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DISTRICT OF COLUMBIA COURT OF APPEALS
22-CV-0952
RICHARD DEMUTH, APPELLANT,
v.
PETRA PROPERTY MANAGEMENT, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2022-CA-002501-H)
(Hon. Donald Tunnage, Trial Judge)
(Submitted January 30, 2024 Decided August 15, 2024)
Richard Demuth, pro se. 1
William P. Cannon, III, Dayshon L. Wagner, and Peter Rauch were on the brief, for appellee.
Before MCLEESE, HOWARD, and SHANKER, Associate Judges.
Counsel for Mr. Demuth withdrew after this matter was submitted, citing 1
Mr. Demuth’s decision to terminate representation on April 10, 2024. 2
HOWARD, Associate Judge: Appellant Richard Demuth appeals a dismissal
from the Superior Court’s Housing Conditions Court 2 (“HCC”) of his complaint,
which alleged that his landlord, appellee Petra Property Management (“Petra”), had
committed a number of housing code violations. The HCC dismissed Mr. Demuth’s
complaint based on a Department of Buildings (“DOB”) inspector’s contested
assessment and on Petra’s statement that a related case was being filed in the
Landlord and Tenant (“L&T”) Branch. We first determine that the HCC abused its
discretion when it did not give Mr. Demuth the opportunity to cross-examine the
housing inspector. We then conclude that the HCC’s order of dismissal—rather than
transfer to the Civil II Calendar—prejudiced Mr. Demuth because it frustrated his
claims from being heard. We vacate the HCC’s order and remand for the case to be
transferred to a Civil II Calendar.
2 At the time of these proceedings, the HCC was known as the Housing Conditions Calendar. See Housing Conditions Court, District of Columbia Courts, https://www.dccourts.gov/services/civil-matters/housing-conditions-calendar; https://perma.cc/GQ7S-694V (last visited June 18, 2024). 3
I. Background
In 2010, the District of Columbia Superior Court created the Housing
Conditions Court as a problem-solving court within the Superior Court’s Civil
Division. 3 Its goal is to “efficiently and quickly achieve compliance” with the
District of Columbia Housing Code by giving tenants a venue to raise potential
violations of regulations, which are usually investigated by a DOB housing
inspector. 4
On July 9, 2022, Mr. Demuth filed a complaint in the HCC against Petra that
listed various District of Columbia Housing Code violations. At an initial hearing
about two weeks later, the HCC ordered an initial inspection to take place at
Mr. Demuth’s home by DOB Inspector Christina Hall to verify the violations in
3 D.C. Superior Court Announces Housing Conditions Calendar, District of Columbia Courts (Apr. 28, 2010), https://www.dccourts.gov/sites/default/files/2017-06/2010-04- 28_RentalConditionsCalendarAdvisory.pdf; https://perma.cc/9K8Z-Z9M6. 4 See District of Columbia Courts, Case Management Plan for the Housing Conditions Civil Calendar, §§ I, VII (Apr. 2024), https://www.dccourts.gov/sites/default/files/Housing-Conditions-Case- Management-Plan.pdf; https://perma.cc/M8NS-2CR2 The housing inspection unit formerly operated under the Department of Consumer and Regulatory Affairs (“DCRA”); it now operates under DOB. See Department of Buildings Establishment Act of 2020, D.C. Law 23-269, 68 D.C. Reg. 1490 (Apr. 5, 2021); see also Wong v. District of Columbia, 314 A.3d 1236, 1240 n.6 (D.C. 2024) (describing transition from DCRA to DOB). 4
Mr. Demuth’s complaint. Inspector Hall conducted the inspection and completed an
inspection report, which identified five violations.
