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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 17-CV-678

                          MICHAEL CHAMBERS, APPELLANT,               10/4/2018
                                      V.

                             JESSICA COBB, APPELLEE.

                           Appeal from the Superior Court
                            of the District of Columbia
                                  (LTB-30715-15)

                          (Hon. Joan Zeldon, Trial Judge)

(Submitted June 4, 2018                                 Decided August 9, 2018)*
      Michael Chambers, pro se.

      Adrian P. Torres was on the brief for appellee.
      Before FISHER, THOMPSON, and EASTERLY, Associate Judges.


      THOMPSON, Associate Judge: Pro se appellant Michael Chambers appeals

from a May 22, 2017, judgment of the Superior Court Landlord and Tenant Branch

enforcing a court-approved settlement agreement between Chambers (and his wife)

and appellee Jessica Cobb. The court enforced the settlement agreement upon a
      *
          The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court’s
grant of a motion to publish by the District of Columbia Office of the Tenant
Advocate.
                                         2

finding that Cobb, the former tenant of a property owned by the Chamberses,

substantially complied with the agreement. Mr. Chambers’s primary contention on

appeal is that the court’s ruling effectively modified the terms of the settlement

agreement. We affirm.




                                         I.




      The settlement agreement, entered into by the parties on October 4, 2016,

and approved by the court, arose out of a complaint filed by the Chamberses in the

Landlord and Tenant Branch to recover possession of the Chamberses’ property at

2406 Perry Street, N.E. (“the property”), pursuant to the recovery for “personal use

and occupancy” clause of D.C. Code § 42-3505.01 (d). The parties agreed to entry

of a nonredeemable judgment of possession, which was to be stayed until

March 31, 2017, the agreed-upon date by which Ms. Cobb was to move out of the

property.1 The first sentence of ¶ 1 of the agreement obligated Ms. Cobb to

“vacate the [p]roperty, leave broom-clean, and return all keys to [the Chamberses]

      1
         Ms. Cobb asserts in her brief that she resided in the property for “almost
thirty years.”
                                          3

no later than 5 pm” on that date. The next sentence of the agreement states that

“[t]ime is of the essence.” Under ¶ 3 of the agreement, Ms. Cobb was further

required to pay rent “in the amount of $800.00 per month” for October and

November of that year and was “responsible for the full and timely payment of all

utilities through the date she vacates.” The settlement agreement provided that

“[i]f and only if [Ms. Cobb] vacates as required in ¶ 1, and pays as required in ¶ 3,”

the Chamberses would “[r]emit to [her] funds in the amount of $4,000.00 by

March 31, 2017.”2



      On April 18, 2017, Ms. Cobb moved to reopen the case to enforce the

settlement agreement. At a hearing on that motion on May 22, 2017, the motion

judge heard testimony from Mr. Chambers and from Monique Cobb, appellee

Cobb’s daughter, who had resided with her mother in the property (hereafter,

“Monique”).    Monique told the court that when Mr. Chambers and his wife

“showed up” at the property on March 31 at “about 4:50 p.m.,” she told them that

she had asked Ms. Cobb’s counsel to send Mr. Chambers an email “to ask for an

extension of time.” Monique further testified that she told the Chamberses that the

Cobb family had moved household items out of the property “on multiple times”

      2
         In addition to this $4,000, the settlement agreement provided that
“[c]ontemporaneous with execution of this [a]greement,” the Chamberses were to
pay Ms. Cobb $6,000. That payment is not in issue in this appeal.
                                         4

and had called for bulk trash pickup in connection with the move, but on March 31

had been slowed down in moving remaining household items because “it was

windy, it was raining, [and] it was storming.” Monique testified that she told the

Chamberses that the Cobb family “would be done [moving out] at 9:00 p.m.”

Monique further testified that she “waited after 9:00 p.m. about 20 minutes to see

if [the Chamberses] . . . would return.” Since they did not return, Monique left a

note dated March 31, 2017, 9:17 p.m., which Mr. Chambers read to the court, that

stated in pertinent part, “Please see inside envelope for keys. Regarding trash

outside, we will be back to collect this weekend.”



