*1 with in order to as- ments various brokers an acceptable
certain whether offer DAVIS, Appellant, Estelle Georgetown Building would be received. v. listing Although agreements the tenant’s INC., ASSOCIATES, RENTAL t/a partners’ correspondence and the with each Appellee. Realty, Finance Federal selling other indicate their interest Georgetown Building, in securing certain 80-180. No. prospective purchasers, getting a certain of Appeals. District of Columbia Court price, achieving and in other favorable sale terms, we with agree the trial court that Argued En Banc Oct. 1981. most fairly that can be inferred from Decided Jan. 1983. partners, evidence is that as contemplate did no more sale of group, than building. Indeed, our review “unequivocal-
record bears out tenants
ly” the Georgetown Building decided to sell after and Norair threatened
only Goldstein 4,1980, September their letter to dissolve if the partnership Vogel-Kauf-
the tenant’s offer not Hannan accepted by
man were upon The terms which the Dobricky. partners
tenant determined to sell
Georgetown Building set forth were Vogel- tenants
contract sale between There- September
Kaufman on
after, appellants failed to exercise their XVII,
purchase rights Paragraph under terminating rights purchase
thus their Georgetown Building.18 reasons, we hold that foregoing
For the determining trial court did err in not genuine there no issues of mate- were concerning point fact in time at
rial partners the tenant’s determined to
which Building.
sell the Georgetown
Affirmed. Sill, cite, (reversing Many appellants supra trial court’s de- cases Vietor v. one, present spe- specific performance pre-emptive unlike the involved nial suits performance brought right cific the land- failure to com- either holder the landowner’s tenant, respectively, obligating ply the oth- lord because of her to sell her contract party’s specific right apartment pre-emptive er failure to with the holder pre-emptive right contractual terms of terms those a third the same as contained See, Shirk, (tenant e.g., her). Here, party’s issue. Turner v. offer landlords do specific performance appellees give of land- awarded because contend that failed to and cannot his after pre-emp- lord’s refusal to sell interest them to act under the pre-emptive right provisions vested because of right appraisal tenant’s of Para- tive interest); Long Rather, his they seeking landlord’s “desire” sell graph XVII. Wayble, supra (reversing trial court’s denial provisions more to act under those date performance specific tenant for landlord’s Vogel-Kauf- year prior to the date of the than a give right of first refusal failure they might so have the ad- man contract $35,000 price asking specified in the lease of previous property’s vantage lower value into a contract of sale of landlord’s rising in a real estate market. $49,900); property party with a third *2 process en- was violated
try favor (appellee) for her failure maintain “without ments rent each month afford- her the merits her ing suit for posses- defenses the landlord’s [to *3 4.) Reply p. Brief at (Appellant’s sion.]” contention, reject We and we appellant’s empowered conclude the trial court is possession to enter of for a land- (without lord prejudice tenant’s coun- terclaim) has filed when the tenant to abide the court’s order terms of monthly reg- into the court’s rental be istry pending determination the land- right We also possession. lord’s set forth ap- certain considerations which deem propriate weigh for the trial court such a situation.
I
problems
that the
Preliminarily, we note
peculiar
landlord and tenant
relation-
Scheuermann,
D.C.,
Washington,
John E.
ships
unique body
have created a
law and
for appellant.
similarly
judicial procedures. First
unique
foremost,
and
and
the Landlord
Tenant
D.C.,
Loewinger,
Kenneth J.
Washington,
of the Superior
Branch of the Civil Division
Dessel,
with whom Lisa J.
Washington,
in-
Court
the District
Columbia was
brief,
D.C., was on the
for appellee.
disputes
tended to
between land-
determine
NEWMAN, Chief
and
Judge,
Before
summary
lord and tenant in a
fashion. As
KELLY, KERN, NEBEKER, HARRIS,*
stated in
recently
this court most
Mahdi v.
FERREN,
MACK,
BELSON,
PRYOR and
Inc.,
Poretsky Management,
D.C.App., 438
Judges.
Associate
(1981):
A.2d 1085
Landlord and
Proceedings in the
Tenant
KERN,
Judge:
Associate
summary nature,
Branch are of a
and
banc,
court, sitting en
upon
is called
time
of the essence.
Mendes v.
whether the trial
is em-
determine
Johnson,
A.2d 781 (D.C.App.1978),
powered
to strike a tenant’s
and
availability
... held that the
of “a
[we]
enter
in favor of the
whereby a
summary procedure
landlord
following
landlord
circumstances:
reacquire possession
could
quickly
from
has
to comply
when a tenant
failed
with a
with the aid of
defaulting
judicial
court-imposed protective
requiring
process” justified
abrogation
the rent due
deposit
him to
each month
self-help
right
common law
registry pending
determination of
rejection
holding
precedents
that such
right
possession.
issue
right
preserved.
had been
Accord: Lind-
56, 71,
Normet,
instant
v.
