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06/10/93 ETHAN KING v. HAROLD JONES

DISTRICT OF COLUMBIA COURT OF APPEALS


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 of the notice he received, the motions Judge should have resolved the issue before entering judgment for Jones.

C.

Jones contends that the statutory requirements of § 45-2551 (a) do not apply here because the property in dispute is at least partly commercial, as King conceded in his motion to dismiss. Indeed, says Jones, § 45-2551 only applies to a landlord of "a rental unit," which "means any part of a housing accommodation . . . which is rented or offered for rent for residential occupancy. . . ." D.C. Code § 45-2503 (33) (1990 Repl.) (emphasis added). But this does not necessarily mean a rental unit must be exclusively residential to be subject to rental housing regulation. Revithes v. District of Columbia Rental Hous. Comm'n, 536 A.2d 1007 (D.C. 1987), noted that "this court has previously held that even if a unit is rented under a commercial lease, the unit's actual use and occupancy as a residence, and the landlord's knowledge of such use, subjects the unit to rent control." Id. at 1015 (citing White v. Allan, 70 A.2d 252 (D.C. 1949)). Revithes held that, under the circumstances in that case, "the fact that [a tenant's] lease-may have been labeled 'commercial' was, at best, irrelevant, and, at worst, evidence of a willful intention to circumvent the rental housing laws." Id.

Moreover, this court -- interpreting the intent of the Council -- has previously indicated that the statutory scheme governing evictions strengthens the legal rights of tenants: "The eviction restrictions of § 45-[2551] are only part of a comprehensive legislative scheme to protect the rights of tenants and therefore must be construed liberally." Valentine, 490 A.2d at 1168. Because of "the remedial purposes of the Rental Housing Act, . . . it should be construed in a manner which would discourage its circumvention." Goodman v. District of Columbia Rental Hous. Comm'n, 573 A.2d 1293, 1297 (D.C. 1990) (citing Revithes, 536 A.2d at 1015-16). As a result, "the landlord has the burden of proving that he [or she] is exempt from the coverage of the Rental Housing Act, and the statutory exemptions are to be narrowly construed." Id. (citing Revithes, 536 A.2d at 1017); accord Tenants of 738 Longfellow St., N. W. v. District of Columbia Rental Hous. Comm'n, 575 A.2d 1205, 1211 (D.C. 1990).

Accordingly, the motions Judge could not have answered the question whether King received a valid notice to cure or vacate simply because King conceded the property was used, in part, for commercial purposes. See Revithes, 536 A.2d at 1015. The Judge could not rule § 45-2551 (a) was inapplicable without affirmatively deciding whether the property King rented qualified for a commercial exemption.

IV.

For the reasons elaborated above, the judgment appealed from is hereby reversed, and the case is remanded for proceedings consistent with this opinion. *fn12

So ordered.

SCHWELB, Associate Judge, Dissenting: My colleagues' Disposition of this case is arguably a plausible one under the law as it has emerged in the District of Columbia in recent years. This is because the requirement that the landlord seeking possession must serve the tenant with a notice to quit has been transformed in this jurisdiction from a necessary protection against surprise eviction to the deadly weapon of choice in the wayward tenant's arsenal for use in an unseemly but all-too prevalent game of "Gotcha!" My colleagues are effectively holding that a landlord whose lawyer has supposedly failed to dot all of his i's and cross all of his t's in such a notice is obliged to allow a tenant to remain on the premises, rent-free, for an indefinite period while the case is litigated, even if the undotted i's and uncrossed t's do not prejudice the tenant in any way, and even if the tenant has failed to comply with a protective order, so that the landlord has little if any prospect of ever receiving his rent. Indeed, under the majority's regimen, the unfortunate landlord caught in the bewildering maze of notice to quit requirements is placed in much the same position as the Mikado's disfavored "billiard sharp," who was to be sentenced to play

In fitless finger-stalls

On a cloth untrue

With a twisted cue

And elliptical billiard balls.

WILLIAM GILBERT & ARTHUR SULLIVAN, THE MIKADO, Act II (1885); see, generally, Part III C of this opinion and note 12, (infra). Technicality is exalted at the expense of Justice as this court holds the line against creeping practicality.

