Circle Liquors, Inc. v. Cohen

• Decision Date: 29 January 1996
• Docket Number: 93-CV-1572.,No. 93-CV-1380,93-CV-1380
• Citation: 670 A.2d 381
• Parties: CIRCLE LIQUORS, INC., Appellant/Cross-Appellee, v. Herman COHEN, Appellee/Cross-Appellant.
• Court: D.C. Court of Appeals

670 A.2d 381

CIRCLE LIQUORS, INC., Appellant/Cross-Appellee, v. Herman COHEN, Appellee/Cross-Appellant.

Nos. 93-CV-1380, 93-CV-1572.

District of Columbia Court of Appeals.

Argued January 10, 1995.

Decided January 29, 1996.

Jay S. Weiss, Washington, DC, with whom Barry S. Kopit, Rockville, MD, was on the brief, for appellant/cross-appellee.

James H. Heller, Washington, DC, with whom Stephen Z. Chertkof was on the brief, for appellee/cross-appellant.

Before WAGNER, Chief Judge, KING, Associate Judge, and BELSON, Senior Judge.

KING, Associate Judge:

In this breach of employment contract action, appellant Circle Liquors, Inc. ("Circle"), the former employer of appellee Herman Cohen ("Cohen"), seeks reversal of a judgment in favor of Cohen, or in the alternative, a new trial. Circle contends that the trial court erred in denying its motions for directed verdict and judgment as a matter of law. Alternatively, Circle claims it is entitled to a new trial because of asserted instructional error by the trial court. On cross-appeal, Cohen challenges the trial court's grant of Circle's motion for remittitur and entry of judgment in the amount of $47,900, an amount less than that awarded by the jury. Because we conclude we are without jurisdiction to hear the merits of these appeals, we must dismiss them. However, we vacate the order entering judgment for $47,900, which the trial court entered without jurisdiction.

I.

Although we dismiss these appeals on jurisdictional grounds, we set forth, in some detail, the facts underlying the dispute to aid in understanding the jurisdictional issues presented.

In August 1984, after working for thirty-eight years as the general manager of Central Liquors in the District of Columbia, Cohen was hired by Circle's Board Chairman, Jeffrey Gildenhorn ("Gildenhorn"), to whom he was related by marriage, to work as manager of Circle. At Cohen's request for "something in writing," Gildenhorn gave Cohen a letter on company stationery which stated:

Your weekly salary beginning August 6, through December 31, 1984 will be $1,000 per week. Beginning January 9, 1985 through December 1985 your compensation will be based on the volume of business of Circle Liquor Store, Incorporated. The scale will be the following: $2,000,000 a year in sales through $2,500,000 yearly compensation of $52,000 a year compensation; over $2,500,000 a year in sales $60,000 a year compensation.

Cohen testified that he believed this letter provided "a permanent job for me to increase the volume of business at Circle Liquor Store," and that the contract, binding on both himself and Circle, was terminable only upon bankruptcy.

In August 1985, Gildenhorn and Cohen had a conversation regarding Cohen's rate of compensation. According to Cohen:

Jeffrey Gildenhorn called me into the office and said that business is not as — not very good and I will have to lower your salary and when business gets a little better I will see to it that you will get your salary back.

In the wake of that conversation, Cohen's salary was reduced from $1,000 per week to $700 per week, and Cohen continued to work at Circle at that salary until his termination in September 1991. Cohen testified that he did not confront Gildenhorn about the continued reduction in his salary because he did not have access to Circle's business records and he relied on Gildenhorn's good faith to restore his salary when sales reached the agreed upon sum of two million dollars. Cohen also stated that he was reluctant to cause family conflicts with the Gildenhorns.

Cohen was terminated from Circle on September 5, 1991, for reasons unrelated to this appeal. On September 27, 1991, Cohen filed this action against Circle for breach of its promise to compensate him according to Circle's volume of sales. Cohen maintained he was entitled to two weeks of unused vacation and $300¹ per week for each week he worked during the three years preceding the filing of this action, i.e., September 27, 1988 (three years before filing suit) through September 5, 1991 (the date of termination).²

After gaining access to Circle's income tax returns during discovery, Cohen learned, for the first time, that sales had increased from $1,546,159 the year before Cohen was hired (1983), to $1,817,173 during the year Cohen was hired (1984), to $2,264,351 the first full year he was with Circle (1985). Except for 1986, Circle's gross sales were in excess of two million, but not over two and one-half million dollars, every year thereafter, through and including 1991, the year Cohen was terminated.³

Gildenhorn testified that he did not hire Cohen "for life," but rather on a temporary basis, based upon Cohen's ability to "make profits for Circle from the business that he brings in," and that the aforementioned letter constituted salary arrangements only through December 1985. Gildenhorn further testified that he spoke to Cohen about his "incompetence and negligence ... and explained to him ... that business was bad," and therefore, his salary would permanently be reduced to $700 per week. In exchange for this "change of salary arrangements," Gildenhorn testified that Cohen agreed to accept Saturdays off and the use of Circle's company car.

