Penny v. Penny

NEWMAN, Decided Oct. Before BELSON and

SCHWELB, Judges. Associate NEWMAN, Judge: Associate Penny appeals the of her denial possessory motion to dismiss a action filed Penny, daughter, by Mary in the Land- Branch and an order re- lord Tenant quiring Louise to undertak- $1,000 ing in the under Su- amount 5(c).1 L & T We that an per.Ct. R. hold upon interposi- order entered plea posses- in a suit of a of title tion and Tenant Branch is sion in Landlord interlocutory appeal. find subject to We evidentiary there basis for setting the amount therefore, we vacate the under- Court, 5(c) provides: shall be filed Ct. L & T R. al days be thereafter and case shall desiring within interpose A defendant writing, Division for trial on an file such under certified the Civil must oath, accompanied it is expedited Upon certification that basis. failure to so file good filed delay faith and for the undertaking, plea of the Clerk shall strike the application for an must also file an good shown title unless the Court for cause undertaking, or for waiver of within the under- shall extend the time undertaking to form and amount be such taking may filed. approv- approved by Upon the Court. such in vivorship wrongfully was pro- order and remand for further and that she ceedings opinion.2 Penny consistent Louise possession with this of the house. seeking filed a counterclaim a declara- also

I. Penny right- the sole tion that William was N.W., Street, upon The home at 1611 13th was ful of the house and that his owner 1972,3 purchased in Penny with the names William his inter- death Louise succeeded to Penny Mary Penny appearing joint and house, alternatively, in the or that est deed, trust, tenants on the deed of deed of Penny equitable life estate in Louise has an policy. trust note and the title insurance property and that she be allowed to Mary Penny Penny and William were sister in the house undisturbed until she remain brother, and and two of Louise and Charles dies. Penny’s eleven children. After the home pending, ejectment While the suit was purchased, Penny was Louise and Charles who, Mary Penny attorney secured another along Mary moved into the house with and action, of the Division sent unaware Civil Penny, William and some of the other chil- quit Penny thirty day Louise notice to house, parties paid dren. Which for Penny and vacate the house. When Louise taxes, property upkeep and maintenance vacate, Mary Penny failed to filed a com- years, over sharp dispute.4 is in plaint possession in for the Landlord and Penny, seventy-three years Louise now response, Penny Tenant Branch. Louise old, has lived the house since 1972. Her filed a motion to dismiss. husband, Penny, Charles died in 1977. hearing A on the motion to dismiss was Mary Penny years claims that eleven about 10, 1986, Judge held on December before ago physically she was forced to leave the rejected Judge Mitchell. Mitchell Louise family dispute, house after a and has not Penny’s arguments posses- the suit for permitted Apparent- been to return since. duplicative pending eject- of the sion ly, Mary Penny’s two of children remained Division, ment suit the Civil and that the following departure. at the house her Wil- juris- Landlord and Tenant Branch lacked Penny liam died intestate on March diction over the case because no landlord A without a wife or children. mort- relationship tenant existed between gage policy purchased by life insurance parties. Penny paid mortgage upon William off the his death. However, Judge that the Mitchell found presented “plea circumstances of title- 8, 1986, July Mary Penny On filed case,” party interposes type wherein a in ejectment against Penny action Louise posses- plea response of title in to a suit for siblings Superi- her four of the D.C. cases, L & T R. Court, Division, sion. In such Ct. claiming full title Civil 5(c) requires certify the defendant to as the sole survivor the house “good plea of title is made faith and joint tenancy between herself and William answer, delay and must not for also Penny. Penny In her de- nied, alia, undertaking or Mary