Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc.

667 A.2d 822, 1995 D.C. App. LEXIS 223, 1995 WL 646629
CourtDistrict of Columbia Court of Appeals
DecidedNovember 6, 1995
Docket93-CV-306
StatusPublished
Cited by17 cases

This text of 667 A.2d 822 (Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc., 667 A.2d 822, 1995 D.C. App. LEXIS 223, 1995 WL 646629 (D.C. 1995).

Opinions

FARRELL, Associate Judge:

This is an appeal from an order denying appellant’s motion to vacate a consent order and judgment for possession and to dismiss appellee’s underlying suit for possession of commercial property. We vacate the order denying the motion and remand for the limited purpose of allowing appellant an opportunity to present evidence that it made the rent arrearage payments prescribed by the consent order in timely fashion.

I.

Appellee Sandoz & Lamberton, Inc. (San-doz) sued appellant Camalier & Buckley (Ca-malier) for possession of leased real estate and for unpaid rent, late fees, and other costs totalling $48,590.58. Before trial the parties negotiated and entered into a settlement. On January 3,1992, they executed and Judge Richard Salzman approved a consent order and judgment for possession (consent order) entitling Sandoz to possession of the premises and rent due. Execution was stayed, however, on the condition that Camalier, inter alia, pay the arrearage plus interest according to a precise schedule set forth in the consent order.1 For its part, Sandoz agreed [824]*824to a reduction in the regular rent for the duration of 1992.

The consent order set forth consequences to the parties of both compliance and noncompliance with the payment schedule:

(7) ... If the tenant makes all payments required under paragraphs (1), (8), (4) and (5) between the time of the entry hereof and December 1, 1992, then upon the final payment due December 1,1992, this Judgment shall be deemed fully satisfied and shall be of no further force or effect and, upon tenant’s motion, shall be vacated and the case dismissed.

Conversely, if Camalier failed “to make any payments as hereinabove agreed, through December 1, 1992,” Sandoz, “upon filing an Application for Termination of Stay” with the Clerk of the Superior Court “and without further order of Court,” would “be entitled to have this stay set aside and vacated, to have immediate issuance of a writ of restitution, and to have the right to take any action permitted under law to collect Judgment herein.” 2

It is undisputed that Camalier eventually made the payments required by the consent order. What is disputed is the timing of the payments. Both parties also concede that the interest Camalier should have paid by December 1, 1992, was paid late following Sandoz’s demand for an exact sum of interest in a letter dated January 27,1993. Claiming to have satisfied the judgment, Camalier filed a motion to vacate the consent order and dismiss the case on February 25, 1993, requesting a hearing. Sandoz filed its opposition to the motion on the morning of the hearing, March 4,1993. Whereas the affidavit of Camalier’s president asserted that all payments due under the consent order had been timely made except for the interest payment,3 Sandoz countered that Camalier had not made a single one of the approximately sixteen payments on time, supporting this with an affidavit of its accounting manager which documented the late payments as reflected in a ledger.4 Because Camalier had failed to comply with the terms of the consent order, Sandoz opposed vacation of the order and dismissal of its suit.

Camalier responded that, because it had received Sandoz’s opposition only that morning, it was not prepared to show the precise date when payments were made but that it disputed the claims of nonpayment and wished to present evidence of compliance. It also made legal arguments, discussed in part III, infra, as to why even if the payments were late as alleged, Sandoz’s conduct (including failure expressly to make time of the essence in the consent order) excused its belated compliance inasmuch as all of the payments had eventually been made and accepted. After hearing argument but without delaying ruling until Camalier could present [825]*825evidence rebutting Sandoz’s affidavit and ledger entries, the trial judge denied the motion to vacate and dismiss.

Camalier noted an appeal on March 16, 1993, by which time Sandoz had not exercised any of its options for enforcement of the consent order and judgment, which therefore remains stayed.

II.

