Crosby v. Brown

• Court: District of Columbia Court of Appeals
• Decided: February 23, 2023
• Docket: 18-CV-1287
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-CV-1287

LAMONT D. CROSBY, APPELLANT,

v.

KAREN K. BROWN, APPELLEE.

Appeal from the Superior Court of the District of Columbia (2017-CA-000329-V)

(Hon. Brian F. Holeman, Trial Judge)

(Submitted February 13, 2020 Decided February 23, 2023)

Daniel S. Kozma was on the brief for appellant.

Andre M. Forte was on the brief for appellee.

Before HOWARD, ∗ Associate Judge, and FERREN and FISHER, ∗∗ Senior Judges.

∗ On March 3, 2022, Associate Judge Howard was substituted for Associate Judge Beckwith. See Administrative Order 2-22.

∗∗ Senior Judge Fisher was an Associate Judge of the court at the time of submission. His status changed to Senior Judge on August 23, 2020. 2

HOWARD, Associate Judge: Appellant Lamont D. Crosby contends that the

trial court abused its discretion in denying his motion to reinstate his case pursuant

to Superior Court Rules of Civil Procedure 41(b)(3), 60(b)(1), and 60(b)(6), after his

case had been dismissed for failure to appear at a status hearing. We agree. For the

reasons stated below, we reverse the dismissal, reinstate the case, and remand for

further proceedings.

I.

This matter concerns an automobile accident that occurred on January 23,

2014. 1 The appellant, Lamont D. Crosby, alleges that he was injured as a result of

the negligence of the appellee, Karen K. Brown. Mr. Crosby’s previous attorney,

Harold Brazil, filed a complaint on behalf of Mr. Crosby on January 18, 2017.

Nearly a year later, on January 17, 2018, the trial court mailed a mediation

notice to Mr. Brazil and Andre Forte, Ms. Brown’s attorney, setting a mediation

1 The complaint lists both July 3, 2013 and January 23, 2014 as the date that the automobile accident occurred. Given that any cause of action accruing on July 3, 2013, would have been barred by the three-year statute of limitations, D.C. Code § 12-301(8); that neither Ms. Brown nor the trial court raised such an issue; and that Ms. Brown does not dispute Mr. Crosby’s assertion on appeal that the accident occurred on January 23, 2014, we treat the automobile accident as having occurred on January 23, 2014. 3

conference for May 10, 2018. The next day, this court entered an order disbarring

Mr. Brazil by consent.

Mr. Brazil first contacted Daniel Kozma about representing Mr. Crosby in this

case on March 26, 2018. At that time, Mr. Kozma agreed to review the file, but he

did not enter an appearance on behalf of Mr. Crosby. However, both Mr. Crosby

and Mr. Brazil were under the impression that Mr. Kozma had agreed to represent

Mr. Crosby at that time.

Mr. Brazil failed to advise Mr. Kozma and Mr. Crosby of the mediation

scheduled for May 10, 2018. Mr. Forte, Ms. Brown, and her insurance adjuster

appeared for the mediation. Neither Mr. Crosby nor anyone acting on his behalf

appeared for the mediation.

Because Mr. Crosby did not attend the May 10th mediation, the trial court

issued an order, on May 11, 2018, setting a status hearing on July 6, 2018. The trial

court mailed that order to Mr. Brazil and Mr. Forte. Mr. Brazil again failed to advise

Mr. Crosby and Mr. Kozma of the status hearing scheduled for July 6, 2018. Mr.

Crosby had no other notice of the July 6th status hearing. 4

On July 6, 2018, Mr. Crosby failed to appear for the status hearing; thereafter,

the trial court entered an order, pursuant to Super. Ct. Civ. R. 41(b), dismissing Mr.

Crosby’s case without prejudice. However, that dismissal likely amounted to a

dismissal with prejudice. 2 The sole reason listed for dismissal was Mr. Crosby’s

failure to appear for the status hearing. While it is unclear to whom the dismissal

order was mailed, Mr. Crosby gained actual notice of the dismissal on or after July

6, 2018.

Soon after receiving notice, Mr. Crosby reached out to Mr. Brazil and Mr.

Kozma. Mr. Kozma entered an appearance on behalf of Mr. Crosby on July 19,

2018, approximately thirteen days after the dismissal order was mailed. The next

day, on July 20, 2018, Mr. Kozma filed a timely motion on Mr. Crosby’s behalf to

2 We have previously found persuasive a ruling from the United States Court of Appeals for the District of Columbia Circuit that “‘once a suit is dismissed, even if without prejudice, the tolling effect of the suit is wiped out and the statute of limitations is deemed to have continued running from whenever the cause of action accrued, without interruption by that filing.’” Stewart-Veal v. District of Columbia, 896 A.2d 232, 237 (D.C. 2006) (quoting Ciralsky v. Cent. Intel. Agency, 355 F.3d 661, 672 (D.C. Cir. 2004)).

Mr. Crosby’s complaint alleges negligence arising out of an automobile accident that occurred on January 23, 2014. The statute of limitations for such a suit is three years, and, accordingly, ended on January 23, 2017. D.C. Code § 12-301(8). The trial court dismissed Mr. Crosby’s case, without prejudice, on July 6, 2018, a little less than eighteen months after the end of the limitations period. 5

reinstate the action. Mr. Crosby’s motion to reinstate was premised upon Super. Ct.

Civ. R. 41(b)(3), 60(b)(1), and 60(b)(6).

On November 3, 2018, the trial court entered an order denying Mr. Crosby’s

motion to reinstate. The trial court provided the following reasoning for its denial:

Here, there is no indication on the record of a motion to stay proceedings while Plaintiff sought new counsel. There is no indication on the record of a motion to continue the Mediation Conference on May 10, 2018, or the Status Hearing convened on July 6, 2018. Further, it is unclear if Plaintiff acted in good faith, given that there was no indication of dates besides “after some time” or “sometime after.” There is a clear indication that Plaintiff knew that litigation was ongoing. The court cannot conceive how mistake or surprise are supported by the facts presented.

No further explanation was given. This timely appeal followed.

II.

We review the trial court’s denial of a motion to reinstate brought under Super.

Ct. Civ. R. 41(b) and 60(b) for abuse of discretion. See Cameron v. Washington

Metro. Area Transit Auth., 649 A.2d 291, 294 (D.C. 1994) (affirming denial of

motion to reinstate brought under Super. Ct. Civ. R. 41(b) and noting that “[t]he

proper question at this stage is whether or not the trial court has abused its 6

discretion”); Johnson v. Berry, 658 A.2d 1051, 1053 (D.C. 1995) (“The sole issue

on appeal is whether the trial court abused its discretion in denying appellant’s

motion to reinstate its case pursuant to Rule 60(b).”).

At the District of Columbia Courts, “[t]here exists a ‘strong judicial policy

favoring adjudication on the merits of a case.’” Nuyen v. Luna, 884 A.2d 650, 656

(D.C. 2005) (quoting Walker v. Smith, 499 A.2d 446, 448-49 (D.C. 1985)). Due to

this policy, “even a slight abuse of discretion in refusing to set aside a judgment may

justify reversal.” Starling v. Jephunneh Lawrence & Assocs., 495 A.2d 1157, 1159

(D.C. 1985) (citing Clark v. Moler, 418 A.2d 1039, 1041 (D.C. 1980)).

In the trial court’s dismissal order, dated the same day as the status hearing,

the trial court cited one act that, in its opinion, merited dismissal: a single failure to

appear. That, arguably, was itself an abuse of discretion. See LaPrade v. Lehman,

490 A.2d 1151, 1155 (D.C. 1985) (“Courts have found an abuse of discretion in a

trial court’s dismissal with prejudice where the only evidence of intentional delay is

one instance of failure to appear.”). Nor did the trial court contemplate lesser

sanctions—such as an assessment of the defendant’s costs and reasonable fees

against the plaintiff—a failure that could independently merit remand. See District

of Columbia v. Serafin, 617 A.2d 516, 520 (D.C. 1992) (“The trial court’s failure to 7

consider lesser sanctions is sufficient to require a remand.”); LaPrade, 490 A.2d at

1155-56 (listing alternative, lesser sanctions).

The trial court further abused its discretion in improperly applying both

Superior Court Rules of Civil Procedure 41(b)(3) and 60(b) in denying the motion

to reinstate. We look to each in turn.

A. Super. Ct. Civ. R. 41(b)(3)

Under Superior Court Rule of Civil Procedure 41(b), the trial court has the

authority to dismiss an action when a plaintiff fails to comply with an order of the

court. Serafin, 617 A.2d at 519 (citations omitted). However, the dismissal “does

not take effect until 14 days after the date on which it is docketed and must be

vacated upon the granting of a motion filed by the plaintiff within the 14-day period

showing good cause why the case should not be dismissed.” Super. Ct. Civ. R.

41(b)(3) (emphasis added).

The relevant inquiry here is “good cause.” Super. Ct. Civ. R. 41(b)(3). In

determining whether to dismiss a case for failure to prosecute, a trial court is to

examine several factors, including the length of the delay, the reasons for the delay, 8

and any prejudice to the defendant as a result of the delay. Battle v. Jackson, 476

A.2d 1143, 1145 (D.C. 1984) (citing Frazier v. Ctr. Motors, Inc., 418 A.2d 1018,

1020 (D.C. 1980)). It should also evaluate the nature of the party’s conduct,

including whether it was willful. Van Man v. District of Columbia, 663 A.2d 1245,

1247 (D.C. 1995). Importantly, the trial court should first consider other, lesser

sanctions, if appropriate. Serafin, 617 A.2d at 519 (citing Techniarts Video, Inc. v.

1631 Kalorama Assocs., 572 A.2d 1051, 1054 (D.C. 1990)).

While the trial court discussed what Mr. Crosby, or rather his counsel, did not

do for the two-month period from May to July of 2018, it failed to fully consider or

inquire into any other factors. The trial court merely concluded that it was “unclear”

whether Mr. Crosby acted in good faith because the dates provided in his motion—

filed one day after the appearance of counsel—were vague and that neither

“mistake” nor “surprise” were supported by the record. It made this determination

without any additional reference to the record or consideration of the reply, which

provided clarification of dates and periods of time. While these factors certainly

bear on good cause, they are more relevant to the Rule 60(b) inquiry, discussed

below. An analysis of the underlying circumstances and prejudice to the defendant,

which the trial court did not complete, was the minimum analysis necessary to

determine whether Mr. Crosby showed good cause. 9

This case presents unusual circumstances. The trial court mailed a notice on

January 17, 2018, setting a May 10th mediation conference to Mr. Crosby’s original

counsel, Mr. Brazil, one day before this court disbarred Mr. Brazil. From March

2018 until July 2018, Mr. Brazil and Mr. Crosby were both under the mistaken

impression that Mr. Kozma, whom Mr. Brazil reached out to, had agreed to represent

Mr. Crosby in this case. Neither Mr. Brazil nor any other party shared the notice

setting the mediation conference with Mr. Crosby or Mr. Kozma. Mr. Crosby’s

failure to attend the mediation triggered the July 6, 2018 status hearing. Notice of

the July 6, 2018 status hearing was, again, sent solely to Mr. Brazil, despite his being

disbarred for over four months at that time. And, again, Mr. Brazil advised neither

Mr. Crosby nor Mr. Kozma of the status hearing. Mr. Crosby failed to appear for

the status hearing and the trial court dismissed the case on that single basis.

Mr. Crosby did not receive notice of the dismissal of his case until sometime

on or, more likely, after July 6, 2018. Once Mr. Crosby received notice of the

dismissal of his case, he took immediate action, securing Mr. Kozma as his new

counsel within thirteen days. Mr. Kozma then timely filed the motion for

reinstatement, the day after he entered his appearance. 10

Finally, in the present case, an approximately 60-day delay does not create

significant prejudice for Ms. Brown. Although reinstating this case would beget

challenges of logistics and memory, this burden befalls not only Ms. Brown but also

Mr. Crosby. 3

We conclude that Mr. Crosby had good cause for why he failed to appear in

both May and July of 2018. The motion to reinstate should have been granted under

Rule 41(b)(3).

B. Super. Ct. Civ. R. 60(b)

Superior Court Rule of Civil Procedure 60(b), in pertinent part, 4 provides that

the court may relieve a party from a final judgment or order on the basis of mistake,

inadvertence, surprise, excusable neglect, or any other reason that justifies relief.

In considering whether to set aside a dismissal under Rule 60(b), “it is

incumbent upon the trial court to conduct a proper inquiry into the factors behind a

party’s motion for dismissal of default.” Walker v. Smith, 499 A.2d 446, 449 (D.C.

