Puckrein v. Jenkins
Decision Date | 29 September 2005 |
Docket Number | No. 02-CV-217.,02-CV-217. |
Citation | 884 A.2d 46 |
Parties | Gary PUCKREIN, et al., Appellants, v. Timothy L. JENKINS, Appellee. |
Court | D.C. Court of Appeals |
James E. McCollum, Jr., College Park, MD, for appellants.
Theodore R. Banks, III, Washington, DC, for appellees.
Before WAGNER,1 RUIZ and GLICKMAN, Associate Judges.
Appellants2 appeal from two orders of the trial court. The first order granted the motion of appellee, Timothy L. Jenkins, under Super. Ct. Civ. R. 60(b) (2001), for reinstatement of a complaint in this case that had been dismissed pursuant to a Consent Judgment. The second order denied appellants' motion for reconsideration of that ruling. We reverse and remand with instructions to vacate the order reinstating the complaint.
The Consent Judgment also provides that the parties mutually agree that "the enforcement of any further proceeding associated with this Consent Judgment shall remain with Judge Susan R. Winfield" during her tenure on the Superior Court.
The parties do not dispute that the first $100,000 payment was made as required. Upon appellants' default in payments thereafter, the trial court (Judge Winfield) granted Jenkins' Motion to Enforce a Confidential Consent Judgment and authorized him to proceed under Super. Ct. Civ. R. 69 (2000) to enforce the Consent Judgment in the amount of $225,605.00 plus interest and reasonable costs of collection until fully discharged.3 This amount was in error, and appellants filed a motion for reconsideration. By order docketed on January 22, 2001, the trial court granted appellants' motion for reconsideration, or alternatively to alter and amend the judgment by reducing the judgment "by all payments made heretofore."
On July 31, 2001, Jenkins filed a second case (CA-01-5721) against appellants alleging civil conspiracy, breach of contract and tortious interference with contracts. The complaint also alleged that all defendants had committed subsequent acts of conspiracy, fraud and deception by having signed in bad faith the Consent Judgment in the first case and having failed to make the payments required under the judgment or to comply with the tax indemnification provision. The trial court (Judge William M. Jackson), concluding that the parties were seeking relief for claims identical to those sought in the first case, dismissed the second case. In recognition of the provision in the Consent Judgment for retention of jurisdiction by Judge Winfield, Judge Jackson directed the parties to seek resolution of these claims before Judge Winfield.4 Jenkins also filed a motion to reinstate the complaint in the second case, which Judge Jackson denied. Jenkins did not appeal from the dismissal of the second case or from the denial of his motion to reinstate the complaint in that case.
Jenkins then filed in the first case, pursuant to Super. Ct. Civ. R. 60(b), a motion to reinstate the complaint that had been dismissed in the second case. In the memorandum of points and authorities filed in support of the motion, Jenkins asserted that the new action was "separate and distinct" from claims settled by the Consent Judgment in the first case and outlined his reasons for that assertion.5 Jenkins also stated that the motion was based on his discovery on August 14, 1998, of "new evidence" of the appellants' acts of fraud and conspiracy, which he alleged could not have been discovered previously because of appellants' acts of concealment. He also alleged that the appellants committed "an astonishing new act of fraud" on September 8, 2000, when they demanded arbitration. He alleged further that the appellants had committed acts of "conspiracy, fraud and deception" by signing the September 12, 2000, Consent Judgment in bad faith. Finally, Jenkins argued that the complaints were not identical, and stated that "[t]he new complaint ... alleges causes of action related to [appellants'] willful and wrongful breach of the above-cited Consent Judgment." The certificate of service on the motion to reinstate the complaint indicates that counsel for Jenkins mailed it to appellants' attorney by first class mail on January 4, 2002.
In the first case, the trial court (Judge Winfield) entered an order on January 8, 2002, resolving the motion, and amended it on January 11, 2002. The amended order was docketed on January 15, 2002. The amended order granted Jenkins' motion to reinstate the complaint that had been filed in the second case under the case and caption of the first case. The order also certified the case to Judge Mary Ellen Abrecht who had assumed responsibility for the calendar to which the second case was assigned.6 On January 22, 2002, appellants filed a motion for reconsideration, which is docketed in the first case, listing both Judge Abrecht and Judge Winfield on the order. By order docketed on February 12, 2002, Judge Abrecht denied the motion for reconsideration in the first case and listed the second case as a "related case." The cases were never consolidated, however. Appellants timely noted the present appeal from the order effectively setting aside the final judgment and reinstating the complaint entered in the first case by Judge Winfield, and the order entered by Judge Abrecht, denying appellants' motion for reconsideration of Judge Winfield's order.7
Appellants argue that the trial court erred in granting Jenkins' motion to reinstate the complaint without affording them an opportunity to respond. They contend that while the certificate of service for the motion shows that Jenkins did not mail it until January 4, 2002, the trial court ruled upon the motion three days later, before the expiration of the time provided in the rules for a response. Jenkins claims that a certified copy of the Motion to Reinstate Complaint was mailed to appellants' counsel on November 6, 2001, and therefore, appellants were afforded an opportunity to respond. Jenkins' factual assertion is belied by the record which shows that his motion, filed on January 4, 2002, bears a certificate of service signed by his counsel showing mailing to appellants' counsel on that same date.
In a civil proceeding, by rule, an opposing party has ten days within which to file an opposition to a motion. Super. Ct. Civ. R. 12-I(e) (2003) ( ). This court has held that the failure to afford a party an opportunity to respond to motions as provided for by the court rules denies that party due process. Grier v. Rowland, 409 A.2d 205, 207 (D.C.1979) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)) (other citations omitted) (motion to reinstate where violations of court rules denied appellants an opportunity to oppose a motion to compel and comply with an order of court, "thus denying appellants due process of law.") denial of a . In Grier, this court stated that the trial court commits "fundamental error," when it provides no opportunity for a party to oppose a motion. Id. The failure to provide notice as required by the court's rules deprives the opposing side of an opportunity to raise objections, and the court's action on the motion or petition is erroneous as a matter of law. See Evans v. Evans, 441 A.2d 979, 980 (D.C.1982)
(. )
Here, the certificate of service shows that the motion was sent by mail to appellants on January 4, 2002. The trial court (Judge Winfield) ruled on the motion first on January 8, 2002, and amended its order January 15, 2002. Both actions were taken by the court before the expiration of the ten days provided by Rule 12-I(e) for appellants to respond. The...
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