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Jones v. Hersh

March 25, 2004

MICHELLE A. JONES, APPELLANT,
v.
CARL HERSH, APPELLEE.



Appeal from the Superior Court of the District of Columbia (LT 32358-02) (Hon. Cheryl M. Long, Trial Judge)

Before Terry, Glickman and Washington, Associate Judges.

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

Argued February 24, 2004

Michelle A. Jones appeals from the denial of her Rule 60 (b)(4) motion to vacate a default judgment. The judgment was entered against her in an action for the possession of real estate brought by her landlord, appellee Carl Hersh. Jones contends that the judgment was void for two reasons. First, Jones argues that the court never acquired personal jurisdiction over her because she was not served properly with the summons and complaint. Alternatively, Jones argues that the court acted without authority because it entered the judgment without requiring ex parte proof even though she had appeared in court on the return date and answered the calendar call.

Like the motions judge, we reject Jones's first argument. We hold that valid service on Jones was achieved when the process server went to her residence (the property sought to be recovered), found that Jones was not there, and delivered the summons and complaint instead to somebody else above the age of sixteen years who was residing at or in possession of the premises. No additional efforts to find and serve Jones personally were required for such substitute service to be effective.

Jones's second argument may be meritorious, however, depending on whether Jones actually did answer the calendar call of her case as she claims. There was a bona fide factual dispute about that which the motions judge did not resolve. Since Jones is correct that the court lacked authority to enter a judgment against her without evidence if she had entered her appearance, we are constrained to reverse and remand for further fact finding.

I.

Hersh filed a complaint against Jones for possession of real estate based on her failure to pay rent. The accompanying summons directed Jones to appear in Landlord and Tenant Court on October 7, 2002, to answer the complaint. On the afternoon of September 26, 2002, Hersh's process server went to Jones's residence, the premises that Hersh sought to recover. Jones's niece, who was over sixteen years of age, answered the door and said that Jones was not at home. According to the process server, the niece confirmed that she too resided at the premises. The process server then handed the summons and complaint to the niece, who gave them to Jones that evening when Jones returned from work. Hersh and his process server made no other attempt to find and serve Jones.

In response to the summons, Jones came to Landlord and Tenant Court on the return date. Hersh was there also. At some point during that day, however, the clerk entered a default judgment against Jones. It remains uncertain how this came about. Rule 11 of the Superior Court's Landlord and Tenant Rules directs the courtroom clerk at the beginning of each session of Landlord and Tenant Court to "call the cases assigned for that day in order to determine if any parties are absent." The Rule allows the clerk to enter judgment for the plaintiff only if the plaintiff is present, "neither the defendant nor the defendant's representative is present," and certain other conditions are met. If both parties (or their representatives) have appeared, the Rule provides that the clerk "shall present" the case to the judge for disposition (unless the parties agree to a continuance.)*fn1 Id. At the hearing on Jones's motion to vacate the judgment, Hersh testified that Jones had not yet arrived when the clerk called their case, that he therefore requested the clerk to enter judgment pursuant to Rule 11, and that he so informed Jones when she subsequently did appear. But Jones testified that she was present during the calendar call and answered when she heard the courtroom clerk call her name. Jones further testified that she waited in vain until the lunch recess for the judge to hear her case. Then, for reasons not entirely clear from the record, she did not return for the afternoon session of court even though her case had not yet been reached. *fn2

Two weeks then went by, during which Jones sought no relief from the default judgment. On October 22, 2002, Hersh secured the issuance of a writ of restitution directing the Marshal to evict Jones from the premises. The Marshal notified Jones on October 24 that her eviction was imminent. Jones still did not move to set aside the default judgment, nor did she move to stay the execution of the writ. The writ was executed and Jones was evicted on November 13, 2002.

Three weeks later, Jones moved pursuant to Superior Court Civil Rule 60 (b)(4) to vacate the default judgment. She contended that the judgment was void because she was not effectively served with the summons and complaint and because she was present and had answered when her case was called. After taking testimony from Jones, Hersh, Jones's niece, and the process server, the motions judge declined to afford Jones relief on either ground. The judge concluded that service of process on Jones was effective because her niece was in possession of the premises and, in fact, was residing there when she accepted the summons and complaint. The judge also concluded that entry of the default judgment was proper even if Jones had responded to the calendar call as she testified - a factual issue that the judge did not resolve*fn3 - because "default judgments often are entered in this Branch when a tenant who answers the roll call later abandons the courthouse before the case is heard on the merits by the judge." Finally, the judge concluded that other relevant factors, including in particular Jones's tardiness in moving to vacate the default judgment,*fn4 weighed against granting her motion.

II.

A.

The decision whether to relieve a party from a final judgment pursuant to Rule 60 (b) is committed in most instances to the sound discretion of the trial court, and appellate review is deferential and limited. But the trial court has no discretion when relief is sought pursuant to subdivision (4) of Rule 60 (b) on the ground that the judgment is void. Whether a judgment is void is a question of law (though like all legal questions it may depend on the court's resolution of issues of fact), and if a judgment is void, it must be vacated. See McLaughlin v. Fidelity Sec. Life Ins., 667 A.2d 105, 107 (D.C. 1995); see generally 12 MOORE'S FEDERAL PRACTICE § 60.44[5][a] (3d ed. 2003). The movant "need show no meritorious claim or defense or other equities on his behalf; he is entitled to have the judgment treated for what it is, a legal nullity." Combs v. Nick Garin Trucking, 263 U.S. App. D.C. 300, 304-05, 825 F.2d 437, 441-42 (1987) (internal quotation marks and citation omitted); accord, Alexander v. Polinger Co., 496 A.2d 267, 269 (D.C. 1985) ("A showing of a meritorious defense is not required when a judgment is void."). "Further, Rule 60 (b) 'places no time limit on an attack upon a void judgment, nor can such a judgment acquire validity because ...


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