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06/10/93 ETHAN KING v. HAROLD JONES

June 10, 1993

ETHAN KING, APPELLANT
v.
HAROLD JONES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. William C. Gardner, Motions Judge). Originally Published at: Before Rogers, Chief Judge, and Ferren and Schwelb, Associate Judges. Opinion for the court by Associate Judge Ferren. Dissenting opinion by Associate Judge Schwelb.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : Ethan King, formerly a tenant of premises located at 470 K Street, N.W., Washington, D.C., appeals from a judgment of possession for the landlord plaintiff, Harold Jones, on account of King's failure to comply with a protective order requiring King to pay $475.00 per month into the court registry while the action was pending. Specifically, King contends that the notice to cure or vacate on which the judgment was based was defective, that the notice was not timely served, and that Jones failed to demonstrate that he was a party entitled to bring the action. We reverse and remand for further proceedings on the question whether the notice to cure or vacate was defective.

I.

Jones, through counsel, sent King a letter dated May 31, 1990, informing King that he was violating his lease by "failing to carry all necessary insurance." The letter notified King that he had thirty days "to correct and/or cure the aforesaid violation," and that if King did not do so, the "letter shall be deemed to be and shall constitute a Notice to Quit and Vacate . . . the aforesaid premises no later than midnight, July 15, 1990." On July 20, 1990, Jones filed a complaint for possession based on King's "failure to vacate property after notice to quit expired." *fn1 Although neither the letter nor the complaint suggested that King was behind in paying his rent, the complaint requested a protective order requiring King to pay all rent into the court registry until the case was decided. *fn2 On August 10, 1990, Jones filed an affidavit of a special process server, who stated that he had served the complaint and summons on King three days earlier. On August 20, 1990, before King's answer was due, the court granted Jones's request for a protective order and scheduled a bench trial for October 22, 1990. On that date, the case was continued to January 14, 1991, when it was again continued to March 4.

King complied with the protective order by making the scheduled payments into the court registry in August, September, October, and November 1990, although one payment was one day late and another was six days late. King, however, missed his payments for December 1990 and January 1991. Jones accordingly filed a written motion to strike King's pleadings on January 25, 1991. King then filed a pro se motion to dismiss the complaint on February 4, 1991, because Jones had "failed to serve a valid notice to quit." King alleged that the tenancy was "part commercial and part residential," and that the notice to cure or vacate did "not contain the RACD *fn3 information required by 14 D.C.M.R. § 4302.1" (1989). *fn4 He also cited Jamison v. S & H Assocs., 487 A.2d 619 (D.C. 1985), as authority for his motion. On February 11, 1991, the motions Judge held a hearing and took under advisement both Jones's motion to strike King's pleadings and King's motion to dismiss. The March 4 trial date was vacated, to be reset after the Judge's ruling. On April 8, 1991, the motions Judge issued a written order striking King's pleadings and entering judgment in Jones's favor, without mentioning King's motion to dismiss. King appealed on April 10, 1991.

A writ of restitution was issued to Jones on May 3, 1991, but was stayed pending appeal on the condition that King make payments into the court registry in accordance with the reinstated protective order. King made payments in May and June 1991 but failed to meet his obligation for July 1991. Since then King has been evicted. *fn5

II.

King, who has proceeded pro se throughout this controversy, has not provided a transcript of the motions hearing on February 11, 1991. We thus have a limited appellate record from which to determine whether King's contentions were in fact presented to the trial court. "It is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred." Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982). We are therefore unable to consider at all two of King's contentions: (1) that Jones was not the landlord and not authorized to bring the suit, *fn6 and (2) that King did not receive the notice to cure or vacate, dated May 31, 1990, until June 16, so that he did not have a full thirty days before July 15 to correct the violation, as required by D.C. Code § 45-2551 (b) (1990 Repl.). There is nothing in the record to show that these contentions were presented to the trial court. See D.D. v. M.T., supra note 6.

III.

We still have before us King's third contention: that the notice to cure or vacate on which the judgment was based was defective. The record contains both a copy of Jones's notice to cure or vacate and a copy of King's prose motion to dismiss. However, the motions Judge's order of April 8, 1991, striking King's pleadings and entering judgment in Jones's favor, fails even to mention King's motion to dismiss and thus contains no explanation of why -- or even whether -- his motion was denied. We conclude that under Jamison on a tenant who, like King, effectively challenges a notice to cure or vacate, is entitled to a ruling on whether he or she has received a valid notice, before a motions Judge can lawfully strike the tenant's pleadings for failure to comply with a protective order.

A.

