Ungar v. District of Columbia Rental Housing Commission, 85-1070.

• Court: D.C. Court of Appeals
• Writing for the Court: Pryor
• Citation: Ungar v. District of Columbia Rental Housing Commission, 535 A.2d 887 (D.C. 1987)
• Decision Date: 31 December 1987
• Docket Number: No. 85-1070.,85-1070.
• Parties: Norbert T. UNGAR, Petitioner, v. DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, Respondent, Frances Abdemoulaie, Intervenor.

535 A.2d 887

Norbert T. UNGAR, Petitioner, v. DISTRICT OF COLUMBIA RENTAL HOUSING COMMISSION, Respondent Frances Abdemoulaie, Intervenor.

No. 85-1070.

District of Columbia Court of Appeals.

Reargued September 11, 1987.¹

Decided December 31, 1987.

Norbert T. Ungar, pro se.

Beverly J. Burke, Asst. Corp. Counsel, with whom John H. Suda, Acting Corp. Counsel at the time of the initial argument, and Charles L, Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Peter Drymalski, Silver Spring, Md., for intervenor.

Before PRYOR, Chief Judge, and FERREN and ROGERS, Associate Judges.

PER CURIAM:

Norbert T. Ungar, a landlord, petitions for review of the District of Columbia Rental Housing Commission's (the "Commission") decision to affirm a determination by the District of Columbia Rental Accommodations Office (the "Office")² that petitioner's rental units exhibited numerous Housing Code violations and that a rental increase agreement obtained by petitioner, purportedly pursuant to D.C.Code § 45-1526 (1981); 35 DCMR § 3512, was void because it was obtained by fraud, misrepresentation, and coercion. In addition, the Commission affirmed the hearing examiner's order to roll back rents to their March 1980 levels, to refund all rents collected above that level with treble damages and interest, and to pay attorney's fees. We affirm and award additional attorney's fees incurred in the appellate court.

I

Petitioner Ungar is the landlord and coowner of the Randle Terrace Apartments (the "Apartments"), a forty-unit apartment building located in the District of Columbia at 2525 Minnesota Avenue, S.E. On July 30, 1982, Mr. Ungar obtained approval from the Office to implement a rent increase of 34% at the Apartments. The approval was based on documents that Mr. Ungar submitted to the Office purporting to show that more than 70% of the tenants had consented to the increase. The increase was implemented on September 1, 1982.³

On August 31, 1983, Frances Abdemoulaie, a tenant at the Apartments who did not sign the rental increase agreement, filed Tenant Petition No. 11,142 contesting the validity of the increase as well as of all the rental increases at the Apartments since 1978. The petition alleged that the rent increases were invalid because (1) Mr. Ungar was not the authorized agent of his co-owners, (2) he failed to file proper rent increase forms, (3) the 1982 increase agreement was obtained by fraud, (4) the premises contained substantial housing code violations, and (5) 70% of the actual tenants did not sign the agreement. A hearing on the matter began on February 16, 1984 and continued through June 4, 1984. On October 1, 1984, the hearing examiner issued a decision and order, based upon an extensive statement of factual findings. Mr. Ungar appealed the hearing examiner's decision to the Commission on October 17, 1984; on July 11, 1985, the Commission affirmed the hearing examiner's determination on all counts relevant to this appeal,⁴ thereby invalidating the 70% agreement by the tenants at the Apartments to have all the rents raised by 34%.

II

Mr. Ungar presents this court with nine assignments of error, several of which are raised for the first time in this appeal. Among the nine challenges are: (1) that Ms. Abdemoulaie, the complaining tenant, was barred by the doctrine of laches from pursuing her complaint; (2) that Ms. Abdemoulaie was collaterally estopped from pursuing her complaint in light of Carey v. Ungar, TP No. 10,747; (3) that Ms. Abdemoulaie lacked standing to contest the validity of the rental increase agreement because she had not signed the agreement; (4) that the issue of vacancy increases was improperly before the Commission and that there was insufficient evidence to prove Mr. Ungar took excessive increases; (5) that more than 70% of the tenants signed the agreement; and (6) that the hearing examiner's finding that Ungar's registration was defective was incorrect.⁵

A.

