Weisman v. Middleton
| Decision Date | 14 August 1978 |
| Docket Number | No. 9502.,No. 9473.,9473.,9502. |
| Citation | 390 A.2d 996 |
| Parties | Harry L. WEISMAN and Dorothy Weisman, t/a H & E Realty Co., Appellants, v. Malqueen MIDDLETON, Appellee. Malqueen MIDDLETON, Appellant, v. Harry L. WEISMAN et al., Appellees. |
| Court | D.C. Court of Appeals |
Kenneth J. Loewinger, Washington, D. C., with whom Herman Miller, Washington, D. C., was on the brief, for appellants in No. 9473 and appellees in No. 9502.
Bernard Gild, Washington, D. C., for appellee in No. 9473 and appellant in No. 9502.
Before NEWMAN, Chief Judge, HAR-RIS, Associate Judge, and REILLY, Chief Judge, Retired.
The Weismans (hereinafter the landlords) seek to overturn a judgment awarding Middleton (hereinafter the tenant) damages of $2,196.25 for malicious prosecution. The tenant cross-appeals, claiming that the trial court erred in directing a verdict in favor of the landlords on four of the six counts in the tenant's complaint. We find error in the directing of a verdict on a single count of malicious prosecution, and remand for a new trial on that count.
Malqueen Middleton was a tenant in an apartment house owned by the Weismans. The tenant wrote the landlords a letter and circulated a petition to her fellow tenants concerning alleged deficiencies in the apartment house. The tenant then met with the landlords to discuss the problems. Shortly thereafter, the tenant received an eviction notice. After she failed to vacate the premises, an action was filed by the landlords for possession of her apartment. That action resulted in a judgment in favor of the tenant.
In June of 1973, just three weeks after the termination of the first suit, the tenant was served with a second complaint for possession of her apartment. That suit was based on the alleged nonpayment of rent for the months of April, May, June, and July of 1973, despite the facts that the April rent had been tendered by the tenant but returned by the landlords, the May and June rent had been tendered by the tenant and accepted by the landlords, and the July rent was not yet due. The landlords agreed to have the suit dismissed with prejudice upon the tenant's payment to them of the March and April 1973 rent (which had been paid by the tenant but returned by the landlords) and the release to them from the court registry of the rental payments for July and August of 1973 (which the tenant had paid into court).
The tenant subsequently filed an action alleging retaliatory eviction, breach of contract, and malicious prosecution. Damages were sought for the bringing of each suit by the landlords. The tenant sought compensatory damages for loss of time from work, mental anguish, embarrassment and humiliation; reasonable and necessary legal fees incurred in defending the prior suits; and punitive damages. The trial court directed a verdict for the landlords on the breach of contract count based on the first suit for possession, and on all counts based on the second suit. The jury awarded the tenant compensatory damages of $104.25 for loss of time from work, attorney's fees of $1,092.00, and punitive damages of $1,000 based on the bringing of the first suit for possession. It awarded nothing for the mental anguish, embarrassment, and humiliation allegedly suffered by the tenant.
We first address the landlords' allegations of error. They initially assign as error the trial court's denial of their motions for a directed verdict which allegedly evidence and again at the close of all the evidence. After a careful study of the record, we have determined that such a motion was made only at the close of the tenant's evidence and not at the close of all the evidence. It is settled that a defendant waives the benefit of a motion for a directed verdict which has been made at the close of the plaintiff's evidence if the defendant elects to offer testimony on his own behalf after denial of the motion. See Gleason v. L. Frank Co., D.C.App., 328 A.2d 96, 98 (1974); District of Columbia v. Hickey, D.C. Mun.App., 150 A.2d 463, 466 (1959). It also is true that the "`failure to interpose a motion for a directed verdict at the close of all the testimony and secure a ruling thereon precludes a party from questioning on appeal the sufficiency of the evidence'." See District of Columbia v. Hickey, supra, at 465, quoting from Krupsaw v. W. T. Cowan, Inc., D.C.Mun.App., 61 A.2d 624, 626 (1948). As the landlords submitted evidence on their own behalf at the close of the tenant's case, and as they failed to move for a directed verdict at the close of all the evidence, they may not challenge the sufficiency of the evidence on appeal through an attack on the denial of those alleged motions.
