Ayers v. Landow

RUIZ, Associate Judge,

dissenting:

Robert W. Ayers, a landlord, brought an action for possession of real estate in the Landlord and Tenant Branch of the Superior Court as a result of the failure of the tenant, Stuart Landow, to cure numerous violations of tenancy in the landlord’s apartment building. The trial judge entered judgment in the tenant’s favor, ruling that he did not receive a properly-served notice to cure the violations or quit the premises as required by statutory service provisions. Because I conclude that the tenant did receive notice consistent with statutory requirements, I would reverse the judgment and remand this case for further proceedings.

I.

The parties have had a difficult landlord-tenant relationship for over fourteen years. In January of 1993, the landlord entered the tenant’s apartment and found an uninhabitable and toxic scene. The tenant appeared to be in violation of provisions of his lease requiring him to maintain the apartment in good order. The question before us is whether the landlord gave proper notice to begin the legal process to take possession of the premises for the tenant’s failure to abide by the terms of the lease. D.C.Code §§ 45-1406, -2551(a) & (b) (1990). Specifically, the question is whether the landlord’s mailing the tenant a copy of a Notice to Cure Violation of Tenancy or Vacate on March 12, 1993, followed by a posting of the Notice on the *58 tenant’s door on March 19, March 24, April 7, and April 9, 1993, complied with the statutory requirement that

[I]f the notice 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, in the name of the person known to be in possession of the premises, or if unknown, in the name of the person occupying the premises, within 3 calendar days of the date of posting.

D.C.Code § 45-1406 (1990).

At trial, the tenant argued that since the landlord mailed the copy prior to posting the notice, and not within the three days following the posting, the service was technically insufficient. The landlord defended his service, arguing that § 45-1406 is ambiguous with regard to when the notice must be mailed. The landlord’s contention was and is that “within three days” is not a fixed period of three days following posting, but can be read as a point of conclusion — a date by which the mailing must occur, but not precluding the mailing prior to the date of posting. In support of his contention, the landlord relied chiefly on District of Columbia v. Gantt, 558 A.2d 1120, 1122 (D.C.1989), in which this court held that a probate statute barring claims against an estate unless the claim was filed “within 6 months after the date of the first publication of notice of the appointment of a personal representative,” D.C.Code § 20-903(a) (1989), 1 did not prevent a person from lodging a claim prior to the appointment of the representative. Instead, the court interpreted “within six months after” to fix a date of six months following publication of notice of that appointment as the date beyond which no claim could be made.

The trial court considered Gantt , but reasoned that the statutory provision, “[i]f the notice is posted on the premises, a copy of the notice shall be mailed ... within 3 calendar days of the date of posting,” meant that the posting must be antecedent to the mailing, an interpretation mandated by the statute’s use of the word “if’. See also majority opinion at 55 (suggesting that the term “then” be read into § 45-1406 in order to create an “if-then” chronology requiring the mailing to be ancillary to posting). The trial court recognized that the Gantt rule fixing termination dates appeared to be compelling precedent, especially in light of the probate statute’s use of the words “within 6 months after.” (Emphasis added.) Nevertheless, the trial court distinguished Gantt from the present case on its facts, and what the court thought were the possible consequences of applying the Gantt rule to the landlord-tenant relationship. The trial judge concluded that “[t]o adopt the plaintiffs interpretation of this statute could lead to a kind of temporal anarchy” in the landlord-tenant context, depriving tenants of adequate certainty regarding when their exposure to an eviction action would begin. Although the judge conceded that on the merits of the action the landlord had a “powerful case,” he nevertheless entered a judgment for the tenant, ruling that the language of the service statute forbade the landlord’s premature mailing.

II.

