NEBEKER, Associate Judge:
This case is another episode in the proliferation of legal weapons on the frontier of landlord-tenant disputes.
On December 29, 1978, the District of Columbia Rental Accommodations Office authorized a rent increase for appellees, Capitol House Associates, to be implemented
On March 9, 1979, the appellee filed suit for possession based on nonpayment of rent. The striking tenants obtained counsel who requested consolidation of the suits and a jury trial. In response, utilizing a now familiar device created by the United States Court of Appeals for the District of Columbia Circuit,
Appellants then requested and received a hearing on the matter. At that hearing, appellants' counsel acknowledged that the amount of the "old" rent was not in dispute but stated that the tenants intended to raise housing code violations as a defense to the action and, therefore, the entire fund should be preserved to meet their claims for potential set-off.
The trial judge examined evidence presented by appellants which consisted of copies of photographs revealing minor paint and plaster defects. In response, appellee testified that these defects had been abated within ninety days of a housing inspection made in June of 1978. After hearing all the evidence, the trial judge noted that the Capitol House building "could fairly be characterized as a middle or upper-middle income apartment house . . . and that the conditions in the building were not typical of inner city low-income developments or projects." Therefore, in view of the de minimis nature of the alleged housing code violations, the court ordered deposit of the full rent into the registry of the court with that portion of the fund equal to the "old" undisputed rent released to the landlord on a monthly basis. The court ruled that "the fund . . . preserved in the registry of the court in this case, in light of the kinds of housing violations which defendants were able to discuss or demonstrate at the hearing on the motion for [a] protective order, was much more than adequate to fully protect the defendants' need for any security in this regard."
Subsequently, appellants were denied a stay of the order in both the trial court and this court. On direct appeal, appellants now charge the trial court with error in releasing the "old" rent from the registry of the court without a full evidentiary hearing at which the appellee would be required to show an extraordinary need for the funds and a likelihood of success on the merits.
At oral argument, we requested supplemental briefs on the question whether the protective order as devised is appealable. We dismiss for want of jurisdiction because the order is neither a final order, an interlocutory order which falls within the provisions of D.C.Code 1973, § 11-721(a)(2), nor an order collateral to the main case under the test of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
Protective orders were first suggested by the circuit court in dictum. See Javins v. First National Realty Corporation, 138 U.S.App.D.C. 369, 381 n.67, 428 F.2d 1071, 1083 n.67, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970). Other jurisdictions have established a similar procedure by statute.
The protective order is an equitable tool of the court requiring the exercise of sound discretion on a case-by-case basis. While the circuit court in Bell, supra, made several suggestions in regard to the procedure and the relevant factors to be weighed in determining an appropriately tailored order,
Appellants contend, however, that the procedure has been abused in this case in that the trial judge has essentially entered two rulings, one imposing the protective order and one releasing monies from the registry of the court to the landlord-appellee. Therefore, in appellants' view, the trial judge was required by the due process clause and the second prong of our decision in McNeal v. Habib, supra at 514, to hold an evidentiary hearing on the merits of the parties' entitlement to the fund. We disagree, finding the judge's action was a permissible exercise of his equity power as outlined by Bell, supra, and McNeal, supra, and the subsequent circuit court decision in Cooks v. Fowler, 148 U.S.App.D.C. 245, 253, 459 F.2d 1269, 1277 (1971).
The evidentiary hearing which appellants seek is only appropriate at the conclusion of the suit for possession if the trial of the case, itself, does not determine the proportionate rights of the parties. In McNeal v. Habib, supra, the action for possession became moot and the trial judge erroneously released the funds to the landlord without holding the necessary hearing. On appeal, we held that a hearing was required at the termination of the controversy to determine the abatement, if any, to which the tenant
A protective order, on the other hand, is filed pretrial when the tenant appears and defends the suit on the basis of housing code violations. At this early stage in the proceedings, the evidentiary hearing which is mandated by McNeal v. Habib for dispersal of funds at the termination of the case is not permissible because it would preempt the controversy and might deny a party's constitutional right to trial by jury. Consequently, a protective order entered by the trial judge is valid only if it is a legitimate exercise of the court's equity power as contemplated by Bell, supra, and effects no permanent disposition of property to the prejudice of the parties such as the order overturned in McNeal v. Habib, supra. Otherwise, a McNeal -type hearing would be required, and we refuse to impose such a requirement at the preliminary stage.
Thus, the issue of whether this pretrial order is an appropriate one is resolved by our examination of the nature of the order. Furthermore, while we believe that the order in this case is a valid protective order, we also hold that the order is not appealable.
We first confirm the rationale for the protective order. The order protects the landlord from forfeiture of income while unwanted tenants hold over in possession without paying rent. It also protects tenants successful in their litigation from forfeiting their lease at the conclusion of the litigation because they cannot make up an unpaid deficiency. Furthermore, it is a manifestation of the good faith of the tenant's asserted defense. See Davis v. Rental Associates, Inc., D.C.App., 431 A.2d 23 (1981). And, finally, it provides a fund from which the tenant may receive an abatement if housing code violations warranting an abatement are indeed found. The order of the trial court in this case fulfills these objectives.