At a hearing on August 30, 2022, the HCC asked the parties for their positions
on Inspector Hall’s report. The parties disagreed on the extent of the violations and
on whether the violations were abated. Mr. Demuth asserted that there were
additional violations not reported in Inspector Hall’s report, that repairs were not
completed, and that the inspection was “casual” and “quick.” Petra said that the
issues in the report were abated and that the additional issues that Mr. Demuth
brought up were of “his own making.” Inspector Hall stated that the additional
violations that Mr. Demuth brought up “[we]re new to [her],” and were not brought
up during the inspection or in prior communications. The court asked the parties to
share documentation about the state of repairs amongst themselves and
Inspector Hall.
At the next hearing on September 16, 2022, the HCC asked the parties about
their positions and requested an update regarding their exchange of
information. Petra stated that it shared information with Mr. Demuth and
Inspector Hall of what the property “looked like prior to the damage”—that is,
before the “intentional destruction” Petra suggested Mr. Demuth
caused. Mr. Demuth shared a proposed motion for the court to issue a subpoena to 5
obtain security camera evidence of an intruder, who he claimed caused the
destruction. The HCC indicated to Mr. Demuth that his request for discovery was
“not appropriate” since the HCC “do[es] not observe the rules of discovery” and
“[e]videntiary hearings are extraordinary.” The court then informed Mr. Demuth
that it would ask for Inspector Hall’s assessment during the next hearing.
Another hearing occurred on November 1, 2022, where Mr. Demuth
explained that he had submitted a packet of information to Inspector Hall and
Petra. Mr. Demuth stated that the five issues did not encompass all of the violations
in his complaint and had not been abated. Petra disagreed. Inspector Hall concluded
that the issues in the report were abated based on “documentation and several
emails” from the parties, not a follow-up inspection of the property. She said she
received Mr. Demuth’s packet of additional information, but that the pictures in the
packet were missing the dates that she requested. However, she noted that there did
appear to be new violations, which “appear[ed] to be contrived.” The court
concluded that the five violations initially identified by Inspector Hall were abated
and that the remaining question was whether the parties should address the
remaining violations with the HCC or on an alternative calendar. The court provided
three calendar options for the parties: (1) the parties could file an additional suit in
the L&T Branch, (2) the court could certify the case to the Civil II Calendar, or 6
(3) the parties could remain in the HCC, in which case the court would hold an
evidentiary hearing.
At the final hearing on November 17, 2022, Petra stated that a related pending
matter “[wa]s being filed” before the L&T Branch. The matter would be based on a
thirty-day Notice to Cure or Quit eviction notice and address the damages that Petra
believed Mr. Demuth caused. Mr. Demuth replied, “Excuse me. I thought the
purpose of this hearing today, based on your last order, was to determine what court
you were going to refer the issue to, based on our arguments of the merits.” In
response, the HCC explained: “Right. And that’s what I’m discussing now because
it appears that this matter is already pending before a different court.” The HCC
stated that since “it appears that there is, right now, going to be a different lawsuit
filed that will address the current condition of your unit . . . that calendar is better
prepared to offer you the type of hearing that I think you want to have.” The HCC
reiterated that it found the five violations from Inspector Hall’s report abated “based
upon the representation of Inspector Hall,” and maintained that it would not disturb
the inspector’s findings. The HCC concluded that the L&T Branch would be more
appropriate for Mr. Demuth because the issues raised, including Mr. Demuth’s
request for a subpoena, required an evidentiary hearing. The HCC then dismissed
the complaint without prejudice. 7
This appeal followed. In the interim, both parties have since filed separate
lawsuits concerning their claims. Concerned about the procedural posture of the
case, we asked the parties to submit supplemental briefing.
On January 9, 2023, nearly two months after the HCC dismissal, Petra filed a
complaint in the L&T Branch, 2023-LTB-000325, which alleged that Mr. Demuth
breached his lease by intentionally damaging the property. Mr. Demuth filed an
answer denying Petra’s breach-of-lease claim and demanding a jury trial. On May
3, 2023, the L&T Branch issued a Scheduling Order and set mediation for August 2,
2023. Mr. Demuth later failed to appear at the mediation after having exchanged
discovery and responsive documents in the month prior; Petra filed a motion for
sanctions against Mr. Demuth due to his failure to appear. The L&T Branch
scheduled the parties for a forthcoming mediation session.
