Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc. , 667 A.2d 822 ( 1995 )

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 to 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 evidence 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, 542 A.2d 1253, 1254 (D.C.1988) (citations and internal quotation marks omitted). “To encourage voluntary settlements, settlement agreements should not be modified in favor of either party, absent the most compelling reasons.” Id. at 1255. As we pointed out in Suitland Parkway Overlook Tenants Assoc. v. Cooper, 616 A.2d 346 (D.C.1992), “the compelling reasons [Moore ] referred to require ‘a showing of good cause to set ... aside [the judgment], such as fraud, duress, or mistake.’ ” Id. at 351 (quoting Moore, 542 A.2d at 1254).

Accepting Camalier’s waiver argument would effectively modify the consent order, which contains no provision conditioning San-doz’s right to execute on the judgment on prior objections to a late payment. Rather, “[u]pon failure of the tenant to make any payments as hereinabove agreed,” Sandoz was entitled to an immediate writ of restitution as described above, without having to make a demand. This court long ago directed enforcement of a consent judgment for failure to pay a rent arrearage by the required date despite the tenant’s claim that payment had been made as soon as he was notified of the delinquency. Maiatico v. Novick, 108 A.2d 540, 541 (D.C.1954).

Camalier asserts none of the “compelling reasons” cited in Moore for departure from the terms of the consent order. Instead it relies on the equitable principle that “the course of conduct of the parties may bring about a modification of their strict legal rights and obligations to the point that the creditor could be said to have created a waiver of its right to accelerate [or, as here, to evict] ‘without at least implicitly giving prior notice of its intention to do so should default again occur.’” Kummli v. Myers, 130 U.S.App.D.C. 303, 306, 400 F.2d 774, 777 (1968) (quoting Har-Rich Realty Corp. v. American Consumer Indus., Inc., 122 U.S.App.D.C. 88, 90, 351 F.2d 785, 787 (1965)). But Camalier cites no decision applying this principle to a consent judgment, “which is presumptively valid and hence enforceable” as written. Moore, 542 A.2d at 1255. In Suitland Parkway we rejected the notion that the disfavored status of forfeitures is cause “to imply an equitable authority in the trial court to modify a consent judgment where none of the compelling reasons required by Moore is present.” 616 A.2d at 351. See also Trammell v. Estep, 42 A.2d 501, 502 (D.C.1945) (landlord’s forbearance does not permit “destruction of rights established by a valid judgment” stayed by parties’ consent). We thus reject the argument that Sandoz waived its right to enforce the judgment by prior failure to object to the late payments.

For similar reasons, the absence of a time is of the essence clause did not excuse Camalier’s noncompliance with the order. Camalier, in return for a substantial reduction in current rent for the length of the agreement, yielded possession of the premises to Sandoz without further court order if it failed to make any of the payments as agreed. The order set forth an exact schedule by which the arrearage and interest payments were to be made. See note 1, supra. In these circumstances we decline to read significance into the absence of a provision making late payment inexcusable (i.e., time of the essence). Camalier misreads Suitland Parkway, supra, as indicating that the presence of such a clause in that ease was pivotal to enforcement of the judgment as written. It was a factor—but only that—in our explanation of why the tenant’s single breach of a payment deadline could not “be viewed in isolation.” 616 A.2d at 349. There had been three successive consent orders between the parties, two containing a time is of the essence provision. We concluded that “[w]ere we to excuse [the single failure to pay the November rent timely] as insubstantial or de minimis, we would render the succession of consent judgments largely meaningless.” Id. at 350 (emphasis added). What Camalier can legitimately argue is that Suitland Parkway requires the court to view a single breach of a consent order within the context of the tenant’s entire performance. But Ca-malier concedes for purposes of the present argument that it made more than one—indeed, a sizeable number—of the required payments late. Suitland Parkway provides no basis for relieving it of the consequences of that failure.

IV.

Camalier’s remaining argument stands on better footing. It contends that the trial judge denied it the opportunity to present evidence rebutting the landlord’s records showing the late payments. Sandoz responds that we need not reach this argument because Camalier admits that one payment, the accrued interest due on December 1, 1992, was not made until February 11, 1993. Camalier asserts only that the parties both “mistakenly believed” that the interest was included in the arrearage sums already paid, but we agree with Sandoz that the consent order was explicit in obligating Ca-malier to pay a separate interest sum on or before December 1. Nevertheless, as pointed out above, our decision in Suitland, Parkway leaves it questionable whether we would allow forfeiture for breach of a single term of a consent order without regard to the tenant’s performance generally. It thus becomes important whether the trial judge had a sufficient basis on which to conclude that Camalier had been late on additional payments under the agreement.

