Shehyn v. District of Columbia, 12548.

• Citation: 392 A.2d 1008
• Decision Date: 16 October 1978
• Docket Number: No. 12548.,12548.
• Parties: R. Roderick SHEHYN, Appellant, v. DISTRICT OF COLUMBIA et al., Appellees.
• Court: D.C. Court of Appeals

392 A.2d 1008

R. Roderick SHEHYN, Appellant, v. DISTRICT OF COLUMBIA et al., Appellees.

No. 12548.

District of Columbia Court of Appeals.

Submitted May 25, 1978.

Decided October 16, 1978.

COPYRIGHT MATERIAL OMITTED

Paul D. Kamenar, Washington, D. C., for appellant.

John R. Risher, Jr., Corp. Counsel, Washington, D. C., at the time the brief was filed, Richard W. Barton, Deputy Corp. Counsel, Leo N. Gorman and George T. Masson, Jr., Asst. Corp. Counsels, Washington, D. C., were on the brief for appellees.

Before NEBEKER, YEAGLEY and FERREN, Associate Judges.

NEBEKER, Associate Judge:

Appellant asserts that the trial court erred in dismissing his complaint for failure to have given timely notice to the District of Columbia (D.C.Code 1973, § 12-309), and for failure to commence this action within the statutory period of limitation (id. § 12-301). We affirm in part, vacate in part, and remand for further proceedings.

I

Appellant sued the District of Columbia and a number of District employees (hereinafter referred to, collectively, as the defendants). The complaint, filed on March 31, 1976, alleged that the District was the lessee of a building owned by appellant during the period November 1, 1969, to March 31, 1973. Count I alleged that all defendants breached the terms of the lease "in that they damaged and structurally altered the [leased] property and failed to return the property to its original condition. . . ." Count II alleged that all defendants "converted property of plaintiff to their own use and have not returned said property." Count III alleged that the individual defendants were negligent "in that they failed and refused to properly supervise and control their employees, agents and invitees, who caused extensive damages to plaintiff's property." Count IV alleged that "all defendants breached the lease agreement of the parties by allowing and inviting unsuitable persons to occupy and enter the premises thereby breaching the terms of the lease agreement as to the nature of the occupancy."

All defendants answered and, after discovery, moved for judgment on the pleadings, Super.Ct.Civ.R. 12(c), asserting failure to give the required notice to the District, failure to commence the action within the statute of limitations, and failure to state a cause of action against the individual defendants. Accompanying the motion was an affidavit¹ in which the affiant stated that he had searched the files of the District and found no notice of claim made by appellant. A second affidavit stated that the leased premises were vacated by the District on March 30, 1973, and that the affiant had "turned over to [appellant] two keys to the premises, a indicated by [an attached] exhibit." The attached exhibit was an unsworn copy of an internal District memorandum, from a person other than the affiant, stating that the leased premises were "empty and clean." At the foot of the memorandum was the following handwritten statement, purportedly signed by appellant: "Received two (2) keys only to [leased premises]." (Emphasis added.) The emphasized word was separately inserted, apparently in a different hand.

Appellant opposed the motion by an affidavit in which he admitted the receipt of two keys on March 30, 1973, but stated that the keys did not fit the doors to the leased premises. In the affidavit he authenticated a copy of the lease agreement and a copy of a letter from his attorney to the Assistant Director for Buildings Management of the District, by which notice was given that "the District must quit and vacate the premises on or before April 1, 1973." The letter also stated that appellant "does not waive — indeed he fully intends to prosecute — his claims against the District . . under the above-referenced lease, including those for damages to the building during its occupancy by the District. . . ." This letter was dated January 31, 1973, and a copy of the letter was sent to an Assistant Corporation Counsel. Additionally, appellant stated that he had had "numerous conversations" with personnel of the Department of General Services "complaining of damage to the leased premises both before and after expiration of the lease term." A copy of a letter received by appellant, purportedly signed by the Assistant Director of Buildings Management, accompanied the affidavit. This letter confirmed the District's understanding that the lease would terminate at midnight, March 31, 1973.

The trial court, after hearing argument, held that Count I failed to state a cause of action against the individual defendants, a ruling not challenged in this appeal; that the action was filed, as to all defendants on all remaining counts (II, III, and IV), outside the statute of limitations; and that, as to the District, Counts I, II, and IV were barred by failure to have given statutory notice of the claims.