(appellant)
sey
The tenant
case
U.S.
92 S.Ct.
[405
right
(1972)]
her
(Oregon’s
constitutional
824 Habib, D.C.App., pursuant protective
In McNeal v. to a without A.2d order (1975), we recognized important role hearing. Id. at 514. holding evidentiary order in landlord-tenant recently, “protec- Most stated Not relationships. were there benefits only equitable tive order is an tool of the the landlord that resulted from sound discretion requiring exercise of of a order but case-by-case Capi- Dameron v. on a basis.” tenant: provided also benefits to the Associates, Ltd., D.C.App., tol House First, regis- ... made into the we held A.2d In that litigation protect of the court try pending judge’s imposing the trial action in satisfy ability his [the tenant’s] re- permitting while needs, housing pre- in that such portion of those monies not lease falling vent a tenant from further permissible to the was a dispute Second, a de- arrears. [Citation omitted.] “equity power exercise of fendant’s fellow tenants merit the law’s ” peculiar Bell with the outlined deal consideration. To the extent one presented often in landlord-ten- situations no pays partic- rent for the use of signifi- It is proceedings. ant Id. at 583.2 premises, (1) make it finan- ular he perma- that a has no cant cially impossible for his landlord to make but impact rights parties nent repairs, (2) heightens needed maintains the between the only quo status charges need rental landlord’s to increase “The landlord and the tenant. Id. at 587. paying compensate tenants to *5 to order devised consequences protective originally the lost These was income. are fair who hon- hardly delay to those tenants the harm of excessive at- ameliorate or their contractual commitments. to dis- [Id. tendant modern landlord-tenant at 512.] at 586. putes.” Id.
Further, Lindsey McNeal relied v. 862, Normet, 56, 405 U.S. 92 31 S.Ct. Ill There, (1972).1 36 the stat- L.Ed.2d Court Inc., Management, v. Poretsky In Mahdi requirement ed: “A the tenant that we concluded the Fifth Amend supra, payment during for the of rent provide the prohibit not the trial court from ment does of the irration- hardly continuance action is when the ten striking pleadings a tenant’s 65, 869; at oppressive.” al or at 92 Id. S.Ct. here, make ant, as has failed to persistently Habib, McNeal, supra McNeal v. at 513. In pro court a required into as that the entry protective we held order so, adopted In a doing tective order. we proper was where the tenant had been af- portion of the Memorandum substantial adequate heard, forded an to be by Judge and Order Schwelb Opinion issued the due clause did process and that not court in case of Arthur E. of the trial the hearing prior an require evidentiary the Hunt, Real 109 D.W. Morrisette Estate v. entry of such an order. Id. 513-14. 23841-81, (No. April L & However, L.R. 901 T we also held that the trial court case the issue of 1981). squarely not order disbursement of sums That faced the Lindsey, per- body concerning protective Supreme upheld a of law orders. 1. In Court constitutionality Oregon part again emphasized protective of an orders tinent We (1) days required they protect aptiy trial within six statute named both because complaint Dameron, of the unless the supra after service at 583 landlords and tenants. security provides accruing addition, in the amount In that a n. 4. we held rent, (2) provides for a limitation appealable a “final order” nor order was not issues, precluding based order, triable a defense appealable interlocutory it an since duty landlord’s to maintain breach strictly preliminary safeguard for the it “is a premises. judicial process. parties integrity and the subject time It is revision at 2. We outlined the for a rationale process.” judicial Id. at 585. development order and in detail the discussed
825
authority
whether the trial court
had the
order
could under some circum-
a
strike
pleadings
possessory
tenant’s
pleadings,”
stances result in
action
failure
with the
comply
court’s
pointed
but also
out that the facts in Blanks
protective order. We
adopted Mahdi
from those which then were before
differed
Morrisette Memorandum Opinion
pro-
“to
Morrisette,
at 904. How-
supra
court.
necessary
precedent
appellate
vid[e]
ever,
persuasive
we find it
that the federal
grant
the trial court
posses-
the landlord
appeals
clearly
court
Blanks
contem-
sion when
comply
fails
with
plated
pleadings
that a tenant’s defensive
Mahdi,
the protective
supra
order.”
possessory
in a
action could be stricken for
comply
failure
with a
discussing
basis
the trial
and that an eviction could result.3
authority
strike the tenant’s
Mazo,
v.
