*2 judgment, temporary declaratory as well as REID, Before FERREN and Associate order, injunction, and restraining preliminary PRYOR, Judges, Judge. Senior and injunction permanent against interfer- rights un- appellant’s appellee ence PRYOR, Judge: Senior agreement. Appellee filed counter- der the Ulysses Auger appeals G. the trial court’s requested appellant be claim in it which judgment appellee, in favor Tasea Invest- property pay back required to vacate $69,243.38 Company, ment in back rent $1,500per month from rent in the amount agreement. Appellant under their 8, 1993, until October when August concluding in claims that the trial court erred per day. rent increased to $168.94 appellee unilaterally raise the rent summary judgment Appellee’s motion for serving a valid notice to denied, parties their and the submitted alternatively trial court abused its Appellee reserved Joint Pretrial Statement. appellee allowing discretion recover $1,500 monthly right claim rent it more had reserved the Sought” The ease was “Relief section.1 in the to seek Joint Pretrial Statement. We one-day bench trial on October heard affirm. 25, 1995, judge On October had the to terminate appellee held that I. a valid that it had served but request for and therefore its issue ejectment The court also held parking was denied. lot area located behind consisted Street, N.W., rent in the Washington, appellee was entitled back 1255 22nd D.C. $69,243.38, monthly lots”). based parking lots were amount (“parking August 22nd Limited Partner- rent by 1255 Street owned 1, 1993, rate of Originally, general two December ship. there were However, per day period December for the partners partnership. $1,500. posed to beginning appellee admitted At the of the trial op- original monthly 1993, through judg- specific requirement the effective date even the increase, Appellant pertinent ment.2 filed a consent to an rather motion reconsid- eration, provision judgment, requires or to alter or amend that the rent be “reason- Timely appeal able.” The to the were denied. notice of relatively sophisticated equal businessmen was filed. *3 Thus, footing. we are constrained to avoid rewriting by parties contracts entered into II. relatively equal bargaining power. We Appellant that trial asserts court com- deciding with a when dealt similar issue how concluding mitted reversible error apportion liability pol- to two when insurance appellee properly with- raise containing icies “other in- insurance” clauses serving appellant quit. out a valid notice to Medox, sured the same risk. See Jones issue, In on this the trial court focused (D.C.1981), reprinted A.2d specifically pertinent on the section of the Annotation, J.D., Knapp, David P. Van Reso- agreement: Conflicts, lution in Now-Automobile Lia- designee his shall have the Policies, bility Insurance Between Excess or Partnership lease to from the at a reason- Clauses, Pro-Rata “Other Insurance” (ii) monthly able rate ... the Wood- (1982). A.L.R.4th 981 It was noted: for parking lots until vehicles son/Callow “(q)uesüons It has been observed that Partnership such time as the shall need contribution between coinsurers have provide the use of same. shall to courts, large caused much trouble to the Partnership appropriate evidence of part of which has arisen efforts liability coverage. insurance contract,” equalize equities outside appellant The court found used “(t)his par- trouble is lessened if the property extensively any paying they ties are left with their contracts as compensation. The court concluded: themselves made them.” is no limitation in partnership there (quoting Id. at 494 Grollimund v. Germania agreement partners being about the Co., 618, 621, Fire Ins. 82 N.J.L. 83 A. rent, able raise the and after a reason- (1912) (other omitted)). citations This time, period having able in the court chose “focus[] on the contractual partner’s judgment having found a valid provisions parties” and the intent of the as lot, purpose commercial I this see no opposed attempting to rewrite a more why reason should stand equitable agreement. Id. the situation partnership’s between the to raise presented greater there an even here rea- day, rent to what which is $168.94 provisions son to focus on contractual they they going said were to do if Mr. appear because there does not to be need I remained. find that this is within “equalize equities.” Therefore we decline rights partnership to do it. inject provi- to rewrite contract other is a lease sophisticat- commercial between agree- unambiguous sions into a broad but ed businessmen. ment.3 Therefore, allowing after for reasonable no- Appellant argues obliged appellee tice, appellant’s the court calculated that quit appellant prior serve notice per day increased to as of December raising the rent. this case involves a While 1,1993. .leasing space, clear variation of the it is agree dispute with the trial court that that the thrust of this is the rental parking space partner- was no limitation under the terms of a regarding agreement. an ship primary rent. Given partnership provision provide purpose quit is to does terminate judge appellant by appel- concluded offered The record reveals exhibit original reasonable; pay entitled to rent until December asserting lee the increased rent as was a since he month-to-month tenant contrary appellant presented no evidence. to notice the rent entitled increase. (1990 dissenting: FERREN, Judge, Associate tenancy, D.C.Code 45-1402 see authority requires a find Repl.), we majority’s Contrary focus to the as precede a rent increase partners,1 relationship business parties’ with the long as increase is consistent solely on the depends case of this resolution agreement. monthly rate” of the “reasonable a month-to-month interpretation of proper way, appellant could either another Stated unaffected property, for real the rate was reasonable contest whether rela- parties’ business aspects of the in- space rent the simply decline to tionship. bottom, agree- rate. At that was the creased Accordingly, parties. reached ment required.
no notice to
I.