II

We consider first the applicability of the three-year statute of limitations. D.C.Code 1973, §§ 12-301(3) (recovery of damages for an injury to real or personal property); (7) (upon a simple contract); (8) (upon any other claim not otherwise specifically prescribed).

Count I alleged breach by the District of its contractual duty to restore the premises to its original condition.² The alleged breach was not the damage or alteration to the property but the failure to restore the premises within the time specified by the contract. See Fowler v. A & A Company, D.C.App., 262 A.2d 344 (1970). The contract recites, in part, that "prior to the termination of this lease, or any renewal hereof, . . . Lessee shall restore the premises to the same condition as that existing at the time of entering upon the same under this lease. . . ." The time within which restoration was required, therefore, was prior to the termination of the lease. It is undisputed that, during the relevant period, the lease ran from month to month, so that the District was, absent contractual modification of the terms of the lease, entitled to possession through March 31, 1973. That the District vacated the premises prior to that date did not extinguish its right to enter the premises prior to expiration of its leasehold unless, in connection with that vacation, there was concluded a modification of the lease.³ The release of two keys to appellant and his acceptance thereof cannot be deemed conclusively to have constituted such an agreement where, as here, appellant's acceptance specified "two keys only," there is no assertion that there remained no other keys in the possession of the District, and there is no showing that appellant took possession of the premises so as to prevent reentry by the District. Nor can we hold, upon this record, that the District's conduct constituted an anticipatory breach of its duty to restore the premises so as to commence the running of the statute. See 54 C.J.S. Limitation of Actions §§ 127, 202 (1948). These matters, therefore, were not ripe for summary adjudication.

Count II alleged conversion of appellant's property by all defendants. The essence of a conversion is a wrongful taking or a wrongful retention of property after a rightful possession. Appellant, by affidavit, alleged as an example of converted property, a window fan which had been in the leased premises. Whether personalty or a fixture, we cannot say, upon this record, that such property was outside the scope of the parties' contractual intent in concluding the lease agreement.⁴ Possession of such property by the District during the lease term could well have been rightful and remained rightful until the expiration of the lease term, with the result that any conversion would not have occurred until the expiration of the lease created an implied demand for return of the property. See Shea v. Fridley, D.C.Mun.App., 123 A.2d 358 (1956); Irvine v. Gradoville, 95 U.S.App.D.C. 263, 264, 221 F.2d 544, 545 (1955); Schupp v. Taendler, 81 U.S.App. D.C. 59, 60, 154 F.2d 849, 850 (1946). See also 18 Am.Jur.2d Conversion § 63 at 197-98 (1965). Thus, as to the District, the statute would not have commenced to run until the expiration of the lease under the rationale applicable to Count I. See Annot., Limitations — Bailed Property, 57 A.L. R.2d § 10 at 1067-69 (1958) (statutory limitation affected by election between action in tort and action upon the contract of bailment). As to the individual defendants, because they were not parties to the contract, appellant's claim must lie in tort. But a bailor has no right of action for conversion against third parties during the term of the bailment. See 8 Am.Jur.2d Bailment § 284 at 1171 (1963). If, therefore, the District was rightfully in possession of the property during the lease term, appellant's right of action against the individual defendants did not accrue until the expiration of the lease term, and the statute would not have run upon this count. If on the other hand, the District's possession was not contractually rightful and there was a conversion of the property prior to the expiration of the lease (or an anticipatory breach of the contractual duty to return the bailed property), then the statute would have run against the claims asserted in this count. Upon this record we are unable to conclude which, if any, of these situations obtained, and summary application of the statute was, therefore, improper.

Count III alleges negligence in the supervision and control of employees, agents and invitees, who damaged appellant's property. It was uncontroverted that the leased premises were vacated on March 30, 1973. Any injury to appellant's property resulting from lack of supervision, therefore, must have occurred on or prior to that date. The statute of limitations begins to run, as to a tort, on the date of the injury. Compare Bair v. Bryant, D.C.Mun.App., 96 A.2d 508, 510 (1953); Brewster v. Woodward & Lothrop, Inc., 174 U.S.App.D.C. 164, 165, 530 F.2d 1016, 1017 (1976) (tort action accrues on date of injury) with Baker & Bro....