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October 16, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Iraline Green Barnes, Motions Judge)

Before Steadman and Sullivan, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge:

In a possessory action by appellant Rona Foote LaPrade against her tenant, appellee Claudia Liebler, a protective order was entered pursuant to which Liebler paid into the court registry a total of $2,550. *fn1 At a McNeal *fn2 hearing held by the trial court after Liebler's original jury demand had been withdrawn over LaPrade's objection, the trial court ordered a rebate of $345, with the balance to be paid to LaPrade. LaPrade takes an appeal from this order, asserting first, that the protective order itself was improper since it was sought by Liebler, the tenant, over the landlord's objection, and second, that she had been denied her right to trial by jury. We hold that the protective order was properly issued but that LaPrade was deprived of her right to trial by jury on the McNeal issues. *fn3


First, appellant argues that only landlords, and not tenants, are entitled to protective orders with respect to disputed rental funds and that, therefore, the August 11, 1988, protective order was improperly entered upon tenant's motion. *fn4 A protective order in landlord and tenant disputes is "an equitable remedy designed 'to avoid placing one party at severe disadvantage during the period of litigation.'" Smith v. Interstate General Corp., 462 A.2d 1133, 1134 (D.C. 1983) (quoting Bell v. Tsintolas Realty Co., 139 U.S. App. D.C. 101, 109, 430 F.2d 474, 482 (1970)). While it is true that motions for protective orders requiring deposits into the court registry commonly come from landlords rather than from tenants and there is a certain anomaly in the tenant's seeking an order directed to herself, appellant has not cited, nor can we find, any authority reserving that privilege exclusively to landlord movants. "'The protective order is an equitable tool of the court requiring the exercise of sound discretion on a case-by-case basis.'" Davis v. Rental Associates, Inc., 456 A.2d 820, 824 (D.C. 1983) (en banc) (quoting Dameron v. Capitol House Associates, 431 A.2d 580, 583 (D.C. 1981)). " protective order has no permanent impact on the rights of the parties but only maintains the status quo between the landlord and the tenant." Id. Because the protective order "benefits both landlord and tenant," we see no obstacle to a motion by either side for such an order where the amount of rent due is in dispute. *fn5 Dameron, supra, 431 A.2d at 583 n.4; see Davis, supra, 456 A.2d at 824; McNeal, supra, 346 A.2d at 512.


Second, appellant correctly asserts that she was wrongfully deprived of her right to a jury in the McNeal hearing. In Habib v. Thurston, 517 A.2d 1 (D.C. 1985), we held that, although its origins lie in equity, a McNeal hearing is effectively an action at law and that "each party's jury right, therefore, must be preserved." Id. at 23. See Super. Ct. Civ. R. 38(a); U.S. CONST. amdnd. VII. Thus, "a tenant or a landlord is entitled to a jury trial, upon timely request, to determine the parties' respective rights in the fund deposited by the tenant in the court registry pursuant to a protective order covering the period while a landlord's action for possession is pending." Habib, supra, 517 A.2d at 24.

In this case, it was the tenant who made the original request for a jury trial. *fn6 Once made, a demand for trial by jury "may not be withdrawn without the consent of the parties." Super. Ct. Civ. R. 38(d); *fn7 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2318 (1971) ("If a proper demand for a jury has been made, it cannot be withdrawn without the consent of all the parties"). It is not disputed that LaPrade never agreed to appellee's requested withdrawal of the jury demand by praecipe of November 21, 1989. Indeed, beneath appellee's handwritten praecipe, stating "please withdraw Defendant's jury demand in these proceedings with leave of court," the trial court noted "over objection of ." *fn8 In her motion for reconsideration of the order granting the jury demand withdrawal, appellant repeated her objection, adverting specifically to the strictures of Civil Rules 38(d) and 39(a). We must conclude that the trial court incorrectly permitted appellee unilaterally to withdraw her jury demand without appellant's consent and over her objection, and hence reverse the McNeal order and remand for a jury trial on the issue. *fn9

Reversed and remanded.

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