The motions Judge struck King's pleadings and entered judgment in Jones's favor on the ground that King had missed four payments into the court registry by the time the order was issued on April 8, 1991. King does not dispute that he failed to make payments required by the protective order. Relying on Jamison, however, King contends that judgment was erroneously entered, notwithstanding his failure to comply with the protective order.

In Mahdi v. Poretsky Management, Inc., 433 A.2d 1085 (D.C. 1981), this court held that when a tenant fails to comply with a protective order, the trial court may strike the tenant's pleadings and enter judgment in the landlord's favor. In Mahdi, the entry of judgment of possession was based solely on the tenant's failure to make payments into the registry pursuant to court order. Where noncompliance with the protective order was established, the landlord was not required to make any showing on the merits of the underlying controversy. This court explained that not striking the tenant's pleadings under such circumstances would impair the careful balance between the rights of the parties which the protective order mechanism was designed to achieve, and would in some cases result in the effective confiscation of the landlord's property. Mahdi, 433 A.2d at 1089.

In Davis v. Rental Associates, Inc., 456 A.2d 820 (D.C. 1983) (en banc), we elaborated on Mahdi and formulated applicable standards and procedures. We said that when a trial court exercises its "authority to impose sanctions, including the entry of judgment for the landlord in a case where the tenant fails to abide by the protective order, the trial court must carefully examine several specific factors before deciding such relief is appropriate." Id. at 826. According to the plurality, the trial court is not required to reevaluate the amount of the original order, but the trial court must consider the extent of the tenant's noncompliance and the tenant's reason for noncompliance. Id.

In Jamison, the landlord had alleged in his complaint "that 'service of a notice to quit had been specifically waived in writing."' 487 A.2d at 620. The tenant denied this allegation, asserting that he had neither waived, nor been served, a legally sufficient notice to quit. Without any inquiry as to whether the landlord had made a misrepresentation as alleged by the tenant, the trial court struck the tenant's pleading for failure to comply with a protective order and granted judgment to the landlord. This court reversed, holding that on these facts "the landlord must affirmatively prove either that there has been a waiver or that a notice has been served." Id. at 621. In reaching this result, the Jamison court looked to Moody v. Winchester Management Corp., 321 A.2d 562 (D.C. 1974), where we said that, even though "notice is not jurisdictional . . ., it is, nonetheless, a condition precedent to the landlord's suit for possession." Id. at 563 (citations omitted). Relying on Moody, this court concluded in Jamison : "If the landlord fails to serve the tenant with a notice to quit and the tenant does not waive such notice, then the landlord is not entitled to possession." Jamison, 487 A.2d at 621. Underpinning these rulings, of course, is the legislative requirement that, absent waiver, the notice served must have been valid in all respects required by law. See D.C. Code § 45-2551 (a) and (b) (1990 Repl.) (no tenant shall be evicted for reasons other than nonpayment of rent unless served with written notice to cure or vacate meeting statutory requirements); see also Graham v. Berstein, 527 A.2d 736 (D.C. 1987) (judgment of possession for landlord cannot stand because service of notice to vacate defective); Jones v. Brawner Co., 435 A.2d 54 (D.C. 1981) (reversing judgment of possession in favor of landlord where landlord had failed to meet service requirements for notice to quit).

In Haynes v. Logan, 600 A.2d 1074 (D.C. 1991), this court noted "that the rule announced in Jamison " applies only when the tenant contests the landlord's allegation of waiver in the trial court. Haynes, 600 A.2d at 1077. Jamison, however, also stands for the proposition that a tenant may raise the issue of notice in the trial court at any time, even after entry and violation of the protective order. Id., 487 A.2d at 620 (protective order entered on February 3; tenant raised notice issue on February 21, without making payment into court registry scheduled for February 6).

Simply put, the message of Mahdi, Davis, Jamison, and Haynes, taken in conjunction with the statutory framework discussed below, is this: in a landlord's action for possession, the trial court in its discretion -- without addressing the merits of the landlord's complaint -- may strike the responsive pleadings of a tenant who fails to make payments into the court registry pursuant to a protective order, provided the lawsuit itself is lawfully at issue after service of a valid (or uncontested) notice to cure or vacate followed by a properly filed and served complaint.

B.

