WEINSTEIN v. DISTRICT OF COLUMBIA HOUSING AUTHORITY

Filing 57

MEMORANDUM OPINION denying 40 the plaintiff's motion for summary judgment, 42 the defendant's cross-motion for summary judgment, and 43 the plaintiff's motion to strike. Signed by Judge Rudolph Contreras on 3/21/13. (TA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STANFORD B. WEINSTEIN,

:
:
Plaintiff and Counter-Defendant, :
:
v.
:
:
DISTRICT OF COLUMBIA
:
HOUSING AUTHORITY,
:
:
Defendant & Counter-Claimant. :

Civil Action No.:

10-1768 (RC)

Re Document No.:

40, 42, 43

MEMORANDUM OPINION
DENYING THE PLAINTIFF’S MOTION TO STRIKE; DENYING THE PARTIES’ CROSS-MOTIONS
FOR SUMMARY JUDGMENT
I. INTRODUCTION
The plaintiff is a landlord who entered into a contract to lease non-residential property to
the District of Columbia Housing Authority (“DCHA”). He alleges that the tenant has breached
the contract in various ways, owing the landlord for unpaid rent, late payment fees, penalties,
water and sewer charges, and taxes. The landlord also alleges that the tenant failed to maintain
the property and made alterations that damaged the property when the tenant vacated it, thereby
owing the landlord for the cost of restoring the property to its original condition. The tenant has
filed a counterclaim, alleging that the landlord miscalculated the amount owed and that the debt
was settled with an accord and satisfaction, or that in the alternative, the tenant overpaid late
fees, penalties, and taxes owed, entitling it to a credit. The tenant also contends that it does not
owe repair costs because the property was not in turnkey condition at the time the lease began,
that the tenant made alterations to bring the property up to code, and that it did not damage the
property. The parties have filed cross-motions for summary judgment, and the landlord has also
filed a motion to strike the tenant’s motion for summary judgment. Because the landlord has
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failed to demonstrate that it was prejudiced by the tenant’s late filing of its motion, and has not
shown that the tenant introduced new and contradictory evidence after a Rule 30(b)(6)
deposition, the landlord’s motion to strike is denied. Further, because there are genuine disputes
of material fact as to the landlord’s claims for an outstanding debt and for repairs, and as to the
tenant’s claim of an accord and satisfaction, the parties’ cross- motions for summary judgment
are denied.

II. FACTUAL & PROCEDURAL BACKGROUND
The landlord is the owner of a warehouse and adjacent parking lot (collectively “the
property”) in the District of Columbia. Pl.’s Stmt. of Mat. Facts ¶ 1. In October of 1997, the
landlord entered into a written agreement to lease this property to the tenant. Id. ¶ 2. From time
to time thereafter, the parties entered into written extensions and addendums to the lease. Id. ¶ 3.
The latest and final addendum to the lease was in August of 2008. Id.; Def.’s Stmt. of Mat.
Facts. ¶ 2. The lease required that all rental payments would be paid to the landlord, and that if
the tenant was delinquent “in the payment of any rental installment for more [than] seven (7)
calendar days past the due date,” that the [tenant] would pay both a late charge of 5% and
interest of 1.5 % per month or fraction thereof. Compl., Ex. 1 (“Lease”) ¶ 4. The lease also
stipulated that the tenant would pay “as additional rent” all real estate taxes payable on the
property for the duration of the lease. Id. ¶ 5. If the tenant did not timely pay such taxes, it was
required to pay both a late charge of 5% and interest of 1.5 % per month or fraction thereof. Id. ¶
5.
In addition, the lease allowed the tenant to install any furniture, fixtures, and equipment
necessary to the conduct of its business, but that if the property was damaged while installing or

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removing these items, the tenant was to pay to restore the property to its original condition or to
reimburse the landlord for the cost of removal. Id. ¶ 7(b). The tenant was also required to make
all repairs and replacements necessary to keep the property, including its fixtures and equipment,
in good repair and proper sanitary condition. Id. ¶ 9. The lease further stipulated that the tenant
would not make any alterations or structural changes, among other things, without the landlord’s
written approval. Id. ¶ 10.
As mentioned earlier, in August of 2008, the parties signed an addendum to the lease
(“addendum”). See Compl., Ex. 2, (“Lease Addendum”). The addendum stated that the lease
would end on May 31, 2010, and that it would be automatically renewed for two years, until May
31, 2012. Id. ¶ 2. But the lease could be terminated before May 31, 2012, if either party gave a
notice of termination six months in advance. Id. ¶ 23. In addition, the landlord was required to
take steps to obtain a reduction in the assessed value and taxes due on the property, where, after
taking into account any attorney’s fees and other costs incurred in obtaining the reduction, the
parties would share equally in the resulting benefit. Id. ¶ 24.
By letter dated December 1, 2009, the tenant sent the landlord a notice to terminate the
lease, stating that the lease would be terminated on May 31, 2010. Def.’s Stmt. of Mat. Facts ¶
3; Compl., Ex. 3 (“Def.’s Notice of Nonrenewal.” On December 4, 2009, the U.S. Postal Service
attempted to deliver the notice, was unsuccessful, and then made several subsequent attempts to
deliver it. Def.’s Opp’n to Pl.’s Mot. for Summ. J. at 9. The notice remained unclaimed at the
landlord’s local post office until it was returned to the tenant in January of 2010, id., marked
“Undeliverable as Addressed,” Pl.’s Response to Def.’s Stmt. of Mat. Facts ¶ 25. The tenant
asserts that the notice was mailed to the landlord’s address of record, where the tenant had also
mailed its monthly rent payments prior and subsequent to mailing the notice. Def.’s Stmt. of

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Mat. Facts ¶ 4; Def.’s Opp’n to Pl.’s Mot. for Summ. J. at 8; see also Pl.’s Response to Def.’s
Stmt. of Mat. Facts ¶ 4. Upon receiving the returned notice, the tenant sent it to the landlord via
Federal Express overnight delivery. Def.’s Opp’n to Pl.’s Mot. for Summ. J. at 9. On or about
January 20, 2010, the landlord accepted and acknowledged receipt of the notice. Id.
On April 30, 2010, the landlord sent a letter to the tenant, indicating that the landlord was
owed $77,762.97 for unpaid rent, real estate taxes, water and sewer charges, and accrued late
charges. Def.’s Stmt. of Mat. Facts ¶ 9. On May 21, 2010, the tenant mailed the landlord a letter
in response, stating that the tenant sought to settle all lawful charges owed pursuant to the lease
(“May 2010 letter”). Id. ¶ 10; Compl., Ex. 4 (“Def.’s May 2010 Letter”) at 1. The letter claimed
that the landlord’s April 2010 letter had miscalculated the amount owed, and outlined in detail
the discrepancies between the parties’ calculations. See generally Def.’s May 2010 Letter. The
tenant also proposed in the letter to pay $65,082.44 plus insurance costs, and thereby settle all
lawful amounts pursuant to the lease and resolve any outstanding concerns regarding the
termination of its tenancy. Id. at 4-5. On June 1, 2010, the tenant sent a check to the landlord in
that amount (“June 2010 check”). Def.’s Stmt. of Mat. Facts ¶¶ 14-15.
On June 10, the landlord met and spoke with DCHA employees. Pl.’s Response to Def.’s
Stmt. of Mat. Facts at 16; Def.’s Stmt. of Mat. Facts ¶ 15. At that meeting (“June 10 meeting”),
the tenant received a letter dated June 10, 2010 (“June 2010 letter”) stating that the landlord
disagreed with the tenant’s position in its May 2010 letter, and that the landlord did not accept
the tenant’s proposed payment as payment in full under the lease, but instead as a payment on
account to be applied against the balance due. Def.’s Stmt. of Mat. Facts ¶ 15; Def.’s Mot. for
Summ. J., Ex. 2, at 28. The letter further stated that even after depositing the tenant’s check, the
landlord was still due $39,056.34. Def.’s Mot. for Summ. J., Ex. 2, at 28. On June 11, 2010, the

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landlord deposited the check. Def.’s Stmt. of Mat. Facts ¶ 16. On June 21, 2010, the tenant
emailed the landlord, stating that the tenant’s General Counsel was currently reviewing the
information that the landlord had provided, that some of the tenant’s employees planned to meet
with the General Counsel regarding the landlord’s “settlement offer,” and that they would get
back to the landlord shortly thereafter. Pl.’s Mot. for Summ. J., Ex. 20 at 15. On June 30, 2010,
the tenant vacated the property. Pl.’s Stmt. of Mat. Facts ¶ 41.
The landlord then filed this action, claiming that the tenant breached the contract by
failing to pay in full late payment fees, penalties, water and sewer charges, taxes, and expenses
for restoring the property to its original condition after the tenant had damaged it. The tenant has
filed a counterclaim, alleging that other than the landlord’s claim for post-tenancy clean-up and
repair costs, it settled all debts with an accord and satisfaction, or that in the alternative, it is
owed a credit for overpayments (e.g., deposit and prepaid rent). The tenant also alleges that it
owes no post-tenancy clean-up or repair costs. The parties have filed cross-motions for summary
judgment, and the landlord has also filed a motion to strike the tenant’s motion for summary
judgment. The court now turns to the parties’ arguments and the applicable legal standards.

