Submitted Dec. 19, 2012.
Olekanma A. Ekekwe-Kauffman filed a brief for appellant.
Peter C. Thomas, Christopher R. Kelly, Conor Reidy, and Jonathan D. Porter, Washington, DC, filed a brief for appellee.
Before FISHER and THOMPSON, Associate Judges, and RUIZ, Senior Judge.
RUIZ, Senior Judge:
This is the second appeal in a landlord-tenant dispute between Winfield Clark (the landlord) and Kisha Bridges (the tenant). In a recently published opinion, Bridges v. Clark, 59 A.3d 978 (D.C.2013), this court reversed a jury verdict in the landlord's favor in an eviction action for nonpayment of rent. Before that judgment of possession was reversed on appeal, however, the trial court had permitted the tenant to redeem her tenancy and remain in possession of the property. Id. at 982. The landlord filed a second complaint (apparently before the jury trial on the first complaint) this time seeking a non-redeemable judgment of possession for the tenant's breach of the terms of the lease. Id. at 981. That complaint went to trial in December 2011 and concluded with a jury verdict in the tenant's favor. We now review the landlord's appeal of that judgment.
I. Time to Appeal Under D.C. Appellate Rule 4
Before we address the substantive merits of the landlord's appellate contentions, we pause to review an earlier order deeming the appeal to have been timely filed. This court's rules require that an appellant file a notice of appeal within the time period provided in D.C. Appellate Rule 4. The tenant filed a motion to dismiss the appeal, arguing that this Court does not have jurisdiction over an appeal that was not timely filed. (citing Circle Liquors, Inc. v. Cohen, 670 A.2d 381, 385 (D.C.1996)). The landlord had an opportunity to file a response to the tenant's motion to dismiss, but did not do so. A Motions Division of this court denied the tenant's motion to dismiss the landlord's appeal. However, a Merits Division of this court is not bound by a Motions Division's decision to deny a motion to dismiss an
appeal, Jung v. Jung, 844 A.2d 1099, 1107 n. 8 (D.C.2004), unless the motion is denied with prejudice. District of Columbia v. Trs. of Amherst College, 499 A.2d 918, 920 (D.C.1985). The Motions Division order was not " with prejudice," so we may reconsider its decision. We do so in order to highlight a change in court rules that may create a trap for the unwary civil litigant who wishes to file a timely appeal.
Subject to provisions not at issue here, an appeal in a civil case must be taken " within 30 days after entry of the judgment or order from which the appeal is taken." D.C.App. R. 4(a)(1). D.C. Appellate Rule 4(a)(6) defines " entry of the judgment," explaining that " [a] judgment or order is entered for purposes of this rule when it is entered in compliance with the rules of the Superior Court." However, " [w]hen a rule of the Superior Court requires service of the notice of the entry of a judgment or order to be made by mail, the judgment or order will not be considered as having been entered, for the purpose of calculating the time for filing a notice of appeal, until the fifth day after the Clerk of the Superior Court has made an entry on the docket reflecting the mailing of notice by that clerk." Id. (emphasis added).
The practical application of these provisions was explained by this court in Singer v. Singer, 583 A.2d 689 (D.C.1990). There, the court held that the plain language now included in D.C. Appellate Rule 4(a)(6) created a five-day period (exclusive of weekends and legal holidays) that preceded the commencement of the ensuing thirty-day period for noting an appeal under D.C. Appellate Rule 4(a)(1). Accordingly, the two time periods were calculated separately, affording affected parties a variable total time period of at least thirty-five days (depending on intervening weekends and holidays) in which to file a notice of appeal. Indeed, for a time, almost all parties received the benefit of the extra five days. In Cooter v. Chapman, 885 A.2d 1279, 1280 (D.C.2005), this court noted the effect of a change in the text of the rules, which deleted an earlier clause that applied this five-day period to only those judgments and orders " entered or decided out of the presence of parties and counsel." At that time Superior Court Civil Rule 77(d) (2005) required service by mail " in virtually all civil cases," so almost all parties were entitled to the extra time for mailing provided by our rule. Id. (noting inapplicability of earlier cases, like District of Columbia v. Murtaugh, 728 A.2d 1237, 1242 (D.C.1999), which had been decided under previous rule).
However, the rules applied by the court in Cooter have changed ...