Court of Appeals Holds Tenant Entitled to Jury Instruction on Retaliation Defense and Affidavit Admissible as Adoptive Admission
On January 24, 2013, the District of Columbia Court of Appeals decided Bridges v. Clark, No. 11-CV-862, slip. op. (D.C. Jan. 24, 2013) in which it considered issues arising from the trial of a dispute between a landlord and a tenant. The litigation began when the landlord brought an eviction action against the tenant for nonpayment of rent. Id. at 1. The tenant counterclaimed for alleged housing-code violations. Id. The case proceeded to trial and a jury returned a verdict for the landlord on all claims. Id. at 1, 5. The tenant appealed. Id.
On appeal, the tenant raised two issues. First, the tenant argued that “the trial court erred by refusing to instruct the jury on the defense of retaliation.” Id. at 5. By way of background, in the District of Columbia, “[i]t is unlawful for a landlord to take retaliatory action against a tenant who exercises certain legal rights, including the right to complain to the government about violations of housing regulations.” Id. at 6 (citing D.C. Code § 42-3505.02 (2010)). Furthermore, “[w]hen a landlord sues a tenant for possession of rental property, the tenant is entitled to judgment if the suit has been brought in retaliation for the exercise of such legal rights.” Id. (same). “If the landlord’s suit is initiated within six months after the tenant has exercised such legal rights, the suit is presumed to be retaliatory,” and the tenant “is entitled to judgment unless the landlord presents clear and convincing evidence to rebut the presumption.” Id. (same). “The presumption is triggered even in the absence of direct evidence . . . that the landlord in fact acted with a retaliatory motive.” Id. at 12.
Applying these principles, the Court of Appeals concluded that, “[a]s a substantive matter, [the tenant] introduced sufficient evidence at trial to support her request that the jury be instructed about the retaliation defense.” Id. at 9. Specifically, her evidence showed that “she had complained in writing to government officials . . . within six months . . . [of] the date on which [the landlord] initiated this eviction action” and thus was “substantively entitled to have a jury instructed on the retaliation defense.” Id. The Court of Appeals further concluded that the tenant “did not ‘abandon’ or ‘forfeit’ the retaliation defense by failing to mention the defense in [her] opening statement or in her trial testimony” because she raised the defense “in her answer, her amended answer, and the joint pretrial statement.” Id. at 10. It also concluded that the tenant adequately objected to the trial court’s refusal to instruct the jury on the defense of retaliation, and that, under the circumstances, instructing the jury on the defense would not have resulted in unfair surprise or prejudice to the landlord. Id. at 13.
Second, the tenant argued that “the trial court erred by excluding as inadmissible hearsay an affidavit that [the landlord] submitted to the court as an attachment to [a] pretrial motion to dismiss.” Id. at 15. By way of background, the subject affidavit was eight lines long and stated that the affiant had helped the landlord fix a roof leak at the subject property and that the landlord “was present at the time of the repair.” Id. at 16. The tenant requested that the affidavit be admitted into evidence after the landlord “testified that he had ‘never found a leak in the roof.'” Id. (brackets omitted; quoting trial testimony).
The Court of Appeals concluded that the affidavit was admissible as an adoptive party admission. Id. at 15. It explained that “[t]his court has adopted the substance of Federal Rule of Evidence 801 (d)(2) . . . [which] makes admissible an out-of-court statement that is offered against a party if the party manifested that it adopted or believed the statement to be true.” Id. at 17 (brackets and internal quotation marks and citations omitted). It further explained that the landlord “manifested his adoption and his belief in the truth of the pertinent part of the affidavit by submitting the affidavit to the court as part of a motion to dismiss in which he argued that he had made repairs to the [subject property] promptly after learning of problems,” and “by consenting through counsel to the admission of the affidavit into evidence as long as the motion to dismiss was admitted in its entirety” (which the trial court refused to do). Id. at 17-18. The Court of Appeals emphasized that the landlord “was personally in a position to assess the veracity of [the affiant’s] statement” and that the statement “was not buried in a lengthy document, but rather was clearly expressed in an eight-line affidavit.” Id. at 19.
Finally, the Court of Appeals concluded that the trial court’s error with respect to the affidavit was not harmless. Id. at 24-26. Accordingly, it reversed the judgment and remanded for further proceedings. Id. at 27.