To avoid such a result, I would construe more narrowly and distinguish the decision chiefly relied on by the majority -- Jamison v. S&H Associates, 487 A.2d 619 (D.C. 1985) -- and thus arguably bring Jamison into a measure of harmony with the reasoning of our earlier precedents. Jamison turned on a materially different "notice to quit" statute from the one at issue here. Moreover, in Jamison, denial of relief to the landlord was arguably proper in light of the existence of an unresolved charge that the landlord had made a material misrepresentation of fact in its complaint; no such question is presented here. If, however, as my colleagues seem to believe, Jamison cannot fairly be distinguished on the grounds that I suggest, then I think we ought to hear the case en banc and overrule Jamison.

The majority claims that the Council of the District of Columbia has ordained the result in this case, and that my concerns "must be addressed by the legislature." Maj. op. at 12. On the contrary, no such legislative mandate exists. The idea that a tenant who has violated the terms of his lease and who has thereafter failed to comply with a protective order can nevertheless stay put and pay nothing for however long it takes the parties to litigate the sufficiency of a notice to quit was conceived entirely by Judges. It is therefore up to this court to give that odd notion a decent but overdue burial.

I.

THE CONTROVERSY

It is undisputed, as my colleagues acknowledge, that after being late with several payments into the court registry pursuant to the trial court's protective order, King (the tenant) made no payments at all for the next four months. His defense was duly stricken, and judgment of possession was entered in the landlord's favor, all in conformity with this court's decision in Mahdi v. Poretsky Management, Inc., 433 A.2d 1085 (D.C. 1981) (per curiam). King was subsequently evicted. Although the record is silent on the subject, I suppose that another tenant now occupies the premises.

According to the majority, the judgment was improperly entered because King had challenged the sufficiency of the notice to quit which the landlord had served on him, and because the trial Judge had not (and still has not) ruled on the merits of that challenge. It is undisputed, however, that a notice to cure or quit was duly served before this suit was brought, and that the landlord specified in the notice the basis for his claim that King had violated the terms of his lease. The alleged defect in the notice related to the omission of RACD information which, according to King, was required to be included pursuant to 14 DCMR § 4302.1 (1989). See majority opinion, note 4. King does not claim that he was prejudiced in any way by this omission, and the majority suggests no reason to believe that he was or could have been prejudiced. The reversal of the judgment in this case, and the consequent victory of a tenant who defaulted on four consecutive protective order payments, both rest entirely on an omission from the notice to quit that made no practical difference whatsoever to the tenant.

The majority's apparent view of this case is that whenever a tenant challenges the sufficiency of a notice to quit, that challenge must be litigated and disposed of before judgment can issue in the landlord's favor, even where the tenant has failed to comply with a protective order. If the litigation over the notice to quit lasts months or years, *fn1 my colleagues imply, then so be it -- the tenant is nevertheless allowed to continue to occupy the premises, whether or not he is able to pay the rent. They say that this result is required by Jamison. I do not think that this is so; if it is, then Jamison should be overruled.

II.

MAHDI

In Mahdi, supra, 433 A.2d at 1086, this court "provided the necessary appellate precedent for the trial court to grant the landlord possession when the tenant fails to comply with protective order." We did so, in substantial part, because denial of such relief against a non-complying tenant would be unfair and potentially confiscatory vis-a-vis the landlord. We pointed out that

if this litigation is permitted to continue with no funds in the registry and with Tenant on the premises, Landlord will not be in a position to rent the unit to a paying tenant. He will continue to be deprived of funds which he may well need to pay his mortgage, to maintain other tenants' apartments, and for other appropriate purposes. Such deprivation might well constitute the kind of confiscation against which the Court warned in Lindsey [v. Normet, 405 U.S. 56, 31 L. Ed. 2d 36, 92 S. Ct. 862 (1972)], and may adversely affect innocent third parties.

Failure to strike the defendant's pleadings in Hovey [v. Elliott, 167 U.S. 409, 42 L. Ed. 215, 17 S. Ct. 841 (1897) *fn2 would not have had any consequence the plaintiff comparable to the consequences of an adverse decision to Landlord here, namely, a requirement that he continue to house Tenant free of charge.

