Caesar v. Westchester Corporation

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 21-CV-0357

CAMILLE M. CAESAR, APPELLANT,

V.

WESTCHESTER CORPORATION, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CAB6766-16)

(Hons. Brian Holeman, Anthony C. Epstein, and Heidi M. Pasichow, Trial Judges)

Argued June 9, 2022 Decided August 18, 2022

Camille M. Caesar, pro se, for appellant.

Thomas C. Mugavero and Laura Hessler for appellee.

Before EASTERLY, DEAHL, and ALIKHAN, Associate Judges.

ALIKHAN, Associate Judge: Appellee, the Westchester Corporation, owns and

manages a cooperative apartment complex in Northwest D.C. 1 Appellant Camille

M. Caesar lives at the Westchester and, in 2014, complained about what she

1
Throughout this opinion, we refer to the corporation, its agents, and the
building it owns and manages as “the Westchester.”
 2

considered to be excessive secondhand smoke entering her apartment. Although the

Westchester is not a smoke-free building, it attempted to resolve the issue by

conducting maintenance in Ms. Caesar’s unit, and it allowed her to stay in one of the

building’s guest rooms while it did so. The Westchester typically requires residents

to pay a nightly fee for use of the guest rooms and limits an individual’s stay in these

rooms to seven days absent an extension, but Ms. Caesar was initially permitted to

stay for free while upgrades to her unit were in progress. The Westchester’s smoke-

proofing efforts did not satisfy Ms. Caesar, and when the Westchester asked her to

return to her own apartment, she refused. After considerable back and forth, the

Westchester informed Ms. Caesar in early 2016 that if she did not vacate the guest

room, it would begin charging her the standard nightly fee. Ms. Caesar remained in

the room and declined to pay.

The Westchester then brought a breach-of-contract action against Ms. Caesar,

alleging that her failure to surrender the guest room and/or pay the nightly fee

violated her cooperative agreement. Ms. Caesar counterclaimed, seeking $38

million in damages, alleging breach of the Westchester’s fiduciary duties to her,

housing discrimination, breach of the covenant of quiet enjoyment, and breach of

the implied warranty of habitability. The trial court granted summary judgment to

the Westchester on all claims. After a bench trial on the remedy, the court awarded

the Westchester $235,860 in damages, $218,741.28 in attorney’s fees and costs, and
 3

a permanent injunction requiring Ms. Caesar to leave the guest room. Ms. Caesar

now appeals both the grant of summary judgment and the remedy imposed.

While we cannot endorse every aspect of the trial court’s analysis, we

ultimately agree that summary judgment was properly granted to the Westchester on

both its contract claim and Ms. Caesar’s counterclaims. We also affirm the award

of a permanent injunction and fees and costs. But we disagree with the trial court’s

damages calculation. Instead of remanding, however, we exercise our discretion to

correct the trial court’s error and direct it to downwardly adjust the Westchester’s

damages to $227,810 from the $235,860 originally awarded.

I. Facts

The Westchester is a Delaware corporation that owns and manages an

apartment complex in the District of Columbia. It is structured as a cooperative,

which means that “owners” of apartments in the complex do not actually own their

units outright; instead, they own shares in the corporation and have contracts for the

perpetual use of their individual apartments. One consequence of this structure is

that, like members of any corporation, the Westchester’s shareholders are owed

fiduciary duties by the Westchester’s board and officers. See Willens v. 2720 Wisc.

Ave. Coop. Ass’n, 844 A.2d 1126, 1136 (D.C. 2004).
 4

In addition to its member-owned units, the Westchester maintains 10 guest

rooms that it makes available to members and their guests. Its rules and regulations

limit an individual’s continuous occupancy of a guest room to “a maximum of seven

days with extension possible subject to the availability of rooms.” While the rules

and regulations do not specify the cost of renting a guest room, they make clear that

there is a cost, stating that guest-room “[r]ates are nominal,” and “[p]ayment for the

room . . . [is] billed to the Member making the reservation.” The Westchester’s

management sets these rates, and it is undisputed that in 2016 the daily rate was

$110, increasing to $125 per day in 2017, where it remains today.

The Westchester does not always enforce its guest-room rules. In the past, it

has informally allowed members to stay in guest rooms temporarily and free of

charge when the member’s unit was undergoing significant maintenance. But there

is no record of any member besides Ms. Caesar remaining in a guest room for more

than 30 days under such an arrangement.

