Camalier & Buckley v. Sandoz & Lamberton

Decision Date06 November 1995
Docket NumberNo. 93-CV-306.,93-CV-306.
Citation667 A.2d 822
CourtD.C. Court of Appeals
PartiesCAMALIER & BUCKLEY, INC., Appellant, v. SANDOZ & LAMBERTON, INC., Appellee.

Michael E. Brand, Miami Beach, FL, with whom Kenneth J. Loewinger and David K. Lietz, Washington, DC were on the brief, for appellant.

John J. Brennan, III, with whom Tonia J. Powell, Washington, DC, was on the brief, for appellee.

Before WAGNER, Chief Judge, and FARRELL and KING, Associate Judges.

FARRELL, Associate Judge:

This is an appeal from an order denying appellant's motion to vacate a consent order and judgment for possession and to dismiss appellee's underlying suit for possession of commercial property. We vacate the order denying the motion and remand for the limited purpose of allowing appellant an opportunity to present evidence that it made the rent arrearage payments prescribed by the consent order in timely fashion.

I.

Appellee Sandoz & Lamberton, Inc. (Sandoz) sued appellant Camalier & Buckley (Camalier) for possession of leased real estate and for unpaid rent, late fees, and other costs totalling $48,590.58. Before trial the parties negotiated and entered into a settlement. On January 3, 1992, they executed and Judge Richard Salzman approved a consent order and judgment for possession (consent order) entitling Sandoz to possession of the premises and rent due. Execution was stayed, however, on the condition that Camalier, inter alia, pay the arrearage plus interest according to a precise schedule set forth in the consent order.1 For its part, Sandoz agreed to a reduction in the regular rent for the duration of 1992.

The consent order set forth consequences to the parties of both compliance and non-compliance with the payment schedule:

(7) ... If the tenant makes all payments required under paragraphs (1), (3), (4) and (5) between the time of the entry hereof and December 1, 1992, then upon the final payment due December 1, 1992, this Judgment shall be deemed fully satisfied and shall be of no further force or effect and, upon tenant's motion, shall be vacated and the case dismissed.

Conversely, if Camalier failed "to make any payments as hereinabove agreed, through December 1, 1992," Sandoz, "upon filing an Application for Termination of Stay" with the Clerk of the Superior Court "and without further order of Court," would "be entitled to have this stay set aside and vacated, to have immediate issuance of a writ of restitution, and to have the right to take any action permitted under law to collect Judgment herein."2

It is undisputed that Camalier eventually made the payments required by the consent order. What is disputed is the timing of the payments. Both parties also concede that the interest Camalier should have paid by December 1, 1992, was paid late following Sandoz's demand for an exact sum of interest in a letter dated January 27, 1993. Claiming to have satisfied the judgment, Camalier filed a motion to vacate the consent order and dismiss the case on February 25, 1993, requesting a hearing. Sandoz filed its opposition to the motion on the morning of the hearing, March 4, 1993. Whereas the affidavit of Camalier's president asserted that all payments due under the consent order had been timely made except for the interest payment,3 Sandoz countered that Camalier had not made a single one of the approximately sixteen payments on time, supporting this with an affidavit of its accounting manager which documented the late payments as reflected in a ledger.4 Because Camalier had failed to comply with the terms of the consent order, Sandoz opposed vacation of the order and dismissal of its suit.

Camalier responded that, because it had received Sandoz's opposition only that morning, it was not prepared to show the precise date when payments were made but that it disputed the claims of nonpayment and wished to present evidence of compliance. It also made legal arguments, discussed in part III, infra, as to why even if the payments were late as alleged, Sandoz's conduct (including failure expressly to make time of the essence in the consent order) excused its belated compliance inasmuch as all of the payments had eventually been made and accepted. After hearing argument but without delaying ruling until Camalier could present evidence rebutting Sandoz's affidavit and ledger entries, the trial judge denied the motion to vacate and dismiss.

Camalier noted an appeal on March 16, 1993, by which time Sandoz had not exercised any of its options for enforcement of the consent order and judgment, which therefore remains stayed.

II.

We first consider Sandoz's motion to dismiss the appeal for lack of a final order, relying on the fact that Sandoz has not sought termination of the stay. A motions division of this court previously denied the motion to dismiss, but we directed the parties to discuss the issue at oral argument.5 Like the motions division, we hold that the order denying Camalier's motion to vacate was a final order and hence appealable. D.C.Code § 11-721(a)(1) (1989).

The trial judge, though without explanation, necessarily accepted Sandoz's contention that Camalier failed to make some or all of the payments as required by the consent order. The judge therefore denied Camalier its remedy for satisfaction of the consent order, i.e., vacation of the judgment and dismissal of the underlying suit. Unless Camalier may appeal that ruling, all that remains to be done in the trial court is for Sandoz to exercise its rights under the consent order, including filing an application with the Clerk of the Superior Court for termination of the stay, whereupon—"without further order of the Court"—Sandoz is entitled to issuance of a writ of restitution and eviction of Camalier from the property. In short, the procedures that remain in the trial court before Camalier may be evicted are ministerial.

