Berlin v. Aluisi

BLOOM, Judge. The central issue before us concerns a tenant’s right, pursuant to Md.Real Prop.Code Ann. § 8-401(e), to redeem his leasehold estate at any time before actual execution of an eviction order. On November 12, 1981, appellant, Arnold Berlin, trading as Village in the Woods Apartments, filed a summary ejectment complaint in the District Court for Prince George’s County alleging that a tenant named Joyce Pauley, who was ³⁹² living at an apartment in Landover, Maryland, owned by appellant, had failed to pay her rent. Trial on that complaint was held on December 3, 1981; and a judgment was entered in favor of the landlord for $375.00, the amount of rent determined to be owed for November 1981, and for restitution of the premises.

Thereafter, the tenant paid $154.00 to appellant leaving a balance due for the November rent in the amount of $221.00. Appellant then filed a petition for a warrant of restitution, reciting the judgment and the partial payment. The district court issued the warrant, which was in the following language: To Sheriff of this County/Constable of this Court, Greetings: Whereas at the trial of this case, the Court determined the amount of rent due to be $375.00 and judgment was rendered in favor of the plaintiff for possession of the premises as shown above. Now, therefore, you are commanded forthwith to deliver to the said plaintiff possession of the said property [X] Unless tenant tenders to the landlord or his agent, cash, certified check or money order in the amount of $221.00 plus $_costs. sfc s}: # The warrant, which could be executed either by the Sheriff of Prince George’s County or the constable of the District Court, was sent by the court to the sheriff.

On December 29, 1981, Lawrence T. Gabourel, a deputy of Prince George’s County Sheriff James V. Aluisi, appeared at the apartment of Joyce Pauley in Landover for the purpose of executing the warrant of restitution by evicting the tenant. At that time Joyce Pauley tendered to the landlord the sum of $224.00 representing the balance due for the rent for the month of November plus $3.00 court costs. Appellant demanded that the tenant pay all of the rent then due, including the December rent of $375.00, a $5.00 late charge for the month of November, and a $5.00 late charge for the month of December for a total of $385.00 in addition to the ³⁹³ tendered $224.00. When the tenant refused to pay the additional amounts that appellant claimed were due as of that date, appellant requested that Deputy Gabourel carry out the eviction.

Acting in accordance with the standard procedures adopted by the sheriff in cases under Md.Real Prop.Code Ann. § 8 401(e), the deputy refused to carry out the eviction and permitted the tenant to remain on the premises. Appellant then filed in the Circuit Court for Prince George’s County a petition for a writ of mandamus, injunction, declaratory judgment, damages, and action on the sheriff’s bond against appellees James V. Aluisi, Sheriff of Prince George’s County; Lawrence T. Gabourel, his deputy; and Fidelity Deposit Company of Maryland (later Fidelity and Deposit Company of Maryland), the sheriff’s bonding company. The matter was presented on an agreed statement of facts; and, after a brief hearing, all of appellant’s requests for relief were denied by the court. An appeal to this court followed.

In a per curiam opinion filed January 20, 1983, we dismissed the appeal without deciding any of the issues because a final judgment or order had never been entered in the case below. In our opinion we suggested that the expedited appeal process of Rule 1029 would be appropriate after the tenant whose eviction had been sought had been made a party to the action and, of course, after entry of a final judgment. Appellee Joyce Pauley, the tenant, was then joined as a defendant; and on July 29,1983, the circuit court (Mason, J.) entered the following order: ORDERED, 1. That defendants James V. Aluisi, Sheriff of Prince George’s County, Deputy Lawrence T. Gabourel, Fidelity Deposit Company of Maryland, and Fidelity and Deposit Company of Maryland not be held liable in this case as they acted in good faith and in accordance with their legislative duties when they refused to execute an eviction ³⁹⁴ order when the tenant, defendant Joyce Pauley, tendered an amount of past rent determined by the Court to be due. 2.

That the language of Maryland Real Property Article 8-401(c)(5) affords a tenant a right of redemption from a landlord’s judgment for possession if the tenant tenders rent determined by the Court to be due. In the instant case that amount, determined by the District Court, was $221.00 plus $3.00 court costs; the tenant tendered said amount and the sheriff was thus restrained from carrying out any further eviction order. 3. That a landlord does have a right to repossession of his property when the Court has determined a precise amount of rent is in arrears. When said amount is tendered by the tenant, the landlord no longer has a right to repossession of the premises. 4.

This Court hereby declares and issues as a declaratory judgment the following interpretation of Maryland Real Property Article 8-401(e). The Sheriff of Prince George’s County, his deputies and his agents have a duty to carry out an eviction order when a landlord is awarded judgment giving him restitution of the leased premises. The tenant has a right, however, to redemption of the property if the tenant tenders in cash, certified check or money order to the landlord, or his agents all past due rent and late fees at any time before actual execution of the eviction order. The term all past due rent and late fees shall be interpreted to mean all rent and fees as determined by the Court at the time the Warrant for Restitution is issued, not all rent due at the time of tender, at the time of the execution of the eviction order or any other time.

