Ayers v. Landow

666 A.2d 51, 1995 D.C. App. LEXIS 205, 1995 WL 582439

Opinions

SCHWELB, Associate Judge:

During the course of a bench trial in this dispute between a landlord and a tenant, the judge entered judgment in the tenant’s favor upon the ground that the landlord failed to serve a Notice to Cure Violations of Tenants or Vacate (the notice) in the manner required by law. Although we recognize, as did the trial judge, that the requirement with which the landlord failed to comply is a hypertech-nical one, we agree with the judge that the applicable statute, reasonably construed, compels the result that he reached. Accordingly, we affirm the judgment.

I.

At the time of trial, appellee Stuart Lan-dow had been, for approximately fourteen years, a tenant of one unit in a small apartment building in northwest Washington, D.C. Landow and his landlord, appellant Robert W. Ayers, had been embroiled for several years in a dispute regarding the proper rent level. As a result of this dispute, Landow had been paying the equivalent of his rent into the registry of the Superior Court pursuant to a protective order. In October 1993, the amount in the registry was approximately $24,000.

Ayers testified that in January 1993, he discovered that á huge leak in Landow’s apartment was causing water to “cascade” down into the unit below. When he went to investigate, Landow was not at home. Ayers and his employees entered the apartment with a pass key. They found water running at “virtually full force” from the sink, evidently because the trap was broken. There was a pot placed under the trap, which led Ayers to believe that Landow knew of the leak but had failed to report it to the landlord.

At trial, Ayers described the apartment as being in shocking condition.¹ Photographs were introduced into evidence and, after having seen them, the judge remarked that “there’s no one in the United States who wouldn’t try to get a tenant out if the place looked the way this place does.”

Following an unsuccessful informal attempt to persuade Landow to correct the conditions in the apartment, Ayers determined to seek possession of the premises upon the grounds that Landow was in violation of a provision of his lease requiring him to maintain the unit in good order. See D.C.Code § 45-2551(a) (1990). On March 12, 1993, Ayers’ attorneys sent to Landow, by certified mail, a “Notice to Cure Violation of Tenancy or Vacate.” Subsequently, on March 17, March 19, April 7, and April 9, 1993, a process server attempted to effect personal service of the notice on Landow. Landow was apparently not at home on any of these dates² and, on all four occasions, the process server posted a copy of the notice on the door. On May 10, 1998, the conditions in the apartment having been only minimally abated, Ayers filed suit for possession in the Superior Court.

II.

Following several preliminary skirmishes not relevant to this appeal, the case came to trial on October 20, 1993. On the judge’s initiative, court and counsel focused on D.C.Code § 45-1406 (1990), which provides in pertinent part that

[i]f the notice [to quit]

Footnotes

•

[3] is posted on the premises, a copy of the notice shall be mailed first class U.S. mail, postage prepaid, to the premises sought to be recovered ... within S calendar days of the date of posting.

(Emphasis added). Landow contended that § 45-1406 is unambiguous, and that mailing of the notice a substantial period before the posting was not in conformity with the plain language of the statute. Ayers, placing his primary reliance on District of Columbia v. Gantt, 558 A.2d 1120, 1122 (D.C.1989), argued that the phrase “within three days” was ambiguous, and could reasonably be interpreted to mean no later than three days after the posting.

After repeatedly expressing concern about the technical character of Landow’s defense⁴ and its lack of any relationship to the merits of the controversy, the judge ruled, “with great pause and hesitation,” in Landow’s favor. The judge found it “strange that the legislature would say within three days and mean two weeks before.” He ruled, in pertinent part, as follows:

The operative sentence says “If the notice is posted on the premises, a copy shall be mailed within three days.” Evidently, self-evidently, in my judgment, that statute envisions something that happens if there has been posting. If the precedent event of utilizing posting service has occurred, then the party shall mail. It does not contemplate some kind of blanket prophylactic earlier mailing, and in this instance, as I recall, the evidence revealed that there was a mailing some ... [s]even days prior to posting in the case. It seems to me that the plain meaning of that statute is that if you have been unable to effect the two preferred kinds of service for a notice to cure, then, if you post, you shall mail; and one has to come before the other, it seems to me.

To adopt the plaintiffs interpretation of this statute could lead to a kind of temporal anarchy, it seems to me, with regard to the scheme....

