WAGNER, Senior Judge:
William Penn Apartments Limited Partnership (the landlord), appellee/cross-appellant, filed a complaint for possession of real property against appellant/cross-appellee, Hugues Denver Akassy (the tenant), based upon the tenant's failure to pay rent. The court entered a default judgment against the tenant when he failed to appear for the scheduled hearing. Before any eviction could take place, the parties agreed to the entry of a consent order under the terms of which the default judgment remained in effect with its execution stayed conditioned upon the tenant's payment of past due rent and court costs by a date certain and compliance with a "pay-on-time" provision for one year. Before that year ended, the landlord notified the tenant of a rent increase, but the tenant tendered payment in the former amount and subsequently filed a tenant-petition challenging the rental increase with the District of Columbia Department of Consumer & Regulatory Affairs (DCRA). The trial court (Judge Blackburne-Rigsby) granted the landlord's motion to vacate the stay, and the tenant appealed from that order. Thereafter, the trial court (Judge Gregory Mize) granted the tenant's motion for a stay of the writ of eviction pending appeal, and the landlord appeals from that order. The tenant's principal argument on appeal is that the trial court erred in setting aside the stay based on the alleged breach of the "pay-on-time" provision of the consent order where the tenant refused to pay a contested rent increase implemented after the consent order was entered and challenged its legality administratively. He also contends that the trial court improperly permitted unilateral modification of the agreement, misconstrued
We find no error arising out of the trial court's interpretation of the agreement nor any showing of a mistake of fact or unilateral modification. However, we hold that where, as here, the determination of whether a tenant has breached a consent agreement, thereby entitling the landlord to evict him, rests solely upon the legality of a rental increase which the tenant has challenged before the agency having primary jurisdiction over that issue, the trial court must stay the proceeding under the principles enunciated in Drayton v. Poretsky Mgmt. Inc., 462 A.2d 1115 (D.C.1983), pending final disposition of the administrative proceeding.
I. Factual Background
The landlord filed a complaint for possession of the apartment that the tenant leased from it alleging that the tenant had failed to pay rent due for June and July 2001 totaling $1723. At that time, the tenant's monthly rent was $879.00. The tenant failed to appear on the scheduled hearing date, and a default judgment for possession was entered against him on August 15, 2001. The landlord had issued a writ of eviction. On August 29, 2001, the tenant appeared, ex parte, and requested a stay of the writ, and the trial court (Judge Joan Zeldon) granted the stay and continued the case to secure the presence of the landlord's counsel. On September 5, 2001, the parties entered an agreement settling their dispute which was approved by the court (Judge John Bayly). The consent judgment stated:
The tenant made the payment of $1,931.34 as required and continued to pay the rent as it fell due through December 2001. By letter dated November 20, 2001, the landlord informed the tenant that the rent ceiling on his apartment was $3818.00 and that his rent would be increased from $879.00 to $1050.00 effective January 1, 2002. However, the tenant sent the landlord a check for the January rent in the amount of $879.00. By letter dated January 7, 2002, the landlord returned the tenant's check and informed him that if he did not provide a replacement check in the amount charged, it would "proceed to court to enforce the agreement." The tenant did not comply. On January 14, 2002, the tenant filed a complaint with the DCRA's Housing Regulation Administration alleging that the rent ceiling was improper and too high for the condition of his apartment. He also alleged that: (1) the landlord discriminated against him because he complained about the poor condition of the apartment and because of his race and nationality (African-French); and (2) services and/or facilities in his apartment had been eliminated permanently or substantially reduced. The tenant also stated in the petition that although his rent had been increased in the past, this was the largest increase he had ever received.
On January 23, 2002, the landlord filed in the Superior Court a "Motion to Vacate the Stay Imposed by Settlement Agreement" based upon the tenant's failure to pay the rent in the full amount. In its motion, the landlord explained that applicable law authorized a rental increase; that the tenant refused, without lawful reason, to pay the increased amount in violation of the agreement; and that the tenant had given up his right to redeem the tenancy. The landlord requested that the stay be set aside and that it be permitted to file a writ of eviction with no right of redemption for the tenant. The tenant filed an opposition to the motion, pro se, in which he made essentially the same arguments that he made in his filing with the DCRA challenging the rent increase. Following a hearing on the motion, the trial court (Judge Blackburne-Rigsby) granted the landlord's motion and entered an order allowing a writ to issue and providing that "[d]efendant shall have no right to redemption with respect thereto." The tenant filed a notice of appeal from that order.
