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Johnson v. Berry

June 5, 1995

JAMES ERIC JOHNSON, APPELLANT, V. DANA BERRY, APPELLEE.


Appeal from the Superior Court of the District of Columbia. (Hon. Robert I. Richter, Trial Judge). (Hon. Gregory E. Mize, Trial Judge).

Before Ferren and Schwelb, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Belson

BELSON, Senior Judge: Appellant James E. Johnson contends that the trial court abused its discretion in denying his motion to reinstate his case pursuant to Super. Ct. Civ. R. 60 (b) after it had been dismissed due to his attorney's failure to appear at an initial scheduling conference. For the reasons stated below, we reverse and remand the case for further proceedings.

I.

Appellant James Johnson and appellee Dana Berry played against each other in a professional tennis tournament at the Washington Tennis Center in the District of Columbia. It appears that some personal unpleasantness arose during the match. Immediately after the match Johnson and Berry engaged in a physical altercation. Johnson filed a complaint in Superior Court against Berry alleging assault and battery. Berry, in turn, filed a counterclaim against Johnson alleging the same.

A trial Judge issued a scheduling order designating December 3, 1993, for the initial status conference. Johnson's counsel failed to appear on this date and the Judge dismissed the case for want of prosecution. *fn1 Berry's counsel consented to the dismissal of the counterclaim, provided the complaint was dismissed. The dismissal was recorded in an entry on the court jacket and on the docket, but no written order was entered nor was notice sent to Johnson's attorney. *fn2 Unaware of the dismissal, Johnson's attorney continued to prosecute the case in the usual manner, filing a certificate concerning discovery on December 8, 1993.

Johnson's counsel first suspected a problem on February 8, 1994, and had another attorney from his office review the court file the next day. Upon learning that the case had been dismissed, Johnson's counsel immediately prepared a motion to reinstate the case, pursuant to Super. Ct. Civ. R. 60 (b), and filed it at the opening of the Superior Court Clerk's Office on the following day, February 10, 1993. In his motion, Johnson's attorney stated that he inadvertently had failed either to read the relevant portion of the initial order or to note the initial conference date of December 3, 1993, on his calendar. Counsel submitted that his failure to appear was entirely out of character with his performance as an attorney before the courts of the District of Columbia for approximately twenty-six years, and represented that, following his failure to appear in this case, his office had put in place even more exacting procedures to avoid a repetition of his failure to appear. *fn3 Johnson's attorney also offered to pay the regular hourly rate of opposing counsel for the additional court appearance which would be occasioned by the failure to appear on December 3, 1993.

A second trial Judge, newly assigned to the case, issued a written order denying Johnson's Rule 60 (b) motion, stating in part:

Superior Court Civil Rule 60 (b) addresses the parameters of "excusable neglect." Under the rule, the court is to consider four factors when a motion for relief for final judgment is made to the court. Those factors include whether there was actual notice of the proceeding, whether movant acted in good faith, whether a prima facie adequate defense was presented, and whether the movant acted promptly. (Citations omitted.) *fn4

While the court does not dispute that plaintiff acted in good faith, the court does not find that plaintiff fares well on any of the other factors . . .

Plaintiff was provided actual notice of the initial scheduling conference and while perhaps counsel acted expeditiously when he realized that the conference had passed, it took counsel two months to realize that he had in fact neglected to appear . . .

Johnson noted this appeal.

II.

The sole issue on appeal is whether the trial court abused its discretion in denying appellant's motion to reinstate its case pursuant to Rule 60 (b). We reverse, principally because the trial court erred in its evaluation of one of the ...


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