We first consider Sandoz’s motion to dismiss the appeal for lack of a final order, relying on the fact that Sandoz has not sought termination of the stay. A motions division of this court previously denied the motion to dismiss, but we directed the parties to discuss the issue at oral argument.5 Like the motions division, we hold that the order denying Camalier’s motion to vacate was a final order and hence appealable. D.C.Code § ll-721(a)(l) (1989).

The trial judge, though without explanation, necessarily accepted Sandoz’s contention that Camalier failed to make some or all of the payments as required by the consent order. The judge therefore denied Camalier its remedy for satisfaction of the consent order, i.e., vacation of the judgment and dismissal of the underlying suit. Unless Cama-lier may appeal that ruling, all that remains to be done in the trial court is for Sandoz to exercise its rights under the consent order, including filing an application with the Clerk of the Superior Court for termination of the stay, whereupon—“without further order of the Court”—Sandoz is entitled to issuance of a writ of restitution and eviction of Camalier from the property. In short, the procedures that remain in the trial court before Camalier may be evicted are ministerial.

To be “final” under § ll-721(a)(l), an order must “ ‘dispose[ ] of the whole ease on its merits so that the court has nothing remaining to do but to execute the judgment or decree already rendered.’” Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 36 (D.C.1979) (quoting McBryde v. Metropolitan Life Ins. Co., 221 A.2d 718, 720 (D.C.1966)). The trial judge’s order meets that test. The fact that Sandoz, believing that Camalier’s appeal divested the Superior Court of jurisdiction to issue the writ of restitution, has not yet sought the writ and dispossession is inconsequential. Camalier is not required to live under the suspended sword of execution on the judgment when its right to have the judgment vacated and the suit dismissed has been determined.

III.

On the merits, Camalier first contends that, assuming it failed to make payments (all or any) by the dates specified in the consent order, Sandoz waived its entitlement to judgment by accepting the late payments without objection, and further that the absence of an express “time is of the essence” clause from the agreement excused Camalier’s failure to make payments in accordance with the schedule. We reject these arguments.

A consent order

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.

Moore v. Jones,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Michael Chambers v. Jessica Cobb
District of Columbia Court of Appeals, 2018
Chambers v. Cobb
193 A.3d 123 (District of Columbia Court of Appeals, 2018)
ROSITA JUUL v. LYNETTE RAWLINGS
153 A.3d 749 (District of Columbia Court of Appeals, 2017)
State v. Johnson
70 A.3d 168 (Connecticut Appellate Court, 2013)
State v. Riley
58 A.3d 304 (Connecticut Appellate Court, 2013)
State v. Diaz
25 A.3d 594 (Supreme Court of Connecticut, 2011)
State v. Ryder
23 A.3d 694 (Supreme Court of Connecticut, 2011)
In re Johnson R.
15 A.3d 145 (Supreme Court of Connecticut, 2011)
Sanders v. MOLLA
985 A.2d 439 (District of Columbia Court of Appeals, 2009)
3511 13th Street Tenants' Ass'n v. 3511 13th Street, N.W. Residences, LLC
922 A.2d 439 (District of Columbia Court of Appeals, 2007)
Akassy v. William Penn Apartments Ltd. Partnership
891 A.2d 291 (District of Columbia Court of Appeals, 2006)
Puckrein v. Jenkins
884 A.2d 46 (District of Columbia Court of Appeals, 2005)
Federal Marketing Co. v. Virginia Impression Products Co.
823 A.2d 513 (District of Columbia Court of Appeals, 2003)
Fields v. McPherson
756 A.2d 420 (District of Columbia Court of Appeals, 2000)
Anderson v. United States
754 A.2d 920 (District of Columbia Court of Appeals, 2000)
West v. Morris
711 A.2d 1269 (District of Columbia Court of Appeals, 1998)
Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc.
667 A.2d 822 (District of Columbia Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
667 A.2d 822, 1995 D.C. App. LEXIS 223, 1995 WL 646629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/camalier-buckley-inc-v-sandoz-lamberton-inc-dc-1995.