Thompson
supra,
defendant
pleadings for failure to
two
pay,
cited
interposed
plea
in a
action had
possessory
decisions
the federal court of appeals
title,
pleadings subsequently
and her
Fowler,
here: Blanks
U.S.App.D.C.
v.
posted
were stricken because she had not
(1971);
F.2d at 1285.] is, guiding principle for appealed course, While the protec- monthly from the to arrive at a reasonable tive *6 appellate stayed will, and the court payment which at one and the same that order pending appeal, the court time, issued fair impose obligation a on the de protective its own order and the conditioned fendant, permit the case to be heard on stay compliance on with its order. The merits, plaintiff assure if the the that court stated that: will, he wins having he been denied inter A violation our of own possession, im at least receive reasonable would, course, conditioning stay the of intervening protect rent. To further the open the door to of stay, dissolution the interests, the plaintiff’s court exer and that in pave turn could the toway the cise its discretion over “sufficient
her eviction. 455 F.2d at [Id. surety,” by requiring the defendant to 1287.] will in stipulate judgment that he confess the action should he default possessory opinion The Morrisette on commented 226-27, cause. passage recognizing good this that this without dictum [Id. — (footnotes omitted).][4] that to “implies failure make at 1161-62 F.2d defendant, viz., directly monthly ty did 3. While the court the her address times remedy question appropriate agreement. the rent under the lease The court situation, it was faced with a lower court order express opinion on the declined what which directed that the required tenant’s statute of a defendant who was finan- comply, appellate stricken for failure to and the cially “undertaking” enter unable to into an did ac- not indicate that such court surety protect plaintiffs with sufficient improper. tion was legitimate interests. The court noted that the parties agreed $150 had that was a reasonable impermissible $3,000 4. The court stressed monthly payment that had and that the bond money beyond capabili- on a bond to insist on scheduling payments that are concerned language believe We supports court-imposed temporarily changed these circum- fully decisions sanctions, plead including stances, personal emergency af- such as ings and when a tenant entry judgment, Therefore, earnings. we cannot fecting his has failed to with a comply order. proposed accept concurring colleague’s our which, effect, requires “rule of thumb” recognize while our We that decision amount of the trial court to re-examine the authority Mahdi confirms the trial court’s orig- its pendente payment lite fixed sanctions, including impose proceeding inal order before judgment landlord in a where case regard what action to take with determine the tenant fails to abide failure to abide tenant’s order, the must exam- carefully trial court deciding ine specific several factors before such relief It to these appropriate. view, must our the trial court
factors we now turn.
the land
hearing
first
at the
on
consider
lord’s motion for
IV
noncompliance
of the tenant’s
extent
outset,
concurring
At
we note our
includes
Noncompliance
with the order.
colleague’s
“at the
urging
full
into the
payments
the failure to make
pos-
landlord’s motion
pay
registry,
timely
failure make
session, the
trial court’s evaluation of
ments,
any payment
failure to make
or the
regis-
tenant’s default on
into the
egregious
The most
noncom
whatsoever.6
try should
a careful consideration
include
course,
fail
pliance,
would be a tenant’s
inequities—in
equities—and possible
into the court
ure make
initial
of the landlord’s secur-
establishment
an extended
period.
over
added.)
ity.” (Emphasis
by the trial
The next consideration
necessary
proper
We do not deem it
noncompli
reason
court is the tenant’s
required—when
trial court be
has
faith
good
ance.
a tenant
made
Where
appear
the tenant has failed
parties
because
inability to
efforts
inform the court of an
original protec-
a full
timely payment,
make
or to make
tive order—to consider the
propriety
set
payment
extraordinary
financial
pro-
original
amount fixed
backs,
discretion,
may,
per
the court
its
because,
tective
conclude
order. We so
or to
payment
mit a
to make a late
originally
the time the court
determines
make
of less than the full
regis-
what the
should
enter
for the
amount rather than
lite,
try, pendente
ample
the tenant had
However, as
out in
pointed
landlord.
presentation
full
opportunity to make
*7
Mahdi,
1088, adopting Judge
supra
premises
the
and other
condition of the
opinion:
Schwelb’s
addition,
equities in
at all
his favor.5
or
poverty
rent due to
[Ijnability
pay
subsequent
entry
times
to the court’s
of the
been,
has never
and is not
has
lack
funds
ample op-
of
protective
now,
possessory
to a
action
origi-
of
a defense
portunity
seek modification
of
nonpayment.
Judgments
in the
changes
nal
so
minor
based on
order
far as
or,
may
by proffer
19,
presentation
be
figure.
421
5.
made
based
Id. at
n.
