Ayers v. Landow

• Decision Date: 02 October 1995
• Docket Number: No. 93-CV-1505.,93-CV-1505.
• Citation: 666 A.2d 51
• Parties: Robert W. AYERS, Appellant, v. Stuart LANDOW, Appellee.
• Court: D.C. Court of Appeals

666 A.2d 51

Robert W. AYERS, Appellant, v. Stuart LANDOW, Appellee.

No. 93-CV-1505.

District of Columbia Court of Appeals.

Argued June 12, 1995.

Decided October 2, 1995.

Ricardo V. Johnson, Washington, DC, with whom Kenneth J. Loewinger was on the brief, for appellant.

Morris R. Battino, Washington, DC, for appellee.

Before SCHWELB and RUIZ, Associate Judges, and MACK, Senior Judge.

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 hypertechnical 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 Landow 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 a 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, 1993, 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

if the notice to quit³ 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 3 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 ... seven 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 plaintiff's 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. In 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...