Camalier filed its motion to vacate judgment and attached to it the affidavit of its president asserting that it had made all payments timely under the order. A hearing was scheduled for five working days later, pursuant to Super.Ct.L & T R. 13(c) (1993). On the morning of the hearing, Sandoz filed its opposition to the motion, appending to the submission the affidavit of its accounting manager detailing Camalier’s tardiness. At the hearing, Camalier’s attorney made the arguments of waiver and substantial compliance (no “time is of the essence” clause) we have rejected, but also stated its wish to present evidence challenging the accountant’s information. See Tr. 17 (“we have not conceded ... that those allegations are correct”); 9 (“Perhaps I’m not entitled to dismissal until I have a hearing”); 4 (“I suppose we’re going to have to have testimony on it” if judge concludes precise date of payments is critical). Sandoz argues that the trial judge properly refused to hold a hearing because Camalier’s attorney admitted that he had “not been able to confirm with [his] client when those payments were made.” But given the fact that Sandoz had challenged Camalier’s assertion of compliance for the first time that morning, we conclude that it was error for the trial judge not to continue the matter for a short period to allow Camalier the opportunity to present evidence.

Super.Ct.L & T R. 12(b) provides that when parties to a landlord and tenant dispute cannot settle their controversy,

the Court shall proceed with a trial on the merits of the case.... [T]he Court shall eonduet the trial informally and in such manner as to fully elicit all matters of defense and all facts in the case which will enable the Court to arrive at a just decision on the merits.

While this “informality” would seem to support Camalier’s request for additional time, Sandoz argues that it is out of place in a proceeding on the tenant’s motion to vacate a judgment (albeit stayed) already entered against it; in that setting the tenant must be ready with its evidence as soon as the ease is heard. But we think this confuses the policy of strict reading and enforcement of consent orders, exemplified in part III, supra, and the separate issue of a party’s fair opportunity to show compliance with the order. If Camalier failed to make any of the rent or arrearage payments on time (together with its conceded failure to pay the accrued interest timely), then Sandoz is entitled to execution on the judgment. But Rule 12(b)’s contemplation of a procedure flexible enough to promote “a just decision on the merits” implies that Camalier’s showing should not have been cut off at the threshold. We note that although Camalier’s final payment under the agreement was due on December 1,1992, Sandoz asserted no claim of breach until the morning of the hearing on March 4, 1993. Camalier’s unreadiness to document its compliance at the hearing was therefore not surprising. On remand it must be permitted the chance to do so.

Vacated and remanded.

1 . In pertinent part, the agreement provided as follows:

(1) From January 1, 1992 to January 1, 1993, the reduced monthly rent shall be $7,533.75 and shall be due and payable on the first day of each month;

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(3) On January 1, 1992, the tenant shall pay $15,931.50 (reflecting credit for payments required and made under order of October 28, 1991) in real estate taxes due under the Lease. Upon payment of this amount, tenant shall be deemed current in all real estate taxes due and payable under the Lease to date.

(4) The tenant shall pay any real estate taxes which become due after January 1, 1992 pursuant to paragraph 5 of the Lease;

(5) The parties agree that the Judgment for the arrearage owed by the Tenant is $48,-598.58. The tenant will repay that amount, plus interest running from April 1st, 1991 at an 8% annual rate, compounded monthly as follows:

(a) The amount of $10,000.00 shall be paid on or before January 1, 1992; the amount of $10,000.00 shall be paid on or before February 1, 1992;

(b) The amount of $5,000.00 shall be paid on or before March 1, 1992;

(c) The amount of $5,000.00 shall be paid on or before April 1, 1992;

(d) The amount of $10,000.00 shall be paid on or before November 1, 1992; and

(e)The amount of $8,590.58 plus accrued interest shall be paid on or before December 1, 1992;

(6)The tenant shall pay court costs of $13.75 on January 1, 1992.

2 . In addition, Sandoz, on filing a motion for entry of judgment, would be "entitled to an additional Judgment for” unpaid rent accruing after the date of the consent order, the rent reduction provided by the consent order, and attorney’s fees and costs.

3 . Camalier argued that it should be excused from this breach because the consent order was unclear as to how the interest was to be paid and the parties had operated under the mutual mistaken belief that interest was already included in the delineated payments.

4 . Sandoz also asserted that the consent order was explicit and unambiguous that the interest due on December 1 was in addition to the other scheduled payments.

5 . See District of Columbia v. Trustees of Amherst College, 499 A.2d 918, 920 (D.C.1985) (denial of motion to dismiss by motions division "without prejudice” to reconsideration by merits division).