      The court received documentary evidence that Ms. Cobb’s counsel sent an

email to Mr. Chambers on March 31 at 4:43 p.m. “asking for a slight extension

until 9:00 pm [that] []night to move everything,” explaining that Ms. Cobb was

“moving out the last bit of [her] belongings,” but that “the rain ha[d] unfortunately

slowed down that process.” Mr. Chambers responded at 5:07 p.m. stating that

appellee was “supposed to be out by 5:00 p.m.,” that she had therefore “violated

condition #1” of the settlement agreement, and that he would therefore “not be

paying [her] the remainder [$4,000] of the money.”
                                          5

      Mr. Chambers told the court that after receiving the email from Ms. Cobb’s

counsel at 4:43 p.m. on March 31 requesting an extension of time and responding

with an email denying the request, and after leaving the property at the conclusion

of his discussion with Monique, he “did not return [to the property] until [he] got

[a] notice from [Ms. Cobb’s counsel] . . . on April 3,” stating that “[t]he Cobbs

vacated the apartment on March 31st and left the keys to access the property in the

mailbox at that time.”



      At the conclusion of the testimony, the motion judge ruled that Ms. Cobb

had “substantially complied with the [settlement] agreement,” that any breach was

“de minimis,” and that “whatever [Mr. Chambers was] supposed to do for [Ms.

Cobb] under th[e] agreement still is viable.”



      This appeal followed. Mr. Chambers argues that by its ruling, the Superior

Court effectively modified the terms of the settlement agreement, a resolution that

Mr. Chambers asserts was “beyond [the] court’s authority” and improperly

required him to “do something [i.e., pay the $4,000] that was conditioned upon

[Ms. Cobb’s] fully complying with [the] provision” that required her to have

moved out of the property by 5:00 p.m. on March 31, 2017. Mr. Chambers

contends that the court’s ruling ignored the agreement’s “time is of the essence”
                                            6

clause.3 Ms. Cobb relies on contract case law from this jurisdiction and others that

looks to whether a breach was material or de minimis and whether the non-

breaching party was harmed by the breach, and case law that declines to rigidly

apply time-is-of-the-essence clauses so as to avoid forfeitures, particularly in non-

commercial contexts.




                                           II.




      This court has stressed “the importance of enforcing valid consent

judgments,” observing that where a consent judgment has been entered embodying

      3
          Appellant also contends that the Superior Court judge “fail[ed] to state a
‘discernible reason’ to support her ruling,” and “erred in failing to issue written
findings of fact and conclusions of law to support her ruling” and “in allowing
testimony of [Monique] who was not a signatory to the settlement agreement.” To
the first point, the trial judge succinctly stated the basis for her ruling, i.e. that any
breach was de minimis and that Ms. Cobb substantially complied with the
settlement agreement. To the second point, ‘“[p]roceedings in the Landlord and
Tenant Branch are of a summary nature,”’ Davis v. Rental Assocs., Inc., 456 A.2d
820, 822 (D.C. 1983) (quoting Mahdi v. Poretsky Mgmt., Inc., 433 A.2d 1085,
1088 (D.C. 1981)), and there is no requirement (as there is in some divisions of the
Superior Court, see, e.g., Super. Ct. Dom. Rel. R. 52 (a)) that the Landlord and
Tenant Court issue written findings of fact or conclusions of law. And to the third
point, Monique was an eyewitness to what transpired on the designated move-out
day, and the court acted well within its discretion in allowing Monique to testify on
personal knowledge about the events and conditions she witnessed.
                                          7

the settlement agreement, the agreement “should not be modified in favor of either

party, absent the most compelling reasons.” Suitland Parkway Overlook Tenants

Ass’n v. Cooper, 616 A.2d 346, 349 (D.C. 1992) (internal quotation marks

omitted) (holding that the trial court erred in failing to vacate the stay of judgment

after tenant’s rent was tendered ten days later than required under the terms of a

consent judgment, which provided that failure to timely pay rent would be a non-

curable breach preventing tenant from redeeming her tenancy and entitling the

landlord to a writ of restitution, id. at 348-49). We have said that the trial court is