The judge next addressed the practical implications of Ayers’ position. He observed that, under the landlord’s proposed construction of § 45-1406, “hypothetically, what you could do is to mail on January 1st and then, when you get around to it in June, you could post, and then wait 30 days and bring a lawsuit at the end of June.” Alternatively, the judge observed, “you could just do a prophylactic mailing of a bunch of notices to cure saying you’ve all got too many people, then wait 60 days, 90 days, see if you’re happy — and post on the people that are still a problem.” The judge concluded that “that kind of ambiguity with regard to this advance mailing, without the predicate [event] having yet occurred of posting, is just clearly not what’s contemplated by the statute.” Finally, he pointed out that “there’s certainly no prejudice or burden on a landlord from complying with a straightforward interpretation of this statute.”

Ayers relied heavily on Gantt, supra, 558 A.2d at 1122-23. In Gantt, this court was called upon to construe D.C.Code § 20-903(a) (1981), which provided at that time that claims against a decedent’s estate were barred “unless presented within 6 months after the date of the first publication of notice of the appointment of a personal representative.” We held in Gantt that the quoted language “does not clearly state whether a claim may only be filed within the specified six-month period or may be filed earlier but no later than the end of that period.” Id. at 1122. After considering the legislative history of § 20-903(a), we concluded that the legislature “focused only on a termination date for the filing of claims, not on a beginning date as well.” Id. at 1123.

The trial judge remarked that the decision in Gantt “has to give me pause,” and that it had almost caused him to rule in the landlord’s favor. Upon further reflection, however, he concluded that “the Gantt case is clearly distinguishable.” He described Gantt as standing for the proposition that “within,” like other legal terms, does not have a single universal meaning. In Gantt, according to the judge, the use of the word “within”

was clearly designed to drop a curtain of finality at the end, temporally, and [to] say that beyond this point you shall make no claims against a decedent’s estate. [I]n that context, [the court] ruled that “within, can mean before.” In my judgment, that does not mean that in this context “within” can mean “before.”

(Emphasis added). The judge thus distinguished Gantt essentially upon the ground that the considerations discussed above at pp. 53-54, which in his view rendered Ayers’ construction of § 45-1406 unreasonable and unworkable, were simply not present in Gantt.

III.

The question whether § 45-1406 permits a mailing a substantial period before service by posting is purely one of law. We therefore need not accord the judge’s ruling any deference, and our review is de novo. Guadalupe v. United States, 585 A.2d 1348, 1352 n. 7 (D.C.1991). We have, however, set forth the trial judge’s reasoning in some detail because, in our view, his construction of the statute, which he gave orally from the bench, was both eloquent and persuasive. We agree with the judge that to read the phrase “within three days,” in the present context, as countenancing mailings effected weeks or even months before the posting on which the landlord relies would create “temporal anarchy” and a host of practical problems which the legislature could not have intended. When, for example, would the tenant be required to “cure or quit” if a letter were mailed to him on January 1, and if a notice were tacked to his door half a year later on four different days in July? Moreover, the letter, by itself, is concededly ineffective to achieve service. It is, in effect, a nullity. We do not believe that such a nullity can be retroactively converted, a substantial period after the fact, into one part of a legally sufficient service of the notice.

In the present case, each posting of the notice followed an unsuccessful attempt to effect personal service. If Landow had been at home on any of the occasions when the process server came to his apartment, posting would have been unnecessary, and the previously mailed letters would have accomplished nothing but confusion. The Council of the District of Columbia cannot be supposed to have intended that landlords be permitted to comply with the statute by mailing letters in advance of posting, when those letters might well turn out to be superfluous, and misleading to the tenant as well. The statute requires the mailing of the letter, as the judge pointed out, only if the notice is posted on the premises. When the notice has not been posted, there is nothing in the language or the purpose of the statute which would give effect to any mailing at all.

Moreover, the mailing of the notice to supplement posting is required by § 45-1406 for constitutional reasons. Notice by posting of a summons on the door to the tenant’s apartment, without more, has been held to be constitutionally inadequate. Greene v. Lindsey, 456 U.S. 444, 453-56, 102 S.Ct. 1874, 1879-81, 72 L.Ed.2d 249 (1982). The mailing requirement was added in 1984; its timing suggests that it was enacted in response to the Greene decision. Frank Emmet Real Estate, Inc. v. Monroe, 562 A.2d 134, 136 n. 5 (D.C.1989).⁵ The words of § 45-1406, literally construed, are wholly consistent with the apparent constitutional imperative; if you post, then you must mail, or the posting will not comport with due process. The mailing, in other words, is ancillary to the posting. Accordingly, we are satisfied that the judge’s reading of the statute was correct.⁶

IV.

