Brown v. Pearson

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CV-540
GARDENIA BROWN, APPELLANT,
V.
ROY L. PEARSON, JR., APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(LTB-11162-14)
(Hon. Curtis E. von Kann, Trial Judge)
(Argued November 26, 2019 Decided April 2, 2020)
Dorene Haney for appellant.
Roy L. Pearson, Jr., pro se.
Before GLICKMAN and THOMPSON, Associate Judges, and STEADMAN, Senior
Judge.
GLICKMAN, Associate Judge: This appeal is from the Superior Court’s
suspension of a protective order requiring a tenant to make rent payments into the
registry of the court pending the outcome of the landlord’s indefinitely stayed action
for possession. The dispute has a long and complicated history that bears on the
issues before us.
2
Appellee Roy Pearson, Jr., has been a tenant of appellant Gardenia Brown
since 1999. In the ensuing years, Ms. Brown raised Mr. Pearson’s rent a number of
times, relying on the claim she filed in 1997 for exemption as a small landlord from
the District’s rent stabilization program. However, Ms. Brown did not provide Mr.
Pearson with a copy of her exemption at the inception of his tenancy or for many
years thereafter. The Rental Housing Act of 19851 and its implementing regulations
required her to do so. 2 In 2014, based on this omission, Mr. Pearson filed the first
of four tenant petitions in the Rental Accommodations Division (RAD) of the
Department of Housing and Community Development against Ms. Brown for
unlawful rent overcharges. Also in 2014, Ms. Brown filed the present action for
possession in Superior Court based on Mr. Pearson’s withholding of rent and on her
intent to occupy the rented premises herself. The court stayed the action pending
the outcome of the administrative process. 3 That process is still going on, and the
stay remains in effect.
1
D.C. Law 6-10, § 205(a)(3)(C) (July 17, 1985) (codified at D.C. Code § 42-
3502.05(d) (2019 Supp.)).
2
14 DCMR § 4101.6 (2019).
3
See Drayton v. Poretsky Management, Inc. 462 A.2d 1115, 1120 (D.C.
1983) (holding that “[a]pplication of the doctrine of primary jurisdiction requires”
| (…continued)
3
In addition to entering a stay, the court entered a protective order requiring
Mr. Pearson to pay the amount of his rent, $1,320 each month, into the court’s
registry pending the outcome of the case. As of early 2018, Mr. Pearson had paid
over $59,000 in compliance with the protective order. Meanwhile, an administrative
law judge (ALJ) rendered two rent overcharge awards to Mr. Pearson, for $9,706.72
and $11,941.47, representing roughly sixteen months’ rent in total, due to Ms.
Brown’s failure to inform Mr. Pearson of her small landlord exemption. Mr. Pearson
appealed both awards as inadequate. The Rental Housing Commission (RHC)
affirmed the first award but has yet to render a decision on the second.
In February 2018, Mr. Pearson told Ms. Brown he would not make protective
order payments until she paid him what she owed him. When Mr. Pearson then
withheld his March 2018 payment, Ms. Brown moved for sanctions for his violation
of the protective order. With the consent of the parties, the court released funds from
the court registry to pay Mr. Pearson the amount of the first award. In April, the
court denied Ms. Brown’s motion for sanctions and, in doing so, suspended the
(…continued)
the trial court to stay a landlord’s action for possession for nonpayment of rent “when
there is pending before the [Rent] Administrator or the [Rental Housing
Commission] a challenge to a rent increase that bears upon the amount of rent owed
by a tenant defending [the] possessory action” until there is final agency action on
the matter).
4
protective order until such time as she paid Mr. Pearson the second award. The court
denied Ms. Brown’s motion to pay him that award from the protective order funds
that had accumulated in the registry. Mr. Pearson has continued living in the rented
premises without paying anything into the court’s registry, or to Ms. Brown, since
March 2018 (as of now, a period of roughly 24 months).