The landlords also claim that it was error for the trial court to allow the jury to consider attorney's fees, compensatory damages, and punitive damages as proper elements of its damage award. We reject this contention; all of these traditionally have been held to be proper elements for the jury's consideration in malicious prosecution cases. See, e. g., Brooking v. Lemon, D.C. Mun.App., 96 A.2d 849 (1953); Mills v. Levine, 98 U.S.App.D.C. 137, 233 F.2d 16, cert. denied, 352 U.S. 858, 77 S.Ct. 86, 1 L.Ed.2d 67 (1956); Soffos v. Eaton, 80 U.S.App.D.C. 306, 152 F.2d 682 (1945); Melvin v. Pence, 76 U.S.App.D.C. 154, 130 F.2d 423 (1942).
The landlords' next assertion is that the trial court erred in failing to instruct the jury on an element of the offense of malicious prosecution. Super.Ct.Civ.R. 51 states that "[n]o party may assign as error the giving of or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The landlords failed to object specifically to the court's instruction on malicious prosecution and to state the grounds for their objection. They therefore normally would be barred by Rule 51 from raising this contention on appeal. See, e. g., DeFries v. David, D.C.Mun.App., 105 A.2d 746 (1954); Koninklijke Luchtvaart Maatschappij N. V. KLM Royal Dutch Airlines Holland v. Tuller, 110 U.S.App.D.C. 282, 292 F.2d 775, cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961). Cf., e. g., A-F Corp. v. Caporaletti, 99 U.S.App.D.C. 367, 240 F.2d 53 (1957); Montgomery v. Virginia Stage Lines, Inc., 89 U.S.App.D.C. 213, 191 F.2d 770 (1951); Harlem Taxicab Association v. Nemesh, 89 U.S.App.D.C. 123, 191 F.2d 459 (1951). However, where it is apparent from the face of the record that a "miscarriage of justice" has occurred, we properly may reverse based on an error to which no objection was made. See Chambers v. Audette, D.C.App., 385 A.2d 10, 16 (1978); Adams v. United States, D.C.App., 302 A.2d 232, 234 (1973); Bullock v. Young, D.C.Mun.App., 118 A.2d 917, 919 (1955); Barnes v. Wheeler, Inc., D.C.Mun.App., 55 A.2d 83, 85 (1947); 5A Moore's Federal Practice ¶ 51.04, at 2507-2515 (2d ed. 1977). We therefore consider the merits of the allegation of error in order to determine whether a miscarriage of justice occurred.
We believe that the trial court did err in failing to instruct the jury on an element of malicious prosecution. The court omitted from its instruction the requirement of an arrest of the person, or a seizure of the property of the defendant in the prior suit, or a special injury sustained by him which would not necessarily result in suits prosecuted to recover for like causes of action. (The first two of these are inapplicable on the facts of this case, but are mentioned here to avoid misleading.) See Ammerman v. Newman, D.C.App., 384 A.2d 637 (1978); Nolan v. Allstate Home Equipment Co., D.C.Mun.App., 149 A.2d 426 (1959). We find no evidence here of a special injury of this type suffered by the tenant because of the landlords' first suit for possession. However, the prior filing of two suits with malice and without probable cause by a defendant in a malicious prosecution suit, against a plaintiff in that suit, has been held to constitute a special injury which satisfies this requirement due to the increased burden of defending "successive unconscionable suits." See Soffos v. Eaton, supra; cf. Nolan v. Allstate Home Equipment Co., supra, at 429 n. 6 (). At the time of the filing of the malicious prosecution suit, two possessory actions previously had been filed by the landlords against the tenant. The jury necessarily found as a fact that the landlords filed the first of those prior suits with malice and without probably cause, since the jury found malicious prosecution based on the filing of that suit. However, the jury was precluded from determining whether the landlords filed the second of those suits with malice and without probable cause, because the court had directed a verdict on all counts based on the second possessory action. As discussed infra, the action of the trial court in directing a verdict for the defendants on the malicious prosecution count based on the second suit was erroneous and requires a remanding of the case for a new trial on that count.
As the element of malicious prosecution involving a special injury to the one previously sued may be satisfied here only if both of the landlords' suits for possession were brought with malice and without probable cause, the harmlessness vel non of the court's failure to instruct the jury on this issue will become evident only upon completion of the new trial of the count based on the landlords' second suit. Furthermore, both malicious prosecution counts must stand or fall together, because the requirement of a special injury is satisfied only if more than one unconscionable suit was filed by the landlords. Therefore, if on remand the landlords are found liable for malicious prosecution in...
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