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03/09/93 NADIA OURIAGHLI v. DONALD MOORE

March 9, 1993

NADIA OURIAGHLI, APPELLANT
v.
DONALD MOORE, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge)

Before Terry, Schwelb, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge : This appeal from the trial court's refusal, without a hearing, to vacate a default judgment presents us with several quite unusual allegations. According to the defendant, Nadia Ouriaghli, who appears pro se, plaintiff Donald Moore's process server, who claimed to have delivered the summons and complaint to Ms. Ouriaghli's husband, actually served the wrong person. In fact, the process server claimed in his return to have served someone who, Ms. Ouriaghli says, does not look anything like her husband. Ms. Ouriaghli also alleges that the trial Judge's law clerk gave her erroneous information which led to her failure to appear at a critical hearing and to the consequent denial of her motion to reopen the case. Concluding that an evidentiary hearing should have been held at least with respect to the question whether Ms. Ouriaghli was misled by the law clerk, we vacate the judgment and remand for further proceedings.

I.

Moore brought this action to recover an escrowed earnest money deposit of $10,000. He alleged that Ms. Ouriaghli had failed to carry out an agreement to purchase certain real property from him, and sought, pursuant to a provision of the contract, to recover the earnest money deposit as liquidated damages. The complaint was filed on February 11, 1991.

On February 14, 1991, the plaintiff's process server executed an "Affidavit of Service" in which he claimed to have served Ms. Ouriaghli at her residence by leaving a copy of the summons and complaint with her husband, Franklin Lamb, who was described in the affidavit as "W.M. 5 10 170 Blk Hair." No timely answer or responsive pleading was filed on Ms. Ouriaghli's behalf. On March 12, 1991, Moore's attorney filed an "affidavit in support of default." On March 19, 1991, the clerk entered an order of default.

On March 20, 1991, Ms. Ouriaghli responded with a pro se motion "to deny plaintiff's motion for a default judgment." She alleged that she had not been served, that she had received no notice of Moore's complaint, and that she was ready to contest the claim on the merits. Attached to her motion was an affidavit by Franklin Lamb, who represented that he had never been served with any papers in the suit, that he had found none at his residence, and that he had not been in the District of Columbia on February 14, 1991, the day on which the process server claimed to have effected service. *fn1

On June 12, 1991, in spite of the pendency of Ms. Ouriaghli's counter-motion, the trial court entered judgment in favor of Moore in the amount of $10,000 and costs. On June 25, 1991, Ms. Ouriaghli moved to set aside the judgment, reiterating her prior arguments and requesting a hearing on the matter. In a supplemental submission, she represented as follows:

Plaintiff also continues to insist that Defendant was served in this matter. the Defendant nor her husband were ever served in this matter. Plaintiff, in insisting otherwise, offers a notation on the alleged proof of service which states "W.M. 5 10, 170. blk hair." In truth, Defendant's husband is 6 feet, 4 inches, 230 pounds, and blond/light brown hair. Were Plaintiff to be granted a hearing in this matter on the question of Validity of Service, the Court could view Defendant's husband and make its own determination of whether this was the individual whom Plaintiff claims to have served. Moreover, in a sworn affidavit, Plaintiff's husband states that he was not even in the Washington, D.C. area during the time Plaintiff claims he was served. At a hearing, the process server could be asked whether Mr. Lamb was indeed the person he claims to have served, and the credibility of both sides could be assessed.

By order dated August 5, 1991, the Judge set a hearing on Ms. Ouriaghli's motion for September 30, 1991. The order provided, in pertinent part, that

all counsel and/or parties should be present with any and all necessary witnesses and argument for the court to determine whether a default was properly entered and/or whether it should be vacated.

On the scheduled hearing date, however, neither Ms. Ouriaghli nor any attorney representing her appeared before the court. Ms. Ouriaghli's husband did appear, and was apparently ready to testify that he had not been served with the summons and complaint. The Judge ruled, however, that, as a lay person, her husband could not act as counsel for Ms. Ouriaghli. The Judge therefore denied the motion to vacate the judgment on the ground that Ms. Ouriaghli had failed to prosecute it.

On October 3, 1991, Ms. Ouriaghli filed a pro se motion for reconsideration, in which she alleged the following:

1. Defendant was misinformed by the clerk of Judge Wolf concerning the necessity of her presence at the August 20, 1991 *fn2 hearing. As her testimony was not necessary (there was no claim that she was served) she was advised that ...


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