Ms. Brown has appealed the indefinite suspension of Mr. Pearson’s protective
order payments, and we vacate the suspension and remand. Although the suspension
is not a final order – in that it did not terminate the litigation, which continues to be
stayed due to the remaining RHC proceedings – we conclude that we have
jurisdiction to entertain the appeal under the test adopted by the Supreme Court in
Carson v. American Brands, Inc.,4 which this court has followed and applied in the
landlord/tenant context. Ms. Brown’s appeal satisfies that test because the protective
order has the “practical effect” of an injunction, and – in the unusual circumstances
of this case – its continued indefinite suspension threatens to cause Ms. Brown
“serious, perhaps irreparable, consequences” that “can be effectually challenged
4
450 U.S. 79 (1981).
5
only by immediate appeal.”5 As to the merits, we agree with Ms. Brown that the
indefinite suspension of the protective order was an abuse of the court’s discretion.
I.
In 1987, Ms. Brown purchased a condominium located at 3012 Pineview
Court, N.E. This was (and apparently has remained) her only rental unit in the
District of Columbia, and in January 1997, she filed a claim of exemption as a small
landlord from the District’s rent stabilization program. 6 In October 1999, Ms.
Brown leased the condominium to Mr. Pearson. At that time, she neglected to
provide him with a copy of her small landlord exemption claim, which the rental
housing regulations required her to do.7 She relied on her exemption, however, in
raising Mr. Pearson’s rent at various times during his tenancy.
5
Id. at 84 (internal quotation marks omitted).
6
D.C. Code § 42-3502.05(a)(3) (small landlord exemption).
7
Id. § 42-3502.05(d); 14 DCMR § 4101.6. Ms. Brown also did not give Mr.
Pearson a copy of a new claim of exemption she filed, allegedly at his behest, in
2010.
6
In January 2013, Ms. Brown decided to increase Mr. Pearson’s rent from
$1,004 to $1,320. She informed Mr. Pearson of the increase five days after they had
argued about the adequacy of heating and heating repairs in the condominium. In
an email, he accused her of violating the Rental Housing Act by retaliating against
him for asserting his right to adequate heating and by not providing him with a copy
of her claim of exemption at the inception of his tenancy. Thereafter, Mr. Pearson
paid the increased rent of $1,320 under protest. In December, Ms. Brown notified
him of another rent increase, to take effect on March 1, 2014, from $1,320 to $1,386
per month.
On February 12, 2014, Mr. Pearson filed a tenant petition with the RAD
against Ms. Brown complaining that his rent had been increased unlawfully. The
following week, Ms. Brown filed and served on Mr. Pearson a notice to vacate the
rental premises by May 15, 2014, so that she could have it for her personal use and
occupancy. 8 Mr. Pearson then withheld his March, April, and May rent, prompting
8
Ms. Brown has asserted that she was planning for her retirement by
downsizing, selling the larger house in which she lived, and moving into the
condominium she leased to Mr. Pearson. Her notice to him was defective, however,
because it gave him a few days less than a full 90 days from the date it was served
on him to vacate.
7
Ms. Brown to file a complaint in Superior Court for possession of her condominium
for failure to pay rent and failure to vacate for personal use and occupancy.
On May 23, 2014, the court entered a Drayton stay pending the administrative
determination of Mr. Pearson’s tenant petition, along with a protective order
requiring him to pay $1,320 a month into the court’s registry until the resolution of
Ms. Brown’s complaint for possession.
Since then, almost six years have elapsed, the stay of the Superior Court
proceedings has yet to be lifted, and the litigation between Mr. Pearson and Ms.
Brown has expanded and become more complicated. In July 2014, Mr. Pearson filed
a second tenant petition, in which he challenged the notice to vacate for personal use
and occupancy. This petition was consolidated with the first petition. Ms. Brown
then voluntarily dismissed her complaint for possession for failure to vacate for
personal use and occupancy (but not for failure to pay rent) and served Mr. Pearson
with another notice to vacate for personal use and occupancy. He did not vacate
and, instead, filed a third tenant petition eight months later, in May 2015, challenging
the notice. He filed a fourth tenant petition in July 2016, alleging that all actions
Ms. Brown had taken against him were retaliatory. Mr. Pearson later amended his
8
petitions with a claim to recover the amount of unlawful rent increases he paid into
the court’s registry after October 2014 pursuant to the protective order.