Mahdi, supra, 433 A.2d at 1089. *fn3 We went on to observe that the protective order mechanism was carefully designed to balance the rights of landlords and tenants, and that

if tenants were permitted to continue to litigate after failing to comply with protective orders, then the precarious balance so achieved would be seriously imperiled. That balance is substantially more favorable to tenants than the Oregon system upheld by the Court in Lindsey v. Normet, supra. Any substantial impairment of the landlord's right to a protective order threatens to tilt the balance to such a degree that the already shrinking supply of rental housing in this jurisdiction will contract even further, to the detriment of the community at large and to relatively impecunious tenants in particular.

433 A.2d 1085 at 1090.

It is important to note that in Mahdi, a case involving allegations by the landlord of nonpayment of rent and counter-allegations by the tenant of housing code violations, the trial court made no findings with respect to the merits of the case. Possession was not awarded to the landlord on the basis of any assessment of the validity of his underlying claim, but solely because the tenant had failed to comply with the protective order. The court explained that "a tenant who is unable to make the payments required by a protective order [has no right] to continue to live, rent free, on the landlord's premises pending the adjudication of the controversy." 433 A.2d 1085 at 1088. This is because "to put it in the vernacular, if you cannot pay the rent, you cannot stay on in the landlord's apartment. It is just about as simple as that." Id.

In Davis v. Rental Associates, Inc., 456 A.2d 820 (D.C., 1983) (en banc), this court reaffirmed its holding in Mahdi and enumerated various considerations which should inform the trial court's discretion when a landlord asks that a non-complying tenant's pleadings be stricken. We reiterated our concern about the consequences of not enforcing protective orders:

Further, in determining whether a tenant should be permitted to make a late payment or a partial payment, the trial court must recall "that the Constitution expressly protects against confiscation of private property or the income therefrom." Lindsey v. Normet, supra, 405 U.S. at 74 . . . . We highlighted this consideration of the landlord's rights when examining in Mahdi the effect on the landlord of not striking the tenant's pleadings and entering judgment for the landlord.

Id. at 827 (emphasis in original; footnote omitted).

After Mahdi and Davis v. Rental Associates, the authority of Judges to do just what the trial Judge did in this case seemed pretty clear; basic fairness and the United States Constitution demanded no less. Things became more complicated, however, when the Mahdi doctrine ran headlong into that stalwart nemesis of the beleaguered landlord, the requirement of a notice to quit. This clash of somewhat modest doctrinal titans occurred in the Jamison case, on which the majority decision largely rests.

III.

JAMISON

A. What Did Jamison Decide?

In Jamison, a month-to-month tenant failed to pay his rent for seven consecutive months. The landlord filed suit for possession. The trial Judge issued a protective order, with which the tenant failed to comply. The landlord promptly filed a motion to strike the tenant's pleadings. The tenant filed an answer in which he claimed that he had not been served with a legally sufficient notice to quit. The tenant also maintained that the landlord "had misrepresented in its complaint a fact critical to its suit for possession, namely, that the tenant had waived his right to a written notice to quit." Id., 487 A.2d at 620.

Invoking the Mahdi doctrine, the trial Judge granted the landlord's motion to strike the tenant's pleadings, holding that the alleged defect in regard to the notice to quit did not preclude him from doing so. On appeal, this court reversed, opining that the trial Judge had "plainly erred." Id. at 621. Observing that service of a thirty-day notice to quit is not jurisdictional and may be waived, the court stated that such a notice "is, nevertheless, a condition precedent to the landlord's suit for possession." Id. (quoting Moody v. Winchester Management Corp., 321 A.2d 562, 563 (D.C. 1974). The court concluded 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. Because the landlord in this case did neither, it was not entitled to a judgment of possession, regardless of the tenant's failure to comply with the protective order.

Jamison, supra, 487 A.2d at 621. See also Haynes v. Logan, 600 A.2d 1074, 1077 (D.C. 1991), discussing Jamison. *fn4

B. Is Jamison Distinguishable?

There are obvious similarities between Jamison and the present case. There are also differences. Two are arguably critical.

(1) Different statutory framework.

