Appeal from the Superior Court of the District of Columbia. (CA2977-97). (Hon. Susan R. Holmes Winfield, Trial Judge). (Hon. Mary Ellen Abrecht, Trial Judge).
The opinion of the court was delivered by: Wagner, Associate Judge
Appellants*fn2 appeal from two orders of the trial court. The first order granted the motion of appellee, Timothy L. Jenkins, under Super. Ct. Civ. R. 60 (b) (2001), for reinstatement of a complaint in this case that had been dismissed pursuant to a Consent Judgment. The second order denied appellants' motion for reconsideration of that ruling. We reverse and remand with instructions to vacate the order reinstating the complaint.
On April 21, 1997, Jenkins filed a complaint in this case against appellants alleging fraud, breach of contract, conversion, breach of fiduciary duty, successor liability and declaratory judgment, which was assigned case number 97-CA-2977 (hereinafter referred to as the "first case"). The parties reached a settlement agreement that was embodied in a Consent Judgment that was signed by the parties and approved by the court (Judge Susan Winfield) on September 12, 2000. Under the terms of the Consent Judgment, appellants agreed to pay Jenkins $250,000 in three installments as follows: $100,000 on September 25, 2000; $100,000 on November 20, 2000; and $50,000 on March 20, 2001. Upon default in the payment of any of the foregoing amounts, the parties agreed to the entry of judgment in the amount of $300,000, less any credits, against appellants AVC and AVM, "their assigns and successors as well as any entity with an ownership interest or control of the trade name American Visions or the publication rights associated with said name or magazine, including any entity in which Gary Puckrein possesses a controlling interest." The Consent Judgment states the parties' intention to resolve the protracted litigation without trial and with a mutual denial of all liability or fault. Further, the Consent Judgment provides that the parties hereby expressly, unconditionally and completely release, acquit and forever discharge each other from any and all claims, charges or demands[,] debts, liens, contracts, agreements, promises[,] liability, grievances, damages, loss, cost or expense in law or in equity, of any nature whatsoever fixed or contingent, known or unknown arising from this action (97CA2977)[,] and the [p]arties further agree that this Consent Judgment represents the full and complete settlement and that no [p]arty has any obligation to make or do any further act or thing beyond that set forth herein.
The Consent Judgment also provides that the parties mutually agree that "the enforcement of any further proceeding associated with this Consent Judgment shall remain with Judge Susan R. Winfield" during her tenure on the Superior Court.
The parties do not dispute that the first $100,000 payment was made as required. Upon appellants' default in payments thereafter, the trial court (Judge Winfield) granted Jenkins' Motion to Enforce a Confidential Consent Judgment and authorized him to proceed under Super. Ct. Civ. R. 69 (2000) to enforce the Consent Judgment in the amount of $225,605.00 plus interest and reasonable costs of collection until fully discharged.*fn3 This amount was in error, and appellants filed a motion for reconsideration. By order docketed on January 22, 2001, the trial court granted appellants' motion for reconsideration, or alternatively to alter and amend the judgment by reducing the judgment "by all payments made heretofore."
On July 31, 2001, Jenkins filed a second case (CA-01-5721) against appellants alleging civil conspiracy, breach of contract and tortious interference with contracts. The complaint also alleged that all defendants had committed subsequent acts of conspiracy, fraud and deception by having signed in bad faith the Consent Judgment in the first case and having failed to make the payments required under the judgment or to comply with the tax indemnification provision. The trial court (Judge William M. Jackson), concluding that the parties were seeking relief for claims identical to those sought in the first case, dismissed the second case. In recognition of the provision in the Consent Judgment for retention of jurisdiction by Judge Winfield, Judge Jackson directed the parties to seek resolution of these claims before Judge Winfield.*fn4 Jenkins also filed a motion to reinstate the complaint in the second case, which Judge Jackson denied. Jenkins did not appeal from the dismissal of the second case or from the denial of his motion to reinstate the complaint in that case.
