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Venison v. Robinson

July 27, 2000

WILLIAM E. VENISON, APPELLANT
v.
ELBERT C. ROBINSON, VERNA C. ROBINSON, AND CHERYL D. EDWARDS, APPELLEES



Before Terry and Schwelb, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Terry, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Ann O'Regan Keary, Trial Judge)

Submitted May 18, 1999

Appellant William Venison seeks reversal of a default judgment in favor of appellees Elbert and Verna Robinson, quieting title to a piece of real property that Venison had previously owned. The Robinsons filed the underlying complaint in 1997 to confirm a tax deed which they had acquired from the District of Columbia in 1993. Despite substantial evidence that he was personally served, Mr. Venison claims that the default judgment was the only legal document he ever received concerning the case, and that the court did not have jurisdiction over him because he had never been properly served. He also asserts that his present wife obtained a dower interest in the property before title was transferred to the Robinsons, and that the Robinsons' failure to join her as an indispensable party warrants reversal. We decline to consider the latter argument because the judgment, as it now exists, has no effect on any possible dower interest which Mrs. Venison may (or may not) assert in the future. As to Mr. Venison, we conclude that he has not overcome the presumption that service was proper, and thus we affirm the judgment.

I.

In 1950 William Venison and his first wife, Mary Venison, purchased a piece of real property located at 513 Tennessee Avenue, Northeast. Mary Venison transferred her interest in the property to her husband in 1963, making him its sole owner. Sometime prior to 1987, Mr. Venison stopped paying taxes on the property. *fn1 The District of Columbia taxing authorities sent him notices by certified mail advising him of the taxes due, but Mr. Venison never responded. Notices were also published in the Washington Times and the Washington Post on December 18 and 19, 1987, respectively. Consequently, in January 1988, the District sold the property to the Robinsons at a public tax sale, and shortly thereafter the Robinsons obtained a tax certificate for the property.

For two years following the tax sale, Mr. Venison had a right to redeem the property by paying all of the back taxes owing on it, plus interest. See D.C. Code § 47-1306 (a) (1990). *fn2 On December 15, 1989, the District sent Mr. Venison a letter, by certified mail, notifying him of the imminent expiration of his redemption period and the prospective loss of his property if he did not redeem it by January 29, 1990. *fn3 According to Mr. Venison, he never received notice of either a tax delinquency or the impending expiration of his right of redemption.

On July 30, 1993, the Robinsons received a tax deed to the property. They held it from that date until January 21, 1998, when they transferred the property to Cheryl Edwards. Before conveying the property to Ms. Edwards, the Robinsons filed a "complaint to remove cloud on title." On October 27, 1997, a special process server filed an affidavit of service stating that he had personally served Mr. Venison with the summons and complaint on October 25, 1997, at the address where Venison admitted he lived. *fn4 According to the affidavit, the person upon whom the complaint was served identified himself as William Venison. The complaint was never answered.

On December 11, 1997, the Robinsons filed and served an application for judgment, based on Mr. Venison's failure to file an answer to the complaint. The court granted the application and issued a default judgment on January 8, 1998, granting to the Robinsons "absolute ownership and the right of disposition of the property" at 513 Tennessee Avenue, N.E. The Robinsons thereafter conveyed the property to Ms. Edwards. *fn5

On January 26, 1998, Mr. Venison filed a motion to vacate the default judgment, asserting (1) that the court did not have personal jurisdiction over him because he had not been properly served, *fn6 (2) that he did not have proper notice of the legal proceedings against him, (3) that the Robinsons failed to join a necessary party, (4) that he had an adequate defense, and (5) that he acted promptly and in good faith upon becoming aware of the legal proceedings. To the motion Mr. Venison attached his own affidavit, along with copies of bills and cashier's checks showing that he had paid taxes on the property in 1995, 1996, and 1997. Mr. Venison's affidavit stated that "[t]he complaint . . . was never served upon [him]" and that "[t]he only legal document which [he] received in this case was the final Order and Judgment." He also asserted that he had paid taxes on the property since he originally acquired it.

The court denied Mr. Venison's motion, ruling that his affidavit was insufficient to overcome the presumption, established by the process server's affidavit, that he had been personally served. Mr. Venison filed a motion for reconsideration and then filed a notice of appeal. Thereafter the trial court granted Mr. Venison's motion for reconsideration for the limited purpose of holding an evidentiary hearing on the issue of personal service; however, Mr. Venison withdrew his motion for reconsideration, and the hearing was never held.

II.

The power of a trial court to vacate a prior judgment or order, other than merely for clerical mistakes, is circumscribed by Super. Ct. Civ. R. 60 (b). Normally, we review the grant or denial of a motion under Rule 60 (b) for abuse of discretion. See Johnson v. Lustine Realty Co., 640 A.2d 708, 709 (D.C. 1994); Alexander v. Polinger Co., 496 A.2d 267, 269 (D.C. 1985); Union Storage Co. v. Knight, 400 A.2d 316, 318 (D.C. 1979); Westmoreland v. Weaver Brothers, Inc., 295 A.2d 506, 508 (D.C. 1972). However, because there is a strong judicial presumption favoring adjudication on the merits, we scrutinize closely the trial court's refusal to set aside a default judgment. Johnson, 640 A.2d at 709; Clark v. Moler, 418 A.2d 1039, 1041 (D.C. 1980); Dunn v. Profitt, 408 A.2d 991, 992 (D.C. 1979). Therefore, when reviewing the denial of a motion to vacate a default judgment, we consider the particular facts of the case to determine "whether the movant had actual notice of the proceeding, acted promptly after learning of the default judgment, proceeded in good faith, and presented a prima facie adequate defense, and also whether the non-moving party would be prejudiced." Mewborn v. U.S. Life Credit Corp., 473 A.2d 389, 391 (D.C. 1984); accord, e.g., Gill v. Tolbert Construction, ...


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