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George Purcell and Fedora Inc v. Marva E. Thomas

September 29, 2011

GEORGE PURCELL AND FEDORA INC., APPELLANTS,
v.
MARVA E. THOMAS, APPELLEE. MARVA E. THOMAS, APPELLANT,
v.
ACCREDITED SURETY AND CASUALTY COMPANY, INC., APPELLEE.



Appeals from the Superior Court of the District of Columbia (CAB-7906-00) (Hon. Mary Ellen Abrecht, Trial Judge) (Hon. Mary A. Gooden Terrell, Trial Judge)

The opinion of the court was delivered by: Steadman, Senior Judg

Argued February 9, 2011

In these consolidated appeals involving an award of attorney fees, two distinct but related matters are presented to us for resolution. George Purcell and Fedora, Inc. argue that the trial court erred in awarding attorney fees to Marva Thomas approximately six years after Thomas obtained a sizeable judgment against them in the underlying sexual harassment suit, which was subsequently upheld on appeal. Thomas argues that the trial court erred in determining that appellants' supersedeas bond obtained to stay the judgment during the appeal did not cover Thomas's subsequent award of attorney fees. We affirm both trial court rulings.

I.

We first address the question of the delayed attorney fees award. On June 18, 2003, following an eight-day jury trial, the trial court docketed the judgment in Thomas's favor in a sexual harassment claim against appellants. On July 2, 2003, Thomas filed a motion for attorney fees. She submitted a signed affidavit supporting her motion for attorney fees on September 24, 2003, documenting time spent between December 10, 1999 and July 2, 2003. Purcell and Fedora, Inc. appealed the underlying judgment on September 12, 2003*fn1 , and approximately four years later, on July 26, 2007, this court affirmed the trial court's judgment. See Purcell v. Thomas, 928 A.2d 699 (D.C. 2007). During the pendency of the appeal, no action was taken by any party, or the trial court, with regard to Thomas's July 2, 2003, motion for attorney fees.

On August 14, 2007, a couple of weeks after this court affirmed the trial court's judgment in favor of Thomas, Thomas filed a supplemental memorandum requesting that the trial court grant the July 2003 motion for attorney fees, and also award fees for attorney time spent between July 2, 2003 and August 13, 2007 (during the first appeal process).*fn2 During the August 20, 2008 hearing on the motion for attorney fees, the trial court rejected appellants' argument that the court could no longer award Thomas attorney fees. The court noted that "once the [timely] request [for attorney fees] has been made, [the court may] postpone ruling on a fee request until after the merits of the case have been fully review[ed] on appeal." On March 16, 2009, the trial court granted Thomas's request for attorney fees in part, awarding her $590,807.00 for time spent during trial and on appeal. This appeal followed.*fn3

On appeal, Purcell and Fedora, Inc. do not challenge the amount of the award. Instead, they contend that the trial court erred by granting a motion for attorney fees relating to the trial process in March 2009, long after July 2003, when Thomas filed her initial fee request following the trial judgment. Specifically, they contend that the trial court erred in awarding Thomas attorney fees because she purportedly failed to diligently prosecute her motion with the trial court, and thus, failed to preserve the motion. They contend that by failing to promptly request either a ruling at an earlier time, a stay, or an order of deferment, or by failing to appeal the trial court's failure to issue a ruling, Thomas gave up her right to seek attorney fees for work performed during trial. They further contend that although the trial court could have, sua sponte, indicated that it would defer ruling on the motion pending the appeal process, the trial court did not take any such action and as a result, the motion "died" and could not be revived.*fn4

Generally, a "request for attorneys' fees raises issues that are, for all practical purposes, 'collateral to' and 'separate from' the decision on the merits" of the underlying litigation. Weaver v. Grafio, 595 A.2d 983, 986 (D.C. 1991) (citation omitted).*fn5 A party wishing to appeal the underlying judgment should not wait until a decision on the attorney fees has been rendered; the judgment disposing of the merits is immediately appealable, and the decision regarding attorney fees may be appealed separately. Id. Indeed, if a litigant waits to appeal the underlying judgment until the attorney fees issue has been resolved, and that resolution does not occur within the time allowed for an appeal from the underlying judgment, the appeal of the underlying judgment is deemed to have come too late and only the attorney fees issue will be addressed on appeal. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201-03 (1988).

In order to receive attorney fees, the prevailing party must file and serve its motion for attorney fees no later than fourteen days after entry of the judgment. Super. Ct. Civ. R. 54. The trial court, however, need not resolve the motion immediately; in this jurisdiction, as in federal practice, the trial court may defer ruling on the motion if an appeal is pending.*fn6

District of Columbia v. Jackson, 878 A.2d 489, 494 (D.C. 2005); Breiner v. Daka, Inc., 806 A.2d 180, 183 (D.C. 2002). The Advisory Committee Note to Fed. R. Civ. P. 54 (d)(2)(B) specifically provides: "[i]f an appeal on the merits of the case is taken, the court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice . . . ."*fn7 Indeed, "aquick resolution of the fee issue is not always desirable." 10 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 54.151[1] (3d ed. 2011). "For instance, if the status of the fee movant as a prevailing party is subject to serious challenge, the [trial] court may find it desirable to postpone any decision on fees until after an appeal has confirmed the merits judgment." Id. One of the reasons the rules require a party seeking attorney fees to be filed before the period in which an appeal may be taken expires is to "clarify for the parties, as well as for the court, . . . the contested legal issues relevant to entitlement to fees that need to be decided as part of the underlying case." Jackson, 878 A.2d at 492. It does not appear at all unusual for the Superior Court to defer a decision on a request for attorney fees pending resolution of appeal due to the uncertainty over a party's status as the prevailing party. See, e.g., id., at 494 n.5.

Appellants' argument that the trial court erred by failing to sua sponte issue an order indicating it was going to defer ruling pending appeal, or that Thomas waived her request for attorney fees, is unpersuasive. Appellants provide no support for their assertion that some additional action, beyond timely filing, had to have been taken in order to preserve the issue, and this court is not aware of any. Here, the trial court acted within the parameters of Rule 54 (d)(2)(B). See Super. Ct. Civ. R. 83 ("A judicial officer may regulate practice in any manner consistent with applicable law . . . ."). Moreover, we have indicated that filing the attorney fees motion within the fourteen day time frame set forth in Rule 54 (d)(2)(B) (or within the time frame specified by the court) was sufficient to preserve the request pending appeal. See id., at 494. Interestingly, this jurisdiction's federal district court rules specifically state that the district court may conduct a status conference where the court "shall make a specific determination as to whether, in the interest of justice, the fee issues . . . should be considered or be held in abeyance pending the outcome of the appeal." D.C. Dist. Ct. LCvR 54.2 (b) (2011). Conducting a status conference and specifically determining whether the fee request shall be deferred, however, is not mandatory--in the event the court does not schedule a conference, the parties are directed to follow Fed. R. Civ. P. 54 (d)(2). Id. at 54.2

(a). At bottom, Superior Court rules do not mandate that an additional step, beyond timely filing, is necessary to preserve a motion for attorney fees pending the outcome of the appeal.*fn8

Thomas preserved her request for attorney fees by timely filing her motion, and the trial court did not err in acting on the motion after the ...


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