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JOHNSON v. MARCHETA INVESTORS PARTNERSHIP

May 7, 1998

INELL JOHNSON, APPELLANT,
V.
MARCHETA INVESTORS LIMITED PARTNERSHIP, ET AL., APPELLEES.



APPEAL FROM THE SUPERIOR COURT, JOAN ZELDON, J. [711 A2d Page 110]

Before Terry, King, and Reid, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge:

After her original complaint was dismissed for want of prosecution and a second complaint, filed in the United States District Court, was dismissed as time-barred, appellant filed a motion in the Superior Court under Super.Ct.Civ.R. 60(b) to vacate the dismissal of the first complaint. The Rule 60(b) motion was denied, and appellant noted this appeal. We affirm.

I

Appellant Inell Johnson is a resident of California. On July 31, 1991, while she was a guest at the Hampshire Suites Hotel in the District of Columbia, she was allegedly injured when a hotel employee, opening a door near the spot where she was standing, struck her in the back with the door. She filed suit in the Superior Court in June 1994 against the owner of the hotel, Marcheta Investors Limited Partnership, and several individuals, including the partners in the partnership and the employee involved. At a scheduling conference in September 1994, Judge Zeldon said she would be inclined to grant a motion by Ms. Johnson's attorney, Henry Weil, to withdraw from the case after he told the judge that he had been unable to locate and communicate with his client. *fn1 On the same day, September 9, Mr. Weil wrote a letter to Ms. Johnson informing her of his desire to withdraw from the case, and stating that the court would dismiss the case at a status hearing, scheduled for October 21,

unless you have notified the Court in writing that you intend to represent yourself or another attorney has entered a formal appearance on your behalf. Unfortunately, since the statute of limitations has expired, you will not be able to refile this case once it is dismissed; therefore I urge you to take immediate action to either engage new counsel or notify the Court in writing, as stated above, of your intention to represent yourself. . . .

Ms. Johnson later acknowledged in an affidavit that she received this letter on September 12, but stated that she never gave her consent for Mr. Weil to withdraw.

On September 13 Ms. Johnson consulted an attorney in California who referred her to another attorney in Washington, Richard Heideman. Mr. Heideman obtained the case file from Mr. Weil and asked Weil to tell the court that he was reviewing the case in order to decide whether to accept Ms. Johnson as a client. On October 20, however, Mr. Heideman advised Mr. Weil that no one from his firm would be present at the status hearing the following day. At the hearing on October 21, Mr. Weil advised Judge Zeldon that Ms. Johnson had contacted, but had not yet formally retained, a law firm in the District of Columbia. Mr. Weil asked the judge to "defer ruling on the dismissal," but Judge Zeldon said that Ms. Johnson had been "sleeping on her rights," granted Mr. Weil's motion for leave to withdraw, and dismissed the case without prejudice. Mr. Weil wrote a letter to Ms. Johnson telling her what had happened, which Ms. Johnson received on October 30. [711 A2d Page 111]

The next day, October 31, Mr. Heideman filed a motion to vacate the dismissal, informing the court that his firm had been retained by Ms. Johnson. The motion was denied by Judge Zeldon, but the judge specifically noted that the denial was without prejudice. Ms. Johnson did not seek further relief from Judge Zeldon, despite the judge's "without prejudice" ruling. Instead, now represented by Mr. Heideman, she filed a new complaint in the United States District Court on December 13, 1994. That complaint was dismissed by the District Court in September 1995 on the ground that it was barred by the statute of limitations. *fn2

About a month later, on October 20, 1995, Ms. Johnson filed a motion in the Superior Court under Rule 60(b), asking that the original dismissal by Judge Zeldon be vacated. Judge Eilperin initially granted that motion, but on reconsideration he vacated his earlier order and denied the Rule 60(b) motion. After a further motion was denied, Ms. Johnson noted this appeal.

II

Relief under Rule 60(b) is available "only under exceptional circumstances, in unusual and extraordinary situations justifying an exception to the overriding policy of finality, or where the judgment may work an extreme and undue hardship." Clement v. District of Columbia Dep't of Human Services, 629 A.2d 1215, 1219 (D.C. 1993) (citations omitted). A Rule 60(b) motion cannot be used as a substitute for appeal, Leeks v. Leeks, 316 A.2d 859, 860 (D.C. 1974), and appellate review of the denial of such a motion is limited to determining whether or not the trial court abused its discretion. Joseph v. Parekh, 351 A.2d 204, 205 (D.C. 1976).

Judge Zeldon did not abuse her discretion in dismissing Ms. Johnson's complaint for want of prosecution. Mr. Weil's motion to withdraw stated that he had been "unable to locate [Ms. Johnson] so as to communicate with her," and he repeated this assertion at the initial scheduling conference in September 1994. Although Ms. Johnson's Rule 60(b) motion disputes these allegations, Judge Zeldon acted well within her discretion in accepting them, particularly when they were uncontroverted at the time she ruled.

The record also indicates, and the Rule 60(b) motion acknowledges, that Ms. Johnson had almost six weeks' notice of Mr. Weil's desire to withdraw from the case and of Judge Zeldon's announced inclination to dismiss the case at the October 21 status hearing for want of prosecution. Ms. Johnson also had notice that Judge Zeldon expected either substitute counsel or Ms. Johnson herself to be present at the status hearing. Neither Ms. Johnson nor substitute counsel appeared at that hearing, however, and Ms. Johnson concedes that she failed to retain substitute counsel by that time, despite having had almost six weeks in which to do so. Judge Zeldon had this information before her on October 21. Having ...


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