Boks v. Charles E. Smith Management, Inc.

• Decision Date: 17 November 1982
• Docket Number: No. 81-1623.,81-1623.
• Parties: Tatiana BOKS, Appellant, v. CHARLES E. SMITH MANAGEMENT, INC., et al., Appellees.
• Court: D.C. Court of Appeals

453 A.2d 113

Tatiana BOKS, Appellant, v. CHARLES E. SMITH MANAGEMENT, INC., et al., Appellees.

No. 81-1623.

District of Columbia Court of Appeals.

Argued September 16, 1982.

Decided November 17, 1982.

John R. Keys, Jr., Washington, D.C., for appellant.

Christopher E. Hassell, Washington, D.C., for appellees.

Before KERN, NEBEKER and TERRY, Associate Judges.

KERN, Associate Judge:

This appeal presents the question whether the trial court acted properly in dismissing appellant's action on the basis of a praecipe of dismissal which had been executed by the appellant for herself and for the appellees, and was served upon the appellees, but never filed with the court. Because we find genuine issues of material fact in this case which were improperly resolved on the motion to dismiss, we reverse.

I

This is a personal injury action brought pro se by the appellant, Tatiana Boks, for damages allegedly resulting from a malfunction of the air conditioning unit in her

apartment, which is managed and owned by the appellees, Charles E. Smith Management, Inc. and Sage Associates.

Appellant filed her complaint on December 11, 1980. In late March 1981, when she concluded that ill health would prevent her from responding to a set of written interrogatories which had been served upon her by the appellees, she sought to postpone her case. Although appellant was not yet in default in answering the interrogatories, she obtained the assistance of an attorney in preparing a praecipe for the dismissal of her case without prejudice. On April 30, 1981, that attorney, in her presence, telephoned appellees' counsel and obtained permission to join his signature to the praecipe. Appellant then signed her name and appellees' counsel's name to the praecipe; and she also signed a certificate of service indicating that a copy of the praecipe had been mailed to appellees' counsel.

Appellant contends that, in fact, she never mailed the praecipe (and it is unclear from the record who mailed the praecipe), but it is undisputed that appellee's counsel received a copy of it. It is also undisputed that the praecipe of dismissal was never filed with the court; and it appears that it did not come to the court's attention until September 1981, when appellant sought to continue with the case and appellees filed a motion to dismiss, citing only the signed but unfiled praecipe and Rule 41(a)(1)(ii) of the Superior Court Rules of Civil Procedure.¹ A hearing was held by the trial court on the motion to dismiss, and the motion was granted, with prejudice, on December 18, 1981.

Appellant asserts that, at the time she signed the praecipe of dismissal, she had not actually made a final decision to dismiss the case. She stated that she had obtained assistance in preparing the praecipe only because she was unable to prepare it herself and wanted to have it available in case she should decide to file it. Appellant also contends that, at the time she signed the praecipe, she did not have the intent to make an agreement with appellees' counsel for the voluntary dismissal of the case. Appellant maintains that a praecipe or stipulation of dismissal under Rule 41(a)(1)(ii) has no effect whatever on the pending litigation unless and until it is filed with the court. Appellant further contends that the trial court erred in determining, in the context of a Rule 41 motion, factual issues which should have been resolved at a hearing.

Appellees, on the other hand, assert that a strict filing requirement to effect dismissal under Rule 41 is incompatible with the common sense approach of the Rules of Civil Procedure. Appellees also maintain that the appellant entered into an enforceable agreement to dismiss the action, regardless whether the praecipe itself was effective as a voluntary dismissal under Rule 41(a)(1)(ii).

II

First, we address appellant's contention that a voluntary dismissal under Rule 41 is effective only upon the filing of a praecipe or stipulation with the court. In plain language, Rule 41(a) states that voluntary dismissal is to be had by "filing;"² and appellant cites several opinions in which other courts have stated that the praecipe of dismissal must be filed to be effective. E.g., United States v. Transocean Airlines, Inc., 356 F.2d 702, 705 (5th Cir.1966); Burns v. Fincke, 90 U.S.App.D.C. 381, 197 F.2d 165 (1952). However, the references to the filing requirement in those cases were merely dictum; and appellant has not cited any authority for her argument involving facts identical to, or even substantially similar to, those of this case. The case precedent closest to point is Ogniewski v. New York Central R. Co., 9 Fed.R.Serv. 60b.31, Case 2 (W.D.N.Y.1945). In that case, the plaintiff had two suits pending before the court involving the same subject matter and therefore agreed to dismiss one of them. The plaintiff signed, but never filed, a stipulation to dismiss the first-filed suit. When the second suit was later dismissed involuntarily for want of prosecution, the court ruled that the first action was nevertheless still pending because the stipulation of dismissal had never been filed. Id. at 904. There was no claim made in Ogniewski that the plaintiff never intended to dismiss the suit, as there is in the instant case.