On January 12, 2023, Mr. Demuth filed another case in Superior Court,
2023-CAB-000181, regarding his unaddressed housing code violation claims. That
case was assigned to the HCC. On February 27, 2023, Inspector Hall re-inspected
the property and found multiple violations, some of which she determined were
caused by Mr. Demuth. Because the property damage at issue was being adjudicated
in Petra’s pending L&T Branch case, Petra moved to dismiss Mr. Demuth’s
complaint, but the HCC denied Petra’s motion. Mr. Demuth later failed to appear at 8
a subsequent hearing on August 15, 2023, and the HCC dismissed the new case
without prejudice for want of prosecution.
II. Standard of Review
We review a trial court’s dismissal without prejudice under the abuse of
discretion standard. See Hailemariam v. Zewdie, 291 A.3d 213, 216 (D.C. 2023)
(reviewing the appropriateness of an HCC dismissal under the abuse of discretion
standard). When we review whether the HCC “exercised its discretion erroneously,”
we must “determine whether the decision maker failed to consider a relevant factor,
whether he relied upon an improper factor, and whether the reasons given reasonably
support the conclusion.” Ford v. Chartone, Inc., 908 A.2d 72, 84 (D.C. 2006)
(internal quotation marks and citation omitted). “[The HCC] abuses its discretion if
its decision is supported by improper reasons . . . or reasons which contravene the
policies meant to guide the trial court’s discretion.” Edwards v. United States, 295
A.3d 1125, 1133 (D.C. 2023) (internal quotation marks omitted). “[A] dismissal of
the complaint—even one without prejudice—[that] could have adverse
consequences for the plaintiff . . . would be error or an abuse of the court’s
discretion.” Hailemariam, 291 A.3d at 216. The abuse-of-discretion standard also
applies to our review of a trial court’s limitation or denial of the opportunity to cross-
examine or confront a witness. See Tyree v. Evans, 728 A.2d 101, 103-04 (D.C. 9
1999) (citing Alford v. United States, 282 U.S. 687, 694 (1931); Fortune v. Evans,
58 A.2d 919, 920 (D.C. 1948)).
III. Discussion
We determine that the HCC exceeded its discretion when it found that five of
the violations Mr. Demuth alleged were abated. We conclude, further, that the HCC
exceeded its discretion when it dismissed Mr. Demuth’s complaint because its
dismissal ultimately prejudiced Mr. Demuth.
A. The HCC Exceeded Its Discretion in Denying an Opportunity to Cross-Examine or to Certify to the Civil II Calendar
The HCC exceeded its discretion when it based its abatement findings on
Inspector Hall’s assessment without providing Mr. Demuth a chance to cross-
examine Inspector Hall or certifying the case to the Civil II Calendar.
This court has stressed the importance of “an opportunity to confront and
cross-examine adverse witnesses” when “important decisions turn on questions of
fact.” Tyree, 728 A.2d at 104 (quoting Goldberg v. Kelly, 397 U.S. 254, 269 (1970)).
In McKenzie v. McCulloch, we reversed an L&T Branch judgment after the judge
withdrew from jury consideration a key fact: whether certain housing code violations
had been abated prior to a 170% increase in rent. 634 A.2d 430, 430 (D.C. 1993).
A tenant testified in “some detail” that the violations had not been abated; a landlord 10
then offered contrary evidence that included testimony by a housing inspector. Id.
at 432. We held that the landlord’s evidence of abatement was “not dispositive,” but
rather, in the face of the tenant’s contrary testimony, “presented a classic credibility
contest, which could only be resolved by the jury, and not by the judge.” Id. A
through line of Tyree and McKenzie is that when a factual issue arises that raises a
“credibility contest,” id., a party should not lose the opportunity to raise such a
contest—even in a problem-solving setting like the HCC. Indeed, it need not under
the terms of the HCC Case Management Plan, which contemplates the same in
allowing for evidentiary hearings or, more commonly, transfer, when such issues
arise. Case Management Plan for the Housing Conditions Civil Calendar, supra,
§ IX.
