Appeal from the Superior Court of the District of Columbia. (Hon. Harriett R. Taylor, Trial Judge).
Before Terry, Steadman, and King,* Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: The trial court dismissed with prejudice appellant's complaint against the District of Columbia and ordered appellant and her attorney to pay the District's counsel fees. The court found that appellant and her attorney had violated Super. Ct. Civ. R. 11 by giving false and incomplete answers to certain interrogatories. The court also found that the attorney had violated Rule 11 because she had filed, on behalf of appellant, a claim for economic damages under a former provision of the District of Columbia Code even though she "knew or could have learned by reasonable inquiry" that such an award (so the trial court thought) was not permissible under that law. We hold, first of all, that we cannot consider any claims of error affecting only the attorney because the attorney did not note an appeal in her own name. We further hold that appellant violated Super. Ct. Civ. R. 37 by submitting incomplete interrogatory responses, but that the filing of the complaint did not violate Rule 11. Since the trial court's dismissal of appellant's complaint was based in part on its Conclusion that Rule 11 had been violated, we reverse that dismissal, along with other related portions of the court's order, and remand the case for further proceedings.
Appellant was involved in an automobile accident in April 1986. She sued the District of Columbia in April 1987, alleging that its employees were repairing the surface of an entrance ramp to Interstate Route 295 without having placed proper warning signs, and that their negligence caused her car to collide with the car ahead of her on the highway. The negligence of the District's employees, she claimed, was the proximate cause of injuries to her head, shoulders, neck, and back.
The District filed an answer and served appellant with interrogatories that included a request for "all details" related to any claim for "compensation for any injury for which you seek damages herein from any source other than the [District of Columbia]," including the amounts paid to you, if any." In responding to the interrogatories, appellant did not disclose that she had filed a claim with her insurance company and had received payments for lost wages and medical expenses. It was not until the third day of trial, during a Discussion of proposed jury instructions, that appellant's counsel happened to mention during a bench conference that her client had received insurance payments. Surprised by this revelation, counsel for the District asked the court to dismiss appellant's complaint or, in the alternative, to declare a mistrial. The court, after an overnight recess, declared a mistrial on the ground that appellant's responses to certain interrogatories had prejudiced the District by preventing it from conducting complete pre-trial discovery.
Two weeks later the District filed a motion under Rules 11 and 37 to dismiss the case with prejudice, coupled with a request for attorney's fees. The trial Judge issued an order on May 31, 1989, finding that appellant and her attorney had committed several violations of Rule 11. As sanctions for those violations, the Judge ordered appellant and her attorney each to pay $150 to the District as reimbursement for its attorney's fees in connection with the motion to dismiss. The Judge also ruled that the motion to dismiss would be granted unless both appellant and her attorney notified the court within ten days that they would pay the District an additional $1,070 and $2,130, respectively, by June 30 to reimburse the District for its pre-trial and trial attorney's fees.
The payment deadline was later extended from June 30 to August 4, but appellant and her attorney did not make the payments. Instead, on August 4 appellant filed a motion requesting that the Judge's order be stayed pending appeal. As a basis for the stay, appellant asserted that she was unable to work as a result of her injuries and that the sanctions "will in all probability be overturned on appeal." This motion apparently got lost in the Clerk's Office and did not reach the Judge until October 24. In the meantime, on August 15, the trial Judge entered a final order dismissing the case with prejudice and entering judgments of $150 each against appellant and her attorney in favor of the District. When the Judge finally received the motion for stay in late October, she granted it in part by staying the $150 judgment against appellant, but not the $150 judgment against her attorney.
Two preliminary matters must be addressed before we consider the merits of the appeal.
A central issue at trial was whether appellant's tort claim was governed by the original 1982 version of the District of Columbia's Compulsory/No-Fault Motor Vehicle Insurance Act ("the No-Fault Act"), D.C. Code §§ 35-2101 to 35-2113 (1985 Supp.), or by the amended 1986 version, D.C. Code §§ 35-2101 to 35-2114 (1993). *fn1 The accident took place on April 4, 1986. The No-Fault Act of 1982 was extensively amended in late 1985, and the amendments became "effective" on March 4, 1986. However, the 1985 legislation also provided that "the provisions of this act shall not apply until 90 days after the effective date of this act." D.C. Act 6-104, § 5 (b), 32 D.C. Reg. 7267 (1985). Thus the 1986 amendments did not "apply" until June 2, 1986, ninety days after March 4 and almost two months after appellant's April 4 accident. Her claim, therefore, was governed by the unamended No-Fault Act of 1982. *fn2
The second preliminary issue concerns the right of appellant's attorney to challenge the sanctions imposed upon her alone. Because the attorney did not name herself as an appellant in the notice of appeal which she filed on appellant's behalf and did not file her own separate notice of appeal, the District argues that we have no jurisdiction to rule on the propriety of the sanctions levied against the attorney. The District relies on Torres v. Oakland Scavenger Co., 487 U.S. 312, 101 L. Ed. 2d 285, 108 S. Ct. 2405 (1988), in which the Supreme Court ruled that a federal appellate court lacked jurisdiction over claims presented by "a losing party not named in the notice of appeal," id. at 318, as well as several federal court decisions holding that an attorney who seeks review of Rule 11 sanctions against her must state in the notice of appeal that she is an appellant.
Although the point has not yet been decided by this court, at least seven circuits have held that Rule 11 sanctions against an attorney may not be challenged on appeal unless the attorney is specifically identified as an appellant, either in the notice of appeal filed on behalf of the client or in a separate notice of appeal filed in the attorney's name. In each of these cases a party to the litigation brought the appeal, but the appellate courts all concluded that the attorney's claims of error in the imposition of Rule 11 sanctions were not properly before them because the attorney was not individually named as an appellant. Four circuits held that they lacked jurisdiction to consider the attorney's claims; *fn3 three concluded that the party who appealed had no standing to raise the attorney's claims. *fn4 Only two circuits have granted review to attorneys in such cases. *fn5 We note, finally, that in Schwartz v. Connors, Fiscina, Swartz & Zimmerly, 623 A.2d 595, 598-599 (D.C. 1993), this court concluded that an attorney had standing to appeal from an order imposing sanctions under Rule 11 even though his client had acquiesced in the sanctions order. See also Montgomery v. Jimmy's Tire & Auto Center, Inc., 566 A.2d 1025 (D.C. 1989) (appeal by attorney from Rule 11 sanctions order; standing not contested).
Because the Superior Court's Rule 11 is "virtually identical" to its federal counterpart, FED. R. CIV. P. 11, this court looks to "federal cases interpreting the federal rule as 'persuasive authority in interpreting [the local] rule.'" Stansel v. American Security Bank, 547 A.2d 990, 995 n.8 (D.C. 1988) (citation omitted), cert. denied, 490 U.S. 1021, 104 L. Ed. 2d 183, 109 S. Ct. 1746 (1989). Reading the relevant federal cases in light of the Supreme court decision in Torres, as well as our own decision in Schwartz, we follow the majority of the circuits and hold that in this case we cannot consider the attorney's claims of error in the imposition of Rule 11 sanctions because the attorney did not list herself as an appellant in her ...