Appeal from the Superior Court of the District of Columbia (CAB3309-06) (Hon. Natalia Combs Greene, Trial Judge)
Before REID and THOMPSON, Associate Judges, and WAGNER, Senior Judge. WAGNER, Senior Judge: This case presents the question whether this court has jurisdiction over an appeal which would be timely only if errors in the underlying judgment defeat its finality. We hold that the errors in the judgment and memorandum order of the court do not affect its validity for purposes of appeal and that appellant's untimely appeal must be dismissed for lack of jurisdiction. We affirm the denial of appellant's post-judgment motion insofar as it sought relief under Super. Ct. Civ. R. 60 (b).
I. Factual and Procedural Background
Appellant, Priscilla Farrow, filed a complaint for damages alleging that she sustained damages as a result of a fall she had outside of the store of appellee, J. Crew Group, Inc. (J. Crew). Originally, Farrow named as defendants 3222 M Street, Inc., The Miller Realty Corporation, and appellee, J. Crew, Inc. Upon a motion filed by Farrow, on August 10, 2007, the trial court (Judge Terrell) dismissed all defendants except J. Crew.*fn1 Farrow continued the litigation against J. Crew only, which included efforts to obtain discovery from J. Crew and related motions. On April 28, 2008, J. Crew filed a motion for summary judgment, and Farrow filed a motion for partial summary judgment. After both parties had filed oppositions to the respective motions, the trial court (Judge Combs Greene) filed an opinion, designated as an order, dated September 25, 2008 and docketed on September 26, 2008, denying Farrow's motion and granting "Defendant's" motion.*fn2 The caption of the opinion lists as defendant, "3223 M Street, Inc., et al.," and the first paragraph of the opinion refers to the motion under consideration as that of "3223 M Street." There is no mention of J. Crew by name. In a separate document dated September 30, 2008 and docketed on October 1, 2008, the trial court entered a judgment that "ORDERED, that Plaintiff takes nothing and JUDGMENT is hereby entered in favor of the Defendant 3223 M Street." The caption of this document again lists as defendant, "3223 M Street, Inc., et al."
On October 27, 2008, Farrow filed a motion for reconsideration of the order docketed on September 26th pursuant to Super. Ct. Civ. R. 59 (e). On October 30, 2008, she filed an additional motion for reconsideration of the court's order docketed on September 30, 2008, citing again Rule 59 (e). By order signed on November 13 and docketed on November 14, 2008, the trial court denied Farrow's Rule 59 (e) motion as untimely, noting that it was not filed until thirty-one days after summary judgment had been granted.*fn3 The trial court also determined that the motion could not be considered properly under Rule 60 and denied it in any event. On December 5, 2008, Farrow filed a notice of appeal.*fn4
J. Crew argues that this court lacks jurisdiction to entertain the appeal because it was not filed timely. Farrow argues that the appeal is not untimely because a proper final order was never entered. Specifically, she contends that the judgment is not final because: (1) it failed to identify J. Crew as the defendant in favor of which it was entered; (2) it was not set forth in a separate document as required by applicable court rules; and (3) she was misled by the circumstances into believing that no appealable order had been entered. Farrow urges this court to consider the appeal to be premature and to exercise jurisdiction upon entry of a proper order in order to avoid a needless waste of judicial resources.
II. Jurisdictional Analysis
J. Crew argues that the appeal is untimely and should be dismissed under D.C. App. R. 4 (a) because it was filed more than thirty days after the entry of judgment and that period was not extended by her filing of a motion under Super. Ct. Civ. R. 59 (e) because the latter motion was itself untimely. Under Rule 4 (a), the notice of appeal in a civil case must be filed "within 30 days after entry of the judgment or order from which the appeal is taken unless a different time is specified by the provisions of the District of Columbia Code." D.C. App. R. 4 (a). It is well established that the time limits specified by Rule 4 are mandatory and jurisdictional. See e.g., Frain v. District of Columbia, 572 A.2d 447, 449 (D.C. 1990) (citations omitted); Robinson v. Evans, 554 A.2d 332, 335 (D.C. 1989) (citations omitted). Unless timely filed, this court has no jurisdiction to entertain the appeal. Id.
The notice of appeal in this case was not filed within thirty days of the judgment appealed from. However, Farrow did file in the trial court two motions under Super. Ct. Civ. R. 59 (e) (motion to alter or amend judgment). Such a motion, if timely filed, will toll the time for noting an appeal until the motion is acted upon. D.C. App. R. 4 (a)(4)(A)(iii) & (B)(i);*fn5 Vincent v. Anderson, 621 A.2d 367, 370-72 (D.C. 1993) (in accordance with D.C. App. R. 4, holding timely a notice of appeal filed within 30 days of the disposition of a timely filed motion under Super. Ct. Civ. R. 59 (e)); Fleming v. District of Columbia, 633 A.2d 846, 849 (D.C. 1993) (holding appellant's appeal untimely where 59 (e) motion not filed within the rule's 10-day time period). Rule 59 (e) requires that a motion to alter or amend the judgment be filed no later than 10 days after entry, which we have recognized to be jurisdictional. Id. (citing D.D. v. M.T., 550 A.2d 37, 42 (D.C. 1988)).
