EASTERLY, Associate Judge:
Turquoise Wylie appeared in court in response to a lawsuit for nonpayment of rent filed against her by Glenncrest, her landlord, but she failed to return to court for the rescheduled initial hearing. The
Ms. Wylie was a long-time tenant of Glenncrest. By the time Glenncrest filed and served
At the initial hearing in July 2014, Ms. Wylie and counsel for Glenncrest each entered an appearance and together signed a praecipe asking for a one-month continuance.
Ms. Wylie did not appear in court on September 12, 2014, and the ex parte proof hearing was held without her. At the hearing, Glenncrest's counsel asked its property manager, Ophelia Johnson, to read into the record a provision in Ms. Wylie's lease expressly waiving her right to a 30-day notice to quit or vacate.
On December 17, 2014, Ms. Wylie, representing herself, filed a Rule 60(b) motion
The trial court held a hearing on Ms. Wylie's motions in January 2015. Ms. Wylie
Ms. Wylie responded that she "didn't just pop up 90 days later"; rather, ever since her eviction, she had been trying to rectify the situation. Specifically, Ms. Wylie asserted that she had been trying to contest the default judgment, first by trying to secure counsel and legal advice through Bread for the City, and then by repeatedly consulting the Superior Court's Landlord Tenant Resource Center:
The court seemed to credit Ms. Wylie's assertions that she had been trying to obtain legal assistance, but nonetheless faulted her for not filing anything in court sooner, noting that the "people out here in the Resource Center .... [t]hey're independent people.... They don't work for us. You didn't tell anybody in the Court until over two months later that they ... put you out under these circumstances...." Ms. Wylie explained that she had been working to collect documentation to support her defenses, per the Resource Center's recommendation. She further explained that when she received the writ of restitution she tried to avert eviction by calling Ms. Crystal Cove, who was Glenncrest's property manager at the time. Ms. Wylie stated that she thought there had been a mistake — that the issuance of the writ was based on her "account balance which was already wrong.... [So] I'm not taking it serious, I'm like okay, they're going to fix it." But before she could go into more detail, the court cut her off and shifted the conversation to why she had failed to appear in court at the further initial hearing in August 2014.
Apparently referring back to the representation in Ms. Wylie's Rule 60(b) motion
Without resolving what counsel had said, whether counsel had implied that Ms. Wylie did not have to return to court, or whether Ms. Wylie might have reasonably construed counsel's statements to convey that message, the court briefly shifted its focus to the basis of Glenncrest's suit, clarifying that it was unrelated to her water bill and based on her alleged nonpayment of rent. Despite Ms. Wylie's repeated assurances that she had rent receipts proving she had paid her rent for all the months listed as unpaid in the complaint,
The court did not follow up with any questions about Ms. Wylie's failure to appear at the September ex parte proof hearing. Instead, the court continued to focus on Ms. Wylie's nonappearance at the August proceeding. The court opined that Ms. Wylie's current efforts to reopen her case were "too little too late because if you've paid six months of rent when you're coming in July, and they say you haven't paid the six months and you've got receipts that you have paid it, seems to me, you need to be getting a trial or something," but "[a] default was entered because you didn't come on August the 22nd." The court was unmoved when Ms. Wylie reiterated her misunderstanding regarding her obligation to appear at the hearing in August: that, when counsel for Glenncrest "told me to catch-up with my July payment I owed, I just took that as if I did that, then it wouldn't be a necessary thing for me to come" in August.
Without inquiring further, the court denied Ms. Wylie's Rule 60(b) motion.