This protective order is also justified because the court has afforded appellants an adequate opportunity to argue the equities of their case. See McNeal v. Habib, supra at 513-14 and note 5, supra. In suing only for possession, the landlord normally passes up his right to collect back rent. See Paregol v. Smith, D.C.Mun.App., 103 A.2d 576, 578 (1954), and Super.Ct. L&T R. 5(b). However, he is entitled to judicial protection of his fair compensation "for the possession he loses during the period of litigation." Cooks v. Fowler, supra, 148 U.S.App.D.C. at 250, 459 F.2d at 1274; Bell, supra, 139 U.S.App.D.C. at 112, 430 F.2d at 485. "In the ordinary course of events . . . the tenant will be called upon to pay into the court registry each month the amount which he originally contracted to pay as rent." Bell, supra at 111, 430 F.2d at 484. The amount necessary to provide this protection may vary depending on the weight given by the court to the appropriate factors. Id.
In an appropriate case where the tenants identify major housing code violations, access to the deposited monies would normally await the outcome of the dispute. But the circuit court which fashioned and approved this equitable remedy also indicated that the court cannot justify "retention in the registry of the court of a portion as to which the tenant's ultimate liability to pay is crystal clear and the landlord's immediate need is extreme." Id. Such pass through, in our view, does not violate due process. In Lindsey v. Normet, 405 U.S. 56, 66-67, 92 S.Ct. 862, 870, 31 L.Ed.2d 36 (1972), the Court found no constitutional barrier to an Oregon statute providing for accrual of rent pending settlement of the underlying litigation. There being no dispute as to the "old" rent which was passed through to the landlord in this case, the order of the trial court is a justified exercise of discretion in fashioning the equitable remedy authorized in Javins, Bell, Cooks, and McNeal. Not only did the court hold the appropriate hearing, but it also permitted appellants nineteen days to prepare. We see no just cause for allowing the protective order to become an economic weapon of unreasonable proportion when its rationale is to assure equity.
Therefore, since we conclude that the trial court's authority to act in this case is justified, we must determine whether these orders are appealable. In no previous case has a protective order per se been appealed directly.
Under D.C.Code 1973, § 11-721(a)(1), we have jurisdiction over "all final orders and judgments of the Superior Court." A final order must dispose of the entire case on the merits and leave nothing remaining but execution of the judgment. Trilon Plaza Co. v. Allstate Leasing Corp., D.C.App., 399 A.2d 34, 36 (1979). In Trilon Plaza, id. at 37, this court held that an order establishing the amount of attorney's fees to be paid by a litigant was conclusive and final for purposes of appeal. In this case, however, the protective order is strictly a preliminary safeguard for the parties and the integrity of the judicial process. It is subject to revision at any time during the pendency of the action. See Blanks v. Fowler, 148 U.S.App.D.C. 258, 260, n.13, 459 F.2d 1282, 1284 n.13 (1971).
The Supreme Court, however, has recognized limited exceptions to the finality rule in order to permit appeal. Where an order of the trial court directs immediate execution of judgment or delivery of property to a litigant which threatens irreparable injury, the order may be considered final. Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848); see also Wright, Miller & Cooper, supra § 3910 at 457. The order entered by the court in this case threatens no danger of loss or destruction to any property of the parties. See Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339, 33 S.Ct. 515, 57 L.Ed. 864 (1913). This exception to the final order rule is too narrow to encompass the order entered here.
Another exception is the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., supra. Cohen is particularly analogous to the issue before us because that case is the homeland of appealable prejudgment security orders.
First, prejudgment security is required of a plaintiff. On the other hand, the protective order requires the pretrial deposit by a defendant-tenant of an amount based on the previously agreed upon rent. As such, from the standpoint of a tenant, the order does not necessarily foreclose access to the court. Second, in Cohen the Supreme Court considered an unresolved question. In this case, the authority of a trial judge to enter a protective order is well settled. The true issue is the question of its amount, the determination of which is vested in the sound discretion of the court. Being a matter of discretion, this order is specifically distinguished by the Supreme Court from an appealable collateral order. "If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question." Id., 337 U.S. at 547, 69
Alternatively, appellants assert that the protective order is an appealable interlocutory order under D.C.Code 1973, § 11-721(a)(2)(C). That statute provides for appeal of orders "changing or affecting the possession of property." A protective order is not appealable under this statute for two reasons. First, the provision is inapplicable to the exchange of money since any danger of loss can be remedied at the conclusion of the litigation. Judicial control is retained. See In re Parsons, D.C.App., 328 A.2d 383 (1974).
Accordingly, the purported appeal is
While we hold that this protective order is not appealable, we do not foreclose review of an order which is a gross abuse of discretion and irreparably injures one party.