In this case, then, the HCC should have provided that opportunity by either
holding an evidentiary hearing and allowing for cross-examination or certifying to
the Civil II Calendar. Mr. Demuth listed at least thirteen housing violations in his
initial Housing Code Violations complaint, such as peeling paint in the bathroom,
plumbing issues with a bathroom sink, a malfunctioning toilet, missing blinds, and 11
inadequate heating. 5 After her inspection, Inspector Hall reported five violations to
the HCC: (1) for the entire unit, “Surface not maintained in good condition;” (2) for
the living room, “Wall work not completed in a workmanlike manner;” (3) for the
bathroom, “Lavatory sink not maintained in good condition;” (4) for the bathroom
closet, “Transitional plate not maintained free from hazardous condition;” and
(5) for the entry door, “Door not maintained in good condition[.]” At the August 30,
2022, hearing, Inspector Hall reiterated that these violations existed as of the July 22
inspection she conducted, while Petra’s counsel claimed that these were issues “of
[Mr. Demuth’s] own making,” and that after making repairs, “the tenant continues
to take these repairs apart.” In addition, Mr. Demuth complained to the HCC that
Inspector Hall omitted a number of violations that he attempted to bring to her
attention, including a problem with his toilet flushing, moisture in his bathroom, and
reglazing of his bathtub. Inspector Hall stated that Mr. Demuth had referred to these
issues for the “first time” at the hearing.
5 Mr. Demuth’s opening brief referred to nineteen Housing Code violations in the complaint, but his reply brief referred to thirteen violations. In any event, it is unclear from the record whether some or most of these allegations went completely unaddressed, or were found unsubstantiated and thus not reported. 12
As the hearings progressed, the HCC continued to—in its own words—“rel[y]
on Inspector Hall as the investigator and the ultimate fact finder with respect to
violations.” 6 At subsequent hearings on September 16, November 1, and November
17, 2022, Mr. Demuth argued the violations were ongoing. Since the HCC’s
findings were “based upon the representation of Inspector Hall,” the court
maintained that it would not disturb the inspector’s findings. All in all, before the
HCC made its findings, Mr. Demuth did not have the chance to cross-examine
Inspector Hall before the HCC either about whether the violations he disputed were
abated or about the other violations she allegedly failed to document.
Petra raises two counterpoints that we do not find convincing. Petra first
argues that Mr. Demuth waived his cross-examination rights because he did not
share his objections in accordance with the HCC’s order for the parties to share
6 The HCC erred to the extent it treated the inspector as the finder of fact. While the inspector assigned by DOB is a “critical component of the calendar,” the inspector’s report only “generally provide[s] the basis for the Court’s assessment of the existence and abatement of housing code violations.” Case Management Plan for the Housing Conditions Civil Calendar, supra, §§ I, VII. The inspector acts akin to a court-appointed expert to aid the court in fulfilling its duty as the finder of fact. But the HCC noted at the November 17, 2022, hearing that it found the violations abated and “relie[d] on Inspector Hall as the investigator and the ultimate fact finder with respect to violations” (emphasis added). Of course, the HCC may have simply misspoken. To the extent it did not, however, it was error for the HCC to delegate its authority to the third-party DOB inspector. 13
documentation with one another. But that order was an order for documentary
“evidence that [Mr. Demuth] ha[s], including the police report about an
unauthorized entrance into [Mr. Demuth’s] unit, and the other matters that
[Mr. Demuth is] describing”—not for objections. Petra further argues that
subjecting a housing inspector to cross-examination under oath “in every contested
case” would adversely affect the HCC. Yet in thousands of cases per year, and
across both the Superior Court and the Office of Administrative Hearings, that is
exactly what inspectors of enforcement agencies, including housing inspectors, in
the District are subject to.