First, the trial court stated that Ms. Wylie had had actual notice of the August 2014 hearing and that, when she missed that hearing, the court properly scheduled an ex parte proof hearing. This prompted Ms. Wylie to protest, again, that she had not received advance notice of the ex parte proof hearing: "I didn't get no court date, I did not get no court papers, Judge, for me to come to court September 12th. I
Without addressing this contention, the court additionally said that it did not "see how [Ms. Wylie] acted promptly" in seeking relief from judgment and seemed to accept Glenncrest's counsel's representation that his client would be prejudiced by vacatur of the judgment because Ms. Wylie still owed Glenncrest $2,500 and because the unit had been re-rented. As to the amount owed, Ms. Wylie again asserted that "I have proof of my rent," and that "Tiffany [Talbert, the property manager who was present in court] knows." Ms. Wylie pleaded with the court, "Oh, oh, please let [Ms. Talbert] talk because she actually knows about this, she knows about it[,] she really do, she knows about it." But instead, without taking sworn testimony from Ms. Talbert, Ms. Wylie, or anyone else, and without taking any documents into evidence, the court indicated that it did not matter what Ms. Wylie's actual defense was because she had failed to litigate her case.
In response to Ms. Wylie's strenuous assertions that she did not owe any rent, that her dispute with Glenncrest was all about past unpaid water bills amounting to hundreds — not thousands — of dollars, and that Glenncrest "was wrong from the jump," the court asked,
The court then resumed its review of the "factors of whether I should vacate the default judgment."
The court reiterated its view that Ms. Wylie "had the actual notice and ... just didn't show up." As to whether Ms. Wylie "present[ed] a prima facie defense," the court, still without reviewing any of Ms. Wylie's documents, determined "well her prima facie defense I guess is payment, so she does do that." The court stated that whether Ms. Wylie "acted in good faith, well that's questionable." Considering whether Ms. Wylie "acted promptly," the court simply said, "[N]o." And assessing "[w]hether the mov[ing] party would be prejudiced," the court said "yes," because, if Glenncrest restored Ms. Wylie's tenancy, it would have to evict any new tenants who had moved into her home. In short, the trial court opined that Ms. Wylie had "had the opportunity to go before a judge and have your case heard ... but you didn't avail yourself of the opportunity."
Ms. Wylie asked the court to reconsider, arguing that "this is something I wasn't even use[d] to. I did everything, I'm doing all of this on my own. I don't have, I'm not having no help from nobody." She further explained that she was a "single parent with four kids now. I would never put my family and my kids in no predicament like this.... I work hard every day. I go to work every day faithfully to take care of myself." But the court responded, "I think you had some responsibility in this. And the things that you say, he says just the opposite and I don't know necessarily, you're the moving party, that I'm going to credit your statement over his statement." The court indicated that it might have seen things differently if Ms. Wylie had "not wait[ed] until the last minute... to engage the court with [her]
Ms. Wylie filed a notice of appeal and eventually obtained counsel. This appeal followed.
The decision to set aside a default judgment is generally committed to the sound discretion of the trial court.
Courts reviewing motions seeking relief from judgment under either Rule 60(b)(1) or Rule 60(b)(6) must consider five factors to determine whether the requested
A. The Trial Court's Failure to Conduct an Adequate Inquiry
Before we address the trial court's analysis, we focus on the "hearing" held by the court; it was inadequate. Ms. Wylie appeared in court with documents in hand, ready to try to prove that the default judgment against her was not the product of willful neglect on her part — that she had sought to challenge the default judgment entered against her as soon as she, a pro se litigant, possibly could, and that she had a meritorious defense to Glenncrest's suit. The trial court met Ms. Wylie's assertions with skepticism if not disbelief, but it never gave her an opportunity to present witness testimony (even though she begged the court to hear from Ms. Talbert, the property manager) and never allowed her to put her documents into evidence (even though she repeatedly told the court she had "proof of everything"). The court's observation — "[T]he things that you say, he says just the opposite and I don't know necessarily, you're the moving party, that I'm going to credit your statement over his statement" — encapsulates the procedural catch-22 the court created. The court recognized that Ms. Wylie had the burden of proof. It declined to credit her version of events over the conflicting representations of Glenncrest's counsel. But it failed to allow Ms. Wylie the opportunity to substantiate her assertions with evidence.