file an for an for inter and William undertaking.” Contingent upon Penny joint right were tenants of sur- waiver of with reject jurisdiction Penny and William entered a 2.We for lack of Louise Pen- purchase property on December contract ny’s other contentions that the Landlord and 6, 1971; February, settlement occurred in jurisdic- Tenant Branch should have declined relationship tion because no landlord tenant Penny Penny that Charles 4. Louise avers pleadings ejectment existed and the money Penny provided William all of the inconsistent; possessory allegedly actions were house, mortgage pay- purchase of the and that the Landlord and Tenant Branch ments, expenses, Mary and that taxes and possessory should have dismissed the action be- Penny to these costs. never contributed duplicative previously filed cause it was that she "contributed monies to- claims ejectment improperly le- action and shifted the including expenses premises,” ward the payment proving gal and economic burden of mortgage installments of two overdue Penny. outstanding property taxes follow- and the ing real Penny's death. William of an monthly payment title on compliance the undertak- defendant’s more than undertaking almost times two order, course, unless a waiver granted Louise monthly income. We obtained, stay of title effects stay Penny’s motion proceedings in the and Tenant the Landlord undertaking pending appeal. and Branch while the certified case is on the transferred to Civil for trial Division II. ownership. L&TE. question Super.Ct. of 5(e); A.2d 697 Turner v. 461 Day, see A. (D.C.1983). Accordingly, Judge Mitchell McQueen v. recently held This gave Penny to file a Louise leave 172, Co., 173 A.2d Realty 547 Lustine undertaking. application an title and an or- (en banc), (D.C.1988) “protective summary pos- in actions for ders entered Thereafter, Penny for re- Louise moved Branch the and Tenant Landlord session the to consideration of denial of the motion interlocutory appeal” be- subject to are also filed title and an dismiss and test set out two-pronged cause under the application requesting of the under- waiver Brands, Inc., 450 v. American Carson In the taking supporting with affidavit. 993, (1981), L.Ed.2d 59 101 S.Ct. 67 U.S. Penny she has affidavit Louise swore that effect” of “practical such orders the savings and that source of her therefore, appealable injunction and are an security income is a check social respect injunctions under orders with to the amount of $515. (1981).5 ll-721(a)(2)(A) D.C.Code § 15, 1986, hearing on At a December McQueen, pretrial found that Judge Mitchell denied the to dismiss motion in the Landlord protective order entered and the of the under- waiver 1) appealable Branch because and Tenant is taking. judge The an under- reasoned that “clearly the effect’ of an ‘practical it appropriate in this case because it tenant enjoins in that the injunction legal [Mary title and “all interest is rent, given specified amount in pay a Penny] Penny asserting an and [Louise is] intervals, particular (generally, in a manner equitable theory right has to be court),” supra, 547 registry of the into the proven only way person and the can be 176-78; 2) the A.2d at it threatens protected require pay is some [to] [her] “serious, irrepara- perhaps the tenant with money.” Transcript, Supplemental consequence” losing possession ble Penny’s Upon Mary Record No. at 25. normally property because the court the request, Penny he ordered pleadings and enter the tenant’s will strike into Registry month if in favor of the landlord she judgment Court, alleg- without offset for monies comply Supra, with 547 fails to the order. edly by Mary Penny owed to Louise A.2d at expenditures years, in for house over the ” “McQueen protec It is true that a posting lieu of a bond. of the is an device tive order ap- Penny then instant filed the 5(c)” undertaking court whereas “Rule contending erred peal, authorized,6 pro trial court statutorily and a order is damages denying the dismiss by motion to covers rent and tective order lost waiving covers these by its discretion not an