Ayers claimed in the trial court, and reiterates on appeal, that the interpretation of § 45-1406 adopted by the trial judge is unduly technical, and that the result is “contrary to the most fundamental principles of fairness and equity.”⁷ Ayers takes the position that Landow was not harmed by the “early” mailing and asks us, in effect, to invoke the principle of “no harm, no foul.”

At least when framed in the abstract, Ayers’ argument is not without appeal. There appears to be no question that Landow received the notice to quit or cure. It was posted on his door on four separate occasions and mailed to him once. Two months later, in May 1993, the complaint in Ayers’ action for possession was served on Landow. The trial did not begin until October. Landow does not deny, nor can he, that he was fully apprised of the claim which Ayers was making against him long before Landow was called upon to defend it.

Moreover, although the case was decided in Landow’s favor before he had any occasion to present a substantive defense, it appears from the judge’s comments on the photographs which were admitted into evidence that Ayers presented a strong prima facie case which might not be easy for Landow to meet on the merits. An observer not conditioned by the niceties of our landlord-tenant law might well ask why, if the tenant is apparently in breach of a basic condition of his lease, and if he has received actual notice of the landlord’s contentions on numerous occasions, the case against him should be thrown out of court without any determination of the merits.

As counsel for the tenant explicitly conceded at argument, the requirement of a notice to quit was initially designed to prevent “surprise” evictions, and to assure that a tenant would have notice before finding his furniture on the street. See Davis v. Hunter, 104 Daily Wash.L.Rptr. 929, 934 (Super.Ct.D.C.1976); Hughes v. Johnson, 108 Daily Wash.L.Rptr. 1745, 1749 n. 7 (Super.Ct.D.C.1980). At common law, the landlord was entitled to use self-help to recover possession, see Snitman v. Goodman, 118 A.2d 394, 397-98 (D.C.1955), overruled by Mendes v. Johnson, 389 A.2d 781 (D.C.1978) (en banc), and the possibility that a tenant’s belongings would be removed from the premises by the landlord was a realistic one. Since our decision in Mendes, however, a tenant cannot lawfully be dispossessed without the institution of suit, which will provide him with notice; if the landlord uses self-help, the tenant has a right to compensatory damages, and may be entitled to punitive damages and an award of counsel fees as well. See, e.g., Parker v. Stein, 557 A.2d 1319, 1321-22 (D.C.1989).

In the present instance, as in most cases, the salutary purpose of avoiding eviction without notice could be achieved simply by serving the tenant with the landlord’s complaint for possession. Davis, supra, 104 Daily Wash.L.Rptr. at 934. Landow had ample time following the service of that pleading to prepare his defense. Under these circumstances, any imperfection in the timing,⁸ content,⁹ or manner of service¹⁰ of the notice did not cause or threaten any of the mischief which a notice to quit was initially designed to avert. Cf. OliveR Wendell Holmes, The Path of the Law 187 (1921) (“[i]t is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV”). We think it fair to conclude, in any event, that Ayers’ failure to comply with the commands of § 45-1406 did not prejudice Landow at all. It is not surprising that the first substantive words spoken by Landow’s attorney at the trial were: “Your Honor, landlord and tenant law is a law of technicalities.”

Although there are those who rejoice in this regime,¹¹ there is a price to be paid. The present case illustrates the reality that it can be difficult even for attorneys from a law firm which specializes in this type of litigation to dot all their i’s and cross all their t’s with regard to the preparation and service of a legally sufficient notice to quit. As the trial judge noted, it should not be difficult for trained attorneys to comply with § 45-1406 as we now construe it. Many of the plaintiffs who bring actions for possession in the Superior Court, however, are small landlords who do not have legal training. They are supposed to be in a forum in which “lay persons, operating without legal assistance, [can] initiate and litigate ... judicial proceedings.” Goodman v. District of Columbia Rental Hous. Comm’n, 573 A.2d 1293, 1299 (D.C. 1990). “Procedural technicalities are particularly inappropriate in such a statutory scheme.” Id. The unfortunate pro se landlord caught in the bewildering maze of notice to quit requirements, see notes 8 through 10, supra, may find himself in much the same position as the Mikado’s disfavored “billiard sharp,” who had to play

.... extravagant matches 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).