In Jamison, the action for possession was grounded on non-payment of rent. The notice to quit requirement as to which controversy arose was contained in D.C. Code § 45-1402 (1990), first enacted in 1901, which provides in pertinent part that "a tenancy from month to month . . . may be terminated by a 30 days notice in writing from the landlord to the tenant to quit, . . . said notice to expire . . . on the day of the month from which such tenancy commenced to run." It has long been held in this jurisdiction that this provision, formerly codified as D.C. Code § 45-902 (1940), "is the familiar method of terminating a month-to-month tenancy -- a condition precedent to filing a suit to oust the tenant." Stoner v. Humphries, 87 A.2d 528, 529 (D.C. 1952) (emphasis added); see also Moody, supra, 321 A.2d at 563 (service of such notice is "a condition precedent to the landlord's suit for possession").

In the present case, on the other hand, King has invoked a regulation, 14 DCMR § 4302.1 (1991), which was issued pursuant to the Rental Housing Act of 1985, now codified in D.C. Code § 45-2501 et seq. (1990). The statutory requirements relating to the notice to quit on which King purports to rely are contained in Section 501(a) of the Act, D.C. Code § 45-2551 (a)(1990), which provides in pertinent part that

no tenant shall be evicted from a rental unit for any reason other than nonpayment of rent unless the tenant has been served with a written notice to vacate which meets the requirements of this section.

(Emphasis added.)

"In interpreting a statute, we are mindful of the maxim that we must look first to its language if the words are clear and unambiguous, we must give effect to its plain meaning." J. Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 45 (D.C. 1989) (citations omitted). If § 45-2551 (a) is construed in accordance with its plain language, the service of a notice to quit is not a condition precedent to the institution of suit. Rather, it is a condition precedent to an eviction.

Although not binding on this court, there is persuasive case authority for this position. In Davis v. Hunter, 104 Daily Wash. L. Rptr. 929 (Super. Ct. D.C. 1976) (Smith, J.), the court held that under a rent stabilization statute which, in language substantially identical to that of § 45-2551 (a), provided that no tenant may be evicted without first having been served with a notice to vacate, the landlord's complaint for possession constituted a sufficient notice to quit, and no pre-suit notice was required. The court based its decision on the language of the statute, *fn5 on its legislative history, *fn6 and (in uncanny anticipation of Mahdi and Davis v. Rental Associates) on the unfairness to the landlord of requiring him to serve a notice to quit in advance of filing suit. *fn7

If, as Davis v. Hunter suggests, service of a notice to quit is not a condition precedent to the institution of suit under § 45-2551 (a), then the decision in Jamison does not control the present case. *fn8 I am bound to acknowledge, in candor, that there are plausible arguments to the contrary. *fn9 On balance, however, I would construe § 45-2551 (a) in conformity with its language, and distinguish Jamison accordingly.

(2) Allegations of intentional misrepresentation.

In Jamison, the court concluded that the trial Judge had "plainly erred" because he "never made any inquiry into the tenant's allegation that the landlord had misrepresented a fact critical to its suit for possession -- namely that the tenant had waived in writing his right to a thirty-day notice to quit." Id., 487 A.2d at 621 (emphasis added). No such misrepresentation is alleged in this case.

The presence in the court's calculus in Jamison of a party's alleged intentional misrepresentation of fact significantly differentiates that case from the present one. As we recently reiterated in Byrd v. United States, 618 A.2d 596, 600 (D.C. 1992) (quoting Stearns Co. v. United States, 291 U.S. 54, 61-62, 78 L. Ed. 647, 54 S. Ct. 325 (1934)), "no one shall be permitted to found any claim upon his own inequity or take advantage of his own wrong." The result in Jamison might arguably be justified on the ground that a party should not be permitted to achieve his objectives by lying, and that the trial Judge was therefore obliged to find out whether the landlord's submission was founded upon a lie before he could legitimately strike the tenant's pleadings. Jamison is difficult to reconcile with Mahdi and Davis v. Rental Associates, and in order to harmonize these authorities, I would construe Jamison narrowly to govern only those cases in which allegations of intentional misrepresentation by the landlord remain unresolved.

C. Should Jamison Be Overruled?

I recognize that the distinctions I have suggested between this case and Jamison do not appear persuasive to my colleagues in the division. Assuming, for the sake of argument, that Jamison controls the present controversy, I believe that the case was wrongly decided and that it should be overruled by this court sitting en banc. See M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971).