*4
one-day
During
bench trial
October
the
III.
parties
of
presented
the
evidence
the trial court
Appellant also contends that
agreement,
provided:
written
which
their
by granting appellee
its discretion
abused
designee
have the
or his
shall
AUGER
appellee
back rent
an amount more
Partnership at
right to lease
the
Pretrial Statement.
requested
the Joint
(ii)
...
the
rate
reasonable
Woodson/Cal-
construing
R.
Super. Ct. Civ.
In
until such
parking of vehicles
low lots for
orders,
governs pretrial
we have said:
the use
Partnership shall need
time as the
cases
While this rule is intended to remove
of same.
it
surprise,”
of
does not
from the “realm
rigid
that
adher-
contemplate
require
or
partnership agree-
provision of the
No other
always
pretrial
ence to the
order must
court, not
is at
here. The trial
ment
issue
exacted.
agreement “suffi-
surprisingly,
found this
Columbia,
Clarke District
parol
use
ciently ambiguous
require
the
(D.C.1973)
omitted).
(citation
The trial
precisely
out what
evidence ...
flesh
require
found,
court has discretion whether
by
then
consider-
meant.”2
court
order,
pretrial
to a
and at
strict adherence
written
testimo-
ing both the
times,
upheld
the trial court’s refus
we
ny
negotiations
the
the oral
between
about
changes
al to allow such
when there would
had
parties,
and Tasea
prejudice
surprise to
have been unfair
prop-
commercial
lease of
month-to-month
Washington
opposing party. Taylor v.
is
erty for
a month. That
what
Ctr.,
(D.C.1979),
Hosp.
Auger Thus, they question until so.” do the partner- ment should stand between the Auger became: could still Tasea —faced ship’s the a to raise rent to $168.94 lawfully premises begin charge on the a — they day, they which what is said were higher rent? going Auger to do if Mr. I remained. find
The trial court how much considered mon- rights part- that this is of the within the ey Auger owed under the lease. The court nership to it. is do a commercial that, began by ruling although Auger had not sophisticated lease between business- men_ received a valid notice to Tasea could Auger easily Mr. not thirty-day peri- increase the for the rent paying by moving avoided this rent out. to, od that a valid notice to allow a would not and He chose therefore I find that tenant remain the voluntarily at contracted rent. remaining property he is on the notice, in the face the and is therefore Auger paid partnership Mr. not has the responsible day for the rent at $168.94 agreed pay the a month he in this $500 1, today, from December 1993 to which part agreement. which I find was $55,243.13, up plus adds to a total of And, the a month which runs from $14,000 $69,243.38 grand is total of 1st, 1991, 1,
August I find until December owing Auger. rent Mr. due and 1993, $14,000. 28 for I months calculated that that finding parties fact that rental until that There no that mutual- rent, Auger ly agreed particular that date is Mr. is a month-to- had to a Auger agreed partic- and month-to-month ten- that had advance to ("A (1990 Repl.). 3. See D.C.Code 45-1402 holdover tenant is bound the terms and original conditions of the lease and is liable to equivalent.”). the landlord at least for rent or its Cox, (D.C.1988) 4. See Novak v. 538 A.2d 751 (hold-over premises "tenant could not remain on 5.If a landlord serves on the tenant a valid notice paying occupancy without ‘fair use its and val time, says, at the same that as of the ”); Thurston, (D.C. ue' A.2d 18 Habib 517 the rent termination date will increase 100-fold 1985) (hold-over damages tenant liable for for over, if tenant holds trier of fact will occupancy premises); continued use and Fish whether, question all confront under the cir- Inc., Parkwood, (D.C. er v. cumstances, the tenant can be held to have 1965) ("receipt new, rent after the lease was can- higher-rent agreed to a if the ten- occupancy merely during stays celled was for use and respon- ant sible, instead, or will be held period”); see v. Elev hold-over also based use for on fair Sanchez 1993) (D.C. occupancy en A.2d Fourteen value. occurred, the trial without deference to increase if to review ular rent certain events analysis. zoning change or court’s such as a valuable more property. The plans lucrative for the court finding trial proceed If from the court’s we law, ruled, as a matter of nonetheless negotiated a month-to- parties had (Tasea) partnership [in since had “said finding at month —a month lease they Auger] were October letter challenge majority not and is does going per day, raise to” the rent clearly on this record —then erroneous they