not “at liberty to [modify or] disregard the explicit terms of a consent judgment”

by declaring that a breach is “de minimis” and “insufficient to justify forfeiture,”

lest the court “undercut everything [this court has] said . . . about the presumptive

validity ‘and hence enforceab[ility]’ of consent judgments.” Id. at 349 (quoting

Moore v. Jones, 542 A.2d 1253, 1255 (D.C. 1988) (holding that when tenant did

not purchase property as agreed in court-approved settlement agreement, failing

which she was to move out of the premises under the terms of the agreement, the

trial court erred in denying landlord’s motion to lift the stay of judgment and in

ruling that tenant could redeem her tenancy by paying overdue rent, because that

modification of the agreement was beyond the court’s authority, id. at 1254-56)).

We have “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.”
                                           8

Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc., 667 A.2d 822, 826 (D.C.

1995) (internal quotation marks omitted) (remanding to allow the tenant to present

evidence of claimed timely payment under the agreement, which proof was

required to avoid lifting of the stay of judgment under the terms of consent order,

id. at 824, 827). Thus, we have declined to treat settlement agreements approved

by the court in precisely the same way as leases or other purely private agreements

between the parties. Suitland Parkway, 616 A.2d at 351.



      On the other hand, this court has endorsed the principle that “equity abhors

forfeitures . . . [and] so indeed does the law.” Tsintolas Realty Co. v. Mendez, 984

A.2d 181, 186 (D.C. 2009) (internal quotation marks omitted). In Tsintolas, a

settlement agreement, which had been approved by the court, provided that tenants

had until April 30, 2008, to vacate their unit, but also provided an incentive for the

tenants to move out sooner: “if they vacated no later than March 31, and if they

gave notice to the landlord of their intention to do so no later than March 5, then

the tenants would not be required to pay rent for the month[s] of March” and April;

and “[i]f the tenants did not vacate their unit before April 1, . . . the rent for March

and April was to be subtracted from the agreed upon amount that the landlord was

required to pay the tenants under the terms of the settlement.” Id. at 184. “The

settlement agreement also contained a confidentiality provision prohibiting the
                                          9

tenants from divulging the terms of the settlement” and providing that the landlord

“was entitled to recover the entire settlement amount from the tenants if the tenants

divulged the terms of the agreement.” Id. After the landlord refused to make the

payment specified in the agreement, the tenants, who had vacated their apartment

by April 30, moved to enforce the settlement agreement. Id. at 184-85. The

landlord claimed that the tenants had breached the confidentiality provision by

filing the agreement with their motion to enforce without causing it to be filed

under seal, and contended that “this alleged material breach by the tenants nullified

the landlord’s obligations set forth in the settlement agreement.” Id. at 185-86.

The trial court disagreed with the landlord’s contention that the tenants committed

a breach, but this court’s focus was on whether the claimed breach of the

confidentiality provision, if committed, nullified the landlord’s obligation.



      We observed that “the agreement had been a matter of public record for

several weeks before the tenants filed their motion” and had been read aloud in

open court at the time it was approved, and that the landlord had taken “no action

to prevent the agreement from becoming, and remaining, a part of the case jacket.”

Id. at 186.    In that context we addressed the “gravamen of the landlord’s

claim . . . that by their alleged violation of the confidentiality provision (which,

under the agreement, constituted a material breach), the tenants forfeited their right
                                         10

to the agreed upon settlement amount.” Id. Citing the principle that “equity

abhors forfeitures,” we said that the case “falls within the ‘no harm no foul’ rule.”

Id. We held that “[s]ince [the landlord] has suffered no monetary harm from any

alleged breach [of the settlement agreement], the [tenants are] not liable and there

can be no set-off to the sum[] owed on the [settlement agreement] by [the

landlord].” Id. at 187 (internal quotation marks omitted). “In other words,” we

explained, “although adherence to the confidentiality provision was a significant

obligation imposed on the tenants by the settlement agreement, the discernable

consequences to the landlord of the tenants having attached a copy of the

agreement to the motion were nil.” Id. (emphasis added).4          We rejected the

landlord’s argument that “the lack of injury made no legal difference,” reasoning

instead that “[p]roportionality is of consummate importance in judicious

adjudication.” Id. (internal quotation marks omitted).