Here, it is undisputed that Farrow did not file either of her Rule 59
(e) motions until well beyond that time. The judgment was entered on
the docket on October 1, 2008, and Farrow filed motions pursuant to
Rule 59 (e) on October 27 and October 30, 2008. Only timely Rule 59
(e) motions operate to toll the time limitations for noting an appeal.
Indeed, "we have stated that Rule 59 (e)'s ten-day period is
jurisdictional . . . and that 'where a motion for reconsideration is
untimely, . . . the denial of such a motion is not an appealable
order.'" Fleming, supra, 633 A.2d at 849 (citation omitted). The party
could challenge the underlying judgment only by filing a timely appeal
from the judgment, which, as we have said, Farrow did not do in this
case. Since Farrow's motion was untimely, it had no tolling effect on
the thirty-day period for noting an appeal. Moreover, the denial of an
untimely Rule 59 (e) motion is not an appealable order.*fn6
Id. (citing Frain, supra, 572 A.2d at 450 n.6). Ordinarily,
these circumstances would require dismissal of the appeal as untimely.
However, in support of her claim that this court has jurisdiction over
her appeal, Farrow makes three arguments that require
First, Farrow argues that because the summary judgment order refers to the previously dismissed corporation, 3222 M Street, Inc., as the defendant, instead of the only remaining defendant, J. Crew, there is no final appealable order. Therefore, she contends, this court should treat the appeal as premature and entertain same upon correction of the error. The question is whether the error omitting the name of the sole defendant remaining in the case from the judgment renders it invalid. We have not previously squarely decided this issue, but federal courts, interpreting similar federal rules, have held that "clerical errors contained in the judgment do not render it invalid."*fn7 Pratt v. Petroleum Prod. Mgmt. Emp. Sav. Plan & Trust, 920 F.2d 651, 655 (10th Cir. 1990). Relevant to this case, one question addressed in Pratt was whether the district court's judgment was final for purposes of appeal where the judgment referenced the defendants using an old corporate name and the "et al." designation. Id. The 10th Circuit rejected the argument of the three unspecified defendants that the judgment was not final and that a remand was required for proper entry of judgment, which would have given them an opportunity to note a timely appeal upon entry of a corrected judgment.*fn8 Id. The court reasoned that the judgment required only a clerical correction which could be remedied readily through Fed. R. Civ. P. 60 (a). Id.We find the reasoning in Pratt persuasive.
Farrow argues that the reference in the trial court's judgment to a dismissed defendant is not the type of error that can be corrected through Super. Ct. Civ. R. 60 (a). She contends that the decision in Pratt is distinguishable and supportive of her position. Specifically, she points out that Pratt involved an inadvertent omission from the judgment of prejudgment interest which could be ascertained readily by reference to the court's memorandum opinion and order. She argues that, unlike this case, the district judge did not make a mistake as to the party involved, and there was no error in the body of the court's memorandum.
Contrary to Farrow's argument, the judgment in Pratt, as we have said, did not reference any of the individual defendants by name either in its caption or body. Pratt, 920 A.2d. at 655. The caption of the judgment identified only the corporate employer under an old corporate name and used the "et al." designation for any other defendants. Id. While the district court's separate memorandum and order granting summary judgment named all defendants (with the corporate defendant under its former name), we do not regard that a significant distinguishing fact. The judgment required reference to another document for clarification and clerical correction. See id. The Pratt court considered the question of enforceability of the judgment without correction to be a different issue than the jurisdictional question presented by the notice of appeal. That court determined the errors in the judgment to be of no major consequence and readily correctable through Fed. R. Civ. P. 60 (a). Id.
Similarly, in the present case, the caption references a previously dismissed defendant accompanied by the "et al." designation. While the body of the judgment in this case also incorrectly lists a previously dismissed defendant as the moving and prevailing party on summary judgment, this is not a case in which the party against which judgment was intended was not clear, thereby precluding correction through Rule 60 (a). See Pratt, supra, 920 F.2d at 653-54 n.5.*fn9 Only one party defendant, J. Crew, remained in the case, and therefore, no other defendant could have been intended. Further, the judgment entered by the court for the defendant states that "[p]laintiff takes nothing," thereby making clear that Farrow was denied any recovery from the defendant, albeit that the defendant was incorrectly identified. This is precisely the type of error correctable through Rule 60 (a).*fn10 A correction that simply conforms judgment to the original intention of the court can be effected properly through Rule 60 (a). Id.; accord Harman v. Harper, 7 F.3d 1455, 1457 (9th Cir. 1993) (citing Robi v. Five Platters, Inc., 918 F.2d 1439, 1445 (9th Cir. 1990) (other citations omitted));*fn11 see also ...