Such
been
on this
226
appropriate
a
deems
in
if
trial court
F.2d at 1162
19.
the
n.
case, by adducing
particular
evidence.
passing
We note in
the federal circuit court’s
Bell,
109,
in
829 quo is in pressed preserve McArdle tive order to the status Judge appellant’s When it can possession contested suit for until why appellant counsel as to to had failed determined merits. an is on its Such notify injury, the court of her appellant’s courts, equi- a creature of fashioned out of he was counsel answered that “not sure if balance, penden- ty, proper to maintain the we of it January.” were aware [counsel] lite, in landlord-ten- unique te arena of explanation trial court found this insuf- fails litigation. ant to When accordingly ficient and denied appellant’s by abide judgment.12 motion to vacate the if under the factors out- may, appropriate convincing regard- testimony The lack of above, lined the tenant’s as strike ing appellant’s reasons for noncompliance they possession relate to the issue of was decisive to the trial court’s decision judgment possession award for to the land- deny seeking judg- the motion to vacate the lord. ment possession. for Based this rec- However, persuaded are not we ord, we conclude that the trial court did not particular equita in this circumstance is refusing abuse its discretion in vacate right ble to bar tenant from the judgment possession appellee. for independent civil pursue future Rapley, D.C.App., Kaiser v. 380 A.2d paid for a rent action claim for back (1977); 997-98 v. Warren Smith Petroleum upon alleged have violations she based Corp., D.C.Mun.App., 126 A.2d the premises of the extant on Housing Code occupied premises time she Lindsey v. Nor generally as tenant. See VI met, at 870. supra, 405 S.Ct. U.S. also asserts Appellant the trial the first a claim asserted as place, such judgment court’s in favor has appellee the time the de- a counterclaim at only to a barred her against posses- suit .for fends the landlord’s merits of the defenses her answer to of, reached, disposed sion is not much less the complaint possession, but also leaves circum- particular the trial court in the “the consequences (Ap- collateral unclear.” posses- its entering judgment stance of pellant’s 7.)13 at 7 n. Reply Brief failure to abide against sion the tenant for order.14 consequences par are of Collateral ticular moment in a case such this where we are Equally important, primarily since appellant has asserted in a counterclaim maintaining a balance in concerned with damages that she is entitled reason we are not proceedings, landlord-tenant Housing appellee. Code by violations barring the from persuaded that consequences the trial Turning independent future a claim pursuing equitable. entry appellee, possession court’s of the issue of we stated: purpose protec- Recently have Mahdi noted against recognized preju- the land Judge counterclaim 12. McArdle also 14. The tenant’s upon alleged housing appellee lord for rent based dice to in that the trial date of Febru- past ary said cannot be from the code violations in the 21 had been removed calendar February relevant” to the entry have been “material Further, judgment awarding possession to the appellee its had released witnesses. solely upon failure appellee prop- the tenant’s income landlord based had received no from the erty months and had lost the for at least three Practice, 0.443[5], at security as of IB Moore’s afforded Federal Further, (3d ed.1974). appellant’s counter November litigated and actu “raised and claim never summary entry ally adjudged” during judgment after The trial court’s These to landlord. appellant pleadings of does not estoppel among requirements if collateral striking was with or with- state whether subsequent apply IB Moore’s action. prejudice. out 0.443[1], supra at 3901. Federal Practice *10 due, will “execution is executed” the striking of Tenant’s rent to- affect only pre- insofar as interest and costs gether with all owed at [the tenant] continuing cludes from In no way [the tenant] the time of the tender. does our live in an apartment at which she [or he] holding today impinge upon proposition is demonstrably unable to the rent. We in the enunciated in Trans-Lux. hold Although possession important is—it may, instant case that the trial court but is being the issue over which this case is to, required posses- enter litigated variety legal fact that a —the pending sion in a suit for signifi- remedies remain to Tenant is a by if the fails to abide weighing equities cant element in the terms of the court’s order. Our this, losing a case such as in which the tenant, holding preclude does not after be, party, may whoever he or she can him against is entered for viola- constitutional foul. non-frivolously cry order, from proceed- tion of the at [Id. 1090.] ing to tender to the landlord all monies due We leave to the discretion of the executed," “execution is owing before court the determination of how to treat Trans-Lux, provided supra as at 146.15 docketing process its which any complaint might be by appellant filed future recognize The dissent fails seeking portion of some of rent recovery the mecha redemption the doctrine of paid. complaint Whether this kind of quite nism of the order are dis priority should be accorded on the Civil concepts designed tinct and each is Division calendar and if treated as filed on differing objectives.16 Redemption, achieve the date of the counterclaim in the suit require a doctrine that does not the court to possession brought by landlord in the Land- referee, to re permits serve as Branch, Management lord and Tenant see premises pays main on the he leases if he Garris, Partnership, supra, Inc. v. is a mat- interest, rent, directly the landlord all the ter we deem best determined the trial actually and costs owed before the landlord court. attempts premises. to re-enter contrast,
VII
introduces the court into the landlord-ten-
We turn now to the dissent of Chief
stakeholder
relationship
ant
as a neutral
Judge
Stripped
hyperbole,
Newman.
litigation
dispute,
of their
see
that the con-
dissenting opinion
this
asserts
v.
