Simpson v. Lee

• Decision Date: 24 October 1985
• Docket Number: No. 84-1575.,84-1575.
• Citation: 499 A.2d 889
• Parties: Ellsworth T. SIMPSON, et al., Appellants, v. Robert E. LEE, Appellee.
• Court: D.C. Court of Appeals

499 A.2d 889

Ellsworth T. SIMPSON, et al., Appellants, v. Robert E. LEE, Appellee.

No. 84-1575.

District of Columbia Court of Appeals.

Argued July 17, 1985.

Decided October 24, 1985.

Louis P. Robbins, Washington, D.C., for appellants.

Mark London, Washington, D.C., with whom Robert F. Condon, Washington, D.C., was on brief, for appellee.

Before NEBEKER, BELSON, and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellants, owners of certain real property in the District of Columbia, appeal the grant of a preliminary injunction prohibiting them or their agents from leasing or otherwise occupying that property while litigation is pending regarding appellee's rights as subleasee of the property. They assign as error the motions judge's findings that appellee had a substantial likelihood of prevailing on the merits and would suffer irreparable harm. Their principal contention is that Mendes v. Johnson, 389 A.2d 781 (D.C. 1978) (en banc), is inapplicable to commercial property when the tenant has abandoned the premises and the lease provides for a right of reentry by the lessor upon default in payment of rent. We affirm.

I

Appellants own the premises at Rear 1073 Wisconsin Avenue, N.W., located on Blues Alley.¹ On November 1, 1980, appellant E.T. Simpson (Simpson) and his brother entered into a lease of those premises with Karamat Moaveni.² Mr. Moaveni intended to use the premises for a restaurant, but when he failed to comply with the lease, Simpson entered and repossessed the premises in April 1982. Prior to doing so, he wrote Mr. Moaveni on April 13, 1982 and April 21, 1982, indicating reliance on his voluntary surrender of the premises without the necessity of legal proceedings.

On June 29, 1982, Simpson, as agent for the other owners, entered into a twenty year lease for the same premises with Joanne Filomena Chiacchieri (Ms. Chiacchieri).³ Ms. Chiacchieri also intended to use the premises as a restaurant and the lease required that she expend at least $120,000 to renovate the premises, which consisted only of a shell of a building. The lease included a warranty for quiet enjoyment and gave the lessor a right of entry and repossession, without notice, for the failure to pay rent for forty days after the due date. Ms. Chiacchieri also executed a document in which she acknowledged receiving notice of possible litigation concerning the premises which she intended to lease from Simpson and waived any claim for damages that might arise if she was "compelled by judicial process" to release possession as a result of that litigation; the acknowledgement and waiver stated that it would apply to subleasees and assigns. On September 1, 1982, Ms. Chiacchieri, with Simpson's approval, subleased the premises for 19 years, ten months to appellee so that he could open a restaurant. The terms of the sublease were identical to those in the prime lease.

Shortly after appellee's sublease was executed,⁴ a confrontation occurred at the premises in late September 1982 between Mr. Moaveni and one of appellee's employees.⁵ According to appellee, Mr. Moaveni had broken into the building and changed the locks. Appellee, or one of his employees, called the police to have Mr. Moaveni forcibly removed; the police called Simpson to verify whether Mr. Moaveni was unlawfully on the premises. Following various efforts by Mr. Moaveni to continue in possession, Simpson and his brother filed suit for possession on October 7, 1982; the suit was later voluntarily dismissed and shortly thereafter, on December 13, 1983, Mr. Moaveni filed suit for specific performance of his lease. When Simpson refused to post a bond or give other consideration relating to Mr. Moaveni's claim to the premises, appellee stopped paying rent and refused to proceed with renovation plans.

On April 12, 1983, Simpson notified Ms. Chiacchieri by certified mail that because of the nonpayment of rent, he intended to re-enter and repossess the premises on June 1, 1983. A copy of the letter was sent to appellee's attorney, who responded on April 14, 1983, that appellee was in Florida on business and a copy of the letter had been sent to his office. Upon receiving no further reply to his letter to Ms. Chiacchieri, Simpson entered and repossessed the property on June 14, 1983; he changed the locks and posted the premises for trespassers. The next day he notified Ms. Chiacchieri of his action by letter, with a copy to appellee in care of his attorney. About one month later, appellee, through new counsel, contacted Simpson's attorney and subsequently wrote two letters, on August 3 and 11, 1983, the latter expressing surprise that the locks had been changed and that appellee was being denied entry to the premises.

