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Thoubboron v. Ford Motor Company

November 07, 2002


Appeal from the Superior Court of the District of Columbia (CA-1642-91) (Hon. Steffen W. Graae, Motions Judge)

Before Steadman and Washington, Associate Judges, and Ferren, Senior Judge.

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

Argued November 7, 2001

Appellants, thirty-four named class members, their attorney Beverly C. Moore, Jr. and his law firm Moore & Brown ("appellants") appear before this court in their third appeal, arising from a proposed class action against appellee Ford Motor Company ("Ford") involving breach of warranty claims. In their present appeal, appellants challenge a trial court order denying their May 2000 motion to dismiss with prejudice and to vacate the trial court's 1994 voluntary dismissal order. The 1994 order included an award of attorney's fees and costs as a term and condition of the dismissal without prejudice previously sought by appellants. Judge Steffen W. Graae denied the motion to dismiss with prejudice on two grounds: (1) that appellants were untimely in their decision to opt for a dismissal with prejudice in 2000 in lieu of complying with the terms and conditions of the 1994 order conferring a dismissal without prejudice, and (2) that appellants were precluded under the doctrine of equitable estoppel from contradicting their representations to two other jurisdictions that they intended to pay Ford's attorney's fees and costs when quantified. We affirm.


The class action litigation at issue here was filed in this jurisdiction in 1991, the second of four proposed nationwide class action lawsuits filed against Ford for breach of written and implied warranties based on allegations of faulty transmissions, in particular Ford model cars manufactured between 1976 and 1979. Prior to the District of Columbia (D.C.) Superior Court suit, appellants filed a federal suit in August 1981, which was subsequently dismissed on appeal ten years later on jurisdictional grounds when the only named appellant settled with Ford. Walsh v. Ford Motor Co., 292 U.S. App. D.C. 32, 945 F.2d 1188 (1991). In February 1991, while the Walsh appeal was pending, and under the mistaken belief that the filing of the federal suit had tolled the statute of limitations, appellants filed a class action suit against Ford in the D.C. Superior Court on behalf of Eileen Thoubboron and thirty-three other owners of Ford vehicles, all of whom were also plaintiffs in the federal suit.

When Ford filed a motion to dismiss the Thoubboron complaint as time-barred in March 1991, appellants responded with a motion under Super. Ct. Civ. R. 41 (a)(2) to dismiss their claims without prejudice in order to pursue their claims in other jurisdictions. While this motion was pending, appellants filed a similar proposed nationwide class action in Pennsylvania on behalf of the thirty-four Thoubboron plaintiffs in addition to Raymond B. Doutt. Doutt v. Ford Motor Co., No. 212 (Pa. Ct. Common Pleas Philadelphia Co., Apr. 1, 1991). The fourth suit was filed in Illinois on behalf of eighteen of the Thoubboron plaintiffs in addition to others. Portwood v. Ford Motor Co., No. 91 CH 4442 (Ill. Cir. Ct. Cook Co., May 14, 1991). The Pennsylvania and Illinois courts stayed the proposed class action proceedings in 1991 and 1992, respectively, while awaiting the resolution of the Thoubboron case.

In September 1991, Judge Richard A. Levie dismissed Thoubboron with prejudice because appellants' claims were time-barred under District of Columbia law. Appellants appealed, requesting that this court instead direct the trial court to dismiss the claims without prejudice pursuant to Rule 41(a)(2) in order to avoid the potential res judicata effect on appellants' suits then pending in Pennsylvania and Illinois. Noting that a dismissal with prejudice is a "drastic remedy and should be granted sparingly," we vacated the trial court's decision and remanded with instructions that the trial court provide an explanation as to the basis for dismissing the claims with prejudice "[i]n order to facilitate judicial review and to ensure that the trial court's discretion has been judiciously exercised." Thoubboron v. Ford Motor Co., 624 A.2d 1210, 1214 (D.C. 1993) (Thoubboron I). We also indicated that should the trial court decide in favor of a dismissal without prejudice, terms and conditions could be imposed so as to "compensate the defendant for its costs and counsel fees incurred in defending against what has turned out to be the plaintiffs' improvident foray into the courts of this jurisdiction." Id. at 1216 n.12. In addition, we noted that appellants "readily acknowledge that the request that their individual claims be voluntarily dismissed, rather than dismissed with prejudice, was made solely in order to protect their complaints in Pennsylvania and Illinois." Id. at 1215.

In a January 1994 order, Judge Levie granted appellants a voluntary dismissal without prejudice conditioned upon their paying Ford's attorney's fees and costs incurred involving work product which would not be useful in related, subsequent litigation between the parties, and indicated that the voluntary dismissal was granted "subject to Plaintiffs' compliance with the above listed conditions." He also ordered that Ford submit affidavits and other supporting documents itemizing attorney's fees and costs to the trial court by February 7, 1994 for quantification of the appropriate amount due to Ford. Appellants were instructed to file a response to Ford's submission by February 22, 1994. In its February 7, 1994 submission, Ford sought attorney's fees in the amount of $84,790 and costs in the amount of $3,459.06, for a total of $88,228.06. On March 7, 1994, appellants filed a forty-page opposition to Ford's request on several grounds - excessiveness in terms of the attorney time billed, that substantial portions of the work product could be reused in Portwood and Doutt, lack of specificity in terms of the attorney time billed, lack of supporting documentation, and excessive costs - and argued that Ford's request for attorney fees should be reduced to $16,291. *fn1

Following the issuance of Judge Levie's 1994 order, Moore argued to the Pennsylvania and Illinois courts that the stays of those proceedings should be removed because appellants had obtained a voluntary dismissal in Thoubboron and intended to pay Ford's attorney's fees and costs as soon as the amount was quantified. Ford requested that the Pennsylvania court maintain the Doutt stay until appellants had actually met their obligation to pay the Thoubboron attorney's fees and costs. In a March 1994 pleading, Moore represented to the Pennsylvania court that the stay on the Doutt proceeding should be lifted immediately as opposed to when the payments were actually made since appellants fully intended to pay Ford the amount awarded:

Plaintiffs . . . advised Ford that they will, of course, pay whatever attorney fees and costs the Thoubboron court eventually awards, but that amount has not yet been determined and therefore cannot be paid now. Plaintiffs further advised that the residual fee issue which is entirely collateral to the merits of this litigation provides no basis for continuing the Stay (or the Illinois Stay in the Portwood case. . .), even though technically Thoubboron remains "pending" for as long as the fee issue is outstanding. *fn2

The stay of Doutt was ultimately lifted and, in May 1995, Moore obtained a voluntary dismissal without prejudice from the Pennsylvania court in order to pursue the litigation in Illinois.

In May 1992, the Illinois court originally granted Ford's request to stay the Portwood action pending the outcome of Thoubboron and Doutt. Appellants appealed the stay. In April 1994, following the voluntary dismissals in Thoubboron in the District of Columbia and Doutt in Pennsylvania, Moore represented to the Illinois appellate court that "these new developments moot the basis for the stay" in Portwood because

the Thoubboron trial court on remand dismissed the Thoubboron claims without prejudice, on condition that plaintiffs pay Ford certain attorney fees and costs, which plaintiffs will do as soon as the amount, which is presently being litigated, is finally ...

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