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Atherton v. Brooks

May 06, 1999


Before Steadman and Ruiz, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Ruiz, 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. Noel A. Kramer, Motions Judge) (Hon. Zinora Mitchell-Rankin, Trial Judge)

Argued April 24, 1999

The underlying case arose from a collision that occurred on an icy road in 1984 between a 1973 Lincoln Continental driven by Albert Brooks, Jr., one of the appellees, and the parked 1968 Ford Mustang of appellant, Peter J. Atherton. Atherton sued the Great American Insurance Company ("Great American"), the issuer of his automobile insurance policy, and Haycraft Insurance Agency, Inc. ("Haycraft"), from whom he obtained the Great American insurance policy, alleging that they breached the uninsured motorist provisions of the policy by not adequately compensating him for the damage to his vehicle, and for tortious breach of contract. *fn2 Atherton sued Brooks for negligence in hitting Atherton's parked car.

Atherton, who appeared pro se, requested and was allowed to proceed in forma pauperis. Atherton claims that the trial court's denial of his request for a continuance to enable him to serve his witnesses and consequent dismissal of his action for lack of prosecution were an abuse of discretion by the trial court because the matter that impeded the trial, the unavailability of a witness Atherton considered important to his case, was due at least in part to the court's failure to serve subpoenas on Atherton's witnesses which he claims is required by Super. Ct. Civ. R. 54-II. In addition, Atherton contends that the trial court should have reconsidered dismissal once he indicated that he was willing to proceed to trial. We agree that dismissal of Atherton's action under the circumstances was an abuse of discretion. Although we consider that Atherton raises a serious issue concerning the scope of Rule 54-II, we do not decide whether Atherton's status as an in forma pauperis litigant entitled him to court assistance in serving witness subpoenas. We reverse the trial court's denial of reconsideration of the order of dismissal and remand, upon which the trial court should reconsider, if necessary, whether it has an obligation under Rule 54-11 to effect service of the subpoenas on Atherton's witnesses. *fn3


The procedural posture of this case is rather involved and the matter has been before the courts for a long time. Atherton filed his complaint in January 1987; he has had two trials prior to the proceeding that led to this appeal. *fn4

The third trial, from which this appeal was taken, was set to begin on March 21, 1994, before Judge Zinora Mitchell-Rankin. On that date, with the parties present to proceed, Atherton requested a continuance because he had been unable to pay his expert witness fees, which had been set as a condition to proceed with the case. Atherton's requested continuance was denied; the case was, nevertheless, continued because there was no Judge available to hear the case on that day. Atherton was admonished by Judge Mitchell-Rankin that expert witness fees were his responsibility and that he had to be prepared for trial on June 20, 1994, with all his witnesses available.

Prior to the rescheduled trial date, Atherton filed a motion to compel the clerk's office to issue subpoenas and to serve them on all his proposed witnesses. The motion was denied on June 9, 1994. A week before the rescheduled trial date, on June 13, 1994, Atherton filed a motion to continue the case because there was insufficient time to serve his witnesses. On June 20, 1994, all parties appeared for trial. The trial court, Judge Mitchell-Rankin, again denied Atherton's request regarding the issuance and service of subpoenas by the clerk's office, explaining that the clerk's office will issue subpoenas, but that serving the subpoenas was Atherton's responsibility. *fn5

Atherton's motion for a continuance also was denied. In his motion Atherton explained that his files had been "ransacked" and thus he needed more time to get copies of relevant parts of the transcripts from the first two trials because some of the witnesses who were available for those trials were no longer available to testify. As his motion to compel the clerk to serve his subpoenas had been denied on June 9, 1994, eleven days earlier, he further argued to the court that there had not been sufficient time from the denial of his motion to the trial date for him to properly serve all of his witnesses. Specifically, Atherton mentioned that there were two officers who had observed the scene shortly after the collision. Atherton explained that be had been unable to serve one of the police officers who had been sick but was expected to return to duty that night. The other police officer who had observed the scene, Atherton explained, was out of the country; Atherton proffered an affidavit from the State Department to that effect. *fn6

After denying Atherton's motions, the trial court asked Atherton if he was ready to proceed to trial. Atherton did not respond directly to the court's question, but reiterated his concern with going forward without either the witnesses or the transcripts. The court asked Atherton once again if he was ready, and Atherton, again, requested a continuance. The trial court then sua sponte invited a motion to dismiss, which was made instantly by opposing counsel, and granted without further Discussion. Atherton immediately requested reconsideration of the dismissal, stating that he was willing to proceed with the trial even without the transcripts and his witnesses if it meant that the case would otherwise be dismissed. The trial court, stating that it had given Atherton many opportunities and he had not been ready, denied his request. *fn7 In a written order denying Atherton's motion to reconsider the dismissal, the trial court stated:

"Plaintiff's Motion to Reconsider Dismissal is denied, the [plaintiff] having failed to provide the court with sufficient reasons to warrant the relief requested. This court has given Mr. Atherton ample opportunity to get himself ready for trial. This court is neither required by Rule or Law to do more than to provide subpoenas to [plaintiff]. The court is not required to serve the subpoenas. Nor is this court required to pay for expert witnesses, which in any event the utility and materiality ...

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