Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Motions Judge)
Before Wagner, Chief Judge, and Schwelb and Farrell, Associate Judges.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge: Nathaniel Sims, a defendant and third-party plaintiff in this civil action, appeals from an order of the trial court entered in response to a motion filed by the third-party defendants, Minuteman Press International, Inc. (MPI), Walter Hare, and Robert Hare (the Hares). In their motion, the third-party defendants contended that the case had been settled and dismissed by the parties by praecipe; therefore, they sought enforcement of the purported settlement and dismissal of the case with prejudice. The trial court denied the motion as unnecessary, having determined that the case had been dismissed voluntarily with prejudice pursuant to the terms of the praecipe. Appellant argues that the trial court erred in so concluding because the parties to the main complaint had filed an amended praecipe which did not dispose of the third-party complaint. For jurisdictional purposes, see D.C. Code § 11-721 (a)(1) (1989), we treat the trial court's order as a dismissal. We reverse with instructions to the trial court to vacate its order and to proceed on the third-party complaint. *fn1
Westminster Investing Corporation (Westminster) filed a complaint against Multiplex Enterprises, Inc. (Multiplex) and Nathaniel Sims for breach of a lease and guaranty of lease. Multiplex and Sims filed an answer and third-party complaint against MPI and the Hares. The case was scheduled for trial on April 20, 1993. Prior to trial, Donald McClure, Sr., the attorney for Sims and Multiplex, made arrangements for Sims to pursue settlement Discussions with the attorney for Westminster, since McClure expected to be out of the city. Counsel for the third-party defendants did not participate in the settlement Discussions, and he informed plaintiff's counsel that his clients would make no contribution toward any settlement. *fn2 Counsel for Westminster and counsel for Multiplex and Sims executed and filed with the court a praecipe which stated that Westminster, Multiplex, Sims, and the third-party defendants had reached a "settlement in principle of this litigation. . . .", The signatories to the praecipe also requested the following:
dismissal this action without prejudice with the understanding that counsel shall file a detailed praecipe as to all claims and parties within the next thirty (30) days, subject to a Motion to Reinstate should the settlement not be consummated as agreed or for other "good cause" shown, and if upon the expiration of thirty (30) days from the docketing of the Court's Order of dismissal without prejudice no Motion to Reinstate has been filed, the case shall stand dismissed with prejudice without further Order of the Court.
Counsel for the third-party defendants, MPI and the Hares, did not sign the praecipe.
On May 20, 1993, Westminster, Multiplex, and Appellant Sims filed an amended praecipe to correct the previously filed praecipe. Again, MPI and the Hares did not sign the praecipe. After reciting the terms of the settlement between Westminster, Multiplex, and appellant Sims, the parties explained their intentional omission of the third-party defendants from the settlement praecipe and their reasons for amending the praecipe as follows:
Plaintiff's Attorney drafted the Praecipe, which included Third Party Defendants Minuteman Press, Robert Hare and Walter Hare. Third Party Defendants did not participate in the negotiating and settlement process between Plaintiff's Attorney, Plaintiff, Defendants, and Defendants' Attorney. Therefore, Defendants' intent was only to settle with the Plaintiff. This amended Praecipe satisfies that objective only.
The Defendants' Third Party Complaint against Third Party Defendants remains unresolved in this action.
Thereafter, MPI and the Hares filed a "Motion to Enforce Dismissal with Prejudice, Settlement and Sanctions." They contended that although they did not agree to make any contribution toward settlement, it was their understanding that the settlement would include dismissal of the entire action, including the third-party complaint. Multiplex and Sims filed a written opposition to the motion, contending that since there was never any agreement between them and the third-party defendants, there was no settlement agreement between these parties to enforce. The trial court denied the motion, concluding that the case was dismissed with prejudice by the terms of the first praecipe, since no motion to reinstate had been filed.
Appellant argues that the trial court erred in determining that the case had been dismissed under the circumstances. Appellant contends that the amended praecipe, which was timely filed, superseded the earlier praecipe, and that the third-party complaint remained pending. We agree.
A plaintiff may dismiss an action pursuant to Super. Ct. Civ. R. 41 (a)(1)(ii) "by filing a stipulation of dismissal signed by all parties who have appeared in the action." See Boks v. Charles E. Smith Management, Inc., 453 A.2d 113, 116 (D.C. 1982). *fn3 The original praecipe was not signed by all parties as required by the rule. The parties who sought to avail themselves of its terms, MPI and the Hares, did not sign personally or through counsel. Thus, the action could not be dismissed at the plaintiff's instance except by order of the court pursuant to Super. Ct. Civ. R. 41 (a)(1)(ii). *fn4 See District of Columbia Rent-A-Car Co. v. Cochran, 463 A.2d 696, 698 (D.C. 1983) (action on motion to dismiss under Rule 41 (a)(1)(ii) within trial court's discretion). No Rule 41 (a)(1)(ii) motion was ...