Cohen's version of the conversation resulting in the reduction of his salary differed from Gildenhorn's. Specifically, Cohen testified that Gildenhorn never mentioned a problem of "insufficient markups" or general negligence as a reason for reducing his salary to $700 per week. Cohen also disputed Gildenhorn's testimony that Cohen received other compensation, namely Saturdays off and use of a company car, in exchange for the $300 per week decrease in salary.

During closing argument, counsel for Cohen asked the jury to return a verdict of $47,900: $45,900 for salary he claimed was owed to him ($300 per week for 153 weeks) and $2,000 for two weeks of unused vacation.⁴ After a two-day trial, the jury, obviously crediting Cohen's version of the agreement and rejecting Gildenhorn's, returned a verdict in favor of Cohen for $60,000. Following the verdict, Cohen orally offered the court a "remittitur of $12,100 down to $47,900," the amount requested by counsel for Cohen in closing argument.

Later, upon speaking to the jury foreperson in the lobby of the courthouse regarding the verdict, counsel for Cohen learned that $12,100 of the jury's verdict was intended as prejudgment interest on the back pay award, and not for punitive damages as he had surmised.⁵ One week after he made his oral offer to accept a judgment of $47,900, Cohen filed a written paper, captioned as "Plaintiff's Amended Remittitur Offer," in which he amended the oral offer and agreed to a remittitur of $1,964.85. Acceptance of that offer would result in an award of $58,035.15 for Cohen ($47,900 for back pay and unused vacation plus $10,135.15 for prejudgment interest on the back pay).⁶

Thirty days after the July 20 entry of judgment in the amount of $60,000, Circle filed a Renewal of Motion for Judgment as a Matter of Law After Trial, for New Trial, and/or Remittitur. In that motion, Circle also requested, in the event a new trial was not ordered or a judgment was not entered in its favor, that judgment be entered for $47,900, the exact amount of back pay and vacation pay sought. The trial court denied Circle's motion for new trial and the motion for judgment as a matter of law, and granted Circle's motion for remittitur. The trial court then entered judgment for $47,900 because Cohen had "unequivocally offered on the record to accept ... the amount prayed for in the complaint, i.e., $47,900." Cohen's subsequent timely motion to alter/amend judgment was denied. Cohen's written amended remittitur offer was never formally acted upon. These appeals followed.

II.

a.

Although Circle raises several challenges to the verdict reached in favor of Cohen, and Cohen, in the cross-appeal, claims the trial court erred in entering judgment for the lower amount, we do not reach the merits of any of those contentions because we do not have jurisdiction to consider those claims.⁷ A verdict was reached on July 20, 1993, and judgment was entered the same day. After the verdict was returned, counsel for Circle requested that the trial judge allow the filing of post-trial motions in thirty days rather than ten days as provided for in the rules. See Super.Ct.Civ.R. 50(b) (judgment as a matter of law); Super.Ct.Civ.R. 59(b) (new trial). Cohen did not object to an enlargement of time but protested that thirty days was longer than necessary under the circumstances. The trial judge, however, granted Circle's request, and directed that the motion be filed in thirty days. That time-table was met, and after Cohen filed his opposition, the trial court entered an order denying Circle's motions on October 5, 1993. In the same order, however, the court granted Circle's motion for remittitur and entered judgment in the amount of $47,900 rather than the $60,000 sum reached by the jury and the amount specified in the original judgment. On October 27, 1993, Circle filed its notice of appeal.⁸ Thus, the notice of appeal was filed ninety-nine days after the entry of judgment following the verdict, but twenty-two days after the entry of the judgment for $47,900.

b.

The rules of this court require that a notice of appeal be filed within thirty days of the entry of judgment. D.C.App.R. 4(a)(1). "This time limit is mandatory and jurisdictional." Frain v. District of Columbia, 572 A.2d 447, 449 (D.C.1990). Here the notice of appeal was filed within thirty days of the October 5, 1993, order. Thus, we have jurisdiction to review the underlying judgment if Circle's post-trial motions, filed thirty days after the July 20 entry of judgment, were timely and tolled the time for filing an appeal of that judgment until the ruling on the motions. As noted, the order that Circle seeks to appeal disposed of motions filed pursuant to Super.Ct.Civ.R....