refusing to extend Javins court holds lease forfeited by commercial tenant’s breaches despite breaches by landlord
How later courts described this case
- refusing to extend Javins court holds lease forfeited by commercial tenant’s breaches despite breaches by landlord
- forfeiture enforced where tenant failed to correct breach following notice and trial court specifically found that tenant had not acted in good faith
- covenants in a lease are deemed to be independent unless a contrary intention is expressed in the lease itself
- unless parties state otherwise, the covenants in a lease are independent
Written by the judges who cited it.
The opinion
HARRIS, Associate Judge
(concurring in part and dissenting in part) :
All members of the court’s division agree that the rulings below were free of reversible error. In my view, however, ap-pellee’s motion to dismiss the appeal should be granted.
The proceeding was one for possession. When the trial court declared the lease to be terminated and entered judgment for possession (plus attorneys’ fees in the amount of $10,000), a stay was ordered pending appeal subject to certain conditions. They were: (1) that Interstate operate its various food and beverage facilities during all of the time periods specified in the lease; (2) that Interstate make future rental payments in advance; and (3) that Interstate post a supersedeas bond in the amount of $20,000.
Ten days were allowed by the trial court for compliance with those conditions. None was met. 1 Interstate effectively moved out on the tenth day (October 31, 1970) and terminated all of its operations at the hotel. 2 No further rent ever was tendered to the landlord.
In the process of moving its personalty from the Skyline Inn, Interstate sought to maintain an appearance of leaving involuntarily. I consider that effort to be a transparent fiction, and would hold that Interstate voluntarily abandoned the premises. Accordingly, I would grant the motion to dismiss and vacate the judgment below for mootness, 3 further remanding the case to the Superior Court with instructions to dismiss the complaint. 4
. The hours of operation remained the same as those which were held to warrant termination of the lease. No supersedeas bond was filed, nor did Interstate seek a reduction in its amount. Rent for the ten days was tendered by a cheek which proved to be worthless. (The amount was paid later, but after the ten days had expired.)
. A special meeting of Interstate’s Board of Directors was held on October 27, four days before the ten days expired. The Board then passed the following resolution:
That the officers and directors of the corporation . . . are hereby authorized and empowered to vacate the premises . . . and to sell the furniture, fixtures and equipment.
. Dietz v. Miles Holding Corp., D.C.App., 277 A.2d 108 (1971) ; Gaddis v. Dixie Realty Co., D.C.App., 248 A.2d 820 , remanded on other grounds, 136 U.S.App.D.C. 403 , 420 F.2d 245 (1969) ; Zindler v. Buchanon, D.C. Mun.App., 61 A.2d 616 (1948) ; Price v. Wilson, D.C.Mun.App., 32 A.2d 109 (1943).
. United States v. Munsingwear, 340 U.S. 36 , 71 S.Ct. 104 , 95 L.Ed. 36 (1950) ; Atkins v. United States, D.C.App., 283 A.2d 204 (1971) ; see Gaddis v. Dixie Realty Co., supra, 248 A.2d at 821 . In moving for a dismissal on the grounds of mootness, Halsa recognized that its judgment for attorneys’ fees could not be sustained unless the merits of the appeal were reached. However, Interstate now has no assets, and Halsa consented to the vacating of the judgment for attorneys’ fee if its motion were granted.