The tenant, represented by counsel, filed a motion to stay the writ of eviction pending disposition of the appeal. Following a hearing, the trial court (Judge Mize) granted the motion. In granting the motion, the trial court explained:
The court also ordered, and the tenant consented to, a bond requiring the tenant to pay into the court registry each month the full amount of rent, including the increase. The landlord appealed from the trial court's order granting a stay pending appeal. This court consolidated the two appeals for all purposes.
II. Tenant's Arguments
The tenant makes several arguments in support of his position that the trial court erred in setting aside the stay of the writ of eviction based upon his refusal to pay the amount of the rental increase. Specifically, he contends that: (1) the consent agreement is ambiguous with respect to whether the term "rent" included future increases; (2) the agreement requires him to pay only the amount of rent in effect at the time he entered it; (3) the agreement is invalid and unenforceable because it prevents him from exercising his right to challenge the increase; (4) the agreement resulted from a mistake of fact, and therefore, should have been set aside; and (5) he complied with those terms of the agreement that entitled him to a permanent stay of eviction. The landlord responds that there is no ambiguity in the agreement; that the agreement does not preclude lawful rent increases or the filing of a new writ of eviction upon breach of its terms; and that the agreement did not infringe upon the tenant's right to challenge the increase.
It is the tenant's position that the term "rent" as used in the agreement can mean only the amount of rent in effect at the time the landlord sued him and that this is the amount that he agreed to pay. Alternatively, he argues that the term is ambiguous, requiring extrinsic evidence to determine its meaning, and therefore, a remand is required for a hearing on the meaning of the term.
(1) Applicable Legal Principles
"A consent judgment is an order of the court, `indistinguishable in its legal effect from any other court order, and therefore subject to enforcement like any other court order.'" Moore v. Jones, 542 A.2d 1253, 1254 (D.C.1988) (quoting Padgett v. Padgett, 472 A.2d 849, 852 (D.C. 1984)) (other citation omitted). It is also a contract that "should generally be enforced as written, absent a showing of good cause to set it aside, such as fraud, duress, or mistake." Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc., 667 A.2d 822, 825 (D.C.1995) (quoting Moore, 542 A.2d at 1254); see also Fields v. McPherson, 756 A.2d 420, 424 (D.C.2000) (recognizing that only the most compelling reasons, such as fraud, duress or mistake, will justify modification of a voluntary settlement agreement) (citations omitted).
"A contract is ambiguous when it is reasonably susceptible of different constructions or interpretations, or of two or more different meanings." Deutsch v.
The parties' agreement provides that "all future rental payments be made before the 5th day of each month without demand, for the next one (1) year ... [,]" in default of which, the landlord can seek possession, and the tenant also waived "his right to seek a stay or redeem any judgment entered based upon his failure to pay his rent timely as hereto agreed." The agreement is silent on the amount of rent to be paid monthly. It does not specify whether rent means the rental amount in effect at the time the parties entered the agreement, as the tenant contends, or the current rent plus any lawful increases, as the landlord contends. The tenant argues that there is no provision of the agreement authorizing rent increases. The landlord counters that there is no provision in the agreement barring rent increases and that rent increases are permitted by law.
The term, "rent" as commonly understood, is unambiguous. Generally, it is defined to mean "[p]ayment, usually of an amount fixed by contract, made by a tenant at specified intervals in return for the right to occupy or use the property of another." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1529 (3d ed. 1992). However, in the context of our local landlord-tenant law, this court has stated that its meaning "is a term of art." Kapusta v. District of Columbia Rental Hous. Comm'n, 704 A.2d 286, 287 (D.C. 1997) (defining rent for purposes of determining rental refund for overcharges under applicable law).