Employing a novel argument, Mr. Ungar's principal contention is that the Commission's decision should be reversed on grounds that he was denied due process when the hearing examiner, acting pursuant to 14 DCMR § 3105, expanded the scope of the hearing without fulfilling the formal notice requirements of § 3105.⁶

In its review of Mr. Ungar's due process claim the Commission noted, "[t]he decision was favorable to the tenants and as [Ungar] had not been prejudiced by the decision, we find no harmful error in the examiner's decision to expand the scope of the proceedings or in his failure to notify the tenants pursuant to Commission Regulations." TP No. 11,142 at 3 (DCRHC 7/11/85). We observe that it would be virtually impossible for a landlord to defend against a nonsigning tenant's challenge of the validity of a rental increase agreement pursuant to D.C.Code § 45-1526 without necessarily anticipating that the rights of the remaining tenants would be affected. Due to the nature of the complaint, there was no need for the hearing examiner to "expand the scope of the proceedings." Mr. Ungar does not suggest, nor are we able to find, that the unnotified tenants were prejudiced by the hearing examiner's failure to formally notify them. The notice requirements of § 3105 must be strictly adhered to, since issues with the potential to adversely affect either other tenants or the landlord may lurk initially undetected in a tenant's petition. In the particular circumstances of the instant case, however, we agree with the Commission that even if error could be assigned for the failure of the hearing examiner to notify the landlord and tenants under 14 DCMR § 3105, such failure is harmless error. The hearings lasted more than three months and provided more than an adequate and reasonable time for Mr. Ungar to prepare and present arguments.⁷

B.

Finally, Mr. Ungar argues that it was error for the hearing examiner to award Ms. Abdemoulaie attorney's fees and that the award of treble damages was unjustified.

The hearing examiner awarded attorney's fees totaling $5,400, one half of the amount requested. Mr. Ungar challenges this award on the ground that the hearing examiner did not explicitly refer to each of the twelve factors adopted by this court in Frazier r. Center Motors, Inc., 418 A.2d 1018, 1025 (D.C. 1980).⁸ We note that the hearing examiner did explicitly consider many of the factors and that a precise analysis under Frazier, utilizing each of the Frazier factors, is not required. Frazier v. Franklin Investment Co., 468 A.2d 1338, 1342 (D.C. 1983).⁹ Moreover, we note that the Frazier factors are guidelines for determining the reasonableness of attorney's fees and not for making the threshold determination that attorney's fees should be awarded in the first place. Mr. Ungar does not contest the reasonableness of the fees. Although hearing examiners should articulate in specific detail both the standard employed and the facts relied upon in arriving at a determination of reasonable attorney's fees, we find that in this case, the hearing examiner's statement of reasons underlying his decision, in conjunction with the findings supporting those reasons, is a sufficient basis upon which to rest such an award.¹⁰

The concepts controlling treble damages are clear. "Any person who knowingly: (1) Demands or receives any rent for a rental unit in excess of the maximum allowable rent . . . shall be held liable . . . for the amount by which the rent exceeds the applicable rent ceiling or for treble that amount and/or for a roll back of the rent to such amount as the Rent Administrator or Rental Housing Commission shall determine." D. C. Code § 45-1591(a)(1). See also Interstate General Corp. v. District of Columbia Rental Housing Commission, 501 A.2d 1261 (D.C. 1985) (comparing the nondiscriminatory penalty provisions of the 1977 Rental Housing Act with the discretionary penalty provisions of the 1980 Act). The award of treble damages must be based on a showing that the landlord's acts were committed knowingly, willfully, or in bad faith. Id. at 1265. That Mr. Ungar was able to secure the approval of the Office for the rental increase agreement does not preclude a finding that he acted knowingly, wilfully, or in bad faith. The agency found that Mr. Ungar's conduct in obtaining the signatures of his tenants was willful and the result of misrepresentation, fraud, and coercion. This finding is supported by substantial evidence of record. Accordingly, we find no error in the award of treble damages. Because we find each of Mr. Ungar's challenges to be without merit, we affirm the decision of the Commission in its entirety.

III

Ms. Abdemoulaie has asked this court to award attorney's fees incurred in the course of this appellate litigation. We deferred this request pending disposition on the merits.

In general, under the so-called "American Rule," a prevailing litigant is not entitied to collect attorney's fees from the losing party. In re Antioch University, 482 A.2d 133, 135-36 (D.C. 1984). Where the legislature has specifically provided for the award of attorney's fees, however, such fees may be awarded. Launay v. Launay, Inc., 497 A.2d 443, 450 (D.C. 1985). According to D.C.Code § 45-2592 (1981), we may "award reasonable attorney's fees to the prevailing party in any action under this chapter except actions for eviction authorized under § 45-2551."

In this case, Ms. Abdemoulaie was the prevailing party. Mr. Ungar does not question her counsel's proffer, under oath, that he devoted 68.5 hours to the case and that his hourly rate is $60. Furthermore, Mr. Ungar did not file a written opposition to counsel's application for a $4,110 attorney's fee (68.5 × $60) allocable to this appeal, and at oral argument his counsel acknowledged that the hours spent, as well as the hourly rate, were reasonable. Mr. Ungar's only argument against the requested fee is that the applicable statute, D.C.Code § 45-2592 (1981),...