January 20, 2011
PRISCILLA FARROW, APPELLANT,
J. CREW GROUP INC., APPELLEE.
Appeal from the Superior Court of the District of Columbia (CAB3309-06) (Hon. Natalia Combs Greene, Trial Judge)
Argued March 11, 2010
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 Tolson v. District of Columbia, 860 A.2d 336, 341 (D.C. 2004) (noting that the court has authority to vacate a judgment to correct clerical errors).*fn12 It is clear from the judgment and order that the case was finally and adversely decided against Farrow and in favor of the only remaining defendant.*fn13
Second, Farrow argues that the judgment is not final because it is not set forth in a separate document as required by Super. Ct. Civ. R. 58, which incorporates requirements of Super. Ct. Civ. R. 54 (b). She contends that when taken together, these rules require a separate document because there had been multiple parties in the case. Farrow argues that only a judgment entered in accordance with these rules will commence the running of the time for noting an appeal.
Rule 54 (b) applies to judgments involving multiple claims or multiple parties.*fn14
Application of the rule preserves the policy against piecemeal appeals. Peoples v. Warfield & Sanford, Inc., 660 A.2d 397, 401 (D.C. 1995) (citing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8 (1980)). This rule also prevents a premature appeal of some claims from defeating the proper resolution of the case as a whole. Id. A judgment must dispose of all claims against all parties in order to be final for purposes of appeal. Berryman v. Thorne, 700 A.2d 181, 182 n.3 (D.C. 1997) (recognizing that this court lacked jurisdiction until all matters were decided subsequent to the filing of the appeal) (citing In re Estate of Chuong, 623 A.2d 1154, 1157 (D.C. 1993) (en banc)). Therefore, adjudication of fewer than all claims against all parties, absent certification under Rule 54 (b), is not appealable. Id.
Farrow's argument is that because there were multiple parties in the litigation at one time, the judgment against J. Crew cannot be final. That outcome would be contrary to the plain meaning and purpose of Rule 54 (b). The rule is clearly directed toward a judgment involving fewer than all claims or parties. Here, only plaintiff Farrow and defendant J. Crew remained as parties in the case at the time that judgment was entered. Therefore, there was no basis for the court to make a determination under Rule 54 (b) that there was no reason to delay the entry of judgment while the case proceeded against others or on other claims. See Peoples, supra, 660 A.2d at 401-02 (explaining the kind of separability required to justify Rule 54 (b) certification) (citations omitted). There were no other claims being pursued. In short, Rule 54 (b) is inapplicable and serves no purpose as relates to the entry of a final judgment disposing of all claims as to all parties. See Super. Ct. Civ. R. 54 (b).*fn15
Farrow also looks to Super. Ct. Civ. R. 58, which is subject to the provisions of Rule 54 (b), in support of her argument that the entry of judgment was not final. Rule 58 requires that a judgment be set out in a document separate and distinct from any opinion or memorandum of the court.*fn16 District of Columbia v. Murtaugh, 728 A.2d 1237, 1243 (D.C. 1999) (citing Spann v. Colonial Vill. Inc., 283 U.S. App. D.C. 216, 224, 899 F.2d 24, 32 (1990)). The time for noting an appeal does not begin to run until the separate-document requirement is met. See id. The purpose of the separate document rule is to clarify when the time for noting an appeal commences to run and to avoid the inequities that might occur when a party appeals from a document or docket entry that appears to be final, but is not. Id. at 1242-43 (citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 384 (1978)).
Farrow argues that Rule 58 and Rule 54 (b) together require that the judgment be set forth in a separate document. In this case, the trial court signed, and there is entered on the docket, a separate document setting forth the court's judgment in which it specified that plaintiff (Farrow) takes nothing and that judgment is entered in favor of defendant, although the latter is identified incorrectly as the previously dismissed "3223 M Street" corporate defendant. Thus, the gravamen of Farrow's argument is that the requirement of the separate document rule is not met here because the prevailing defendant was misidentified. For the reasons we have stated in our earlier discussion, we do not agree that the separate judgment entered in this case is invalid because of the error in identifying the only remaining defendant in the case at that time. See Pratt, supra, 920 F.2d at 655. As previously explained, it was clear what defendant was intended, as only one defendant remained in the case, and the error is one that is readily correctable through Rule 60 (a). See id.
