Before Terry, Schwelb, and Farrell, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of the District of Columbia Hon. Michael L. Rankin, Trial Judge
Worldspan, L.P., sued Affordable Elegance Travel, Inc. ("AET"), a travel agency, for money due under a lease agreement. The case was tried to the court, sitting without a jury. At the close of Worldspan's evidence, AET moved for a directed verdict, *fn1 which was denied. The trial proceeded, and after hearing AET's evidence, the court found AET liable to Worldspan but continued the case to a future date for a further hearing on damages. At the conclusion of that hearing, the court awarded $27,559.73 to Worldspan. AET filed a motion, based on Super. Ct. Civ. R. 59 (e), to alter or amend the judgment or, in the alternative, for a new trial. The court ruled, however, that the motion was not timely filed under Rule 59 (e). It considered the motion instead under Super. Ct. Civ. R. 60 (b) and denied it in its entirety. We hold that the motion was timely, and thus we remand the case to the trial court with directions to reconsider the motion under Rule 59. We reject AET's other contentions and affirm the judgment on the merits. Our affirmance, however, is subject to the trial court's ultimate decision on remand with respect to the post-trial motion.
On August 20, 1989, PARS Marketing ("PARS"), a general partnership, executed a contract in which it agreed to lease an automated computer airline reservation and ticketing system and provide other services to AET over a period of five years. The contract became effective on October 13, 1989, after the equipment was installed and operational. When PARS was later acquired by Worldspan, a company whose business (according to one of its witnesses at trial) "is to lease equipment and services to travel agencies," Worldspan assumed the contract.
At trial there was a dispute about the identity of the other party to the contract. Edward Mascoll, who owned a New York company named Travel Associates, Inc., *fn2 along with his wife, and later established AET in the District of Columbia, testified that he negotiated the contract with PARS. AET maintained that it was not liable under the contract because Mr. Mascoll had signed the contract on behalf of Travel Associates, not AET. Mr. Mascoll stated that he incorporated AET in the District of Columbia in 1989 and wanted PARS to provide him with equipment so that he could begin to operate AET as a travel agency. *fn3 However, because AET did not yet have authority from the Airlines Reporting Commission to issue tickets, *fn4 it was linked by computer to Travel Associates in New York, which issued tickets on AET's behalf. Mr. Mascoll described AET as "basically a holding company for transactions that Travel Associates had created in the Washington area." He testified that he "wanted to branch into the Washington area, and the only way they would consider giving me a computer reservation system was that I had to negotiate the original contract and then bridge the new site on as well." Therefore, he said, PARS advised him that it would execute two contracts with Travel Associates, one for the New York business and one for the District of Columbia business. *fn5 The District of Columbia contract is at issue in this case.
Mr. Mascoll testified that he received two copies of the District of Columbia contract. Both copies named "Travel Associates, Inc." as the "Customer." On one copy, Mr. Mascoll wrote in by hand the name "Affordable Elegance Travel" on the contract next to the word "Customer" in two places, page 1 and page 9; on the other copy, however, he wrote AET's name on page 1 only. In addition, on page 10 of both copies of the contract, Mr. Mascoll wrote "July 27, 1989 Wash. D.C.," the date and location of AET's incorporation, on the line seeking incorporation information for the "entity" entering into the contract.
Cheryl Sampson executed the contract on behalf of PARS. *fn6 She testified that Mr. Mascoll gave her permission to modify the contract to name AET, rather than Travel Associates, as the other contracting party and instructed her to write in the name "Affordable Elegance" and initial it. Ms. Sampson specifically stated, "[W]hen I received the contract, I noticed the different name on it, [and] I contacted Mr. Mascoll by telephone to inquire as to what the correct name should be and was advised it's Affordable Elegance." Mr. Mascoll denied ever having had such a conversation with Ms. Sampson.
The two copies of the contract, Plaintiff's Exhibit 1 and Defendant's Exhibit 1, reveal that Ms. Sampson did not make identical changes in each copy. On the copy that she signed and sent to Mr. Mascoll, Defendant's Exhibit 1, she simply placed the letters "d/b/a" in front of the place where Mr. Mascoll had written "Affordable Elegance Travel" on page 1. On the copy that PARS kept, Plaintiff's Exhibit 1, she (or someone else at PARS) drew a line through "Travel Associates, Inc." and "d/b/a" on pages 1, 9, and 10 of the contract.
On October 13, 1989, the leased equipment was installed at AET's place of business, and AET began to pay the monthly rental fee. In January 1993, however, AET defaulted on the contract by failing to make the required monthly payment. According to Mr. Mascoll, AET was having financial difficulties because Travel Associates had ceased to do business and was no longer paying commissions to AET. Worldspan terminated the contract and, on February 20, 1993, sent AET a bill stating that AET owed Worldspan $37,823.54, including a past due balance of $6,061.60.
Mr. Mascoll, as managing director of AET, wrote three letters to Worldspan on AET stationery dated January 11, February 13, and March 9, 1993. Each letter complained about Worldspan's termination of the contract and the severe economic consequences that it had for AET. Mr. Mascoll testified that at some point after the contract had been terminated, a man came to AET's offices to remove the leased equipment, but when Mr. Mascoll "asked him to please give me his identification and also would he be kind enough to give me a receipt of what he was taking out, he said absolutely - looked at me like I was crazy and walked out, and the equipment is still in that office today in the back room . . . . I've called them. They didn't respond, and I just, as I said, the equipment is there."
AET introduced a statement that Worldspan sent to AET on November 15, 1994, which reflected a credit of $37,823.54 and stated that the new balance of AET's account was zero. Debra Talbot, an accountant at Worldspan, testified that this credit was given because "it was deemed that we would not be able to collect internally, and it is company policy and procedure to use an outside counsel for our collection efforts. Our collection policy and procedure is at the point that those files are sent outside of the company, we transfer any balances on our active records to a separate account. We call this our write-off account. . . . So it does not mean there is not an actual balance due; it just means that we are no longer actively trying to collect that money." In addition, she said, the statement "was sent [to AET] in error."
AET contends that the trial court "should have found as a matter of law that [AET] was not a party to this contract." The court actually ruled just the opposite: that AET was a party because, it found, Mr. Mascoll was acting as AET's agent (not the agent of Travel Associates) when he entered into the contract with PARS.
[T]he court concludes, largely based on Ms. Sampson's credible testimony and the entry on page 10 [of the contract] of the date and place of incorporation of Affordable Elegance, that . . . the mutual obligations under this contract were the obligations of PARS and ...