Blyther v. Chesapeake & Potomac Tel. Co., 93-CV-1433.

• Decision Date: 17 July 1995
• Docket Number: No. 93-CV-1433.,93-CV-1433.
• Citation: 661 A.2d 658
• Court: D.C. Court of Appeals
• Parties: Geraldine BLYTHER, Appellant, v. CHESAPEAKE & POTOMAC TELEPHONE COMPANY, Appellee.

661 A.2d 658

Geraldine BLYTHER, Appellant, v. CHESAPEAKE & POTOMAC TELEPHONE COMPANY, Appellee.

No. 93-CV-1433.

District of Columbia Court of Appeals.

Submitted April 13, 1995.

Decided July 17, 1995.

Gary Christian and Kenneth Shepherd, were on the brief, for appellant.

William D. Nussbaum, with whom Karen M. Hardwick and Jonathan S. Franklin, were on the brief, for appellee.

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

Concurring opinion by Associate Judge RUIZ at p. 658.

PER CURIAM:

Geraldine Blyther appeals from an order granting summary judgment in favor of Chesapeake and Potomac Telephone Company (C & P) in an action for personal injuries. The pertinent facts and history of the case are detailed in the trial judge's orders of February 2, 1993 and October 15, 1993 and summarized in the concurring opinion of Judge Ruiz.

Substantially for the reasons stated by the judge in his order of October 15, 1993, as described by Judge Ruiz, we conclude that Ms. Blyther's substantive contentions are without merit. Moreover, even if summary judgment had been denied, the amendments to the contract on which the judge's October 15, 1993 order was substantially based would have been receivable in evidence at trial, and would plainly have required that a verdict be directed in C & P's favor. To require the case to go to trial would thus be futile, and "the law does not require the doing of a futile act." Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980); see also In re Melton, 597 A.2d 892, 908 (D.C.1991) (en banc). Accordingly, we affirm the judgment on appeal without reaching various issues addressed by our concurring colleague, at least one of which is by no means a simple one.¹

Affirmed.

RUIZ, Associate Judge, concurring in the judgment:

I agree that on the facts of this case, summary judgment was both procedurally and substantively proper. Before we may consider the merits of this case, however, we must address a preliminary procedural point concerning the law of the case doctrine not previously decided by this court. I do not join the majority's slender yet sweeping reasoning because I believe it could be read to overrule our previous decisions regarding law of the case. Therefore, I write separately to explain the procedural issues impliedly and necessarily decided in the per curiam opinion and to argue for a narrow reading of the opinion, limited to the precise issue concerning law of the case presented in this case, consistent with our established case law.

I.

Following are the facts and procedural history necessary to understand the case. On October 16, 1990, appellant, Geraldine Blyther, a custodial worker for the United States Senate, walked into a "wire closet" in the Dirksen building to get cleaning supplies. She stepped into a hole in the floor where a removable panel should have been. The principal purpose of the wire closet was to provide access to telecommunications equipment, particularly wire and cable interconnections. Due to a space shortage it was also used by the Senate to store custodial supplies.

Apparently two types of telecommunications interconnections were accessible through the closet: wire terminals, which were above the floor, and cables, which were below the floor. Appellee Chesapeake & Potomac Telephone Co. (or its affiliate, Bell Atlanticom Systems) was the contractor that had installed the cable and wire terminals. It had a continuing contractual obligation to maintain the wire terminals above the floor, but not the cables below the floor.

Presumably barred from recovering from her employer more than workers' compensation for her injuries, Blyther sued C & P. Discovery showed conclusively that whoever removed the missing floor tile was not an employee of C & P. Discovery also showed that many other persons were authorized to enter the wire closet, including those with business that would involve removing the floor tile. Discovery further revealed that the wire closet was left unlocked at all times pursuant to an informal agreement between custodial workers and the Senate, which controlled access to the wire closet. C & P consequently moved for summary judgment.

The trial court denied the motion for summary judgment, suggesting, sua sponte, that C & P may have violated a duty under the Industrial Safety Act, D.C.Code § 36-221 to -232 (1993), to furnish appellant a safe place of employment. Thereafter, the litigation apparently focused on whether C & P had control of the wire closet—a necessary element of liability under the Industrial Safety Act—with particular attention given to the terms of C & P's contract.