The ALJ originally assigned to hear Mr. Pearson’s tenant petitions left the
Office of Administrative Hearings sometime in 2015, delaying decision on the
petitions until the case was reassigned to another ALJ about a year later. In
December 2016, that ALJ ruled partly in Mr. Pearson’s favor on his first set of tenant
petitions and awarded him $9,706.72 for rent increases (including interest) from
February 2011 (three years prior to the filing of the tenant petition)9 to March 2014
(the date of the hearing). Mr. Pearson appealed this ruling to the RHC, claiming he
was entitled to recover for all of the rent increases dating back to 1999 (despite the
three-year statute of limitations) and to treble damages because Ms. Brown’s
violations allegedly had been willful. On July 25, 2017, the ALJ awarded Mr.
Pearson an additional $11,941.47 for subsequent rent increases (including interest)
from November 2014 through December 2016; but he found that Ms. Brown had
9
D.C. Code § 42-3502.06(e) (2019 Supp.) forbids claims for any rent
adjustment filed “more than 3 years after the effective date of the adjustment”
(emphasis added). Mr. Pearson argued to the ALJ and in the RHC that, because Ms.
Brown did not properly register as exempt from rent control, there was no “effective
date” for the statute of limitations to apply, as all rents Ms. Brown charged above
the legal rent level were unlawful and thus not “effective.” The ALJ rejected Mr.
Pearson’s argument as “tautological” and “unreasonable,” and the RHC affirmed
that decision.
9
properly registered her property as exempt from the rent control law as of October
31, 2016, so that Mr. Pearson’s legal rent was $1,386 as of January 1, 2017. Mr.
Pearson appealed that ruling too. On May 3, 2018, the RHC rendered a decision in
the first appeal. It affirmed most of the ALJ’s rulings but remanded the case for
more specific findings as to whether Ms. Brown had violated the law willfully. On
remand, the ALJ found she had not. Mr. Pearson appealed that ruling.
To date, the RHC has not rendered a decision on Mr. Pearson’s second and
third appeals. Both parties agreed at oral argument before us that it is highly likely
this court will be asked to review any decision by the RHC, and that there is no
telling when this case will end.
The protective order entered by the Superior Court in May 2014 ensured that
neither Ms. Brown nor Mr. Pearson would be placed at a severe disadvantage by the
long delay. At the end of the day, the funds accumulated in the registry would be
available for Ms. Brown to receive the rent to which she was entitled and for Mr.
Pearson to recover whatever setoff was due to him. Mr. Pearson would not be
evicted for nonpayment of rent. And both parties were protected from the possibility
that, after years of litigation, Mr. Pearson would be in significant arrears and faced
with an enormous debt that he would be unable to pay and Ms. Brown would be
10
unable to collect. As the parties’ disputes dragged on, the protective order remained
in effect for almost four years.
But on April 18, 2018, the court suspended the protective order indefinitely.
That decision came about after Mr. Pearson refused to make his March 2018
protective order payment into the registry of the court until Ms. Brown paid him the
amounts awarded to him in connection with his tenant petitions. 10 Up to that point,
Mr. Pearson had made all of his protective order payments, which by then came to
$59,400 sitting in the court’s registry. Ms. Brown, who had yet to receive any of
that rent money, responded to his refusal to continue making payments by moving
for sanctions and asking that the court strike Mr. Pearson’s pleadings and hold a
hearing to enter a redeemable judgment of possession in her favor. In his opposition
to that motion, Mr. Pearson asked the court to dismiss the action and order the return
to him of all the funds in the registry, or else to vacate the protective order or allow
him to credit what Ms. Brown owed him against his payments under it.
10
It appears that Mr. Pearson was under financial stress at this time because
his unemployment compensation had run out and he was incurring increasing
indebtedness. Previously, in January and October 2017, the Superior Court had
denied motions by Mr. Pearson to release funds from the court’s registry and to
suspend the protective order for two months.
11
At a hearing on the motion for sanctions on March 19, Ms. Brown and Mr.
