concurring in part, dissenting in part:
I concur in that portion of the opinion which holds that the judgment for possession must be reversed and remanded with instructions to dismiss the landlord’s action as moot. However, I would affirm the order releasing to the landlord funds the tenant paid into the court registry.
It appears from the record in this case that the tenant was not, in fact, denied the evidentiary hearing required by McNeal v. Habib, 346 A.2d 508 (D.C.1975). The landlord had requested a hearing to be set for May 3,1982, on his consolidated “Motion for Judgment and For Release of Monies in Registry of the Court.” (Record at 21, 22.) When that hearing was held, then, on May 3, it was a hearing not only on the underlying suit for possession but also on the release of funds paid into the court registry under protective order. At that hearing, immediately after tenant’s counsel requested, and was granted, a McNeal hearing, counsel for landlord explained, “[0]ur motion is captioned and the defendant is on notice that we are here today requesting the release of the monies. That’s why we are here.” (Record at 11.) At that point, the judge apparently looked at the motion, confirmed that it had also requested a McNeal hearing, and then ordered the funds released. The certificate of service attached to the landlord’s motion shows that the tenant was mailed a copy of the motion, including the request for a hearing to consider the release of funds; her attorney was present at the hearing on May 3; and she does not contend that she did not have notice of the hearing and its purpose. Yet the tenant failed to appear and to present evidence at the hearing, as she was entitled; and she has failed to set forth on appeal reasons why she was unable to avail herself of that hearing. Her attorney might have introduced evidence in her behalf concerning her allegation of housing code violations, but he did not attempt to do so; nor did he request a continuance to do so. Cf. Armwood v. Rental Associates, Inc., 429 A.2d 190 (D.C.1981) (order disbursing funds to the landlord reversed when tenant’s counsel had sought to introduce evidence of housing code violations at similar hearing, but had been prevented from doing so).
On these facts, I would affirm the order releasing funds paid into the court registry, since the tenant was provided an opportunity to present evidence pertinent to the order, as required by McNeal v. Habib, supra.