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May 23, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Michael Lee Rankin, Trial Judge

Ferren and Steadman, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Ferren

This case concerns a land-lord-tenant dispute between Melvin Lenkin, General Partner on behalf of 14th and Eye Streets. Associates, and the partnership of Robert M. Beckman and David M. Kirstein. In May 1983, Lenkin, as landlord, entered into a ten-year lease with the partnership of Beckman, Farmer & Kirstein (B, F & K) -- according to Lenkin, the predecessor in interest to Beckman & Kirstein (B & K) -- for office space in a building on 14th and Eye Streets, N.W. The tenants, however, vacated the premises and terminated rental payments in late 1985, almost eight years before the lease expired. Before signing, the parties to the lease had inserted a clause that released the individual partners, on either side, as well as their successors in interest, from any personal liability under the lease. Lenkin appeals from a judgment based on a trial court decision which interpreted this clause as not only releasing Beckman and Kirstein from all personal liability, but also releasing the partnership, B & K, from all partnership liability for breach of the lease agreement. We reverse and remand.


The controversy centers on the interpretation of clause 23(b) *fn1 of the lease and on the rules governing partnership liability in the District of Columbia. The lease, dated May 20, 1983, was to run for ten years beginning on "September 1, 1983, or such earlier or later date upon reasonable completion of the premises as Landlord and Tenant shall agree." Upon reviewing the lease, the attorney for Lenkin's mortgagee wrote, in part, in a letter (dated June 17, 1983) to William Smyth of Walker & Dunlop, Inc.: *fn2

With respect to paragraph 23(b), I am concerned that Landlord has waived the right to enforce the provisions of the Lease against the individual partners of Tenant. It is much more difficult for Landlord to enforce the Lease if the individual partners of Tenant have no personal liability.

Lenkin responded by explaining, also in a letter (dated July 20, 1983) to Smyth:

It is true that the liability of the Tenant in this lease is that of the partnership and not of the individual partners. However, in my business judgment, this was a point which was not of sufficient importance to risk losing the lead tenant in the building.

According to an affidavit of appellee Beckman: "On May 31, 1984, B F & K was dissolved and disbanded." *fn3 As a result, either Beckman "individually, undertook the obligations of the lease" (as Beckman asserts) or the newly-created firm of B & K undertook these obligations (as Lenkin contends). On October 2, 1985, Beckman informed Lenkin by letter -- on B & K stationery -- that "we" intend to vacate the premises by November 30, 1985 and to terminate "our" lease on that date. On January 22, 1987, Lenkin filed suit against Beckman and Kirstein, "on behalf of BECKMAN & KIRSTEIN, a partnership," seeking damages under the lease. Appellees filed a motion to dismiss, which Judge Salzman denied on May 20, 1987. Appellees later filed a motion for summary judgment, which Judge Murphy denied on February 1, 1989.

On March 13, 1989, the matter came to trial before Judge Rankin. On the second day of trial, the defendants moved for judgment in their favor, and the court granted the motion. *fn4 In its Memorandum Opinion and Order, dated March 28, 1989, the court concluded, "pon consideration of the testimony and the facts adduced at trial and during discovery, and the admissions of the parties stated by counsel and witnesses in open court and contained in Answers to Interrogatories," that Lenkin had released Beckman and Kirstein, as individuals, from all liability. It further concluded, as a matter of law -- citing Day v. Avery, 179 U.S. App. D.C. 63, 548 F.2d 1018 (1976), cert. denied, 431 U.S. 908, 52 L. Ed. 2d 394, 97 S. Ct. 1706 (1977) -- that, because a partnership entity cannot be sued in the District of Columbia, Lenkin could not obtain a judgment against the firm of B & K. Having thus eliminated the possibilities of personal and partnership liability, the court entered judgment in favor of Beckman and Kirstein. Lenkin filed a timely appeal.


The first issue is our standard of review of the trial court's order. It is not clear from the record whether appellant finished presenting his case before the court granted defendants-appellees' motion for judgment. *fn5 Appellant represented at oral argument that he had not finished, and appellees have not suggested otherwise. The trial court, however, made written findings of fact and Conclusions of law as required by Super. Ct. Civ. R. 52 (a) when a Judge, in response to a motion for involuntary dismissal, renders judgment on the merits under Super. Ct. Civ. R. 41 (b). See Marshall v. District of Columbia, 391 A.2d 1374, 1379 (1978). The trial court's approach was anomalous, because Rule 41 (b), by its terms, is unavailable until "after the plaintiff . . . has completed the presentation of his [or her] evidence."

Although the court's ruling did not neatly fit under Rule 41 (b), it also did not conform to summary judgment procedure under Super. Ct. Civ. R. 56, where the court considers, first, whether any material fact is in dispute and then, if not, whether the moving party is entitled to judgment as a matter of law. See Nader v. de Toledano, 408 A.2d 31, 41-43 (D.C. 1979), cert. denied, 444 U.S. 1078, 62 L. Ed. 2d 761, 100 S. Ct. 1028 (1980). Typically, in attempting to demonstrate the absence of disputed material facts, the movant relies on affidavits and other documentary evidence, as does the opposing party. See Super. Ct. Civ. R. 56 (c) (judge considers motion for summary judgment based on pleadings, depositions, answers to interrogatories, admissions on file, and affidavits). Trial testimony, followed by findings of fact, is alien to summary judgment.

We need not resolve whether the court's judgment is reviewable under Rule 41 (b), even though the court ruled before the plaintiff completed his case, or under Rule 56, even though the court purported to resolve disputed material facts, or under some other approach. The judgment fails for another reason applicable under any ...

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