order abused whereas created the cloud the title undertaking given plus circumstances items differ- Notwithstanding these alternatively, conditioning plea.7 her ease or Thurston, ll-721(a)(2)(A) (1981) v. Compare Habib authorizes § 5.D.C.Code ("A ‘equitable (D.C.1985) protective is an order “interlocutory appeals to hear this court from Co., ”) Realty 139 U.S. and Bell Tsintolas tool’ App.D.C. Superior of the District orders Court 101, 109, (1970) F.2d (A) granting, continuing, modifying, Columbia— refusing, remedy”) "equitable (protective is with dissolving refusing or or or to dissolve 5(c). T R. Ct. L & injunctions." modify protective merely is 7. "An enees, rent, registry their function and of the court in lieu of and to same: protect parties’ withholding delaying to balance and “refrain from legitimate competing interests over the required payments.” Compare Super. Ct. litigation. Compare course of the 5(c) McQueen, supra, L T R. & supra, (Rule 5(c) 461 A.2d at 699-700 Second, noncompli- A.2d at 177. as with parties’ legit “seeks to accommodate the order, ance of a where the interests”) imate competing but with Ha high amount of the is set too bib, (a 517 A.2d at 12-13 determined, erroneously or is otherwise “designed order is protect parties both defendant lose home for failure pendency of a landlord-tenant requisite payments make absent protects action.... This device the tenant opportunity interlocutory appeal, for not- falling risking from further in arrears and withstanding whatever meritorious defens- lease,” provides forfeiture of her and may possession. es to the for she suit “compensation possession landlord 'for the 5(c) Compare Super. L T Ct. & R. ”) period litigation’ he loses of McQueen, supra, 547 A.2d at 178. (quoting Capitol Dameron v. House Asso reason, foregoing For the we hold ciates, 580, (D.C.1981)(cita 431 A.2d 584 5(c)undertaking subject Rule orders are omitted) tions Poretsky and Mahdi v. appeal respect injunctions as orders with Management, 433 A.2d 1088 ll-721(a)(2)(A). Having under es- section (D.C.1981) (“ requiring ‘Protective orders jurisdiction, tablished our we review prospective payments into the registry trial court’s order for abuse of discretion. were preserve devised order to some Turner, 699; Super. supra, 461 A.2d at see rights reasonable balance between the of 5(c) (the L T trial court must Ct. & R. ” throughout landlords and tenants’ the liti approve the “form and amount” of the gation) (quoting Arthur E. Morrisette undertaking). Hunt, Real v. Estate 109 D.W.L.R. 901 (No. 23841-81, 8, 1981)) L April & T B. Bell, supra, (the protective 430 F.2d at 482 may placing be used “to avoid one L This court has construed Ct. & party disadvantage during at a severe 5(c) require “presumptively T R. an un- period litigation.”). For the sup- dertaking, subject to circumstances determining appealability, we find no mean porting the defendant’s for McQueen ingful distinction between the Turner, supra, 461 A.2d at 699. waiver.” 5(c) protective order and the Rule undertak persuad- The defendant has the burden ing order. ing of the undertak- the court that waiver However, appropriate. Id. Furthermore, independent of the close [ojnee per- presented a defendant has a McQueen analogy between or- waiver, argument for or for an 5(c) orders, suasive undertaking ders and Rule limited, example, to the 5(c) find that Rule orders sat- property, isfy fair rental value of the requirements “prac- of the Carson court, in sound tical the trial the exercise of Supra, effect” test. 450 at 83- U.S. First, discretion, may plaintiff 101 shift to the S.Ct. at 996-997. an under- order, order, producing that a like a burden of evidence “practical injunction” greater required, plain- effect of an amount is for the enjoins pay speci- position that it the defendant to usually tiff will be in a better regular possible fied amount on a basis into the than the defendant to evaluate monthly payment damages order in the amount of a cloud on the title and related (citations fashioned to assure reimbursement to the land- supra, costs. omitted); 461 