Appellee filed suit for possession against appellants⁶ and Mr. Moaveni on December 19, 1983, six days after Mr. Moaveni had filed a suit for specific performance of his lease. On July 27, 1984, he filed a motion for a preliminary injunction after learning on July 25, 1984, that Simpson intended to lease the premises to a third party.⁷

II

The decision to grant or deny preliminary injunctive relief is committed to the sound discretion of the trial court. In re Antioch University, 418 A.2d 105, 109 (D.C. 1980); Don't Tear It Down, Inc. v. District of Columbia, 395 A.2d 388, 390 (D.C. 1978). Before granting a preliminary injunction, the trial court must be satisfied that the moving party has demonstrated that (1) there is a substantial likelihood he will prevail on the merits; (2) he is in danger of suffering irreparable harm during the pendency of the action; and (3) more harm will result to him from the denial of the injunction than to the nonmovant from its grant. Don't Tear It Down, Inc. v. District of Columbia, supra, 395 A.2d at 390; Wisconsin Avenue Associates v. 2720 Wisconsin Avenue Coop., 385 A.2d 20, 23 (D.C. 1978); Wieck v. Sterenbuch, 350 A.2d 384, 387 (D.C. 1976). Our role on review of the trial court's action is limited. We do not resolve the merits of the underlying dispute between the litigants, A Quaker Action Group v. Hickel, 137 U.S. App.D.C. 176, 180, 421 F.2d 1111, 1115 (1969); Wieck v. Sterenbuch, supra, 350 A.2d at 387, but "(1) examin[e] the trial court's findings and conclusions to see if they are sufficiently supported by the record; (2) assur[e] that the trial court's analysis reflects a resolution of all the issues which necessarily underlie the issuance of an injunction; and (3) inquir[e] into any other claims of an abuse of discretion by the trial court." Wisconsin Avenue Associates, supra, 385 A.2d at 23 (footnote omitted); Wieck v. Sterenbuch, supra, 350 A.2d at 387. Although the trial court is required by Super.Ct.Civ.R. 52(a) and R. 65(d),⁸ to make specific findings of fact and conclusions of law, we have held that the trial court is not required to make findings where there is no factual dispute, Don't Tear It Down, supra, 395 A.2d at 391 (citations omitted), and this court will uphold its ruling if its decision is clearly supported by the record. See id; Wisconsin Avenue Associates, supra, 385 A.2d at 23 (no written findings but ample record, reasoning of court revealed in transcript, and many facts uncontroverted sufficient to affirm trial court's ruling); cf. Stamenich v. Markovic, 462 A.2d 452, 457 (D.C. 1983) (trial court reversed where no findings of fact or conclusions of law made regarding irreparable injury but only one conclusion ascertainable from record).

The motions judge heard argument on the motion for a preliminary injunction on October 25, 1984, issued the injunction from the bench, and required appellee to post a $30,000 bond. In concluding that there was a likelihood that appellee would prevail on the merits and suffer irreparable injury if appellants were allowed to lease the property to another party, the judge found that "a lease [e]ntered into now with [a] third party for the same occupancy of that space would be total confusion, [sic] and obviously [appellee] would be irreparably injured because he would have no way of recouping any interest that he may have in the property." Although no other findings were made, a sufficient record exists for appellate review since we can discern the basis of the order and the facts underlying the order are uncontested or are sufficiently supported by the record.

A.

Appellants contend that appellee is unlikely to succeed on the merits because the rule of Mendes v. Johnson, supra, 389 A.2d 781, that a landlord does not have the right to self-help, is inapplicable to commercial property which has been abandoned by the tenant. Arguing that the statutory remedies, D.C.Code § 16-1501 and § 45-1410 (1981), are premised on a tenant's refusal to relinquish the premises and are therefore irrelevant, they distinguish Mendes v. Johnson on the grounds that it did not involve commercial or unoccupied property, a written lease, or timely notice of an intent to reenter without subsequent objection by the tenant. They also contend that appellants acted lawfully in reentering the premises because a lease provision allowed such entry upon a default for nonpayment of rent. They suggest that Mendes v. Johnson left open the question whether the parties by agreement may authorize a right of reentry. Appellee responds that the motions judge did not abuse his discretion since appellants are required under Mendes v. Johnson to proceed in accordance with § 16-1501. He maintains that he did not abandon the premises or breach his sublease; instead he contends that appellants' action in locking out the original tenant without judicial process resulted in the breach of appellee's right to quiet enjoyment which made it impossible to fulfill his obligations under the sublease.

In Mendes v. Johnson, supra, 389 A.2d at 787, this court, sitting en banc, abrogated the landlord's common law right of selfhelp and held that the legislatively created remedies for reacquiring possession are...