Before Schwelb and Farrell, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Farrell, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia
(Hon. Judith E. Retchin, Trial Judge)
Gilbert Hahn, Jr. and others ("Hahn") sued the District of Columbia Water and Sewer Authority ("WASA") as well as the District and its Mayor for alleged statutory and constitutional violations arising from the unauthorized transfer of revenues from an Enterprise Fund reserved for water and sewer purposes to the District's General Fund during the first half of the 1990's.*fn1 The trial court granted summary judgment to the defendants on all counts. Hahn then filed a motion to reconsider, which was denied. Before us is what purports to be his timely appeal from the underlying judgment. In fact, however, the appeal is untimely, and we therefore must dismiss it for lack of jurisdiction. See D.C. App. R. 4 (a)(1); In re C.I.T., 369 A.2d 171, 172 (D.C. 1977). Insofar as the appeal is deemed to be from the denial of a post-judgment motion under Super. Ct. Civ. R. 60 (b), we affirm that order.
The trial court entered the summary judgment order on November 14, 1997. The order was docketed and mailed to the parties on November 18, 1997. On November 26, 1997, Hahn moved in writing to extend the time in which to file a "Motion to Reconsider" the judgment. On December 16, 1997, he filed the Motion to Reconsider (citing neither Rule 59 nor Rule 60 of the Superior Court Rules of Civil Procedure). On December 17, 1997, the trial court, evidently unaware of the filing the day before, noted that the motion to extend time had been unopposed and granted it "nunc pro tunc," stating that Hahn could file a motion to reconsider by December 21, 1997. On January 8, 1998, the court denied the motion to reconsider on the merits, stating that "the Court [had] considered all of the arguments made in plaintiff's motion before issuing its Order" granting summary judgment. Hahn noted his appeal from the denial on January 16, 1998.
In his opening brief, Hahn states that his motion to reconsider amounted to a motion to alter or amend judgment under Super. Ct. Civ. R. 59 (e).*fn2 Such a motion must be filed no later than ten days after entry of the judgment. See id. If timely filed, it tolls the thirty-day period for appeal from the underlying judgment. See D.C. App. R. 4 (a)(2); Fleming v. District of Columbia, 633 A.2d 846, 848-49 (D.C. 1993). The trial court, however, may not enlarge the time for filing a Rule 59 motion, see Super. Ct. Civ. R. 6 (b), and "has no authority to decide the merits of such a motion if it is untimely." Circle Liquors, Inc. v. Cohen, 670 A.2d 381, 385 (D.C. 1996) (citing cases).
As WASA points out in its brief, Hahn had until December 8 to file a Rule 59 (e) motion. See Super. Ct. Civ. R. 6 (a) (weekends and holidays not counted) & (e) (extra three days for mailing). He did not file it until December 16. The trial court could not do nunc pro tunc what it could not have done within the ten-day period -- enlarge the time allowed. See Super. Ct. Civ. R. 6 (b); see also Circle Liquors, 670 A.2d at 385 ("Nor may the trial court extend the time for taking action under . . . Rule 59."). Since Hahn failed to file the Rule 59 motion by December 8, the trial court had no jurisdiction to decide the merits of the motion. See id. at 385-86. And since the motion likewise did not toll the time for appeal, Hahn's appeal (on January 16, 1998) was filed well beyond the thirty days from entry of judgment (November 14, 1997) allowed by this court's rules. See id. An untimely notice of appeal deprives this court of jurisdiction. See In re C.I.T., 369 A.2d at 172.
Although Hahn relies on the doctrine of "unique circumstances" to excuse the late filing, this court has repeatedly rejected application of the doctrine to facts like these. Circle Liquors, 670 A.2d at 386-87; Frain v. District of Columbia, 572 A.2d 447, 450-52 (D.C. 1990). Closely on point is Frain. There the plaintiffs moved for an extension of time to file a "motion for reconsideration" nine days after the trial court had entered summary judgment against them. On the thirtieth day after entry of judgment, the court granted the motion to extend time as unopposed. Over a month later, the motion to reconsider was filed, and it was denied on the merits. On appeal, this court treated the motion as one under Rule 59 (e) and inquired whether "some controlling equitable consideration" excused the untimely motion and in turn untimely appeal. Frain, 572 A.2d at 450. Specifically, we considered the plaintiffs' invocation of the "unique circumstances" doctrine, which provides that in "'limited circumstances, when a party fails to file a timely notice of appeal in reliance on a statement or action of the trial court indicating that the party has timely filed a postjudgment motion that tolls the appeal period, that motion, although in fact untimely, . . . stop[s] the running of that period.'" Id. (quoting In re Alexander, 428 A.2d 812, 815 n.3 (D.C. 1981)). Key to the doctrine, we recognized, is whether the party filing late has been "'affirmatively misled into delaying the filing . . . by some action or conduct of the trial court.'" Id. at 451 (quoting Robinson v. Evans, 554 A.2d 332, 335 (D.C. 1989)).
In Frain we rejected the plaintiffs' reliance on the doctrine as "[un]reasonable" because the trial court's order granting the extension of time was not an "affirmative action or statement," but rather "acquiescence in a request by the movant" that in turn rested upon counsel's "unfamiliarity" with the court's rules. Id. at 451-52 (emphasis in original). Moreover, we said the plaintiffs could not have been "lulled" into believing they had more time to appeal, "because they had not been made aware of [the Judge's extension order] before the expiration of the period for filing their notice of appeal." Id. at 452. A similar result was reached in Circle Liquors, where we ...