Here, the HCC erred by failing to allow Mr. Demuth the chance to cross-
examine the DOB inspector or transferring the case to the Civil II Calendar, where
Mr. Demuth could challenge the inspector’s findings, after a credibility contest
arose, under the terms of its case management plan. We therefore set that
determination aside.
B. The HCC’s Dismissal Prejudiced Mr. Demuth
The HCC exceeded its discretion when it dismissed, rather than transferred to
the Civil II Calendar, the case because Mr. Demuth was prejudiced by the dismissal.
Below, we compare our prior case on HCC dismissal with the events in this case.
We then explain why we hold that the HCC erroneously suggested that Petra’s 14
anticipated L&T action would address Mr. Demuth’s claims and that the HCC failed
to provide Mr. Demuth with sufficient information about where to file for the relief
he sought, ultimately prejudicing him as an unrepresented party.
The HCC, a problem-solving court, has “discretion to manage the Calendar
consistent with its purpose efficiently and quickly to secure compliance with housing
code regulations.” Hailemariam, 291 A.3d at 215-16 (quoting District of Columbia
Courts, Case Management Plan for the Housing Conditions Civil Calendar, § IX
(Apr. 2024), https://www.dccourts.gov/sites/default/files/Housing-Conditions-
Case-Management-Plan.pdf). When the HCC faces issues that “cannot be addressed
on the Housing Conditions Civil Calendar without adversely affecting the Court’s
ability to provide efficient and expedited enforcement of housing code regulations,”
the HCC may “certify the case to a randomly assigned Civil [II] Calendar or dismiss
it without prejudice so that the plaintiff can file the case on a Civil [II] Calendar.”
Id.
In Hailemariam, we held that the HCC did not abuse its discretion when it
dismissed without prejudice—rather than transferred—a tenant’s complaint against
her landlord so that she “could refile [her] case on the Civil [II] Calendar.” Id. at
215-17. The parties disputed matters including the “scope of the tenancy, what part
of the house had been rented to [the tenant], and whether the lease obligated the 15
landlord to provide and repair a bathroom on the first floor of the dwelling”—matters
the HCC concluded required “more extensive litigation.” Id. at 214-15. The HCC,
after having consulted with the Civil Division regarding whether the case should be
filed there, dismissed the case so that the tenant could “file a complaint alleging her
[landlord’s] breach of contract and outlining her basis for her claim that her lease
agreement with the landlord covers the bathroom downstairs.” Id. at 215.
“Following the dismissal of her complaint without prejudice, appellant filed a new
complaint for damages and injunctive relief in the Civil Division of Superior Court.
This complaint, No. 2021 CA 003168B, is still pending on the Superior Court’s
docket.” Id. The complaint was assigned to the Civil II Calendar. There, we
concluded that dismissal was not poised to prejudice the tenant: it would not, for
example, trigger a statute of limitations that would preclude the tenant’s claims,
prevent the tenant from litigating her claims, or burden the tenant (who was
proceeding with fees and costs waived) with an additional filing fee. See id. at 216
n.3.
Unlike the dismissal in Hailemariam, the dismissal here appears to have
prejudiced Mr. Demuth, who was unrepresented. The HCC in Hailemariam
expressly advised the tenant about filing a case to get to the Civil II Calendar and
the tenant had done so successfully without any additional prejudicial factors, such
as additional cost, beyond potential delay. This made the dismissal “functionally 16
equivalent” to a certification to the Civil II Calendar, which we agreed would
provide “more flexibility and the opportunity [for the tenant] to expand her lawsuit.”
Id. at 216-17.
By contrast, here, the HCC erroneously suggested that Mr. Demuth’s claims
could be addressed in Petra’s yet-to-be-filed L&T case. In attempting to give
Mr. Demuth access to an evidentiary hearing, the HCC stated that since “it appears
that there is, right now, going to be a different lawsuit filed that will address the
current condition of your unit . . . [the L&T Branch] is better prepared to offer you
the type of hearing that I think you want to have.” But the L&T Branch only permits
landlords to initiate claims; dismissal thus required Mr. Demuth to await his
landlord’s filing before proceeding in that branch. See District of Columbia
Courts, Civil Division Landlord and Tenant Branch Case Management Plan 4 (Feb.