Ms. Caesar moved into the Westchester in 1995. Like other members, she

entered into a “Co-operative Apartment Perpetual Use And Equity Contract” with

the Westchester. Among other things, this contract requires her to abide by the

Westchester’s rules and regulations.
 5

Since 2005, Seymour Strongin has been Ms. Caesar’s next-door neighbor. He

smokes a pipe, or at least he did for a time. Although the Westchester permits

members to smoke in their units, Ms. Caesar has long objected to Mr. Strongin’s

pipe smoking, alleging that it causes significant secondhand smoke to enter her

apartment. Ms. Caesar has hypertension, a condition that she believes is aggravated

by exposure to smoke. Ms. Caesar’s dissatisfaction came to a head in February 2014,

when she presented the Westchester with a doctor’s note explaining that she could

not be exposed to tobacco smoke, especially pipe smoke, for any reason. The note

did not, however, say that Ms. Caesar was in fact being exposed to smoke in her

apartment or that her hypertension had been caused or aggravated by secondhand

smoke. Nevertheless, in response to this note, the Westchester offered Ms. Caesar

the use of a guest room and attempted to make her apartment more smoke-resistant,

although the extent and effectiveness of the measures it took remain disputed. After

the Westchester completed remediation efforts that it considered adequate, it asked

Ms. Caesar to return to her unit.

Unsatisfied with the Westchester’s efforts, Ms. Caesar refused to vacate the

guest room. While the record does not indicate what happened over the next year,

on February 3, 2016, the Westchester wrote Ms. Caesar and asked that she leave the

guest room or else it would begin charging her the standard nightly fee of $110,

beginning on February 11. Ms. Caesar did not oblige. In her view, the smoke
 6

situation remained untenable, and none of the additional measures the Westchester

had taken had adequately addressed the problem. To this day, the parties disagree

about whether smoke continues to enter Ms. Caesar’s apartment and even about

whether Mr. Strongin still smokes.

The Westchester began to bill Ms. Caesar on February 10, but she would not

pay. 2 On April 19, the Westchester sent Ms. Caesar another letter, this time

indicating that it would begin billing her if she did not vacate the guest room by

April 30, notwithstanding the fact that it had already been billing her for more than

two months. Thereafter, Ms. Caesar submitted a complaint to the District of

Columbia Office of Human Rights (“OHR”), which administratively dismissed her

complaint pursuant to 4 D.C.M.R. § 708.1(c) for failure to state a claim. She sought

reconsideration, but OHR denied her request.

The impasse persisted, and in September 2016, the Westchester brought this

action, alleging that Ms. Caesar had breached the terms of her cooperative agreement

by refusing to leave the guest room and to pay the nightly fee. In response, Ms.

Caesar asserted a number of affirmative defenses and counterclaims, alleging that

the Westchester had breached the fiduciary duties it owed to her, unlawfully

2
The Westchester has never explained why it began billing Ms. Caesar on
February 10, after it had informed her repeatedly that it would begin billing her on
February 11.
 7

discriminated against her, breached the covenant of quiet enjoyment, and breached

the implied warranty of habitability.

The Westchester filed a motion for summary judgment on all claims, which

the trial court (Holeman, J.) granted in full. The court perceived no dispute of

material fact about whether Ms. Caesar had breached her contract with the

Westchester and found her defenses without merit. As for Ms. Caesar’s

counterclaims, the court concluded that expert medical testimony was necessary for

Ms. Caesar to establish that Mr. Strongin’s smoking and/or any action by the

Westchester had caused or exacerbated her hypertension, but she had provided none.

The Westchester, by contrast, had submitted an expert report by a toxicologist who

had evaluated Ms. Caesar’s medical records as well as scientific literature and

offered the opinion that Ms. Caesar’s hypertension was not the result of exposure to

secondhand smoke emanating from an adjacent apartment. For this reason, and also

because Ms. Caesar had not provided evidence to counter the Westchester’s

additional expert report opining that it had not violated any fiduciary duties owed to

her, the court granted summary judgment on Ms. Caesar’s fiduciary duty claim. It

reached the same result with respect to her covenant of quiet enjoyment claim,

although it offered little additional explanation. The court did not mention, and thus

never addressed, Ms. Caesar’s claim for breach of the implied warranty of

habitability.
 8

The court further held that the election-of-remedies doctrine jurisdictionally

barred Ms. Caesar’s counterclaim for housing discrimination. Because Ms. Caesar

had brought the claim administratively and it “d[id] not appear that [her]

complaint . . . was dismissed on grounds of administrative convenience or that Ms.

Caesar withdrew the complaint with DCOHR,” the trial court concluded that she

could not now bring the claim in a judicial forum.

Despite granting summary judgment to the Westchester, the trial judge closed

the case without fashioning a remedy. Ms. Caesar then (unsuccessfully) sought

vacatur of summary judgment, and the Westchester sought to reopen the case for a

determination of remedy. After the case made a brief and uneventful visit to this

court, the trial court (Epstein, J.) reopened it to determine the appropriate remedy.

