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December 20, 1991


Appeal from the Superior Court of the District of Columbia; (Hon. Rufus G. King, III, Trial Judge)

Before Ferren and Terry, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge: In this landlord-tenant case, the tenant (Haynes) appeals from a judgment of possession in favor of the landlord (Logan) based on the tenant's failure to make payments into the registry of the court as required by a protective order. The tenant argues that the trial court did not follow the procedures outlined in path's in Davis v. Rental Associates, Inc., 456 A.2d 820 (D.C. 1983) (en banc), for entering a judgment of possession. We agree and reverse.

In July 1988 Haynes moved into a basement apartment in a house that Logan later purchased. Because Haynes failed to pay his monthly rent between November 1989 and February 1990, Logan sued for possession in February 1990. At the first hearing in the case, Logan made an oral motion for a protective order. The court did not rule on the motion but continued the case for two weeks. When the hearing reconvened, Haynes alleged *fn1 that there were substantial housing code violations at the apartment, and as a result the court set the matter for a " Bell hearing" to determine whether these allegations justified setting the protective order payments below the rent level. *fn2 Following the hearing on April 12, 1990, the court found there were no serious complaints by Haynes of housing code violations that Logan had refused to remedy. The court therefore entered a protective order requiring Haynes to pay the rent agreed upon in the lease, $450 per month, into the court registry.

Between April and September 1990, Haynes sought and received the court's permission to make late protective order payments on four occasions. On September 17 Haynes made another late payment request, but this time his request was denied. When Haynes filed a motion for reconsideration, Logan in his opposition requested entry of a judgment of possession. The court granted that request in an order dated December 3, 1990, which entered judgment in favor of Logan for possession of the apartment and released the funds in the registry to him. The court based its order, in part, on the fact that "there was a recent Bell hearing." We note, however, that the Bell hearing was held almost eight months earlier before a different Judge from the one who entered the judgment of possession.

A court may, in its discretion, strike a tenant's pleadings and enter a judgment of possession in favor of a landlord when the tenant fails to comply with a protective order, but only after "holding a proper inquiry . . . ." Taylor v. First American Title Co., 477 A.2d 227, 230 (D.C. 1984) (citation omitted) accord, e.g., Jamison v. S & H Associates, 487 A.2d 619, 621 (D.C. 1985); Battle v. Nash, 470 A.2d 1252, 1254 (D.C. 1983) Davis v. Rental Associates, supra, 456 A.2d at 826. The plurality opinion in Davis, which this court has consistently followed in later cases, lists three factors which the trial court must consider: the extent of the tenant's non-compliance with the protective order, the reasons for that non-compliance, and the landlord's right to be free from governmental takings without just compensation. Davis v. Rental Associates, supra, 456 A.2d at 826-827; see Battle v. Nash, supra, 470 A.2d at 1254-1255. Because the trial court entered a judgment of possession without doing so, that judgment must be reversed.

Logan argues that by virtue of the testimony presented at the Bell hearing in April and the hearing in September on Haynes' request to make a late protective order payment, as well as the averments in Haynes' motion for reconsideration of the denial of that request, the Davis factors were adequately considered before the court entered its judgment of possession in December. We cannot agree. It is undisputed that the court entered that judgment without hearing any testimony regarding Haynes' non-compliance with the protective order. While the court may well have taken into consideration the matters that Haynes stressed in his motion for reconsideration filed in September -- his reasons for failing to make the September rent payment, his prior efforts to gain extensions, and the fact that he had met previous payment deadlines *fn3 -- the court's failure to hold a hearing on the landlord's request for a judgment of possession cannot be overlooked or excused. This court has consistently held that a hearing is a prerequisite to the entry of a judgment of possession based on non-compliance with a protective order. *fn4 The case law simply does not support Logan's argument that an accumulation of hearings on other matters before different trial Judges may substitute for the hearing mandated by Davis and subsequent cases.

Haynes also contends -- without having raised the issue in the trial court -- that Logan was not entitled to possession because he failed to prove the allegation in his complaint that Haynes had waived his right to a notice to quit. *fn5 We said in Jamison v. S & H Associates, supra, that "if the landlord alleges in a complaint for possession that the tenant has waived the right to a notice to quit, and the tenant contests that allegation, then the landlord must affirmatively prove either that there has been a waiver or that a notice has been served." 487 A.2d at 621 (emphasis added). In this case Haynes had ample opportunity to contest Logan's allegation of waiver, *fn6 but because he failed to do so, we hold that the rule announced in Jamison does not apply here. *fn7

On the printed complaint form, in the section pertaining to notice to quit, Logan checked the box indicating that such notice had been waived in writing.

The judgment granting possession to the landlord is reversed on the ground that the court failed to hold a hearing on the landlord's request for judgment. This case is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

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