recognizing that “[t]he risk is intensified . . . when one of the parties is unrepresented by counsel”
How later courts described this case
- recognizing that “[t]he risk is intensified . . . when one of the parties is unrepresented by counsel”
- “Moreover, in the absence of the traditional landlord-tenant relationship, with privity of contract, the validity of [a] protective order is open to serious question.”
- ‘We adhere to the strong judicial policy favoring adjudication on the merits of a case.”
- “[I]t is incumbent upon the trial court to conduct a proper inquiry into the factors behind a party’s motion for dismissal of default.”
Written by the judges who cited it.
The opinion
REILLY, Chief Judge, Retired,
dissenting:
With all deference to my colleagues, I am unable to perceive any abuse of discretion in the refusal of the motions court to set aside the default judgment. Just prior to the colloquy quoted in the text of the majority opinion, the court had listened patiently while both parties explained their positions in the earlier proceedings. The court made it plain to appellant that her failure to comply with a protective order was a major factor in its ruling. But the majority opinion now brushes aside this aspect of the case asserting that the prior entry of such a protective order in the absence of a formal landlord-tenant relationship was “open to serious question,” after having observed that “there is nothing in the record to show that the trial court gave any consideration to the extent of noncompliance with the protective order or the reason for noncompliance.” (Emphasis supplied.)
Such observation is not borne out by the transcript. The record quite clearly demonstrates the “extent of noncompliance”— there was no compliance. Appellant conceded as much and also gave her reason.
THE COURT: Well, Mr. Smith claims that you have not made your protective order payments. Is that right?
MS. WALKER: Yes, Your Honor, [but] I claim that I am the owner, that Mr. Smith has no right to the property....
The asserted questionability of the protective order, moreover, does not square with the controlling authorities in this jurisdiction. It is true that no actual or implied agreement existed between the parties which established a landlord-tenant relationship, but I cannot understand why this aspect of the matter throws any doubt upon the authority of the court to enter a protective order. According to appellant herself, she was an owner of a house who at some unspecified time failed to make payments required by her mortgage (deed of trust) note, but continued to occupy the house after it was sold at foreclosure, despite a 30-day notice to quit. Under D.C. Code § 45-222 (1981), she thereby became a “tenant at will,” and as Nicholas v. Howard, 459 A.2d 1039, 1041 (D.C.1983), cited by the majority, recognized subject to “the expeditious ejectment procedures of the Landlord and Tenant court available to the new owners.” To be sure, Nicholas did *451 hold that such a tenancy did not create an obligation to pay rent, but as the plaintiffs in the case before us sued for possession, not back rent, this holding plainly did not detract from the power of the Landlord and Tenant Court to fashion an equitable remedy like a protective order to prevent one party from placing the other at a severe disadvantage (i.e. deprivation of property without compensation) during the period of litigation. Davis v. Rental Associates, Inc., 456 A.2d 820 (D.C.1983) (en banc); Mahdi v. Poretsky Management, Inc., 433 A.2d 1085 (D.C.1981).
In the Davis case, the en banc court held that failure to deposit payments required by a protective order into the court registry justified the entry of judgment against the tenant. It is impossible to read Davis as being limited to possessory actions for property rented to the occupant, for the opinion, in summarizing the leading cases, cited Thompson v. Mazo, 137 U.S.App.D.C. 221 , 421 F.2d 1156 (1970), where a defendant in a possessory action interposed a plea of title — the very defense which appellant here claimed orally. In that case, the appellate court in reversing an order of the trial court requiring the posting of a $3,000 bond, held that an appropriate security order should merely have required monthly payments into an escrow account. The Davis opinion quoted with approval the following direction on remand from the federal appeals court:
The guiding principle of the court is of course to arrive at a reasonable monthly payment, which will, at one and the same time, impose a fair obligation on the defendant, permit the case to be heard on the merits, and assure the plaintiff, that if he wins he will, having been denied interim possession, at least receive reasonable intervening rent.
Davis, supra at 825 .
This is precisely what Judge Eilperin sought to accomplish when on July 15th he set aside the default judgment entered against appellant when she failed to appear on the morning the case was set for trial. She later came to court to ask vacation of the judgment and a continuance in order to obtain counsel. In granting this request in part — he limited the continuance to two weeks — he formulated a protective order based on his estimate of a fair monthly payment. But appellant failed to appear on the return date. Although obtaining a reprieve from Judge Doyle later after a second default judgment was entered, appellant was still without counsel on August 19th — almost five weeks after gaining postponement from Judge Eilperin.
In my opinion, her repeated disregard of dates set by the various judges in the case, her purported reliance upon counsel who were never available, and her deliberate refusal to make any protective order payments, fully justified the final judgment of the court.