III. ANALYSIS
A. Legal Standard for a Rule 56 Motion for Summary Judgment
Summary judgment may be granted when "the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.
R. CIV. P. 56(a). A fact is "material" if it is capable of affecting the substantive outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if
sufficient evidence exists such that a reasonable factfinder could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007).
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The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party bears the initial
responsibility of identifying those portions of the record which demonstrate the absence of any
genuine issue of material fact. Id. at 323; FED. R. CIV. P. 56(c)(1)(A) (noting that the movant
may cite to "depositions, documents, electronically stored information, affidavits or declarations,
. . . admissions, interrogatory answers, or other materials"). In response, the non-moving party
must similarly designate specific facts in the record that reveal a genuine issue that is suitable for
trial. Celotex, 477 U.S. at 324. On a motion for summary judgment, the court must "eschew
making credibility determinations or weighing the evidence," Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most
favorable to the non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory
assertions offered without any evidentiary support do not establish a genuine issue for trial.
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
B. The Landlord’s Motion to Strike
1. The Tenant’s Filing of its Cross-Motion for Summary Judgment After the Deadline, and
Submission of an Altered Version When Asked to Re-File It
The landlord has filed a motion to strike, claiming that the Court should not evaluate the
tenant’s motion for summary judgment and three accompanying affidavits. The landlord first
contends that when filing its motion for summary judgment, the tenant requested several
extensions from the Court, and that when the tenant did ultimately file the motion, it did so after
midnight on the final deadline. Pl.’s Mot. to Strike, 3-4. In addition, the landlord argues that
after the tenant filed this overdue motion, the Clerk of the Court asked the tenant to refile the
submission, due to a technical error. Id. at 4-5. The landlord avers that the tenant then refiled
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the motion later that same day, but that that version was altered to include additional substantive
content and attachments, as compared to the initial version filed earlier that day. Id.
The tenant responds by saying that when it initially filed the motion, it believed that the
submission was filed two minutes before the midnight deadline, and that the tenant only learned
later that the motion was deemed filed four minutes after the deadline. Def.’s Opp’n to Mot. to
Strike at 4-5. The tenant surmises that this discrepancy may be due to technical problems that its
office’s internal network clock was experiencing at the time. Id. at 5. Because the four-minute
delay in filing was caused by the tenant’s unknowing mistake, the submission will not be
stricken. Further, if the delayed filing had indeed been intentional, the Court would not condone
it, but the motion would still not be stricken because the landlord has not demonstrated why it
was prejudiced by a one-day delay.
The landlord is correct, however, in asserting that the initial submission differs from the
second one that was filed later that day. Compare Dckt. #41 and #42. The major difference is
that the tenant added additional arguments, including stating that it had maintained the property
while occupying it, and that the property was not turnkey ready when the tenant began the lease,
thereby requiring the tenant to make repairs and improvements to make it habitable and usable.
See Def.’s Mot. for Summ. J. at 21-24. The tenant does not provide a clear explanation as to
why this was done without a request for more time and, therefore, the Court admonishes the
DCHA for this maneuver. But, because the altered document was filed later in the same day,
there is no indication as to how adding arguments a few hours later would prejudice the landlord.
Indeed, if the tenant had requested a short extension that was supported with a cogent
explanation, the Court likely would have granted it. And, after all, the Court favors deciding
cases on the merits. Further, the sections that the tenant added to its cross-motion for summary

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judgment appear verbatim in the tenant’s opposition to the landlord’s summary judgment
motion, so even if such arguments were stricken from the summary judgment motion, these
arguments would still be considered by the Court in resolving the cross-motions. Accordingly,
the motion will not be stricken.
2. The Three Affidavits Attached to the Tenant’s Re-Filed Submission
The landlord also asserts that the Court should strike three affidavits that the tenant
attached to its motion for summary judgment. Pl.’s Mot. to Strike at 5. The landlord states in his
motion that he noticed the deposition of the tenant, pursuant to Federal Rule of Civil Procedure
30(b)(6). Id. at 2. Under Rule 30(b)(6), a party may name a governmental agency as a deponent,
and the agency then designates one or more officers, directors, managing agents or other people
to testify on its behalf, who must testify about “information known or reasonably available to the
organization.” FED. R. CIV. P. 30(b)(6). During one such deposition, Lorry Bonds, a DCHA
employee, testified about conversations between the DCHA and the landlord. Def.’s Mot. for
Summ. J., Ex. 2 (“Bonds Dep.”) at 33-34. She indicated that she had not participated in such
conversations, but that Lisa Dean, another DCHA employee, had told her about them, including
a particular conversation that Ms. Dean had had with the landlord. Id. at 34. During the
deposition, Ms. Bonds was asked whether Ms. Dean had told her that she had said to the
landlord, “if you cash that [June 2010] check, it’s all over, or words to that effect.” Id. Ms.
Bonds stated, “[t]here were no words to that effect.” Id.
After the deposition, the tenant filed an affidavit by Qwendolyn Brooks, DCHA’s
Associate General Counsel. See Def.’s Mot. for Summ. J., Ex. 1 at 69. Ms. Brooks stated in her
affidavit that on June 3, 2010, the landlord acknowledged that he had received the June 2010
check. Id. ¶ 8. Ms. Brooks also noted that on June 10, the landlord advised the tenant that it