Jenkins then filed in the first case, pursuant to Super. Ct. Civ. R. 60 (b), a motion to reinstate the complaint that had been dismissed in the second case. In the memorandum of points and authorities filed in support of the motion, Jenkins asserted that the new action was "separate and distinct" from claims settled by the Consent Judgment in the first case and outlined his reasons for that assertion.*fn5 Jenkins also stated that the motion was based on his discovery on August 14, 1998, of "new evidence" of the appellants' acts of fraud and conspiracy, which he alleged could not have been discovered previously because of appellants' acts of concealment. He also alleged that the appellants committed "an astonishing new act of fraud" on September 8, 2000, when they demanded arbitration. He alleged further that the appellants had committed acts of "conspiracy, fraud and deception" by signing the September 12, 2000, Consent Judgment in bad faith. Finally, Jenkins argued that the complaints were not identical, and stated that "[t]he new complaint . . . alleges causes of action related to [appellants'] willful and wrongful breach of the above-cited Consent Judgment." The certificate of service on the motion to reinstate the complaint indicates that counsel for Jenkins mailed it to appellants' attorney by first class mail on January 4, 2002.
In the first case, the trial court (Judge Winfield) entered an order on January 8, 2002, resolving the motion, and amended it on January 11, 2002. The amended order was docketed on January 15, 2002. The amended order granted Jenkins' motion to reinstate the complaint that had been filed in the second case under the case and caption of the first case. The order also certified the case to Judge Mary Ellen Abrecht who had assumed responsibility for the calendar to which the second case was assigned.*fn6 On January 22, 2002, appellants filed a motion for reconsideration, which is docketed in the first case, listing both Judge Abrecht and Judge Winfield on the order. By order docketed on February 12, 2002, Judge Abrecht denied the motion for reconsideration in the first case and listed the second case as a "related case." The cases were never consolidated, however. Appellants timely noted the present appeal from the order effectively setting aside the final judgment and reinstating the complaint entered in the first case by Judge Winfield, and the order entered by Judge Abrecht, denying appellants' motion for reconsideration of Judge Winfield's order.*fn7
Appellants argue that the trial court erred in granting Jenkins' motion to reinstate the complaint without affording them an opportunity to respond. They contend that while the certificate of service for the motion shows that Jenkins did not mail it until January 4, 2002, the trial court ruled upon the motion three days later, before the expiration of the time provided in the rules for a response. Jenkins claims that a certified copy of the Motion to Reinstate Complaint was mailed to appellants' counsel on November 6, 2001, and therefore, appellants were afforded an opportunity to respond. Jenkins' factual assertion is belied by the record which shows that his motion, filed on January 4, 2002, bears a certificate of service signed by his counsel showing mailing to appellants' counsel on that same date.
In a civil proceeding, by rule, an opposing party has ten days within which to file an opposition to a motion. Super. Ct. Civ. R. 12-I (e) (2003) (providing that after a motion is filed and served, "opposing points and authorities shall be filed and served within 10 days or such further time as the Court may grant."). This court has held that the failure to afford a party an opportunity to respond to motions as provided for by the court rules denies that party due process. Grier v. Rowland, 409 A.2d 205, 207 (D.C. 1979) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)) (other citations omitted) (reversing denial of a motion to reinstate where violations of court rules denied appellants an opportunity to oppose a motion to compel and comply with an order of court, "thus denying appellants due process of law."). In Grier, this court stated that the trial court commits "fundamental error," when it provides no opportunity for a party to oppose a motion. Id. The failure to provide notice as required by the court's rules deprives the opposing side of an opportunity to raise objections, and the court's action on the motion or petition is erroneous as a matter of law. See Evans v. Evans, 441 A.2d 979, 980 (D.C. 1982) (reversing trial court's denial of motion to vacate orders resulting in ratification of sale of real property where petition for sale and subsequent order were not served on the parties as required by court rule).
Here, the certificate of service shows that the motion was sent by mail to appellants on January 4, 2002. The trial court (Judge Winfield) ruled on the motion first on January 8, 2002, and amended its order January 15, 2002. Both actions were taken by the court before the expiration of the ten days provided by Rule 12-I (e) for appellants to respond. The day of service is not counted, and intermediate Saturdays and Sundays are excluded from the calculation where, as here, the time allowed by the rule for a response is less than eleven days. See Super. Ct. Civ. R. 6 (a) (2003).*fn8 January 4, 2002, was a Friday, and there were two intervening Saturdays and Sundays during the ten day period. Therefore, appellants had until January 18, 2002, to respond to the motion. The ...