Bell v. Tsintolas Realty Company

Citation430 F.2d 474
Decision Date18 June 1970
Docket Number24147,No. 24141,24148.,24141
PartiesWilliam T. BELL and Margie Bell, Petitioners, v. TSINTOLAS REALTY COMPANY, Respondent. James COATES, Petitioner, v. RUPPERT REAL ESTATE, INC., Respondent.
CourtU.S. Court of Appeals — District of Columbia Circuit

COPYRIGHT MATERIAL OMITTED

Mrs. Virginia Spiegel Criste, Washington, D. C., for petitioners in No. 24,141.

Mr. Willie E. Cook, Jr., Washington, D. C., for petitioner in Nos. 24,147-8. Mr. William F. Dow, III, Washington, D. C., also entered an appearance for petitioner in Nos. 24,147-8.

Mr. Herman Miller, Washington, D. C., for respondent in No. 24,141.

Mr. Joseph H. Schneider, Silver Spring, Md., for respondent in Nos. 24,147-8.

Before WRIGHT, LEVENTHAL and ROBINSON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

These cases are presented to us in the form of motions for stay of orders of the Landlord and Tenant Branch of the District of Columbia Court of General Sessions and the District of Columbia Court of Appeals. The orders complained of require that before being allowed to go forward with his defense or his appeal the tenant pay rent as it becomes due into the registry of the Court of General Sessions. Similar motions for stay have been presented to us in the recent past.1 Although we have expeditiously decided them on a case-by-case basis, it now appears that the course of judicial economy would be better served by a fuller explanation of our reasoning.

The preliminary pleadings in these cases followed the pattern of the prior cases: respondent-landlord filed in the Landlord and Tenant Branch of the Court of General Sessions a standard complaint for possession based on nonpayment of rent2; petitioner-tenant filed an answer alleging that substantial housing code violations existing at the commencement of the lease rendered the lease unenforceable,3 together with a motion for leave to proceed in forma pauperis and a jury demand.4

Of great consequence in these cases is the distinction between a complaint for possession based on nonpayment of rent and a complaint which seeks both possession and a judgment for rent in arrears.5 One difference is that, when a claim for rent in arrears is added, the tenant will be allowed to assert a counterclaim.6 More importantly, although the summons in a suit for possession may, as a last resort, be served by posting,7 the tenant who is sued for rent in arrears must be served personally.8 Once the suit for possession is filed, a claim for rent may not be subsequently added.9

Nos. 24,147-8James Coates v. Ruppert Real Estate, Inc.

This was the third complaint within six months for possession of the premises at 464 Neal Place, N. W. based on nonpayment of rent which respondent-landlord Ruppert Real Estate had filed against petitioner-tenant Coates. The realty company had obtained a consent judgment in the first and a default judgment in the second. After petitioner filed his answer to the present complaint, respondent countered with a "Motion to Enter Protective Order by Requiring Defendant to Deposit Rent With Clerk of Court Pending Disposition of This Case." After petitioner's opposition was filed and a hearing was held, the Court of General Sessions entered the following order:

"Motion to pay rent into court granted. Ordered that rent be paid into registry of CourtMotion to proceed in forma pauperis granted on theory that affidavit is true and that tenant has set aside $65 per month — otherwise, affidavit is not true. Tenant admits not having paid rent since November. If rent not put into registry of Court by Feb. 20, 1970, answer to be stricken. Stay not needed, since tenant has to Feb. 20. Case cert\'d to Jury Calendar."

The District of Columbia Court of Appeals granted petitioner a temporary stay of that order "until a final determination of the appeal therefrom." However, while the appeal was pending in the form of a motion for summary reversal, the continued proceedings in the Court of General Sessions resulted in summary judgment in favor of respondent-landlord. Petitioner then asked the District of Columbia Court of Appeals for a temporary stay of the order granting summary judgment. Thereupon the District of Columbia Court of Appeals ruled on the two motions before it as follows:

1. The motion for summary reversal of the order requiring that rent be paid into the court registry or that petitioner\'s answer be stricken was denied as moot.
2. The motion for temporary stay of the effectiveness of the summary judgment was granted on condition that petitioner pay rent from the date of the judgment into the court registry.

