459 F.2d 1269 | D.C. Cir. | 1971
Lead Opinion
The task at hand is a review of a trial court’s protective order awarded a land
Appellee, the landlord’s rental agent, brought two suits in the District of Columbia Court of General Sessions, now the Superior Court of the District of Columbia, for possession of an apartment previously leased to appellant. The first suit, charging nonpayment of rent, met a counter charge that conditions transgressing the Housing Regulations
The trial judge, on appellant’s motion, stayed execution of its judgment of possession while appellant appealed,
Appellant’s arguments focus on the size of the deposits the trial judge ordered. Despite the fact — established by the jury’s unchallenged finding
This case marks our first occasion to scrutinize on the merits the criteria and practices utilized by a trial judge in fashioning a protective order pending appeal of landlord-tenant litigation. In Bell v. Tsintolas Realty Company
We think it clear that in appropriate situations trial judges may specify protective conditions as accompaniments of stays of eviction pending appeal. In Bell, after examining the countervailing factors,
It seems evident that much the same set of considerations authorizing imposition of protective conditions at the pretrial stage may similarly justify a protective order pending appeal. As we observed in Cooks I, while a pretrial request for such an order confronts “the extraordinary character of prejudgment security deposits in American jurisprudence,”
These examples, however, do not obscure the basic similarity of the trial court’s responsibilities in less obvious situations. Whether the occasion arises pretrial or post-trial the court is empowered to “fashion an equitable remedy to avoid placing one party at a severe disadvantage during the period of litigation.”
In the ease at bar we felt, in Cooks I, that a protective order should accompany our stay of eviction pending appellant’s appeal. We conclude, for much the same reason, that the trial judge was well within the domain of his discretion when he imposed a protective condition as an incident of the stay he granted. With the jury’s verdicts as they were, the equities favored neither party especially; as we pointed out in Cooks I, the Bell “standards do not accommodate the situation at hand since the tenant prevailed on the issue of housing code violations and the landlord on the issue of repossession via notice to quit.”
II
Though the case was substantively amenable to a landlord’s protective order of some type, there remains the question whether the particular order the trial judge entered is supportable. There is, too, the further question whether the procedural path the judge traveled in issuing the order can pass legal muster. We answer both questions in the negative.
The order here, we repeat, requires monthly deposits of $72.50 the amount appellant’s lease called for as rent
Judicial protection of the landlord, whether pretrial or post-trial, can be justified only within the area of fair compensation for the possession he loses during the period of litigation. A protective order is unsustainable insofar as it requires the tenant to deposit as security more than the landlord could legitimately claim on that account. In Bell, we recognized that while pretrial protective orders might in ordinary circumstances command deposits of the rent contracted for,
We lack specific information as to the reasons which induce the trial judge to fix the amount of appellant’s security deposits at full rent. We are not benefitted by a statement in that regard,
Security deposits serve only as elements of an interim arrangement — for
An even more fundamental difficulty is encountered when it is recalled that the judge issued his protective order without affording the parties a hearing, although appellant’s motion for stay specifically requested one. We admonished in Bell that pretrial security deposits should be ordered “only on motion of the landlord, and only after notice and opportunity for a hearing on such a motion,”
We are unable, then, to identify an adequate basis for the size of the protective deposits the trial judge ordered. And with the denial of appellant’s request for a hearing, we have no alternative to reversal of the order. We do not know whether the two problems are related or whether a hearing would have avoided them both. In any event, appellant was entitled to one, and it must be afforded now.
Ill
Return of this matter to the Superior Court opens another of its aspects for possible consideration at the hearing. We dealt in Cooks I with the landlord’s motion in this court for an order channeling appellant’s payments directly to the landlord instead of into the registry of the trial court.
In Bell, we deemed “[o]f great consequence . . . the distinction between a complaint for possession based on nonpayment of rent and a complaint which seeks both possession and a judgment for rent in arrears.”
The decisive factors do not change significantly when the protective order is adjunctive to a stay pending a tenant’s appeal from a judgment for possession only. The judgment establishes the landlord’s entitlement to repossession, but not to past or future rent. The tenant’s responsibility for protective deposits arises from the continuing risk of financial loss incidental to the deprivation of repossession by reason of any interim stay of eviction.
These considerations have importance in any case where a landlord who has instituted a possessory-only action seeks resort during the litigation to monies deposited by a tenant in compliance with a protective order. The landlord’s endeavor is recovery of possession of the
This does not mean, however, that in no conceivable situation can the landlord derive monetary benefit from the protective arrangement while the case is still in progress. It does mean that relief in that direction can be afforded only in the most pressing circumstances, and even then only to a very narrow degree. The court cannot justify a turnover to a landlord of any portion of the deposited fund actually in dispute, but neither can it justify retention in the registry of the court of a portion as to which the tenant’s ultimate liability to pay is crystal clear and the landlord’s immediate need is extreme. And while alteration of the fundamental character of the protective arrangement as a security rather than a collection device is not merely for the asking, the court’s basic responsibility to do equity between the parties
These considerations, we believe, ordain the proper conclusion. Where, but only where, the court can say with complete certainty that the landlord will become entitled to a definite part of the in-court fund in any event, and the landlord demonstrates convincingly so dire a need for that part as to persuade the court to exercise its equitable powers to afford him some relief, the court may, to just that extent, respond favorably to the landlord’s request for disbursement from the deposited fund pendente lite. This rule contemplates, of course, that the competing claims of the parties will first be subjected to careful examination at a hearing after due notice, and that nonfrivolous claims of tenants to ultimate nonliability for any or all of the deposited monies will be scrupulously honored. And it goes without saying that the court’s authority to order a turnover from the fund must be cautiously and sparingly utilized.
The protective order appealed from is reversed, and the matter is remanded to the Superior Court for further proceedings in conformity with this opinion.
. Cooks v. Fowler, 141 U.S.App.D.C. 236, 437 F.2d 669 (1970), supplemental opinion, 147 U.S.App.D.C. 213, 455 F.2d 1281 (1971).
. Id. at 238, 437 F.2d at 671.
. Housing Regulations of the District of Columbia (1956), sometimes hereinafter cited “Housing Regulations.”
. See Javins v. First Nat’l Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970) ; Brown v. Southall Realty Co., 237 A.2d 834 (D.C.App. 1968), appeal denied, No. 21,874 (D.C. Cir. July 16, 1968), cert. denied, 393 U.S. 1018, 89 S.Ct. 621, 21 L.Ed.2d 562 (1969).
. See D.C.Code § 45-910 (1967).
. See Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969).
. No appeal from the judgment in that case has been taken, and it is undisputed that the apartment is in substandard condition.
. In that action, appellant asserted a set-off on the premise that the housing code infringements constituted a breach of the landlord’s implied warranty of habitability, see Javins v. First Nat’l Realty Corp., supra note 4, and diminished the occupancy value of the premises. The trial judge, deeming the evidence too speculative to enable a jury determination of the reduced value, directed a verdict for appellee on that claim.
. See note 10, infra.
. The appeal in the second action on the merits, of course, went to the District of Columbia Court of Appeals, where it is now pending.
. Cooks v. Fowler, supra note 1, 141 U.S. App.D.C. at 238-239, 437 F.2d at 671-672.
. See note 7, supra, and accompanying text.
. Cooks v. Fowler, supra note 1, 141 U.S. App.D.C. at 240, 437 F.2d at 673.
. 139 U.S.App.D.C. 101, 430 F.2d 474 (1970).
. 141 U.S.App.D.C. at 239-242, 437 F.2d at 672-675.
. Those factors, we .found in summary, were “that such a prepayment requirement is extraordinary in the course of civil litigation, that it has a tendency indirectly to constrict the tenant’s right to proceed in forma pauperis, a right which equal protection considerations have recently led us to defend, that it carries with it, especially in the context of landlord-tenant litigation, a substantial risk of precluding litigation of meritorious defenses, [and] that it also carries a substantial risk of upsetting the precarious balance of tactics in landlord-tenant litigation. . . . ” 139 U.S.App.D.C. 108, 430 F.2d at 481.
. Id. at 106, 430 F.2d at 479.
. Id. (footnote omitted).
. Id. at 109, 430 F.2d at 482.
. 141 U.S.App.D.C. at 241, 437 F.2d at 674.
. Id. (footnote omitted).
. 139 U.S.App.D.C. at 110, 430 F.2d at 483.
. 141 U.S.App.D.C. at 241, 437 F.2d at 674.
. 139 U.S.App.D.C. at 110, 430 F.2d at 483 (footnote omitted).
. Id.
. Id. at 109, 430 F.2d at 482 (footnote omitted).
. The balance may, as here, eventuate in a stay of eviction for the tenant and a protective order for the landlord.
