In re Lewis
| Decision Date | 31 July 2018 |
| Docket Number | s. 17-PR-71,17-PR-72,17-PR-73,17-PR-74,17-PR-75 |
| Citation | 274 A.3d 310 |
| Parties | IN RE Darnell LEWIS, in re Jeffrey Dixon, in re Carol Fletcher, in re James Walmsley, and In re Maurice Mars, Richard Jason Tappan, Appellant. |
| Court | D.C. Court of Appeals |
Jouya Rastegar was on the brief for appellant.
John H. Clarke was on the brief for appellee James Walmsley.
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Acting Solicitor General at the time, and Stacy L. Anderson, Senior Assistant Attorney General, filed a memorandum in lieu of brief for the District of Columbia.
Before Fisher and Thompson, Associate Judges, and Nebeker, Senior Judge.
In these consolidated appeals, appellant Richard Jason Tappan, an attorney, challenges monetary sanctions that the Superior Court imposed upon him sua sponte . We vacate the underlying orders and remand the cases.
Superior Court Administrative Orders 04-06, https://www.dccourts.gov/sites/default/files/2017-03/0406.pdf (last visited Jul. 24, 2018), and 13-15, 141 Daily Wash. L. Rptr. 2066, 2068 (D.C. Super. Ct. Sept. 25, 2013) (collectively, the "Administrative Orders") require legal guardians to certify to enumerated statements when petitioning for compensation. One of the required statements reads as follows: "[I]n cases in which I am a fiduciary, ... I have filed all reports, verifications of notice, accounts and subsequent requirements due as of the date of this petition or request. ..." By requiring guardians to so affirm, the Administrative Orders tacitly preclude them from petitioning for fees when one of the specified documents has come due but remains unfiled.
For a time, meeting this obligation posed a problem for appellant, as he had missed the initial, April 2016 deadline for filing accounts in two of his cases. However, as of June 6, 2016, the judges presiding over those cases had granted his motions for extensions of time, setting a new deadline of July 13. After receiving those favorable orders, and before the new due date arrived, appellant submitted petitions for fees in five cases in which he had served as a guardian for an indigent individual. Rather than using the precise language required by the Administrative Orders, though, appellant affirmed: "[I]n cases in which I am a fiduciary, ... I have filed all reports, verifications of notice, accounts, and subsequent requirements due as of the date of this petition or request, or I have filed a motion to enlarge time to file, or a petition to late file ...." Although, we have italicized the text appellant added, he failed to do so; nor did he otherwise draw attention to his change.
The court noticed appellant's modifications, however. In orders issued in response to each petition, the trial court posited that appellant had attested to "false" statements, expressed concern about his decision to alter the prescribed language, and required him to show cause why he should not face sanctions for his conduct. At the show cause hearing, appellant voluntarily withdrew his petitions, even though the trial court had already dismissed them without prejudice in its show cause orders. Nonetheless, the court issued an order imposing sanctions—and, as it clarified in a subsequent order, did so under Super. Ct. Civ. R. 11. Its penalty was to "prohibit[ ] [appellant] from resubmitting a fee petition ... for the time period covered " in each of the five cases giving rise to these appeals. (Emphasis in original.) Because those petitions collectively sought $21,854.50 in fees, the court's sanction constituted a serious monetary penalty. The court also admonished appellant not to make "further inaccurate or false certifications to the court." After his motions for reconsideration were denied, appellant filed notices of appeal.
Before this court, appellant faces no opposition. The government submitted a memorandum in lieu of a brief declaring that the "matter [is] between [appellant] and the Court."