In the present case, it is undisputed that King was served with a notice to cure or vacate; the dispute goes instead to its sufficiency, which King has timely contested. See Jamison, 487 A.2d at 620. Our Conclusion that Jones is not entitled to possession unless King received a valid notice to cure or vacate relies not only on Jamison but also, even more fundamentally, on D.C. Code § 45-2551 (a):

No tenant shall be evicted from a rental unit for any reason other than for nonpayment of rent unless the tenant has been served with a written notice to vacate which meets the requirements of this section. Notices to vacate for all reasons other than for nonpayment of rent shall be served upon both the tenant and the Rent Administrator. All notices to vacate shall contain a statement detailing the reasons for the eviction, and if the housing accommodation is required to be registered by this chapter, a statement that the housing accommodation is registered with the Rent Administrator.

(Emphasis added.)

In initiating his suit for possession, Jones did not allege that King was in any way deficient in paying his rent. Rather, Jones contended that King had violated a provision in the lease requiring King to carry insurance. Thus, Jones had to proceed in accordance not only with the notice requirements of § 45-2551 (a) but also with those of § 45-2551 (b):

A housing provider may recover possession of a rental unit where the tenant is violating an obligation of tenancy and fails to correct the violation within 30 days after receiving from the housing provider a notice to correct the violation or vacate.

(Emphasis added.) Moreover, as King correctly indicated in his pro se motion to dismiss, a valid notice to cure or vacate under § 45-2551 (b) must contain the information specified in 14 DCMR § 4302.1, (supra) note 4, the D.C. Municipal Regulations implementing the statutory notice requirements of § 45-2551 (a).

The copy of the notice to cure or vacate in the record of this case, however, does not comply with § 4302.1 (c), because it does not contain either a statement that the housing accommodation is registered with the Rent Administrator or a statement that the accommodation is exempt. The notice that King received also does not state, as required by 14 DCMR § 4302.1 (d), that a copy of the notice is being furnished to the Rent Administrator, nor does it provide the address and telephone number of the RACD. Without the information required by the regulations, and without the information that the Rent Administrator was sent a copy of the notice, King was deprived of a vital means of pursuing his rights under the statute and implementing regulations.

The purpose underlying these regulations is clearly explained in two earlier sections of the chapter on evictions. Regulation 4300.4 states: "The Rent Administrator may review each notice to vacate to determine if it meets the requirements of this chapter." Regulation 4300.5 provides: "A hearing may be conducted in accordance with chapter 40 in order that a hearing examiner may issue a written decision upholding or denying the validity of a notice to vacate." Underlying the regulations effectuating D.C. Code § 45-2551 (a) is a concern that, in cases of eviction for any reason other than nonpayment of rent -- as in this case -- the notice must inform a tenant of rights under the Rental Housing Act and also must reflect service on the Rent Administrator for purposes of possible intervention, if indicated. See, e.g., Stroud v. Steininger, 563 A.2d 1091, 1092-93 (D.C. 1989) (rent administrator deemed notice issued under § 45-2551 (i) invalid and ordered landlord not to use it as basis for eviction).

It is important to emphasize, in light of Judge SCHWELB's Dissent, that all these finely tuned notice requirements are not Judge-made. In Cormier v. McRae, 609 A.2d 676 (D.C. 1992), we recently traced the evolution of the statutory framework that these regulations effectuate. We demonstrated that the Council of the District of Columbia has reformed and standardized what had theretofore been a patchwork of rental housing protections derived from the common law. The Council adopted a straightforward legislative requirement applicable here: a tenant may not be evicted unless served with a valid notice to cure or vacate. In explaining what is required for a valid notice Cormier noted, first, that Jack Spicer Real Estate, Inc. v. Gassaway, 353 A.2d 288 (D.C. 1976), and Administrator of Veterans Affairs v. Valentine, 490 A.2d 1165, 1168 (D.C. 1985), have made clear "that after enactment of a series of rent control statutes, no basis remains for saying that a housing landlord could . . . terminate a tenancy without giving a valid reason specified by statute." Cormier, 609 A.2d at 679 (footnote omitted; emphasis added).

Next, Cormier discussed the number of valid notices required under the current version of the Rental Housing Act. In Jones v. Brawner Co., 435 A.2d 54 (D.C. 1981), we had concluded that the 1977 Rental Housing Act required the landlord to serve two different documents -- a notice to cure and a notice to quit. See Cormier, 609 A.2d at 679-80 (citing Jones v. Brawner, 435 A.2d at 56). Two years later, however, in Cooley v. Suitland Pkwy. Overlook Tenants' Ass'n, 460 A.2d 574 (D.C. 1983), we held that different language in the 1980 Rental Housing Act, which supplanted the 1977 Act, "effectively merged the notice to cure and the notice to quit into one required notice" -- the notice to cure or vacate. Cormier, 609 A.2d at 680 n.6 (citing Cooley, 460 A.2d at 576).

