Washington v. Government of District of Columbia, 2328.

Decision Date23 June 1959
Docket NumberNo. 2328.,2328.
Citation152 A.2d 191
PartiesCharles Edward WASHINGTON, Appellant, v. GOVERNMENT OF DISTRICT OF COLUMBIA (a Municipal Corporation), Appellee.
CourtD.C. Court of Appeals

Dovey J. Roundtree, Washington, D. C., with whom Julius W. Robertson, Washington, D. C., was on the brief, for appellant.

Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., with whom Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

ROVER, Chief Judge.

This is an appeal from the granting of a summary judgment in favor of the District of Columbia.

In his amended complaint appellant alleges that on November 13, 1956, he was removed from his position as a heavy truck driver in the District government "without proper notice * * * and in violation of rules and regulations governing the employment of District of Columbia employees"; that he was placed in a non-pay status from the date of removal through March 23, 1957 when he was restored to pay status by the Commissioners of the District; that he was entitled to his wages from November 14, 1956, to March 23, 1957, which amount he fixed at $2,000 and for which he asked judgment.

The District first filed a motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted; this motion was denied by Judge Kronheim, whereupon the District filed a motion for summary judgment supported by certified copies of two orders of the Commissioners and affidavits of William A. Xanten, Superintendent, Division of Sanitation (the unit in which appellant was employed) and of Samuel C. Seiler, Personnel Officer of the Department of Sanitary Engineering (the custodian of the personnel file of appellant), the Sanitation Division being a part of the Sanitary Engineering Department. This appeal is prosecuted from an order by Judge Beard granting summary judgment.

Counsel for appellant raises two contentions: (1) that the decision of Judge Kronheim denying the District's motion to dismiss established as the law of the case that there existed a genuine issue of material fact and that accordingly it was error for Judge Beard to entertain and grant the motion for summary judgment; and (2) that Judge Beard erred in finding that there was no genuine issue of material fact and that the District was entitled to judgment as a matter of law.

As we understand the contention of counsel for appellant in reference to the first point, it is that while the District's motion was entitled a motion to dismiss, in view of the fact that Judge Kronheim before ruling considered documents outside the complaint, under the provisions of Rule 12(b)1 of the trial court he was required to and did treat it as a motion for summary judgment and dispose of it in accordance with the provisions of Rule 56(c).2

We have held that an order denying a motion to dismiss or for summary judgment is an interlocutory and not a final order and that a final judgment is required to sustain the application of the law of the case rule.3

We do not understand that counsel for appellant contends that if the District's first motion is to be regarded simply as a motion to dismiss Judge Kronheim's order denying it established the law of the case, but rather that in view of the matters outside the complaint allegedly considered at the hearing on that motion it was treated as one for summary judgment, and for that reason Judge Beard could not as a matter of law consider and grant the motion for summary judgment subsequently filed by the District because Judge Kronheim's decision constituted the law of the case.

In view of our determination, for the reasons hereafter discussed, that the first motion was treated merely as one to dismiss and not for summary judgment and that accordingly under settled law the decision denying it did not constitute the law of the case we are not required to decide whether our ruling would be different if we were confronted with an order denying a summary judgment.

Rules 12(b) and 56(c) of the trial court are counterparts of the same rules of the Federal Rules of Civil Procedure, 28 U.S. C.A. Our United States Court of Appeals in Sardo v. McGrath, 90 U.S.App.D.C. 195, 196 F.2d 20, 22 in discussing the interrelationship of the same two rules said that whether documents "* * * can qualify as `matters presented' within 12(b) depends, in our view, upon whether it is the sort of material contemplated by Rule 56. The latter is the definitive rule concerning summary judgment; Rule 12(b) merely provides one means of arriving at that end. It does not enlarge the record on which a summary judgment may be granted under Rule 56. Rule 56(c) says that summary judgment shall be granted `if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Thus, the extra-pleading matters presented must be either `depositions,' `admissions' or `affidavits.' All three possess certain characteristics which make them fitting instruments for cutting through a possible maze of false, illusory or collateral issues raised by loosely-drawn pleadings. * * *"

Counsel for appellant attempt to bring their case within the purview of Rules 12(b) and 56(c) when they state on page 4 of their brief: "Virtually the same matter the same cases and authorities and affidavits containing the precise averments were presented to the Court by pleadings and in arguments at the hearing upon which both the motion to dismiss and the motion for summary judgment were based. It follows therefore, that the question relative to issues of fact and a claim for adjudication had been fully established by the Court's ruling of August 29, 1958, when appellee's motion to dismiss was denied."