. Bell v. Tsintolas Realty Co., supra note 14, 139 U.S.App.D.C. at 109, 430 F.2d at 482. Compare Cooks v. Fowler, supra note 1, 141 U.S.App.D.C. at 241, 437 F.2d at 674. See also Javins v. First Nat’l Realty Corp., supra note 4, 138 U.S.App.D.C. at 381 n. 67, 428 F.2d at 1033 n. 67.
. 141 U.S.App.D.C. at 241, 437 F.2d at 674.
. Id. at 242, 437 F.2d at 675.
. Supra note 4.
. See Cooks v. Fowler, supra note 1, 141 U.S.App.D.C. at 242, 437 F.2d at 675.
. Id. at 241, 437 F.2d at 674. That observation, however, was made in reference to a factually, uncontroverted showing by a motion filed by respondent in this court. That motion, as we explained, portrayed the landlord as a 79-year-old widow, the mother of two incompetent adult sons, dependent upon the rental income from the apartment building, as to which there was a growing operating deficit which at the time of trial exceeded $3,500. Id. n. 25. The apparent failure to make that showing in the trial court is a different matter, which we comment on in note 53, infra.
. Brown v. Southall Realty Co., supra note 4, 237 A.2d at 836-837.
. Javins v. First Nat’l Realty Corp., supra note 4, 138 U.S.App.D.C. at 375-380, 428 F.2d at 1077-1082.
. Id. at 380-381, 428 F.2d at 1082-1083.
. 139 U.S.App.D.C. at 111, 430 F.2d at 484.
. Id.
. Supra note 4.
. 138 U.S.App.D.C. at 380-381, 428 F. 2d at 1082-1083.
. The statement referred to in the opinion of our dissenting colleague, post p. 1277, accompanied and elucidated only the ruling in consequence of which the judge directed a landlord’s verdict on the set-off the tenant asserted.
. We do not have the entire record. But since the trial judge’s order was issued in chambers without a hearing or a statement of reasons, we cannot presume that even the full record will solve the dilemma.
. See note 8, supra. The judge’s statement accompanying the ruling is set forth in full in the dissenting opinion, post p. 1278.
. As recognized in the judge’s statement, post p. 1277, appellant’s apartment had not been maintained in standard condition. And while the trial judge felt that the evidence appellant put in was insufficient to require submission of the issue on set-off, in the very same action the jury nonetheless found Housing Code violations.
. As we nil know, stays and protective orders conditioning them must be framed on the basis of tentative showings and the preliminary evaluations they enable.
. Compare Cooks v. Fowler, supra note 1, (supplemental opinion) at 147 U.S.App. D.C. at 213, 455 F.2d at 1281 et seq.
. Compare Bell v. Tsintolas Realty Co., supra note 14. The judge may, of course, treat any relevant jury verdict as advisory. See Cooks v. Fowler, supra note 1, 141 U.S.App.D.C. at 242, 437 F.2d at 675.
. Notwithstanding difficulties with the trial evidence, the tenant might have cured the deficiencies at a hearing, thus enabling the judge to make an informed determination as to the amount of the security deposits.
. 139 U.S.App.D.C. at 106, 430 F.2d at 479.
. Id. at 110, 430 F.2d at 483.
. See id. at 111-112, 430 F.2d at 484-485. And see note 50, infra.
. 141 U.S.App.D.C. at 243, 437 F.2d at 676.
. See Cooks v. Fowler, supra note 1 (supplemental opinion). And a hearing would have furnished the landlord an opportunity to make her showing of financial need to the trial court rather than to us, see note 33, supra, and an opportunity for clarification of the apparent inconsistency between her assertion of need and her declaration that appellant’s apartment would be removed from the rent market, a query we leave for the trial judge on remand. See Cooks v. Fowler, supra note 1, 141 U.S.App.D.C. at 238 n. 3, 241 n. 25, 437 F.2d at 671 n. 3, 674 n. 25.
. Evidentiary submissions may or may not be in order. The need may be minimal where the judge has already been exposed to the relevant facts at a completed trial; in other cases, more may be required. The question in the first instance is one for the judge, to be resolved in the exercise of a sound discretion.
. 141 U.S.App.D.C. at 243 n. 39, 437 F.2d at 676 n. 39.
. Id.
. 139 U.S.App.D.C. at 104, 430 F.2d at 477 (footnote omitted).
