Kubichek v. Unlimited Biking Washington, DC, LLC

• Court: District of Columbia Court of Appeals
• Decided: February 6, 2025
• Docket: 23-CV-0411 & 23-CV-0412
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 23-CV-0411 & 23-CV-0412

MARILYN KUBICHEK, et al., APPELLANTS,

v.

UNLIMITED BIKING WASHINGTON, D.C., LLC, et al., APPELLEES. 1

Appeals from the Superior Court of the District of Columbia (2022-CAB-006101 & 2022-CA-006102-B)

(Hon. Hiram Puig-Lugo, Trial Judge)

(Argued April 11, 2024 Decided February 6, 2025)

D. Cory Bilton for appellants.

Anne K. Howard, with whom David Fleishman, and Walter E. Gillcrist, Jr.,

were on the brief, for appellee Eduardo Samonte.

Before BECKWITH and DEAHL, Associate Judges, and RUIZ, Senior Judge.

1 Even though Unlimited Biking Washington, D.C., LLC appears on the case caption, it did not appear in the trial court, file a notice of appeal, or submit a brief. 2

RUIZ, Senior Judge: Appellants Marilyn Kubichek and Dorothy Baldwin

appeal the Superior Court’s grant of a motion to dismiss their negligence action

against Eduardo Samonte, appellee, and Unlimited Biking Washington, D.C., LLC.

Specifically, appellants contend that: (1) the case should not have been dismissed as

to Unlimited Biking because it never filed an answer or moved to dismiss the

complaint, and (2) the Superior Court erred in concluding that the various orders

issued by the Superior Court during the COVID-19 pandemic did not toll the

limitations period for their negligence claims. We disagree on both counts and

affirm the grant of the motion to dismiss.

I. Background and Procedural History

This appeal relates to a negligence action stemming from a Segway accident.

On October 11, 2019, appellants Marilyn Kubichek and Dorothy Baldwin were

walking on the sidewalk of 12th Street NW, in Washington, D.C. At the same time,

appellee Eduardo Samonte was participating in a guided Segway tour run by

Unlimited Biking. While operating his Segway, appellee Samonte struck both

appellants.

Before appellants filed their complaints, on March 18, 2020, in response to

the COVID-19 pandemic, the Joint Committee on Judicial Administration

authorized the Chief Judge of the Superior Court of the District of Columbia to issue 3

orders tolling statutory deadlines (“tolling orders”). The first such order, issued on

March 19, 2020, tolled some statutes of limitation for the duration of the emergency.

A succession of orders extended the emergency period in civil cases until March 31,

2021.

On December 30, 2022, appellants jointly filed two complaints: one alleged

that appellee Samonte negligently operated the Segway and caused their injuries,

and the other alleged that Unlimited Biking failed to train and supervise him. On

March 8, 2023, appellee Samonte filed a motion to dismiss the complaint against

him, arguing that it was filed after the three-year statute of limitations for negligence

expired on October 11, 2022. Appellants opposed the motion to dismiss, arguing

that their limitations period fell within the scope of the Superior Court’s tolling

orders.

The Superior Court consolidated the two cases filed by appellants against

Samonte and Unlimited Biking. Judge Hiram Puig-Lugo granted appellee

Samonte’s motion to dismiss, concluding that the COVID-19 emergency orders

tolled only those deadlines that fell within the tolling period, or deadlines that arose

from a claim that accrued during the tolling period. Because the Segway accident

occurred before the tolling period began, and the three-year statutory limitations

deadline was after the tolling period expired, Judge Puig-Lugo concluded that 4

appellants’ limitations period was not tolled.

Appellants challenge the trial court’s order of dismissal.

II. Jurisdiction

The parties before the court – appellants Kubichek and Baldwin and appellee

Samonte – are in agreement that the trial court dismissed the complaints filed against

both defendants, Samonte and Unlimited Biking. We consider the scope of the trial

court’s order of dismissal first as it could affect our jurisdiction to hear his appeal.

See D.C. Dep’t of Corr. v. D.C. Dep’t of Emp. Servs., 308 A.3d 699, 702 (D.C. 2023)

(“[W]e have an independent obligation to confirm our own jurisdiction before ruling

on the merits of a case.”).