The adequacy of a trial court's inquiry depends on the nature of the issues before the court. An inquiry may be less formal if the facts are undisputed or immaterial, or if the representations made by a party seeking relief from judgment are inherently incredible. See Carrasco, 988 A.2d at 475-76 (holding that tenant was entitled to evidentiary hearing on issue material to tenant's Rule 60(b)(6) motion where tenant's factual contention was not inherently incredible). But a trial court must hold an evidentiary hearing when it needs to make credibility determinations and resolve material disputes of fact. See id.; Eaddy v. United States, 276 A.2d 232, 233-34 (D.C.1971) (per curiam) ("In order to exercise properly its discretion under G.S. Civ. Rule 60(b) as to whether to vacate the default judgment, it was incumbent upon the court to hear and assess the testimony of appellant. This was not done, though appellant was present in the courtroom and available for testimony.").
B. The Trial Court's Failure to Properly Evaluate the Factors Relevant to Whether Relief from Judgment Should be Granted
After failing to conduct an adequate inquiry into the parties' factual disputes, the trial court applied an unduly restrictive version of the five-factor test under Rule 60(b). We discuss these factors in more detail below. Assuming the truth of Ms. Wylie's assertions for purposes of our analysis, we conclude that she made a powerful case for relief under all of these factors. If Ms. Wylie can substantiate these assertions on remand, then the default
1. Actual notice
It is uncontested that Ms. Wylie had "actual notice" of Glenncrest's suit for nonpayment of rent: in response to Glenncrest's complaint, she appeared in court for the initial hearing as originally scheduled in July 2014. But in this case that is not the end of the Rule 60(b) actual notice inquiry. The object of such an inquiry is to determine whether the movant willfully neglected her obligation to litigate. See Westmoreland, 295 A.2d at 508; Dunn, 408 A.2d at 993. Where the movant's failure to appear at a particular hearing prompts a default judgment or the dismissal of a case, the actual notice factor asks whether that failure to appear resulted from the movant's deliberate neglect of her litigation responsibilities. See Panici v. Rodriguez, 689 A.2d 557, 559-60 (D.C. 1997) (finding that plaintiff's failure to appear at an initial scheduling conference, after the defendants filed an answer to the complaint, did not warrant dismissal of the suit where there was no "indication in the record that the trial court determined" that plaintiff's "failure to appear was an act of willful and deliberate delay").
In this case, the trial court concluded that, after appearing at the July 2014 initial hearing, Ms. Wylie "just didn't show up" to the further initial hearing in August. But it failed to resolve disputed issues of fact as to why Ms. Wylie had failed to appear in August, and it failed even to acknowledge that it should consider Ms. Wylie's assertion that she had not received notice for the subsequent ex parte proof hearing in September, at which the court granted Glenncrest a redeemable judgment of possession.
Ms. Wylie informed the court that she did not understand that she had to attend the further initial hearing in August, even though she signed a praecipe agreeing to a continuance, because she thought that she had resolved the issue with Glenncrest's counsel out of court in July. She explained that she thought that the suit arose from a misunderstanding about her nonpayment of rent; that in July she talked to Glenncrest's counsel and showed him that she was current on her rent and only owed money on her water bill; and that, after this conversation, she thought that the suit would go away if she just kept making payments on her water bill. Glenncrest's counsel countered that he never instructed Ms. Wylie not to return to court. If Ms. Wylie had indeed been led by Glenncrest's counsel to believe she did not need to return to court in August, she would not have willfully disregarded her notice of the August hearing. Cf. Panici, 689 A.2d at 559-60. But the court failed to take the necessary steps to resolve the clear dispute of fact on this point. Instead of taking sworn testimony from Glenncrest's counsel and Ms. Wylie, and making explicit credibility determinations, cf. Thomas, 942 A.2d at 1184, the court simply credited Glenncrest's counsel's denials.