Realty, supra;
Bell
Tsintolas
McNeal
v.
in the instant case
clusion we have reached
Habib,
refrain
supra, permits the tenant
and “at
with the so-
both unfair
odds”
directly
his rent
to the land-
paying
from
doctrine established
redemption
called
requires
deposit pay-
lord but
the tenant to
City Corp.
this court in Trans-Lux Radio
month into the court
ments each
Parking
D.C.Mun.App., 54
Corp.,
Service
adjudicates
as the court
until such time
(1947). There,
reaffirmed the
A.2d 144
mechanism, the landlord is
By this
dispute.
lawfully occupying
rule that a tenant
owing by
that the rent due and
ensured
his eviction even after
premises might stay
tenant under the lease has
fact been
pos-
the landlord has obtained
registry.
paid,
before
albeit to the court
by paying
session
to the landlord
Trans-Lux,
148;
supra
Molyneaux,
emphasize
remedy provided
that the
15. We
entirely upon equitable
is based
con-
Trans-Lux
siderations,
par-
which are
the determination of
ticularly
Id.
within the trial court’s discretion.
that the
order was
16. It will be noted
House, Inc.,
148; Molyneaux
v. Town
D.C.
District of
the courts of the
Colum-
created
Thus,
App.,
the most
195 A.2d
thought
with no
that it
bia well after Trans-Lux
requirement which must be met before
basic
any way inconsistent with the doctrine
was in
equitable
“if
relief
become available is that
redemption.
equity
equity.”
the tenant seeks
he must do
when,
here,
they
landlord and tenant while
quo
between
urges
The dissent
*11
dispute
the rent for each of
in a court of law and
pay
tenant has failed
resolve their
the court’s
three months —all
violation of
efficient manner.
orderly
in an
and
per-
order —the tenant should be
sum,
dissent’s concern that our
In
this
proffer
possible
mitted to
at the last
mo-
indigent
an
tenant with a
holding denies
period
ment the rent for this
and avoid
opportunity
to have
meritorious cause
entry
judgment
possession
of
of
in favor of
wholly incorrect.
his claim heard is
Rather^
so,
argues
the landlord. This should be
the role of the
holding today
our
reaffirms
dissent,
“the landlord suffers no
because
stakeholder,
ref-
neutral
trial court as a
if the tenant cures his error.”
prejudice
orders
eree,
authority to enforce its
with
place,
surely disingenuous
In the first
it is
way
In this
they
when
are violated.
pay
to characterize the tenant’s failure to
the fair and
impair
rather than
encourage
registry
rent
to the
of the court for three
judicial
of landlord-ten-
prompt
resolution
consecutive months as mere “error.” As
disputes.
ant
of the federal circuit court
Judge Wright
Affirmed.
noted,
payment by
here has
the burden of
pursuant
pro-
the tenant of his rent
to the
FERREN,
Judge, concurring in
Associate
nor
heavy
tective order “will be neither
judgment only:
unexpected:
the tenant
require
meet current
rental
payments
I.
he
litigation period
require only
is to
essentially for
I concur in the
obligation
voluntarily
fulfill an
which he
Judge
forth in Part V of
the reasons set
assumed at an earlier
when he entered
date
The trial court
plurality opinion.
into the lease.”17
Kern’s
declining
not
its discretion in
did
abuse
Moreover,
the tenant’s failure
possession
vacate the
rent
while the liti-
tenant-appellant
had
landlord. The
—who
does,
fact,
gation proceeds
prejudice
or-
opposed protective
never
counsel —had
case,
the landlord can-
landlord.
such
existing
in the amount of
rental
der
sig-
not know whether the tenant’s default
ments,
had
to make
failed
nifies an abandonment of his case and an
December,
November,
January, took no
shortly
premises.
intention to
vacate the
for late
step
request permission
timely
addition,
whether permit-
we must consider
pro-
modification of the
or to seek
payment
ting
possession
to remain in
order,
timely
no
ef-
and thus made
tective
rent de-
premises
paying any
without
eventually
her defaults to her
fort to relate
just
without
prives
property
the landlord of
inju-
nonpayment:
excuse for
proffered
Normet,
compensation. Lindsey
supra,
apartment
stairs
falling down
ry from
874; Mahdi,
at
U.S.