With limited exceptions not applicable here, our jurisdiction over appeals

from the Superior Court is confined by statute to the review of “all final orders and

judgments.” D.C. Code § 11-721(a)(1). “Normally, an order or judgment is deemed

to be final ‘only if it disposes of the whole case on its merits so that the court has

nothing remaining to do but to execute the judgment or decree already rendered.’”

Rolinski v. Lewis, 828 A.2d 739, 745-46 (D.C. 2003) (en banc) (quoting In re Est. of

Chuong, 623 A.2d 1154, 1157 (D.C. 1993) (en banc)). The requirement that the trial

court proceeding be concluded in its entirety before an appeal may be taken “serves

the important policy goals of preventing ‘the unnecessary delays resultant from 5

piecemeal appeals’ and ‘refrain[ing] from deciding issues which may eventually be

mooted by the final judgment.’” Id. at 745 (quoting Crown Oil & Wax Co. v. Safeco

Ins. Co., 429 A.2d 1376, 1379 (D.C. 1981)). The requirement discourages “the

harassment and cost of a succession of separate [interlocutory] appeals” and fosters

“efficient judicial administration.” Id. at 745 n.8 (quoting Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 374 (1981)) (internal quotation marks and citations

omitted). Therefore, if the claims against Unlimited Biking remained pending, an

order dismissing only claims against Samonte would not be final and appealable.

The parties dispute whether Unlimited Biking was served – appellants claim

that Unlimited Biking was served, but appellee Samonte asserts that there is no

definitive evidence to support appellants’ contention. We agree that the record is

inconclusive as to whether Unlimited Biking was served. 2 But our jurisdictional

analysis is not dependent on whether or not Unlimited Biking was served. We have

concluded an order is final and appealable when all claims have been dismissed,

including against an unserved defendant, on grounds for dismissal asserted by a

served party. See Artis-Bey v. District of Columbia, 884 A.2d 626, 629-30 (D.C.

2005) (dismissing claims against all defendants, on motion filed by one defendant,

2 Both plaintiffs were given additional time to serve Unlimited Biking, but it is unclear from the docket whether Unlimited Biking had been served when the trial court dismissed the complaints. 6

for claimant’s failure to exhaust grievance appeal process prior to suit); Moradi v.

Protas, Kay, Spivok & Protas, Chartered, 494 A.2d 1329, 1332 n.6 (D.C. 1985)

(noting the trial court “went beyond the limits of appellee’s motion and dismissed

the entire complaint”).

That is the situation we face here as we agree with the parties’ assertion that

Judge Puig-Lugo’s order is best understood as having dismissed the complaints

against both Samonte and Unlimited Biking. The trial court’s order included

Unlimited Biking in the case caption and, in granting the motion to dismiss, declared

the case was “closed.” The trial court docket shows no further proceedings with

respect to Unlimited Biking. Accordingly, as the trial court’s order dismissed the

case in its entirety, it was final, and its appeal is properly before us.

III. Statute of Limitations Defense

Appellants assert that dismissal of their complaint against Unlimited Biking

was improper because it did not move to dismiss on the ground that the complaint

was time-barred, and the statute of limitations is an affirmative defense that the trial

court may not raise sua sponte on behalf of a defendant. We review the grant of a

motion to dismiss de novo, presuming the complaint’s factual allegations to be true,

and construing inferences in the light most favorable to the plaintiff. Bleck v. Power,

