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01/09/92 DENISE SNOW AND LEE SNOW v. CAPITOL

January 9, 1992

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



Appeals from the Superior Court of the District of Columbia

Before Rogers, Chief Judge, and Steadman, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Rogers

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. *fn1 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 remittur; 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., *fn2 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, 42 L. Ed. 2d 270, 95 S. Ct. 311 (1974)). *fn3

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 remittur. Following receipt of an opposition and a supplemental memorandum in support of the motion and a further opposition, ...


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