Our concern here is only with the latter order; we fully agree with the lower court that the grant of summary judgment eliminated the necessity for deciding the motion for summary reversal of the earlier prepayment order.

No. 24,141William T. Bell and Margie Bell v. Tsintolas Realty Co.

This case concerns Apartment 304 at 4030 Livingston Road, S.E. After petitioners' response to the complaint for possession was filed, the court granted respondent's motion that petitioners prepay rent into the registry of the court before being allowed to proceed. The trial court denied petitioners' request for a stay of that order and entered the following order in response to petitioners' motion for leave to proceed in forma pauperis:

"The Court grants the Defendant\'s motion to proceed in forma pauperis on appeal, provided that the rent now due, or which may hereafter accrue during the pendency of such appeal, shall be deposited into the registry of the Court, provided further, however, that the making of such deposit into the registry of the Court shall not make the question moot or otherwise affect the Defendant\'s appeal."

On appeal, the District of Columbia Court of Appeals deleted the back rent requirement and affixed the condition as so modified to its grant of the petition to proceed in forma pauperis and to its grant of a stay of the order requiring such prepayment. Thus petitioners in this case are in the position of having been ordered to prepay their rent into the registry of the court and will be granted a stay of the order or allowed to appeal in forma pauperis from the order only by complying with it.

These separate sets of facts present for our consideration the question whether and under what circumstances the Landlord and Tenant Branch of the Court of General Sessions may issue orders of the type designed to protect landlords during the period of litigation. We conclude that, although the court may, in the exercise of its equitable jurisdiction, order that future rent be paid into the registry of the court as it becomes due during the pendency of the litigation, such prepayment is not favored and should be ordered only in limited circumstances, only on motion of the landlord, and only after notice and opportunity for a hearing on such a motion.

Certainly such a protective order represents a noticeable break with the ordinary processes of civil litigation, in which, as a general rule, the plaintiff has no advance assurance of the solvency of the defendant.10

Moreover, imposing on litigants who are eligible to proceed in forma pauperis the requirement that a defense may be maintained only upon payment of a given sum of money — whether this sum is characterized as a rental prepayment or an appeal bond — seems incongruous. Recent decisions of this court, which have enhanced the opportunities for indigents to participate meaningfully in the judicial process, highlight this incongruity. In Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891 (1970), we held that an indigent must be furnished a free transcript in civil cases raising a substantial question the resolution of which requires a transcript. That decision, grounded in the concept of equal protection, traced the evolution in criminal cases of the constitutional requirement that the state act affirmatively to equalize the conditions of the adversary system for the poor; we discerned a pattern of extending that process of equalization to matters arising in civil litigation: "The constitutional mandate that there be no invidious discrimination between indigent and rich litigants is being recognized in civil cases as well." 137 U.S.App.D.C. at 413, 424 F.2d at 901.

In Harris v. Harris, 137 U.S.App.D.C. 318, 424 F.2d 806 (1970), we reversed the trial court's determination that Mrs. Harris was not sufficiently poor to prosecute in forma pauperis her action for absolute divorce on the ground of voluntary separation. In so doing, we explicitly adhered to the Supreme Court decision in Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 89, 93 L.Ed. 43 (1948), construing the federal in forma pauperis statute11:

"* * * We cannot agree with the court below that one must be absolutely destitute to enjoy the benefit of the statute. We think an affidavit is sufficient which states that one cannot because of his poverty `pay or give security for the costs . . . and still be able to provide\' himself and dependents `with the necessities of life.\' * * *"

More importantly, we recognized that "the obvious intent of the indigency statute is to make available to the indigent, in common with his fellow citizen, the full range of civil remedies contrived by court or legislature * * *." Harris v. Harris, supra, 137 U.S.App.D.C. at 322-323, 424 F.2d at 810-811.

McKelton v. Bruno, 138 U.S.App.D.C. ___, 428 F.2d 718 (1970), similarly involved the right to proceed in forma pauperis. We endorsed an approach even more flexible than that of Harris v. Harris, warning:

"Finally, in assessing a litigant\'s ability to bear the costs of a lawsuit, the courts must pay some attention to the nature of the particular litigation. In many General Sessions cases there is not a large amount of money at stake. This is especially so in landlord-tenant actions, where the issue
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