We "review[ ] for abuse of discretion both a trial court's determination that Rule 11 was violated and the amount of sanctions ordered." Goldschmidt v. Paley Rothman Goldstein Rosenberg & Cooper , 935 A.2d 362, 377 (D.C. 2007) (quoting Cunningham v. Bathon , 719 A.2d 497, 499 (D.C. 1998) ). In applying this standard, "[we] must determine whether the decision maker failed to consider a relevant factor, whether [it] relied upon an improper factor, and whether the reasons given reasonably support the conclusion." Brooks v. United States , 993 A.2d 1090, 1093 (D.C. 2010) () (quoting Johnson v. United States , 398 A.2d 354, 365 (D.C. 1979) ). Additionally, we cannot affirm if the court exercised its discretion "to an extent clearly unreasonable." Johnson , 398 A.2d at 363 (quoting Bringhurst v. Harkins , 122 A. 783, 787 (Del. 1923) ).
Williams v. Bd. of Tr. of Mount Jezreel Baptist Church , 589 A.2d 901, 911-12 (D.C. 1991) (internal quotation marks and citations omitted). Although the first factor does not apply here (the court did not award attorney's fees to an opponent), the remaining ones do and the trial court did not adequately consider them.
Most notably, the trial court failed to assess whether the sanction it imposed exceeded "the minimum amount that will serve to adequately deter the undesirable behavior." Had it done so, it is unlikely it would have imposed the penalties it did—sanctions that barred appellant from seeking compensation for one year's worth of work in four cases, several months’ worth of work in another, and, in total, deprived him of over $20,000 in income. Through these penalties, the court effectively dismissed all five fee petitions with prejudice, yet "[d]ismissal is an extreme sanction which should be granted only sparingly or in extraordinary circumstances," District of Columbia v. Serafin , 617 A.2d 516, 519 (D.C. 1992). It is a particularly questionable sanction here, given that during the show cause hearing, appellant demonstrated an intent to avoid similar conduct by withdrawing the petitions and "promis[ing] to abide by the letter and spirit of the law with regard to the Court's interpretation of the proper certifications."1 The trial court suggested that it inferred a contrary intent by referencing appellant's "represent[ation] that he had intended to use the added language in the certification as a template for all petitions moving forward." However, nothing in the transcripts provided on appeal indicates that appellant made any such representations at all.2 On remand, the court may perhaps determine that these expressions of regret do not obviate the need to impose sanctions for purposes of deterrence. However, the penalty imposed here appears to exceed what is necessary to achieve that goal.
The trial court also neglected to discuss other factors that Williams required it to consider. It failed to weigh the magnitude of the sanction against the severity of the violation; assess whether appellant had a "history" of misconduct; and analyze appellant's ability to forgo over $20,000 in income. Nor did the court expressly analyze whether "malice or bad faith contributed to the violation." In these ways, the court omitted relevant factors from its analysis and the penalty it imposed cannot stand. If, on remand, the court concludes that appellant contravened Rule 11 and that his conduct warrants sanctions, it must consider the amount of the penalty anew, relying on the factors specified in Williams .
The trial court concluded that appellant violated Rule 11 for two reasons, each of which we deem flawed. First, it found that appellant certified that, in each case in which he was a fiduciary, he had "filed all ... accounts ... due as of the date of this petition"—an attestation the court described as "false," because appellant had missed the original deadline for filing accounts in two of his cases. Yet, with one exception, none of appellant's fee petitions contained the certification Judge Christian ascribed to them.3 Instead of affirming that language—which is identical to the text required by the Administrative Orders—appellant attested to having filed all accounts due "or [to having] filed a motion to enlarge time to file, or a petition to late file." This modified statement was accurate. Indeed, Judge Christian even observed that "[p]etitioner did not misrepresent the fact that he had filed a motion for an extension of time [for filing the accounts] when he made his certification."
Furthermore, it appears that appellant's certifications would have been accurate even if he had used the language required by the Administrative Orders. As discussed previously, before petitioning for fees, appellant moved the court to allow him more time to file the tardy accounts and the court (acting through judges other than Judge Christian) granted his motions, postponing the deadlines to a date after he submitted his fee requests. Thus, at the time appellant filed his petitions, the two accounts were not "due," making the fact that he had...
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