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owed additional funds. Id. ¶ 9. In addition, Ms. Brooks stated in her affidavit that Ms. Dean
personally advised the landlord that the June 2010 check in the amount of $65,082.44 was for the
settlement of all funds due and owing under the lease. Id. ¶ 9. Further, Ms. Brooks indicated
that she, herself, “personally reiterated” to the landlord DCHA’s position regarding the June
2010 check, which was for settlement of all outstanding claims as outlined in the May 2010
letter. Id. ¶ 10.
In its motion to strike, the landlord contends that Ms. Bonds’ earlier testimony is
contradicted by Ms. Brooks’ later-filed affidavit. Pl.’s Mot. to Strike at 6-7. Specifically, the
landlord asserts that while Ms. Bonds testified that the tenant did not tell the landlord that
cashing the June 2010 check was a settlement of all funds, Ms. Brooks’ affidavit stated that the
tenant did indeed tell the landlord that. Id. at 7-8. The landlord thus argues that because Ms.
Brooks’ affidavit contradicts Ms. Bonds’ earlier deposition, that Ms. Brooks’ affidavit should be
stricken. Id. at 7-8.
In actuality, Ms. Bonds did initially testify as the landlord describes, where she stated that
during the tenant’s meeting with the landlord, “[t]here were no words” indicating that the check
was a settlement of all funds. Bonds Dep. at 34. But Ms. Bonds immediately followed up her
response with “there might have been words to that effect.” Id. Further, she testified that she
was not present during the DCHA’s conversations with the landlord, but only learned of what
occurred from Ms. Dean. Id. By contrast, Ms. Brooks stated in her affidavit that she was
actually present during a conversation with the landlord, and that she personally communicated
such words to him, herself. Id. at 7-8. There thus appears to be no direct contradiction between
the earlier deposition testimony and the later affidavit.

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The landlord also asserts that the Court should strike the affidavit because it presents
new, supplemental information that could have been raised at the 30(b)(6) deposition, and that
the tenant failed to adequately prepare its 30(b)(6) witness. Pl.’s Mot. to Strike 14-15. Yet “[i]t
is often impossible in any enterprise where employees have distinct roles for there to be one
person who can answer all questions posed during a 30(b)(6) deposition.” Covad Commc’ns Co.
v. Revonet, Inc., 267 F.R.D. 14, 25 (D.D.C. 2010). Indeed, “[i]gnorance in one area, provided it
is professed in good faith . . . should not lead to” reprimand or similar consequences, as these
“should be reserved for[,]” id. at 26, instances where a corporation’s officers or managing agents
are deposed but “disclaim[] knowledge of the facts that are clearly known to the organization[,]”
id. at 25. Here, Ms. Bonds did not disingenuously disclaim knowledge of facts, but instead,
offered all of the information to which she was privy about the discussions between DCHA
employees and the landlord. See Bonds Dep. at 31-35. The Court will therefore not strike Ms.
Brooks’ affidavit.
Additionally, the landlord argues that two other DCHA employees’ respective affidavits
should be stricken. Pl.’s Mot. to Strike at 8. The landlord asserts that DCHA employee Kenneth
Arthur stated during his deposition that when the tenant occupied the property, the building
interior was dirty, there were no working toilets, and that there was a water fountain with lead
pipes. Id. at 10. The landlord claims that the Mr. Arthur testified that other than these three
issues, the rest of the property was in fine working condition. Id. When defense counsel
questioned Mr. Arthur later on in the same deposition, he stated that there were also issues with
the paint, phone lines, ceiling tiles, and floor tiles. Id. at 11. The landlord thus contends that
because this later testimony in response to leading questions contradicted his earlier testimony,
and because his later-filed affidavit and DCHA employee Hugh Triggs’ affidavit contradicted the

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testimony, as well, the affidavits should be stricken pursuant to Federal Rule of Civil Procedure
30(b)(6). Id. at 11-12.
As noted earlier, under Rule 30(b)(6), a party may name a governmental agency as a
deponent, and the agency then provides one or more designees on its behalf to testify about
information known or reasonably available to the organization. FED. R. CIV. P. 30(b)(6). The
rule “aims to prevent a corporate tenant from thwarting inquiries during discovery, then staging
an ambush during a later phase of the case.” Rainey v. Am. Forest & Paper Ass’n, Inc., 26 F.
Supp. 2d 82, 95 (D.D.C. 1998). In other words, if a deponent initially pleads ignorance when
asked about a subject, but a declaration filed by another employee later raises “new or different
allegations that could have been made at the time of the 30(b)(6) deposition,” the later filing will
not be considered. Id. at 94.
That is not the case here. Mr. Arthur did not feign ignorance during his deposition to
allow another DCHA employee to raise new information at a subsequent stage of the litigation.
Rather, it appears from the deposition transcript that Mr. Arthur was initially confused by the
questions, and when later asked in the deposition about specific parts of the building, he
proceeded to provide information about each. See Pl.’s Mot. to Strike, Ex. M [Dckt. #43-1] at
33-56 (“So, for example, the electrical system, as far as you know, as you sit here today, was to
code and in fine working condition, correct?” “I can’t say that—” “Well, you don’t know—” “—
because—” “—anything to the contrary, correct?” “But I don’t know anything to the contrary
but—”).
This additional information came minutes, as opposed to months later, and the affidavits
in question did not introduce anything contradictory when they were filed. See Def.’s Mot. for
Summ. J., Ex. 1 [Dckt. #42-1] at 6-8, 49-51. These declarations will therefore not be stricken.