A.2d at 700 occupancy lord for the value of fair use and during against Hollins, U.S.App. see Scheve v. 131 pendency possessory of a action 160, 163, (1968) (plea D.C. 403 F.2d a tenant. An covers more. plaintiff statute affords successful interposes It is used when the defendant right recovery mesne rent and dam to obtain compensation of title and serves to assure ages). plaintiff for lost rent but for the also (D.C. Habib, damages, including an assessment McNeal Bell, consequences 1975) order); of a cloud on the title. (protective order); Scheve, (protective F.2d su at 482 Id. at n. 5. order). (undertaking pra, 403 F.2d at 569 requested a waiver based by Super. Ct. cases covered following on the had assertions: she lived (or 5(c), fair L. current rent & T.R. lease, in the house since 1972 without be) value, may the case market rental permis- Penny’s rent or provides starting point from which other sion; Mary Penny had never contributed to weighed. Other considerations the mortgage and maintenance of the factors include: house; mortgage is fully paid; her poverty current level income of $515 costs, damages possible the defen- month; purchased, since the house was income, pay- dant’s and the amount of any rent; had never received presently being ment are made Mary Penny’s ejectment and as a result of mortgagees. guiding principle The against Penny, action there awas is, course, at a the court arrive preexisting cloud on title. The trial will, reasonable which judge strength denied the waiver on the of time, impose fair at one and the same a fact Penny the that whereas Louise was defendant, obligation permit the the on “asserting right,” theory an merits, case heard the and as- to be on legal “clearly in Mary was vested” will, plaintiff sure if he he the that wins Penny. possession, at having been denied interim previously This court has held that intervening rent. least receive reasonable the “merits plea of the defendant’s of title Mazo, Thompson App.D.C. 137 U.S. determining be in relevant whether a 226, (1970), 421 F.2d cited with particular undertaking obligation is a fair Turner, approval supra, 461 at in A.2d impose Turner, to on a defendant.” su 698-99. then, pra, Plainly at 700. A.2d the case, paid no this rent was and there- merits of the must be also relevant to fore trial court no benchmark to the had the initial decision whether to waive the work The record discloses that there from. undertaking. therefore, We conclude that lease, oral was neither a written or nor the trial court did abuse its discretion agreement concerning pay- type denying in the waiver. parties.8 the Fur- ment of rent between Nevertheless, agree we with Louise Pen- thermore, was no evidence on issue ny that the trial court abused its discretion presented hearing. the 15th at December setting the amount at regard With to the amount of the undertak- $1,000 per month. See Johnson v. United following ing, we have statements States, (D.C.1979). 398 A.2d 354 This case Penny’s Mary counsel: presents the anomalous “landlord-tenant” week, I Friday of last went over and [O]n proceeding parties’ wherein relation- got proper the the assessed value ship reveals a none of attributes Now, $80,125. ty Your Honor which generally determining looks to you normally would have would note undertaking. Typically, amount of the $80,000 mortgage, you on a if pay require pay “the court will tenant would get it least be rent, $10 could agreed upon monthly or sometimes a thousand, likely, per thou Mahdi, $15 more supra, 433 lesser amount.” thousand, sand, (protective order); would be at $10 which at see su- thousand, (undertaking order); if pra, per 461 A.2d at 700 month. And $800 $15 lease, following agreement or check the conceded absence an written to the sought: ground(s) upon possession agreement pay is rent in Memorandum of added). Mary (emphasis at 1 Pen- Points and Authorities. Record at 38. Never- theless, ...” Record complaint possession ny portion requesting of the form she filed her left blank (Landlord using of the amount of rent in arrears. a standardized form Tenant indication 