Finally, Farrow suggests that she was misled by the circumstances into believing that no appealable order had been entered. We are not persuaded by this argument, particularly given the facts of this case. Farrow was well aware that J. Crew was the only remaining defendant in the case. All other parties in the case had been dismissed upon Farrow's own motion more than a year before the entry of judgment in favor of J. Crew. Extensive litigation continued only against J. Crew. Farrow treated the judgment as final. She filed her motions for reconsideration under Super. Ct. Civ. R. 59 (e), which addresses altering or amending a judgment. In the 59 (e) motion filed on October 30th, she lists the next event as "Appeal." The arguments in the motion claim errors of law in the trial court's ruling, which are properly considered under Rule 59 (e). See Puckrein v. Jenkins, 884 A.2d 46, 53 n.8 (D.C. 2005) (noting that motions for reconsideration asserting errors of law are generally treated under Rule 59 (e)); Wallace v. Warehouse Employees Union #730, 482 A.2d 801, 804 (D.C. 1984) (explaining that requests for relief from consequences of original order on the basis of errors of law are properly considered under Rule 59 (e)). In her notice of appeal, Farrow responds in the affirmative to the question whether the order appealed from is final "(i.e., disposes of all claims and has been entered by a Superior Court Judge, not a Magistrate Judge)." It is clear from the record that Farrow recognized the trial court's judgment as a final disposition of the case and treated it as such. Even if no separate document is entered in a case, it will be deemed waived "where (1) no party objects to the taking of the appeal in the absence of a separate judgment, and (2) it is clear that the trial court intended its action to be the final decision in the case." Murtaugh, supra, 728 A.2d at 1243 n.4; Pratt, supra, 920 F.2d at 655-56 (citing Bankers Trust, supra, 435 U.S. at 386-87 and Laidley, supra note 8, 914 F.2d at 1390) (noting that parties can waive strict compliance with the separate judgment rule and that where they are not misled into believing an order is non-final, lack of technical compliance with Rule 58 will not preclude appellate review.) In sum, we conclude that Farrow was not misled into believing that no final order had been entered, and that in any event, she waived any technical non-compliance with the separate document requirement. For all of the foregoing reasons, Farrow's appeal from the underlying judgment is untimely, and this court lacks jurisdiction to review it.
III. Consideration Under Rule 60 (b)
While precluded from reviewing the merits of the underlying judgment, this court does have jurisdiction to review the trial court's order insofar as it denied relief under Super.
Ct. Civ. R. 60 (b).*fn17 See Fleming, supra, 633 A.2d at 849 (finding an appeal on the merits untimely, and limiting review to denial of a 60 (b) motion). Appellate review of denial of a 60 (b) motion is limited to whether the trial court abused its discretion in denying the motion. Brown v. Kone, Inc., 841 A.2d 331, 333 (D.C. 2004) (citation omitted) (setting forth the standard of review); accord Fleming, 633 A.2d at 849. In this case, the trial court denied Farrow's request for relief from judgment under Rule 59 (e), but added that even assuming that the motion could be considered under Rule 60, the motion would be denied. The grounds for Farrow's motion were essentially mistakes of law.*fn18 Where "the movant is seeking relief from the adverse consequences of the original order on the basis of error of law, the motion is properly considered under Rule 59 (e)." Wallace, supra, 482 A.2d at 804 (citations omitted). Where the moving party requests for the first time consideration of additional circumstances, the motion is properly considered under Rule 60 (b). Id. Farrow did submit with her motion the full transcripts of the testimony of her building safety expert and the safety expert for J. Crew, only excerpts of which had been provided the trial court previously. Those transcripts have not been made a part of the record on appeal. The party appealing has the burden of presenting a record sufficient to show trial court error. Cobb v. Standard Drug Co., Inc., 453 A.2d 110, 111 (D.C. 1982) (citation omitted). Farrow has not met that burden. The record is inadequate to determine whether the trial court abused its discretion in denying relief under Rule 60 (b) based on the submission of the additional documents, and we discern no abuse of discretion based on the material that is before us.
For the foregoing reasons, we dismiss the appeal of the underlying judgment for lack of jurisdiction. We affirm the trial court's denial of appellant's post-judgment motion insofar as it sought relief under Rule 60 (b). We remand the case to the trial court for correction of the record to reflect the judgment in favor of J. Crew.