Before a new judge (Pasichow, J.), the trial court sua sponte reconsidered the grant

of summary judgment, focusing specifically on whether Ms. Caesar had been made

aware of the Westchester’s rules and regulations governing use of the guest rooms

and the nightly fees. Satisfied after further briefing and evidentiary submissions that

she had been, the court declined to disturb summary judgment. After a bench trial,

the court awarded the Westchester damages of $235,860. It also awarded the

Westchester $218,741.28 in attorneys’ fees and costs, as well as a permanent

injunction requiring Ms. Caesar to vacate the guest room. This appeal followed.
 9

II. Standard of Review

We review grants of summary judgment de novo and apply the same standard

as the trial court: a party is entitled to summary judgment “only upon demonstrating

that ‘no genuine issue of material fact remains for trial’ and that judgment is

warranted ‘as a matter of law.’” MobilizeGreen, Inc. v. Cmty. Found. for the Cap.

Region, 267 A.3d 1019, 1024 (D.C. 2022) (quoting Phenix-Georgetown, Inc. v.

Charles H. Tompkins Co., 477 A.2d 215, 221 (D.C. 1984)). Accordingly, we will

reverse a grant of summary judgment if, but only if, “the record would permit a

reasonable fact-finder to properly render a verdict in the non-moving party’s favor.”

Id. In assessing whether or not this is the case, we “examine all evidence in the light

most favorable to the non-moving party.” Id. (internal quotation marks omitted).

III. Analysis

A. The Westchester’s Breach-of-Contract Claim

We agree with the trial court that there is no genuine dispute of material fact

about whether Ms. Caesar breached her contract with the Westchester. A successful

breach-of-contract claim requires: “(1) a valid contract between the parties; (2) an

obligation or duty arising out of the contract; (3) a breach of that duty; and (4)

damages caused by breach.” Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187

(D.C. 2009). These elements are satisfied here. We have no doubt that the parties’

“Co-operative Apartment Perpetual Use And Equity Contract” was a valid contract
 10

that imposed on Ms. Caesar a duty to follow the Westchester’s rules and regulations.

These rules and regulations limit guest room occupancy to “a maximum of seven

days with extension possible subject to the availability of rooms.” They also make

perfectly clear that members are required to pay for their use of a guest room.

Neither the contract nor the rules and regulations it incorporates sets the rate to be

charged, but no one contests that it is for the Westchester to set these rates and that

it did so. Ms. Caesar occupied the guest room for approximately seven years, at

least five of them after the Westchester first asked her to vacate it. She refused to

pay for any of this time. She therefore breached the contract and caused the

Westchester a financial injury in so doing.

Neither of the affirmative defenses Ms. Caesar presses on appeal relieves her

of liability. First, she contends that the Westchester waived its right to enforce its

guest-room rules against her. Waiver is the “voluntary relinquishment of a known

right.” Restatement (Second) of Contracts § 84 cmt. b (Am. L. Inst. 1981). In the

breach-of-contract context, waiver can prevent a party from enforcing a contract

term if that party previously has indicated its intent to abandon its right to do so,

either expressly or through its course of conduct. See SJ Enters., LLC v. Quander,

207 A.3d 1179, 1184 (D.C. 2019). But waiver is not an all-or-nothing, for-all-time

proposition. A party that has waived a contract term “may retract the waiver by

notifying the other party that strict compliance with the term waived will be required
 11

unless the retraction would be unjust in light of a material change of position

undertaken in reliance on the waiver.” 13 Williston on Contracts § 39:20 (4th ed.

2013).

So far as we can see, Ms. Caesar thinks that the Westchester waived its right

to enforce its rules and regulations pertaining to the guest room in either of two ways:

(1) allowing other members to stay in guest rooms gratis while their units underwent

maintenance; or (2) allowing her to remain in the room without charge for two years,

from February 2014 to February 2016. The problem with the first theory is that the

longest the Westchester had previously allowed a member whose apartment was

undergoing repairs to stay in a guest room was one month. That limited forbearance

did not evince any intention on the Westchester’s part to abandon its right to enforce

its rules against any member indefinitely. It therefore did not effect a waiver of the

Westchester’s right to bill Ms. Caesar or to ask her to vacate the guest room under

the circumstances of this case. As for the second theory, even if we assume for the

sake of argument that the Westchester had initially waived its right to strictly enforce

its guest-room rules against Ms. Caesar by allowing her to remain in the room

without charge until February 2016, it thereafter made clear that it was retracting

any such waiver by sending repeated requests that she vacate the guest room or begin

paying for it. We also perceive no material change in position on Ms. Caesar’s part

in the interim that made such retraction unjust.
 12

Ms. Caesar’s argument that she is entitled under fair housing law to use the

guest room as a reasonable accommodation because of her respiratory disability

fares no better. Under the District of Columbia Human Rights Act (“DCHRA”), it

is “unlawful discrimination” against a person with a “disability” for a landlord to

“refus[e] to make reasonable accommodations in rules, policies, practices, or

services, when these accommodations may be necessary to afford” such person

“equal opportunity to use and enjoy a dwelling.” D.C. Code § 2-1402.21(d)(3)(B).

The Federal Fair Housing Act contains materially identical language. 42 U.S.C.

§ 3604(f)(3)(B). A claim for the denial of a reasonable accommodation can provide

a defense to a landlord’s action for possession, see Rutland Ct. Owners, Inc. v.

Taylor, 997 A.2d 706, 710-11 (D.C. 2010), and, we will assume for present

purposes, to the Westchester’s breach-of-contract claim. To make out a prima facie

case of reasonable-accommodation discrimination, a claimant must show: “(1) a

disability, (2) that the landlord knew or should have known of the disability, (3) that

an accommodation is necessary for the use and enjoyment of the apartment, (4) that

the accommodation is reasonable, and (5) that the landlord refused the

accommodation.” Id. at 711.

Without otherwise passing on the merits of Ms. Caesar’s reasonable-

accommodation defense, we hold that it at least fails at prong three—the requirement

that use of the guest room be “necessary to afford” Ms. Caesar “equal opportunity
 13

to use and enjoy” her dwelling. D.C. Code § 2-1402.21(d)(3)(B); 42 U.S.C.

§ 3604(f)(3)(B). This necessity prong is a causation requirement; it requires a

claimant to demonstrate that “but for the accommodation, they likely will be denied

an equal opportunity to enjoy the housing of their choice.” Douglas v. Kriegsfeld

Corp., 884 A.2d 1109, 1129 (D.C. 2005) (en banc) (quoting Giebeler v. M & B

Assocs., 343 F.3d 1143, 1155 (9th Cir. 2003)). And in “medically complicated

cases” like this one, “proof of causation normally requires medical opinion

testimony” of some kind. Lasley v. Georgetown Univ., 688 A.2d 1381, 1384 (D.C.

1997); see Am. Univ. v. D.C. Comm’n on Hum. Rts., 598 A.2d 416, 423 (D.C. 1991).

This admonition is by no means universal, Douglas, 884 A.2d at 1131 n.50, but it is

particularly apt where the causation question concerns the extent to which some

allegedly harmful conduct impacted an injury or disability also brought about or

exacerbated by some other cause, given the difficulties of parsing out multiple

causation and incremental damage, see Baltimore v. B.F. Goodrich Co., 545 A.2d

1228, 1231 (D.C. 1998); Williams v. Patterson, 681 A.2d 1147, 1150 (D.C. 1996);

Gray Line, Inc. v. Keaton, 428 A.2d 360, 362 (D.C. 1981).

Ms. Caesar’s reasonable-accommodation defense cannot survive summary

judgment because it presents complex issues of medical causation that she failed to

support with medical evidence. Hypertension has many possible causes and

aggravators, and Ms. Caesar was required to provide something more than her own
 14

assertions to validate her claims that Mr. Strongin’s smoking exacerbates her

condition and that staying in the guest room alleviates it. She did not. The

Westchester, by contrast, submitted expert testimony that tended to support its

position that there was no causal relationship between Mr. Strongin’s smoking and

Ms. Caesar’s health. In the absence of any comparable evidence in the record going

the other way, summary judgment was appropriate.

B. Ms. Caesar’s Counterclaims

1. Breach of fiduciary duty

We affirm the trial court’s grant of summary judgment on Ms. Caesar’s

counterclaim for breach of fiduciary duty for similar reasons as we rule for the

Westchester on the contract claim. A plaintiff alleging a breach of fiduciary duty

must show: (1) the existence of a fiduciary relationship with the defendant; (2)

breach of a duty imposed by that fiduciary relationship; and (3) an injury caused by

such breach. See Restatement (Second) of Torts § 874 (Am. L. Inst. 2022). Ms.

Caesar contends that the Westchester breached the duties it owes to her by

“knowingly, flagrantly, maliciously, and notoriously permitt[ing] a pipe smoker,

who continues to smoke, to move into the apartment next to [hers],” despite being

“fully aware” of her maladies.
 15

The difficulty for Ms. Caesar is once again causation. Whether the

Westchester caused her any injury through any breach of its fiduciary duties depends

on an antecedent determination that Mr. Strongin’s secondhand smoke injured her.

For the reasons already given, medical opinion testimony was necessary to prove

that latter proposition, but Ms. Caesar presented none. Because there is no genuine

dispute of material fact about whether Mr. Strongin’s smoking injured Ms. Caesar,

there is necessarily no genuine dispute concerning the Westchester’s conduct.

2. Housing discrimination

Ms. Caesar also asserts that the Westchester denied her the right to live on an

equal basis with the other shareholder-residents “due to her race and disability” and

that as a result she “has incurred additional damages as a result of harassment and

further breaches of fiduciary duty owed by Plaintiff to Defendant as a shareholder

and landlord.” It is not entirely apparent whether this statement is meant as a

standalone housing discrimination claim or another claim for breach of fiduciary

duty. The trial court treated it as the former and held that the election-of-remedies

doctrine jurisdictionally barred the claim because Ms. Caesar had already

administratively pursued a claim for this same conduct before OHR.

The trial court’s determination was in error. It is true that the DCHRA

“requires complainants to choose between an administrative or a judicial forum in
 16

which to pursue their claims.” Carter v. District of Columbia, 980 A.2d 1217, 1223

(D.C. 2009). Resort to an administrative forum therefore precludes resort to a

judicial one for the same discriminatory practice claim, and vice versa. D.C. Code

§ 2-1403.16(a). But the statute also makes clear that where OHR “has dismissed [a]

complaint on the grounds of administrative convenience,” a complainant “maintains

all rights to bring suit as if no complaint had been filed.” Id.

That is what happened here. OHR “administratively dismissed” Ms. Caesar’s

complaint for failure to state a claim pursuant to 4 D.C.M.R. § 708.1(c). While we

recognize that the phrase “failure to state a claim” is typically associated with a

merits determination, OHR’s denial of Ms. Caesar’s request to reopen her case made

clear that in this instance OHR had “administratively dismissed the matter without

making a determination on the merits,” and therefore Ms. Caesar could “file a private

cause of action in D.C. Superior Court.” OHR’s characterization of its dismissal is

consistent with § 708.1’s description of dismissals under its subsections as

dismissals for “administrative reasons.” Our precedent has also recognized that

dismissals under Section 708.1 can be for administrative convenience. See Timus v.

D.C. Dep’t of Hum. Rts., 633 A.2d 751, 760 n.12 (D.C. 1993); id. at 773-74 & n.7

(Rogers, C.J., concurring in part and dissenting in part); id. at 780 (Appendix to

opinion of Rogers, C.J., concurring in part and dissenting in part). In short, OHR’s

disposal of Ms. Caesar’s claim left her right to file a lawsuit unimpaired.
 17

Despite the trial court’s mistake, we hold that summary judgment is

nevertheless appropriate on this counterclaim on the alternate ground that it fails on

the merits. See Nat’l Ass’n of Postmasters of U.S. v. Hyatt Regency Wash., 894 A.2d

471, 474 (D.C. 2006) (“Where there will be no procedural unfairness, ‘we may

affirm a judgment on any valid ground, even if that ground was not relied upon by

the trial judge or raised or considered in the trial court.’” (quoting In re O.L., 584

A.2d 1230, 1232 (D.C. 1990))). We discern no procedural unfairness with affirming

on this alternate ground, because Ms. Caesar obviously had every incentive to

demonstrate in the trial court that she had a viable housing-discrimination claim, and

when the Westchester briefed the merits of the claim on appeal, Ms. Caesar elected

not to respond in her reply brief.

No matter what permutation of this counterclaim we assume, nothing in the

record creates a question for a jury. If we treat the claim as one for a reasonable

accommodation, it cannot survive summary judgment for the same reason that Ms.

Caesar’s reasonable-accommodation affirmative defense cannot: the lack of medical

evidence on the issue of causation. If we treat the claim as a claim of disparate-

treatment discrimination under the DCHRA, summary judgment is likewise merited

because nothing in the record indicates that the Westchester treated Ms. Caesar

unequally relative to any other member of the cooperative. See, e.g., D.C. Code

§ 2-1402.21(a)(1) (prohibiting the “require[ment] [of] different terms” for a
 18

transaction in real property based on a person’s race or disability); id.

§ 2-1402.21(a)(4) (prohibiting the “refus[al] or restrict[ion] [of] facilities, services,

repairs or improvements for a tenant or lessee” on the basis of a person’s race or

disability); id. § 2-1402.21(d)(2) (making it unlawful “to discriminate against any

person in the terms, conditions, or privileges of sale or rental of a dwelling or in the

provision of services or facilities in connection with the dwelling” because of such

person’s disability). At the time of the initial grant of summary judgment, Ms.

Caesar had provided no evidence that the Westchester had treated her unequally.

Her brief in opposition to summary judgment seemed to suggest that the Westchester

had treated her unequally by suing her for breach of contract. That contention is

unavailing, not least because, as we affirm today, the Westchester’s claim was

meritorious. But even if we consider the additional evidence that Ms. Caesar

submitted in response to the trial court’s reconsideration of summary judgment—

notwithstanding the fact that this evidence was largely unresponsive to the question

the trial court was reconsidering—the result is the same. Perhaps the strongest piece

of evidence in Ms. Caesar’s favor is her deposition testimony that she has been asked

to make less noise in her apartment, while the Westchester still allows Mr. Strongin

to smoke. But these two behaviors are not sufficiently analogous to create an issue

about inequitable treatment, and Ms. Caesar provided few other specific facts on the
 19

noise issue, what was asked of her, and how the Westchester handled the situation. 3

Finally, the lack of a factual dispute regarding inequitable treatment would also

justify summary judgment if we treated Ms. Caesar’s claim as one for breach of the

fiduciary duty of loyalty. See Willens, 844 A.2d at 1136.

3. Covenant of quiet enjoyment

We also affirm the trial court’s grant of summary judgment to the Westchester

on Ms. Caesar’s counterclaim for breach of the covenant of quiet enjoyment. While

the trial court’s analysis of this issue was cursory, we again exercise our discretion

to affirm based on our independent review of the record.