To be "final" under § 11-721(a)(1), an order must "`dispose of the whole case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already rendered.'" Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 36 (D.C.1979) (quoting McBryde v. Metropolitan Life Ins. Co., 221 A.2d 718, 720 (D.C. 1966)). The trial judge's order meets that test. The fact that Sandoz, believing that Camalier's appeal divested the Superior Court of jurisdiction to issue the writ of restitution, has not yet sought the writ and dispossession is inconsequential. Camalier is not required to live under the suspended sword of execution on the judgment when its right to have the judgment vacated and the suit dismissed has been determined.

III.

On the merits, Camalier first contends that, assuming it failed to make payments (all or any) by the dates specified in the consent order, Sandoz waived its entitlement to judgment by accepting the late payments without objection, and further that the absence of an express "time is of the essence" clause from the agreement excused Camalier's failure to make payments in accordance with the schedule. We reject these arguments.

A consent order

is an order of the court, indistinguishable in its legal effect from any other court order, and therefore subject to enforcement like any other court order. It is also a contract, which must be construed within its four corners. It should generally be enforced as written, absent a showing of good cause to set it aside, such as fraud, duress, or mistake.

Moore v. Jones, 542 A.2d 1253, 1254 (D.C. 1988) (citations and internal quotation marks omitted). "To encourage voluntary settlements, settlement agreements should not be modified in favor of either party, absent the most compelling reasons." Id. at 1255. As we pointed out in Suitland Parkway Overlook Tenants Assoc. v. Cooper, 616 A.2d 346 (D.C.1992), "the compelling reasons Moore referred to require `a showing of good cause to set ... aside the judgment, such as fraud, duress, or mistake.'" Id. at 351 (quoting Moore, 542 A.2d at 1254).

Accepting Camalier's waiver argument would effectively modify the consent order, which contains no provision conditioning Sandoz's right to execute on the judgment on prior objections to a late payment. Rather, "upon failure of the tenant to make any payments as hereinabove agreed," Sandoz was entitled to an immediate writ of restitution as described above, without having to make a demand. This court long ago directed enforcement of a consent judgment for failure to pay a rent arrearage by the required date despite the tenant's claim that payment had been made as soon as he was notified of the delinquency. Maiatico v. Novick, 108 A.2d 540, 541 (D.C.1954).

Camalier asserts none of the "compelling reasons" cited in Moore for departure from the terms of the consent order. Instead it relies on the equitable principle that "the course of conduct of the parties may bring about a modification of their strict legal rights and obligations to the point that the creditor could be said to have created a waiver of its right to accelerate or, as here, to evict `without at least implicitly giving prior notice of its intention to do so should default again occur.'" Kummli v. Myers, 130 U.S.App.D.C. 303, 306, 400 F.2d 774, 777 (1968) (quoting Har-Rich Realty Corp. v. American Consumer Indus., Inc., 122 U.S.App.D.C. 88, 90, 351 F.2d 785, 787 (1965)). But Camalier cites no decision applying this principle to a consent judgment, "which is presumptively valid and hence enforceable" as written. Moore, 542 A.2d at 1255. In Suitland Parkway we rejected the notion that the disfavored status of forfeitures is cause "to imply an equitable authority in the trial court to modify a consent judgment where none of the compelling reasons required by Moore is present." 616 A.2d at 351. See also Trammell v. Estep, 42 A.2d 501, 502 (D.C.1945) (landlord's forbearance does not permit "destruction of rights established by a valid judgment" stayed by parties'...

To continue reading

Request your trial
11 cases
  • Akassy v. William Penn Apts. Ltd. P'Ship
    • United States
    • D.C. Court of Appeals
    • 2 Febrero 2006
    ...as written, absent a showing of good cause to set it aside, such as fraud, duress, or mistake." Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc., 667 A.2d 822, 825 (D.C.1995) (quoting Moore, 542 A.2d at 1254); see also Fields v. McPherson, 756 A.2d 420, 424 (D.C.2000) (recognizing that ......
  • Puckrein v. Jenkins
    • United States
    • D.C. Court of Appeals
    • 29 Septiembre 2005
    ...as written, absent a showing of good cause to set it aside, such as fraud, duress, or mistake." Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc., 667 A.2d 822, 825 (D.C.1995) (quoting Moore, 542 A.2d at 1254); see also Fields v. McPherson, 756 A.2d 420, 424 (D.C.2000) (recognizing that ......
  • FEDERAL MARKETING v. VIRGINIA IMP. PROD., 98-CV-960, 99-CV-231.
    • United States
    • D.C. Court of Appeals
    • 15 Mayo 2003
    ...it aside, such as fraud, duress, or mistake." Moore v. Jones, 542 A.2d 1253, 1254 (D.C.1988); accord, Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc., 667 A.2d 822, 825 (D.C.1995). No such showing has been made VIP makes the related argument that the trial court at least should have di......
  • West v. Morris
    • United States
    • D.C. Court of Appeals
    • 28 Mayo 1998
    ...so that the court has nothing remaining to do but to execute the judgment or decree already rendered." Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc., 667 A.2d 822, 825 (D.C.1995) (citation and internal quotation marks omitted). Although the trial judge's reasoning in her order of Nov......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT