Auger v. Tasea Investment Co.

PRYOR, Senior Judge:

Ulysses G. Auger appeals the trial court’s judgment in favor of appellee, Tasea Investment Company, for $69,243.38 in back rent under their lease agreement. Appellant claims that the trial court erred in concluding that appellee could unilaterally raise the rent without serving a valid notice to quit, and alternatively that the trial court abused its discretion in allowing appellee to recover more damages than it had reserved the right to seek in the Joint Pretrial Statement. We affirm.

I.

The property at issue in the agreement consisted of a parking lot area located behind 1255 22nd Street, N.W., Washington, D.C. (“parking lots”). The parking lots were owned by 1255 22nd Street Limited Partnership. Originally, there were two general partners in the partnership. However, the partnership was restructured in the summer of 1991, and pursuant to the partnership agreement, there was a single general partner and appellant became a limited partner. A section of the agreement allowed appellant to lease the parking lots. Originally, the parties orally agreed to a rent of $500 per month. Appellant never paid any of the rent due under this agreement.

In June of 1993, appellee wrote a letter to appellant informing him that the partnership needed the premises and requested him to leave since no payments had been made. When appellant did not vacate the lots, ap-pellee informed him in a letter dated October 8, 1993, that pursuant to the partnership agreement, there would be an increase in the rent to $168.94 per day. This amount was based on the income appellee anticipated from utilizing the parking lots as a commercial property.

Appellant filed this lawsuit in the Superior Court on November 5, 1993. He sought a declaratory judgment, as well as a temporary restraining order, preliminary injunction, and permanent injunction against any interference by appellee with appellant’s rights under the agreement. Appellee filed a counterclaim in which it requested that appellant be required to vacate the property and pay back rent in the amount of $1,500 per month from August 1, 1991 until October 8, 1993, when the rent increased to $168.94 per day.

Appellee’s motion for summary judgment was denied, and the parties submitted their Joint Pretrial Statement. Appellee reserved the right to claim $1,500 in monthly rent in the “Relief Sought” section.1 The ease was heard in a one-day bench trial on October 24, 1995. On October 25, 1995, the trial judge held that appellee had the right to terminate the lease, but that it had not served a valid notice to quit, and therefore its request for ejectment was denied. The court also held that appellee was entitled to back rent in the amount of $69,243.38, based on the monthly rent of $500 from August 1, 1991 through December 1, 1993, and the higher rate of $168.94 per day for the period December 1, *201993, through the effective date of judgment.2 Appellant filed a motion for reconsideration, or to alter or amend judgment, which was denied. Timely notice of appeal was filed.

II.

Appellant asserts that the trial court committed reversible error in concluding that appellee could properly raise the rent without serving appellant a valid notice to quit. In ruling on this issue, the trial court focused specifically on the pertinent section of the agreement:

Auger or his designee shall have the right to lease from the Partnership at a reasonable monthly rate ... (ii) the Wood-son/Callow lots for parking of vehicles until such time as the Partnership shall need the use of same. Auger shall provide to the Partnership evidence of appropriate insurance liability coverage.

The court found that appellant had used the property extensively without paying any compensation. The court concluded:

there is no limitation in the partnership agreement about the partners not being able to raise the rent, and after a reasonable period of time, and having in the partner’s judgment having found a valid commercial purpose for this lot, I see no reason why any agreement should stand between the partnership’s right to raise the rent to $168.94 a day, which is what they said they were going to do if Mr. Auger remained. I find that this is within the rights of the partnership to do it. This is a commercial lease between sophisticated businessmen.

Therefore, after allowing for reasonable notice, the court calculated that appellant’s rent increased to $168.94 per day as of December 1,1993.

We agree with the trial court that there was no limitation in the partnership agreement regarding an increase in rent. The partnership provision does not provide for a specific rent or even the requirement of consent to an increase, rather the pertinent provision requires that the rent be “reasonable.” The parties to the agreement were sophisticated businessmen on relatively equal footing. Thus, we are constrained to avoid rewriting contracts entered into by parties with relatively equal bargaining power. We dealt with a similar issue when deciding how to apportion liability when two insurance policies containing “other insurance” clauses insured the same risk. See Jones v. Medox, Inc., 430 A.2d 488 (D.C.1981), reprinted in David P. Van Knapp, J.D., Annotation, Resolution of Conflicts, in Now-Automobile Liability Insurance Policies, Between Excess or Pro-Rata “Other Insurance” Clauses, 12 A.L.R.4th 981 (1982). It was noted:

It has been observed that “(q)uesüons of contribution between coinsurers have caused much trouble to the courts, a large part of which has arisen through efforts to equalize equities outside the contract,” and that “(t)his trouble is lessened if the parties are left with their contracts as they themselves have made them.”

Id. at 494 (quoting Grollimund v. Germania Fire Ins. Co., 82 N.J.L. 618, 621, 83 A. 1108, 1109 (1912) (other citations omitted)). This court chose to “focus[] on the contractual provisions and the intent of the parties” as opposed to attempting to rewrite a more equitable agreement. Id. In the situation presented here there is an even greater reason to focus on the contractual provisions because there does not appear to be a need to “equalize equities.” Therefore we decline to rewrite the contract and inject other provisions into a broad but unambiguous agreement.3

Appellant argues that appellee was obliged to serve a notice to quit on appellant prior to raising the rent. While this case involves a variation of the .leasing of space, it is clear that the thrust of this dispute is the rental of parking space under the terms of a partnership agreement. Given that the primary purpose of a notice to quit is to terminate a *21tenancy, see D.C.Code § 45-1402 (1990 Repl.), we find no authority which requires a notice to quit to precede a rent increase as long as the increase is consistent with the “reasonable monthly rate” of the agreement. Stated another way, appellant could either contest whether the rate was reasonable or simply decline to rent the space at the increased rate. At bottom, that was the agreement reached by the parties. Accordingly, no notice to quit was required.

III.

Appellant also contends that the trial court abused its discretion by granting appellee back rent in an amount more than appellee requested in the Joint Pretrial Statement. In construing Super. Ct. Civ. R. 16, which governs pretrial orders, we have said:

While this rule is intended to remove cases from the “realm of surprise,” it does not contemplate or require that rigid adherence to the pretrial order must always be exacted.

Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C.1973) (citation omitted). The trial court has discretion whether to require a strict adherence to a pretrial order, and at times, we have upheld the trial court’s refusal to allow such changes when there would have been unfair prejudice and surprise to the opposing party. Taylor v. Washington Hosp. Ctr., 407 A.2d 585 (D.C.1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1857, 64 L.Ed.2d 275 (1980).

In this case, the trial court exercised its discretion by awarding damages in an amount more than appellee requested in the pretrial statement. Appellant cannot argue that he was surprised or unfairly prejudiced by this award because appellee specified the proper amount of back rent in its counterclaim. On balance, we find that the trial court did not abuse its discretion in granting $69,243.38 in back rent.

Affirmed.

. At the beginning of the trial appellee admitted that the original monthly rent was $500 as opposed to $1,500.

. The trial judge concluded that appellant was entitled to pay the original rent until December 1, 1993, since he was a month-to-month tenant entitled to notice of the rent increase.

. The record reveals an exhibit offered by appel-lee asserting the increased rent as reasonable; appellant presented no contrary evidence.