Pearson agreed that $9,706.72 (the amount of Mr. Pearson’s first award) could be
released to Mr. Pearson from the registry so that he could resume making the
monthly payments required by the protective order. The court entered a consent
order providing for that relief and decided to pass the case until April 18, 2018, when
it would take up Ms. Brown’s motion for sanctions and other remaining matters.
Before the parties departed, Mr. Pearson submitted an application to proceed in
forma pauperis. In lieu of considering that application at the time, the court sua
sponte suspended the protective order – even though it had just entered an order
releasing funds from the court’s registry so that Mr. Pearson could make his
protective order payments – until the April 18 hearing.
On April 18, 2018, the court, without hearing additional argument, denied Ms.
Brown’s motion for sanctions; suspended the protective order until Ms. Brown paid
Mr. Pearson the amount of his second RHC award; denied Mr. Pearson’s requests to
dismiss the action and for a return of all the funds he had deposited in the court’s
registry; and denied Mr. Pearson’s application to proceed in forma pauperis. Ms.
Brown then moved for the release of funds from the court’s registry to satisfy the
second award, but the court denied that motion.
12
Ms. Brown appealed the decision suspending the protective order.
II.
Conceived as being within the trial court’s “equitable jurisdiction”11 in
landlord-tenant matters, and now recognized in Superior Court Landlord and Tenant
Rule 12-I, a protective order directing the tenant to deposit money into the court
registry in lieu of paying rent directly to the landlord is a pendente lite order, “not a
determination of the merits of a case.”12 It is designed “to maintain the status quo
between the parties” 13 and ensure that the landlord will not be “exposed to a
prolonged period of litigation without rental income.” 14
11
Bell v. Tsintolas Realty Co., 430 F.2d 474, 479 (D.C. Cir. 1970).
12
Mullin v. N St. Follies Ltd. P’ship, 712 A.2d 487, 493 (D.C. 1998) (quoting
R & A, Inc. v. Kozy Korner, Inc., 672 A.2d 1062, 1071 (D.C. 1996)).
13
Graham v. Lanier Assocs., 19 A.3d 361, 365 (D.C. 2011).
14
Davis v. Rental Assocs., Inc., 456 A.2d 820, 823 (D.C. 1983) (en banc)
(plurality opinion) (quoting Bell, 430 F.2d at 482).
13
Ms. Brown argues that the court abused its equitable discretion by suspending
the protective order indefinitely. Mr. Pearson disagrees, and he argues that we do
not have jurisdiction over this appeal because the suspension of the protective order
was neither a final order terminating the action nor equivalent to an interlocutory
order dissolving or modifying an injunction. We address the jurisdictional question
first, and then proceed to consider whether the court abused its discretion.
A.
The District of Columbia Court Reorganization Act of 1970 15 grants this court
appellate jurisdiction over “interlocutory orders of the Superior Court . . . granting,
continuing, modifying, refusing, or dissolving or refusing to dissolve or modify
injunctions.”16 Because a protective order is a pendente lite order, we focus on that
grant of jurisdiction, which is codified under D.C. Code § 11-721(a)(2)(A).
15
See Pub. L. No. 91-358, Title I, 84 Stat. 473 (1970).
16
D.C. Code § 11-721(a)(2)(A) (2012 Repl.).
14
Section 11-721(a)(2)(A)’s “federal analogue” is 28 U.S.C. § 1292(a)(1).17
Accordingly, we have looked to federal cases interpreting that statute for guidance
in construing § 11-721(a)(2)(A) and, in doing so, we have adopted the “practical
effect” test originally articulated by the Supreme Court in Carson. 18 In Carson, the
Court held that an order, though not “in terms” an injunction, is appealable like an
injunction under § 1292(a)(1) if it (1) has the “practical effect” of an injunction, and
(2) will cause “serious, perhaps irreparable, consequence” to the appealing party that
“can be effectually challenged only by immediate appeal.”19
Applying Carson’s two-prong test, this court in McQueen upheld our
jurisdiction over an appeal by tenants of a protective order directing them to pay rent
into the court’s registry pending the outcome of the case.20 A protective order, we
said, “has the ‘practical effect’ of an injunction” because “it enjoins the tenant to pay
a specified amount in lieu of rent, at given intervals, in a particular manner
(generally, into the registry of the court)” and “limits the tenant’s ability to engage
17
McQueen v. Lustine Realty Co., 547 A.2d 172, 176 (D.C. 1988) (en banc).
