Southern Hills Limited Partnership v. Charles Anderson

• Court: District of Columbia Court of Appeals
• Decided: February 22, 2018
• Docket: 15-CV-1142
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CV-1142

SOUTHERN HILLS LIMITED PARTNERSHIP, APPELLANT,

V.

CHARLES ANDERSON, APPELLEE.

Appeal from the Superior Court of the District of Columbia (LTB-33698-11)

(Hon. Erik P. Christian, Trial Judge)

(Argued November 3, 2016 Decided February 22, 2018)

Timothy P. Cole for appellant.

Bernard A. Gray, Sr., for appellee.

Laurie Ball Cooper, Julie H. Becker and Jonathan H. Levy, Legal Aid Society of the District of Columbia, filed a brief as amicus curiae in support of appellee.

Before GLICKMAN, Associate Judge, and WASHINGTON,1 and NEBEKER, Senior Judges.

WASHINGTON, Senior Judge: Following the arrest of appellee Charles

1 Judge Washington was Chief Judge at the time of argument. His status changed to Senior Judge on March 20, 2017. 2

Anderson (“Anderson”) for criminal behavior, Southern Hills Limited Partnership

(“Southern Hills”) attempted to personally serve him on two occasions with a

Notice to Quit summons and a Verified Complaint for Possession of Real Property

at the residence from which Anderson was being evicted. After Anderson failed to

respond to the door on the second occasion, Southern Hills posted the notice on his

door. Anderson failed to appear for the scheduled hearing and a default judgment

was entered against him. Upon further review of that decision by an Associate

Judge of the Superior Court, the default judgment was vacated and the case was

dismissed because Southern Hills failed to properly serve Anderson with the notice

of the eviction proceeding. On appeal, Southern Hills contends the trial court erred

in dismissing its case for ineffective service of process because it had complied

with the statute by attempting personal service twice at Anderson‟s residence prior

to posting. For the reasons stated below, we affirm.

I.

Southern Hills owns and operates a federally subsidized multi-family

property located at 4339 4th Street, S.E., Washington, D.C. 20032 (“the

Property”). Anderson occupied an apartment (“the Premises”) within the Property

pursuant to a written lease with Southern Hills. On September 17, 2011, Anderson 3

was arrested for a violent assault, selling drugs, and operating a brothel out of his

apartment. The circumstances surrounding Anderson‟s arrest violated the terms of

his lease with Southern Hills,2 and Anderson was asked to vacate the premises

before November 10, 2011. However, Anderson testified that when he arrived at

the housing complex in November of 2011, a security guard3 stationed at the

Property showed him a notice4 that forbade him from being on the Property,

effective immediately.

On December 6, 2011, Southern Hills filed a complaint for possession and

attempted to personally serve Anderson with a copy of the complaint at his

apartment on December 13, 2011 and December 15, 2011. When Southern Hills

was unsuccessful the second time to personally serve Anderson at his apartment,

Southern Hills immediately posted the summons and complaint on Anderson‟s

2 Not at issue are the circumstances which gave rise to Anderson‟s eviction. In summary, Anderson violated a clause in his lease which prohibited residents from engaging in criminal activity. 3 The security guard stationed at Southern Hills was an off duty Metropolitan Police Department (“MPD”) officer. 4 Anderson contends he was shown the bar notice in November of 2011 by an MPD officer working at Southern Hills. Southern Hills formally issued a physical copy of the barring notice on August 6, 2012. Southern Hills confirmed that, consistent with their bar notice policy, “Anderson was likely given a verbal notice of the barring notice” before its actual issuance on August 6, 2012. 4

front door and mailed a copy to him at that same address. No other attempt was

made to locate and serve Anderson with the summons and complaint even though

Southern Hills was aware of Anderson‟s September 17 arrest on evictable charges

and despite the fact that Southern Hills had issued a barring notice against him on

November 10, 2011.5

On December 28, 2011, a hearing was held regarding Southern Hills‟

lawsuit for possession and, upon Anderson‟s failure to appear, a non-redeemable

judgment by default was entered in favor of Southern Hills. On May 4, 2012,

Anderson filed a motion to set aside the default on grounds that the court lacked

jurisdiction due to improper service of process, and the motion was granted.

Southern Hills appealed to this court, and we remanded for “factual findings and

conclusions of law pertaining to the decision to grant the motion to set aside the

default judgment.” The lower court then submitted an Order on September 21,

2015, vacating the judgment for possession entered against Anderson. Southern

Hills timely filed this appeal.

5 Anderson was subsequently released following his September 17 arrest but the record is unclear as to the date of his release. 5

II.