A common-law obligation owed by landlords to tenants, the covenant of quiet

enjoyment protects a tenant’s possession of her property. See Hyde v. Brandler, 118

A.2d 398, 399-400 (D.C. 1955). Because the covenant “goes only to the possession”

of property, id. at 400, a violation of it requires either an actual interference with a

tenant’s right to possess her property or a constructive eviction, see Sobelsohn v. Am.

Rental Mgmt. Co., 926 A.2d 713, 716 (D.C. 2007). A constructive eviction in turn

entails “some wrongful act or omission by the landlord” that renders a property

“uninhabitable . . . for [its] intended purposes.” Bown v. Hamilton, 601 A.2d 1074,

3
What is more, the Westchester has rules concerning noise but does not
prohibit an individual from smoking in his or her own unit.
 20

1077 n.9 (D.C. 1992) (quoting Roger A. Cunningham et al., The Law of Property

296 (1984)). Essentially, although “[t]he tenant is not physically evicted . . . he

might as well be.” Id. In this context, “[a] landlord is not liable to his tenants for

interference by third persons with the tenant’s possession, absent any wrongful acts

or omissions by the landlord.” Int’l Comm’n on Eng. in the Liturgy v. Schwartz, 573

A.2d 1303, 1305 (D.C. 1990) (quoting Rittenberg v. Donohue Constr. Co., 426 A.2d

338, 342 (D.C. 1981)).

Because the Westchester did not directly interfere with Ms. Caesar’s actual

possession of her apartment—indeed, it initiated this lawsuit to return her to it—Ms.

Caesar must demonstrate that there is a genuine dispute of material fact regarding

whether she was constructively evicted. She has not done so. Her core complaint is

really with Mr. Strongin, whose smoking she claims renders her apartment

uninhabitable, rather than with the Westchester. And the Westchester is not liable

under a constructive eviction theory for Mr. Strongin’s actions, absent some

independent wrongful action or omission on its part. Id. But Ms. Caesar has not

provided evidence sufficient to survive summary judgment on the issue of whether

the Westchester itself committed any wrongful act or wrongfully failed to act. As a

building that allows tenants to smoke in their individual units, the Westchester was

not obligated to stop Mr. Strongin from smoking in his apartment or to guarantee

Ms. Caesar a completely smoke-free living situation. Assuming that the Westchester
 21

nevertheless was required to manage the level of secondhand smoke entering the

apartments of non-smoking residents like Ms. Caesar, we cannot conclude on this

record that its efforts to do so were so deficient as to be wrongful. It is undisputed

that it took measures to make Ms. Caesar’s unit less permeable to smoke and that it

allowed Ms. Caesar to live for free in a guest room for nearly two years. Ms.

Caesar’s submission appears to be that, even so, the amount of smoke entering her

apartment obligated the Westchester to do more. To determine whether this was

true, the Westchester offered to spend several thousand dollars to have Ms. Caesar’s

apartment tested for the presence of smoke and engaged in an extensive

correspondence with her about scheduling such a test. Ultimately, however, Ms.

Caesar refused to allow testing to proceed, apparently because she did not consider

the testing methods to be employed reliable. She did not and has not suggested any

alternative testing approach or methodology.

We cannot identify anything the Westchester did wrong during this series of

events. It took all measures that could reasonably have been expected of it under the

circumstances. And when it attempted to verify that these measures were adequate,

Ms. Caesar refused to allow it to do so. It was Ms. Caesar’s right to refuse to permit

her apartment to be tested for the ongoing presence of smoke. But, having exercised

that right, she cannot now claim, absent any evidence but her own assertions, that

the Westchester wrongfully failed to respond to her concerns.
 22

4. Implied warranty of habitability

The trial court failed entirely to consider Ms. Caesar’s counterclaim for breach

of the implied warranty of habitability. As part of our de novo review, we will

consider the claim in the first instance. Having done so, we hold that summary

judgment is appropriate.

The warranty of habitability is a term implied in every lease, and it requires a

landlord to “exercise reasonable care to maintain rental premises in compliance with

the housing code.” George Wash. Univ. v. Weintraub, 458 A.2d 43, 49 (D.C. 1983).

A violation of the housing code—or at a minimum some applicable law—is an

essential element of such a claim. Winchester Mgmt. Corp. v. Staten, 361 A.2d 187,

190-91 (D.C. 1976); see Sobelsohn, 926 A.2d at 715-17. Summary judgment is in

order here because Ms. Caesar has not pointed to a single provision of the District’s

Housing Code or any other statute or regulation that the Westchester violated. See

generally 14 D.C.M.R. § 400, et seq. While on appeal she cites testimony from the

remedies-only trial about an investigation into housing code violations related to her

apartment, this testimony does not help her. Most basically, evidence presented for

the first time at a trial about the remedy cannot be considered when reviewing a grant

of summary judgment on liability. See 10A Charles A. Wright et al., Federal

Practice and Procedure § 2716 (4th ed. 2022). Moreover, as far as we can tell, the
 23

investigation in question appears to be about water damage and not related to

secondhand smoke.

