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Landise v. Mauro

May 31, 2007

SARAH LANDISE, APPELLANT,
v.
THOMAS MAURO, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (No. CA2456-92) (Hon. Michael L. Rankin, Trial Judge).

The opinion of the court was delivered by: King, Senior Judge

Argued January 16, 2007

Before REID and FISHER, Associate Judges, and KING, Senior Judge.

Sarah Landise appeals from an interlocutory order directing her to deposit an additional $5,000 into the court registry pursuant to D.C. Code § 15-703 (b) (2001). She contends that the trial court abused its discretion in directing her to post additional security where she had prevailed at trial on the issue of liability.*fn1 For the reasons set forth below, we conclude that the trial court's order is not appealable at this stage of the proceedings.

I.

Landise, an attorney, initiated this litigation against Thomas Mauro alleging breach of a partnership agreement. The parties had been colleagues in a law firm in Washington, D.C.; however, at the time Landise filed the instant action, she was working for the federal government in Kansas. Given Landise's non-resident status, Mauro filed a motion to require Landise to post security for costs pursuant to D.C. Code § 15-703 (a) (2001).*fn2 The motion was granted on June 18, 1999, and Landise deposited $3,139.33 into the court registry. No appeal was taken by Landise from the order directing her to post this security.

On July 24, 2000, after a remand from this court,*fn3 a jury found that a partnership existed between Landise and Mauro, that Mauro had breached the partnership agreement and that each partner owned a 50 percent share in the profits and losses of the partnership.*fn4 Thus, the jury decided the issue of liability in favor of Landise. However, the trial court did not require the jury to determine what, if any, damages Mauro should pay Landise. Instead, the trial court instructed the parties to select an auditor to conduct an accounting related to partnership assets.

At some point, a dispute arose between the parties regarding the costs of the accounting. Mauro claimed that Landise was refusing to pay her share of the costs related to copying and scanning certain documents, and Landise alleged that Mauro had disregarded an agreement that the copying be done in a particular fashion. As a result of this dispute, Mauro filed a motion to increase the security for costs pursuant to D.C. Code § 15-703 (b), requesting that the trial court order Landise to pay an additional $25,000 into the court registry. In his motion, Mauro represented that "[t]he cost in this accounting process is expected to increase substantially, therefore the security must be increased." In opposing the motion, Landise argued that she should not be required to post an additional bond because she "won at trial and a money judgment will be entered into [sic] her favor." In response to Mauro's motion, the trial court ordered Landise to deposit an additional $5,000 into the court registry as security for costs related to the accounting process. Landise complied with the court's order and deposited the $5,000. On May 7, 2004, she filed the instant notice of appeal.

Before us, Landise asserts that the purpose of D.C. Code § 15-703 is to protect resident defendants from frivolous lawsuits filed by out-of-state plaintiffs. She argues that the trial court abused its discretion in applying the statute to her because the trial judge should have realized that although Landise is a non-resident plaintiff, Mauro is not the type of resident defendant needing protection from D.C. Code § 15-703, as demonstrated by the jury's finding against him on the issue of liability.

On November 30, 2005, Mauro filed a motion to dismiss the appeal for lack of jurisdiction. He argued that the trial court's order directing Landise to post additional security is not an appealable order. Landise filed a motion for an extension of time to file a response; however, this court erroneously interpreted that motion as a response to Mauro's motion. On December 15, 2005, a motions division of this court made a preliminary finding that the order was appealable pursuant to McQueen v. Lustine Realty Co., 547 A.2d 172, 174 (D.C. 1998) (en banc), which held that a protective order in the Landlord and Tenant Branch of the Superior Court is appealable as an injunction pursuant to D.C. Code § 11-721 (a)(2)(A) (1981), because protective orders have the "practical effect" of an injunction. However, on January 26, 2007, after oral argument, we directed Landise to file a response to Mauro's motion to dismiss.

In her response, Landise acknowledges that the trial court's order of April 26, 2004, was not a final order. Nonetheless, she claims that this court has jurisdiction because of two exceptions to the usual requirement that review be of a final order.*fn5 She argues first that the order is appealable under the collateral order doctrine, and second that it has the practical effect of an injunction. We disagree on both claims.

II.

First, Landise claims that this court has jurisdiction under the collateral order doctrine set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Under the collateral order doctrine, an appeal of an interlocutory order is permissible where the order "(1) conclusively determine[s] a disputed question of law; (2) resolve[s] an important issue separate from the merits of the case; and (3) [is] effectively unreviewable on appeal from a final judgment." McAteer, supra note 5, 908 A.2d at 1169.

Cohen was a stockholder's derivative action against a corporation and certain of its individual directors and managers. 337 U.S. at 543. At issue was a district court's refusal to apply a New Jersey statute that required plaintiffs to post security, including attorney's fees, before they could bring an action. Id. The corporate defendant's bylaws provided that the corporation might be required to indemnify the individual defendants if the plaintiff's claim was unsuccessful. Id. at 545. Thus, to ensure its own indemnification, the corporate ...


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