Lee v. Habib

Decision Date22 January 1970
Docket NumberNo. 22203,22204.,22203
Citation424 F.2d 891
PartiesOlen (Allen) LEE, Appellant, v. Nathan HABIB, Appellee. Olen LEE, Appellant, v. Nathan HABIB, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mrs. Florence Wagman Roisman, Washington, D. C., with whom Mrs. Patricia M. Wald, Washington, D. C., was on the brief, for appellant.

Mr. Herman Miller, Washington, D. C., for appellee.

Mr. John D. Hawke, Jr., Washington, D. C., filed a brief on behalf of the American Civil Liberties Union Fund, as amicus curiae.

Before WRIGHT, LEVENTHAL and ROBINSON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Appellant Olen Lee brings these appeals from two decisions of the District of Columbia Court of Appeals involving the power of that court to order a free transcript for the use of an indigent civil litigant on appeal. We hold that both the DCCA, despite its own assertions to the contrary, and the trial judges of the District of Columbia Court of General Sessions do have that power. We remand to the trial court to determine in the first instance whether a transcript should be furnished for appeal in this case.


On March 23, 1967, Nathan Habib leased the premises located at 428 11th Street, S.E., Washington, D. C., to appellant Olen Lee. Subsequently Lee became delinquent in paying the rent. Habib brought suit for possession1 of the premises on July 10, 1967, in the Court of General Sessions. Lee did not appear in court, and the Court of General Sessions entered judgment by default for plaintiff Habib on September 27, 1967. When notified by Habib that he had to quit the premises, Lee obtained counsel, filed an answer to Habib's complaint, and filed a motion for relief from the default judgment.2 In an affidavit filed in support of his motion for relief from the default judgment, Lee argued that his failure to appear in court was excusable and that he had a defense to the action which, if accepted, would bar all or part of Habib's claims. According to his affidavit, Lee did not appear in court because he had given Habib ten dollars on account just before the scheduled date of the trial. Lee further alleged that Habib had told him there would be no need to appear in court — the payment on account was enough to satisfy Habib.

Judge Malloy of the Court of General Sessions held an extended hearing on October 4 concerning Lee's motion for relief from the default judgment. At that hearing Habib, Lee and Lee's wife apparently testified in some detail. Judge Malloy accepted Habib's version of the facts and denied the motion for relief. From that decision Lee filed a notice of appeal to the DCCA. That court granted appellant's motion to proceed in forma pauperis, without prepayment of fees, and also granted his motion to stay the eviction pending the outcome of the appeal on condition that Lee make further rent payments to Habib as they became due. The rest of the procedural background is somewhat complicated.

The rules of the DCCA spell out a specific timetable for filing various pleadings and papers. According to Rule 27, an appellant must file a notice of appeal not more than ten days after the entry of the judgment or order appealed from.3 That time limit, according to the rule, cannot be waived.4 The trial judge denied Lee's motion to set aside the default judgment on October 4, 1967. The notice of appeal to the DCCA was filed on October 6, 1967, clearly within the prescribed time limits.

Not more than five days after the notice of appeal is filed, the appellant must file a "designation of record and statement of errors."5 This document should have been filed October 12, but Lee did not file it until October 19, one week later. Ten days after the notice of appeal is filed, the appellant must file either a statement of proceedings, or a transcript, or an agreed statement on appeal.6 Appellant never did file a transcript of the proceedings below. Instead, on October 26, 1967, ten days after the transcript or an agreed substitute was due, Lee filed a motion with Judge Malloy of the Court of General Sessions asking the court to provide a free transcript because effective appeal would be impossible without the transcript, and because Lee could not afford to purchase one himself. The trial judge reserved decision on the matter.