In Kapusta, supra, the housing provider rented an apartment to the tenant at an amount in excess of the rent ceiling in violation of the local rental housing law. Id. at 286. The tenant had failed to pay any rent for several months, and the Rental Housing Commission (RHC) ordered a refund of the overcharges for those months. Id. at 287. The landlord argued that the RHC erred in ordering a rent refund for money that he had never collected. Id. This court determined, however, that the RHC's order for a refund was consistent with the statutory definition of rent that included the amount "demanded, received, or charged" whether or not collected by the landlord. Id. (citing D.C.Code § 45-2503(28) (1996)) (re-codified as D.C.Code § 42-3501.03(28) (2001)). Considering this statutory definition for the term, along with the statute imposing liability upon the landlord for rent demanded in excess of the applicable rent ceiling, see D.C.Code § 45-2591(a) (1996),
B. Claim of Unilateral Modification
The tenant argues that interpreting the agreement to allow for a rental increase results in a unilateral modification of the agreement. Generally, a consent agreement is enforceable as written, absent good cause for setting it aside. Moore, supra, 542 A.2d at 1254 (citing Biggs v. Stewart, 418 A.2d 1069, 1071 (D.C. 1980) (other citation omitted)). We have said that "`[t]o encourage voluntary settlements, settlement agreements should not
Contrary to the tenant's argument, interpretation of the agreement consistent with the foregoing rule of interpretation does not amount to a modification of the contract. A modification of a contract occurs when there is an alteration of its provision to include new or additional obligations, while leaving the original agreement otherwise intact. See Hildreth Consulting Eng'rs v. Larry E. Knight, Inc., 801 A.2d 967, 974 (D.C.2002) (citations omitted) (explaining modification where effected by the contracting parties' agreement to alter the contract by including additional obligations); see also Enserch Corp. v. Rebich, 925 S.W.2d 75, 83 (Tex. App.1996) ("Modification of a contract is some change in an original agreement which introduces a new or different element into the details of the contract but leaves its general purpose and effect undisturbed.") (citation omitted). Since the law in effect at the time of the contract is deemed to be a part of it, see Double H Hous. Corp., supra, 799 A.2d at 1199, construing the contract consistent with the law then in effect does not introduce a new or different element. It simply recognizes an element that existed at the time the parties made the agreement and that formed a part of the contract. See id.
Moreover, a party to an agreement is bound by usages of the terms which he or she had reason to know. Intercounty Constr. Corp., supra, 443 A.2d at 32. Here, the parties knew or had reason to know that the rent control laws permitted a landlord to implement rent increases from time to time.
The tenant argues that interpreting the term "rent" to mean the amount demanded or charged by the landlord effectively allows the landlord to demand illegal rents. There is always the possibility that someone will violate the law, but there is no presumption to that effect.
In summary, we conclude that there was no ambiguity in the term "rent" as used in the parties' agreement. Although not defined in the parties' contract, the meaning of the term is defined by statute in this jurisdiction to mean the amount demanded, received, or charged by the housing provider. Nothing in the parties' agreement precluded the landlord from implementing a rent increase consistent with applicable law, or the tenant from challenging the legality of the increase demanded.
C. Claim of Unilateral Mistake
For the first time on appeal, the tenant argues that the consent agreement should be set aside because of a unilateral mistake of fact. Generally, issues not raised in the trial court will be not be considered on appeal. Aurora Assocs., Inc. v. Bykofsky, 750 A.2d 1242, 1249 (D.C. 2000) (citing Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967)). Even assuming that the issue were adequately preserved for review, the limited circumstances under which a contract can be set aside for unilateral mistake have not been shown to be present here. See Flippo Constr. Co. v. Mike Parks Diving Corp., 531 A.2d 263, 270-72 (D.C.1987) (adopting RESTATEMENT (SECOND) OF CONTRACTS §§ 153, 154 (1981) as the standard to determine availability of unilateral mistake defense). A claim of unilateral mistake warranting relief requires a showing not only that one party was mistaken at the time of contracting as to a basic assumption having a material effect on the agreement, but also that "(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake." Id. at 272 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 153) (emphasis added). These factors are not present here. The tenant did not claim in the trial court that he assumed mistakenly, at the time he entered the consent agreement, that the landlord was relinquishing any rights he might have to increase the rent. The record shows that the tenant had several rent increases during his tenancy, and there is no suggestion that the landlord had reason to know that the tenant thought, even assuming that he did, that there could be no future increases. There is no showing in this record that it would be unconscionable to enforce an agreement that neither forecloses the landlord's right to charge lawful increases nor the tenant's right to challenge such increases as provided for by law. For the foregoing reasons, we reject this argument.
D. Claim of Entitlement to a Permanent Stay
The tenant argues that the trial court erred in setting aside the stay and authorizing the issuance of the writ of eviction because he was entitled to have the writ "permanently quashed" by paying timely the back rent as specified in the consent agreement. The tenant relies upon that portion of the agreement that provides that "[i]f the payment of $1931.34 is paid as agreed, on or before September
As previously stated, "[w]e adhere to the `objective law' of contracts, whereby the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, . . . unless the written language is not susceptible of a clear and definite undertaking, or unless there is fraud, duress or mutual mistake." Capital City Mortgage Corp. v. Habana Vill. Art & Forklore, Inc., 747 A.2d 564, 567 (D.C.2000) (quoting Minmar Builders, Inc. v. Beltway Excavators, Inc., 246 A.2d 784, 786 (D.C.1968) quoting Slice v. Carozza Props., Inc., 215 Md. 357, 137 A.2d 687, 693 (1958)) (other citations omitted). We construe the contract as a whole, giving effect to each of its provisions, where possible. Id. at 569 (citing 1010 Potomac Assocs., supra, 485 A.2d at 205-06); Clyburn v. 1411 K St. Ltd. P'ship, 628 A.2d 1015, 1018 (D.C.1993) (citation omitted).
Applying these general principles, we conclude that the provision of the agreement providing for the permanent quashing of the writ of restitution upon payment of $1931.34 by September 18, 2001, even if met, did not relieve the tenant of the remaining obligations he assumed under the agreement or deprive the landlord of any remedies to which it was entitled thereunder.
III. Stay of Proceedings
A. Need for a Drayton Stay
The tenant and amicus argue that the trial court erred in failing to enter a stay of the proceeding while the tenant's petition challenging the rent increase was pending before the RACD.
In support of their argument, the tenant and amicus rely upon this court's decision in Drayton, supra, 462 A.2d at 1115. In Drayton, this court held that "[a]pplication of the doctrine of primary jurisdiction requires that when there is pending before the Administrator or the [Rental Housing Commission] RHC a challenge to a rent increase that bears upon the amount of rent owed by a tenant defending a possessory action brought for
In this case, as previously stated, the parties' agreement did not preclude the tenant from filing a challenge to the legality of future rent increases. The tenant, in fact, filed a challenge with the agency shortly after the landlord moved to vacate the stay provided for in the settlement agreement based upon its claim that the tenant had failed to pay the full amount of the rent. The tenant brought to the trial court's attention that his challenge to the increase was pending before the agency. While acknowledging that the tenant was "entitled to pursue [his] petition to challenge the rent before [the] RACD," the trial court declined to stay the proceeding, thereby allowing the landlord to evict the tenant for failure to pay the challenged rental increase. Since the tenant had tendered all of the rent due except for the challenged increase, whether the tenant was in violation of the pay-on-time provision of the consent judgment depended upon the legality of the increase charged by the landlord.