(1) Procedural considerations.

I begin by noting that the appeal in Jamison was submitted to this court without oral argument, and that although counsel entered an appearance for the appellee-landlord, "no brief was filed on behalf of appellee." Jamison, supra, 487 A.2d at 620 (emphasis added). This means that the court was obliged to decide the case without hearing the landlord's side. The controversy thus lacked that "clear concreteness" which is provided by " a clash of adversary argument exploring every aspect of a multi-faceted situation embracing conflicting and demanding interests." United States v. Fruehauf, 365 U.S. 146, 157, 5 L. Ed. 2d 476, 81 S. Ct. 547 (1961) (emphasis added); see also Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962).

The absence of any brief or argument on behalf of Jamison's landlord appears to have had profound consequences. Both in Mahdi and in Davis v. Rental Associates, this court had described with force and conviction the unfairness to the landlord of requiring him, during the often protracted pendency of a case, to retain on his premises, rent-free, a tenant who has defaulted on a protective order and whose rent arrearage continues to increase.

In Jamison, the tenant had not paid any rent for seven months. Thereafter, he had failed to comply with the protective order. The concerns that led to the decision in Mahdi, namely, the substantial risk that the landlord's property rights would otherwise be unfairly and perhaps unconstitutionally undermined, were at their zenith in Jamison. Nevertheless, the court never adverted to them; the problem was not discussed at all in the court's opinion. It is most unlikely that the point would have been overlooked if a brief had been filed on the landlord's behalf by competent counsel.

In spite of the unusual absence in Jamison of the customary crossing of swords between adversaries which is the hallmark of our legal system, the decision is nevertheless binding authority under M.A.P. v. Ryan, supra. I suggest, however, that we should be less reluctant to reconsider Jamison than we would be to set aside a relatively recent decision which had emerged from full briefing and argument by competent counsel for each litigant. In any event, I think Jamison was wrongly decided because it undervalued the substantive rights of the landlord and exalted to undeserved prominence that darling of the defaulting tenant, the demand for a "perfect" pre-suit notice to quit.

(2) Substantive considerations -- the life and potential demise of the notice to quit requirement.

Once upon a time, not so terribly long ago chronologically (but under conditions far removed from today's reality), the requirement of a notice to quit provided tenants with much needed protection against exploitation and inJustice. At common law, "no notice to quit necessary to dissolve the relation of landlord and tenant in a tenancy for a definite period of time." Trotter v. Lewis, 528, 534, 185 Md. 528, 45 A.2d 329, 333 (1946); see also D.C. Code § 45-1401 (1990) (codifying common law). *fn10 On the expiration date of the lease, all rights of possession in the tenant ceased. 3A GEORGE W. THOMPSON, COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY, § 1353, at 663 (1981) (hereinafter THOMPSON). More ominously, the landlord was entitled to use self-help to recover possession, in spite of the availability of a judicial remedy. Snitman v. Goodman, 118 A.2d 394, 397-98 (D.C. 1955); see also the history recited in Mendes v. Johnson, 389 A.2d 781, 783-87 (D.C. 1978) (en banc) (plurality opinion) (overruling Snitman). The result was that the unfortunate tenant could find his or her belongings on the street without any prior notice. See Davis v. Hunter, supra, discussed in Part III B, (supra) .

As one leading commentator has put it, however, "principles of equity and Justice . . . prevent the from arbitrarily exercising his power to evict the without giving the latter some reasonable notice to quit . . . ." 3A THOMPSON, (supra) § 1353 at 663. In light of the "manifest Justice of this doctrine," English courts began to require landlords to provide such notice not only in relation to tenancies for an indefinite period, but also to those for a definite term. Id. at 663-64. "The American tendency has been to increase this doctrine of requirement of notice and to protect it in certain instances by statute." Id. at 664.

But at least in the District of Columbia, the conditions that initially led courts and legislatures to require the landlord to provide the tenant with a notice to quit have largely been eliminated. Self-help is no longer countenanced in this jurisdiction; the landlord must now go to court in order to recover possession of his premises. Mendes, supra, 389 A.2d at 786-87. If he tries to oust the tenant by force, he may find himself liable in tort, not only for compensatory damages, but for punitive damages as well. See, e.g., Parker v. Stein, 557 A.2d 1319, 321-22 (D.C. 1989).