Thus, on October 30, the notice of appeal had been properly filed in the DCCA. Lee had filed the designation of record and had moved for a free transcript, but Judge Malloy had not ruled on the transcript motion. At this point Habib filed with the DCCA a motion asking that court to docket and dismiss Lee's appeal because of appellant's late filings and because no "application was made on or before the timely filing dates for any extension of time." Lee filed a brief in opposition to Habib's motion to dismiss. On November 7, 1967, the DCCA, without opinion, denied Habib's motion to dismiss. Early in December Habib renewed his motion to dismiss, after the stay pending appeal had been dissolved because Lee had failed to meet one of the conditions of that stay. Habib again pointed out to the court that appellant had been late in complying with the rules and had never filed motions to extend the time for filing. One week later, on December 13, the DCCA denied Habib's second motion, without opinion.

In the meantime, the trial judge had taken no action on Lee's motion for a free transcript, which was still pending before him. Finally, on May 6, 1968, he denied the motion. Lee then appealed that denial to the DCCA. His appeal from the denial of the free transcript was dismissed by the DCCA on May 21. Lee then lodged a petition in this court on May 29 for leave to appeal from this action of the DCCA. Meanwhile, on May 20, Habib had filed a third motion with the DCCA asking that court to dismiss Lee's appeal from the refusal of the trial judge to reopen the default judgment. The DCCA granted this motion on May 24, 1968, without any indication of its reasoning. Lee also petitioned this court for leave to appeal this second DCCA order.

This court consolidated Lee's two appeals from actions of the DCCA and granted his petitions for leave to appeal. We then remanded the causes to the DCCA for an explanation of the reasons for dismissing the appeal. On remand the DCCA cited failure to comply with its Rule 27. It also held that it knew of no authority by which it could order a free transcript in this case.

On appeal to this court, after the remand, appellant argues that the DCCA should not have dismissed his appeal for failure to comply with a procedural rule where there is strong merit to the appeal and where no party was prejudiced by the delays in complying with the rule. Appellant further urges this court to hold that courts do have the authority to order a free transcript for an indigent civil litigant on appeal.

Appellee repeats his objections made below and argues that dismissal of the suit for failure to comply with the formalities was perfectly proper. In addition, he argues that this court does not have jurisdiction over the appeal because the petition for leave to appeal in one of the two consolidated causes was filed one day too late in this court. For the reasons noted below, we hold that the appeal was timely filed in this court, and that the DCCA should not have dismissed the appeal. We then reach the transcript issue.


Appellee first argues that appellant's petition to this court for allowance of an appeal was filed too late. As we have already pointed out, two appeals to this court were taken by Lee. It is uncontroverted that the first appeal was properly filed within the ten-day limit.7 The decision of the DCCA denying the motion for a transcript was entered on May 21, 1968. Appellant lodged his petition for review with this court on May 29, less than ten days later.8 Appellee is objecting, however, to the second filing in this case. Three days after the DCCA denied Lee's motion for a transcript, it also dismissed the appeal from the trial court's refusal to reopen the default judgment, and the petition to review this second order was filed one day late in this court.9

The issue raised by the late filing of a second petition in this case has already been before this court. In February 1969 appellee Habib moved to dismiss this appeal because of late filing of a second petition for allowance of an appeal. That motion was denied, without opinion, by a motions panel of this court. We follow the lead of that panel. The two petitions here are inextricably bound together; they involve the same parties and the same controversy. The transcript issue, which was presented to us by the timely petition, was essential to the final determination of the cause. The DCCA subsequently dismissed the appeal on the merits partially because no transcript had been filed. The first appeal had thus presented this court with the transcript issue, an issue essential to the proper determination of the whole cause by the DCCA. The alleged procedural problem presented by appellee stems only from the fact that the court below disposed of the matter in two motions instead of one. Under the circumstances, we see no reason to disturb the conclusion already reached by this court. A one-day-late notice of appeal from a second order in the same cause does not preclude us from reaching the merits of the cause on the basis of the petition already properly before us.


On remand to clarify its decision dismissing the appeals, the DCCA gave the following explanation:

"Respondent\'s motion to dismiss was granted for the reasons that petitioner failed to comply with Rule 27(f) and 27(h) of this court, that petitioner failed to show good cause or to give an adequate explanation for his failure to comply with our Rules, and that petitioner has not once

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