March 25, 1999
GILBERT HAHN, JR., ET AL, APPELLANTS,
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, ET AL., APPELLEES
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)
Argued March 3, 199
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 emphasized that "[c]counsel is responsible for knowing that the motion must be filed within ten days and that the trial Judge has no authority to extend the time." 670 A.2d at 387.
Hahn, likewise, was responsible for knowing that the trial court could not extend the time to file a Rule 59 (e) motion, in turn making his reliance on the extension order "unreasonable." Indeed, so clear is the law on this point that we can scarcely envision an action by the court that could have misled Hahn into thinking the time for appeal had been stayed.*fn3 Since Hahn filed his motion to reconsider before the trial court extended the time for filing it, in granting the extension the court gave him no "specific assurance . . . that this act" -- i.e., filing the Rule 59 (e) motion -- "ha[d] been properly done," Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989); at most the court "acquiesced" in the untimely filing, which is insufficient under Frain and Circle Liquors. Those decisions leave no room for Hahn's attempt to undo his untimely filing on equitable grounds.*fn4
Hahn cites a trilogy of cases decided by the Supreme Court in the early 1960's which, he asserts, broadly applied the unique circumstances doctrine to a situation like this where counsel and the trial court have misread their authority under the rules.*fn5 In Frain, however, we took account of those decisions, see 572 A.2d at 450-51, finding them "to create [only] a very narrow equitable exception" that requires "the movant's reliance on the trial court's erroneous action or statement [to have been] reasonable." Id. at 451. Other courts also have recognized that "the real inquiry concerning the scope of the 'unique circumstances' exception centers upon the reasonableness of the appellant's reliance on the action of the [trial] court." Pinion v. Dow Chemical, U.S.A., 928 F.2d 1522, 1532 (11th Cir. 1991) (emphasis in original) (citing authorities). And, consistent with our analysis in Frain and the unmistakable language of Rule 6 (b), those courts have emphasized that "[e]quitable mechanisms do not exist merely to rehabilitate attorney oversight or inadvertence." Id. at 1534; see id.at 1532-33 (citing cases). Cf. Carlisle v. United States, 517 U.S. 416, 435-36 (1996) (Ginsburg, J., with whom Souter and Breyer, JJ., join, Concurring) (The "sharply honed exception" of Thompson and Harris Truck Lines does not apply where counsel "neglected to follow plain instructions" in the rule governing timely filing of a motion for judgment of acquittal.). There is debate about whether the unique circumstances doctrine, at least as framed by the Supreme Court, even has continued vitality,*fn6 but what is certain is that our own decisions preclude its application to Hahn's default.
In his reply brief Hahn further argues that his motion to reconsider should be treated as one for relief from judgment under Super. Ct. Civ. R. 60 (b). We view that argument skeptically at the outset, for the reason that merely characterizing a motion as one filed under Rule 60 (b) should not be enough to defeat the time requirement of Rule 59 (e). See, e.g., Household Fin. Corp. III v. First Am. Title Ins. Co., 669 A.2d 703, 706-07 (D.C. 1995). Moreover, when considering the denial of a Rule 60 (b) motion, this court will "'not review or determine the merits of the underlying action but only decide whether there has been an abuse of discretion'" in the denial. Fleming, 633 A.2d at 849 (quoting State Farm Mut. Auto. Ins. Co. v. Brown, 593 A.2d 184, 185 (D.C. 1991)). In declining to vacate the summary judgment, the trial court did not abuse its discretion here.
The vast majority of the arguments Hahn put forward in his motion to reconsider assailed the judgment as legally erroneous. That is to say, they disputed the merits of the decision -- something we may no longer consider on appeal. In minor respects, however, the motion "request[ed] consideration for the first time of additional circumstances," and in that sense could fairly be characterized as filed under Rule 60 (b). Vincent v. Anderson, 621 A.2d 367, 371 (D.C. 1993). Specifically, Hahn asserted that "in the past few days" he had received the minutes of a March 1997 meeting of WASA's Board which lent substance to his statutory and constitutional claims, including WASA's complicity in the alleged denial of "equal protection" by District officials in diverting water and sewer revenues. This "new evidence," however,*fn7 added nothing to the already detailed claims of violation of District statutes and equal protection which the trial court had rejected.*fn8 Since Hahn's motion "contained no significant new factual allegations" bearing on the claimed violations, Fleming, 633 A.2d at 849, the trial court was well within its discretion in denying it.
In sum, we dismiss for lack of jurisdiction the appeal from the order granting summary judgment; and, treating the motion to reconsider as one filed under Rule 60 (b), we affirm the denial of the motion.