# Mendes v. Johnson

> District of Columbia Court of Appeals · June 13, 1978 · 389 A.2d 781

URL: https://www.frixlaw.com/law-library/cases/9711232

## Case

- **Full name:** Fortunato J. MENDES, Appellant, v. Montina JOHNSON, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** June 13, 1978
- **Citations:** 389 A.2d 781; 1978 D.C. App. LEXIS 544
- **Precedential status:** Published
- **Opinion:** Dissent by Nebeker
- **Judges:** Newman, Kelly, Fickling, Kern, Gallagher, Nebeker, Yeagley, Harris, MacK, Ferren
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991).
- Negative treatments: 2
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711232

## How later opinions describe it (automated extraction)

- holding evictions may only be executed by appropriate legal process, and not by landlord self- help
- holding evictions may only be executed by appropriate legal process not landlord self-help

## Opinion text

NEBEKER, Associate Judge,
with whom HARRIS Associate Judge concurs, dissenting:
The exercise of judicial power to change the law should be undertaken only with the greatest caution and only upon necessity, for in changing the law we necessarily defeat the expectations of those who relied upon its predictability. Because the instant case can properly be decided within the framework of existing law, I am unwilling to join the majority in their use of this case as an occasion for effecting a change in the law.
Snitman v. Goodman, D.C.Mun.App., 118 A.2d 394 (1955), the existing law which the majority have deemed to be in unavoidable conflict with the result desired in the instant case, involved the following circumstances. Snitman was the tenant of a park *794 ing lot under Goodman, the landlord. Snit-man had no written lease, but paid a monthly rental. Goodman gave Snitman thirty days notice to quit, then took possession of the premises (the parking lot) peaceably. Snitman sued Goodman for possession of the premises, claiming that Goodman had no right of entry without legal process. We held that the common law right of entry by self-help had not — under the circumstances of that case, the only one before the court — been abrogated by statute.
In the instant case, on the other hand, Johnson is the tenant of a residence. Unlike Snitman , the landlord may not have been entitled to to possession, regardless of the means used to acquire possession. 1 Unlike Snitman , Johnson had an opportunity to prove and failed to prove that she suffered any loss as a direct result of dispossession of the leased premises. 2 Unlike Snit-man, Johnson claimed — and proved — a loss resulting from damage to her furnishings, i. e., chattels to which the landlord was not even arguably entitled except, possibly, as an' involuntary bailee. Indeed, the trial judge, while expressing disagreement with the Snitman decision, awarded compensatory damages only for damage to the chattels, a result entirely consistent with Snitman .
Each of these differences provides a means for performing our proper role — deciding the case before us without unnecessary disruption of precedent. First, this case is quite distinguishable from Snitman since Snitman involved a commercial lease while Johnson held a residential lease, a distinction acknowledged — and ignored — by the majority. See also Wheeler v. Thompson, 98 D.W.L.R. 41 (D.C.Gen.Sess.1970). 3 The majority, in fact, never consider whether their abrogation of the landlord’s right of entry by self-help might be limited to the residential context for which they evince concern.
Second, there has been no finding in this case that the landlord had any right to possession. 4 Without a right to possession, it is irrelevant whether the landlord entered the premises himself or attempted to enlist judicial process, for neither remedy would be legally available to him absent such a right. It hardly requires the overruling of Snitman to hold that a landlord cannot enter his tenant’s residence without a right of possession.
Third, it is a matter of blackletter law that even a rightful repossession of leased premises does not give the landlord the right to damage or destroy furnishings or other chattels on the premises:
If the controlling law [j. e., Snitman ] permits the landlord, or an incoming tenant to use self-help to recover possession of leased property from a tenant improperly holding over after the termination of the lease [a factor not shown], neither the landlord, nor the incoming tenant, is entitled to resort to self-help to recover the possession of the leased property from the tenant, unless recovery by self-help is accomplished:
* sfc * * * *
(3) by using reasonable care to avoid damage to the property of the tenant, or of others on the leased property with the tenant’s permission. [Restatement (Second) of Property § 14.3 (1977).]
*795 The distinction between damage to person or property during the course of a self-help eviction and the legal efficacy of self-help eviction to recover the premises (as in Snitman ) 5 has been recognized at least since Newton v. Harlan, 133 Eng.Rep. 490 (1840) (cited by the majority at 6), and remains a valid one. See, e. g., Allison v. Hodo, 84 Ga.App. 790 , 67 S.E.2d 606 (1951) (affirming judgment for actual and punitive damages for injury to tenant’s furniture caused by self-help eviction of the furniture (proper) without taking reasonable precautions to assure its safety (improper)). See also W. Prosser, Law of Torts § 23 at 124 (4th ed. 1971) (“In all cases [whether or not self-help is permitted], he [the landlord] is liable for the use of any force beyond that reasonably necessary.”).
The first of these means of distinguishing Snitman is fully available in the record now before this court. Whether either of the other two means of distinguishing Snitman would require a remand of this most meager of trial records (for findings relating to the landlord’s entitlement to possession or the reasonableness of his care for Johnson’s furniture) would, of course, depend upon the burden of proof on these issues. Suffice it to say that remand either of the record or of the case was available and — I believe — mandated if necessary to assure our proper role as a judicial, not a legislative, body.
With these means properly available for distinguishing Snitman , it is incredible to me that a majority of any division of this court would feel frustrated in their attempts to resolve this case consistent with the principles of M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1977). See footnote * of the majority opinion. It is even more incredible that this court would then decide, en banc, that the only rationale available for decision is one requiring an en banc decision. En banc decision is unwarranted unless “necessary to secure or maintain uniformity of [court] decisions” or “the proceeding involves a question of exceptional importance.” D.C.App.R. 40(c). Since Snitman is easily and properly distinguishable from the instant case on a number of grounds, the former justification for en banc decision does not exist. I fear, therefore, that today’s decision means that a majority of this court feel free to decide “question[s] of exceptional importance” without the strictest necessity for such decision — a freedom I attribute to our legislative bodies but not to this court.
Because — and only because — the majority have decided this case by wholly overruling Snitman instead of so easily distinguishing it, I concur with my brethren who believe that the decision should have only prospective effect. Had we held for the tenant upon any of the narrower grounds, including the one relied upon by the trial court, the landlord would not have been justified in a reliance upon Snitman . But since the majority, by explicitly overruling Snitman , imply that the landlord’s actions were consistent with existing law, I would insist upon prospective application of an overruling decision.
. The landlord defended by alleging nonpayment of rent and, therefore, entitlement to possession. The trial court made no finding upon this issue. The trial court did, however, specifically find that this “was a wrongful eviction” because the tenant had not been given adequate notice to quit.
. Johnson alleged that she incurred hotel bills and that her daughter suffered humiliation as a result of the eviction. The trial court held that Johnson failed to prove the hotel expenses and that her daughter could not recover because not a party to the action.
. In Wheeler , the trial court distinguished Snit-man on a number of grounds, one of which was that the property involved was residential. The court, therefore, enjoined interference with the tenant’s possession by the landlord without judicial process.
. Unlike the majority, I am unwilling to “assume, for purposes of decision, that the landlord was entitled to possession for nonpayment of rent.” Ante, note 1. Such an assumption is not “for purposes of decision” but for the purpose of arriving at this particular decision. See note 1 supra.
. Legal recovery of the premises precludes, of course, recovery by the former tenant for the loss of the use of the premises. See Burford v. Krause, 89 F.Supp. 818 (D.D.C.1950). No such loss was shown in this case. See note 3 supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711232. Public record. Not legal advice.