      Tsintolas guides our resolution of this case. We need not decide whether, as

the trial judge found, Ms. Cobb’s failure to be out of the premises by the March 31

at 5:00 p.m. move-out time constituted a “de minimis” breach or substantial

      4
          That was because “[a] citizen who examined the case jacket before the
tenants’ motion was filed would have had access to the settlement agreement, and
the filing of the motion just added a second copy. Nothing really changed.”
Tsintolas, 984 A.2d at 187.
                                        11

compliance with the court-approved settlement agreement obligation. Rather, we

decide that Mr. Chambers was not entitled to avoid payment of the $4,000 owed

under the agreement because he did not prove or even proffer that he was harmed

by the Cobbs’ four-hour tardiness in completing the move.5 Quite the contrary, he

testified that after leaving the property around 5:00 p.m. on March 31, he did not

return until after he received an email from Ms. Cobb’s counsel on April 3. We

take this as evidence that the Chamberses did not urgently need exclusive access to

the property by the evening of March 31, and there is no evidence that Mr.

Chambers or his wife was precluded from doing anything with respect to the

property because of the four-hour delay.6       In other words, “the discernable

consequences to the [Chamberses of the four-hour delay] . . . were nil.” Tsintolas,

984 A.2d at 187.



      This case is quite unlike Suitland Parkway and Moore, in which the

consequence to the landlord of the trial court’s excusal of the tenant’s late action

      5
          The record does not support Mr. Chambers’s assertion that the April 3,
2017, email to him from Ms. Cobb’s attorney was “evidence that [Ms. Cobb] had,
in fact, unilaterally extended the deadline in the agreement for no fewer than 3
days.”
       6
          We acknowledge Mr. Chambers’s argument that, under the terms of the
settlement agreement, Ms. Cobb was allowed to live rent-free on the property for
four months, but the forgone $3,200 in rent was not the result of the four-hour
move-out delay. The Cobbs’s four-hour delay did, however, excuse the
Chamberses from remitting the $4,000 to Ms. Cobb “by March 31, 2017.”
                                         12

was to allow the tenants to preserve their tenancies, in derogation of the landlords’

bargained-for objective of ending the tenancies of tenants who were chronically

late in meeting their lease obligations. Here, there was no dispute that the Cobbs

had vacated the property and ended their tenancy by the night of March 31. And

while Mr. Chambers argues in his brief that the 5:00 p.m. move-out time was of

“vital importance,” he has proffered no reason why that was so (that might

occasion a remand for the trial court to take evidence on the issue). In this

circumstance, we decline to require the forfeiture (of $4,000) that Mr. Chambers

advocates — which, as far as the record reflects, is grossly disproportionate to any

injurious consequence of the four-hour delay — or to otherwise disturb the

judgment in favor of Ms. Cobb.



      A final point: One of the recitals to the settlement agreement states the

Chamberses’ allegation that they were entitled to a “nonredeemable judgment of

possession and an eviction.” Even if Ms. Cobb’s delay in moving had entitled the

Chamberses to Ms. Cobb’s immediate eviction, the policies then surrounding

eviction in the District of Columbia would have precluded an eviction on March

31. Under the eviction procedures of the U.S. Marshals Service as of March 31,

2017, no evictions would be completed “when a 50% or greater chance of

precipitation is forecasted for the next 24 hours.”      U.S. MARSHALS SERVICE,
                                        13

https://www.usmarshals.gov/district/dc-sc/general/evictions.htm (last visited July

25, 2018). Mr. Chambers does not contest that it was raining on March 31, 2017,

(and, per Monique’s testimony it was also windy and stormy that day). If, as the

motion judge appeared to accept, it was raining that evening, that is a “most

compelling reason[],” Suitland Parkway, 616 A.2d at 349 (internal quotation marks

omitted), to avoid the forfeiture that Mr. Chambers urges.



      Wherefore the judgment of the Superior Court is


                                      Affirmed.