2021), https://www.dccourts.gov/sites/default/files/matters-docs/Case-
Management-Plan-Landlord-and-Tenant-Branch.pdf; https://perma.cc/P6KS-
TQYZ (explaining that “most cases in the L&T Branch are brought by landlords
seeking to evict tenants for nonpayment of rent or for some other violation of the
lease” and that while “[t]enants may not file complaints in the L&T Branch,” “a
tenant who is sued for nonpayment of rent in the L&T Branch can file a
counterclaim”). In an L&T Branch case, Mr. Demuth could not contest housing
code violations—the purpose of his complaint—but only make counterclaims 17
regarding those violations as his defense against eviction. See Super. Ct. L&T
R. 5(b)(1). We also take Mr. Demuth’s point that, under the terms of the HCC Case
Management Plan, an HCC case should “ordinarily proceed” if a landlord files a
subsequent complaint in the L&T Branch. Case Management Plan for the Housing
Conditions Civil Calendar, supra, § IX.
The HCC did refer to the Civil II Calendar or an evidentiary hearing as options
that would allow Mr. Demuth to have the kind of hearing he was seeking, before
Petra raised the L&T case, which it then solely focused on. Mr. Demuth did not
ultimately receive instruction beyond that he could seek testimony or an evidentiary
hearing in the L&T Branch. Mr. Demuth, nonetheless, proactively sought to file
another civil case, potentially mitigating some of the prejudice he faced. However,
without any further instruction, he filed a housing code complaint form with the D.C.
Superior Court Civil Actions Branch—resulting in his case being routed right back
to the HCC. Even if Mr. Demuth filed a general complaint form, it is highly likely
he would have been routed to the HCC again.
While it can be fairly said that the HCC raised the possibility of filing a case
on the Civil II Calendar, such a statement to an unrepresented litigant, absent
instructions like those in Hailemariam, provides little help in getting there compared
to transfer. When a civil action is filed with the Civil Actions Branch, a party does 18
not select their calendar of choice; the Civil Actions Branch evaluates the complaint
and determines on which calendar a given complaint should be. In turn, an
unrepresented litigant could end up in a purgatorial cycle of frustrated effort for the
sin of lacking the legal know-how to file a complaint with claims that would route
them to the Civil II Calendar.
Such a cycle of delay in access to an appropriate hearing—or frustration from
an inability to access such a hearing—can be prejudicial to an unrepresented litigant.
Housing code violations have some urgency to them, which compounds the concern.
That is why we recognize that a decision not to transfer a case from the HCC to the
Civil II Calendar may deprive a tenant of “the advantages of an accelerated
determination” of claims of Housing Code violations. Hailemariam, 291 A.3d at
217. In this case, Mr. Demuth was ultimately unable to get his claims before an
appropriate calendar and, as a result, unlike the plaintiff in Hailemariam, did not get
the benefit of “amend[ing] and enlarg[ing] h[is] complaint to seek damages and other
relief that [he] could not seek in a case on the Housing Conditions Calendar.” Id. at
217 n.4.
In short, unlike dismissal in Hailemariam, the dismissal of Mr. Demuth’s case
was not the functional equivalent of a transfer to the Civil II Calendar. The HCC
did not advise Mr. Demuth about filing for the relief he sought, incorrectly advised 19
him that he would get the relief he sought in the L&T Branch, and when Mr. Demuth
then filed another civil action, he was routed back to the Housing Conditions Court.
Because the trial court’s order of dismissal rather than transfer was prejudicial to
Mr. Demuth, we vacate that order and remand for the case to be transferred to a Civil
II Calendar.
IV. Conclusion
For the foregoing reasons, we vacate the judgment of the HCC.
So ordered.