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Pelkey v. Endowment for Community Leadership

February 05, 2004

BRUCE A. PELKEY, APPELLANT,
v.
ENDOWMENT FOR COMMUNITY LEADERSHIP, APPELLEE.



Appeal from the Superior Court of the District of Columbia (LT25572-01) (Hon. Joan Zeldon, Motions Judge)

Before Terry, Farrell and Reid, Associate Judges.

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

Argued January 21, 2004

This case involves a challenge to the trial court's denial of appellant Bruce A. Pelkey's motion to vacate default judgment, which was entered in response to appellee Endowment for Community Leadership ("ECL")'s complaint for possession of real estate. Discerning no abuse of discretion, we affirm the trial court's judgment.

FACTUAL SUMMARY

The record before us shows that on June 22, 2001, ECL filed its complaint for possession of Unit 606 at 1026 16th Street, in the Northwest quadrant of the District of Columbia. Earlier, on February 28, 2001, ECL sent a "notice to vacate for personal use and occupancy of the contract purchaser" to Mr. Pelkey at the 16th Street address, together with an affidavit from Michael B. Vaughn attesting to his purchase of the unit. Initial efforts to serve Mr. Pelkey were unsuccessful, and eventually, service of the summons and complaint was accomplished by posting a notice on the door of Unit 606 at the 16th Street address on July 22, 2001. Affidavit of service was filed on August 1, 2001. The summons ordered Mr. Pelkey to appear in court on August 14, 2001, but he failed to appear. C onsequently, a default judgment was entered on August 14, 2001.

Mr. Pelkey moved for relief from the default judgment on August 20, 2001. He stated:

Upon receiving the notice to vacate, I contacted the D.C. Dept. of Consumer and Regulatory Affairs and was told the notice was invalid. I sent the landlord a certified letter explaining this, and my June rent check. I then left for California. I paid the rent for July and August. I returned to Washington on August 18 (Saturday) and found the complaint & summons taped to my door. I [have] heard nothing from the landlord since March to today.

A writ of restitution issued on August 21, 2001. A few days later, on August 24, 2001, Mr. Pelkey filed an application for stay of execution of writ of restitution in which he declared:

I was informed by the city Dept. of Consumer Affairs, Condo & Coop Branch, that the notice to vacate was invalid. I sent the landlord a certified letter to this effect, along with my rent for June. I have paid the rent through August. I was out of town, came back and learned I had missed the hearing date. On August 20, I filed a motion for hearing, thinking it would prevent a writ of possession from being issued.

Following a hearing on August 28, 2001, Mr. Pelkey's motion to vacate the default judgment was denied, and the stay of the writ was lifted. His subsequent motion for a stay , filed in this court, was denied on August 30, 2001. He filed a timely notice of appeal on August 29, 2001.

ANALYSIS

Mr. Pelkey makes several arguments on appeal regarding the entry of the default judgment against him. He complains that he "was subjected to unfair and ethical treatment by the landlord, including a failure to bargain in good faith with respect to the sale of the subject unit," and that ECL "breached multiple provisions of the Code of the District of Columbia." In addition, he maintains that the notice to vacate and the summons/complaint "were invalid," and that the service of process was "defective." Furthermore, he argues that "[t]he trial court improperly refused to admit evidence, and to entertain oral argument" concerning certain facts. Finally, he argues that he "was wrongfully evicted from the unit, in breach of contract, and was subjected to embarrassment, humiliation and severe intentional infliction of emotional distress by the landlord and its agents."

In response, ECL contends that Mr. Pelkey failed to follow the dictates of Super. Ct. Civ. R. 55 (c) in that he did not file a verified answer to the com plaint with his motion to vacate the default. In addition, ECL argues that Mr. Pelkey has raised on appeal claims that were not presented to the trial court, such as violations of the Tenant Opportunity to Purchase Act, D.C. Code ยง 42-3401 et seq. (2001). And it maintains ...


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