955 A.2d 712, 715 (D.C. 2008). 7

It has long been established that the statute of limitations is an affirmative

defense that “must be set forth in a responsive pleading, and may be waived if not

promptly pleaded.” Whitener v. WMATA, 505 A.2d 457, 458 (D.C. 1986) (citing

Super. Ct. Civ. R. 8(c)) (citation and internal quotation marks omitted). The defense

is “affirmative” in the sense that it is the defendant’s burden to raise it and show that

the claim was untimely filed. The claimant then has an opportunity to oppose the

motion. Super. Ct. Civ. R. 12-I (e). In light of the allocated burden, the right to

oppose the motion to dismiss, and the possibility of waiver, the trial court “ordinarily

should not raise [the defense] sua sponte.” Feldman v. Gogos, 628 A.2d 103, 105

(D.C. 1993) (internal quotation marks omitted). In Feldman we considered a

situation where the trial court, without motion by any defendant, dismissed a

complaint as untimely. We assumed – but did not decide – that if the trial court had

authority to raise the statute of limitations defense sua sponte, “it should not do so

unless, at a minimum, the expiration of the statute ‘is clear from the face of [the]

complaint.’” Id. (quoting Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993)).

Because there was some question as to whether the limitations period had been tolled

by a partial payment on a debt, we reversed the order of dismissal as the expiration

of the statute of limitations was “by no means clear” on the face of the complaint

and the plaintiff “should at least be permitted to litigate it ‘when and if that defense

is asserted . . . .’” Id. (quoting Davis v. Bryan, 810 F.2d 42, 45 (2d Cir. 1987)). 8

We hew to the general rule that ordinarily trial courts should not raise a statute

of limitations defense sua sponte; it is for the defendant to do so. Nor do we think

that this case would come under Feldman’s (assumed) exception where the

application of the statute of limitations is clear on the face of the complaint, as the

proper interpretation of the relevant Superior Court tolling orders was disputed at

the time of the trial court’s order and remained unresolved until our opinion in Tovar

v. Regan Zambri Long, PLLC settled the question this past year. 317 A.3d 884, as

amended 321 A.3d 600 (D.C. 2024). However, we recognize a narrow exception to

the general rule in this case. Here, the trial court did not act entirely sua sponte

because (unlike in Feldman), one defendant, Samonte, did assert the limitations

defense. Also, unlike in Feldman, appellants had an opportunity to litigate the

proper application of the Superior Court’s tolling orders in objecting to Samonte’s

motion to dismiss. Even if interpretation of the tolling orders was in dispute, the

facts were not: the date the claim accrued and the expiration of the three-year statute

of limitations were clear on the face of the complaints. Those facts, as well as the

application of the Superior Court’s tolling orders, were exactly the same with respect

to the claims against both defendants. In these circumstances, the trial court did not

err in dismissing both complaints when deciding the motion to dismiss filed by

appellee Samonte. 9

The trial court also correctly decided that the various tolling orders issued by

the Superior Court during the COVID-19 pandemic did not toll the limitations period

for appellants’ negligence claims. The statute of limitations for negligence actions

for personal injury damages is three years. D.C. Code § 12-301(a)(8); Bussineau v.

President & Dirs. of Georgetown Coll., 518 A.2d 423, 425 (D.C. 1986). The

complaint alleges (and the parties agree) that appellants’ injuries occurred on

October 11, 2019. Therefore, the statute of limitations, if not tolled, expired on

October 11, 2022, before appellants filed their complaints.

The Superior Court’s first tolling order, issued March 19, 2020, provided, in

relevant part, that:

[u]nless otherwise ordered by the court, all deadlines and time limits in statutes, court rules, and standing and other orders issued by the court that would otherwise expire before May 15, 2020 including statutes of limitations, are suspended, tolled, and extended during the period of the current emergency.

A succession of orders extended the emergency period for civil cases to March

31, 2021.

We recently interpreted the scope of the emergency tolling orders in Tovar,

321 A.3d at 600. We determined that “[t]he phrase ‘that would otherwise expire 10

during the period of emergency’ modifies all the listed terms having ‘deadlines and

time limits,’ including statutes of limitations. Thus, to qualify for tolling, the

deadline must have fallen within the period between March 18, 2020, and March 31,

2021.” Id. at 617. As a result, in civil cases, “the tolling orders tolled the limitations

period only in cases where the limitations period expired during the March 18, 2020,

to March 31, 2021, period.” Id. at 618. Because appellants’ three-year statute of

limitations did not expire during this period, but continued until October 11, 2022,

it was not tolled. We, therefore, affirm the Superior Court’s dismissal of appellants’

complaints as untimely filed.

So ordered.