Ms. Wylie also informed the court that she "didn't even know nothing about no September the 12th court date," and thus had no advance notice, as required by
2. Good faith
The court determined that it was "questionable" whether Ms. Wylie acted in good faith given her failure to return to court sooner. But again, the court had no foundation for such an assessment. See Frausto v. U.S. Dep't of Commerce, 926 A.2d 151, 155 (D.C.2007) (finding trial court's determination of bad faith unfounded where trial court did not provide Rule 60(b) movant with an opportunity to substantiate her explanation for her non-appearance at a hearing). The court failed to take testimony or review evidence either supporting or contradicting Ms. Wylie's explanations for her failure to appear at the August and September hearings, instead choosing to credit (absent any express credibility determination) the unsworn statements of Glenncrest's counsel. The court also failed to review the documents that Ms. Wylie offered as proof that she had been attempting to contest the eviction since October
More particularly, although Glenncrest's representations to Ms. Wylie were unquestionably relevant to the court's good-faith inquiry, the court's focus on whether Glenncrest had affirmatively misled Ms. Wylie about her obligation to return to court in August was too limited. Ms. Wylie could have reasonably misunderstood her obligation to return to court whether or not Glenncrest affirmatively misled her. Without knowing precisely what was said at the July proceeding, and without reviewing Ms. Wylie's rent records (which might have supported her belief that Glenncrest's suit was a mistake), the court could not adequately assess whether Ms. Wylie reasonably misunderstood her litigation obligations.
Lastly, to the extent the court questioned Ms. Wylie's good faith because she, acting pro se, relied on representations made by Glenncrest's counsel, we take issue with the court's analysis. The trial court asked why, if "the people don't have your rent calculated correctly," Ms. Wylie "would ... put faith in anything they're saying," and "why do you think you were going to get them to do it right by your lonesome; why would you think that?" A trial court should generally be cautious before admonishing a pro se litigant about her failure to litigate her case properly, and certainly should refrain from admonishing a pro se litigant for trusting the representations of the opposing party's lawyer if the trial court has not yet conducted the requisite fact-finding.
3. Promptness in seeking relief
The trial court determined that Ms. Wylie had not acted promptly in seeking relief from default judgment. What constitutes reasonably "prompt action" under Rule 60(b) "depends upon the circumstances of each case." Carrasco, 988 A.2d at 476. In Carrasco, the tenant did not file his Rule 60(b) motion until a year after the default judgment was entered. This court acknowledged that "the passage of a year may render a motion untimely, absent compelling reasons for the delay," id., but then determined that extenuating circumstances justified the one-year delay in that case: the tenant "had lost much of his property in the eviction [conducted in February 2008] and was homeless; he was living out of his car; his ability to communicate in English was limited; and despite his diligent efforts he ... was unable to obtain legal assistance until late in 2008." Id.
The record in this case reflects that judgment was entered against Ms. Wylie on September 12, 2014; that she was evicted on September 30, 2014; and that she filed her Rule 60(b) motion on December 17, 2014. Accounting for the two-and-a-half weeks between the entry of judgment and her eviction, Ms. Wylie told the court that she thought the issuance of the writ of restitution was a mistake and that she had not taken it seriously because she had spoken with the property manager and believed that Glenncrest was "going to fix it." Accounting for the two-and-a-half months between her eviction and the filing of her Rule 60(b) motion, Ms. Wylie explained that after she was evicted, she tried unsuccessfully to get a lawyer and then, proceeding pro se, tried to determine how to undo the default judgment with the assistance of the Landlord Tenant Resource Center. Ms. Wylie also told the court that she was a single parent with
Just as the court inadequately evaluated other factors relevant to Ms. Wylie's motion for relief from judgment, the trial court inadequately assessed the timeliness of Ms. Wylie's motion. Preliminarily, if the court was not persuaded by Ms. Wylie's representations that she was diligent in her efforts to seek relief from default judgment, it should have permitted Ms. Wylie to present the evidence she said she had in hand to substantiate those representations. But we are also concerned that the trial court "unduly minimized the extent to which [Ms. Wylie's] practical ability to protect h[er] interests following h[er] eviction was impaired." Carrasco, 988 A.2d at 476. Under the proffered circumstances — where Ms. Wylie had been evicted from her home, did not have a lawyer to represent her, was working full-time, and was trying to take care of four children as a single parent — three months hardly seems an inordinate amount of time for her to return to court. If upon adequate factual development Ms. Wylie's representations to the court prove true, this factor should weigh in her favor in seeking relief from judgment.