. Id. at 104-105, 430 F.2d at 477-478, and sources cited in notes 7-8 thereof. The other form of action, we explained, always requires personal service of the tenant, who may file a counterclaim if he desires. Id. at 104, 430 F.2d at 477.
. Id. at 109, 430 F.2d at 482. See text supra at note 19. This consideration supports our holding that a pretrial protective order cannot properly require payment of rent accruing prior to its entry. Id. at 110, 430 F.2d at 483.
. See id. at 110, 112, 430 F.2d at 483, 485; Dorfman v. Boozer, 134 U.S.App. D.C. 272, 277-278 ; 414 F.2d 1168, 1173-1174 (1969).
. It follows that a protective order pending appeal may serve only to secure the landlord against loss of income during the period of the appeal.
. 141 U.S.App.D.C. at 243 n. 39, 437 F.2d at 676 n. 39.
. See text supra at notes 26-27.
. This disposition, of course, reinstates the trial court’s stay of execution of the judgment for possession and aborts the writ of restitution issued thereon. It also delegates to the trial court control over the fund accumulated by appellant’s deposits therein pursuant to the protective order we issued. The court will apply that fund to any liability on appellant’s part to make deposits under a newly-fashioned protective order, which allowably may operate nunc pro ttmc from the original date of the court’s stay, and will give appellant a reasonable opportunity to make up any difference.
Dissenting Opinion
dissenting:
I am unable to concur in the conclusions and the result reached by the majority.
In her answer to the complaint in the Court of General Sessions the defendant alleged that she was entitled to a set-off against her rent because the plaintiff’s violations of the housing code diminished the value of the premises. After the evidence on the issue thus raised was presented before the jury, the trial court directed a verdict for the plaintiff on that issue.
The record before us contains a document entitled “Reasons for the Court Reversing its Original Ruling and Now Granting Plaintiff’s Motion to Direct a Verdict on Defense of Set-off under the Theory of Javins v. First National Realty
The evidence of the defendant in this case with respect to housing violations which she claims existed during the term of her tenancy and for which she claims a set-off against all or part of the rent is so vague and imprecise that it cannot support a set-off against the rent on the theory of Javins v. First National Realty Corporation. To submit this question to the jury on the basis of such evidence would be to permit mere speculation. Viewed in its best light, it consists of this. From time to time during the course of the tenancy, the exact length of such periods not being stated, the premises were either not heated or poorly heated; there were cracks and holes in the plaster on the walls and ceilings of several rooms in the apartment ; at one time one of the windows in one of the rooms was out (the exact length of time not stated); from time to time there was no hot water; some of the floors were uneven and some of the floor boards loose; for some indefinite period of time the door would not open and shut properly; for indefinite periods of time she was troubled by rats and roaches; on occasions there was some trouble with plumbing, the exact period of time not stated. The plaintiff’s testimony, which was not rebutted by the defendant, showed that carpenters, plumbers, plasterers, heating experts, exterminators, all went to the premises in question, some of them on numerous occasions, to alleviate the defendant’s complaints. The defendant’s own witness from the housing inspector’s office testified that on a number of occasions during the period of the tenancy, all alleged violations were abated by the landlord. There was no evidence of any unreasonable delay or neglect by the landlord in taking care of the complaints. There was no evidence of the extent to which, if any, the defendant was deprived of the use of the premises and absolutely no evidence of the difference in the value of the premises as the defendant claimed existed and its value without the alleged violations.
As a matter of fact, the evidence was so indefinite as to extent of the violations at any one time and the length of the violations that it is difficult to see how even an expert could have made any worthwhile estimate of the loss in value to the defendant. But assuming such expert testimony is not necessary, the evidence is certainly not sufficient for any finder of fact to determine how much, if all or any, of the rent should be suspended by the alleged breaches of the landlord. Moreover, as I have indicated, the defendant does not deny that the landlord sent repairmen to her apartment on numerous occasions to take care of her complaints.
For these reasons, the court does not believe there is sufficient evidence to submit the issue of set-off against the rent, under the theory of the Javins case, to the jury.
To me it is clear that the matter of alleged housing violations was presented and fully explored before the trial judge. He concluded that there was no evidence to justify a finding that the value of the premises had been diminished by the alleged violations. He explained the basis for his conclusion, and I think he was right. In the light of this conclusion an order directing the deposit of less than the stipulated rent would have been arbitrary and capricious. In my view also, since the matter had been fully litigated, a further hearing was unnecessary.
I respectfully dissent.