18
See Brandon v. Hines, 439 A.2d 496, 500, 505-09 (D.C. 1981).
19
450 U.S. at 84 (internal quotation marks omitted).
20
McQueen, 547 A.2d at 174.
15
in a rent strike or similar self-help remedy to obtain relief from the landlord.” 21 And
we recognized that an unreasonable protective order could have serious, perhaps
irreparable, consequences for a tenant because “the normal sanction for failure to
comply with a protective order is to strike the tenant’s pleadings.” 22 “The ultimate
consequence, of course, is that a tenant may lose possession of the rental property
notwithstanding [his or her] defenses, simply because the trial court has entered an
unreasonable protective order with which the tenant could not comply.” 23 Nor could
“an erroneous protective order generally . . . be ‘effectually challenged’ on appeal
of the merits of the possession action,” because after a tenant “lose[s] possession of
the property, ‘one could hardly vouch for the likelihood that the occupancy would
be resumed even in the event of an ultimate merits victory.’” 24 We also held in
McQueen that tenants in every case may appeal unreasonable protective orders, even
though some tenants might possess “adequate resources that would render the
consequence of an erroneous protective order less than ‘serious,’ let alone
21
Id. at 176.
22
Id. at 178.
23
Id.
24
Id. (quoting Cooks v. Fowler, 437 F.2d 669, 672 n.7 (D.C. Cir. 1970)).
16
‘irreparable.’” 25 We justified that holding because “our experience in reviewing
landlord and tenant cases” led us to believe “that, in the typical landlord’s action for
summary possession in Superior Court, a ‘serious, perhaps irreparable consequence’
will almost always be threatened when the tenant is subject to a protective order.”26
In B.F. Saul Co. v. Tiefenbacher,27 we considered whether landlords could
appeal interlocutory orders denying motions to release funds paid by tenants into the
court’s registry pursuant to protective orders. 28 We declined to extend our holding
in McQueen to allow landlords in every case to take such appeals; there was no
showing, we said, that the refusal to release registry funds would impose
consequences on “landlords, as a class,” similar to those we observed in McQueen
for tenants facing unreasonable protective orders. 29 The landlord in any appeal
therefore must individually “satisfy the two-prong test, as enunciated in Carson and
25
Id. at 179 (quoting Carson, 450 U.S. at 84).
26
Id.
27
28 A.3d 1115 (D.C. 2011).
28
Id. at 1118.
29
Id.
17
applied in . . . McQueen.”30 Writing separately, Judge Oberly emphasized that our
decision in B.F. Saul Co. did not mean that an “individual landlord” could never
meet Carson’s two-prong test.31 Judge Oberly observed that “the pendency of
unresolved administrative action” – particularly over five years of delay, as was the
case in B.F. Saul Co. – may impose serious, perhaps irreparable, consequences on
the landlord by threatening his “statutory entitlement to a maximum 12% rate of
return on investment,” due in part to “a swamped and perhaps bureaucratic
administration.”32 In other cases, this court has entertained individual appeals by
landlords from orders entering 33 or denying 34 protective orders, albeit without
addressing the applicability of Carson’s two-prong test or whether the landlord
would suffer irreparable harm as we required in B.F. Saul Co.
We conclude that Ms. Brown’s appeal satisfies Carson’s two-prong test. The
first prong is satisfied because the appeal is from a decision indefinitely denying Ms.
30
Id. We declined to address whether the particular landlord “c[ould] satisfy
the stringent requirements of Carson and McQueen as an individual” because it was
“an issue for another case, on another appeal, on another day.” Id. at 1118-19.
31
Id. at 1119 (Oberly, J., concurring) (emphasis added).
32
Id. (citing D.C. Code § 42-3502.12(a) (2001)).
33
LaPrade v. Liebler, 614 A.2d 546, 547 n.4 (D.C. 1992).
34
Lindsey v. Prillman, 921 A.2d 782, 784 n.1 (D.C. 2007).
