*2 however, granted the motion and ordered Before KELLY tenant premises the to surrender the REILLY, Chief Retired. Judges, 31st, but stayed the January 2, order to permit the note appeal. CURIAM: PER This order was dated December summary judg- from a appeal This by in an action possession brought ment for The tenant contends that the trial Building, Inc. against Brawner a tenant court erred granting possession based not a restaurant in the basement of a operating the upon causes of action forth in the pursuant building office to a downtown complaint, upon but a motion at a seven-year written lease for term from of filing ground stated a 1968 to December On upon an event which yet had not 10, 1975, several July months before occupancy occurred —continued after was to expire, began lease expiration date the lease. We ap find for possession, alleging action in its com- pellant’s prematurity argument persuasive. four plaint that the tenant was months in Tatum In D.C.Mun.App., 61 payments on arrears rental and had breach- (1948), A.2d we observed: answer, In ed a covenant in lease. think rights and the any the tenant denied default breach and status condition of jury trial. He also filed an demanded by be tested the facts they as damages supplemental based on filed, existed suit was agreement and business harassment. On by developed what what plaintiff 23, 1975, both actions were consoli- accomplish was able to between the filing for trial on tenant’s motion and and the time of the trial. In two was set but continued until Janu- cases, day, other decided this we have 12, 1976. ary rulings. made similar This is in conform- Building Brawner then moved for and ity with rule open which is hardly protective requiring that no suit question, begun can be registry the tenant three a cause of action plaintiff. accrues to the back months’ accrued rent also the (Footnotes omitted.) regular rent on or before the first of each Had the landlord waited until after the succeeding month thereafter. The tenant December 31 termination date and then depositing the complied, three months’ original moved to amend its complaint on regular in mid-November and the rent for ground that the tenant had not vacated on the first of December that month. premises, appears that a right of When the case not heard on the date action would have accrued under trial, landlord, De- originally set for 45-910.1 § 9,1975, partial moved for a summa- cember accept We cannot effective lessor’s con ry judgment, that its own terms tention is moot ground because premises longer occupied by terminate December 31. On that are no the ten ant, opposition, unequivocably tenant filed an assert- for the latter never con previously agreed the landlord had ing possession, ceded and that in immediately to renew reliance moved for summary reversal. summary proceed- Ejectment shall fail 45-910. or refuse to surrender ings. may bring the leased ejectment an action of to recover any term Whenever [Superior] in the tenancy expire, shall be shall termi- aforesaid, as and the tenant nated notice Manchester, its motion for a D.C.Mun.App., lord filed Hohensee denied, 75 S.Ct. Super.Ct.L&TR. 13(b)], U.S. con- cert. [see A.2d Hence, we deem tending L.Ed. raised by origi- issues v. United Atkins would be moot- nal Holding Cor v. Miles (1971), and Dietz and that a A.2d as D.C.App., 277 poration, accord- *3 of mootness holding for the distinguishable, be appropriate. The trial court ingly voluntary grounded upon cases those was in and the motion.2 agreed, leased tenants from the departure the trial court’s of I believe controversy a substantial Here properties. imminent of the lease to expiration exist and landlord between quite proper. majority The re have been persists. Cf. Atkins v. United still and exclusively opinion on the of this court’s lies States, supra at 205. in Tatum v. predecessor D.C. Accordingly, judgment for case, Mun.App., A.2d In that aside, remanded and set jurisdic- complaint had been filed before a a expedited an trial date: to set instructions necessary precondition tionally into existence. Neither a cause of came remanded. and Reversed a of action right action nor had accrued to concurring in at the time the was plaintiff complaint part: dissenting in and part Tatum, in and the court properly filed a deficiency such could not be cured reached, but re- in the result concur development.3 later for the with the basis disagree spectfully decision. however, Here, the landlord had both a action and a of right cause of action when complaint possesso- in the landlord’s sure, complaint was filed. To be when its July 10, It was filed ry action initiated, was possessory action more grounds: of nonpayment two cited and one-half months than five remained $3,281.60, of and amount in total due Nonetheless, the expiration the lease. date provision (based on of assertion an existing fact which a matter of was was business lease) that the tenant’s restaurant dispute. and record in a re- being way which conducted was “reputa- adversely on the landlord’s flected delays in a resulted When quality of both of service of excellence days past expiration the date of sought The landlord good will.’’ and quite properly landlord of contin- dispute expedited that fact the court’s called attention early until December. unresolved ued for partial summary motion its mind It must be borne in part By of the record.1 was nature, 31, Super. see terms, expire on December actions was its 1, 2, 10, TR. the rules set for A been Ct.L 9, 1975, 12, governing the land- them are be “construed On December $1,529.00.” 10(c), incorporated Super.Ct.Civ.R. vacated the of sum which Rules Rule of and Tenant to do so. in the Landlord He elected not latter, provides in copy of instrument Pledger, A written Jones 3.In part all pleading is a thereof for exhibit circuit court 363 F.2d purposes. stated: entered De- right affording 2. The right a remedial of action is day (the on which the cember terminated), infringement right legal redress stayed its effectiveness was person, belonging whereas a to some permit- tenant was until operative of action is facts cause premises on condition ted to remain [Quoting give of action. rise such Registry “that Co., St. v. Ohio Edison 158 Ohio Fielder January, and on of first (1952).] 109 N.E.2d he has month thereafter until each just, speedy, inexpensive secure the de- tion of the reason, case. For this my Super.Ct.L termination action.”4 view, must be Although &TR. 1. the landlord could not Accordingly, I set aside. concur in the re- have filed sult. (under the lease 1973, 45-910) expired, between controversy here the fully at issue the passage of time change legal theory to “a mere
gave rise Dewey same state of facts.”
Clark, D.C.Mun.App., 61 A.2d
(1948). It would been imprudent not to have immi- called the al., Appellants, Morton FUNGER et of the lease to
nent termination the court’s *4 attention, and it been both arti- pointless ficial and court to have al., Appellees. Albert et MAIZELS controlling ignored such fact of record. justified the trial court was wholly believe considering the expiration of the lease in Columbia Court of ruling motion for Sept. 1,
Although I disagree with the reasoning; I believe the result is correct reason. Super.Ct.Civ.R. 56(c)
another au- summary judgment only
thorizes where genuine
record reveals “there is no fact”
issue as material and the mov-
ant “is entitled to a as a matter law.” The tenant interposed a defense
of detrimental reliance based an al-
leged promise by oral the landlord to ex-
tend the term.5 The tenant’s support,
had some record and was nec-
essarily barred the statute of frauds.6 Amberger Wohlfarth,
See Inc. v. District Columbia, performance (partial complete un- may
der an oral contract remove case statute). applicability
from the issue
genuine of material fact thus was to the
presented and its resolu- indispensable to proper disposi-
tion was Super.Ct.Civ.R. 8(f), incorporated by judge also ref- 6.A different denied an earlier mo- Rules, erence in the Landlord and Tenant summary judgment, states pleadings stating “All shall be so construed as in an 1975: justice.” to do substantial Upon mo- summary judgment, opposition tion for 5. No such defense was set forth in the tenant’s thereon, arguments filed thereto and and it complaint; to the answer the claim appearing to the satisfaction of the Court advanced in the tenant’s alleged agreement that the oral contended for separate against dam- performable defendant within one ages. (That action was consolidated with the year it is without the Statute of action.) Frauds. .