In this civil action which grew out of a landlord-tenant dispute, Thomas Norris, a commercial landlord, (“Norris” or “landlord”) challenges a jury verdict awarding him damages on his counterclaim for rent and damages, which he contends is inadequate and the denial of his request for an award of attorney fees. We agree with the landlord that he is entitled to a larger award than that made by the jury. We therefore reverse the judgment and remand with direction to enter judgment for the correct amount. We also reverse the trial court’s order denying an attorney fee award, and remand for reconsideration in light of what we hold in this opinion.
I.
A. Lease Provisions
In November 1988 the landlord and the tenant, Judy C. Green, (“tenant”) entered into a five-year lease and/or option to purchase agreement under which the tenant would operate a restaurant and nightclub on the property located at 7331 Georgia Avenue, N.W., Washington, D.C. (the “property”). The lease provided for a $2,600 monthly payment due on the first of each month, beginning on January 1, 1989, with a one hundred dollar late fee for each five-day period the rent was late ($500 per month if over a month late). The lease also granted the landlord or his agent access to the property for physical inspections. Other provisions of the lease relevant to the dispute are: (a) the landlord would not be liable for loss of, or damages to, personal property and improvements arising from a leaking roof, bursting, leaking or overflowing water, sewerage, steam pipes or from heating or plumbing fixtures; (b) the tenant was required to make all interior and exterior repairs, replacements, and decorations, including plumbing, at the tenant’s own cost and expense; (c) in the event the premises were damaged by fire or other cause covered by the landlord’s insurance, without fault or negligence of the tenant or her agents, the landlord was required to repair the damages at his cost and expense, and the rent apportioned according to the usable part of the premises, until such repairs were made; (d) if the tenant defaulted on the rent, or performance of any lease condition, the landlord was entitled to recover possession of the property, and the tenant remained liable and answerable in damages for deficiency or loss of rent and any other amounts due and owing under the terms of the lease; (e) if the landlord commenced an action to recover rent due, or to compel tenant’s performance of any lease obligation, the landlord “shall be entitled to recover from lessee its costs of such proceedings or suit, including a reasonable attorney’s fee.”
B. Events leading to the eviction
• After the tenant took possession, she made separate payments to Norris in the amount of $5,000 and $20,000 toward the $50,000 purchase price for the equipment that had previously been installed in the building. She also contracted with Norris to build some benches and booths for the restaurant, paying him $4,000 of the $8,000 cost.
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During this period the tenant obtained a certificate of occupancy and a restaurant license, but was unable to obtain a liquor license. She testified that sometime in early March
Norris brought an action for possession in the Landlord/Tenant Branch of the Superior Court (“L & T action”) on March 27, 1989, for non-payment of rent for January, February and March. The court later, entered a judgment of possession in June 1989 because the tenant failed to make any of the protective order payments. Norris reacquired possession of the building by formal eviction on July 6, 1989, and on that same day, he displayed both “For Sale” and “For Rent” signs in the large picture windows which faced Georgia Avenue. Norris testified that shortly thereafter he received several inquiries, and in September 1989, he contracted to sell the building, closing the sale and transferring title to the buyer in early January 1990. The building was conveyed to the buyer with all the equipment that the tenant had paid for or paid to have installed.
C. Procedural history
Upon learning of the sale, the tenant instituted the present action for unjust enrichment, seeking compensation for the value of the equipment for which she paid. Norris counter-claimed for back rent from January to July 6, 1989 (the date of eviction), and damages, in lieu of rent, from July 7,1989, to December 1989 (the.last month before the property was conveyed to the buyer). The jury awarded the tenant $31,576 in unjust enrichment damages; that finding is not challenged in this appeal. The jury also awarded the landlord a $500 per month late fee for the months of January, February and March, 1989, and the full $2,600 per month rent for the months of January and February, 1989. For March, however, the jury only awarded rent up to March 27, 1989, the date on which Norris filed the L & T action. The jury awarded no rent for the period between the filing of the L & T action and the eviction date. The jury also awarded no damages from the eviction date through December 1989.
Following the trial, Norris moved for judgment n.o.v. and for an amended judgment, maintaining that, as a matter of law, he was entitled to rent or damages for the entire period of March 27 through December 1989, i.e., rent for the lease amount ($2,600 plus $500 late charge) for March 27 to June 1989, and damages at the rate of $3,100 per month, from July to December 1989, and to an award of reasonable attorney fees. The trial court denied the motions and this appeal followed.
II.
A. Scope of Review
In resolving an appeal from the denial of a motion for judgment n.o.v., the evidence, and all reasonable inferences therefrom, is viewed in the light most favorable to the party who obtained the verdict, and reversal is warranted only where the evidence shows that no jury could reasonably reach the verdict returned.
Consumers United Ins. Co. v. Smith,
B. Discussion
1. March 27 to July 6, 1989
In the order denying the motion for judgment n.o.v., the trial judge ruled that Norris’ claim “was without merit for the reasons asserted in [the tenant’s] opposition_”
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In
Bourn v. Hamilton,
The tenant also argued before the trial court and in this court, without any legal support, that Norris was obligated to seek recovery of past rent in the L & T action for possession, and his failure to do so in that action constituted a waiver of his right to recover rent for the period between the filing of the L & T action and the eviction. She further argued that the failure to request an award of rent arrears when he filed the L & T action is res judicata on the question of entitlement to rent during the entire period of possession. On that score the tenant is flatly wrong. First,
[w]hile the term res judicata is sometimes used broadly ... it may help analysis to confine it to its classic and precise reference, as interposing an absolute bar to the relitigation of the same cause of action between the parties or their privies. If the doctrine of res judicata applies, both parties are concluded, not only as to tilings which were determined but as to all matters which might have been determined as well. The case before us involves what is more precisely referred to as the doctrine of collateral estoppel. That rule prohibits parties who have litigated one cause of action from relitigating in a second and different cause of action matters of fact which were, or necessarily must have been, determined in the first litigation.
