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10/02/90 JUDD M. LOFCHIE v. WASHINGTON SQUARE

October 2, 1990

JUDD M. LOFCHIE, APPELLANT
v.
WASHINGTON SQUARE LIMITED PARTNERSHIP, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Reggie B. Walton, Trial Judge

Terry, Schwelb, and Farrell, Associate Judges. Opinion for the court by Associate Judge Terry. Concurring opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: Terry

Appellant Lofchie, the tenant, appeals from a decision of the Landlord and Tenant Branch of the Superior Court granting appellee Washington Square Limited Partnership, the landlord, a money judgment for rent and interest. Lofchie principally argues that the money judgment is invalid because he was not personally served with the complaint. He also contends that Washington Square, a partnership, lacked the capacity to sue him in the partnership's name. We reject both arguments and affirm the judgment.

On May 1, 1985, Judd Lofchie and Robert Dumas leased Suite 1210 in an office building at 1050 Connecticut Avenue, N.W., from Washington Square Limited Partnership. *fn1 The lease, which was for two years, set a monthly "basic rent" of $12,912.50 for the offices. Sections 1 (a)(9) and 1 (a)(12) of the lease also made the tenants responsible for payment of their share (0.73 percent of the building's operating expenses.

When Lofchie failed to pay the basic rent for April 1986, Washington Square filed suit for possession and rent due, which included both the basic rent and the charge for operating expenses. Instead of personally serving Lofchie with a copy of the summons and complaint, however, a process server merely left copies of those documents with an unidentified receptionist at Lofchie's office, and then mailed copies to Lofchie at 1050 Connecticut Avenue, N.W., Suite 1210. Dumas, who filed a bankruptcy petition, was never served at all. *fn2

Lofchie, an attorney, appeared in court alone on the initial return date and requested a continuance so that he could obtain an attorney to file an answer on his behalf. When the case next came before the court, however, Lofchie was still without counsel. Finally, three weeks after the return date, he filed an answer pro se in which he asserted three "affirmative defenses": (1) that he had not been provided with a "tax bill" as required by the lease, (2) that he had not been given sufficient information to determine the basis for the assessment of his portion of the operating expenses, and (3) that he had been fraudulently induced into signing the lease when Washington Square (presumably through its agents, whom he named elsewhere in the answer) represented to him that the operating expenses would be "nominal"; acting on this information, he said, he signed the lease agreement. Some time after filing his answer, Lofchie retained counsel.

It is apparently undisputed that Lofchie vacated the leased offices on or about June 7, 1986.

The trial began two and a half weeks later, on June 24. At trial Lofchie's counsel reiterated a claim raised in an earlier motion that the court lacked jurisdiction over the case because Lofchie had vacated the premises. A few moments later, in the course of arguing that Washington Square should not receive the $12,912.50 that Lofchie had previously deposited in the court registry under a protective order, counsel for Lofchie asserted several setoff defenses, all of which the court rejected because they were not appropriate in an action involving a commercial lease.

After two days of testimony, *fn3 the trial had to be continued because some of those involved, including the Judge, would not all be available again on the same date for several weeks. Shortly before the trial resumed in September, counsel for Lofchie filed a motion for summary judgment, asserting for the first time that Washington Square's claim for a money judgment could not be considered because Lofchie had not been personally served with the complaint, as required by Super. Ct. L&T R. 3.

The trial eventually ended, and the court took the case under advisement. In due course the court issued a memorandum opinion, finding that Washington Square had failed to serve Lofchie personally. The court also ruled, without explanation, that Lofchie "did not assert a counterclaim or defense of recoupment or setoff in his answer" that would enable the court, under Rule 3, to award a money judgment notwithstanding the defective service of process. It held nevertheless that Washington Square was entitled to a money judgment, as well as possession of the leased premises, because Lofchie had waived the defective service of process by failing to raise it until more than two months after the trial began.

II

At oral argument in this court, Lofchie claimed for the first time that Washington Square, a partnership, lacked the capacity to sue him in the partnership name. Super. Ct. Civ. R. 9 (a) -- which is made applicable to landlord and tenant proceedings by Super. Ct. L&T R. 2 -- expressly states that a party seeking to challenge the capacity of his adversary to sue "shall do so by specific negative averment." Following the federal courts' interpretation of the corresponding federal rule, Fed. R. Civ. P. 9 (a), we hold that Lofchie waived his right under Civil Rule 9 (a) to challenge the capacity of Washington Square to sue by failing to raise the issue before trial. Ralston Oil & Gas Co. v. Gensco, Inc., 706 F.2d 685, 692 (5th Cir. 1983); Lang v. Texas & Pacific Ry., 624 F.2d 1275, 1277 (5th Cir. 1980); Garbincius v. Boston Edison Co., 621 F.2d 1171, 1174 (1st Cir. 1980).

III

The primary issue presented on this appeal is whether the requirements of Super. Ct. L&T R. 3 were met in this case. In ...


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