simply so had a to do because agreement or at law there no basis in the partnership “there is limitation permit for court unilateral being partners about able simply because magically to raise the rent.” court against it. has “no limitation” relationship parties’ transformed evidence, particle let alone a There is not parking lot from landlord and tenant to finding, agreed trial such court general partner partner, and limited thing. was for dictate, unilaterally, ruled that Tasea could par- rate.” The found the “reasonable court pay. what should per month ties had reasonable. Even if Tasea and both II. rate” anticipated had that the “reasonable time, would increase over analyze this trial court should inferring, is no let alone a basis record depth, beginning with our standard re- finding, had court accepts view. This court the trial court’s agreed that the time for an increase had findings clearly fact unless erroneous or come, put place they some evidentiary support, we but review determining mechanism an increase *6 legal the trial court’s conclusions de novo. the “reasonable rate” without established Marchesano, Goldberg, Bingham See negotiations.6 further (D.C.1994). Kohlman, 637 A.2d 89 accept trial therefore must the court’s Auger owed back rent the True: parties’ finding negotiations that the oral cre- month; a beginning, per he $500 tenancy ated a month-to-month at the “rea- But, model, honorable, tenant. not even an per of sonable rate” month unless it is earlier, spelled as out there are two—and evidentiary clearly sup- erroneous without only ways a in- impose two—lawful hand, port. question situation, the On the Tasea crease in such a did may unilaterally whether a landlord raise the properly Tasea did not terminate neither. tenancy a Auger’s tenancy, taking under month-to-month with- evict him steps to terminating tenancy hable, stayed, through long out the a for either and hold him as as he (increased) valid, prem- legally properly quit, the served notice the value of reasonable part newly supra *7 lease; pressure it is a unilateral tion/new obtaining possession.9 play recognized not law. Tasea contends nonetheless that “a land- right lord’s to the rent is dependent proper raise not procedure altering Tasea, on serving quit.” a notice to terms a tenancy there- is reflected in Wilson v. fore, paradoxical position (D.C. takes 778, R. a John Pinkett 265 A.2d 779 1970). quit notice required Wilson, to to terminate the the landlord asked the possession tenant’s to of property agree but tenants at sufferance to to a written required not to including provision expressly waiving terminate the other contrac- a provisions tual including per- quit. their to a receive notice to When lease— haps significant provision, the most agree, the rent. the tenants to failed the landlord theoretically Such a rule of law quit. would allow a served them with a notice to The ten- course, Tasea, landlord, properly age prepaid Of premises to the within 3 calendar existing tenancy terminate the and use days the ex posting.” § of the date of D.C.Code 45- pired quit accompanying notice to 1406; Co., 54, see Jones v. Brawner 435 A.2d 56 —with leverage negotiate threat of eviction—as a new (D.C.1981). higher lease with a See rent. Wilson v. John R. Pinkett, Inc., 778, (D.C. 1970). 265 A.2d 779 9.Auger brought wrongful could have a suit for self-help eviction if Tasea had resorted to to bar (1) 8. A valid personally notice to must be property. using him from See Mendes v. (2) personally served on the or served on Johnson, 781, banc) (D.C.1978) (en 787 person age upon premis- a es, over the sixteen eviction). (establishing wrongful (3) tort of posted conspicuous place in a mail, post- and "mailed first class U.S.
25
agreements.
See
to lease
applicable
landlord uni-
law
argued
appeal
on
ants
1074,
Hamilton,
A.2d
1078-79
unlawfully,
Bown
601
laterally
attempting,
v.
(D.C.1992) (“
dwelling
of urban
units
reject-
‘leases
change
tenancy.
the terms
interpreted
construed like
contention,
should
and
concluding that the “land-
be
ed this
contract’”)
(quoting
First
agree
Javins v.
to a
request
lord’s
tenants
U.S.App.
Corp.,
D.C.
change
Realty
Nat’l
attempt
was an
not
written lease
(1970)).
The trial
F.2d
to terminate it
the terms of the
but
Tasea
en
it.”
court found
and substitute a different one for
Id. We
lease at
tered into a month-to-month
upheld
course of ac-
therefore
landlord’s
are
tion,
“The
to a contract
per
month.
proper
that it was
land-
modify
mutual con
lord,
quit,
free to
that contract
serving
after
a valid notice
Co.,
v.