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See Flynn v. Veazey Const. Corp., 424 F. Supp. 2d 24, 35 (D.D.C. 2006) (“Courts are especially
lenient in accepting later testimony that may not be wholly consistent with an earlier account
where . . . the initial statement took the form of a deposition rather than . . . an affidavit. . .
because [a] deponent may have been confused about what was being asked or have lacked
immediate access to material documents.”) (internal quotation marks and citation omitted); id.
(“To allow every failure of memory or variation in a witness's testimony to be disregarded as a
sham would require far too much from lay witnesses and would deprive the trier of fact of the
traditional opportunity to determine which point in time and with which words the witness . . .
was stating the truth.”) (citing Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)).
Finally, the landlord contends that because Mr. Arthur’s affidavit is not based upon
personal knowledge, the Court should strike it pursuant to Rule 56(c)(4). Pl.’s Mot. to Strike at
18. Yet if a corporate officer is noticed for deposition pursuant to Rule 30(b)(6), “his sworn
affidavit is admissible,” even if that declaration is not based on personal knowledge. Williamson
v. Life Ins. Co. of N. Am., 2012 WL 3262857, at *1 n.1 (D. Nev. Aug. 8, 2012); Schwendimann v.
Arkwright Advanced Coating Inc., 2012 WL 928214, at *1 n.1 (D. Minn. Mar. 19, 2012) (finding
that the Court would consider the declaration even though the signor lacked personal knowledge
of its contents, because the signor was a designated Rule 30(b)(6) representative); Sunbelt
Worksite Mktg., Inc. v. Metro. Life Ins. Co., 2011 WL 3444256, at *2 (M.D. Fla., Aug. 8, 2011)
(“While Rule 54(c)(4) does require an affidavit to be based on personal knowledge . . . an
affidavit by a Rule 30(b)(6) designee does not have to be based on personal knowledge but is
expected to be based on the organization’s collective knowledge.”). In addition, Mr. Arthur’s
affidavit described some things that DCHA employee Hugh Triggs did to improve the property
upon occupying it, including repairing the toilets, replacing the water fountain, painting the

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building, and installing wiring. Def.’s Mot. for Summ. J., Ex. 1, Arthur Dep., ¶¶ 7-8. Though
Mr. Arthur may not have had personal knowledge of these events, the argument is moot because
Mr. Triggs, himself, described these same repairs in his own affidavit, id., Triggs Dep. ¶¶ 4-8,
11-16, and so these arguments would still be considered by the Court in resolving the crossmotions. The affidavits will therefore not be stricken.
C. The Parties’ Cross-Motions for Summary Judgment
1. The Tenant’s Affirmative Defense of Accord and Satisfaction
The landlord has filed a motion for summary judgment alleging that the tenant breached
the contract and owes the landlord for unpaid rent, late payment fees, penalties, taxes, and water
and sewer charges. See generally Pl.’s Mot. for Summ. J. In response, the tenant has filed a
cross-motion for summary judgment, contending that the landlord’s calculations for the amounts
owed are erroneous. See generally Def.’s Cross-Mot. The tenant also argues that it sent the
landlord its May 2010 letter proposing a compromise, where the tenant would pay the landlord a
specific amount (less than the landlord’s claim of the amount due) plus insurance costs to settle
all of the outstanding claims in dispute. Id. at 15-16. The tenant broke down the $65,082.44
total offered amount (before insurance costs) as payment of:
1. The first half of 2010’s real estate taxes, late fees, and interest charges, in the
amount of $46,897.11.
2. One additional month of rent in June, in the amount of $7,000.00.
3. The first half of the 2010 business improvement district (“BID”) taxes, in the
amount of $2,162.40.
4. One-sixth of the real estate taxes for the property (presumably for the month of
June), in the amount of $9,150.83.
5. One-sixth of the BID taxes for the property (presumably for the month of
June), in the amount of $305.02.

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Def.’s May 2010 Letter at 5. The tenant contends that by cashing the June 2010 check that the
tenant sent in the $65,082.44 total, the landlord accepted the proposal and entered into an accord
and satisfaction, thereby resolving all of the landlord’s claims. Id. at 16.
The landlord counters that the tenant’s May 2010 letter did not propose or establish an
accord and satisfaction. Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 15; Pl.’s Reply to Def.’s Mot.
for Summ. J. at 3. The landlord further claims that before he cashed the check, he informed the
tenant that he did not agree with the tenant’s position in its May 2010 letter, and that cashing the
check only counted toward the total amount due. Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 15.
Accord and satisfaction is an affirmative defense with the burden of proof on the
proponent. Pierola v. Moschonas, 687 A.2d 942, 947 (D.C. 1997). Under this doctrine, if the
parties have a dispute about an unliquidated claim or obligation, and the debtor offers payment
with the condition that the amount fully satisfies the creditor’s claim, then the creditor’s
negotiating the check with that understanding constitutes an acceptance of the accord and of the
condition. Calloway v. Cent. Charge Serv., 440 F.2d 287, 289-90 (D.C. Cir. 1971); Didriksen v.
Sewage & Water Bd. of N. Orleans, 527 So.2d 319, 320-21 (4th Cir. 1988); Towne Gardens,
Ltd., v. McDonald’s Corp., 2005 WL 2406004, at *439 (W.D.N.Y. Sept. 29, 2005). The debtor’s
intent for an accord and satisfaction can be established through “discussions, correspondence, or
unambiguous language on the check.” Burke Co. v. Hilton Development Co., 802 F.Supp. 434,
439 (N.D. Fla. 1992). “[I]f the [offered] sum is accepted in full settlement of the total
indebtedness, accord and satisfaction will result.” Rhone v. State Auto Mutual Ins. Co., 858 F.2d
1507, 1510 (11th Cir. 1988); Calloway, 440 F.2d at 289-90.
In this case, the tenant’s May 2010 letter offered the landlord a check totaling $65,082.44
to settle the amount due. Ms. Brooks’ affidavit states that at the June 2010 meeting, Ms. Dean