***

In sum, we affirm the trial court’s grant of summary judgment to the

Westchester in full.

IV. Remedy

Remaining is the issue of remedy. The trial court imposed the remedy here

after a bench trial, and we review its findings of fact for clear error, its legal

conclusions de novo, Bingham v. Goldberg. Marchesano. Kohlman. Inc., 637 A.2d

81, 89 (D.C. 1994), and its issuance of an injunction for abuse of discretion, Ifill v.

District of Columbia, 665 A.2d 185, 187 (D.C. 1995).

Ms. Caesar raises a number of objections to the trial court’s damages award,

none of which is availing. Her first argument is that the Westchester failed to

mitigate its damages and therefore that the damages she owes should be reduced by

the amount that could have been mitigated. The duty to mitigate damages “bars

recovery for losses suffered by a non-breaching party that could have been avoided

by reasonable effort and without risk of substantial loss or injury.” Bolton v.

Crowley, Hoge & Fein, P.C., 110 A.3d 575, 586 (D.C. 2015) (quoting Crough, Inc.
 24

v. Dep’t of Gen. Servs. of D.C., 572 A.2d 457, 466 (D.C. 1990)). The purpose of the

doctrine is “‘to put the injured party in as good a position as full performance of the

contract would have’ with ‘the least necessary cost to the defendant.’” Sizer v. Lopez

Velasquez, 270 A.3d 299, 302-03 (D.C. 2022) (quoting 11 Corbin on Contracts

§ 57.11 (2021)). The injured party is therefore “expected to take such affirmative

steps as are appropriate in the circumstances to avoid loss by making substitute

arrangements.” Id. at 303 (quoting Restatement (Second) of Contracts § 350 cmt. b

(Am. L. Inst. 1981)). But the breaching party bears the burden of proving that the

non-breaching party did not make reasonable efforts to mitigate damages. Norris v.

Green, 656 A.2d 282, 287 (D.C. 1995).

Ms. Caesar contends that the Westchester unreasonably failed to mitigate

damages because it did not do one or more of the following: (1) require Mr. Strongin

to change his smoking habits; (2) allow her to purchase the guest room outright; (3)

charge her only for the actual costs associated with her living in the guest room,

defined to include towel service and soap, and offset those costs against “services

and maintenance, including utilities, which [Ms. Caesar] did not receive but for

which she paid in full through her cooperative fees of more than $1320.00 per

month;” (4) help her move into a different unit in the building; (5) institute a no-

smoking policy at the Westchester; and (6) “work[] with its long-term auditors to

fashion a solution.” We disagree. Options (1), (5), and (6) have nothing to do with
 25

damages mitigation. Option (3), billing Ms. Caesar only for actual costs, not the

costs she contractually owed, would represent a settlement or compromise, not

mitigation of damages. Cf. Ford Motor Co. v. EEOC, 458 U.S. 219, 232 n.18 (1982)

(explaining, in the employment context, that a “claimant’s obligation to minimize

damages . . . does not require him to settle his claim against [his] employer”). Ms.

Caesar has also failed to prove that options (2) and (4)—selling her the guest room

or allowing to her to move to a different unit—were reasonable options that would

have provided the Westchester its expectation under the parties’ lease agreement.

We also reject Ms. Caesar’s arguments that the Westchester was required to

prove its actual damages—the incremental costs it incurred and revenues from other

potential tenants on which it lost out because of Ms. Caesar’s extended guest room

stay—and to net out of damages any costs it saved due to her breach and the co-op

fees she paid during the period of her breach. We see no reason why the Westchester

was not entitled to expectation damages—what it would have received had Ms.

Caesar honored her contractual obligations. See Restatement (Second) of Contracts

§ 344 cmt. a (Am. L. Inst. 2022). Its actual costs are therefore of no consequence.

As for damages offsets, because Ms. Caesar failed at trial to prove that the

Westchester saved any money because of her breach of contract, she cannot now

contend that the damages award must reflect any such savings. The lease agreement
 26

also indicates that guest room fees are distinct from co-op fees, so there is no reason

to deduct the co-op fees she paid from the damages she owes.

All of that said, the trial court’s damages calculation was not without fault.

The court awarded the Westchester damages of $235,860. 4 It claimed to reach this

result by multiplying the nightly rate for the guest room—$110 per day in 2016 and

$125 per day from January 1, 2017, onward—by the days Ms. Caesar resided there

after receiving notice that the Westchester intended to charge her, February 10, 2016,

until May 25, 2021. Even if this were the correct ranges of dates, the proper damages

figure would be $236,610, not $235,860. But it is not the correct range of dates.

