Snow v. Capitol Terrace, Inc.

• Decision Date: 09 January 1992
• Docket Number: 90-569.,No. 90-539,90-539
• Citation: 602 A.2d 121
• Parties: Denise SNOW and Lee Snow, Appellants, v. CAPITOL TERRACE, INC., et al., Appellees. CAPITOL TERRACE, INC., et al., Appellants, v. Denise SNOW and Lee Snow, Appellees.
• Court: D.C. Court of Appeals

602 A.2d 121

Denise SNOW and Lee Snow, Appellants, v. CAPITOL TERRACE, INC., et al., Appellees.

CAPITOL TERRACE, INC., et al., Appellants, v. Denise SNOW and Lee Snow, Appellees.

Nos. 90-539, 90-569.

District of Columbia Court of Appeals.

Argued November 5, 1991.

Decided January 9, 1992.

Robert L. Bell, with whom Dalton J. Howard was on the brief, for appellants/cross-appellees.

Solomon Kendrick, pro se.

Solomon Kendrick, for appellees/cross appellants.

Before ROGERS, Chief Judge, and STEADMAN and SCHWELB, Associate Judges.

ROGERS, Chief Judge:

Appellant/cross-appellee Denise Snow sued her landlord, appellees/cross appellants Capitol Terrace, Inc., and Solomon Kendrick, for damages arising from injuries suffered when a section of ceiling fell on Mrs. Snow as she sat in the bedroom of her apartment.¹ On appeal, Mrs. Snow maintains that the trial judge erred by directing a verdict on the issue of Mr. Kendrick's individual liability for her injuries, and that the judge abused her discretion by refusing to submit the claim for punitive damages to the jury. In a cross appeal, appellees claim that the judge erred by denying Capitol Terrace's motions for a directed verdict on the issues of negligence, contributory negligence and permanency of Mrs. Snow's injuries, and for judgment notwithstanding the verdict or remititur; they also contend that the trial judge erred by instructing the jury on conflict between experts' opinions when there was none. Appellees further claim that this court is without jurisdiction to hear Mrs. Snow's appeal because it was untimely filed.

We hold that the appeal was timely since the trial judge found excusable neglect, D.C.App.R. 4(a)(4), and we find no clear abuse of discretion by the trial judge. We also hold that the trial judge erred by granting a directed verdict on the issue of Mr. Kendrick's individual liability, and we therefore remand the case for trial on his individual liability. We find no error by the trial judge regarding the punitive damages claim. Finally, we dismiss the cross appeal as untimely.

I

Denise and Lee Snow and their children lived in an apartment at 4079 Minnesota Avenue, N.E., in a building owned by Capitol Terrace, Inc. Mrs. Snow testified that Solomon Kendrick was her landlord and a corporate officer of Capitol Terrace, Inc.,² and that she had an oral lease with them since 1978. In 1982, after the Snows complained to Mr. Kendrick on several occasions that the ceiling of their apartment was in disrepair, Mr. Kendrick entered the apartment and pulled down approximately one half of the damaged ceiling in the bedroom. Thereafter, the Snows' repeated requests to agents of Capitol Terrace, Inc. to repair the ceiling came to naught. On August 19, 1984, while Mrs. Snow was pregnant, the remaining portion of ceiling fell on Mrs. Snow and injured her, causing a series of continuing symptoms as a result. At the close of the plaintiffs' case, the trial judge granted Mr. Kendrick's motion for a directed verdict on the issue of his personal liability, ruling that Mrs. Snow had failed to show that he could be held individually liable for her injuries. The jury thereafter returned a verdict in the amount of $50,000.00 against Capitol Terrace, Inc. When Mrs. Snow attempted to execute the judgment, however, she discovered that title to the apartment complex in which the Snows lived had been transferred from Capitol Terrace, Inc. to Mr. Kendrick and his wife, and that there were no funds in the corporation's bank account to pay the judgment.

II

We address first the challenge to the jurisdiction of the court to hear Mrs. Snow's appeal. Mr. Kendrick maintains that the trial judge abused her discretion by granting Mrs. Snows' motion for leave to extend the time in which to file a notice of appeal, D.C.App.R. 4(a)(4), because the circumstances relied on by Mrs. Snow affected only the execution on the judgment and her disappointed expectations about the corporation's assets. Thus, he contends, the appeal is untimely.

Under D.C.App.R. 4(a)(1) an appeal must be filed "within thirty days after entry of the judgment or order from which the appeal is taken." See In the Matter of C.I.T. & C.M.T., 369 A.2d 171, 172-73 (D.C. 1977). The time to appeal is tolled, however, by the filing of a motion:

For judgment notwithstanding the verdict; to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; to vacate, alter, or amend the order or judgment; for new trial; for reconsideration if authorized by the rules of the Superior Court; and any other motion seeking relief in the nature of the foregoing.

