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12/08/92 DISTRICT COLUMBIA v. ANDREW J. SERAFIN

December 8, 1992

DISTRICT OF COLUMBIA, APPELLANT
v.
ANDREW J. SERAFIN, ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. William S. Thompson, Motions Judge)

Before Terry, Farrell and Wagner, Associate Judges.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: This case involves a dispute between the District of Columbia and appellees, Andrew J. Serafin and Marilou S. Serafin, over water and sewer bills for appellees' sixty unit apartment building located at 1458 Columbia Road, N.W. in the District of Columbia. The trial court dismissed appellant's complaint pursuant to Super. Ct. Civ. R. 41 (b) for appellant's failure to comply with an order of the court. *fn1 Appellant argues on appeal that the trial court erred in concluding that the District violated a court order when it removed a water meter from appellees' building for testing and that the trial court abused its discretion in dismissing the case. Whether or not the District technically violated an order prohibiting removal of the meter, the record before us reveals no evidence of a deliberate violation of a court order such as would justify the sanction of dismissal. Since, in addition, we conclude that the Judge failed to consider lesser sanctions for the alleged unauthorized removal, we vacate the dismissal and remand the case for further proceedings consistent with this opinion.

I.

The District commenced this action by filing a complaint against appellees for failure to pay the full amount of water and sewer charges which the District claimed then totaled $54,648.32, covering the period December 27, 1978 through March 4, 1985. The District subsequently amended its complaint to include an arrearage accumulated to March 10, 1987, making the total ad damnum $113,183.13. Appellees asserted as a defense, inter alia, that their water meter was defective and, therefore, appellants billing was excessive and inaccurate.

Following extensive discovery, the case was scheduled for a status and pretrial conference on February 9, 1987. The pretrial Judge, Judge William S. Thompson, entered an order following that conference, a part of which precipitated the dispute which resulted in dismissal of the action. In continuing the scheduled conference, the pretrial Judge indicated in the statement of proceedings that the court had reviewed the pleadings and discussed settlement with the parties, that the case was not in a posture for settlement or pretrial, and that the parties agreed to a continuance. The following pertinent language appears in the court's statement of proceedings:

The court sua sponte continues this case for the following reasons:

2. To afford an inspector from the District of Columbia an opportunity to inspect the water meter at the premises located at 1458 Columbia Road, N.W, Washington, D.C.

The court rescheduled the trial date for March 31, 1987.

On March 10, 1987, representatives of the D.C. Water and Sewer Department removed the meter from the appellees' building and took it to the District's facility for testing. According to an affidavit of appellees' employee, Robert Sheldon, the District's employee scraped sediment, rust, and other materials from the meter before removing it. It was Mr. Sheldon's opinion that such a build-up could affect substantially the accuracy of the meter readings and result in higher billings. According to the deposition of Lindsay Rucker, a supervisor in the District's "Meter Branch," the meter contained only a small amount of debris, and only part of the plumbing, rather than the meter itself, was scraped to prevent rust from appearing in the building's water supply. Appellees' employee was also present during the testing at the District's facilities, and he identified what he perceived to be numerous flaws in testing. The meter which the District removed had been installed on September 14, 1982 to replace one which the District discovered had a broken "seal to the by pass around the meter." The District did not return the meter it had tested in March until June 1987 when Mr. Sheldon picked it up.

Appellees filed a motion to dismiss and a motion to strike, primarily based on appellant's alleged intentional violation of two orders: Judge Thompson's order of February 10, 1987 and judge Nunsio's order of May 5, 1987. *fn2 Judge Goodrich denied both motions without a hearing; however, he subsequently granted a motion to reconsider and ordered a hearing to be held. The Judge to whom the motions were next assigned certified the case back to Judge Thompson and judge Nunzio, noting that he was not in a position to determine the intent of the order of February 10th, the interpretation of which was disputed, and that although appellees contended that Judge Nunzio ordered delivery forthwith, Judge Nunzio's order was silent on the subject.

Judge Thompson scheduled an evidentiary hearing on the Motion to Dismiss. In a letter to counsel for the parties, signed by his law clerk, the following appears with respect to that hearing:

Judge Thompson has asked me to remind you that the only evidence to be presented at the hearing, and thus considered by the court, is that evidence pertaining to the specific language in the order in question. Therefore, the only witnesses which will be allowed at the hearing are those who were present at the particular pretrial settlement conference resulting in the order in question. Further, no evidence will be allowed to be presented unless it was "in evidence" at the time the order was signed, and thus was available for consideration by the court at that time.

On February 8, 1989, the parties appeared before Judge Thompson for a hearing on the motion. Counsel for appellees made a lengthy opening statement specifying the reasons for the motions. The court stated that the only matter before it for consideration was the motion to dismiss. During opening statement, appellees' counsel requested that the court consider the deposition testimony of its expert witness, George Anderson. Appellant's counsel objected to Appellees' efforts to have the court consider the depositions on file because it would greatly expand the scope of the evidence specified in the letter to counsel scheduling the ...


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