Moreover, if the landlord brings an action for possession and the tenant contests the case, judgment of possession will not issue immediately. As the court noted more than sixteen years ago in Davis v. Hunter, supra, 104 Daily Wash. L. Rptr. at 934, an average of at least two months transpires between the service of the complaint for possession and the execution of a writ of restitution.

Moreover, either party may demand a trial by jury. Pernell v. Southall Realty Co., 416 U.S. 363, 40 L. Ed. 2d 198, 94 S. Ct. 1723 (1974). When the tenant does so, the lapse of time is likely to be much longer than two months. In the present case, the complaint was filed on July 20, 1990, judgment was entered on April 9, 1991, and King was evicted at some undisclosed date after that. Even in this non-jury case, the wheels of Justice ground with more deliberation than speed, cf. Griffin v. County School Bd., 377 U.S. 218, 229, 12 L. Ed. 2d 256, 84 S. Ct. 1226 (1964), before the landlord was able to recover possession of his property. There was no danger that King would find his belongings on the street without advance warning.

Given the realities of landlord-tenant litigation, I think it fair to say that, to the extent that the requirement of a notice to quit was designed to prevent 'surprise' evictions by assuring that a tenant would have notice before finding his furniture on the street, see Davis v. Hunter, supra, 104 Daily Wash. L. Rptr. at 934; Hughes v. Johnson, 108 Daily Wash. L. Rptr. 1745, 1749 n.7 (Super. Ct. D.C. 1980), the filing of the complaint itself will in most cases serve that purpose. Pre-suit notice to quit is therefore no longer an indispensable element of Justice between landlords and tenants. Rather, it simply defers the day on which security can be provided to the landlord by the entry of a protective order. Davis v. Hunter, supra, 104 Daily Wash. L. Rptr. at 934. *fn11

Notwithstanding these changes in the pertinent legal landscape, demands for pre-suit notices to quit are still very much with us. A landlord seeking to recover possession of his premises must comply with a bewildering assortment of requirements which may understandably appear to him to lack any rhyme or reason, and with which it is anything but easy to comply. A few examples illustrate my point.

(a) Timing of the notice.

A notice to quit must expire on the "anniversary date," i.e., between midnight of the last day of the terminal month and the first day of the new month. D.C. Code § 45-1402 (1990); Zoby v. Kosmadakes, 61 A.2d 618, 620-21 (D.C. 1948). Just how difficult this is to understand is apparent from a comparison of the majority and Dissenting opinions in Zoby; see also Pritch v. Henry, 543 A.2d 808, 811-12 (D.C. 1988). The need for these arcane calculations puts a devastating weapon into the hands of the advocate for the tenant who has not complied with his lease or has not paid his rent, but who wants to stay put anyway. *fn12 Fortunately, in Cormier, supra, 609 A.2d at 678-81, this court held that the "anniversary date" requirements of § 45-1402 have been eliminated for those cases governed by the Rental Housing Act, but the statute apparently still survives for other purposes.

(b) Content of the notice.

The Rental Housing Act and other provisions of law contain extensive requirements as to what must be included in the notice to quit, when it must be served, and what purposes for eviction are permissible. See, e.g., D.C. Code § 45-2551 (1990) (which is three single-spaced pages long and contains cross-references to many other statutes). The present case, in which the tenant of a "shop plus" is claiming deficiencies in the notice relating to the landlord's failure to comply with, of all things, RACD requirements, illustrates the esoteric character of the issues that arise.

In 1984, in attempting to be fair to our Spanish-speaking citizens, the Council directed that "every notice to the tenant to quit shall be served in English and Spanish. . . ." D.C. Code § 45-1406 (1990). This requirement provides much-needed protection to those tenants who understand Spanish but not English, but it does little for those who do speak English (or, for that matter Slovak, Swedish or Swahili). Oddly enough, it has been held that any residential tenant, even one who does not speak Spanish, may successfully seek dismissal of a suit for possession for failure to serve a notice to quit in Spanish, even though there is no imaginable way in which the tenant could have been prejudiced. Kline v. Kelly, 116 Daily Wash. L. Rptr. 101, 104-05 (Super. Ct. D.C. 1988); cf. Ontell v. Capitol Hill E. W. Limited Partnership, 527 A.2d 1292, 1295 & n.4 (D.C. 1987) (requiring showing of prejudice where defendant is tenant of commercial premises). *fn13

(c) Service of the notice.