4. Prima facie showing of an adequate defense
Ms. Wylie represented to the court that she had records of her rent payments showing that she did not owe Glenncrest rent for the six months alleged in the complaint. If true, this would have established a complete defense to Glenncrest's suit for nonpayment of rent. The trial court never looked at Ms. Wylie's records. Nevertheless, it weighed this factor in her favor. Even so, we pause to discuss the court's consideration of this factor.
While a movant need only make a prima facie showing of a meritorious defense, a trial court might nonetheless benefit from a more sustained inquiry into the strength of the proffered defense. First, a more careful assessment of Ms. Wylie's defense might have assisted the court in evaluating other factors relevant to Ms. Wylie's request for relief. For example, records showing payment of her rent might have supported a conclusion that Ms. Wylie was acting in good faith, and that she had done the best she could to get back to court as quickly as possible under the circumstances. After all, she had little reason to sit on evidence that could defeat Glenncrest's suit. Second, the core inquiry in whether to grant a motion for relief from a default judgment is whether the judicial policy favoring a trial on the merits outweighs the need for finality. See Dunn, 408 A.2d at 993. The stronger the movant's merits showing, the stronger the case for relief from judgment. Where the movant's defense appears not only colorable but meritorious, the need for finality should give way. Starling, 495 A.2d at 1160 (reiterating that courts have an obligation to "zealously safeguard the right of the citizen to have the opportunity to defend himself against suits on claims to which he may have a meritorious defense") (quoting Newman v. Universal Enterprises, Inc., 129 A.2d 696, 699 (D.C.1957)).
Here, little consideration was given to the strength of Ms. Wylie's defense, as demonstrated by the trial court's failure to review her rent receipts. In the trial
5. Prejudice to the non-moving party
The trial court concluded that Glenncrest would be prejudiced by an order granting Ms. Wylie's motion. It reasoned that if Ms. Wylie were then to prevail on the merits of Glenncrest's suit, Glenncrest would have to evict any new tenants who had moved into Ms. Wylie's home.
In sum, the trial court's consideration of Ms. Wylie's Rule 60(b) motion to vacate the default judgment was "too cursory to fulfill the court's `responsibility to inquire where matters are raised which might entitle the movant to relief' under the Rule." Carrasco, 988 A.2d at 476 (quoting Miranda v. Contreras, 754 A.2d 277, 280 (D.C.2000)). The court should have held an evidentiary hearing to resolve material issues of fact and to make credibility determinations. On the record that was developed, the court's evaluation of the requisite Rule 60(b) factors was deficient in a number of respects and overemphasized finality in disregard of this court's strong preference for obtaining judgments on the merits. Concluding that the trial court abused its discretion, we reverse and remand for full consideration of Ms. Wylie's Rule 60(b)(1) & (6) motion, as well as for a resolution of other questions that might support relief under Rule 60(b)(4).
