concurring:
I concur in the judgment that the complaint was properly dismissed because it does not state a claim for constructive eviction or restraint of trade. I write separately because my reason for concluding that dismissal of the restraint of trade claim was appropriate is different from that stated in the majority opinion. I believe that certain parts of the complaint, if read in isolation, could be said to state a claim for restraint of trade based on a landlord’s selective enforcement of an otherwise lawful contractual provision in a lease because it was done at the instance of horizontal competitors for the purpose of driving the appellant out of business. Although I agree with the majority that “evil motive” does not convert a lawful act into an actionable claim, that is not the point we must address in deciding whether the complaint states a claim. The issue of law is whether the alleged effort to drive a competitor out of business by selective enforcement of a clause at the instance of horizontal competitors is made unlawful by the D.C. Antitrust Act, D.C.Code §§ 28-4502, -4508 (1991 & 1995 Supp.). If it is, the fact that the contractual provision enforced by the landlord is, if viewed by itself, lawful, does not constitute a “safe harbor” in which one bent on violating the Antitrust Law can maneuver at will. As the majority notes, ante at 692 n. 11, an otherwise lawful act may be done in an unlawful manner or for an unlawful purpose.
Unfortunately, appellant has not provided much to help us answer the legal question whether the efforts of the landlord and the other tenants, when viewed in the light of the alleged anticompetitive motivation behind the selective enforcement of the contractual provision, are unlawful under the Antitrust Act. There is some Maryland authority that suggests they might be. See Natural Design, Inc. v. Rouse Co., 302 Md. 47, 485 A.2d 663 (1984). It appears that this court has not previously ruled on the issue; the lack of advocacy on the point leads me to conclude that this is not the case in which to do so.
I also concur in the result because, reading the complaint as a whole, I am left with the impression that, although couched in terms of a claim for restraint of trade, the appellant’s real complaint seems to be that the landlord did not abide by the understanding that the mutually exclusive contractual use provisions in the various food court leases would be strictly enforced so as to minimize competition among the food court vendors. That understanding, if pled and proven, could well sound in contract and survive a restraint of trade challenge in the context of a food court. As the trial court observed, however, it is anomalous at best to use the Antitrust Act to further such an arrangement.