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June 21, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Michael Lee Rankin, Trial Judge

Terry and Farrell, Associate Judges, and Belson, Associate Judge, Retired.* Dissenting opinion by Associate Judge Belson, Retired.

The opinion of the court was delivered by: Farrell

Housing provider Brenda Joyce appeals the trial court's denial of her motion to set aside the dismissal of her suit for possession, to reinstate the protective order in the case, and to order the tenants to redeposit $6,775.00 into the court registry that had been released to the tenants. Because the trial Judge did not abuse his discretion in denying the motion, we affirm.


In October 1986, Joyce brought suit in the Landlord and Tenant branch of Superior Court against two tenants, Shirley Walker and Joseph Webb, for nonpayment of rent. The court stayed the suits pending resolution of the tenants' petitions filed with the District of Columbia Department of Consumer and Regulatory Affairs, Rental Accommodations and Conversion Division (RACD). Following the June 13, 1988, RACD decision, which was favorable to Walker and Webb, the tenants moved the trial court to set aside the stay, reconvene the proceedings, release all funds in the registry, and dismiss Joyce's complaints for possession. The tenants represented in their motion that they would serve Joyce at four different locations to ensure she received a copy of the motion. Joyce did not appear at the July 1, 1988, hearing on the motion. *fn1 The trial court released the funds in the registry to the tenants and dismissed the complaints for possession. Joyce did not appeal.

On December 19, 1988, pursuant to Super. Ct. Civ. R. 60 (b)(3) (1990), Joyce moved to set aside the dismissal, reinstate the protective order and order the tenants to redeposit the monies that were released from the registry. Joyce alleged that she had never received a copy of the tenants' motion to vacate the stay. On January 10, 1989, following a hearing, the trial court denied Joyce's motion. *fn2


On appeal, Joyce challenges the trial court's dismissal of the complaints for possession, disbursal of the registry funds, and refusal to reinstate the suits for possession. We do not directly consider Joyce's challenges to the dismissal or disbursal of the registry funds. Joyce did not appeal from the trial court's July 1, 1988 order, and her motion to set aside the dismissal pursuant to Super. Ct. Civ. R. 60 (b)(3) may not be used as a substitute for appeal. Joseph v. Parekh, 351 A.2d 204, 205 (D.C. 1976). The only issue before us is whether the trial court abused its discretion in denying the Rule 60 (b) motion. Id.; see State Farm Mutual Automobile Ins. Co. v. Brown, 593 A.2d 184, 185 (D.C. 1991).

It is true that, "because courts universally favor trial on the merits, even a slight abuse of discretion in refusing to set aside a judgment may justify reversal." Starling v. Jephunneh Lawrence & Assocs., 495 A.2d 1157, 1159 (D.C. 1985). Factors to be considered are

whether the movant (1) had actual notice of the proceedings; (2) acted in good faith; (3) took prompt action; and (4) presented an adequate defense. Prejudice to the non-moving party is also relevant.

Id. at 1159-60. We may concede that Joyce "presented an adequate defense," which in this context means that she had a sound legal position in arguing that the court should not have vacated the stay pending any appeal of the RACD decision to the agency and this court. *fn3 Nevertheless, we conclude that the trial court did not abuse its discretion in denying the motion to set aside the judgment.

Both in her written motion and in argument on the motion, Joyce claimed under Rule 60 (b)(3) that the release of the money in the registry and the dismissal of her claims had been "fraudulently obtained" by Walker and Webb, *fn4 in that they had attempted service of their motion by means they knew or should have known would be ineffective. At the hearing the tenants detailed their efforts to serve Joyce with the motion at four different locations, including her home address. In addition, Webb read a portion of the June 13, 1988 RACD decision in which the hearing examiner had alluded to Joyce's allegations that she had not received numerous notices, letters and other documents "not only from the , but also from Housing Inspectors and employees of RACD." The examiner's report, which the trial court had read, pointed out that "more than one housing inspector testified that they personally served with notices of housing code violations, however, she repeatedly denied that she was served many of the notices." In light of "the sheer number of items" Joyce claimed not to have received, the examiner had "discounted her 'lack of receipt' claims."

At the court hearing Joyce acknowledged that, while the mailbox at her home address had been "bombed" years earlier, any mail sent there was automatically forwarded to her post office box number; yet when the court asked her why she had been unable to pick up mail being held for her at the post office, she offered no responsive explanation. The trial court therefore rejected the claim that Webb and Walker had procured the dismissal by fraud or misconduct, finding that they had "made a diligent and conscientious effort to serve a copy of their motion" on Joyce. Although the court did not find that Joyce had actually received notice of the proceeding, the inference is unmistakable that it concluded she alone -- and not Walker or Webb -- was responsible for her failure to respond to the tenants' motion.

The court further found that Joyce had "made no effort to contest the motions filed by [Walker and Webb] prior to December 29, 1988," six months after her claims were dismissed and the monies in the registry returned to the tenants. As pointed out above, the timeliness of action taken by the party seeking to set aside a judgment, as well as prejudice to the non-moving party, are factors to be considered by the trial court. In her motion to set aside the dismissal, Joyce asserted only that she had not become aware of the July 1 action of the trial court lifting the stay and dismissing her claims until December 15, 1988, when she was in court on another matter. Joyce did not dispute that the court, following normal practice, would have served her with the dismissal order at the address listed on her complaint, nor did she explain her failure to notify the court of any change of address. We reject the suggestion that, given the stay of court proceedings which had been ordered, Joyce had no reason to expect any communications from the court and hence no duty to keep the court informed of her mailing address for purposes of service. The upshot was that she sought reinstatement of her claims and repayment of nearly $7,000 by the tenants into the registry fully six months after the money had been ...

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