Based on our review of the record, damages began to accrue on April 30, 2016, not

February 10, 2016. To be sure, the Westchester sent Ms. Caesar several letters

indicating that it would begin billing her on February 11, 2016. 5 But the parties’

correspondence continued after that date, and on April 19, 2016, the Westchester

told Ms. Caesar that she needed to vacate by April 30 or it would begin charging her.

Its letter said specifically: “If you do not wish to incur Guest Room charges, you are

4
The trial court awarded the Westchester $236,735 in its May 25, 2021, order
of judgment. Two days later, on May 27, 2021, the court issued a subsequent order
awarding the Westchester $235,860 in damages, superseding the original figure. We
note but do not address this discrepancy, as we decline to uphold either amount.
Again, it is not clear why the Westchester provided Ms. Caesar a February
5

11 move-out date but began charging her on February 10.
 27

to vacate Guest Room 637B and submit your key to it to The Westchester’s front

desk no later than April 30, 2016 at Noon.” The Westchester therefore indicated its

intent to strictly enforce its guest-room rules starting that evening, and damages are

only appropriate for the time she spent in the room after that. Based on that

understanding, we remand with instructions that the trial court reduce the damages

award to $227,810, representing $110 per day for each day from April 30, 2016

through December 31, 2016, and $125 per day for each day from January 1, 2017

through May 25, 2021. We leave the attorneys’ fees and costs awards unchanged.

Finally, we affirm the trial court’s issuance of a permanent injunction,

although we correct an analytical mistake it made in so doing. Ms. Caesar is correct

that the trial court committed an error by applying the legal test for the issuance of a

preliminary injunction when it should have applied the test for the issuance of a

permanent injunction. To receive a permanent injunction, a plaintiff must show:

(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4)
that the public interest would not be disserved by a
permanent injunction.

eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The test for the

issuance of a preliminary injunction is similar, but instead of analyzing whether the
 28

plaintiff has an adequate remedy at law, the court assesses whether the plaintiff is

likely to succeed on the merits of the case. Wieck v. Sterenbuch, 350 A.2d 384, 387

(D.C. 1976); see Ifill, 665 A.2d at 187-88. The likelihood-of-success-on-the-merits

inquiry is unnecessary where, as here, the plaintiff has already succeeded on the

merits and seeks permanent relief. Nevertheless, because we identify no abuse of

discretion on the part of the trial court in its analysis of the three prongs the tests

have in common, and because we conclude that the Westchester lacks an adequate

remedy at law, we see no need to remand the case for the trial court’s reconsideration

in the first instance.

On this latter point, Ms. Caesar proved herself quite committed to remaining

in the guest room and did not vacate it until the trial court issued its injunction,

despite her loss on summary judgment. Her breach of contract was persistent and

ongoing, and we are not confident that in the absence of an injunction she would not

take up residence in the guest room once again. Moreover, even if Ms. Caesar were

willing to pay the nightly rate in perpetuity—which we have no reason to believe is

the case—the situation would still be untenable. The Westchester has 10 guest

rooms it makes available to all residents, and it in general limits the stays of even

paying residents to seven days, presumably so that other residents have an adequate

opportunity to make use of the rooms. Ms. Caesar’s indefinite occupation of one of

these rooms, paid or not, is incompatible with this arrangement and would unfairly
 29

disadvantage the Westchester’s other residents and their guests. Damages are not

thus not an adequate remedy. See, e.g., Lucy Webb Haynes Nat’l Training Sch. for

Deaconesses & Missionaries v. Geoghegan, 281 F. Supp. 116, 117-18 (D.D.C.

1967) (holding that damages were inadequate and an injunction was warranted

where a patient refused to vacate her hospital room, although she was “able and

willing to pay whatever the hospital would charge,” because permitting her to remain

would “allow a diversion of [the hospital’s] facilities to purposes for which they are

not intended”); Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co. of Des

Moines, Inc., 510 N.W.2d 153, 158 (Iowa 1993) (affirming the issuance of a

permanent injunction where the defendants “made no assurances that they would

refrain from breaching [a] settlement agreement in the future”). Ms. Caesar’s actions

are not unlike a continuing trespass, a violation courts have often found it appropriate

to enjoin permanently. See, e.g., Geoghegan, 281 F. Supp. at 117-18 (collecting

cases); R.I. Turnpike & Bridge Auth. v. Cohen, 433 A.2d 179, 182 (R.I. 1981);

Wheelock v. Noonan, 15 N.E. 67, 68-70 (N.Y. 1888); Levisa Coal Co. v.

Consolidation Coal Co., 662 S.E.2d 44, 62 (Va. 2008); Water Works & Sewer Bd.

of the City of Birmingham v. Inland Lake Invs., LLC, 31 So.3d 686, 693 (Ala. 2009);

Evans v. Cote, 107 A.3d 911, 915 (Vt. 2014). We therefore affirm the issuance of

the injunction, this time under the correct standard.
 30

V. Conclusion

For the foregoing reasons, we affirm the trial court in all respects except the

damages calculation, on which we remand with instructions to correct the damages

amount to $227,810.

So ordered.