1), tenancy inquires: by Id. Form which “If it per Now, would be month. er», $1200 398 A.2d 354. We vacate the under- would even take the middle say taking road and order entered the trial court and per thousand dollars month. Your proceedings remand for further consistent Honor will further plaintiff note that this opinion.10 with this has been the prop- sole ... owner of this SCHWELB, Judge, Associate erty twenty po- months and has lost concurring part dissenting $20,000 tentially rents, which we have part: way getting. of ever I say So would to His Honor that on the defense This is a most unfortunate case. title, they required should be to take Penny Penny’s is one of Louise eleven chil- an undertaking in the amount of twice dren. seeking elderly She is to evict her the value of property which would be mother, Louise Penny, living who is required and should security, social from the home in which the registry rent into the of the Court in the mother has lived for some time. It would sum of a thousand dollars month. be edifying more to resolve this controver- Transcript, Supplemental Record No. at sy by negotiation than continuing this 22. These provide statements do not an protracted litigation. Nevertheless, my evidentiary setting basis for the undertak- colleagues out, point controversy over $1,000 per month.9 undertaking really protec- a kind of — governed tive by equitable order1—is prin- present also did not evi- ciples. Believing that the dence on the results of this fair rental value or the fair equitable, case date have been than market value of less arguments the home. Her respectfully I part focused dissent from a instead on the of the for waiv- er, majority’s holding. although she did contend that the $1,000 high amount was too relative to her I event, income any and in should be offset by spent monies she on the house. It would purest sophistry be the sug- to gest that evidentiary the base on which the light In atypical of the rather situation any appreciable rests has sub- presented by facts, particularly these the representation stance. We have a by the any absence of point reference from which daughter’s counsel that the assessed value to set the undertaking such as rent or $80,000 plus change, the house was that mortgage payments, the trial court abused size, mortgage on a that the ordering its discretion in to $1,000, per would be or $10 $15 $1,000 pay per month absent evidence con- month, per (implicitly) $800 $1200 cerning what amount would a constitute that the fair rental value would be in the fair market rental by value balanced the general neighborhood. same Based on that likelihood Penny may prevail that Louise proffer, Judge required Mitchell the moth- merits, on the as well as the other relevant pay er to month. circumstances that the trial court should deciding consider in waiver or amount of Counsel for the mother never contested undertaking. accuracy proffer, See 461 the of the either as to the (citing Thompson, A.2d 698-99 supra, 421 value the house or toas the formula 1161). Johnson, F.2d at generally daughter’s See su- which the attorney presented to 9. Our decision in this case should not be under- in a sum twice the amount of Louise Pen- preclude judge sitting stood to a trial in the ny’s monthly family income in this unfortunate making Landlord and Tenant Branch from use dispute. recognize Since we proffers setting protective receiving nothing during has been the time that orders, particularly proffers where the are un- court, stayed by the was this the Here, merely proffered contested. counsel the expedite trial court should this matter on re- property, assessed value of the from which he mand. $1,000 per payment. derived the month interchangeably 1. I use the two terms in this disposition, express opinion 10. Given this we no opinion. concerning appropriateness the of an undertak- undertaking4 in the court. The defense seek of the provided evi- modification counterproffer dence or to fair rental in which light as less than ideal manner In ap- value. the trial court and even on its amount was determined.

