Pernell v. Southall Realty

• Decision Date: 31 August 1972
• Docket Number: No. 6022.,6022.
• Parties: Dave PERNELL, Appellant, v. SOUTHALL REALTY, Appellee.
• Court: D.C. Court of Appeals

Page 490

294 A.2d 490

Dave PERNELL, Appellant, v. SOUTHALL REALTY, Appellee.

No. 6022.

District of Columbia Court of Appeals.

Argued May 1, 1972.

Decided August 31, 1972.

Norman C. Barnett, Washington, D. C., for appellant.

Herman Miller, Washington, D. C., for appellee.

Before Reilly, Chief Judge, KERN, Associate Judge, and HOOD, Chief Judge, Retired.

REILLY, Chief Judge:

This appeal by a tenant from a judgment rendered in favor of a landlord in a suit for possession of real property occupied by appellant under a written lease — a statutory proceeding authorized by D.C.Code 1967, § 16-1501 — raises the issue of whether a party to such a suit is entitled to a jury trial. For more than a year, trial judges sitting in the Landlord and Tenant Branch of the Superior Court have taken conflicting positions on this matter, but this is the first time the question has been squarely presented to this court.

The case before us began on July 20, 1971 with the filing of a complaint asserting that the tenant was in default of payment for three months' rent in the amount of $375 and accordingly claiming judgment for possession. The complaint omitted any demand for rent in arrears. A summons incorporated in the complaint directed the tenant to appear in court and answer the landlord's suit on August 9, 1971. Such expedited notice in suits brought under § 16-1501 is authorized by another section in the same chapter, § 16-1502, requiring that the summons be served or posted on the premises only seven business days before the date fixed for trial. On the designated date, the tenant filed an answer and demand for jury trial. The answer set forth a setoff in the amount of $389.60 for repairs made by the tenant, and a counterclaim for $75 predicated upon failure of the landlord to maintain the property in compliance with local housing regulations.

The court struck the jury demand and continued the case for trial to August 16, 1971. The tenant failed to appear in court that day, but the trial was held over the objection of his counsel, and judgment for possession entered for the landlord. According to the "Statement of Evidence and Proceedings" the only witness was the lessor. He identified a written lease, received as an exhibit, which required monthly rental payments of $150 and contained a clause under which the tenant agreed to make certain repairs for the sum of $300. He testified that no rental payments had been made since May. In the absence of the tenant, the latter's counsel attempted to prove the setoff, but the witness stated that he had inspected the premises and that none of the work agreed upon had been done by the tenant. Counsel was also unsuccessful in an effort to show any breach of housing regulations. The only evidence proffered was a document (or documents) purporting to be a report of a housing inspector but, as the papers were not authenticated or presented by a witness who could be cross-examined on the subject, the court rejected this material.

It is appellant's contention that the court below erred in denying his timely demand for jury trial, asserting that (1) the seventh amendment to the United States Constitution¹ guarantees the right of trial by jury in all cases brought under § 16-1501, and (2) in any event, he was entitled to a jury trial in this case by virtue of the counterclaim and setoff specified in his answer.

This court has never addressed itself to the problem of the constitutional right to trial by jury in a suit for summary possession under § 16-1501, where back rent is not claimed nor title drawn into issue by the pleadings. For years the matter was academic, because until repealed by the District of Columbia Court Reform and Criminal Procedure Act of 1970,² the right to a jury trial "[w]hen the amount in controversy in a civil action . . . exceeds $20, and in all actions for the recovery of possession of real property," was expressly provided by another section of our code, § 13-702.³ Congress did not make clear what it intended by the repeal of this section.⁴ Undoubtedly the proponents of the new act deemed it unnecessary to include specific constitutional rights in a statute dealing with civil procedure, but irrespective of intent it is clear that, if the seventh amendment itself guarantees a right to demand a jury in a statutory proceeding for summary possession, the trial court erred in denying this right.

It is settled that the seventh amendment neither enlarged nor restricted the right to jury trial, but preserves such right as it existed in England in 1791, in "suits at common law." Parsons v. Bedford, Breedlove & Robeson, 28 U.S. (3 Pet.) 433, 7 L.Ed. 732 (1830).⁵ Our first inquiry then is whether this action or its equivalent existed at common law in England in 1791.

