Appeal from the Superior Court of the District of Columbia (CA9436-98) (Hon. Melvin R. Wright, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before FARRELL and REID, Associate Judges, and KERN, Senior Judge.
Appellant Marilyn Hudson appeals from the trial court's denial of her motion to vacate judgment and set aside default relating to a lawsuit against her for legal fees, her third-party claim against appellee David Shapiro for reimbursement in the event she was deemed liable, and his counterclaim against her for additional legal fees. She primarily argues that the default judgment "was void [under Super. Ct. Civ. R. 60 (b)(4)] due to various procedural defects," and therefore the trial court erred by not vacating that judgment. She also argues that her motion to vacate judgment and set aside default should have been granted under Super. Ct. Civ. R. 60 (b)(6). We vacate the judgment of the trial court and remand this case for a determination as to whether the default judgment was void under Rule 60 (b)(4) because of a due process violation.
The record before us shows that on June 1, 1992, Ms. Hudson, then an Assistant United States Attorney in Knoxville, Tennessee, retained the law firm of Kator, Scott & Heller "to represent [her] in connection with [her] claim of sex discrimination, retaliation and Privacy Act [violations] against [her] employer, the United States Department of Justice." Mr. Shapiro apparently was the main attorney assigned to her at the firm. Subsequent to the execution of the retainer agreement, Mr. Shapiro left the firm. At that time, the law firm indicated that Ms. Hudson owed $17,643.80 in legal fees.
No new retainer agreement was executed between Mr. Shapiro and Ms. Hudson after he left the firm, although Mr. Shapiro allegedly negotiated her "out of" the retainer agreement with Kator, Scott & Heller. Mr. Shapiro continued to represent Ms. Hudson in the United States District Court for the Eastern District of Tennessee, and eventually obtained a judgment in her behalf in the amount of $536,396.15, as well as interest, and attorney's fees totaling $430,752.28.
Subsequent to the federal court award, a dispute arose as to how much Mr. Shapiro and his former law firm were entitled to in attorneys' fees. On December 11, 1998, Kator, Scott & Parks, allegedly a successor firm to Kator & Scott which was the successor to Kator, Scott & Heller, filed a complaint in the trial court against Ms. Hudson, seeking the sum of $23,641.82 as monies due and owing on the retainer agreement that Ms. Hudson signed with Kator, Scott & Heller. Ms. Hudson in turn filed a motion to dismiss on April 7, 1999, which was denied based on the filing of proof of service. Ms. Hudson lodged an answer to the complaint on July 1, 1999, and a third-party complaint against Mr. Shapiro seeking indemnity and contribution from him with respect to any sum the court might find that she owed to Kator, Scott & Parks. Mr. Shapiro filed an answer, and a counterclaim against her on July 30, 1999, which she answered on August 27, 1999.
Mediation was scheduled on three different occasions -- April 17, 2000, June 21, 2000, and August 14, 2000. Neither Ms. Hudson nor her counsel appeared for these mediation sessions. On August 14, 2000, the court apparently entered a default against Ms. Hudson concerning Mr. Shapiro's counterclaim against her, although there is no docket entry to that effect. An ex parte proof hearing took place on October 13, 2000. On October 23, 2000, the trial court entered a default judgment against Ms. Hudson and in favor of Mr. Shapiro with respect to their claims against each other. Judgment was in the amount of $134,099.04. The docket sheet does not indicate that any written notice of the application for judgment was served on Ms. Hudson.
Years later, on August 18, 2003, Ms. Hudson filed a motion to vacate judgment and set aside default, after Mr. Shapiro contacted her around June 2003, to request payment on the default judgment. She maintained that "the required procedures for noting [the] default and taking a default judgment were not followed;" that she "never received notice of the ex parte hearing on damages which preceded the judgment, as [the] notice was not properly addressed;" and that she "was unaware that the Court had entered judgment against her until late May or early June 2003, when . . . [Mr.] Shapiro . . . contacted her in an effort to collect upon the judgment." She specifically invoked Super. Ct. Civ. R. 55 (b). Ms. Hudson's motion was opposed by Mr. Shapiro, primarily on the ground that she had failed to attend three scheduled mediation sessions in the case. He maintained that the trial court "correctly entered a default sua sponte against [Ms.] Hudson for her inexcusable and deliberate failure to appear for the third time at a scheduled mediation," and cited Super. Ct. Civ. R. 16 (I) (sic)*fn1 and Rule 37 (b)(2). He also argued that the trial court "correctly entered final judgment on the default against [Ms.] Hudson based on evidence provided by [him] in a duly noticed ex parte hearing," citing Rules 55 (b)(2) and 55 (d); he claimed that Ms. Hudson was not entitled to relief under Rule 60 (b)(4) or (6). In her opposition to Mr. Shapiro's response, Ms. Hudson maintained that "two of the mediation dates had been continued by mutual agreement," and that in addition to her reliance on Super. Ct. Civ. R. 60 (b)(6), "her motion was properly filed . . . under Rule 60 (b)(4)."
The trial court heard the parties on the motion on October 17, 2003. The trial court at the outset of the hearing asked counsel for Ms. Hudson, "[i]sn't there an obligation upon counsel to check on the status of a case?" Counsel for Ms. Hudson explained that the notice of the ex parte hearing on damages that was sent to the attorney in Tennessee who represented Ms. Hudson at that time was not effective because "the zip code and the substance of the message got merged" when the notice was generated by the computer. The trial court asked whether counsel was "suggesting that . . . without a zip code it couldn't have been delivered;" counsel replied, in part, "[it] could have, but it might not have . . . and [the former attorney] did not actually receive it and I believe that he did not receive it because there was an issue with the way that the notice was addressed." The trial court noted that there was no indication in the court jacket for the case that the notice had been returned. Ms. Hudson further stated that the trial court had not considered lesser sanctions, and apparently did not do so because it believed that she had failed to attend three mediation sessions when, in fact, the parties agreed to continue two of the sessions. In its analysis of the situation, the trial court focused on the date on which the motion to vacate judgment and set aside default had been filed:
It has been three years -- almost three years since this judgment has been entered and counsel has an obligation until it has been relieved by a court order to maintain knowledge of what the condition of the case is.
In addition, the trial court suggested that since former counsel had not attended the required mediation in the case on three different occasions, he had a "responsibility under the canon of ethics" "to find out what happened after the mediation." Although the trial court did not issue a written memorandum and order, the judge stated at the conclusion of the hearing:
The court believes and the law indicates that counsel have a continuing duty to understand what's ...