peal, objection the mother’s real to the

amount of the was that she II pay not could afford to it.2 any if Although probably there is little My colleagues acknowledge protec- long it so after thing can do about that we tive orders are often set in the Landlord fact, note appropriate think it I also proffers Tenant Branch on the basis problems by stay en posed now out, They point of counsel. correctly how- tered in December 1986—al ever, agreed in most such cases the any protective years ago most three provides rent at least benchmark from —of peri undertaking. order For that entire or which amount of the order time, proceeded has od of while the case may be derived. See Bell v. Tsintolas Re- Co., for alty pace through a less our U.S.App.D.C. than frenzied (1970). case, docket, present F.2d In appellate midable mother Having being no such benchmark. question lived in the house in without effect, proved nothing, says majority required daughter anything daughter protec- entitled to deposit any money the court. The tive order in amount. device, under equiv case in this is the substantial question difficulty. The is not from free alent, by the main was “created courts to however, my opinion, figure derived litigation equitable tain an balance representation from an uncontested Rent Davis v. zero, possession.” suit equitable counsel is more than even Associates, (D.C. al where, here, proffer is based on a (en banc). 1983) reliability par formula whose This balance with the Edsel as Car If sorely Year. has been tested here. challenged counsel for the mother had his assume, solely Let sake of us adversary’s proffer, daughter might argument, daughter’s counsel’s appraiser, have obtained the an services of self-serving, and valuation and formula are perhaps or could have testified herself as monthly protective proper that a order premises. to the fair rental value of the in In would have been the amount $500. See, e.g., Indemnity Accident & Hartford stay, passed since the the months Mfg. Jewelers, v. Dikomey Co. $18,- daughter already is “out” about 1076, (D.C.1979) (owner’s valua- Moreover, 1986, the 000. in December property tion of his or her admissible with- daughter’s complained that at that counsel qualification other ownership).3 out than already in the time the mother had lived majority’s approach, Under the which in nothing period twenty house for a applies “plain theory, effect error” the months. profits substantially mother from her fail- Bell, supra, Wright’s Judge In words result, object. ure to I find that and the rent protective purpose of the we feel the daughter prac- notion that the must for all payment requirement ordinarily will purposes again, tical start all over even simply by requiring only fu- well served inequitable setting more than the of an date payments falling due after the ture an on the basis of unreliable paid into the is issued to be proffer. I order unchallenged but would there- affirm, registry. fore leave the mother free to but stayed, protective proffer order has been im- 4.Since 2. The mother did that she made ought contemplated proceedings provements the house to be are and since further majority's taken into account. resolution and under both mine, under consequences two practical course, case, probably approaches same. ownership are is issue. 3. U.S.App.D.C. 110, premises period at 430 F.2d at 483 value of the for the when added); accord, Davis, (Emphasis enforced. no “ordinarily” 456 A.2d at 823. The word must live in the real Accord- We world. implies exceptions, that there are and at ingly, agree majority I that direct- with the blush, might first one conclude that a case expedition in all the trial court about in which protective there has been no reasonably that we can do late years ordinary for three is not but happened what in 1986. This case about exceptional. instructs, however, that where a Bell, According to the court the reason stayed pending' order or measure is similar limiting protective prospective orders court, appeal, assistance rent is that counsel,6 attempt should to ensure alleged inclusion of back rent to be due entered, some interim order is depart would pur from this prejudice any party lasting and that pose, since the cannot landlord recover passage from the of time be inevitable possession,[5] back rent in a suit for kept avoided or to the minimum. penalty would be the nature of a the tenant. U.S.App.D.C. 430 F.2d at 483. present daughter

In the case it is the who

might reasonably being claim that she is

penalized where she has no securi- received

ty years for almost three while mother occupied daughter a house to which the legal daughter holds title. If the ultimate- COREAS, Appellant, Florencio ly prevails, unlikely it is that she will ever receive redress for the financial loss which STATES, Appellee. UNITED she will have incurred the time that has been enforced. Under No. 87-1166. circumstances, protective these order ret- Appeals. District of Court of Columbia (as roactive to December when majority recognizes) in the Argued May proper appropri- amount would have been Decided Oct. ate, may appear theoretically justifiable superficially (though not sentimentally) appealing.

Theory reality, often founders on how- If

ever. order retroactive to entered,

1986 were now the mother would

probably comply be unable it. If pay, likely

she were unable to then the

practical consequence would be an order

compelling premises, her to vacate Poretsky Management,

Mahdi v. (D.C.1981),

A.2d 1085 without the mother litigate having opportunity

first Moreover, claim of title.

merits of her

daughter would not recover the fair still daughter requested any providing Ct. L & T R. 6. Counsel for the never

5. But see relief, money complaint may emergency expe- include a claim for a kind or even arrears, provided judgment dition, based on rent stayed order was after served, personally has been defendant or defense of or has asserted counterclaim recoupment. set-off or

Case Details

Case Name: Penny v. Penny

Court Name: District of Columbia Court of Appeals

Date Published: Oct 24, 1989

Citation: 565 A.2d 587

Docket Number: 86-1655

Court Abbreviation: D.C.