S.Ct.
or December.
November
supra at 1089.
circumstances, moreover, the
Under
accept
the dissent’s
Finally, if we were
harsh, for under
appear
judgment does
that a tenant’s failure to abide
suggestion
City Corp.
Trans-Lux Radio
the doctrine of
order must be excused
D.C.Mun.App., 54
Parking Corp.,
v. Service
time before
proffer
of back rent
(1947), appellant despite
A.2d 144
—
stay
effect a
here —still could
court’s order
landlord,
permitted
and tenants were
“all
tendering to the landlord
eviction
or-
ignore
impunity
tender, interest on
rent to date
accrued
ders,
whatsoev-
there would be no incentive
of accrual to date
from date
all accruals
Tenant
in the Landlord and
litigants
er to
Id. at 148. At
tender,
all costs.”
to follow the court’s
Branch
did
appellant
hearing in this
maintain the status
last
solely to
was entered
Co.,
Realty
at 482.
F.2d
17. Bell v. Tsintolas
Trans-Lux,
dwelling
is in violation
condition
tender all the accrued rent.
course,
an additional
norms.
required
Housing Regulation
would have
costs,
appel-
of interest and
payment
afford a tenant the
If the trial court did not
have had to remit all
lant would
at the
showing
to make such a
opportunity
landlord,
registry.
not to the court
level,
time the court set
are not
requirements
But these additional
secur-
imposed
have
an excessive
inaction
inequitable,
appellant’s
in view of
moreover, a
Realistically,
ity requirement.
few months of the tenan-
during the first
showing
to make such a
fair
cy.1
whether
the tenant had
may depend on
*12
Accordingly,
to assist.
counsel available
II.
landlord’s motion for
the
on the
opinion
I
concur in the plurality
do not
trial court’s
possession,
of
the
pro
it does not articulate
primarily because
of the tenant’s default
evaluation
and
clearly
the trial court that
cedures for
registry should include
ments into the
inter
landlord and tenant
equitably balance
equities
the
careful consideration of
—and
the failure to note
ests. Most critical is
establish-
inequities
the initial
possible
—in
that,
payments
the level of
into
at the time
security.
landlord’s
ment
the
set,
the tenant
is entitled to
registry
concern, my colleagues
this
response
In
heard,”
to be
adequate opportunity
“an
for the follow-
it is irrelevant
simply assert
Habib, D.C.App., 346 A.2d
McNeal v.
ing reason:
(1975),
corresponding
with a
coupled
514
deter-
originally
time the court
[A]t
is evidence of
as to whether there
finding,
pay
the tenant should
mines what
pay
to warrant
code violations sufficient
lite,
had
pendente
the tenant
registry,
rental.
monthly
of less than the full
ments
presenta-
to make full
ample opportunity
Co.,
Realty
As stated in Bell v. Tsintolas
premises
of the
tion on the condition
474, 484
101, 111, 430 F.2d
U.S.App.D.C.
139
addition,
in his favor.
equities
other
(1970):
times,
subsequent
to the
at all
events,
pre-
if
ordinary
course
[I]n
order, the tenant
required,
of rent is
modifica-
to seek
ample opportunity
has
into the court
pay
will be called
minor
order so far as
tion of that original
which he
each month the amount
scheduling
changes in
as rent.
originally contracted
temporar-
on the
are concerned
However,
likely
there are circumstances
circumstances,
per-
as a
changed
ily
which,
require
judgment,
to arise
in our
earnings.
emergency affecting
sonal
imposition the trial court consider
(footnote omitted).]
at 826
[Ante
lesser
Certainly
amount.
a lesser
“ample opportuni-
of an
generalization
This
when the ten-
amount would be desirable
at the outset
presentation”
full
ty to make
showing that the
very strong
ant makes a
might
any complaint
impor-
eting process
which
be
analysis
complete
it is
1. For the sake of
seeking
that,
(in
by appellant
recov-
given
plurality
in the future
view
filed
ery
tant to note
paid.
remedy
portion
join)
damage
of rent
Whether
for code
of some
I
that a
complaint
by
be accorded
should
not foreclosed
a trial
this kind
violations is
landlord,
judgment granting possession
priority
Division calendar and
on the Civil
remedy
damage
of the counter-
that a
as if filed on the date
ante at
follows
treated
brought by
foreclosed
for code violations would not be
claim in the suit for
Branch,
tender under Trans-Lux.
in the Landlord and Tenant
Garris,
Partnership,
Management
Inc. v.
see
remedy
aspect
damage
is im-
Another
97570-79,
(No.