In light of the foregoing, Ayers may well have a legitimate claim, in the abstract, that a decision in Landow’s favor is unjust or even irrational. Assuming that he does, however, the relief he seeks must be obtained in another forum.

The requirement that the landlord serve the notice to quit or cure in a specified way is imposed by statute. Section 45-1406 was enacted in 1901, see Stat. 1382, eh. 854, § 1223, and it was reaffirmed and even broadened as recently as 1990. See D.C.Law 5-90, § 3, 31 DCR 2537. The Council of the District of Columbia has thus retained the requirement of a properly served notice to quit long after the dissipation of any danger that the tenant would be physically evicted without notice of the landlord’s intention to recover possession of the premises. Moreover, we have held that the proper service of a notice to quit is a condition precedent to the institution of suit. Moody v. Winchester Mgmt. Corp., 321 A.2d 562, 563 (D.C.1974); see also Jones v. Brawner, supra note 10, 435 A.2d at 56-57 & n. 9. “Posting” should be employed only as a last resort, and “[w]hen a landlord has to fall back on this method of service, he must strictly comply with the statutory requirements.” Moody, supra, 321 A.2d at 564.

It is not within the judicial function ... to rewrite the statute ... in order to make it more ‘fair’”_ 184-1 Columbia Road Tenants’ Ass’n v. District of Columbia Rental Hous. Comm’n, 575 A.2d 306, 308 (D.C.1990). “Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done.” Bifulco v. United States, 447 U.S. 381, 402, 100 S.Ct. 2247, 2259, 65 L.Ed.2d 205 (1980) (Burger, C.J., concurring). Because we agree with the trial judge’s construction of 45-1406, the judgment appealed from is hereby

Affirmed.

1

. The testimony included the following:

THE WITNESS: I can honestly say that I’ve never seen an apartment in as bad condition, and I can be specific. There was approximately a quarter inch of dust over the entire apartment on the floor, probably 500 newspapers in various states of having been crumbled up or stacked, used Kleenex thrown throughout the apartment, pails of human hair in the bathroom.

THE COURT: Pails of human hair?

THE WITNESS: A pail.

MR. BATTINO (counsel for the tenant): There's a difference, Your Honor.

THE COURT: Okay.

THE WITNESS: A pail.

THE COURT: Pail of human hair. Okay.

THE WITNESS: Approximately 20 Chips Ahoy or cookie containers crumbled, approximately 20 empty cereal boxes, approximately two dozen milk cartons. Now, these are just in the apartment.

In the refrigerator, which had apparently never been defrosted, I found eight to ten ice cream cartons, a piece of meat with maggots, further, perhaps a dozen milk cartons.

The bed appeared as though it had been defecated in, or the tenant had attempted to cleanse himself with the covers. The smell coming from that unit is just overpowering. I personally can — it's hard to take a breath in there.

2

. All four of the days on which personal service was attempted were working days, and each attempt was made during working hours. Landow claims that he has daytime employment and that Ayers should have known that Landow would be working at the times the process server came to his apartment and would not be at home. In light of our disposition, we have no occasion to determine whether these attempts constituted due diligence. See D.C.Code § 45-1406 (1990), authorizing service by posting only if tenant “can not be found.”

In addition to attempting to serve Landow at home at times when Landow would be expected to be at work, Ayers (or his attorneys) complicated the process by use of a notice to quit which contained singularly infelicitous phraseology. The notice, which was undated, contained this illuminating explication of the time available to Landow to cure or quit:

Please be advised that if you fail to cure said violation(s) prior to the end of the thirty day period you are to vacate the premises at the expiration of this notice. This notice will expire as of the expiration of your monthly tenancy which ends right after the expiration of thirty days after the date this notice is served on you. This is the only notice you will receive.

(Emphasis added).

In spite of the italicized language, Landow was served with this notice on five different occasions, once by mail and four times by posting. He did not, however, make any claim in either court that the confusing content of the notice rendered it legally defective, and we do not base our decision on that ground.

3. A notice to cure and a notice to quit may be combined, as they were in this case, into a single document. Cormier v. McRae, 609 A.2d 676, 680 (D.C.1992).