Although the opinions relied upon by the appellees involve stipulations of dismissal which were never formally filed but were nonetheless enforced by the courts, they are also distinguishable from the instant case. In each of them, there had in fact been an effective "filing" because the stipulations had been made or presented orally in open court, had been referred to in other signed representations filed with the court, or had been brought before the court in some other way. E.g., Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.1980); Pipeliners Local Union v. Ellerd, 503 F.2d 1193 (10th Cir.1974); Harkless v. Sweeny Independent School District of Sweeny, Texas, 388 F.Supp. 738 (S.D.Tex.1975). See also, Sampson v. Sony Corporation of America, 434 F.2d 312 (2d Cir.1970); Doyle v. Stanley Works, 60 F.R.D. 132 (E.D.Pa.1973), aff'd, 492 F.2d 1238 (3d Cir.1974). No such effective substitute for filing is evident in the record before us in this case.

Thus, it appears that the weight of authority would support a holding that the signed, but unfiled, praecipe in this case was ineffective to dismiss the action, and represented at most a purely executory agreement (if it were an agreement at all), absent the required filing with the court.

III

In our view, the more important issue, on which we decide the case, is that raised by appellant's latter contention, that the trial court erred in ordering the action dismissed under Rule 41(a), considering the factual issues involved.

The trial court seems to have treated appellees' motion to dismiss as a motion for summary judgment.³ In granting the motion, the trial judge actually issued the equivalent of a summary judgment holding that the appellant's affidavit did not create a genuine issue of material fact — either because the trial court found that no pertinent factual controversy exists, or because the court was ruling, in effect, that a praecipe of dismissal which has been signed and served, but never filed, is immune from collateral attack by a plaintiff who claims she had never definitely formulated the intent to dismiss the case.

We hold that a praecipe of dismissal under Rule 41(a)(1)(ii) which has been signed by the parties and served upon the defendant, but has never been filed with the court, is subject to a collateral inquiry into the circumstances surrounding its execution and the understanding of the parties at the time it was executed. Therefore, we condude that material and genuine issues of fact exist in this case so that the trial court erred in summarily dismissing the appellant's case.

The summary judgment rule, Super.Ct. Civ.R. 56, provides that "Nile judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id.

Appellant submitted an affidavit in connection with her opposition to appellees' motion to dismiss which was uncontroverted. It raised material factual issues concerning appellant's state of mind when she signed the praecipe — such as whether she intended to make an agreement to dismiss the action or whether the attorney who assisted her made such an agreement with her knowledge and consent.⁴ It also raised a material factual issue concerning whether she actually served the praecipe on appellees' counsel. Yet appellees had never submitted affidavits, depositions, or responses to interrogatories, as is customary under Rule 56,⁵ to establish that these facts were not genuinely at issue, even though they, as the movants, had the burden of making that showing. Howard v. Riggs National Bank, D.C.App., 432 A.2d 701 (1981); International Underwriters, Inc. v. Boyle, D.C. App., 365 A.2d 779, 782 (1976). Moreover, the appellant, as the nonmoving party, was entitled to have all doubts and inferences concerning these fact issues construed in the light most favorable to her. Nader v. de Toledano, D.C.App., 408 A.2d 31, 42 (1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980).

We conclude that the factual issues surrounding appellant's execution of the praecipe in this case should have been decided on the merits, with sworn testimony and cross-examination of witnesses, and after a full opportunity for discovery, rather than summarily at the hearing on the Rule 41 motion.

IV

We turn now to appellees' argument that, even if the dismissal were not proper on the basis of the praecipe per se, there was an enforceable contractual agreement between the parties for the dismissal of the suit. Appellees...