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June 19, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Zinora Mitchell-Rankin, Trial Judge.

Steadman and Farrell, Associate Judges, and Rogers, Chief Judge.

The opinion of the court was delivered by: Steadman

In this lawsuit over a traffic accident, defendant Enid Brown's motion to quash service of process and to dismiss was granted by the trial court without prejudice, *fn1 and the order docketed on June 7, 1990. Over two and one-half months later, on August 23, 1990, the plaintiffs filed a "motion for reconsideration" of the order, which was denied. An appeal from that denial is now before us. *fn2

In the motion for reconsideration, plaintiffs set forth three grounds for granting the motion: 1) the affidavit of the process server stated that the recipient of the summons admitted that she lived with the defendant; 2) defendant had participated in pretrial proceedings by answering and propounding interrogatories, and thus had waived objection to the sufficiency of process; 3) dismissal of the complaint was improper in any event. However, the defendant's motion to quash service had attached an affidavit by the recipient of the summons stating that she did not reside at the defendant's premises and had so advised the process server. In addition, the defendant's answer had stated as her first defense: "Defendant denies proper service of valid process."

The Superior Court civil rules do not deal with a "motion for reconsideration" as such. Rather, any motion so labelled must more precisely be categorized under the specific subsections of Rule 59 ("New trials; amendment of judgments") and Rule 60 ("Relief from judgment or order"). Since any motions under Rule 59 must be filed within ten days, plaintiffs' motion for reconsideration here could only be considered, if at all, *fn3 as one made under Rule 60. See Wallace, note 3 (supra) , 482 A.2d at 805.

Clearly, the order quashing the service of process and dismissing the complaint was an appealable "final order," D.C. Code § 11-721 (a)(1) (1989); Montgomery Ward & Co. v. Smith, 412 A.2d 728, 729 (D.C. 1980), from which no timely appeal was taken. D.C. App. R. 4 (a) (appeal to be taken within thirty days of entry of judgment or order appealed from). It is a long-standing and basic principle that "a motion under Rule 60 (b) may not be utilized as a substitute for an appeal." Joseph v. Parekh, 351 A.2d 204, 205 (D.C. 1976); 7 J. MOORE, MOORE'S FEDERAL PRACTICE para. 60.18[8], at 60-140 & n.7 (2d ed. 1991) (citing numerous cases). Consequently, in reviewing a denial by the trial court of a motion under Rule 60(b), we do not review or determine the merits of the underlying action but only decide whether there has been an abuse of discretion by the trial court. Id. *fn4

Here, appellants filed their motion after the time within which to appeal had expired. *fn5 Appellants in their motion to reconsider presented no new or additional circumstances that were not before the trial court at the time of ruling on the motion to quash and dismiss. *fn6 They presented no grounds why the ruling on the original motion involved substantial inJustice or even any prejudice *fn7 to appellants other than the time and inconvenience in having to refile the complaint, effect proper service, and perhaps propound the interrogatories anew, nor do they to us now on appeal. Cf. Super. Ct. Civ. R. 61; Montgomery Ward & Co., supra, 412 A.2d 728 (where no harm shown, court dismisses appeal from dismissal of case without prejudice). *fn8 Every argument made by appellants could have been made on a direct appeal or a timely motion under Rule 59. *fn9 Under the circumstances here, we perceive no basis to overturn the trial court's decision to deny the motion to reconsider.


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