At the outset, we look at the language of the statute; specifically, whether the meaning of “within 3 calendar days” as used in § 45-1406 is plain or ambiguous. The trial court ruled that there was no ambiguity in the wording of the statute, and that the mailing of a copy of the notice must occur within three days after posting of the notice on the premises. However, as evidenced by the court’s interpretation in Gantt, supra, and the cases from other jurisdictions cited by the landlord, it is equally plausible that the statute be read to mean that a mailing must occur at any time, but not later than three days after posting. See, e.g., Jensen v. Nelson, 19 N.W.2d 596, 598-99 (Iowa 1945) (ruling that where testator had willed a portion of his estate to the county to build a courthouse if the building was completed within ten years after the testator’s death, the estate must furnish the money where the building was completed between the writing of the will and death of the testator); Tanzilli v. Casassa, 324 Mass. 113 , 85 N.E.2d 220, *59 221 (1949) (permitting appeal of a zoning board decision prior to the rendering of that decision, where statute said the appeal must be made within fifteen days after the decision of the board); Reifke v. State, 31 A.D.2d 67 , 296 N.Y.S.2d 667, 669-70 (1968) (holding that a property owner can make a claim against the state prior to the completion of the state action where statute says claim must be made within six months after completion of the action by the state); Adams v. Ingalls Packing Co., 30 Wash.2d 282 , 191 P.2d 699, 701 (1948) (holding that a statement of conditional sale of goods can be filed with the state auditor before the delivery of goods where statute says the statement must be filed within ten days of delivery of goods).

In resolving the question whether the statute is ambiguous, we should be substantially guided by the determination of this court in Gantt that the probate statute’s provision that claims could only be presented “within 6 months after the date of first publication of notice of the appointment of a personal representative” was ambiguous as to whether such presentation could occur before that publication was made. See Gantt, supra, 558 A.2d at 1122 (“This 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.”). It is indisputable that if the legislature that enacted the statute in this case had intended only one of those possible meanings, it could have worded the statute more clearly directing that result. But the statute, as it appears, allows either reading. The trial judge recognized the ambiguity of the statute when he explained that “judges feel differently about this ... it’s unfortunate that judges are ruling in different directions on [the issue of what ‘within three calendar days’ requires].” An unambiguous statute is rarely given to differing interpretations by different judges. 2 Just as the statute in Gantt was deemed by this court to be ambiguous, I conclude that the notice statute in this case also is ambiguous.

In Gantt , because the language of the statute did not clearly state whether “within” was intended to mean a fixed period in time or a deadline by which an action must be completed, the court concluded that it “must look at the legislative history of the statute” to interpret the term properly. Gantt, supra, 558 A.2d at 1122 (citing Sanker v. United States, 374 A.2d 304, 307 (D.C.1977)). Thus, we should similarly investigate the statute’s legislative history in order to determine the correct interpretation of “within” in the context of § 45-1406.

The history of § 45-1406 reaches beyond its 1984 enactment, to the 1982 Supreme Court case of Greene v. Lindsey, 456 U.S. 444 , 102 S.Ct. 1874 , 72 L.Ed.2d 249 . The question for the Court in Greene was whether the posting of a legal notice on a tenant’s door satisfied the tenant’s due process right to adequate notice of an alleged violation of the tenancy. The tenants in Greene asserted a lack of actual notice, arguing that in many cases where service was attempted by posting, notices were removed from doors before the tenants could retrieve them. The tenants had no way of knowing of the pending legal action. The Court reasoned that “[t]he sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect their interests.” Id. at 451 , 102 S.Ct. at 1879 . The purpose of posting was not simply to comply with a statutory requirement as a condition precedent to a legal action, it was to help meaningfully inform the parties facing the action what was required of them. Id. at 452-53 , 102 S.Ct. at 1879 . The Court concluded that “[a]n elementary and fundamental .requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Greene, supra, 456 U.S. at 449-50 , 102 S.Ct. at 1877 -78 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 , 70 S.Ct. 652, 657 , 94 L.Ed. 865 (1950) (emphasis added in Greene)). Posting alone was thus *60 determined to be insufficient to meet that purpose. Id. 456 U.S. at 455-56 , 102 S.Ct. at 1880-81 .

The Court then suggested an additional method of service that could be used to ensure that the requirement of notice was satisfied when posting was employed. “Particularly where the subject matter of the action also happens to be the mailing address of the defendant, and where personal service is ineffectual, notice by mail may reasonably be relied upon to provide interested persons with actual notice of judicial proceedings.” Id. at 455 , 102 S.Ct. at 1880 .