Tutt v. Doby,
Nor did Norris’ failure to abate the flooding problem excuse the tenant’s rent obligation because, in this jurisdiction, it is settled that “[wjhere covenants are independent, nonperformance by one party does not excuse the other party from the need to satisfy his obligations.”
Interstate Restaurants, Inc. v. Halsa Corp.,
Finally, having established that the lease did not impose a duty on the landlord to abate the flooding problem,
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Lennon supra,
For all of these reasons, viewing the evidence in a light most favorable to the tenant, as we must,
Cassidy, supra,
2. Mitigation, July to December 1989
The tenant also argued, and the trial court adopted that argument as the basis for its ruling, that Norris was not entitled to damages for the period after the eviction, but before the property was conveyed to the buyer, because he did not use reasonable efforts to mitigate his damages. The failure to mitigate damages is an affirmative defense and the tenant has the burden of showing the absence of reasonable efforts to mitigate.
See Lennon, supra,
During cross-examination, Norris acknowledged that he did not advertise the property in the newspaper, list it with a realtor, or hold any open houses. He defended that course claiming that those activities were either not useful for his purpose or were inapplicable to the sale of commercial properties. In addition, the landlord testified the time it took him to secure a buyer after the eviction was comparable to the time it had taken a realtor to secure Green as a tenant when he was seeking to lease the property in late 1988. The tenant presented no evidence, apart from the testimony elicited from Norris on cross-examination, to rebut landlord’s efforts to mitigate or to show that those efforts were not reasonable.
See Consumers United Ins. Co., supra,
In civil actions such as this one, a party’s conduct is measured against the hypothetical “reasonable person,” and a party seeking to recover damages or escape liability must demonstrate that the behavior in question conformed to that standard. In actions which require proof of reasonableness to determine how to award damages or assess liability, some evidence must be presented to establish the standard of reasonableness
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because a jury cannot be left without some guidance in determining that issue. The only evidence presented by the tenant challenging the “reasonableness” of Norris’ behavior was through cross-examination; but that did nothing to establish a standard. Instead, each juror was left to make his or her own subjective determination of reasonableness within the context of the sale/rental of commercial property. ’ Consequently, because the tenant failed to prove that Norris did not use reasonable efforts to mitigate his damages, the trial court erred in sustaining the jury verdict and Norris is therefore enti-
3. Attorney fees
Finally, Norris contends that he was entitled to recover attorney fees pursuant to paragraph 10 of the lease and
Simons v. Federal Bar Bldg. Corp.,
Reversed and remanded.
Notes
. She later paid him only $3,700 of the remaining balance because of missing items Green alleged were taken by Norris’ workmen.
. Summarized, the tenant asserted the following in its opposition to the judgment n.o.v. motion: Norris in effect retook possession of the leased premises by a combination of events: (1) a flood
. The tenant did not make this argument in support of the trial judge’s ruling in its brief to this court, however, the argument was presented at oral argument.
. At oral argument, counsel for the tenant claimed that the landlord locked the tenant out of the building thereby constructively evicting the tenant. There is no record support for counsel’s claim.
. To be sure, back rent can be sought along with possession in the same action, but a request for back rent is a separate claim, requiring personal service upon the tenant. D.C.Code § 45-1411 (1992); Super.Ct.L & T R. 3 (1993);
Tutt, supra,
. The Restatement (first) of Contracts § 290 provides:
Non-performance of a covenant by one party to a lease or other conveyance of land, unless performance of the covenant is an express condition, does not excuse the other party from performing his covenants further than the law of property governing the effect of. eviction of the grantee or of waste by him provides.
. The tenant’s obligation to repair the plumbing is set forth in paragraph 22 of the lease where it states:
Lessee will keep said premises in good order and condition, and Lessee will make all interi- or and exterior repairs, replacements and decorations including plumbing, electrical, air conditioning, heating system and at Lessee’s own cost and expense.
. In the motion for judgment n.o.v. and in his brief, Norris states that the jury was specifically instructed that the tenant could not use the water or flooding problem as a defense to the nonpayment of rent claim. The jury instructions, however, are not a part of the appeal record and we ordinarily do not consider such assertions because “[ajppellate review is limited to ... the record before us, and we cannot base our review ... upon statements of counsel which are unsupported by that record.”
Cobb v. Standard Drug Co.,
.The tenant argued that paragraph 23 of the lease imposed a duty on the landlord to repair damages to the leasehold caused by fire or other cause as "is covered by the Lessor’s insurance ... and the rent, until such repairs are made, shall be apportioned according to the part of the premises which is usable by Lessee.” The landlord testified, without contradiction, that he had no insurance to cover the type of loss asserted by the tenant. Therefore, the rent obligation should not be excused, and, even assuming paragraph 23 applied, which it could not on this record, the rent should only be apportioned for the area affected by the flooding.
. Certainly expert testimony could be presented to establish the standard, however, we do not hold that such testimony is required in order to do so. In short, we consider that the nature of the proof required to establish reasonableness in this context to be an open question.
. Norris contends that the damage award should include six months rent at $2,600, plus reletting costs, plus "perhaps the $500 per month late charge.. ..” There is nothing in the Norris/Green contract indicating that late fees should be a part of the damage award or that such award is necessary to make Norris whole. Norris has cited no authority supporting the inclusion of late charges, and our reading of
Lennon
(calculating damages at the lease price) and other cases, raises questions whether late charges should be included in the award of damages for the post-eviction period.
See, e.g., Consumers United Ins. Co., supra,