14

“personally advised” the landlord that the check was for the settlement of all funds due and
owing under the lease through the lease termination date of June 30, 2010. Brooks’ Aff. ¶ 9.
Ms. Brooks further indicated that she “personally reiterated” this position to the landlord at that
meeting. Id. ¶ 10. In addition, Ms. Bonds testified at her deposition that “there may have been
words” during that meeting indicating that cashing the check resolved all of the outstanding
claims. Bonds Dep. at 34-35. By contrast, the landlord testified at his deposition that he gave
the tenant at that meeting a letter. Pl.’s Reply, Ex. 1 (“Weinstein Dep.”) at 99. The letter stated
that the landlord did not agree with the tenant’s position in its May 2010 letter, that the landlord
cashing the check only counted toward the total amount due, and that the tenant would still owe
$39,056.34. See generally June 2010. Further the landlord cashed the check on June 11, and on
June 21, 2010, the tenant emailed the landlord (“June 21 email”), stating that the tenant’s
General Counsel was currently reviewing the information that the landlord had provided, that
some of the tenant’s employees planned to meet with the General Counsel regarding the
landlord’s “settlement offer,” and that they would get back to the landlord. Pl.’s Mot. for Summ.
J., Ex. 20 at 15.
There are thus several disputes of fact there, including what the May 2010 letter
represented before the June 2010 meeting, as well as a dispute of fact as to what transpired at the
meeting, as to the understanding that the parties walked away with thereafter, and as to what the
May 2010 letter represented after the meeting. Specifically, a reasonable factfinder could find
that the amount offered in the tenant’s May 2010 letter was not a settlement offer. This is
because, as mentioned previously, an accord and satisfaction is only fulfilled if the parties have a
genuine dispute about an unliquidated claim or obligation. Calloway, 440 F.2d at 289-90. The
obligation is considered unliquidated if it is “uncertain or disputed in amount.” Curtin v. United

15

Airlines, 275 F.3d 88, 94 (D.C. Cir. 2001) (citation omitted). “[T]his prerequisite . . . springs
from the basic requirement of consideration in contract formation.” Pierola, 687 A.2d at 949. If
a debtor offers partial payment of a debt that is not disputed as to amount, and concedes that the
offered amount is due anyway, the offer is “not considered sufficient detriment” to constitute
consideration. Id. at 948.
In this case, after the landlord received the tenant’s notice of termination in January of
2010, the landlord sent the tenant a letter in April of 2010 stating that it owed $77,762.97 for
unpaid rent, taxes, water and sewer charges, and accrued late charges. Def.’s Stmt. of Mat. Facts
¶ 9. In the tenant’s May 2010 letter in response, it offered to pay $65,082.44 for 2010 real estate
taxes, late fees, interest, and rent and taxes for the month of June of 2010, as it had occupied the
property during that time. Def.’s May 2010 Letter at 5. Though the tenant contested the
landlord’s formula for calculating the $77,762.97 that he claimed was due, and thereby contested
that total amount, a reasonable factfinder could conclude that the tenant conceded in its May
2010 letter that it did owe at least the $65,082.44, and, thus, that that offer was not a proposed
compromise. Id. at 1-3.
A reasonable factfinder could thus conclude that because the tenant did not dispute that
$65,082.44 was due, this amount was not a disputed or unliquidated portion of the claim. Curtin,
275 F.3d at 95 n.9 (“even [a]n admission by the obligor that a minimum amount is due does not
liquidate the claim even partially unless he is contractually bound to the admission”) (internal
quotation marks and citation omitted). In this case, a reasonable factfinder could conclude that
the tenant was contractually bound to make the concession. Essentially, a reasonable factfinder
could infer that offering this amount would not constitute consideration, as it did not require the
tenant to take a position to its detriment.

