Trans-lux Radio City Corp.. v. Serv. Parking Corp...

Citation54 A.2d 144
Decision Date24 July 1947
Docket NumberNo. 506.,506.
PartiesTRANS-LUX RADIO CITY CORPORATION v. SERVICE PARKING CORPORATION.
CourtCourt of Appeals of Columbia District

OPINION TEXT STARTS HERE

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action for possession of a parking lot by Evalyn Walsh McLean against the Service Parking Corporation. The Trans-Lux Radio City Corporation purchased the lot and was made a party plaintiff in the action. From an order directing judgment for possession satisfied of record on defendant making a tender into court, the plaintiff appeals.

Reversed with instructions.

Louis M. Denit, of Washington, D. C. (Coleman L. Diamond, of Washington, D. C., on the brief), for appellant.

Godfrey L. Munter, of Washington, D. C., (William H. Collins, of Washington, D. C., on the brief), for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

HOOD, Associate Judge.

On June 5, 1944, Mrs. Evalyn Walsh McLean filed in the Landlord and Tenant Branch of the Municipal Court a complaint for possession of unimproved real estate used as a parking lot on the ground of nonpayment of rent by Service Parking Corporation, hereinafter referred to as the tenant. Thereafter Trans-Lux Radio City Corporation, successor to the interests of Mrs. McLean, and hereinafter referred to as the landlord, was added as party plaintiff and prosecuted the action. The case was twice tried and on December 8, 1945, the landlord was awarded judgment for possession. An appeal was taken to this court and on May 22, 1946, we affirmed the judgment. Service Parking Corporation v. Trans-Lux Radio City Corporation, D. C. Mun.App., 47 A.2d 400, 405.

In our decision, considering the tenant's complaint that the trial court failed to make special finding as to the exact amount of rent due, we said that from the court's findings ‘simple arithmetic showed that as of the date of the filing of the amended bill of particulars (August 21, 1945) $70,291.34 was due on account of rent.’ Our decision concluded with the following paragraph: ‘In the interest of clarity and in order to avoid confusion as to the amount necessary to satisfy the judgment for possession, we think the judge's finding as to the amount of rent due should be shown in the minute entry of judgment. Accordingly, we order that the judgment below be modified to show that the judgment for possession was entered for nonpayment of rent in the sum of $70,291.34, which sum was due for rent through August 1945. As so modified the judgment will be affirmed.'

The tenant petitioned the United States Court of Appeals for allowance of an appeal from our decision and that court denied the petition on December 16, 1946. Promptly thereafter the tenant tendered to the landlord certified checks aggregating $75,779.74, representing $70,291.34 for rent due through August 1945, interest on that sum from that time to date, and court costs, with a statement that the tenant was prepared to pay the rent accrued since August 1945. The landlord refused to accept the tender and the tenant then filed a motion in the trial court reciting refusal of the tender and asking to be allowed to deposit the money in court, that execution of the judgment be stayed and that the judgment be entered satisfied of record. At hearing on the motion the tenant again tendered the certified checks aggregating $75,779.74 and another certified check for $38,958.22, representing rent from September 1, 1945, to January 31, 1947. Again the landlord refused the tender and the court, holding the original tender sufficient, permitted the tenant to pay into the registry of the court the sum of $75,779.74 and ordered the judgment for possession entered satisfied of record.

The landlord has appealed and urges two main grounds for reversal: (1) The tenant was precluded from avoiding a forfeiture; and (2) even if not so precluded, the tender was insufficient.

At least since Sheets v. Selden, 7 Wall., U.S., 416, 19 L.Ed. 166, it has been the rule in this jurisdiction that a court of law or equity may relieve a tenant from forfeiture of his lease for nonpayment of rent by permitting him before or after judgment, so long as he is in possession, i. e., before ‘execution is executed,’ to pay the rent due, with interest and costs. Upon this being done, a final stay of proceedings is ordered. See also Kann v. King, 204 U.S. 43, 27 S.Ct. 213, 51 L.Ed. 360; Saks v. B. H. Stinemetz & Son Co., 54 App.D.C. 38, 293 F. 1005; Sechrist v. Bryant, 52 App.D.C. 286, 286 F. 456; Davis v. Taylor, 51 App.D.C. 97, 276 F. 619. The landlord, acknowledging this rule, argues that relief from forfeiture ought not and will not be given a tenant whose default in payment of rent is willful, calculated and persistent. 1 Assuming the correctness of this contention, we do not think the tenant comes within such description. The tenant's contention, as disclosed by our former opinion, was that there had been a modification of the rent fixed by the written lease. While the tenant has been persistent in that contention, it was neither fanciful nor arbitrary, and we do not feel such persistence constitutes willful default in view of the tenant's consistent position that it was ready and willing to pay such rent as was ultimately determined by the court to be proper.

The sufficiency of the tender is challenged on the ground that it did not include interest on the various instalments of rent from the respective dates they were due and payable. The tenant's position is that having tendered interest from date of trial to date of tender on the total amount found due at time of trial, it was not required to pay interest from any date previous to the trial court's determination of the amount in default.

The tenant relies heavily on the concluding paragraph of our former opinion hereinbefore quoted, and says that therein we specifically held that forfeiture could have been avoided by payment on entry of judgment of the sum of $70,291.34, the amount of rent then in default, and that inasmuch as we made no reference to interest, in effect we held that no interest for any period prior to the judgment was required. Such construction of our former opinion is erroneous. In that opinion we pointed out that in actions for possession for nonpayment of rent, when no money judgment for rent is sought, it is nevertheless proper practice for the trial court to specifically find the amount of rent in arrears. The reason for this is that while any default in rent may support a judgment for possession, determination of the amount in default is necessary in order that the tenant may know what amount he is required to pay, and the landlord what amount he is entitled to receive, in order to stay enforcement of the judgment for possession. For that reason we held it would have been proper for the trial court to have made express finding as to the amount of arrears; and because of its failure so to do...

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    ...he would be exposed to potential eviction upon completion of the appeal, unless he prevailed on appeal. 3. Trans-Lux Radio City Corp. v. Service Parking Corp., 54 A.2d 144 (D.C. 1947). 4. Re-codified as D.C.Code § 42-3509.01 5. For purposes of these appeals, we need not, and do not decide w......
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