Faggins v. Fischer

• Citation: 853 A.2d 132
• Decision Date: 03 June 2004
• Docket Number: No. 01-CV-1328.,01-CV-1328.
• Parties: Julia FAGGINS, Appellant, v. David J. FISCHER, M.D., Appellee.
• Court: Court of Appeals of Columbia District

853 A.2d 132

Julia FAGGINS, Appellant, v. David J. FISCHER, M.D., Appellee.

No. 01-CV-1328.

District of Columbia Court of Appeals.

Argued December 16, 2002.

Decided June 3, 2004.

Keith W. Donahoe, Greenbelt, Md, for appellant.

Alfred F. Belcuore, for appellee.

Before STEADMAN, SCHWELB and WASHINGTON, Associate Judges.

PER CURIAM.¹

At the first trial of this survival action for medical malpractice, the jury found that the defendant, David J. Fischer, M.D., negligently administered excessive amounts of anti-psychotic medication to Frederick Moten, the twenty-seven-year-old son of the plaintiff, Julia Faggins,² thus causing Moten's death from neuroleptic malignant syndrome (NMS). The jury awarded Ms. Faggins $1,600,000 in compensatory damages for Moten's alleged pain and suffering. Counsel for Dr. Fischer filed a post-trial motion for a new trial pursuant to Super. Ct. Civ. R. 59. The trial judge granted the motion and ordered a new trial. A second trial resulted in a verdict and judgment in Dr. Fischer's favor.

Ms. Faggins has appealed from the judgment, contending that the second trial should never have taken place.³ She argues, as she did in the trial court, that the Rule 59 motion was untimely. In the alternative, she asserts that even if the motion was timely, the trial court abused its discretion in granting a new trial. We agree with the trial court that the Rule 59 motion was timely and hold that the trial court did not abuse its discretion. Accordingly, we affirm the ultimate judgment in favor of Dr. Fischer.

I.

We initially address the issue of the timeliness of the new trial motion, which could be dispositive of this appeal. If it was untimely, the trial court lacked jurisdiction to order a new trial, and the original judgment in favor of Ms. Faggins must be reinstated. See Circle Liquors, Inc. v. Cohen, 670 A.2d 381, 385 (D.C.1996)

(holding that the trial court lacks authority to extend the ten-day period). Thus, if Ms. Faggins is correct on the timeliness issue, we would not reach the "merits" issue whether the trial court abused its discretion in granting a new trial.

The verdict of the first jury was returned in open court on Monday, August 23, 1999. Judgment was entered on the docket and mailed to the parties by the clerk three days later, on Thursday, August 26. By the terms of Super. Ct. Civ. R. 59(b),⁴ the defendant had ten days thereafter within which to file the motion. In calculating the ten days from the entry of judgment, the three days prior to docketing are not counted, and intervening Saturdays, Sundays, and legal holidays (here Labor Day, September 6, 1999) are excluded. See Rule 6(a); Affordable Elegance Travel, Inc. v. Worldspan, L.P., 774 A.2d 320, 331 (D.C.2001).⁵ As reflected on the calendar for August and September 1999, set forth below, the tenth day after the judgment was entered, if determined as described above, was on Friday, September 10.⁶

August 1999

Sun Mon Tue Wed Thu Fri Sat 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

September 1999

Sun Mon Tue Wed Thu Fri Sat 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

Defendant's motion was not filed until September 15. Thus, the timeliness of defendant's motion depends upon the applicability and interpretation of the mailing provision contained in Rule 6(e). That rule in 1999 read as follows:

(e) Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.

If the extra period for mailing provided in Rule 6(e) was applicable here, as the defendant contends, he was allowed three additional mailing days (beyond the ten-day period specified in Rule 59(b)) to file his motion. The defendant further contends that the three additional days for mailing permitted by Rule 6(e) are business days, with Saturdays and Sundays excluded. If the defendant is right, then the three-day mailing period excluded September 11 and 12, the third mailing day was September 15, and the motion (which was filed on that day) was therefore timely. According to the plaintiff, on the other hand, the three additional mailing days (if applicable at all) are calendar days, and the motion was required to be filed on Monday, September 13, and was therefore two days late.

In his order granting the defendant a new trial, the trial court held that the motion was timely. The court wrote that "because the three days afforded by Rule 6(e) constitute a discrete `period of time,' Rule 6(a), they too exclude any intervening holiday, Saturday, or Sunday." This entire case — i.e., the viability of a jury award of $1,600,000 — turns in the first instance on whether the trial court's interpretation of Rule 6 was correct.