March
D.W.L.R.
795
preserving
portant.
a tenant’s counterclaim
17, 1981),
best deter-
is a matter we deem
housing
code violations
attributable
trial court.
default,
mined
plurality opinion
period of
priority
assigning a later
perceive no basis for
states,
I
ante at 830:
have
one that would
claim that the
to such a
to the discretion of the trial
We leave
assigned
the default.
in the absence of
been
in its dock-
determination of how to treat
or “to seek modification”
is too
the court first
requiring
thereafter
der —without
casually
ig-
made. The majority altogether
equities
review the
of that order.
that,
studies
according
nores the fact
tenants,
appellant,
many
Because
unlike
Superi-
under the
auspices
conducted
proceed-
throughout
did have counsel
these
1979, 1980,
Executive
Court
Officer for
had
ings
opportunity,
and thus
1981,2 “in the
Tenant
Landlord and
thereafter,
challenge the
outset and
level
Court,
ac-
Superior
Branch of
99%
my
into the
concerns
registry,
tions have at least one
who is not
party
plurality
strictly
are not
opinion
about the
represented
always
counsel —almost
case.
relevant to the outcome of this
But
Bruner,
D.C.App.,
tenant.” Davis v.
have
colleagues
decided to “set forth
my
(Perren, J., dissenting)
A.2d
999 n. 4
[they] deem
certain considerations which
(citation omitted),
reheard en
vacated and
weigh,”
appropriate for
trial court
banc,
pending,
decision
441 A.2d
822, in all
where “the
ante at
situations
Undoubtedly,
pro
percentage
failed to
the terms of
tenant has
abide
se tenants will be lower
these statistics
once
monthly
order that
rental
dismissals,
adjusted
defaults,
failure
deter-
registry pending
into the court’s
settlements,
leaving
*13
process,
serve
right
posses-
of the landlord’s
to
mination
category
the
we are concerned about: con-
agree
guidelines
I
are
sion.” Id.
given
tested cases set for
But
the
trial.
desirable,
important,
but I also
it is
believe
fact
that substantial
of tenants
numbers
signif-
not to omit a
providing guidelines,
in
counsel,3
and that
cannot afford
prior
equity clearly
icant
established
law.
federally subsidized civil
services for
legal
have
from
colleagues
generalized
the
My
including
the
law
poor,
programs,
school
including
availability
facts of this
the
case—
back,4
cut
can
no
being severely
there
be
provide guidelines
of counsel —to
a
question
many
cases are
tenants whose
omission
to foster uncon-
likely
material
subject
pro-
continued for trial
become
results in
cases.
scionable
other
help
lawyer.
tective orders without the
of a
sum,
important
it is
to stress the fol-
In
best, to
questionable,
It
is therefore
at
lowing
granting
rule of thumb: Before
“ample
assume that all
have an
tenants
of
to a landlord
litigate
opportunity”
equities
the
on
into the court
payments
tenant’s default
set,
the
let
order at
time it is
the trial
under
alone thereafter.
for a tenant
equities
pro-
review
of
court must
land-
very strong
busy
make “a
showing”
period
to the
applied
order itself as
tective
lord-tenant court “that the condition of
The
the trial
less attention
of default.
Housing Regula-
is in violation
dwelling
of
premises
paid to
condition
norms,”
111,
Bell, supra
F.2d at
tion
at
430
review-
setting
subsequently
initially
484,
required.
is
lawyer’s help
ordinarily
registry,
of
into the
ing the level
Thus,
may
questionable,
it is even more
equities
it is
even-
likely
unfair,
be
ultimate
the more
permit
grossly
who
against a landlord
seeks
tually
will cut
pleadings
a tenant’s
sanction —
remedy,
or-
rather
than a lesser
possession,
default on
under
Legal
1981,
by Superior
Report
Serv-
Report
Prepared
on Civil
of
Committee
2.Pro
Se
ices,
Research,
2-15.
Division of
Evaluation
Court
Special Projects
4,
30, 1982);
(April
Report of
6
Standing
Legal
on
Services
Committee
Civil
the District of
of
4. Memorandum Members
Standing
District of
of the Judicial Conference of the
on
from
Committee
Bar
Columbia
21,
App.
(May
1981); Report
Services,
Legal
E
Columbia
Judicial Conference
Civil
Columbia,
Legal
the Committee
Civil
Services
re Federal Cutbacks
District of
Poor,
January
Legal
of the District of Columbia
Judicial Conference
Services to
Civil
15, 1980).