Finally, Cormier completed its historical survey by examining the effect of the statutory safeguards on the timing of the combined notice to cure or vacate. We concluded that the timing requirements of Pritch v. Henry, 543 A.2d 808 (D.C. 1988), which dealt with the timing of the period to cure or vacate in cases based on nonpayment of rent, did not apply in actions for possession brought under D.C. Code § 45-2551 (b) for reasons other than nonpayment of rent. See Cormier, 609 A.2d at 681 (in nonpayment cases, 30-day notice to cure or vacate must expire at end of rental period and thus must be received at least 30 days before such date, whereas in other cases 30-day notice may expire at any time during rental period and thus may begin to run upon receipt on any date). *fn7

Although in Cormier this court determined that under the 1985 Rental Housing Act "the District's law has erased the separately required notice to quit for all cases in which § 45-2551 applies," id., by no means did that decision eliminate the requirements contained in § 45-2551 itself, for Cormier went on to inquire "whether the landlord's notice to cure or vacate . . . was sufficient under § 45-2551 (b)." Id. at 682. In concluding that the particular notice at issue was sufficient, this court in Cormier did not discuss § 45-2551 (a) notice requirements -- at issue here -- because no claim regarding that section had been raised.

The cases discussed in Cormier illuminate the evolution of the underlying statutory framework, which reflects the continuing enhancement of a tenant's right to avoid suit for possession by curing the alleged breach of the lease agreement. Under the current statute, the 1985 Rental Housing Act, a valid notice to cure or vacate is a condition precedent to a landlord's suit (as in this case) for possession under § 45-2551 (b), similar to the jurisdictional requirement of service of process. Cf. Moody, 321 A.2d at 563 ("Although service of. . . notice is not jurisdictional and can be waived, in contradistinction to service of process, it is, nevertheless, a condition precedent to the landlord's suit for possession.") Accordingly, unless a tenant being evicted in accordance with § 45-2551 (b) has received a valid notice to cure or vacate, meeting the requirements of both § 45-2551 (a) and § 45-2551 (b), the case is not properly at issue.

Our Dissenting colleague apparently believes this statutory evolution has gone too far. His concern that a valid notice to cure or vacate is no longer an indispensable element of Justice between landlord and tenant, or is a draconian judicial remedy, see post at note 11, overlooks the tenant's right granted by statute -- not by Judges -- to attempt to cure an alleged lease violation. Judge SCHWELB's concern, therefore, must be addressed to the legislature. This court has no authority to undermine a clear legislative requirement and the established remedy of dismissal for defective notice.

JUDGE SCHWELB expresses concern about small landlords who have to face motivated pro se tenants like King. Undoubtedly, small landlords have their problems, which may include the difficulty on occasion of obtaining counsel. But the legislature has determined that the problem requiring statutory attention is not unrepresented landlords but unrepresented tenants. Relevant attorney's fee provisions reflect this reality as the legislature perceives it. See D.C. Code § 45-2592 (1990 Repl.); Tenants of 500 23rd St., N.W. v. District of Columbia Rental Hous. Comm'n, 617 A.2d 486, 488-89 (D.C. 1992) (statute authorizing court and agency to award attorney's fees in cases not involving evictions carries presumption in favor of tenants but not housing providers); Ungar v. District of Columbia Rental Hous. Comm'n, 535 A.2d 887, 892 (D.C. 1987) ("inferring from the statutory scheme that . . . the purposes of the attorney's fee provision are to encourage tenants to enforce their own rights, in effect acting as private attorneys general, and to encourage attorneys to accept cases brought under the Rental Housing Act"); see also D.C. Code §§ 45-2501, -2502 (1990 Repl.) (findings and purposes articulated by D.C. Council in adopting Rental Housing Act.). *fn8

After King filed a motion to dismiss challenging the validity of the notice he received -- pointing out an obvious defect *fn9 -- the landlord could have minimized any delay by giving a new, valid notice to cure or vacate, filing a new complaint for possession, and then moving to consolidate. *fn10 Landlord Jones instead chose to test the adequacy of the notice without taking such precautions and thus elected to risk even further delay and attendant costs as a consequence. *fn11

King did not waive his right to dispute the validity of the notice simply because he waited to raise the issue until after entry of the protective order; indeed, the court entered the protective order before his answer was due. Thus, King met the burden imposed in Haynes by moving to dismiss, based on an invalid notice, before the motions Judge struck his pleadings. See Haynes, 600 A.2d at 1077. Once King properly questioned the validity ...


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