The exact status of Ms. Wylie's home and her attendant notice-to-quit rights were never probed in the trial court because Glenncrest, in its form complaint, checked the box indicating that Ms. Wylie's home was not subsidized. There are reasons to question this representation, however. First, Glenncrest's counsel asserted at the ex parte proof hearing that Ms. Wylie's townhouse was a "HUD tax subsidy property." And, at oral argument before this court, Glenncrest's counsel both (1) acknowledged that his law firm had been sued in connection with misrepresentations made by its attorneys in Landlord and Tenant Court about the subsidized status of certain rental properties in the District, see Lipscomb v. The Raddatz Law Firm, 109 F.Supp.3d 251, 255 (D.D.C.2015) (denying defendants motion to dismiss plaintiffs' Fair Debt Collection Practices Act case explaining that plaintiffs' theory was that "Defendants incorrectly stated that their rents were not subsidized in order to mislead the tenants for the unilateral benefit of the Defendant's landlord clients, and to avoid alerting the tribunal to the existence of special defenses"), and (2) seemed to concede that a (possibly sanctionable) misrepresentation may have been made in this case.
Questions abound, but depending on the status of the property and the attendant notice-to-quit requirements, Ms. Wylie may have an additional defense to Glenncrest's complaint. See infra note 27.
The Document was signed by Ms. Wylie and a representative for the landlord on May 22, 2014.
The agreement was not formally admitted into evidence, but the court asked to see it. The court expressed concern that the settlement had been represented to be "under the auspices of ... the Superior Court," and indicated disapproval with this "sl[eight] of hand gambit." In response, counsel for Glenncrest protested that he did not create the document: "[T]hat's an out-of-court agreement done with the property manager who's no longer with the company." The court seemed appeased by Glenncrest's counsel's representation that Glenncrest had not sought to evict Ms. Wylie on the basis of a violation of this agreement.
The written notice requirement of Rule 55(b)(2) does not apply in the Landlord and Tenant Branch. Under Landlord-Tenant Rule 2, certain Superior Court Rules of Civil Procedure, including Rule 55, apply in landlord-tenant cases, but only to extent they are not "inconsistent with the provisions of the Landlord and Tenant Rules"). Here, Landlord-Tenant Rule 11(e) is inconsistent with the notice requirements of Rule 55(b)(2), and it thus occupies the field.
Landlord-Tenant Rule 11(e) provides, in pertinent part: "In cases requiring the presentation of ex parte proof, the plaintiff shall appear before the judge on the day that the default is entered to present ex parte proof or to schedule a hearing for a later date for the presentation of ex parte proof. If the presentation of ex parte proof is scheduled for another date, the Clerk shall send written notice to all parties." The rule does not require the tenant to be provided with written notice of a request for the entry of a default judgment; the only written notice required, if any, is the Clerk's notice of an ex parte proof hearing set for a date after the date on which the default was entered. See supra note 3.
As for whether Ms. Wylie received notice of the ex parte proof hearing per Landlord-Tenant Rule 11, the Superior Court docket indicates that notice was mailed to her on the date her default was entered. On appeal, Ms. Wylie argues that this creates only a rebuttable presumption of mailing and asks us to find that the trial court erred by failing to rule that the default judgment against her was void. Ms. Wylie may explore this issue further on remand, but since it has yet to be established that she lacked notice of the ex parte proof hearing, we need not determine whether such a failure of notice would render the judgment void as a matter of law.
In addition, we are concerned about the adequacy of Glenncrest's substitute service of the summons and complaint in light of Ms. Wylie's son's age. See supra note 2; Super. Ct. L & T R. 4 (requiring service in compliance with D.C.Code § 16-1502, which permits substitute service "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" (emphasis added)). Because a court lacks personal jurisdiction to issue a default judgment in the absence of legally effective service of process, such a judgment is void and subject to vacatur under Rule 60(b)(4). Carrasco, 988 A.2d at 474 ("A default judgment entered in the absence of legally effective service of process is void, and relief from such a void judgment may be sought by motion pursuant to Rule 60(b)(4)"); Jones, 845 A.2d at 546 ("A default judgment entered in the absence of effective service of process is void, even though the defendant has actual notice of the action.").
Lastly, Ms. Wylie's argument that she failed to receive notice of the ex parte proof hearing as required by Rule 11(e), if substantiated, may support an argument that the default judgment was void and subject to vacatur under Rule 60(b)(4). See supra note 15.