(May
at 1-3.
rent,
of re-
right
on those
the tenant
retains
when the tenant defaults
demption. Even after the tenant’s consti-
ments.5
air his defenses before a
right
tutional
NEWMAN,
Judge, dissenting:
Chief
the court has
jury1
respected,
has been
merits, may
he
a final order on the
entered
plurality opinion
misstates the cen-
occupancy by proffer
regain
right
his
being
whether the
tral issue in this case
time before execu-
arrearages
to strike a tenant’s
empowered
City Corp.
tion. Trans-Lux Radio
Ser-
posses-
and enter a
D.C.Mun.App., 54 A.2d
Parking Corp.,
vice
landlord,
sion in favor of a
the tenant
when
principle
This
is both “well-es-
comply
has failed to
with a
applica-
“entitled to liberal
tablished” and
the court as
requiring monthly payments to
jurisdiction.
v. Warren
tion” in this
Smith
pendente
for the landlord
lite. The
security
D.C.Mun.App., 126 A.2d
Corp.,
Petroleum
quarters
plurality opinion
first three
(1956). Yet
the court holds
today
down the straw
knocking
is thus devoted to
deprived
that a tenant
striking pleadings
man
sanction of
that the
without an
occupancy
when a tenant fails to
never authorized
that he is entitled to remain on
show
Having
with a
pen-
failure to make
premises, because of
plurality
posed
easy question,
itself
time,
security payments on
even
dente lite
arrives at a facile answer.
the defect before
when he offers to cure
However,
price
this is
done
light
harm is done.
any significant
disregarding the crucial circumstance of
preju-
suffers no
the fact that the landlord
proffered
this case:
full
error, and with
dice if the tenant cures his
pro-
under the
payment of the amount due
interest
regard
paramount
trial,
affording
thereby
tective order before
merits,
such an
providing
*14
exactly
degree
the same
the landlord
result cannot be
and extreme
anomalous
he
had if the
security
would have
countenanced.
time. The reader is not
had been made on
succeeded, our
always
it has not
Although
the end
even
of this fact until near
apprised
justice aspires
oppor-
to afford
system of
Even at that late
opinion.
of the plurality
judicial
to seek
vindi-
tunity
for
citizen
merely reported,
fact is
never
point, the
legal rights
his
cation when he believes
of full
again.
proffer
be mentioned
The
recently,
At
until
being invaded.
least
studiously
is
excluded from
payment
gradual
broad-
dominant trend has been
to the
plurality
pertinent
factors the
deems
system.
judicial
to the
ening of access
sanction.
appropriate
choice of an
others,
pro-
citizens
Among
impecunious
fact,
of the extreme sanc-
application
In
appel-
as
ceeding
pauperis
in forma
—such
with the
only
eviction is not
at odds
tion of
opening
from the
lant —have benefited
doctrine,
unnecessarily
but
redemption
present,
only
At
the courthouse doors.
harsh as well.
unjustly
of lawsuits
myriad types
one
routinely
the District of Columbia
party
a successful suit
brings
When a landlord
as a
make advance
required to
nonpayment
for eviction on
appeal
allowed an
inequity
particular
District of Columbia Circuit
The
of a
the federal cir-
order. Because
greater
appealable.
not
if that order is
will be
decision on Janu-
issued the Blanks
plurality opinion
v.
cuit court
states that in Dameron
The
12, 1971,
binding
Associates, Ltd., D.C.App.,
ary
on this court. M.A.P.
it is
Capitol
House
Thus,
(1971).
Ryan, D.C.App.,
spect for court orders is not advanced adequate yet since non-draconian
nificantly, in the
alternative sanctions are available course, the egregious
event of behavior. Of
court’s decision will have conse- important It falls most
quences for some tenants. means,
harshly on those of the most modest keep- greatest difficulty
who will have the protec- under a
ing up with whose poor
tive order. But will not
claim or defense is unmeritorious end, he would in
be worse off since event lose the amount covered occupancy. well as the
order as unfair principal permit effect is thus expense at the
enrichment of
an a meritorious de- indigent
fense, by denying him justness
show the of his cause. join such a bringing
I cannot about result.5
deplorable
KELLY, Judge, with whom Associate
MACK, joins, dissenting: Judge, Associate in Davis v. Rental
For the reasons stated
Associates,
(1981), I
D.C.App.,
would reverse of discre- it was abuse
tion not to vacate the of default to a on the merits. proceed CORDERO, Appellant,
Rowland STATES, Appellee.
UNITED
No. 80-594. Appeals.
District of Court Columbia Dec.
Argued
Decided Jan. *17 opinion. separate by Judge in Part II of his expressed Ferren 5. I share the views