The Eviction Procedures Act of 1983, Bill 5-134 — enacting the amended version of § 45-1406, at issue in this case 3 — was introduced in March of 1983, less than a year after Greene was decided. We can deduce from the timing of the legislation that the mailing requirement for notice was introduced as a result of the Greene decision. See Frank Emmet Real Estate, Inc. v. Monroe, 562 A.2d 134 , 136 n. 5 (D.C.1989). Viewed in the context of Greene , the “if’ used in § 45-1406 is properly construed as conditional, not temporal. Greene makes clear that posting, by itself, is insufficient. The statute was thus amended to make clear that, to be effective, service by posting must also be accompanied by mailing. Although neither alone is legally sufficient, both, together, can constitute effective service. 4

Although Greene provides some information regarding the purpose of the mailing requirement generally, it does not clarify why the Council of the District of Columbia felt that the mailing should occur “within 3 calendar days of the date of posting.” D.C.Code § 45-1406 (1990). The Committee on Consumer and Regulatory Affairs, Council ofthe District of Columbia, Report on Bill 5-134, Eviction Procedures Act of 1984 (March 6, 1984) (hereafter Committee Report) does not discuss the time restrictions on mailing of the notice to cure or quit at all. 5

There is evidence in the Committee Report that citizens were concerned that if landlords were allowed too much time to mail a copy of a summons after the posting of that summons, a tenant who did not receive the posting would not have enough time to prepare for a hearing after receiving a delayed mailing. 6 Thus, we know that the Council was made aware of tenants’ concern about having adequate time to respond to a landlord’s summons. A similar concern would apply where a landlord’s notice required the tenant to cure violations in a thirty-day period before being served with a summons. 7

Certainly, nothing in the legislative history indicates that the Council had or considered any other reason that would have led it to adopt a narrow three-day time period after posting during which mailing must occur. On the other hand, enacting the three-day limit to address the concern that tenants have enough time following service in which to cure violations before being sued would help the statute comport with the constitutional requirements established by Greene , as well as with our case-law precedent. Gantt, supra, 558 A.2d at 1123 .

It is true, as the trial court and majority opinions explain, that landlord-tenant disputes should be adjudicated with attention given to technical compliance with the various procedural statutes that control the eviction process. See Moody v. Winchester Management Corp., 321 A.2d 562, 564 (D.C. 1974). There is no reason why we should, however, sacrifice a common-sense and constitutional interpretation of the notice statute *61 to exalt hyper-technicality where it is not compelled by the statutory language and where no claim is made of a failure of actual notice. Indeed, this court has had occasion to rule that actual notice may, in some instances, prevail over technical compliance if the two are in conflict. See, e.g., Frank Emmet Real Estate, Inc., supra, 562 A.2d at 136-87 ; see also Ontell v. Capitol Hill E.W. Ltd., 527 A.2d 1292, 1295-96 (D.C.1987) (upholding notice as adequate despite failure technically to comply with § 45-1406).

In the Frank Emmet Real Estate case, a tenant informed his landlord that he was temporarily relocating to Colorado, gave him the address there, and indicated the tenant’s intent to return to live in his rented property in Washington. While the tenant was in Colorado, the landlord attempted eviction by posting a summons on the door of the Washington property and mailing a copy of the notice to the Washington address. In this way, the landlord comported with the express statutory requirements for service of summons. The court reasoned, however, that the landlord’s strict adherence to the statute was of a “wooden manner” that the legislature did not intend. Id., 562 A.2d at 136 . According to the court, the purpose of § 16-1502, the service of summons statute that was amended at the same time as § 45-1406, the service of notice to quit statute, was to help ensure that a tenant was actually provided with the summons. Thus, where a technical application of the statute would not accomplish this goal, technical compliance would not comport with the spirit in which § 16-1502 was enacted. The court concluded that mailing to Colorado, where the landlord knew the tenant to be — and not the rented premises, as the statute requires — would have been statutorily sufficient. The court stated that “[w]e simply make what we think is a commonsense application of that principle [of mailing as an additional assurance of notice when posting occurs] to the facts here.” Id. at 137.

At the very least, actual notice is one indication that the notice given was “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Greene, supra, 456 U.S. at 449-50 , 102 S.Ct. at 1877-78 (emphasis omitted). I recognize that actual notice may not overcome service that clearly fails to comply with any interpretation of the notice statute. See Moody, supra, 321 A.2d 562, 563 (holding that notice was insufficient because it was slid under the tenant’s door instead of being posted, regardless of the fact that the tenant actually received the notice). However, where no prejudice is alleged by the tenant from the method of service — the case here— and the method of service can be accommodated by the language of the statute, consistent with case law and the statute’s legislative history, the court should not invalidate an otherwise adequate notice to quit. Ontell, supra, 527 A.2d at 1295 (holding that notice to an English-speaking commercial tenant was sufficient even though it was written only in English and not also in Spanish as § 45-1406 requires); compare Jones v. Brawner Co., 435 A.2d 54, 56 (D.C.1981) (holding that because “[t]he requirement of strict compliance with the statute obviates some of the practical difficulties of proving delivery,” notice to quit served by slipping under door was insufficient despite actual receipt of notice). This court suggested in Gantt that the question whether a particular form of notice was legally proper can be answered with reference to whether the server’s interpretation of the notice statute at issue undermined an ascertainable statutory scheme. Gantt, supra, 558 A.2d at 1123-25 . In the instant case, the landlord’s service by mailing seven days before the first posting cannot be said to undermine any scheme intended by the legislature. Ontell, supra, 527 A.2d at 1295 . Thus, I would interpret § 45-1406 as allowing mailing up to, but not later than, three days after posting.