According to a leading commentator,

the reason for requiring notice at all is to warn the other party of the termination of the tenancy and thus prevent inconvenience and loss. If the tenant has actual knowledge, the object of the notice is accomplished.

3A THOMPSON, (supra) , § 1359, at 687. This court has held, however, that in the District, the statutory requirements for service (personal service or posting) *fn14 must be met and that, in the absence of a judicial admission, proof that the tenant actually received the notice is insufficient. Jones v. Brawner Co., 435 A.2d 54, 56-57 (D.C. 1981). Under Jones, a tenant who has been sued for possession after not paying any rent for a year, who has received a notice to quit by registered mail, and who has signed the receipt for the notice, can successfully move to dismiss the action because the complaint was not served on him in the manner prescribed by the statute. In Thibodeau v. Tett,, 109 Daily Wash. L. Rptr. 593 (Super Ct. D.C. 1981), a case which came before me in the trial court, the landlord had failed four times to achieve service of a satisfactory notice to quit on a tenant who had falsified facts in her application; he prevailed on the fifth attempt only by the skin of his teeth.

Many of the plaintiffs who bring actions for possession in the Superior Court are small landlords. They are supposed to be in a forum in which "lay persons, operating without legal assistance, initiate and litigate . . . judicial proceedings." Goodman v. District of Columbia Rental Hous. Comm'n, 573 A.2d 1293, 1299 (D.C. 1900). "Procedural technicalities are particularly inappropriate in such a statutory scheme." Id. Our Rules "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome." Id. at 1300 (quoting Conley v. Gibson, 355 U.S. 41, 48, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). *fn15 This principle should apply a fortiori to landlord-tenant disputes, in which many small landlords and tenants represent themselves. Goodman, supra, 573 A.2d at 1299-1301. Yet it is virtually impossible for a lay landlord to comply with all of the statutory and administrative requirements relating to notices to quit without the assistance of a lawyer who specializes in this type of work. Indeed, the attorney who prepared the supposedly insufficient notice to cure or quit in the present case frequently appears in landlord-tenant litigation in the District of Columbia courts. *fn16

In Mahdi and in Davis v. Rental Associates, this court held that a court may strike the pleadings of a tenant who has failed to comply with a protective order, and that the landlord need not prove that he would have won the underlying case. Unless Jamison is given the very narrow reading that I have suggested in Part II B, (supra) , however, that case seems to stand for the proposition that if the tenant (who may be the head of the English Department at a local university) was not served with a notice to quit in Spanish, or if the notice was sent to him by registered mail, or (in some situations) if the landlord made a one-day miscalculation with respect to the timing of the notice, then a dozen successive months of missed protective order payments make no difference -- the suit must be dismissed, and the landlord cannot remove the non-paying tenant from the premises without starting the laborious and uncertain notice to quit process all over again.

The "notice to quit is a condition precedent to suit" analysis, which is at the heart of Jamison, is dubious enough today even where there has been no noncompliance with a protective order. In a situation otherwise governed by Mahdi, that doctrine conditions fundamental fairness, as well as the enjoyment of basic property rights which implicate constitutional protections, on the landlord's ability to find a lawyer who can compose, properly time, and flawlessly serve a perfect notice to quit, even though the tenant has actual notice of everything. Surely this court will not continue to provide such stark validation for the once widely held perception of appellate courts as "impregnable citadels of technicality." R&G Orthopedic Appliances & Prosthetics, Inc. v. Curtin, 596 A.2d 530, 539 (D.C. 1991) (citations omitted). "Gotcha" should no longer he allowed to rule the day.

IV.

Conclusion

I would affirm the judgment. I think Jamison is distinguishable. If Jamison is deemed controlling, then we should overrule that decision en banc. Accordingly, I respectfully but most emphatically Dissent. *fn17


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