905 A.2d 268 (D.C. 2006), 04-CV-1576, Nichols v. First Union Nat. Bank

Docket Nº:04-CV-1576.
Citation:905 A.2d 268
Party Name:Timothy NICHOLS, Appellant, v. FIRST UNION NATIONAL BANK, Michael D. Lang, Appellees.
Case Date:August 17, 2006
Court:Court of Appeals of Columbia District

Page 268

905 A.2d 268 (D.C. 2006)

Timothy NICHOLS, Appellant,


FIRST UNION NATIONAL BANK, Michael D. Lang, Appellees.

No. 04-CV-1576.

Court of Appeals of Columbia District

August 17, 2006

Argued June 27, 2006.

Page 269

Timothy Nichols, pro se.

Daniel S. Fiore, Arlington, VA, for appellees.

Before RUIZ and KRAMER, Associate Judges, and NEBEKER, Senior Judge.

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RUIZ, Associate Judge:

The claims in this appeal arise out of disputed financial transactions between appellant, Timothy Nichols, and First Union National Bank and its employee, Michael D. Lang. [1] We see no reason to disturb the trial court's grant of summary judgment, or its denial of appellant's "motion for reconsideration," which we deem to be a Superior Court Civil Rule 60 motion. We reverse, however, the trial court's erroneous grant of costs to First Union, the party that prevailed in the litigation, under Superior Court Civil Rule 68.


The parties agree that appellant signed a promissory note for a $10,000 loan with First Union, which he paid off early. The two main allegations disputed below were whether appellant also purchased a $10,000 certificate of deposit from First Union and whether he overpaid in repaying the loan.

Appellant, who was represented by counsel throughout most of the Superior Court proceedings, ran afoul of several court orders and court rules. Finding appellant "completely uncooperative in facilitating the production of" materials necessary to deposing his proffered expert witnesses--a handwriting expert and medical expert who were proffered to establish check forgery and medical symptoms resulting from appellee's alleged intentional infliction of emotional distress, respectively--the trial court ruled that both experts were prohibited from testifying. Appellant's repeated "flouting of the Court's November 26, 2003 order" by failing to make himself available for deposition led to his own testimony being barred. While the trial court recognized these were "stern remed[ies]," it "conclude[d] that it ha[d] no other recourse." Appellant also failed to comply with court orders that he produce the original document--one he claimed to possess--to prove that he owned the disputed certificate of deposit.

Based on appellant's failure to turn over the certificate of deposit documentation and his inability to present witnesses to establish his claims, the trial court granted First Union's motion for summary judgment, dismissing appellant's case, in a written order docketed May 18, 2004. Appellant did not appeal from that order, but filed a "Motion to Reconsider, Reinstate, and Permit Filing of Opposition" on May 28, 2004. On November 24, 2004, the trial court denied this motion, and in the same order awarded costs to First Union pursuant to Superior Court Civil Rule 68. Appellant filed a timely notice of appeal from this order on December 21, 2004.


This court may exercise jurisdiction over appeals from all final orders and judgments of the Superior Court of the District of Columbia. D.C.Code § 11-721 (2002). However, "This court lacks jurisdiction to consider an appeal filed more than thirty days after the entry of the order being appealed." Bratcher v. United States, 604 A.2d 858, 859 (D.C.1992) (citing D.C.App. R. 4(b)(1)).

We have previously held, under this court's Rule 4 in effect prior to 2004, that "[a]lthough a timely filed Rule 59 motion tolls the thirty-day period for filing a notice of appeal from a court's final order, a

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Rule 60(b) motion does not." Turcios v. U.S. Servs. Indus., 680 A.2d 1023, 1025 (D.C.1996); see D.C.App. R. 4(b)(1) (2003); see also Vincent v. Anderson, 621 A.2d 367, 370 (D.C.1993). Under that rule, if appellant filed a Rule 60 motion, we would not have jurisdiction to consider any of the rulings leading up to the grant of summary judgment, which was entered more than 30 days before Mr. Nichols filed his notice of appeal.

To further our policy in favor of decisions on the merits, our cases interpreted the old Rule 4 such that "[a] motion that is 'proper under either rule [59 or 60]' will ordinarily be treated as a Rule 59(e) motion, if timely filed," within ten days. Wallace v. Warehouse Employees Union # 730, 482 A.2d 801, 805 (D.C.1984). Even so, if appellant "did not base his claim for relief on an error of law; [but] alleged an additional circumstance not available to the trial court when it granted [] judgment," then because "[t]his is a ground for relief under Rule 60(b)(1), ... [the] motion properly should be treated as a motion under that rule." Nuyen v. Luna, 884 A.2d 650, 655 (D.C.2005). Because jurisdiction to hear an appeal depended on the nature of the post-judgment motion filed in the trial court, the appellate court was required to preliminarily engage in assessing the content of the motion before it could decide whether it had jurisdiction to hear the case.

Rule 4 has been revised and no...

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