Before Terry, Farrell, and Reid, Associate Judges
The opinion of the court was delivered by: Per Curiam
Appeal from the Superior Court of the District of Columbia (Hon. Zinora M. Mitchell-Rankin, Trial Judge)
Appellant, the defendant below, appeals from a trial court order awarding $750.00 in attorney's fees to plaintiff's counsel. Appellant argues that the court erred in awarding attorney's fees because (1) the record did not support the court's decision, (2) her attorney was deprived of notice and an opportunity to be heard before the award was made, and (3) the attorney did not act in bad faith or engage in vexatious or oppressive conduct. We reverse.
Appellant Delacruz and appellee Harris are the parents of a son who is now ten years old. Mr. Harris filed a petition to establish joint custody of the child in September 1996, and in due course the case was set for trial on July 8, 1997. On July 7, however, the trial was continued until August 29.
On August 27 Denise Vanison, Ms. Delacruz's attorney, began to experience stomach pains and went to see her doctor. The doctor, concluding that Ms. Vanison was suffering from an ulcer, prescribed medication and advised her to rest for several days. From the doctor's office Ms. Vanison called her assistant, Barbara Patterson, and asked her to draft an emergency motion for a continuance and to telephone opposing counsel, Lolita James Martin; she did so, and Ms. Martin consented to the motion over the phone.
On Thursday, August 28, Ms. Patterson called the chambers of the trial judge. The judge's law clerk told Ms. Patterson that the emergency motion should be filed the next morning.
On Friday, August 29, Ms. Martin appeared in court with her witnesses. Another attorney from Ms. Vanison's law firm was present in her stead. Ms. Martin opposed the emergency motion for continuance at this point, claiming that her earlier consent to the motion had been conditional upon its being filed on Wednesday, August 27. She stated that she had called the judge's chambers at 3:15 p.m. on Thursday, August 28, and learned that the motion had not been filed; accordingly, she brought her witnesses to court ("we had to drag all our witnesses down here"), ready to testify, on Friday morning. Ms. Martin also stated, "I was told today that an emergency motion was [not filed] based on the fact that Ms. Vanison thought, well, maybe she could be here. . . . If Ms. Vanison took the chance of not filing it because she thought she might feel better, then that's not my client's problem." Ms. Martin requested an award of attorney's fees in the amount of $750.00, asserting that "we were prepared for a trial today."
The judge ruled that Ms. Martin was "entitled to attorney's fees" and asked her to file an affidavit in support of her request. The judge then stated:
This is not the way things should happen. I was prepared to grant your motion [for a continuance] under the impression, quite frankly, that something happened on today's date, which necessitated the motion. . . . But if counsel tells me that this was discussed as early as Wednesday and I'm just getting this today, then there's no justification for that. Somebody should have had the courtesy to call her and say, call off your witnesses. And that wasn't done. . . . A motion should have been filed ahead of time. . . . So she's entitled to attorney's fees. I'm going to grant the motion for continuance because I do understand a medical emergency. . . . [T]he right way to do it was to file a motion for continuance. Certainly before today. You had her consent.
The judge went on to say, "I will give Ms. Vanison an opportunity . . . to review the affidavit and make any objections that [she wishes] to make to the affidavit. I do intend to award attorney's fees because I believe that to be an appropriate response."
The court entered an order on October 3, 1997, awarding Ms. Martin $750.00 in attorney's fees after concluding "that the fees requested are reasonable." *fn1 Ms. Vanison filed a motion to reconsider and vacate ...