While it is true that the record could be more precise, we find in it no evidence that Judge Kronheim had before him any of the type of "extra-pleading matters" discussed in Sardo. It is true that some discussion was had concerning a document called "District Personnel Manual, Transmittal Sheet No. 5" and it probably received consideration; just what the contents of this document are we do not know as it was not made a part of the record. Reference was also made at the hearing to certain rules and regulations, allegedly promulgated by the Sanitation Department, setting forth the procedures to be followed in discharging employees and which procedures allegedly were not followed when appellant was discharged. This document was made a part of the record by the Corporation Counsel when he attached it as an exhibit to his motion for summary judgment. Even if it had been actually promulgated it is dated March 1, 1957, and accordingly was not in existence on November 14, 1956, the date of appellant's removal. The affidavits appellant's counsel contend were before Judge Kronheim obviously are those of Xanten and Seiler heretofore referred to; these documents were attached as exhibits to the motion for summary judgment and were dated September 8, 1958; the hearing on the motion to dismiss was concluded on August 29, 1958. The only other document we find in the record is one in the form of an affidavit signed by appellant; it is dated the — day of August 1958 and is not sworn to. Again, we find in the record a suggestion by the Corporation Counsel during the argument on the motion to dismiss that certain documents be added to the record so that the matter could be settled on the basis of a summary judgment. The discussion ended with this colloquy:

"Mr. Hofflund: Well, are you willing to proceed right here and now with the hearing on a motion for summary judgment?

"Mrs. Roundtree: I am not ready to proceed."

The court thereupon made the following entry:

"Defendant's Motion to dismiss overruled. Defendant granted 10 days within which to file an Answer."

It is clear that Judge Kronheim treated the motion as one to dismiss the complaint; his denial of it was not a final order and his decision did not prevent Judge Beard from independently ruling on the merits of the questions raised by the motion for summary judgment.

Coming to the merits of the summary judgment motion, as stated earlier in this opinion, appellant's case was based on the proposition that he was removed "without proper notice * * * and in violation of the rules and regulations governing" District employees and that accordingly he was entitled to wages for the period he was in a...

To continue reading

Request your trial
7 cases
  • Kumar v. Dist. of D.C. Water & Sewer Auth.
    • United States
    • D.C. Court of Appeals
    • 7 Julio 2011
    ...Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (1981 & Supp.2000)); Washington v. Government of D.C., 152 A.2d 191, 192 (D.C.App.1959) (“We have held that an order denying a motion to dismiss or for summary judgment is an interlocutory and not a fina......
  • Turner, v. American Motors Gen. Corp.
    • United States
    • D.C. Court of Appeals
    • 16 Octubre 1978
    ...A.2d 647 (1971); Early Settlers Insurance Co. v. Schweid, D.C.App., 221 A.2d 920 (1966); see Washington v. Government of the District of Columbia, D.C.Mun.App., 152 A.2d 191, 192 n. 2 (1959). In the instant case, we conclude that the various pleadings, the interrogatories and answers theret......
  • United States v. Davis, 6878.
    • United States
    • D.C. Court of Appeals
    • 10 Enero 1975
    ...of the "law of the case" rule. See Wilburn v. Wilburn, D.C.App., 192 A. 2d 797, 798 n. 1 (1963); Washington v. District of Columbia, D.C.Mun.App., 152 A.2d 191, 192 (1959). In District of Columbia v. Faison, D.C. App., 278 A.2d 688 (1971), the complaining witness in a paternity action testi......
  • Nunnally v. Graham, Nos. 09–CV–505
    • United States
    • D.C. Court of Appeals
    • 21 Noviembre 2012
    ...required to sustain the application of the law of the case rule.” Kumar, supra, 25 A.3d at 14 (citing Washington v. Government of District of Columbia, 152 A.2d 191, 192 (D.C.App.1959)) (internal quotation marks omitted). 7. The preliminary instruction read as follows: “[T]he defendant's th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT