E-Alert Case Updates

Landlord’s Appeal to District of Columbia Court of Appeals Deemed Timely Filed Due, in Part, to Legitimate Uncertainty Surrounding the Applicable Rules

Clark v. Bridges
No. 12-CV-49 (District of Columbia Court of Appeals, August 22, 2013)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this landlord-tenant case, the central issue was whether the landlord’s appeal was timely filed under D.C. APP. R. 4. The landlord sought a non-redeemable judgment of possession in his favor for the tenant’s alleged breach of lease. The tenant prevailed at trial. The landlord appealed. The tenant moved to dismiss the tenant’s appeal as untimely filed.

An appeal in a civil case must be taken “within 30 [thirty] days after entry of the judgment or order from which the appeal is taken.” See D.C. APP. R. 4(a)(1). According to D.C. APP. R. 4(a)(6), “[A] judgment or order is entered for purposes of this rule when it is entered in compliance with the rules of the Superior Court.” Id. [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, however, 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). Therefore, until 2005, parties had a time period of at least thirty-five days (depending on intervening weekends and holidays) in which to file a notice of appeal. SUPERIOR COURT CIVIL RULE 77(d), prior to 2005 amendments, required service by mail in virtually all civil cases, so almost all parties were entitled to the extra five (5) days for mailing.

In 2005, though, SUPERIOR COURT CIVIL RULE 77(d) was amended, so that service by mail was not required in all cases. The Rule permitted service by, inter alia, in-person or electronic delivery. The five (5) day time period provided for in D.C. APP. R. 4(a)(6) was no longer triggered by SUPERIOR COURT CIVIL RULE 77(d), since the additional five (5) days only applied when the Superior Court Rules “required” service by mail. Therefore, under the current rules, parties must note an appeal within thirty (30) days, and do not get the additional five (5) day period for service by mail any longer. The Court noted that this interpretation was consistent with court rules applicable in Federal Courts of Appeal, to which the District of Columbia Court of Appeals rules were intended to conform.

Here, the jury rendered its verdict on December 7, 2011. The clerk docketed the judgment on the same day, which was the effective date of entry. The thirty (30) calendar day period required the notice of appeal to be filed by January 6, 2012, but here, the appeal was not filed until January 13, 2013. The Court deemed the appeal as timely filed, though, given that it would have been timely filed if appellant was entitled to the extra five (5) day period, given the legitimate uncertainty about how D.C. APP. R. 4(a)(6) functioned after the 2005 Superior Court Rule amendments, and given the fact that in almost all civil cases, parties received the benefit of the extra five (5) days to appeal for quite some time before the 2005 amendments.

In terms of the merits of the case, the appellate court held that the trial court properly permitted only one (1) claim of breach of lease to go to the jury: whether the tenant had denied potential purchasers reasonable access to the property. As noted earlier, the jury returned a verdict in the tenant’s favor on this issue. The appellate court disposed of all of the landlord’s arguments on appeal and affirmed the judgment of the jury in favor of the tenant.