Venison v. Robinson

• Decision Date: 27 July 2000
• Docket Number: No. 98-CV-518.,98-CV-518.
• Citation: 756 A.2d 906
• Parties: William E. VENISON, Appellant, v. Elbert C. ROBINSON, Verna C. Robinson, and Cheryl D. Edwards, Appellees.
• Court: D.C. Court of Appeals

756 A.2d 906

William E. VENISON, Appellant, v. Elbert C. ROBINSON, Verna C. Robinson, and Cheryl D. Edwards, Appellees.

No. 98-CV-518.

District of Columbia Court of Appeals.

Submitted May 18, 1999.

Decided July 27, 2000.

John F. Pressley, Jr., Washington, DC, was on the brief for appellant.

Jay B. Dorsey, Washington, DC, was on the brief for appellees Elbert and Verna Robinson.

Carol S. Blumenthal, Washington, DC, was on the brief for appellee Cheryl Edwards.

Before TERRY and SCHWELB, Associate Judges, and KERN, Senior Judge.

TERRY, Associate Judge:

Appellant William Venison seeks reversal of a default judgment in favor of appellees Elbert and Verna Robinson, quieting title to a piece of real property that Venison had previously owned. The Robinsons filed the underlying complaint in 1997 to confirm a tax deed which they had acquired from the District of Columbia in 1993. Despite substantial evidence that he was personally served, Mr. Venison claims that the default judgment was the only legal document he ever received concerning the case, and that the court did not have jurisdiction over him because he had never been properly served. He also asserts that his present wife obtained a dower interest in the property before title was transferred to the Robinsons, and that the Robinsons' failure to join her as an indispensable party warrants reversal. We decline to consider the latter argument because the judgment, as it now exists, has no effect on any possible dower interest which Mrs. Venison may (or may not) assert in the future. As to Mr. Venison, we conclude that he has not overcome the presumption that service was proper, and thus we affirm the judgment.

I

In 1950 William Venison and his first wife, Mary Venison, purchased a piece of real property located at 513 Tennessee Avenue, Northeast. Mary Venison transferred her interest in the property to her husband in 1963, making him its sole owner. Sometime prior to 1987, Mr. Venison stopped paying taxes on the property.¹ The District of Columbia taxing authorities sent him notices by certified mail advising him of the taxes due, but Mr. Venison never responded. Notices were also published in the Washington Times and the Washington Post on December 18 and 19, 1987, respectively. Consequently, in January 1988, the District sold the property to the Robinsons at a public tax sale, and shortly thereafter the Robinsons obtained a tax certificate for the property.

For two years following the tax sale, Mr. Venison had a right to redeem the property by paying all of the back taxes owing on it, plus interest. See D.C.Code § 47-1306(a) (1990).² On December 15, 1989, the District sent Mr. Venison a letter, by certified mail, notifying him of the imminent expiration of his redemption period and the prospective loss of his property if he did not redeem it by January 29, 1990.³ According to Mr. Venison, he never received notice of either a tax delinquency or the impending expiration of his right of redemption.

On July 30, 1993, the Robinsons received a tax deed to the property. They held it from that date until January 21, 1998, when they transferred the property to Cheryl Edwards. Before conveying the property to Ms. Edwards, the Robinsons filed a "complaint to remove cloud on title." On October 27, 1997, a special process server filed an affidavit of service stating that he had personally served Mr. Venison with the summons and complaint on October 25, 1997, at the address where Venison admitted he lived.⁴ According to the affidavit, the person upon whom the complaint was served identified himself as William Venison. The complaint was never answered.

On December 11, 1997, the Robinsons filed and served an application for judgment, based on Mr. Venison's failure to file an answer to the complaint. The court granted the application and issued a default judgment on January 8, 1998, granting to the Robinsons "absolute ownership and the right of disposition of the property" at 513 Tennessee Avenue, N.E. The Robinsons thereafter conveyed the property to Ms. Edwards.⁵

On January 26, 1998, Mr. Venison filed a motion to vacate the default judgment, asserting (1) that the court did not have personal jurisdiction over him because he had not been properly served,⁶ (2) that he did not have proper notice of the legal proceedings against him, (3) that the Robinsons failed to join a necessary party, (4) that he had an adequate defense, and (5) that he acted promptly and in good faith upon becoming aware of the legal proceedings. To the motion Mr. Venison attached his own affidavit, along with copies of bills and cashier's checks showing that he had paid taxes on the property in 1995, 1996, and 1997. Mr. Venison's affidavit stated that "[t]he complaint ... was never served upon [him]" and that "[t]he only legal document which [he] received in this case was the final Order and Judgment." He also asserted that he had paid taxes on the property since he originally acquired it.

The court denied Mr. Venison's motion, ruling that his affidavit was insufficient to overcome the presumption, established by the process server's affidavit, that he had been personally served. Mr. Venison filed a motion for reconsideration and then filed a notice of appeal. Thereafter the trial court granted Mr. Venison's motion for reconsideration for the limited purpose of holding an evidentiary hearing on the issue of personal service; however, Mr. Venison withdrew his motion for reconsideration, and the hearing was never held.

II

The power of a trial court to vacate a prior judgment or order, other than merely for clerical mistakes, is circumscribed by Super. Ct. Civ. R. 60(b). Normally, we review the grant or denial of a motion under Rule 60(b) for abuse of discretion. See Johnson v. Lustine Realty Co., 640 A.2d 708, 709 (D.C.1994); Alexander v. Polinger Co., 496 A.2d 267, 269 (D.C.1985); Union Storage Co. v. Knight, 400 A.2d 316, 318 (D.C.1979); Westmoreland v. Weaver Brothers, Inc., 295 A.2d 506, 508 (D.C.1972). However, because there is a strong judicial presumption favoring adjudication on the merits, we scrutinize closely the trial court's refusal to set aside a default judgment. Johnson, 640 A.2d at 709; Clark v. Moler, 418 A.2d 1039, 1041 (D.C.1980); Dunn v. Profitt, 408 A.2d 991, 992 (D.C.1979). Therefore, when reviewing the denial of a motion to vacate a default judgment, we consider the particular facts of the case to determine "whether the movant had actual notice of the proceeding, acted promptly after learning of the default judgment, proceeded in good faith, and presented a prima facie adequate defense, and also whether the non-moving party would be prejudiced." Mewborn v. U.S. Life Credit Corp., 473 A.2d 389, 391 (D.C.1984); accord, e.g., Gill v. Tolbert Construction, Inc., 676 A.2d 469, 470 (D.C.1996); McMillan v. Choice Healthcare Plan, Inc., 618 A.2d 664, 667 (D.C.1992); Clay v. Deering, 618 A.2d 92, 94 (D.C.1992); Walker v. Smith, 499 A.2d 446, 449 (D.C.1985). Considering each of these factors in order, we conclude that the trial court did not abuse its discretion in this case.

A. Actual Notice

Mr. Venison asserts that he was never served with the complaint and never had notice of the proceedings against him. In direct conflict with that assertion are the two affidavits submitted by the process server, in which the server attested to serving Mr. Venison personally with the summons and complaint. In order to overcome "the presumption of truth attached to the statement in the process server's return," Mr. Venison was required to present "strong and convincing evidence" that he was not served. Firemen's Insurance Co. v. Belts, 455 A.2d 908, 909 (D.C.1983); accord, e.g., Castro v. Universal Acceptance Corp., 200 A.2d 202, 203 (D.C.1964) ("there is a presumption of truth attaching to the Marshal's return of service which may only be impeached by strong and convincing evidence"). Mr. Venison's bare denial of receipt of the complaint or any other documents related to the case other than the final judgment, without more, was not sufficient to overcome that presumption. Id.

Despite the strong evidence that he was personally served, Mr. Venison argues that the trial court's failure to conduct a hearing to determine the validity of service was an abuse of discretion. He relies on Hawkins v. Lynnhill Condominium Unit Owners Ass'n, 513 A.2d 242 (D.C.1986), in which we held that the trial court had a duty to inquire further into an alleged discrepancy between the physical description of the defendant contained in the affidavit of service and her actual appearance before it could deny her motion to vacate the default judgment. We explained that "[b]y denying service and in addition controverting with specificity the descriptive information contained in the service affidavit, Hawkins raised a significant factual dispute on the vital issue of whether she actually received notice of the lawsuit against her." Id. at 244 (emphasis added).

This case is easily distinguished from Hawkins. Unlike Ms. Hawkins, who controverted in detail the description of her in the process server's affidavit, Mr. Venison merely denied receipt of the summons and complaint without otherwise contesting the substance of the affidavit. He did not deny that the process server came to his home or that he spoke to him. Nor did he claim that the physical description contained in the affidavit did not match his appearance. We therefore hold that Mr. Venison did not raise any genuine factual dispute regarding service of process that would warrant an evidentiary hearing.⁷

B. Prompt Action

Mr. Venison asserts that he acted quickly after learning about the default judgment. In its order the trial court agreed, ruling that Mr. Venison "[had] come forward promptly after the entry of the court's order and judgment...." It concluded, however, that Mr. Venison's promptness was the only factor favoring vacatur. Our assessment...