“Whether the method of service [ ] comports with the applicable rule [ ] is a

question of law, which we review de novo.” In re N.N.N., 985 A.2d 1113, 1118

(D.C. 2009). See, e.g., Jones v. Hersh, 845 A.2d 541, 544 (D.C. 2004). The

appellant bears the burden of “convincing the appellate court that the trial court

erred.” Harvey v. United States, 385 A.2d 36, 37 (D.C. 1978).

III.

Rule 4 of the D.C. Superior Court Rules of Procedure for the Landlord and

Tenant Branch requires service in compliance with D.C. Code § 16-1502 (2012

Repl.). The statute reads in relevant part:

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 thereon, by posting a copy of the summons on the premises where it may be conveniently read.

D.C. Code § 16-1502 (emphasis added). 6

On at least one prior occasion, this court has been called upon to interpret

the service requirements of D.C. Code § 16-1502. In Frank Emmet Real Estate,

Inc. v. Monroe (“Monroe”), this court made clear that, in order to prove that a

tenant “cannot be found,” the landlord must make a “„diligent and conscientious

effort‟ . . . to either find the defendant to effect personal service or to leave a copy

of the summons with a person „residing on or in possession of the premises.‟” 562

A.2d 134, 136 (D.C. 1989) (quoting Westmoreland v. Weaver Bros., 295 A.2d 506,

509 n.12 (D.C. 1972)) (emphasis added). Consistent with that obligation in this

regard, we have also stated that “posting is the least favored form of service and

[should be] used only where attempts at personal or substituted service have

failed.” Parker v. Frank Emmet Real Estate, 451 A.2d 62, 64 (D.C. 1982).

Southern Hills argues it met its legal obligation of making a “diligent and

conscientious” effort to serve Anderson by twice attempting, on two different days,

personal service on Anderson. Conversely, Anderson argues that the severity of

his crimes was enough to put Southern Hills on notice that he likely could not be

found at his residence and, that after Southern Hills issued a barring notice against

him, Southern Hills knew that attempts to serve him at his home would be

unsuccessful. Thus, the service of process by posting was invalid because

Southern Hills failed to make a diligent and conscientious effort to find him before

resorting to a posting of the notice. 7

Therefore, we are called upon to determine whether Southern Hills‟ efforts

to personally serve Anderson with a summons and complaint by knocking on the

door of his apartment on two consecutive days was sufficiently diligent and

conscientious under the facts here to allow for the posting of the notice on

Anderson‟s door because “he could not be found.” In order to determine whether

Southern Hills has met this burden, the court must consider what information was

available to the company at the time personal service was attempted at the

residence. For example, in Edelhoff v. Shakespeare Theater at the Folger Library,

Inc., even though the tenant had been a resident of the apartment for twenty-five

years, the landlord was well aware that she spent a substantial amount of her time

traveling abroad. 884 A.2d 643, 644-45 (D.C. 2005). After her rent checks were

returned for insufficient funds, the landlord issued a thirty-day “Notice to Correct

or Vacate” by posting and mailing a copy to her residence. Id. at 646. Ultimately,

this court, quoting heavily from its opinion in Monroe, held that service by posting

and mailing under Rule 4 was ineffective because the landlord had reason to know

the tenant would not be put on notice of the proceeding against her because she

was traveling abroad. See id. at 646; Monroe, 562 A2d at 137.

Southern Hills contends the present situation is distinguishable from the 8

facts in Edelhoff because the tenant had informed the landlord that she would be

overseas and had provided the landlord with a way of contacting her if the need

arose. 884 A.2d at 644. Southern Hills argues that, unlike in Edelhoff, it lacked

actual knowledge of the tenant‟s whereabouts and, therefore, was under no

obligation to do more than attempt personal service twice at the tenant‟s home

before posting. However, the distinction on which appellant relies is not supported

by a fair reading of our opinion in that case. In Edelhoff we held that the posting

and mailing of a notice to the tenant‟s unit, after two failed attempts to personally

serve her at that same residence, was inadequate because the landlord failed to

make a diligent and conscientious effort to contact the tenant in light of the

information that was readily available to them. Id. at 646. More specifically, we

held that the lack of an exact address for the tenant did not mean the tenant could

not be found, and that the landlord should have, at a minimum, attempted to

contact the tenant with the overseas telephone number she had previously

provided. Id.

While Anderson did not provide Southern Hills with a forwarding address,

or even a phone number, Southern Hills, much like the landlord in Edelhoff, was

well aware of information which, had it been pursued, might have resulted in

Anderson being contacted, and ultimately personally served, with the documents 9

that would have made him aware of the eviction proceedings against him. In this

case, Southern Hills knew that Anderson had been arrested for a serious crime.

