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B.F. Saul Co v. Wendy Tiefenbacher

September 22, 2011

B.F. SAUL CO., APPELLANT,
v.
WENDY TIEFENBACHER, ET AL., APPELLEES.



Appeal from an Order of the Superior Court of the District of Columbia (2006 LTB 20902) (Hon. Erik P. Christian, Motions Judge)

The opinion of the court was delivered by: Senior Judge Newman.

Before GLICKMAN and OBERLY, Associate Judges, and NEWMAN, Senior Judge.

Opinion for the court by Senior Judge NEWMAN.

Concurring opinion by Associate Judge OBERLY, at p. 9.

NEWMAN, Senior Judge: This matter is before a motions division on the appeal of B.F. Saul Co. (BFSC), agent for the landlord, from an order of the Superior Court denying its motion to release funds, pendente lite, paid into the registry of the trial court by appellees, Kenneth A. Mazzer and Wendy Tiefenbacher (tenants). BFSC asserts that the trial court's order is interlocutorily appealable pursuant to D.C. Code § 11-721 (a)(2) (2011 Supp.), and because it has the "practical effect" of an injunction pursuant to McQueen v. Lustine Realty Co., 547 A.2d 172, 176 (D.C. 1988) (en banc). We conclude that neither D.C. Code § 11-721 (a)(2) nor McQueen supports this contention. Indeed, the pertinent authorities are to the contrary. Thus, we hold that we lack jurisdiction over this appeal and dismiss it.

I.

On June 21, 2006, BFSC instituted the underlying action against tenants for, inter alia, possession of a residential apartment in the Kennedy Warren Apartments, premised upon tenants' non-payment of rent. The trial court later stayed the action and issued a protective order requiring that tenants make monthly payments into the court registry. Following a subsequent dismissal of claims made by tenants against BFSC before the Office of Administrative Hearings, BFSC moved to release the funds from the court registry. At an April 4, 2011 hearing, the trial judge orally denied this motion, noting that the underlying matter was still pending as tenants appealed the denial of their claims to the Rental Housing Commission.

On May 3, 2011, BFSC petitioned this court for interlocutory review of the trial judge's refusal to release the funds. This court, sua sponte, issued an Order to Show Cause why this appeal should not be dismissed as being taken from a non-appealable order.

II.

BFSC contends this appeal is properly before us. It first cites to D.C. Code § 11-721 (a)(2), which vests this court with appellate jurisdiction to review interlocutory orders that refuse "to dissolve or modify injunctions[.]"*fn1 Secondly, BFSC contends the order is an appealable interlocutory order pursuant to McQueen, supra, 547 A.2d at 176 and its progeny.*fn2

This is a case of first impression. Never before have we decided whether a pendente lite order, entered in the exercise of the trial court's discretion, denying a landlord's motion to withdraw funds deposited in the registry of the trial court pursuant to a protective order in a suit for possession of residential real estate is an interlocutorily appealable order.

In McQueen, supra, 547 A.2d at 173, the en banc court was presented with the question whether a tenant who had been ordered to make "protective payments" into the registry of the court during the pendency of a suit for possession could take an interlocutory appeal from such an order. Judge Ferren, writing for the unanimous en banc court, acknowledged the conflict in our prior decisions: Dameron v. Capitol House Assocs. Ltd. Partnership, 431 A.2d 580 (D.C. 1981) (holding tenants could not interlocutorily appeal a protective order), and Taylor v. First Am. Title Co., 477 A.2d 227 (D.C. 1984) (holding such an order subject to interlocutory appeal by the tenants under the "collateral order" test of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)).

While explicitly declining to resolve the conflict between them or to follow either Dameron or Taylor, "we conclude[d] that [the] protective order ha[d] the 'practical effect' of an injunction under Carson v. American Brands, Inc., 450 U.S. 79 (1981)" and thus was an interlocutorily appealable order. McQueen, supra, 547 A.2d at 174.

In Carson, supra, 450 U.S. at 84, when construing the federal jurisdictional statute codified at 28 U.S.C. § 1292 (2010),*fn3 Justice Brennan, ...

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