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Thus, on these facts, a reasonable factfinder could conclude that there was no accord and
satisfaction as to the $65,082.44, the undisputed portion of the claimed outstanding debt. Gerald
R. Turner & Assoc., S.C. v. Moriarty, 25 F.3d 1356, 1359-60 (7th Cir. 1003) (determining that in
the realm of accord and satisfaction, “payment of part of a debt which is not disputed as to
amount does not discharge the debt altogether, even when it is expressly agreed that the partial
payment is received in full satisfaction” because it “furnishes no consideration for relinquishing
the balance of the debt”); Guinness PLC v. Ward, 955 F.2d 875, 888 (4th Cir. 1002) (“a claim
which is liquidated and undisputed . . . is not discharged by acceptance of a lesser sum tendered
in full settlement”) (internal quotation marks and citation omitted); Stinson v. Mueller, 449 A.2d
329, 332 (D.C. 1982) (finding that there was no accord and satisfaction because there was no
proof that the appellee disputed his indebtedness for a failure to perform services); cf. Curtin,
275 F.3d at 95 (finding that an accord and satisfaction was fulfilled because the defendant had
paid more than it conceded was owed, as opposed to only the amount that it believed was owed).
With respect to the remainder of the $77,762.97 that the landlord claimed was due, or
$12,680.53, the tenant disputed that it was owed. See generally Def.’s May 2010 Letter. A
reasonable factfinder could thus infer that it was an unliquidated or disputed portion of the claim,
and that because the tenant did not offer any amount of money to settle this part of the claim,
there was no accord and satisfaction as to this disputed part. See Guinness, 955 F.2d at 888 (“an
acceptance of part of the amount in satisfaction of the whole will bar recovery of the remainder if
the settlement is supported by some consideration additional or collateral to the partial payment”
that is conceded is owed) (internal quotation marks and citation omitted).
Additionally, there are disputes of fact as to what occurred at the June 10 meeting,
including whether the May 2010 letter represented any settlement offer at all, if a new agreement

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was made, and what each understood the June 2010 check to represent. The tenant claims that
by cashing the check on June 11, 2010, the landlord fulfilled the accord and satisfaction and
settled all claims of indebtedness. Def.’s Mot. for Summ. J. at 15; see Valley Asphalt Inc. v.
Stimpel Wiebelhaus Assocs., 2 Fed. App’x 838, 840 (10th Cir. 2001) (“retention of a check
offered as payment in full constitutes assent to the accord and satisfaction even if the recipient of
the check notifies the sender [that] it is accepted only as a partial payment”).
Yet after the landlord cashed the check, the tenant sent an email on June 21 stating that it
was reviewing the information that the landlord had provided, and that it was considering the
landlord’s settlement offer. Pl.’s Mot. for Summ. J., Ex. 20 at 15. A reasonable factfinder could
therefore infer that after the June 10 meeting, the parties did not understand the cashing of the
check to constitute an accord and satisfaction and settlement of all claims, as settlement
discussions were ongoing. See Saul Subsidiary II Ltd. P’ship. v. Venator Grp. Specialty, Inc.,
830 A.2d 854, 865 (D.C. 2003) (determining that “[w]hile an accord and satisfaction need not be
explicit, but [may] be implied from the silent act of cashing a check containing a notation of
payment in full . . . that implication [could not] be drawn” because there was no clear expression
that the payment be treated as payment in full). It could therefore be reasonably inferred that
when the landlord cashed the check the next day, it did not fulfill an accord and satisfaction.
Indeed:
If the creditor refuses to receive the check in full satisfaction and yet takes the
check, either it must be deemed to have assented to the satisfaction, or the debtor
must be deemed to have assented to the creditor’s refusal, for the voluntary giving
of the check by one, and the taking of it by the other, if neither misunderstood the
words that were spoken, necessarily indicate assent.
29 WILLISTON ON CONTRACTS § 73:47 (Lord ed., 4th ed. 2003). Thus, a reasonable factfinder
could conclude that the act of cashing the check resulted in an accord and satisfaction of the

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disputed claims despite the landlord's protest otherwise. But, because the landlord made clear at
the meeting that he was accepting the check on account and not as full satisfaction and the
parties appeared to continue to negotiate the disputed amount subsequent to the cashing of the
check, a reasonable factfinder could also conclude that the tenant assented to the landlord's
position at the meeting and the subsequent cashing of the check did not result in an accord and
satisfaction of the disputed amount. Further, the May 2010 letter proposing the accord and
satisfaction was signed by the tenant and requested the landlord’s signature. See Def.’s May
2010 Letter at 5. But the landlord appears to have never signed it. See id. A reasonable
factfinder could thus infer that the landlord refused to accept the tenant’s settlement offer and the
check as settlement, thereby raising a question of fact as to whether the landlord refused the
settlement offer. See So v. 514 10th Street Assoc., L.P., 834 A.2d 910, 912 (D.C. 2003) (holding
that no settlement agreement had been reached, because although the debtor’s check for accord
and satisfaction was cashed, the letter proposing the settlement was not signed, and settlement
negotiations continued via email afterwards); cf. Laganas v. Installation Specialties, Inc., 291
A.2d 187, 189 (D.C. 1972) (determining that because the creditor negotiated the check, and there
was no mutual discussion with the debtor before or after doing so, an accord and satisfaction had
been fulfilled). The Court thus denies the parties’ cross-motions for summary judgment as to all
disputed claims other than the claim for post-tenancy clean-up and repair costs, which are
addressed below.
2. The Tenant’s Claim for Repairs
The landlord also alleges that the tenant failed to maintain the property, did not remove
all of its alterations as required, and damaged the property upon vacating it, thereby requiring the
landlord to restore it to its original condition at his own expense. Pl.’s Mot. for Summ. J. at 22-