A.

We examine first whether Rule 6(e) is applicable at all to defendant's motion. A close examination of Rule 6(e) might well raise doubts whether, by its literal terms, it applies at all to a new trial motion. The time prescribed for filing a new trial motion under Rule 59(e) is not dependent upon the "service of a notice or other paper upon the party." Rather, it begins to run "after entry of the judgment." For this reason, our sibling federal court has squarely held that the mailing extension of the identical federal rule 6(e) is simply not applicable to motions for a new trial. Derrington-Bey v. District of Columbia Dept. of Corrections, 309 U.S.App.D.C. 132, 133-34, 39 F.3d 1224, 1225-26 (1994).⁷ Our case law, however, had already taken a different turn. As held most notably in Wallace v. Warehouse Employees Union # 730, 482 A.2d 801, 805-08 (D.C.1984), where the Superior Court clerk is required by Rule 77(d) to serve a notice of the entry of a judgment by mail upon parties not in default, the provisions of Rule 6(e) apply and three additional days are added to the ten-day period of Rule 59(e).⁸

Plaintiff argues, however, that by its terms, Rule 77(d) did not apply in the circumstances here. Rule 77(d) in 1999 read in pertinent part as follows:

(d) Notice of orders or judgments. Immediately upon the entry of an order or judgment signed or decided out of the presence of the parties or their counsel, the Clerk shall serve a notice of the entry by mail in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the mailing.

Since the jury verdict was announced in open court, plaintiff asserts, the defendant had the benefit of the full ten days provided in Rule 59(e) and Rule 6(e) therefore didn't apply. We cannot agree. Rule 6(e) requires that the clerk serve notice of the entry of judgment in all cases where the judgment was "signed or decided out of the presence of the parties." Either condition triggers the obligation to send notice. The verdict is not the judgment. Under Rule 58, a judgment is "effective" only when entered on the docket pursuant to Rule 79(a). The ten-day period to file a Rule 59(e) motion begins to run only upon such an entry. Here, although the judgment contains an internal date of August 23, the day of the verdict, it is a judgment signed by the clerk, not the trial judge, and contains stamps showing that it was filed on August 25 and docketed and mailed on August 26. There is nothing in the record to show that the judgment was "signed" in the presence of the parties. Indeed, the stamp marks on the judgment and the fact of mailing suggest that it was not.⁹ Thus, the clerk was required by Rule 77(d) to serve notice of the entry of judgment and, under Wallace, the extension period of Rule 6(e) was applicable to the defendant.¹⁰

B.

We now turn to the determinative procedural issue; namely, whether the "3 days [that] shall be added to the prescribed period" provided in Rule 6(e) means three calendar days, as argued by the plaintiff, or three business days, as argued by the defendant. Otherwise put, the issue is the applicability of the provision in Rule 6(a) that "when the period of time prescribed or allowed [by these rules, by order of Court, or by any applicable statute] is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." If plaintiff is correct, the time within which defendant had to file his 59(b) motion expired on September 13. If defendant is correct, the time expired on September 15, the very day that defendant filed his motion. Whether the three-day mailing extension in rule 6(e) refers to calendar days (as the plaintiff argues) or to business days (as the defendant maintains) is a question of law, and we consider it de novo. Technical Land, Inc. v. Firemen's Ins. Co., 756 A.2d 439, 443 (D.C.2000)

.

Wallace did not need to address this precise question, because, under the facts before it and consistent with its holding, nothing turned on the distinction.¹¹ However, the reasoning and language of the court in that case leads us to adopt the defendant's position. In Wallace, the issue in essence was whether the ten days provided for in Rule 59(e) and the three-day addition provided for in Rule 6(e) should be combined into a single "period of time" of thirteen days, so that Saturdays, Sundays and legal holidays would be included in the computation. The court held that no such combination should take place. The court chose to follow the rule which "treats the time as two separate periods, here ten days (Rule 59(e)) and three days (Rule 6(e))." 482 A.2d at 808. By separating the time into "two separate periods," the court determined that the ten-day period of Rule 59(e) invoked the provision of Rule 6(a) excluding Saturdays, Sundays, and legal holidays. By the same reasoning, the other "separate period," the three days provided in Rule 6(e)...