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Edelhoff v. Shakespearetheatre at the Folger Library

October 13, 2005

JUDY M. EDELHOFF, APPELLANT,
v.
SHAKESPEARETHEATRE AT THE FOLGER LIBRARY, INC., APPELLEE.



Appeal from the Superior Court of the District of Columbia (LT13882-04). (Hon. Anna Blackburne-Rigsby, Trial Judge).

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

Argued September 22, 2005

Before SCHWELB, RUIZ, and GLICKMAN, Associate Judges.

Judy M. Edelhoff appeals from an order of the trial court denying her motion to vacate a default judgment granting her landlord, Shakespeare Theatre at the Folger Library, Inc., possession of Ms. Edelhoff's apartment at 311 East Capitol Street, S.E., #7, Washington, D.C., for certain alleged occupancy violations, including habitual late payment of rent. On appeal, Ms. Edelhoff contends that the underlying judgment is void because service of process by posting was invalid. We agree and reverse.

I.

Although the litigation between the parties has a somewhat complex history,*fn1 the issue before us is relatively straightforward. Ms. Edelhoff, who had been a tenant at the apartment at issue for approximately twenty-five years, spent a substantial amount of her time travelling abroad. It is undisputed that while Ms. Edelhoff was away from Washington, D.C., her rent checks for October 2003 and January 2004 were returned for insufficient funds. On February 27, 2004, the landlord issued a thirty-day "Notice to Correct or Vacate" to Ms. Edelhoff. The Notice was served by private process server by posting on her unit door and by mailing a copy to Ms. Edelhoff at her unit address.*fn2

The Notice to Correct or Vacate expired by its terms on March 31, 2004. On April 6, 2004, Ms. Edelhoff wrote to the landlord's general manager, enclosing a money order for a total of $973.32, covering the dishonored checks for October 2003 and January 2004 as well as the rent for April 2004. In her letter, Ms. Edelhoff stated that she had been a good tenant throughout her long tenancy, and she added:

My residence at 311 East Capitol Street, SE in Apartment 7 has been and continues to be my primary residence, as it has been since 1978. Certainly I am free to travel as necessary or desired. If another method of payment would be more reliable, such as a direct bank transfer or other method, I would be glad to discuss that with you. In the meantime, while I am overseas, if you need to reach me you can telephone [me at a specified international number].

(Emphasis added.)

On April 20, 2004, the landlord filed an action for possession in the Landlord and Tenant Branch of the Superior Court's Civil Division. The landlord alleged "consistent wilful failure to pay rent on time; nonpayment and bounced checks for prolonged period; material breach of occupancy agreement." On April 28, 2004, following two unsuccessful attempts to serve Ms. Edelhoff personally, the summons was served by special process server by posting on Ms. Edelhoff's door. Two days later, a copy of the summons was mailed to Ms. Edelhoff at the unit address. No representative of the landlord attempted to contact her at the international telephone number that she had provided.

The return date on the summons was May 11, 2004, and a default judgment was entered on that date. A writ of restitution was also issued. At the time of the default, Ms. Edelhoff was in Rome, Italy. On May 23, 2004, immediately upon learning of the landlord's action against her, Ms. Edelhoff returned to this country, and on the following day, she appeared pro se to request that the writ of restitution be stayed. Following a hearing, the trial judge denied the motion. On June 1, 2004, Ms. Edelhoff, now represented by counsel, filed a second such motion. On June 23, 2004, that motion was denied. This appeal followed.

II.

The District of Columbia statute pertaining to service of the summons in an action for possession provides in pertinent part as follows:

If the defendant has left the District of Columbia, or cannot be found, the summons may be served by delivering a copy thereof to the tenant, or by leaving a copy with some person above the age of sixteen years residing on or in possession of the premises sought to be recovered, and if no one is in actual possession of the premises, or residing ...


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