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24. The landlord thus claims that the tenant must reimburse him for such costs. Id. at 22. In
response, the tenant contends that the property was not in usable or turnkey condition when it
occupied the premises, that it had to make several repairs and alterations to make it habitable and
usable, and that it had to frequently repair areas that were in poor condition in order to maintain
them. Def.’s Mot. for Summ. J. at 19-20. The tenant further argues that because it was the
landlord’s responsibility to carry out such tasks, the tenant should not have incurred expenses for
them. Id. Finally, the tenant contends that it did not damage the property upon vacating it, and
that no repair costs are owed.
The landlord claims that before the tenant occupied the property, he installed floor tiles in
the lower level reception area, main area, and front two offices. Pl.’s Opp’n to Def.’s Mot. for
Summ. J., Ex. 2 (“Weinstein Aff.”) ¶ 2. He also states that the floors and walls did not have
holes or require repair, the stairs had nosings in place and did not require repair, the bathrooms
were in good working condition, the roof was free of leaks and was in proper working condition,
and the overhead garage door and water fountain were in good condition and did not require
repair. Id. ¶¶ 2-4. The landlord further states that after the tenant occupied the property, it made
several alterations, including building a fence inside of the building, modifying the air
conditioning system, building several offices in the interior, and installing refrigeration pipes
through the roof and fans in the bathroom ceilings. Pl’s Reply, Ex. 1 (“Weinstein Dep.”) at 3334. The landlord claims that when the tenant attempted to remove these alterations when
vacating the premises, it damaged the property, including leaving bolts embedded in the concrete
floor after the fence was removed, leaving remnants of the tile floor behind and creating an
uneven floor surface, and damaging the air conditioning unit. Id. at 35-37. The landlord

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contends that he is owed for the expenses incurred in restoring the property to its original
condition. Pl.’s Mot. for Summ. J. at 22.
By contrast, the tenant claims that when it first occupied the property, it was not in a
habitable condition. Def.’s Mot. for Summ. J., Ex. 6 (“Arthur Aff.”) ¶ 5; id., Ex. 2 (“Triggs
Aff.”) ¶ 4. The tenant asserts that the premises was dirty, none of the toilets worked, one of the
water fountains had to be removed because it had lead pipes, the electrical system was not up to
code, there were abandoned wires on the property, the floor and ceiling tiles needed to be
replaced, the insulation was peeling off of the walls, and the roof was in bad shape. Def.’s Mot.
for Summ. J., Ex. 5 (“Arthur Dep.”) at 29-30, 32, 55, 57-58, 65. In addition, the tenant states
that the stairs and two overhead garage doors had to be fixed. Triggs Aff. ¶ 15. The tenant
argues that it rectified these conditions at its own cost, when it had been the landlord’s duty to
tend to all of these problems before the tenant moved in. Id. Further, the tenant contends that
two months before it vacated the property, the landlord walked through the premises on different
occasions and commented that he was “happy with the way” the tenant had maintained it. Def.’s
Mot. for Summ. J. at 6. The tenant states that before moving out, it removed everything that it
had changed, did not damage the property, and left it broomswept and clean. Def.’s Mot. for
Summ. J., Ex. 4 (“Nee Dep.”) at 126.
Because the parties have offered conflicting testimony in this manner, there is a genuine
dispute of material fact as to the condition of the property both at the time the tenant occupied it,
and after it moved out. See Fairfax Portfolio, LLC v. Owens Corning Insulating Systems, LLC,
2012 WL 124849, at *6 (D. Kan. Jan. 17, 2012). Further, there is a question of material fact as to
the steps the tenant took to make alterations to the property to make it habitable and usable.
There is also a question of material fact as to whether the tenant maintained the property while

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occupying it, and if so, if it complied with the minimal requirements of the contract, or
alternatively, if it exceeded these requirements. In addition, there is a question of material fact as
to the repairs that were carried out after the property was vacated, such as whether the tenant
removed the fence bolts, or if they remained and had to be extracted by the landlord. See U.S. v.
Tedards, 2007 WL 1207196, at *4 (D.D.C. 2007). Finally, there is a genuine issue of material
fact as to what such reasonable alterations and repairs should have cost. Id. Accordingly,
because there are genuine disputes of material fact as to the landlord’s claim for repairs, the
parties’ cross-motions for summary judgment are denied as to this claim.

IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiff’s motion to strike, and denies the
parties’ cross- motions for summary judgment. An Order consistent with this Memorandum
Opinion is separately and contemporaneously issued this 21st day of March, 2013.

RUDOLPH CONTRERAS
United States District Judge

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