Davis v. Rental Associates, Inc.

KELLY, Associate Judge: This is an appeal from the denial of a motion to vacate an order entering judgment for appellee (landlord) and striking pleadings filed by appellant (tenant). Because we hold the court below abused its discretion by denying the motion, we reverse and remand for a trial on the merits. I Appellee instituted an action for possession on the ground of non-payment of rent in September 1979. Following service of a summons and complaint on appellant, both parties appeared on September 19, 1979, in the Landlord & Tenant Branch of the Superior Court. At that time, counsel was appointed to represent appellant. Also on September 19, 1979, appellee’s oral motion for a protective order in the amount of the monthly rent was granted without objection.1 According to the terms of the protective order, appellant was to pay into the court registry $176 on the 24th of September, and again on the 24th day of each month .thereafter while the suit was pending. On October 3, 1979, appellant’s motion to proceed in forma pauperis was granted and appellant filed an answer, recoupment and jury demand, asserting that violations of housing regulations which existed from the time the tenancy began rendered the premises “unsafe or unsanitary,” thereby breaching the landlord’s warranty of habitability. In addition to seeking recoupment of the money claimed by the landlord, appellant counterclaimed for $2,552 in back rent paid, or alternatively, for $1,709.84 as damages for the landlord’s breach of the warranty of habitability. Although payment was several days late, appellant did deposit her rent into the court registry for September and October. Appellant did not make the required payments for November, December and January. A trial had been scheduled for February 21, 1980. However at a hearing on February 12,1980, on appellee’s motion the court [25] awarded appellee judgment for possession and struck appellant’s pleadings for failure to comply with the protective order. Appellant’s counsel was not present at that hearing. Appellee claims notice was sent by mail to the office of appellant’s counsel on February 5, 1980, but there was no record that it was received. Counsel for appellant, upon becoming aware of the judgment entered on February 12, promptly appeared in court on February 13, and obtained a stay in the execution of the judgment until February 20, 1980. At a hearing on February 20,1980, appellant moved to vacate the judgment and informed the court she was ready and willing to immediately pay the entire amount in arrears and proceed to trial the next day. Appellant’s proffered explanation for her past delinquency was an incapacitating injury she received on the steps of the subject premises in November 1979. No explanation was given for her failure to request permission to make late payments or to inform her own counsel that she had not made the required payments. The court denied appellant’s motion to vacate. An appeal was filed and appellant’s motion to stay execution of the judgment pending appeal was denied. On or about March 27,1980, appellant was evicted from her home. II Appellant raises two issues in this appeal: (1) whether it was consistent with the requirements of due process for the court to strike appellant’s pleadings for failure to comply with the protective order, and (2) whether after doing so, the court below abused its discretion by not granting appellant’s motion to vacate the default judgment. It is not necessary for us to explore in detail the constitutional issues raised by appellant since, assuming arguendo, there are circumstances where a court may, consistent with the requirements of due process, enter judgment against a party and dismiss a counterclaim for failure to comply with the terms of a protective order, we hold it was an abuse of discretion in this case to deny the motion to vacate. The ruling on a motion to vacate a judgment under Super.Ct.Civ.R. 60(b) is a matter committed to the sound discretion of the trial judge. Joseph v. Pareka, D.C. App., 351 A.2d 204 (1976); Citizens Building & Loan Association of Montgomery County v. Shepard, D.C.App., 289 A.2d 620 (1972). However, where a timely motion has been made to vacate a default judgment, as was done in this case, the strong judicial policy favoring a trial on the merits will often justify reversal where even a slight abuse of discretion has occurred in refusing to set aside a judgment. Dunn v. Profitt, D.C. App., 408 A.2d 991, 993 (1979); Jones v. Hunt, D.C.App., 298 A.2d 220, 221 (1972). Appellee points to several circumstances which assertedly favor a finding of no abuse of discretion: the failure to pay for three consecutive months, the failure to request permission to make late payment, late payment of the rent during the preceding two months, and appellant’s failure to advise her attorney of her non-payment. However, given our clear preference for disposition on the merits, those circumstances are outweighed by the fact that on the eve of the scheduled trial date, at the hearing on the motion to vacate (held only one week after entry of the default judgment at a hearing where appellant was not represented because counsel had allegedly not been notified), appellant’s counsel proffered his client’s willingness to pay the entire amount due in the court registry that day, and proceed to trial the following day. Ill Appellant, arguing that entry of the judgment violated her right to due process, cites Hovey v. Elliott, 167 U.S. 409,17 S.Ct. 841, 42 L.Ed. 215 (1897), wherein it was held that in exercising its plenary power to punish for contempt, a court could not strike a party’s pleadings and enter a default judgment. Appellee countered with the case of Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909), [26] asserting that it modified Hovey by distinguishing between punishment for contempt, and striking the pleadings on the theory that failure to comply with an act that is required before the litigation can go forward constitutes an admission of want of merit in the asserted defense. According to appellee, appellant’s failure to deposit the required payments into the court registry has “cast doubt upon her defense.” If this reading of Hovey and Hammond is correct, and the Fifth Amendment does not prohibit a court from striking a party’s pleadings because failure to comply with a Court order raises a presumption that the party lacks a good defense on the merits, then logically, once appellant appeared in court and requested permission to pay the delinquent amount, the presumption would no longer be valid. In any event, although we do not condone appellant’s failure to comply in a timely fashion with the terms of the protective order, it was an abuse to dispose of the case based on a presumption of no defense, and deny appellant the opportunity for a hearing on the merits, where the scheduled trial was only days away, and execution of judgment had been stayed.2 Consequently, we reverse, and remand for a trial on the merits.3 So ordered. Footnotes [1] Appellant does not challenge the court’s authority to issue a protective order to preserve the landlord’s rights. Indeed, such a challenge could not succeed since it is settled that a court may condition a defendant’s ability to proceed in a suit for possession for non-payment of rent upon payment of rent that accrues while the suit is pending. Bell v. Tsintolas Realty Co., 139 U.S.App.D.C. 101, 430 F.2d 474 (1970). [2] We note that although appellee was aware for over three months that payments under the protective order were delinquent, the motion for a default judgment was filed less than three weeks before the scheduled trial date. In these circumstances, the prejudice to appellee resulting from vacating the default judgment would have been minimal. [3] Appellant’s right to a trial on the merits is of course conditioned upon payment of the sum outstanding on the protective order.