D.C.App.R. 4(a)(2). Furthermore, a late appeal is permitted for excusable neglect. D.C.App.R. 4(a)(4) provides:

Upon a showing of excusable neglect, the Superior Court may extend the time for filing the notice of appeal by any party for a period not to exceed thirty days from the expiration of time otherwise prescribed by paragraph (1). Such an extension may be granted before or after the time otherwise prescribed by paragraph (1) has expired; but, if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.

This court will not reverse a finding of excusable neglect absent a "clear abuse of discretion." Trezevant v. Trezevant, 403 A.2d 1134, 1137 (D.C.1979) (citing Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 311, 42 L.Ed.2d 270 (1974)).³

The judgment for the Snows was filed on October 19, 1989, and docketed on October 25, 1989. On October 30, 1989, Capitol Terrace, Inc. filed a motion for judgment notwithstanding the verdict or remititur. Following receipt of an opposition and a supplemental memorandum in support of the motion and a further opposition, the trial judge denied the motion on January 31, 1990 (docketed February 2, 1990).

On February 16, 1990, Mrs. Snow filed proof of a recording of a judgment, and oral examination followed on March 22, 1990. Mrs. Snow also filed, the following day, a writ of attachment for other than wages to the Manager of First American Bank, and another writ on March 30, 1990, following a response of `no funds' by First American Bank, which was filed March 28, 1990.

On April 3, 1990, Mrs. Snow filed a motion for leave to extend the time in which to file a notice of appeal on the grounds of "the extraordinary factual situation and `unique circumstances.'" A notice of appeal was attached to the motion. Capitol Terrace, Inc. filed an opposition. The trial judge granted the motion on April 27, 1990, giving Mrs. Snow until May 15, 1990, to note an appeal. She did so on May 9, 1990.

Thus, it is clear that Mrs. Snow filed her motion for additional time to file an appeal long after the judgment had been entered. The time to appeal was tolled, however, by Capitol Terrace's motion for judgment notwithstanding the verdict which was not acted on by the trial judge until January 31, 1990. Therefore, since the order of denial was docketed on February 2, 1990, Mrs. Snow had until March 12, 1990, to file her appeal. D.C.App.R. 4(a)(2) & (3).⁴ The question, thus, is whether the trial judge clearly abused her discretion by granting the motion to extend the time to appeal to May 15, 1990.⁵

"Excusable neglect" under Rule 4(a)(4) has been flexibly, but strictly, interpreted to apply to "unique or extraordinary" circumstances, as opposed to "run of the mill" situations where counsel has failed to receive a final order from a court clerk or co-counsel have failed to communicate. See Pryor v. Pryor, 343 A.2d 321, 322-23 (D.C.1975) (per curiam) (citing Files v. City of Rockford, 440 F.2d 811, 814-15 (7th Cir.1971) (discussing "unique circumstances," based on estoppel theory) and Gooch v. Skelly Oil Co., 493 F.2d at 369 ("common sense meaning of the two simple words excusable neglect are to be applied to the facts which are developed")); id. at 369-70 (cases discussed, citing FED. R.CIV.P. 77(d)); Davis v. Page, 618 F.2d 374, 378 (5th Cir.1980), reh'g 640 F.2d 599, (5th Cir.1981), judgment vacated on other grounds 458 U.S. 1118, 102 S.Ct. 3504, 73 L.Ed.2d 1380, cert. denied, 464 U.S. 1052, 104 S.Ct. 735, 79 L.Ed.2d 194 (1984). See also Insurance Co. of North America v. Bay, 784 F.2d 869 (8th Cir.1986) (unique circumstances may justify untimely appeal). Mrs. Snow contends that the fact that she, the trial judge, and the jury were led to believe during the trial and afterwards that the apartment complex was owned by Capitol Terrace, Inc., constitutes a unique circumstance sufficient to show excusable neglect.

The trial judge granted Mr. Kendrick's motion for a directed verdict on the issue of his personal liability based on the absence of evidence that he owned the apartment complex. Appellees stated before and during the trial that Capitol Terrace, Inc. had owned the property since June, 1982. In fact, however, title to the apartment complex had been transferred from Capitol Terrace, Inc. to Mr. Kendrick and his wife on October 18, 1989, as evidenced by a deed dated October 18, 1989, that was executed "in strict conformity with a resolution of the Board of Directors... passed at a duly called meeting ... the 17th of October, 1989." In other words, the apartment complex was transferred to Mr. and Mrs. Kendrick immediately after the trial judge had granted the directed verdict on October 17, 1989 Tr. 73, which had absolved Mr. Kendrick of individual liability for any injuries suffered by the Snows. The Snows first learned of the conveyance in March 1990. At that time, on March 26, 1990, appellees' counsel stated that the property remained "accessible to the extent that there are any assets directly for the purposes of collection" on the judgment entered against the corporation, and further that "local law would establish that any transfer would be void as...