18
Brown the benefit of a protective order previously granted to her, and we have held
that a protective order has the practical effect of an injunction. Under § 11-
721(a)(2)(A), a decision denying, dissolving, or modifying an injunction is
interlocutorily appealable just like a decision granting an injunction.
The second prong of Carson – that the court’s ruling will cause serious and
perhaps irreparable injury to Ms. Brown that can be challenged effectually only by
an immediate appeal – is also met. We must view the indefinite suspension of the
protective order in conjunction with the court’s refusal to release funds from the
registry to pay Mr. Pearson’s award and in light of the practical realities of the
litigation between the parties. Ms. Brown is a small landlord who has received no
income at all from her sole rental property for six years now, and there is no end in
sight to this litigation. The protective order provided her only assurance of ever
receiving rent from Mr. Pearson, who professes to be indigent and is continuing to
reside in the premises. The indefinite suspension of that order threatens to deprive
Ms. Brown permanently of any rental income from her property for the entire
duration of the suspension, which may last years, and of her own use of that property
for the same time period. The dollar amount of that deprivation already greatly
exceeds, and if continued will be totally disproportionate to, the amount that Mr.
19
Pearson has been awarded on his tenant petitions. 35 And given Mr. Pearson’s
indigency, if he is not required to resume making monthly payments into the court’s
registry, the likelihood that he will be able to make them up at some future point
(after a credit for any amounts awarded on his tenant petitions) appears purely
hypothetical.36 Thus, there is every reason to conclude that the on-going and ever-
35
Nor do we have reason to assume that Mr. Pearson will receive a substantial
additional award in the matters he still has pending before the RHC. To the extent
he claims a likelihood of success based on his claims that Ms. Brown’s violations
were willful and that the statute of limitations does not apply to his claim of rent
overcharges, we note that the ALJ rejected the former claim on remand from the
RHC and the RHC rejected the latter one in resolving Mr. Pearson’s first appeal. Cf.
Dameron v. Capitol House Assocs. Ltd. P’ship, 431 A.2d 580, 584 n.6 (D.C. 1981)
(“When determining the appealability of orders which potentially threaten
irreparable harm, courts must often examine the merits of the underlying claim.”),
overturned on other grounds by McQueen, 547 A.2d 172.
36
Although Ms. Brown theoretically could maintain a damages action against
Mr. Pearson in the future, Mr. Pearson’s representations of his own financial
situation lead us to believe he is possibly insolvent and will be unable to satisfy a
future judgment, supporting our conclusion that she will suffer irreparable harm if
denied injunctive (or quasi-injunctive) relief. See, e.g., Deckert v. Indep. Shares
Corp., 311 U.S. 282, 290 (1940) (“[T]here were allegations that Independence was
insolvent and its assets in danger of dissipation or depletion. This being so, the legal
remedy against Independence, without recourse to the fund in the hands of
Pennsylvania, would be inadequate.”); CRP/Extell Parcel I, L.P. v. Cuomo, 394 F.
App’x 779, 781 (2d Cir. 2010) (“[W]e have held that a finding of irreparable harm
may lie in connection with an action for money damages where the claim involves
an obligation owed by an insolvent or a party on the brink of insolvency.” (citing
Brenntag Int’l Chems., Inc. v. Bank of India, 175 F.3d 245, 249-50 (2d Cir. 1999)));
Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp., 17 F.3d 691, 694 (4th
(…continued)
20
increasing injury to Ms. Brown occasioned by the suspension is reparable either now
or never. Waiting would be virtually equivalent to confiscation of her property. 37
In these circumstances, we conclude that we have jurisdiction over this
landlord’s interlocutory appeal of the indefinite suspension of a protective order.
B.
(…continued)
Cir. 1994) (“[E]ven where a harm could be remedied by money damages at
judgment, irreparable harm may still exist where the moving party’s business cannot
survive absent a preliminary injunction or where ‘[d]amages may be unobtainable
from the defendant because he may become insolvent before a final judgment can
be entered and collected.’” (quoting Roland Mach. Co. v. Dresser Indus., Inc., 749
F.2d 380, 386 (7th Cir.1984))); Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186,
206 (3d Cir. 1990) (“[T]he unsatisfiability of a money judgment can constitute
irreparable injury . . . .”).