A.2d
into
sent.” Hershon
Hellman
to enter
a new
evict tenants who refused
(D.C.1989).
pre
No evidence was
Al-
landlord’s terms.
sented, however,
mutual con
that there was
though
directly
not
address whether
we did
here. To the
prereq-
higher
sent
rent rate
notice to
service
valid
against
ap
change
contrary, Auger filed suit
Tasea
forcing
uisite to
in the terms of the
level,
tenancy,
proximately
receiving
after
Ta-
including the
it is clear
one month
rent
sea’s
demand.
from the context
we considered such
rent
statutory
essential,
bargained
absent
argument
unilateral
Tasea’s
modification
amendment of the lease.
aof
contract
also fails because modification
principle
recognized
more
same
supported by
must
consideration. See
recently
Hightower,
(“In
Id. at left the tenant (1) serving Auger by properly Tasea to evict despite inadequate notice to (2) keep a valid notice to him sought an then the landlords additional terminating existing tenancy after month’s herself had rent because the tenant quit, exposing to liabili- valid notice to statutory days’ given thirty notice. *8 peri- ty tenant after the notice as a holdover ruling We affirmed the court’s (3) at a expired, keep him there od rent. con- tenant did not owe extra None these mutually agreed rent. press- conduct cluded that the landlords’ own happened. Tasea’s unilat- possibilities three ing early vacation impose lease terms should eral effort to new thirty days’ amounted to a “waiver of the entry fail. reverse and remand for I would estopped requirement” and thus them arrearages in the amount of judgment clear, Id. It is claiming additional rent. per month. moreover, presentation of the from our issue therefore, I Respectfully, dissent. quoted above that the landlords’ Sklar noncomplying if not honored permitted would not have sought.
rent increase the landlords fundamentally at
The trial court’s general principles of contract
odds with the a as a notes novation of ises a hold-over tenant. See negotiate a new rental negotiated question subject law 3 & 4. Nor did Tasea is a argues parties merely agreed to a the "reasonable rate” 6. Tasea that the lease was for indicating a "reasonable rate” and that the reasonable rate what that meant or of rent without dramatically when a increased Tasea obtained might be time to time. how it ascertained from commercially. license to use the lots Tasea’s Instead, proper would the measure of however, argument, directly the contradicts trial value non-contractual: the reasonable have been finding, supported by the evi- court’s factual premises. enjoyment Auger’s the use and dence, that the had the reasonable Slade, Davis, Inc. v. 271 A.2d See William J. pay per rate would month. No (landlord (D.C.1970) 416 to reasonable entitled changing for in mechanism that amount was premises court lease is when determines value of evidence. violations). Here, housing code void because A if its contract will be unenforceable terms finding the court made no accurately are court so uncertain that a cannot terminated, lawfully been month had damages. assess Con- (Second) Restatement finding the value of let alone a reasonable case, (1981). § cmt. this it is b tracts particular law, a doubtful, had increased in a the court could as matter of a favor had amount. have enforced "contract” Tasea's agreement with invoking lieu of unilaterally landlord to terminate a month-to- judicial process.7 month tenancy, judicial without resort to ac- summary tion for possession, by announcing This case therefore turns on proposi- substantially a higher rent on a moment’s that, tion the absence giving notice—without valid notice contrary despite majority view, —and quit charging the tenant who chooses contrary agreement there is no —and here —a land- to leave under whop- such circumstances a lord cannot alter the terms of a month-to- ping premium period between tenancy month first terminating announced rent increase and the date the tenancy by quit. valid notice finally tenant manages to leave. statutory scheme makes this clear. provides: D.C.Code 45-1402 Recognizing possibility, this the trial court did not allow the A rent increase to take effect tenancy from month-to-month ... period until the for valid may notice to days terminated notice expired. proves But point: writing from the landlord to the tenant to court protects realized the law the tenant for byor such notice from the tenant to period of time before the landlord can force landlord of [or her] his intention to change tenancy, yet the court— expire, case, said notice to in either acting inconsistently quali- lesser day from which such —allowed ty run.[8] justify notice to a unilateral rent commenced required justify an evic- This quit requirement notice to applies to thereby tion. permitted The trial court commercial, residential, as well as tenancies. accomplish landlord to a rent increase— Ltd., See Capitol Ontell v. Hill E.W. meaning a new lease—without the tenant’s (D.C.1987). As the trial court justify consent. If ruling one tries this recognized, “service of valid notice to saying over, in holding im- is a precedent condition to the landlord’s suit plicitly rent, consented the new one neces- possession.” Moody v. Winchester Man- sarily saying would be that the landlord can agement (D.C.1974). Corp., 321 A.2d force a accept month-to-month tenant Tasea, moreover, dispute does not the trial new giving statutory lease without court’s legal right had the required making give up the- before tenant possession retain until bargained the old one. is not a nova- legal Tasea requirements satisfied the