Applying this interpretation of the statute and the Greene doctrine to the facts of the instant ease, I conclude that the landlord’s service was valid. The landlord, through the use of an agent, attempted personal service on four different occasions and, being unsuccessful, posted notice on each of those four different attempts. As the statute requires, the landlord mailed a copy of the notice to the tenant. This effort shows good faith on the part of the landlord to apprise the tenant of the pendency of the action. The landlord *62 violated neither any clear meaning, nor the spirit, of the requirement that a mailing occur within three days of posting, giving the tenant sufficient time to cure before the tenant was served a summons. The landlord, in fact, waited in excess of thirty days after the last posting to file his complaint for possession. The mailing of the copy of the notice seven days prior to the posting of the first notice did not harm the tenant in any way and, in fact, may have benefited the tenant by giving him additional time to cure. 8

The trial court suggested a potential problem that could arise in a different set of circumstances if we read “within” in § 45-1406 to denote a point of finality. The court posed a scenario where, under this interpretation, a landlord could mail a notice on January first and then post in June, or worse yet, initiate a prophylactic mailing to all his tenants, and then post months later on any tenants that the landlord still wishes to evict. Setting aside the fact that in any case, a landlord needs a legally sufficient reason to evict a tenant, it is true that the statute alone would not render this process of notice insufficient. However, the constitutional requirements of Greene clearly would. A mailing that was prophylactic or that occurred months prior to posting would certainly not be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Greene, supra, 456 U.S. at 449-50 , 102 S.Ct. at 1878 (emphasis omitted). This is especially the case if the tenant can show that the landlord was simply trying to avoid the spirit of Greene . Therefore, I am not convinced that interpreting the service statute to permit the notice in this ease could have the unintended consequence of allowing a landlord to comply with the language, but not the spirit, of the statute, under different circumstances. Guided by due process requirements, courts will always be able to protect tenants in such cases.

In the instant case, the landlord was not attempting to avoid providing the tenant with notice. The landlord’s service of notice not only conformed to the requirements of § 45-1406 and the spirit of Greene , but also, in fact, provided actual notice to the tenant. The landlord’s suit should have been allowed. Accordingly, I respectfully dissent.

. At the time of the decision in Gantt , this statute appeared in a 1981 volume.

. This is unlike the argument criticized by the dissent in United States v. Anderson, 313 U.S.App.D.C. 335 , 59 F.3d 1323 (1995) (en banc), that a debate about ambiguity is itself evidence of ambiguity. Cf. ante at 54.

. This Bill also enacted D.C.Code §§ 16-1501 and -1502, governing the procedure for service of summons which parallels the procedure for service of notice to cure.

. Nevertheless, the moment of posting, and not the mailing, begins the thirty-day period which must run before a court action can be instituted. Section 45-1406 refers to the "notice" being posted but only a “copy of the notice” being mailed (emphasis added).

. The overwhelming majority of the report contains information and testimony regarding the proposed requirement that notices and summons be written in both English and Spanish. This requirement was eventually adopted into § 45-1406 along with the mailing requirement at issue here.

. A tenant may be required to appear in court seven days after the posting of a summons. D.C.Code § 16-1502.

. D.C.Code § 45-2551(b) (1991).

. It is true that the landlord would have clarified his intentions had he provided a date on the notice indicating when the thirty day period began. Nevertheless, the landlord did not file his complaint until well after thirty days from the last posting, and there is no indication that the notice in this case confused the tenant in any way. Although clear dating of a notice would significantly assist some tenants in understanding their legal posture, I am not yet persuaded that § 45-1406 either explicitly or implicitly creates such a requirement.