961 F.2d 277 (D.C. Cir. 1992), 90-7187, Pellegrin & Levine, Chartered v. Antoine

Docket Nº:90-7187.
Citation:961 F.2d 277
Party Name:PELLEGRIN & LEVINE, CHARTERED, Appellant, v. Phillip R. ANTOINE, et al.
Case Date:April 24, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 277

961 F.2d 277 (D.C. Cir. 1992)

PELLEGRIN & LEVINE, CHARTERED, Appellant,

v.

Phillip R. ANTOINE, et al.

No. 90-7187.

United States Court of Appeals, District of Columbia Circuit.

April 24, 1992

Argued March 5, 1992.

Page 278

Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-00096).

David J. Frantz, Washington, D.C., for appellant.

Eugene R. Fidell, Washington, D.C., for appellee, Vuong-Antoine.

Before: WALD, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In the District of Columbia an action against a partnership must be brought in the names of the individual partners and each partner must be served individually. In this case, a Washington, D.C. law firm sued a two-person partnership in a fee dispute, but failed to heed this well-established rule, serving only one of the two partners. The fee dispute resulted in a consent judgment, signed only by the partner that was served. We are now asked by the firm to overturn the district court's order vacating the consent judgment as to the other, non-served partner. Finding no reason to depart from the standard rule of

Page 279

service, we affirm the district court's order of vacation and its dismissal of the firm's suit against the non-served partner.

  1. BACKGROUND

    In October, 1983, appellee Phillip Antoine formed a general partnership with his then wife, appellee Lan Thi Vuong-Antoine, for the purpose of applying to the Federal Communications Commission ("FCC") for a permit to construct and operate a new radio station in Hawaii. In May, 1984, while the Antoines were living apart with the intent of terminating their marriage, 1 Antoine and Vuong-Antoine entered into a fee agreement with the law firm that Antoine had retained to represent the partnership before the FCC, appellant Pellegrin & Levine, Chartered. 2 Vuong-Antoine's liability under the agreement was conditional and limited. The agreement provided that she would be liable for fees "if and only if the Antoines [were] the successful applicants for the FM construction permit, and then only for 50% of the total fees." 3

    In mid-December, 1986, Pellegrin & Levine withdrew as counsel for the Antoine general partnership and in January, 1987, filed this diversity action against both Antoine and Vuong-Antoine to recover over $150,000 in fees and unreimbursed costs. Pellegrin & Levine attempted to serve Antoine at his home in Honolulu, Hawaii and Vuong-Antoine both in Honolulu and in Anchorage, Alaska (at a location described by her in the FCC proceedings as a temporary residence). While the firm successfully served Antoine, it failed to serve Vuong-Antoine. To this day, Vuong-Antoine has not been served in the fee proceeding.

    Upon Pellegrin & Levine's withdrawal as counsel for the Antoine partnership, Robyn Nietert, a Washington, D.C. attorney specializing in communications law, assumed the representation of the partnership before the FCC. In addition, as an "accommodation" to Antoine, Nietert entered an appearance in this fee action. That appearance, however, was expressly confined to the representation of Phillip Antoine. 4 At no time was Vuong-Antoine represented before the district court, nor did Vuong-Antoine herself make an appearance before the district court.

    Nietert participated in settlement negotiations between Pellegrin & Levine and Antoine, and on March 26, 1987, the parties entered into a settlement agreement. 5 One term of the agreement provided that Antoine would enter into a consent judgment establishing both his and Vuong-Antoine's joint and several liability for $100,000 in legal fees. Antoine signed the consent judgment, which was entered on April 6, 1987, in the same manner that he had signed the settlement agreement: "Individually and on Behalf of His Partner, Lan Thi Vuong-Antoine."

    After obtaining the consent judgment, Pellegrin & Levine placed a lien on a house owned by Vuong-Antoine in Hawaii. Vuong-Antoine then moved, in February, 1988, to vacate the consent judgment on the grounds that she was never served with process and that "her former husband, defendant Phillip R. Antoine, signed

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    the consent judgment on her behalf without her knowledge or authorization." The district court agreed and vacated the consent judgment as to Vuong-Antoine. The district court also dismissed Pellegrin & Levine's complaint against Vuong-Antoine, finding that the firm had failed to demonstrate "good cause" for its failure to serve her within 120 days of the filing of the complaint.

    Pellegrin & Levine challenges both rulings. First, it argues that Antoine, as Vuong-Antoine's partner, had authority to consent to judgment on behalf of Vuong-Antoine, and that his consent constituted a waiver of Vuong-Antoine's objections to sufficiency of process. Brief for Appellant ("Appellant") at 11. Pellegrin & Levine also argues that even if Antoine lacked authority to enter into the consent judgment on Vuong-Antoine's behalf, Vuong-Antoine is now estopped from denying that authority because Pellegrin & Levine reasonably relied on Antoine's "apparent authority" to enter into the consent judgment on her behalf, and because Vuong-Antoine benefitted from the consent judgment and has not acted in good faith in this proceeding. Finally, Pellegrin & Levine argues that the district court abused its discretion in dismissing the complaint as to Vuong-Antoine. Appellant at 18.

  2. DISCUSSION

    1. Vacation of the Consent Judgment

      1...

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