In Drayton, we said that the procedure outlined "should be followed in all actions in the L & T Branch, in which the legality of rent increases is raised. . . ." 462 A.2d at 1121 n. 12. That the question of the legality of the rent increase here arose in a context different from the Drayton case does not alter the result. The circumstances are analogous, and we see no basis to distinguish the two situations. Here, as in Drayton, the landlord's right to possession of the property depended ultimately upon the legality of the rental increase it demanded. The tenant tendered the amount due under the consent agreement with the exception of the challenged increase. If the landlord could not lawfully demand the increase, then it could not claim that the tenant breached the agreement by refusal to pay it. Thus, the tenant's pending petition challenging the legality of the rent increase bore directly upon the issue before the court, i.e., whether the tenant breached the consent judgment by withholding the amount of the increase demanded by the landlord. The only way to conclude that the tenant was in breach of the agreement was for the court to find that the tenant was obligated to pay the increased amount. Thus, without expressly finding that the tenant had failed to pay the lawful rent for the unit, the court's ruling effectively did so. Absent a stay, the eviction remedy was authorized to proceed before the agency could determine the legality of the rental increase that formed the basis for the claim of breach. Thus, the court's action on the landlord's motion would terminate finally the tenant's right to possession. Such a procedure would defeat primary jurisdiction of the agency to determine the validity of the rent increase and render meaningless the tenant's right to challenge the increase before the agency. While a refund or damages might compensate the tenant for his financial losses, actual eviction from his home for what may be determined to be illegal charges is essentially irreparable. This is the type of final action to which the Drayton proscription against judicial determinations applies. See Mullin, supra, 712 A.2d at 493-94.
Although the trial court viewed its ruling setting aside the stay as leaving open for future determination by the agency the
The case must be remanded for entry of a stay under Drayton and for consideration of the impact of the final agency order, when entered, on the landlord's claim that the tenant breached the agreement. The tenant and amicus argue that any protective order payment entered in connection with the Drayton stay should not include the contested portion of the rent. They contend that forcing the tenant to pay the higher rent pending the outcome of the administrative challenge to its legality would defeat the purpose of Drayton and the rent control statute.
"The Drayton proscription against judicial determination of rent increases seeks to prevent the courts from intruding unduly into the province of the Rental Housing Commission, whose primary authority flows directly from the rent control laws." Mullin, supra note 10, 712 A.2d at 493 (citations omitted). Its purpose is to promote the policy of "greater uniformity of result and the utilization of the specialized and expert knowledge of the agency." Id. at 492 (citing District of Columbia v. Thompson, 570 A.2d 277, 287 (D.C.1990)). To that end, it operates to leave to the agency, not the court, the adjudication of the legality of a rent increase. See id. at 492. A protective order is an equitable remedy that the courts have devised "to ensure that the landlord is not exposed to a prolonged period of litigation without rental income while the tenant remains in possession [of the property] pending the outcome of a suit for possession." Id. at 493 (quoting R & A, Inc. v. Kozy Korner, Inc., 672 A.2d 1062, 1071 (D.C.1996) (quoting Davis v. Rental Assocs., Inc., 456 A.2d 820, 823 (D.C.1983) (en banc)) (internal quotation marks omitted) (emphasis added)). Such orders are intended to preserve the status quo until the merits determination, with the view toward "maintain[ing] the proper balance, pendente lite, in the unique arena of landlord-tenant litigation." Id. (quoting Davis, 456 A.2d at 829 (other citation omitted)). Thus, in Mullin, this court held that modification of a protective order to reflect a
The tenant argues that the court can preserve the status quo during the Drayton stay only by setting the protective order in the undisputed amount rather than at the increased rent level. However, he acknowledges that the court must make its decision in this regard on a case-by-case basis, considering various relevant factors. In Bell v. Tsintolas Realty Co., 139 U.S.App.D.C. 101, 430 F.2d 474 (1970), recognized as the seminal case allowing protective orders,
Moreover, it is not uncommon for protective orders to require the tenant to deposit disputed rental payments into the registry of the court. Stets, supra, 754 A.2d at 295. The protective order does not dispose finally of the parties' rights to the money paid under it. Id. at 296. The court cannot disburse the funds until conclusion of the action and a determination of the parties's respective rights to the funds. Id. (citing McNeal v. Habib, 346 A.2d 508, 514 (D.C.1975)) (other citation omitted). While the court has discretion to order release of the uncontested portion of the rent to the landlord under some circumstances, we can conceive of no circumstances where the disputed portion of the rent will be released before it is determined to whom it rightfully belongs. Id. at 296-97. Such an order protects the landlord from financial losses when the tenant continues in possession pending the
B. The Landlord's Challenge to the Stay Pending Appeal
The landlord argues that the trial court erred in granting the tenant a stay pending appeal because he failed to meet the criteria for that relief.