Appellant argues that an action under § 16-1501 is equivalent to ejectment, which was a common law action triable by jury. Whitehead v. Shattuck, 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873 (1891). The short answer to this argument, however, is that in a separate section in the same title of our code Congress has provided another remedial action for nonpayment of rent, officially captioned "Ejectment."⁶ The accompanying annotation sets out a British statute of the year 1731 (Acts of 4 Geo. 2, c. 28, §§ 2-4), from which this particular section was derived. Under § 16-1124 there is a cause of action if (1) one-half year's rent is in arrears, and (2) there is a deficiency "of goods and chattels whereon to distrain for the satisfaction of the rent due." The section also provides for (1) an application for equitable relief from a judgment up to six months after execution thereon by tender of the back rent, and if granted, (2) a setoff of the sum the landlord gained or should have gained from the property during the time the tenant was out of possession against the rent accruing after judgment was rendered.

The archaic limitations upon the cause of action defined in § 16-1124 and the cumbersome procedure contemplated thereafter constitute such a marked contrast to the expedited character of the § 16-1501 proceedings devised by Congress to handle run-of-the-mill landlord-tenant controversies that any resemblance between suits for summary possession and common law ejectment actions is extremely superficial. We agree that the mere incorporation into a statute of a common law form of action does not deprive the parties to such action of any constitutional rights incidental thereto. Since § 16-1124 preserves the major characteristics of the old common law ejectment action, it may well be that this section falls within the scope of the seventh amendment.⁷ It seems equally apparent that the kind of remedial action defined in §§ 16-1501, 1502, and 1503 was not known to the common law.

Another distinction is that an action under § 16-1501 normally does not try title. When the issue of title intrudes into the action, it is discontinued and, pursuant to a rule of the Superior Court, transferred from the Landlord and Tenant Branch to the Civil Division "for trial on an expedited basis."⁸ Appellant argues that the change of forum incident to a plea of title does not change the nature of the proceedings, and we would agree. Nevertheless, actions in which title is in issue constitute a special category under the statute.⁹ That situation was not before the lower court in the instant case, and we do not deal with it on this appeal.

Appellant asserts, however, that the "purpose of ejectment at common law has always been primarily to determine the question of the right to possession, and secondarily the question of title, if that question be raised. . . ." Shapiro v. Christopher, 90 U.S.App.D.C. 114, 122, 195 F.2d 785, 793 (1952).¹⁰ We agree on the limited ground that the purpose of determining title is to gain the right to use the property. But it is not only the result but the nature of the issue tried to which we must look in deciding whether the seventh amendment will apply to such actions. Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). Late 18th century English law may have, in our view, placed too great an emphasis upon "title," but if we are to accord proper effect to the seventh amendment, we must try to see the issues as they were perceived at that time.

Whether an issue of title was considered always present, if only conceptually, in actions in ejectment in England in 1791 is a question which cannot be answered with certainty.¹¹ It is clear, however, that some of the most illustrious figures in our legal tradition were of that opinion. Thus Lord Mansfield in Cottingham v. King, 1 Burr. 621 (K.B.1758), said that in the fictitious action of ejectment, the plaintiff may take only what he has shown title to. In Atkyns v. Horde, 1 Burr. 60, 119 (K.B.1757), Lord Mansfield stated that "[a]n ejectment is a possessory remedy . . . [and] [e]very plaintiff in ejectment must shew a right of possession as well as of property." (Emphasis supplied.) And in McArthur v. Porter, 31 U.S. (6 Pet.) 205, 211, 8 L.Ed. 371 (1832), Mr. Justice Story observed "[t]hat the action of ejectment is a fictitious action, and is moulded by courts to subserve the purposes of justice in a manner peculiar to itself, is admitted, but its professed object is to try the titles of the parties. . . ."

Moreover, while the Supreme Court has recognized that at common law one with a right to possession could maintain an action for ejectment, it also has pointed out that statutory proceedings for summary repossession are plainly distinguishable from the common law action. In rejecting a constitutional challenge to an Oregon statute very similar to ours, the Court in Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed. 2d 36 (1972), held that a state may validly single out possessory disputes between landlord and tenant for especially prompt judicial settlement without violating equal protection. Discussing one historic difference...