3 And, arguably, more so Mr. Crosby, as he bears the burden of proof at trial. 4 Super. Ct. Civ. R. 60(b)(1) and (6). 11

1985). In conducting this inquiry, the trial court “must” consider the following

factors: “whether the movant (1) had actual notice of the proceedings; (2) acted in

good faith; (3) took prompt action; and (4) presented an adequate defense. Prejudice

to the non-moving party is also relevant.” Starling v. Jephunneh Lawrence &

Assocs., 495 A.2d 1157, 1159-60 (D.C. 1985) (internal citations omitted); see also

Reshard v. Stevenson, 270 A.3d 274, 282 (D.C. 2022) (vacating and remanding a

denial of motion to vacate default judgment when the trial court’s “reasons capture

some of the factors a trial court must consider in evaluating a Rule 60(b) motion,

[but] they do not adequately assure us that the trial court considered all the factors

relevant to its exercise of discretion”) (emphasis added); Reid v. District of

Columbia, 634 A.2d 423, 425 (D.C. 1993) (reversing denial of a motion to vacate a

dismissal of a complaint because “the trial court did not consider the factors

enumerated in either Rule 60(b)(1) or in Starling”). 5

When, as here, “the trial court rules on a Rule 60(b) motion arising from the

case’s dismissal because of a party’s failure to appear at a pretrial conference, it must

consider lesser sanctions (including imposition of attorney’s fees) along with the

other factors relevant to a Rule 60(b) analysis.” Johnson v. Berry, 658 A.2d 1051,

5 We recognize that Reshard and Reid do not fit precisely because both concern default judgment. Nevertheless, these cases provide useful guidance. 12

1053-54 (D.C. 1995) (citing Watkins v. Carty’s Auto. Elec. Ctr., Inc., 632 A.2d 109,

110 (D.C. 1993)) (emphasis added).

In the present case, the trial court abused its discretion in denying Mr.

Crosby’s motion to reinstate the case under Rule 60(b)(1) and Rule 60(b)(6) because

it failed to conduct the appropriate analysis. Although the trial court at least

mentioned “mistake” and “surprise,” it failed to address “inadvertence,” “excusable

neglect,” and “any other reason that justifies relief.” Nor did it apply the Starling

factors. It further neglected to consider any lesser sanction. Had the trial court

addressed the necessary factors, it would have found, as we do below, that Mr.

Crosby was entitled to relief under Rule 60(b).

Whether we classify Mr. Crosby’s actions as “mistake,” “inadvertence,”

“excusable neglect,” or simply apply the catchall provision of “any other reason that

justifies relief,” the evidence establishes that Mr. Crosby was entitled to relief under

Rule 60(b). Based on the circumstances discussed above in the analysis of Rule

41(b)(3), the Starling factors weigh heavily in Mr. Crosby’s favor.

First, Mr. Crosby did not have actual notice until sometime on or after July 6,

2018. Second, Mr. Crosby’s uncontroverted, mistaken belief that Mr. Kozma had 13

elected to represent him and his prompt action after receiving the dismissal

demonstrate good faith, and the record is devoid of evidence of bad faith. Third, Mr.

Crosby acted promptly and diligently in securing Mr. Kozma as his new counsel

within thirteen days of actual notice. 6 We need not address the fourth factor, as we

have previously held that it is only relevant when, unlike here, a defendant seeks to

vacate a default judgment. Johnson, 658 A.2d at 1054.

Finally, as we noted earlier, we recognize that reinstating an older case like

this one would beget challenges of logistics and memory, to the extent such

challenges constitute “prejudice,” this burden would befall both Ms. Brown and Mr.

Crosby—and more heavily on Mr. Crosby who, as plaintiff, bears the burden of

proof at trial. We do not conclude that Ms. Brown is materially prejudiced by

reinstatement of the case.

III.

6 Whether the movant acted promptly “is to be measured from the time the movant discovered the judgment.” Johnson, 658 A.2d at 1054 n.7 (citing Union Storage Co. v. Knight, 400 A.2d 316, 318 (D.C. 1979)). 14

For the foregoing reasons, the trial court’s denial of Mr. Crosby’s motion to

reinstate pursuant to Rules 41(b)(3), 60(b)(1), and 60(b)(6) is reversed, and the

matter is reinstated and remanded for further proceedings.

So ordered.