The sheriff, his deputies and his agents do not have the authority to collect any more monies from the tenant that [sic] the amount determined by the court to be due. 5. That the plaintiff’s prayers for Writ of Mandamus, Injunctive Relief, Declaratory Judgment, Damages and Action of the Sheriff’s Bond be denied. ³⁹⁵ This appeal is from that order. Appellant contends that: A Sheriff has a duty to: “Cause the landlord to have again and repossess by putting him (or his duly qualified agent or attorney for his benefit) in possession thereof and for that purpose to remove from the property, by force if necessary, all furniture, implements, tools, goods, effects or other chattels of every description whatsoever belonging to the tenant, or to any person claiming or holding by or under said tenant.” Real Property, 8-401(d) unless the tenant tenders: “. . . in cash, certified check or money order to the landlord or his agent all past due rent and late fees, plus all Court awarded costs and fees, at any time before actual execution of the eviction order.” Real Property, 8-401(e). That contention is based upon a misinterpretation of § 8-401(d).

The statute does not speak in terms of the duties of the sheriff or constable; it is a directive to the District Court as the commencement of subsection (d) clearly indicates: If judgment is given in favor of the landlord, and the tenant fails to comply with the requirements of the order within two days, the court shall, at any time after the expiration of two days, issue its warrant, directed to any official of the county entitled to serve process, ordering him to cause the landlord to have again and repossess.... (emphasis added) The duty of the sheriff, therefore, is to execute the warrant, not to interpret the statute. In this case, the warrant explicitly instructed the sheriff “forthwith to deliver to the said plaintiff possession of the said property unless tenant tenders to the landlord or his agent . . . $221.00 plus .. . costs.” The sheriff’s authority and duty derived from and were measured by the precise language of that warrant. Over 150 years ago, the Court of Appeals said, with reference to a writ of fieri facias: ³⁹⁶ The mandate goes to the sheriff to seize and sell the lands, and if it be regular in its inception, he derives his authority from the writ, and is bound to execute it.

Hanson v. Barnes, 3 G. & J. 359, 366 (1831). The same principle would apply to a warrant of restitution — the sheriff is obliged to obey the mandate of the process. See Md.Cts. & Jud.Proc.Code Ann. § 2-301(a). Since appellant’s claims for mandamus and injunctive relief as well as his claims for damages against the sheriff, his deputy and his surety were all based upon the duty of the sheriff in executing the particular warrant of restitution, the court’s dismissal of those claims was clearly correct.

The sheriff, through his deputy, properly performed his duty according to the mandate of the process he was directed to serve. The declaratory judgment aspect of the case, however, presents a somewhat different problem, since it goes beyond the duty of a particular officer in executing a given warrant of restitution containing a specific directive. This declaratory judgment purports to define the respective rights and obligations of landlords and tenants, generally, under § 8-401(e). In Maryland, prior to 1937, a landlord had no legal right to evict a tenant for nonpayment of rent.

If a lease contained a provision for termination of the tenancy upon default of the tenant, the landlord could give the tenant due notice to quit the premises and thereafter take action to eject him as unlawfully holding over at the expiration of the tenancy. Otherwise, the landlord was left to the remedy of distress for rent. Chapter 529 of the Laws of 1937, adding §§ 27 through 33 to Article 53 of the Annotated Code of Maryland, created the remedy of eviction of a tenant for nonpayment of rent as well as a summary procedure for enforcing that remedy. Those provisions, as amended from time to time, are now contained in Md.Real Prop.Ann.Code § 8-401.

After the filing of a complaint in the District Court and issuance of a summons, a trial is held (normally on the fifth day after the ³⁹⁷ complaint is filed, but there are provisions for adjournments); and if the court finds that rent is actually due and unpaid, the amount thereof is determined and the landlord is given a judgment for possession of the premises. If service of process was adequate to support a judgment in personam, the court may also give judgment for the rent found to be due, plus costs. The tenant is ordered to yield and render possession of the premises to the landlord within two days after the trial. Section 8-401(b) and (c).

If the tenant fails to comply with the order to yield possession of the premises within two days, the court shall, at any time thereafter, issue its warrant of restitution, § 8-401(d), which, as we have noted, directs the sheriff or constable to evict the tenant and put the landlord in possession. By Chapter 490 of the Laws of 1973 [now § 8-401(e) ], the tenant was given a right to redeem the demised premises after judgment and prior to eviction. The issue before us is the meaning of the phrase “all past due rent and late fees” in that subsection, which reads, in pertinent part, as follows: In any action of summary ejectment for failure to pay rent where the landlord is awarded a judgment giving him restitution of the leased premises, the tenant shall have the right to redemption of the leased premises by tendering in cash, certified check or money order to the landlord or his agent all past due rent and late fees, plus all court awarded costs and fees, at any time before actual execution of the eviction order, (emphasis added) Appellant contends that “all past due rent” means the amount of rent due at the time the tenant exercises his right of redemption by tendering payment. Appellees, on the other hand, claim that “all past due rent” means the amount of rent determined by the court to be due.

It is, of course, a cardinal rule of statutory construction that statutes