Similar to the situation in Edelhoff, where the only information available to

the landlord was a phone number, Southern Hills‟ lack of any actual knowledge of

Anderson‟s whereabouts did not preclude them from making a diligent effort to

locate Anderson based on the information that was known to them. Our prior cases

demonstrate that “diligent and conscientious” efforts to locate the tenant depend

significantly on the particular circumstances of the case, with the touchstone of the

inquiry being reasonableness. Where the landlord has reason to believe service

will be ineffective, the landlord must use reasonable efforts to locate the tenant

prior to posting. Such efforts need not result in personal service, but our court has

long recognized the burden on landlords to make diligent and conscientious efforts

to serve prior to posting. Diligence and conscientiousness can be shown where a

landlord demonstrates any efforts that may accomplish personal service by using

readily available information. See Edelhoff, 884 A.2d at 646. After careful review

of the record, and considering the aforementioned case law, we are satisfied that

the service of process was ineffective because Southern Hills did not sustain its

burden of showing that it engaged in sufficiently “diligent and conscientious”

efforts to effect personal service on Anderson prior to posting. 10

Unquestionably, Southern Hills was aware that Anderson had an ongoing

criminal case pending in the District of Columbia Courts. Had Southern Hills

contacted the courts or accessed the public docket, it is likely they would have

been able to find the name of Anderson‟s criminal defense lawyer or, at a

minimum, would have been able to ascertain the date of Anderson‟s next

scheduled court appointment where arrangements could have been made to have

the papers served on the tenant or on another person who is qualified to accept

personal service under the statute. In addition to checking on Anderson‟s

incarceration or release status through the public case docket, Southern Hills could

have also obtained information about Anderson‟s possible location through the

Department of Corrections. See D.C. DEPARTMENT OF CORRECTIONS – LOCATE AN

INMATE, http://doc.dc.gov/page/locate-inmate (last visited January 22, 2018). As

importantly, if Southern Hills had made such an effort based on the information

that was readily available to them and were unable to find Anderson, a strong

argument could be made that Southern Hills had made a diligent and conscientious

effort to locate him based on readily available information and he “could not be

found,” a finding required by the statute before a landlord can resort to posting.

Moreover, on balance, this requirement is not an unreasonable one given the 11

interests at stake. The cornerstone of Constitutional due process is the requirement

of adequate notice and an opportunity to be heard. Here, it is not too much to ask

that a landlord seeking to evict a tenant from their home, an occurrence that could

have devastating collateral impacts on the tenant and their family, be required to

present evidence that it made the appropriate effort to locate the tenant and

personally serve him or her prior to the court exercising its authority to issue a

default in favor of the landlord.

Under circumstances where there is no information readily available or

accessible, we do not suggest there is an obligation to undertake a personal

investigation to serve tenants prior to posting. Rather, when there is information in

a landlord‟s possession that could lead, with reasonable efforts, to finding the

tenant, then the concept of a diligent and conscientious effort obligates the landlord

to pursue those leads. Furthermore, the landlord‟s diligent and conscientious effort

must be commensurate with due process. See generally Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950) (“[W]hen notice is a

person‟s due, process which is a mere gesture is not due process. The means

employed must be such as one desirous of actually informing the absentee might

reasonably adopt to accomplish it.”). 12

The record in this case does not demonstrate that Southern Hills was

desirous of actually informing Anderson of the proceedings. In fact, their actions

were quite to the contrary: Southern Hills issued a barring notice that ensured that

Anderson would not return to his apartment, a step that completely and directly

frustrated the minimal efforts that were made to serve Anderson with notice.

While the circumstances that led to Anderson‟s arrest may have justified his being

barred from the premises, the fact that such steps were taken puts an even greater

burden on the landlord to make diligent and conscientious efforts to personally

serve the tenant or someone else capable of accepting personal service of process

for the tenant before resorting to posting, even assuming that posting is still an

acceptable method of service under those circumstances. See Jones, 845 A.2d at

547 (“Posting is a disfavored method of providing notice because it is less reliable

. . . than other appropriate methods,” and doing so “raise[s] serious due process

concerns.”).

Because we agree with the trial court that Southern Hills failed to diligently

and conscientiously attempt to locate Anderson, the trial court‟s finding that

Southern Hills failed to demonstrate that Anderson could not be found was

supported by the record. Thus, the trial court did not err in finding that service by

posting was ineffective and dismissing Southern Hills‟ case. 13

IV.

For the foregoing reasons, the judgment of the trial court is AFFIRMED.

So ordered.