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Breiner v. Daka

August 29, 2002


Appeal from the Superior Court of the District of Columbia (CA-14646-92) (Hon. Stephen G. Milliken, Trial Judge) (Hon. Gregory Mize, Motions Judge)

Before Terry, Ruiz, and Washington, Associate Judges.

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued December 11, 2001

This appeal arises from the Superior Court's denial of James Breiner's motion for attorneys' fees following a jury award in his favor in an age discrimination action against Daka, Inc. The trial court based its ruling on Superior Court Civil Rule 54 (d)(2)(B), which requires that a motion for fees be filed within fourteen days of entry of judgment. Breiner's principal contention on appeal is that the fourteen-day requirement of Rule 54 (d)(2)(B), which was imposed by an amendment that became effective on June 1, 1995, was not applicable to his case. We agree that the amended rule does not apply under the facts presented here, and therefore reverse and remand for the trial court to consider the attorneys' fees issue in a manner consistent with the previous version of Rule 54.


On January 30, 1995, a jury returned a verdict in favor of Breiner for his age-based, hostile work environment claim against Daka, Inc., in the amount of $10,000 in compensatory damages and $390,000 in punitive damages. Judgment was filed by the trial court on February 3, and docketed on February 7, 1995. Daka filed a motion for judgment notwithstanding the verdict, or in the alternative for remittitur, which was denied by the trial court on March 13, and docketed on March 15, 1995. Daka timely appealed on April 14, 1995 and filed a supersedeas bond.

On May 3, 1995, Breiner filed a motion in the trial court for extension of time to file a cross-appeal. *fn1 Judge Stephen G. Milliken, who had presided at the trial, denied the motion on June 7, and also denied Breiner's motion for reconsideration on June 20, 1995. Breiner appealed, and this court sua sponte summarily affirmed these rulings in an unpublished order. Breiner v. Daka, Inc., No. 95-CV-1391 (D.C. October 18, 1995).

On May 14, 1996, while Daka's appeal of the judgment in Breiner's favor was still pending before this court (after oral arguments had been heard), Breiner filed a motion in Superior Court seeking attorneys' fees and costs incurred in prosecuting the lawsuit. Daka moved to strike, contending that Breiner's motion for fees was untimely under Superior Court Civil Rule 54 (d)(2)(B). On July 2, 1996, the trial court denied Daka's motion to strike, but also denied Breiner's motion for attorney's fees and costs "without prejudice to renewal upon remand" - presumably a reference to the pendency of Daka's appeal.

On April 30, 1998, a panel of this court issued an opinion affirming the judgment and upholding the entire award of compensatory and punitive damages. See Daka, Inc. v. Breiner, 711 A.2d 86 (D.C. 1998). Daka's petition for rehearing en banc was denied on September 21, 1998. On February 19, 1999, the parties stipulated that the judgment for $400,000, with interest, had been satisfied by Daka, but specifically stated that this payment was "not intended to and does not address, encompass or satisfy [Daka's] obligations, if any, resulting from the Judgment to pay [Breiner's] attorneys' fees and costs. Nor does the payment by [Daka] constitute any waiver by [Daka] of any defenses [Daka] may have to any claims by [Breiner] for attorneys' fees or costs."

Breiner sent a letter dated March 15, 1999 to Judge Milliken in which he sought to renew his petition for attorney's fees "[n]ow that all appeal rights have been exhausted," and requested advice on how to proceed. *fn2 Nothing in the record on appeal indicates that Judge Milliken responded to this letter. In June of 1999, Judge Gregory Mize *fn3 granted Daka's motion to release the supersedeas bond stating that "[i]f and when a judgment for a sum certain for attorneys' fees is entered, at that time a new bond may well be appropriate for defendant to obtain a further stay." *fn4

On October 7, 1999, Breiner filed a "Supplemental Motion for Attorney's Fees and Costs" claiming the issue of attorneys' fees was ripe for resolution. *fn5 Judge Milliken denied Breiner's motion for attorneys' fees and costs associated with both the trial and appeal on the following year, ruling that it was untimely under Rule 54 (d)(2)(B). In his order, Judge Milliken recognized that when the motion for fees was first filed more than four year earlier (on May 14, 1996), he "could have reviewed the claim for attorneys' fees, and probably would have if the motion had been filed promptly, in order that the motion could be reviewed along with the merits of the case on appeal." Judge Milliken was of the view that Breiner had interpreted his July 1996 order denying Daka's motion to strike and denying Breiner's motion for fees without prejudice "too broadly" in construing it to mean that the fourteen-day filing deadline in Rule 54 (d)(2)(B) did not apply. He stated that "[e]ven if I could or should have ruled upon the 1996 motion while the matter was pending appeal is immaterial," because the motion was denied without prejudice in 1996, and the fourteen-day filing deadline of Rule 54 (d)(2)(B) applied to the subsequent 1999 filing despite its being titled as a "supplemental motion." Finally, he noted "it would not be just or practicable to allow such repeatedly late submissions even if the `supplemental' filing is taken as a memorandum in support of the 1996 filing," and observed that Breiner failed to provide any reason to support a finding of excusable neglect for the late filing of his request for fees and costs.


Prior to June 1, 1995, Rule 54 (d) provided in relevant part that "[e]xcept when express provision therefor is made either in an applicable statute or in these Rules, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs[.]" The rule - which discussed only "costs" - did not then set forth any particular period for filing a motion for attorneys' fees. Thus, a motion for such fees, filed after a successful private action pursuant to the District of Columbia Human Rights Act, see D.C. Code §§ 1-2553 (a)(1)(E), -2556 (b) (1999), was not subject to any specific time limitation. Cf. Kelly v. Clyburn, 490 A.2d 188, 190 (D.C. 1985) (absent statutory language specifying time by which request for attorneys' fees filed in child support and custody case pursuant to D.C. Code § 16-918 (c) must be made, trial court required to "exercise its discretion to deny fees `in cases in which a post-judgment motion unfairly surprises or prejudices the affected party'") (quoting White v. New Hampshire Dep't of Employment Security, 455 U.S. 445, 454 (1982)).

By action of the Board of Judges of the Superior Court and pursuant to D.C. Code ยง 11-946 (2001), an amendment to Rule 54 (d) became ...

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