Zanakis v. Brawner Building, Inc.

District of Columbia Court of Appeals

Zanakis v. Brawner Building, Inc.

377 A.2d 67, 1977 D.C. App. LEXIS 379

CourtDistrict of Columbia Court of Appeals

DecidedSeptember 1, 1977

Docket10339

StatusPublished

Cited by7 cases

This text of 377 A.2d 67 (Zanakis v. Brawner Building, 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

Zanakis v. Brawner Building, Inc., 377 A.2d 67, 1977 D.C. App. LEXIS 379 (D.C. 1977).

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PER CURIAM:

This is an appeal from a summary judgment for possession in an action brought by Brawner Building, Inc. against a tenant operating a restaurant in the basement of a downtown office building pursuant to a written lease for a seven-year term from January 1, 1968 to December 31, 1975. On July 10, 1975, several months before the lease was to expire, the landlord began an action for possession, alleging in its complaint that the tenant was four months in arrears on rental payments and had breached a covenant in the lease. In his answer, the tenant denied any default or breach and demanded a jury trial. He also filed an action for damages based on a supplemental agreement and business harassment. On October 23, 1975, both actions were consolidated for trial on the tenant’s motion and a trial date was set but continued until January 12, 1976.

Brawner Building then moved for and was granted a protective order requiring the tenant to pay into the registry three months’ accrued back rent and also the regular rent on or before the first of each succeeding month thereafter. The tenant complied, depositing the three months’ rent in mid-November and the regular rent for December on the first of that month.

When the case was not heard on the date originally set for trial, the landlord, on December 9,1975, moved for a partial summary judgment, effective January 1, 1976, on the ground that the lease by its own terms would terminate on December 31. On that date, the tenant filed an opposition, asserting that the landlord had previously agreed to renew the lease and that in reliance upon such understanding, the tenant had undertaken the operation of a carry-out restaurant at the landlord’s request. The court, however, granted the motion and ordered the tenant to surrender the premises on the 31st, but stayed the order to January 2, 1976 to permit the tenant to note an appeal. This order was dated December 31, 1975.

The tenant contends that the trial court erred in granting possession based not upon the causes of action set forth in the complaint, but upon a motion which at the time of filing stated a ground for relief based upon an event which had not yet occurred — continued occupancy after the expiration date of the lease. We find appellant’s prematurity argument persuasive. In Tatum v. Townsend, D.C.Mun.App., 61 A.2d 478, 479 (1948), we observed:

We think the rights of the parties and the status and condition of plaintiff’s claim are to be tested by the facts as they existed on the day the suit was filed, and not by what developed or what plaintiff was able to accomplish between the filing date and the time of the trial. In two other cases, decided this day, we have made similar rulings. This is in conformity with the rule which is hardly open to question, that no suit can be begun until a cause of action accrues to the plaintiff. (Footnotes omitted.)

Had the landlord waited until after the December 31 termination date and then moved to amend its original complaint on the ground that the tenant had not vacated the premises, it appears that a right of action would have accrued under D.C. Code 1973, § 45-910.¹

We cannot accept the lessor’s contention that the case is moot because the premises are no longer occupied by the tenant, for the latter never unequivocably conceded the landlord’s right to possession, but immediately moved for summary reversal. [69]*69Hohensee v. Manchester, D.C.Mun.App., 102 A.2d 461, cert. denied, 348 U.S. 864, 75 S.Ct. 89, 99 L.Ed. 681 (1954). Hence, we deem Atkins v. United States, D.C.App., 283 A.2d 204 (1971), and Dietz v. Miles Holding Corporation, D.C.App., 277 A.2d 108 (1971), as distinguishable, for the holding of mootness in those cases was grounded upon voluntary departure of the tenants from the leased properties. Here a substantial controversy between the landlord and the tenant existed and still persists. Cf. Atkins v. United States, supra at 205.

Accordingly, the judgment for possession is set aside, and the case is remanded with instructions to set an expedited trial date:

Reversed and remanded.

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PER CURIAM:

This is an appeal from a summary judgment for possession in an action brought by Brawner Building, Inc. against a tenant operating a restaurant in the basement of a downtown office building pursuant to a written lease for a seven-year term from January 1, 1968 to December 31, 1975. On July 10, 1975, several months before the lease was to expire, the landlord began an action for possession, alleging in its complaint that the tenant was four months in arrears on rental payments and had breached a covenant in the lease. In his answer, the tenant denied any default or breach and demanded a jury trial. He also filed an action for damages based on a supplemental agreement and business harassment. On October 23, 1975, both actions were consolidated for trial on the tenant’s motion and a trial date was set but continued until January 12, 1976.

Brawner Building then moved for and was granted a protective order requiring the tenant to pay into the registry three months’ accrued back rent and also the regular rent on or before the first of each succeeding month thereafter. The tenant complied, depositing the three months’ rent in mid-November and the regular rent for December on the first of that month.

When the case was not heard on the date originally set for trial, the landlord, on December 9,1975, moved for a partial summary judgment, effective January 1, 1976, on the ground that the lease by its own terms would terminate on December 31. On that date, the tenant filed an opposition, asserting that the landlord had previously agreed to renew the lease and that in reliance upon such understanding, the tenant had undertaken the operation of a carry-out restaurant at the landlord’s request. The court, however, granted the motion and ordered the tenant to surrender the premises on the 31st, but stayed the order to January 2, 1976 to permit the tenant to note an appeal. This order was dated December 31, 1975.

The tenant contends that the trial court erred in granting possession based not upon the causes of action set forth in the complaint, but upon a motion which at the time of filing stated a ground for relief based upon an event which had not yet occurred — continued occupancy after the expiration date of the lease. We find appellant’s prematurity argument persuasive. In Tatum v. Townsend, D.C.Mun.App., 61 A.2d 478, 479 (1948), we observed:

We think the rights of the parties and the status and condition of plaintiff’s claim are to be tested by the facts as they existed on the day the suit was filed, and not by what developed or what plaintiff was able to accomplish between the filing date and the time of the trial. In two other cases, decided this day, we have made similar rulings. This is in conformity with the rule which is hardly open to question, that no suit can be begun until a cause of action accrues to the plaintiff. (Footnotes omitted.)

Had the landlord waited until after the December 31 termination date and then moved to amend its original complaint on the ground that the tenant had not vacated the premises, it appears that a right of action would have accrued under D.C. Code 1973, § 45-910.¹

We cannot accept the lessor’s contention that the case is moot because the premises are no longer occupied by the tenant, for the latter never unequivocably conceded the landlord’s right to possession, but immediately moved for summary reversal. [69]*69Hohensee v. Manchester, D.C.Mun.App., 102 A.2d 461, cert. denied, 348 U.S. 864, 75 S.Ct. 89, 99 L.Ed. 681 (1954). Hence, we deem Atkins v. United States, D.C.App., 283 A.2d 204 (1971), and Dietz v. Miles Holding Corporation, D.C.App., 277 A.2d 108 (1971), as distinguishable, for the holding of mootness in those cases was grounded upon voluntary departure of the tenants from the leased properties. Here a substantial controversy between the landlord and the tenant existed and still persists. Cf. Atkins v. United States, supra at 205.

Accordingly, the judgment for possession is set aside, and the case is remanded with instructions to set an expedited trial date:

Reversed and remanded.

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377 A.2d 67, 1977 D.C. App. LEXIS 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zanakis-v-brawner-building-inc-dc-1977.

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