The most important inquiry in the injunction analysis concerns irreparable injury. Antioch, supra, 418 A.2d at 109. The parties do not dispute that the tenant would suffer irreparable harm if evicted. Other courts have so determined. See, e.g., Higbee v. Starr, 698 F.2d 945, 947 (8th Cir.1983) (depriving tenant of place to live constituted irreparable harm); Vargas v. Municipal Court for Riverside Judicial Dist., 22 Cal.3d 902, 150 Cal.Rptr. 918, 587 P.2d 714, 722 n. 7 (1978) (noting that eviction inevitably results in irreparable harm); Housing Works, Inc. v. City of New York, 255 A.D.2d 209, 680 N.Y.S.2d 487, 491 (N.Y.App.Div.1998) (noting that potential of eviction for non-payment of rent presented irreparable harm). However, the landlord argues that the tenant has provided no proof that he could not pay the rent increase and that he would be homeless. We disagree. Here, the tenant's failure to tender the full amount of the rent charged placed him in breach of an agreement, subject only to his pending challenge to the legality of the rent. Absent a stay, he could have been evicted under the terms of an agreement that provided that he had no right to redeem the tenancy, even if he could afford to pay the charges subsequently. The upheaval of the tenant from his home, even if he can find alternative housing, creates a cognizable irreparable injury.
This court has previously indicated that a party seeking temporary equitable
On the merits, as discussed earlier in this opinion, the tenant had a clear likelihood of prevailing on his claim that he was entitled to a Drayton stay pending the final determination of his challenge to the rental increase administratively. Moreover, the tenant raised somewhat novel issues, or at least issues not previously squarely addressed by this court. These include: (1) whether under the unique circumstances of this case, a Drayton stay was required; (2) how the word "rent" should be interpreted in a consent judgment where it is not defined therein; and (3) whether allowing rent increases to be incorporated into a consent judgment constitutes an impermissible judicial modification of the consent judgment. These are circumstances that can be weighed in the analysis. See Doe v. Axelrod, 136 A.D.2d 410, 527 N.Y.S.2d 385, 390 (1988) (noting that although movant may not be ultimately successful, the case presented "novel issues of first impression" and injunction should be granted).
Further, there was no showing that the landlord would be harmed here. The landlord could be protected by an appropriate order. In this case, the tenant was directed to pay the full amount of rent demanded by the landlord pending appeal. Since the landlord would be protected from loss of income, its only harm would be the delay in executing the writ of eviction. Although this is a valid interest, when the equities are balanced, the landlord's interest in timely execution pales in comparison to the tenant's potential loss of his home before his rights could be adjudiciated.
Finally, the public interest is better served by preserving the tenant's right to occupy his home pending a determination of the legality of the rent charged. The landlord is correct that there is a public interest in preserving contracts as written. Indeed, this court has indicated that although there was a strong interest against forfeiture, it might be slightly outweighed by the interest in contract preservation. See Suitland Parkway Overlook Tenants Ass'n. v. Cooper, 616 A.2d 346, 349 (D.C. 1992). However, a temporary stay does not defeat the landlord's rights under the contract. Further, as the trial court recognized, other important policies are implicated here, i.e., the policies protected by Drayton of deferring to the agency with primary jurisdiction of the legality of rent challenges under our local statutes and preserving the status quo pending the agency's determination of such questions. See Mullin, supra note 10, 712 A.2d at 492-93 (citations omitted). As Judge Mize implicitly found, given the uncertainty regarding how Drayton would apply in this instance, the public interest would be better served by determination of what he called "a significant legal issue." In this case, the tenant has the more compelling public interest argument. For the foregoing reasons, we find no abuse of discretion
For the reasons stated herein, we affirm the decision of the trial court in the landlord's cross appeal, case no. 02-CV-141. In the tenant's appeal, case no. 02-CV-291, we affirm, in part, the trial court's decision as set forth in this opinion. However, we reverse and remand the trial court's decision on the Drayton stay issue and for further proceedings consistent with this opinion, including the impact of any final decision of the administrative agency.