C & P twice renewed its motion for summary judgment, contending that the record showed that C & P did not have control over the wire closet. The second renewal came just four days before the date of trial and was premised upon C & P's allegedly newly discovered evidence in the form of an amendment to the contract between C & P and the Senate requiring the latter to inspect C & P's work for compliance with "industry standards" prior to acceptance. On the day of trial, the court heard oral argument on the renewed motion and granted summary judgment, concluding that the contract amendments showed C & P did not have control over the wire closet. Within the time permitted by Super.Ct.Civ.R. 59(e), Blyther sought reconsideration on the grounds that (i) the motion was decided before ten days had elapsed, (ii) the order was contrary to the law of the case, (iii) there was no authority for reconsideration,¹ and (iv) the contract amendment was ambiguous on its face. The trial court denied the motion. Blyther filed a timely notice of appeal.²

On appeal, Blyther renews her first two procedural arguments and contends that the grant of summary judgment was substantively erroneous because the contract was ambiguous concerning the issue of control. C & P disputes the assigned errors and additionally argues that the procedural issues were waived by Blyther's failure to raise them in a timely manner. C & P also contends that the judgment should be affirmed on the alternative ground that the Industrial Safety Act did not impose any duty on C & P to furnish Blyther with a safe working place.

II.

Before reaching the merits, the procedural objections posed by Blyther must be addressed. Followed to its logical conclusion, the majority's justification for avoiding the procedural issues in this case implies abolition of the law of the case doctrine in all cases. Thus, I believe it exceeds the authority of this panel. Consideration of Blyther's specific procedural arguments convinces me that the trial court committed no error in revisiting and granting C & P's motion for summary judgment on the day of trial.

A.

The majority does not address Blyther's argument based on law of the case. Although it comments that it is "patently unpersuasive," it does not explain why. The decision is based on the maxim: "The law does not require the doing of a futile act." In this case, the "futile act" is denial of summary judgment, requiring a trial, only to have a directed verdict.³ I believe this truncated reasoning does not stand up to scrutiny.

Under the majority's "futile act" approach, law of the case would never prevent a trial judge from overruling a prior denial of summary judgment on the eve of trial. In fact, if a trial to take place in a few hours would be a "futile act," so too would a trial scheduled in a few days or months or years be such a "futile act"—so long as summary judgment were otherwise proper. The majority's ruling essentially states the proposition that the law of the case doctrine has no application to denials of summary judgment. Yet we have on several occasions held the opposite. Kaplan v. Pointer, 501 A.2d 1269, 1270 (D.C. 1985); Kurth v. Dobricky, 487 A.2d 220, 224-25 (D.C.1985).

Whatever force the majority's reasoning has, moreover, does not stop with decisions denying summary judgment. Any erroneous decision by a trial court entails the doing of work that is unnecessary, and therefore "futile," because the error either will prolong or complicate proceedings in the trial court or else will require remand after an appeal to correct the error. Under the majority's approach, the possibility of "futile"⁴ work would always justify a departure from the law of the case doctrine. Thus, the majority's reliance on its maxim strikes at the very roots of the doctrine. The policies of efficiency and avoidance of judge-shopping that the doctrine is supposed to further are supplanted, under the majority's futility approach, by reliance on hindsight.

Regardless of the doctrine's merits, however, it is firmly entrenched in the decisions of this court. Therefore, its settled application is not open to revision or repudiation by this panel. Internal Operating Procedures of the District of Columbia Court of Appeals. ¶ VIII.G (Nov.1991). By addressing the specific procedural questions raised by Blyther (and not addressed by the majority), including whether the law of the case doctrine precluded the judge from reconsidering his prior denial of summary judgment in this case, I arrive at the same result reached by the majority, but without undermining our previous holdings on law of the case.

B.

Blyther contends that the judge was precluded from granting summary judgment by the doctrine of law of case, in light of the judge's earlier decisions denying summary judgment.⁵ C & P counters that Blyther waived the law of the case issue by failing to raise it during the impromptu hearing held on the day of trial, that the law of the case doctrine does not apply by virtue of the allegedly newly-discovered evidence, and that the doctrine does not apply to bar a judge from reconsidering his own earlier order. I address each contention in turn.

1.

C & P contends, and the trial judge ruled, that Blyther waived her law of the case argument by...