37
See Davis, 456 A.2d at 827 (plurality opinion) (“[I]n determining whether
a tenant should be permitted to make a late payment or a partial payment, the trial
court must recall ‘that the Constitution expressly protects against confiscation of
private property or the income therefrom.’” (quoting Lindsey v. Normet, 405 U.S.
56, 74 (1972))); Mahdi v. Poretsky Mgmt., Inc., 433 A.2d 1085, 1089 (D.C. 1981)
(“Turning first to Landlord, the effect on his position of not striking Tenant’s
pleadings has previously been discussed. If this litigation is permitted to continue
with no funds in the registry and with Tenant on the premises, Landlord will not be
in a position to rent the unit to a paying tenant. He will continue to be deprived of
funds which he may well need to pay his mortgage, to maintain other tenants’
apartments, and for other appropriate purposes. Such deprivation might well
constitute the kind of confiscation against which the Court warned in Lindsey . . . .”
(quoting Arthur E. Morrisette Real Estate v. Hunt, 109 Daily Wash. L. Rptr. 901
(D.C. Super. Ct. April 8, 1981))).
21
We now turn to the merits. As we have said, a protective order is an equitable
remedy designed “to maintain the status quo between the parties.” 38 Although this
remedy “has become commonplace in landlord-tenant court,” it lies within the
discretion of that court to decide whether to issue one and at what amount.39
Accordingly, we review the court’s decision in this case to suspend the protective
order for abuse of discretion.40
Ms. Brown argues that the court abused its discretion by suspending the
protective order because doing so undermined the important purposes of the remedy;
imposed a burden on her to come up with fresh funds for Mr. Pearson in an already
unstable situation; allows Mr. Pearson to live in her property rent-free indefinitely;
and created the severely inequitable result we have just described in the preceding
section of this opinion. We are constrained to agree.
The suspension appears in unjustified conflict with the fundamental import of
our case law concerning the protective order remedy. In fashioning an appropriate
38
Graham, 19 A.3d at 365.
39
Id.
40
Id.
 22
protective order, a court should consider the interests of both the landlord and the
tenant and strive “to balance the equities and to accommodate the competing
considerations inherent in landlord-tenant controversies.”41 The “guiding
principle,” we have said, is “to arrive at a reasonable monthly payment which will .
. . impose a fair obligation on the [tenant], permit the case to be heard on the merits,
and assure the [landlord] that if he wins he will, having been denied interim
possession, at least receive reasonable intervening rent.” 42 In fulfilling that
obligation, the court should consider “all relevant factors,” 43 not only factors
favorable to one side.
It appears to us, however, that the court’s consideration in the present case
was unduly narrow. The court clearly considered that Ms. Brown owed Mr. Pearson
a certain sum of money for rent overcharges and that Mr. Pearson could not afford
to make protective order payments if she did not pay that debt to him. However, the
court appears not to have considered (or, at least, not to have explained its rejection
41
Mahdi, 433 A.2d at 1090.
42
Davis, 456 A.2d at 825 (plurality opinion) (quoting Thompson v. Mazo,
421 F.2d 1156, 1161 (D.C. Cir. 1970)).
43
Akassy v. William Penn Apartments Ltd. P’ship, 891 A.2d 291, 309 (D.C.
2006); accord Graham, 19 A.3d at 366.
23
of) more commensurate and less onerous alternatives to indefinitely suspending the
protective order – including alternatives the parties themselves proposed. Those
alternatives included releasing the amount of funds from the registry needed to pay
Mr. Pearson or crediting Ms. Brown’s debt against his payment obligations on a
monthly basis for the limited time necessary (approximately nine months) to
discharge her debt. The unexplained failure to employ those or similar alternatives
resulted, apparently, in an unnecessary over-compensation of Mr. Pearson, in that he
was excused from making otherwise mandatory payments into the registry in an
amount that greatly exceeded what Ms. Brown owed him. The judge may well have
thought that Ms. Brown would immediately satisfy the debt and that the protective
order would then resume. But there is nothing in the record to support that
assumption; Ms. Brown is a small landlord; and the funds deposited in the registry
pursuant to the protective order were more than sufficient to satisfy the award.
