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11/20/92 SUITLAND PARKWAY OVERLOOK TENANTS

November 20, 1992

SUITLAND PARKWAY OVERLOOK TENANTS ASSOCIATION, APPELLANT
v.
MINNIE COOPER, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Huhn, Trial Judge)

Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: Appellant Suitland Parkway Overlook Tenants Association (hereafter "the landlord") brought suit in March 1990 against appellee, a tenant, for possession of her apartment because of alleged failure to pay rent. The parties then entered into a series of consent judgments, see Super. Ct. L&T R. 11-1 (1992), which were stayed so long as appellee (hereafter "the tenant") complied with the terms of agreements contained therein. The trial court denied the landlord's application to vacate the stay after the tenant failed to pay her November 1990 rent on time as provided in the agreements. Primarily on the strength of Moore v. Jones, 542 A.2d 1253 (D.C. 1988), we reverse and remand with directions to vacate the stay.

I.

The landlord filed its suit for possession on March 16, 1990, alleging that the tenant had failed to comply with a previous Notice to Cure Violation of Tenancy or Vacate served upon her for failure to pay the rent as required by her lease. On April 11, 1990, the initial hearing date in court, the parties presented to the court a signed praecipe entering judgment of possession for the landlord by consent but providing that judgment would be stayed if the tenant met two conditions. First, she agreed to pay the current two month arrearage in her rent by specified dates. Second, she agreed that for the next twelve months beginning May 5, 1990, she would pay the monthly rent by the fifth day of each month. Upon a failure of either condition, the landlord was entitled to have the stay vacated and a writ of restitution issued. Judge Rufus G. King, III, explained the agreement to the tenant in court, including the condition that the "rent has to be on time every month" during the agreed period. The tenant replied that she understood, and judge King approved the judgment.

On June 5, 1990, the parties presented to the court a revised consent judgment praecipe which amended the earlier judgment by extending the time for payment of the tenant's June rent until June B. The agreement again stayed the judgment of possession provided that from July 1990 to June 1991 the tenant paid the monthly rent by the fifth day of each month. This time the agreement stipulated, in language specially inserted, that "time is of the essence" and that it was "the express understanding of the parties that the landlord would not have entered into this agreement but for the promise of the tenants to pay rent on a timely basis and that the failure of the defendant to make timely payment as agreed herein shall be deemed as a non-curable breach of this agreement.

Judge William C. Gardner explained the agreement fully to the tenant, in particular her obligation "for a whole year to pay your monthly rent . . . on or before the 5th day of each month," failing which the stay would terminate upon 48 hours' notice and "you will not be able to redeem your tenancy by . . . tendering all of the . . . past due rent." In response to the Judge's question, "Is that the agreement you wish to make," the tenant stated "yes." Judge Gardner thereupon approved the agreement.

The tenant failed to pay the September 1990 rent on time and was served with an application for termination of the stay of judgment. On October 11, 1990, however, the parties filed with the court a third consent judgment praecipe which extended the time for the tenant's September and October rent payments until October 19 and 31, respectively. The praecipe also contained typewritten provisions which stated "that amending this agreement has not changed any of the terms and conditions stated in pages 3-5 of the original 6/5/90 agreement," *fn1 whose "terms are in full force and effect," and that the landlord would "not consent to any further amendments to this agreement." Pursuant to Super. Ct. L&T R. 11-1, the Interview and Judgment Clerk approved the consent judgment.

The tenant nonetheless failed to pay her November rent by November 5, and the landlord served her with another application to vacate the stay of judgment. At a hearing on January 25, 1991, before Judge Nan R. Kuhn, the tenant claimed -- and the landlord did not dispute -- that when she had become aware she would be unable to pay the November rent on time, she requested aid under the District of Columbia Emergency Assistance Program (EAP), and on November 5, 1990, an EAP administrator called the landlord "saying they would be paying." The EAP then tendered the rent on or about November 15, 1990, but the landlord refused to accept it. The landlord later declined to accept the tendered December and January rent as well.

Judge Huhn denied the application to vacate the stay of judgment, in essence ruling that the tenant's failure to pay the November rent on time was a "de minimis" violation of the consent judgment and that "equitable principles" counseled against forfeiture of her tenancy, citing Shapiro v. Tauber, 575 A.2d 297 (D.C. 1990).

II.

In Moore v. Jones, supra, the trial court had refused to vacate a consent judgment which embodied an agreement that the tenant, who had fallen behind in her rent for a house, would purchase the house within a specified time or else move out. Instead the trial court allowed the tenant to redeem the tenancy by paying the overdue rent plus costs, relying on the court's equitable authority under Trans-Lux Radio City Corp. v. Service Parking Corp., 54 A.2d 144 (D.C. 1947). *fn2 We reversed, holding that the trial court's decision "effectively modified the terms of the consent judgment," an action "beyond the court's authority." Moore, 542 A.2d at 1254. We explained that

consent judgment is an order of the court, indistinguishable in its legal effect from any other court order, and therefore subject to enforcement like any other court order. It is also a contract, which must be construed within its four corners. It should generally be enforced as written, absent a showing of good cause to set it aside, such as fraud, duress, or mistake.

Id. (citations and internal quotation marks omitted). We observed that allowing the tenant to continue her tenancy by paying the sum due "ordinarily . . . would be routine," but that "here . . . it directly conflicts with the consent judgment, which is presumptively valid and hence enforceable." Id. at 1255. We concluded the policy considerations supporting a Trans-Lux ...


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