion of a Southall Realty defense may automatically accomplish the same goal by serving a 30-day notice to quit.

Appellant argues that she should be permitted to show that her landlord, Diamond Housing, was motivated by a retaliatory intent when it served the notice to quit. Diamond Housing contends that a retaliatory eviction defense has no place in a situation where, as here, the landlord is unable or unwilling to make the repairs on the premises that would entitle it to rent under Southall Realty and alleges an intent to take the property off the housing market. When the District of Columbia Court of General Sessions granted summary judgment to appellee, appellant renewed her arguments in the District of Columbia Court of Appeals. That court affirmed, holding:

"* * * The retaliatory defense of Edwards v. Habib * * * is not available to a tenant in a case such as this where she was successful in a prior Landlord and Tenant action and is being evicted after the expiration of a thirty-day notice because the landlord wishes to withdraw the property from the rental market. The Edwards case involved a situation where the landlord attempted to evict the tenant because of her complaints to the housing authorities and it should be, we think, limited to its facts."

Robinson v. Diamond Housing Corp., D. C.App., 267 A.2d 833, 835 (1970).

We can find nothing about the Edwards principle which necessitates such a drastic limitation on its applicability. Indeed the prohibition against retaliatory evictions generally, without limitation to the facts of Edwards, and in terms applicable to Southall Realty rights,¹ has become part of the housing code of the District of Columbia. We see no reason why the rights protected in Southall Realty and Javins should be rendered nugatory by a restrictive reading of Edwards or by a judicial failure to respect the legislative will. We are therefore of the view that appellant should have been given the opportunity to prove the facts necessary to make out an Edwards defense and that the trial judge erred in aborting this opportunity by prematurely granting summary judgment. It follows that the decision of the District of Columbia Court of Appeals must be reversed.

I

If lawsuits were won by perseverance alone, Diamond Housing could hardly lose this suit. Appellee has been attempting to evict Mrs. Robinson for over three and a half years. It has proceeded under no fewer than three legal theories and has remained undaunted through an adverse jury verdict,² a dismissal of its action by the Court of General Sessions,³ an adverse decision by the District of Columbia Court of Appeals,⁴ and action by the District of Columbia City Council which seemingly cut the heart out of its case.⁵

The saga begins on May 2, 1968, when Mrs. Robinson and her four children moved into a row house owned by Diamond Housing in Northwest Washington. Mrs. Robinson signed a lease making her a month-to-month tenant with the apparent understanding that the landlord would repair the deteriorating condition of the premises. See Diamond Housing Corp. v. Robinson, L&T No. 62391-68, opinion and order of Judge Belson, October 16, 1968, Transcript of Record in DCCA No. 4864 at 6-7. When the landlord failed to keep this promise, Mrs. Robinson began withholding rent, and Diamond Housing sued for possession. Mrs. Robinson defended on the ground that substantial housing violations existed at the time the lease was signed and that the lease was therefore unenforceable under the principles announced in Brown v. Southall Realty Co., supra. Specifically, Mrs. Robinson introduced evidence showing that large pieces of plaster were missing throughout the house, that there was no step from the front walk to the front porch, that the front porch was shaky and unsafe, that there was a wall in the back bedroom which was not attached to the ceiling and which moved back and forth when pressed, that nails protruded along the side of the stairway, that there was a pane of glass missing from the living room window, and that the window frame in the kitchen was so far out of position that one could see into the back yard through the space between it and the wall. See Transcript of Record in DCCA No. 4864 at 7-8. At the completion of the trial, the jury returned a special verdict finding that housing code violations existed at the inception of the lease rendering the premises unsafe and unsanitary. Id. at 10-11. The trial court then granted judgment to Mrs. Robinson, as required by Southall Realty. Id. at 17.

Unwilling to admit defeat, Diamond Housing instituted a second suit for possession on the theory that, since the lease was void, Mrs. Robinson was a trespasser and hence no longer entitled to possession. When the trial court granted Mrs. Robinson's motion to dismiss,⁶ Diamond Housing appealed to the District of Columbia Court of Appeals. That court affirmed, holding that "an agreement entered into in violation of the law creates no rights upon the wrongdoer. The defense of illegality does not rescind the illegal agreement, but merely prevents a party from using the courts to enforce such an agreement." Diamond Housing Corp. v. Robinson, D.C.App., 257 A.2d 492, 495 (1969). (Footnote omitted.) It followed that Mrs. Robinson, "having entered possession under a void and unenforceable lease, was not a trespasser but became a tenant at sufferance." Ibid. The court added, however, that Mrs. Robinson's tenancy, "like any other tenancy at sufferance, may be terminated on thirty days' notice. The Housing Regulations do not compel an owner of housing property to rent his property. Where, as here, it has been determined that the property when rented was not habitable, that is, not safe and sanitary, and should not have been rented, and if the landlord is unwilling or unable to put the property in a habitable condition, he may and should promptly terminate the tenancy and withdraw the property from the rental market, because the Regulations forbid both the rental and the occupancy of such premises." Ibid. (Footnote omitted.)

Seizing upon this dicta, Diamond Housing instituted a third action for possession, this time on the basis of a 30-day notice. In support of its action, Diamond filed an affidavit stating that it was unwilling to make the repairs necessary to put the housing in compliance with the housing code and that it presently intended to take the unit off the rental market. See affidavit of Barry Mankowitz, Transcript of Record in DCCA No. 5194 at 64. In defense, Mrs. Robinson asserted that she was being evicted in retaliation for successfully asserting her Southall Realty rights in the previous actions, and that the eviction was therefore illegal under the principles announced in Edwards v. Habib, supra. Mrs. Robinson also argued that the eviction was barred under general equitable principles since Diamond Housing, having allowed its housing to fall into disrepair, lacked the requisite "clean hands."

On this record, Diamond Housing moved for summary judgment. In an oral opinion, Judge Hyde recognized that "there wouldn't be but one way this issue Diamond's retaliatory motive could be decided by the jury, because as a matter of fact, I should think that if the landlord is honest at all, he would admit that he's upset, angry, wanted the tenant out of there."⁷ Transcript of Record in DCCA No. 5194 at 41. Nonetheless, the court found that "it would seem to be the height of absurdity to permit retaliation, at this juncture, even to be entertained," ibid., and granted Diamond's motion. Id. at 45.

While this decision was on appeal to the District of Columbia Court of Appeals, Mrs. Robinson apparently vacated the premises. See Robinson v. Diamond Housing Corp., 139 U.S.App.D.C. 339, 341, 433 F.2d 497, 499 (1970) (statement of Judge Robinson). However, the precise circumstances surrounding her move are not clear on this record. Mrs. Robinson alleges that she was forced to leave involuntarily by the continued existence of the unremedied housing code violations. See affidavit of Lena Robinson, Record in D.C.Cir. No. 23,850. Diamond Housing asserts that Mrs. Robinson voluntarily made the premises uninhabitable by failing to pay her heating bills which led to a discontinuance of heat and the freezing of all pipes in the building. See brief for appellee at 4.

Whatever the truth of these competing contentions, the District of Columbia Court of...