Nor does it appear that the court gave adequate consideration to the need for
a protective order in the circumstances of this case. The order was entered to
remediate, to some extent, Ms. Brown’s “expos[ure] to a prolonged period of
litigation without rental income,” so as to avoid placing her “at a severe disadvantage
24
during the period of litigation.”44 The order also served to “protect [Mr. Pearson’s]
ability to satisfy his housing needs, in that such payments prevent[ed] [him] from
falling further in arrears.”45 Suspension of the protective order vitiated those
benefits.
To be sure, a tenant’s violation of a protective order may result in the
imposition of severe sanctions, so it is appropriate for the court to consider the
tenant’s financial situation – “the limits . . . [the tenant] could pay without having to
move.” 46 This consideration may have been on the judge’s mind when he decided
to suspend the protective order indefinitely. However, that consideration can only
go so far, and we are not suggesting that Mr. Pearson is entitled to a reduction in his
protective order payments. “To put it in the vernacular, if you cannot pay the rent,
you cannot stay on in the landlord’s apartment. It is just about as simple as that.”47
We have admonished courts to consider “the landlord’s need for interim
44
Davis, 456 A.2d at 823 (plurality opinion) (quoting Bell, 430 F.2d at 482).
45
Id. at 824 (quoting McNeal v. Habib, 346 A.2d 508, 512 (D.C. 1975)).
46
Graham, 19 A.3d at 367.
47
Mahdi, 433 A.2d at 1088 (quoting Arthur E. Morrisette Real Estate, 109
Daily Wash. L. Rptr. 901).
25
protection,”48 with a “presumption that the existing rent provides the measure of a
just protective order.”49 But if the judge “mak[es] [a] predictive judgment” that Mr.
Pearson is likely to succeed in reducing his rent obligation or in securing a greater
award in the RHC – which can be assessed with reference to provisional rulings by
the ALJ and RHC, the alleged housing code violations, and any corrective measures
that the landlord has taken 50 – then Mr. Pearson’s ability to pay may be an especially
potent factor. But those will be issues for the judge on remand, as we are in no
position to assess them in this appeal.51
For the foregoing reasons, we vacate the order suspending the protective order
and remand for further proceedings consistent with this opinion.52
48
Stets v. Featherstone, 754 A.2d 292, 296 (D.C. 2000). We have rejected
narrowly defining the landlord’s “need” as the “risk [of] foreclosure or a net
operating loss without a protective order,” Graham, 19 A.3d at 365-66, although a
landlord’s “exigency” remains an important factor, id. at 367; see also Davis, 456
A.2d at 827 (plurality opinion) (“[T]he Constitution expressly protects against
confiscation of private property or the income therefrom.” (quoting Lindsey, 405
U.S. at 74)).
49
Graham, 19 A.3d at 366.
50
Id.
51
But see footnote 35, supra.
52
Ms. Brown claims that the court also abused its discretion when it denied
her motion for sanctions. Our jurisdiction to reach that question is doubtful at best.
Cf. In re Estate of Murrell, 878 A.2d 462, 465 (D.C. 2005) (“Because Wallace was
26
So ordered.
neither held in contempt nor sanctioned, there is no basis for this appeal.”). In any
event, we do not see how the court abused its discretion in this regard. When the
court issued its decision, Mr. Pearson had missed only one payment, and Ms. Brown
indisputably owed him money he could have used to make that payment. See Davis,
456 A.2d at 826 (plurality opinion) (explaining that the extent of compliance and
reasons for noncompliance are important considerations for a motion for sanctions).
Finally, we decline to address on the merits Mr. Pearson’s argument that the
court erred in denying his motion to dismiss the action for possession. Mr. Pearson
did not file a cross-appeal. And in any event, “[a]n order denying a motion to dismiss
ordinarily does not meet [the] standard of finality and usually is not immediately
appealable.” Heard v. Johnson, 810 A.2d 871, 876 (D.C. 2002) (footnote omitted).
Mr. Pearson has made no attempt to show that this case falls under an exception to
that general rule.