*1 among pervasive- the three cases were
ness, duration, severity of the violations LIQUORS, INC., CIRCLE presence involved and the or absence of a Appellant/Cross-Appellee, prior disciplinary record.13 v clearly The record in this ease shows . pattern neglect, intentional refusals to re- COHEN, Appellee/Cross- Herman property, turn client files and and intentional Appellant. objectives. failures to seek clients’ Even 93-CV-1380, Nos. 93-CV-1572. more serious is the manifest failure part respondent appreciate her ethical Appeals. District of Columbia Court of responsibilities. respondent, like While Robertson, attorney prior does not have a Argued Jan. 1995. record, disciplinary gravity perva- Decided Jan. 1996. affecting siveness of her conduct several period clients over extended
makes this case more serious than Robert-
son, only single which involved client. We impose suspension
therefore a four-month Robertson, require- but to it we add the showing
ments restitution and a of fitness Tinsley
drawn from and O’Donnell.
Accordingly, it respon- is ORDERED that
dent, Ryan, suspended S. Anita shall be from practice of law in the District of Colum- months,
bia for four shall make restitution to specified by
her clients in the amounts (with exception
Board $110 received; already
her client José Berrios has 6, swpra), prove
see note and shall her fit- practice
ness to being law before reinstated.
The restitution that we order shall also be a
condition of reinstatement. See D.C.Bar 3(b). XI, § suspension
Rule The shall take opin-
effect from the date of this 14(f). XI, §
ion. See D.C.Bar Rule We di- respondent’s
rect 14(g) attention to section XI, requires
Rule of an containing
affidavit certain information with- specified
in a time. See also D.C.Bar 16(c).
XI, § case, previously Tinsley, sanctioned. Converse- In O’Donnell and as in this also had been respondent engaged attorneys engaged ly, in less multiple in Robertson the violations involv- involving only period one client and several clients over an extended severe violations time; however, respondents prior of misconduct. in those cases the had no record *2 is entitled a
Alternatively, claims it Circle instructional new trial of asserted cross-appeal, court. On error the trial grant challenges the trial court’s Cohen Circle’s motion for remittitur $47,900, an in amount of jury. less that awarded amount than are without Because we conclude we appeals, of these we tion to hear the merits However, vacate must we dismiss them. judgment for which entering order jurisdiction. entered without I. jur- appeals on dismiss these forth, in we set some grounds,
isdictional detail, dispute to underlying aid facts jurisdictional understanding in issues presented. working thirty- August after manager of
eight years general as the Cen- Liquors tral in the District Co- Chairman, Board hen was hired (“Gildenhorn”), Jeffrey to whom Gildenhorn by marriage, to work man- he was related ager of At Cohen’s Circle. gave “something writing,” Gildenhorn stationery company hen letter on stated: August 6, salary beginning weekly
Your be through 1984 will December January per Beginning week. Weiss, DC, Washington, Jay with whom S. compensa- your through December Rockville, MD, Barry Kopit, S. volume of busi- tion will based on the brief, appellant/cross-appellee. Store, Incorporated. Liquor ness Heller, DC, Washington, H. James $2,000,000 following: The scale will be the brief, Stephen whom Z. Chertkof was on the $2,500,000 year through yearly sales appellee/cross-appellant. compensa- year compensation of $60,- tion; $2,500,000 year in sales over WAGNER, KING, Judge, Chief Before year compensation. a000 BELSON, Judge, and Associate Senior believed letter that he testified Judge. job “a for me increase provided permanent Liquor at Circle the volume business KING, Judge: Associate contract, Store,” binding on both and that the employment ac- contract this breach only Circle, upon himself and was terminable (“Circle”), tion, Liquors, appellant Circle Inc. bankruptcy. appellee employer of Herman Co- the former and Cohen had August Gildenhorn (“Cohen”), hen seeks reversal of a regarding Cohen’s rate a conversation Cohen, alternative, a new favor of According to compensation. Cohen: contends that the trial court trial. Circle me into the of- Jeffrey called denying its motions for directed Gildenhorn erred in is not as—not that business judgment as a fice said verdict and matter law. very good your and I testified that he did not hire will have to lower Gildenhom life,” salary gets temporary a little bet- when business Cohen “for but rather on a you get your basis, I it ability ter will see to will upon Cohen’s to “make based salary back. profits Circle] from the business he [for in,” bring[s] let- and that the aforementioned conversation, In the wake of that *3 salary arrangements only ter constituted $1,000 salary per reduced from to was week through December 1985. Gildenhom further week, per and to Cohen continued work $700 spoke testified that he to Cohen about his salary at Circle at that until his termination negligence ... “incompetence [and] and ex- in September 1991. Cohen testified that he bad,” plained him ... did not confront about contin- to that business was Gildenhom the therefore, salary salary permanently ued reduction in his because he did and his would exchange access to per have Circle’s business records to week. reduced $700 good and he relied on faith to “change salary arrangement[s],” Gildenhorn’s for this salary restore his when sales reached the agreed Gildenhom testified that Cohen to agreed upon sum of two million dollars. Co- Saturdays accept off and the use of Circle’s hen also to stated he was reluctant cause company car. family conflicts with the Gildenhoms. version of the conversation result- Cohen’s Sep- Cohen was terminated from Circle on salary in of his the reduction differed 5, 1991, tember for reasons unrelated to this Specifically, from testi- Gildenhom’s. Cohen appeal. September On Cohen filed prob- fied that Gildenhom never mentioned against this action Circle for breach of its general neg- markups” lem of “insufficient promise compensate according to him to Cir- ligence reducing salary as a reason for his to cle’s volume of sales. Cohen maintained he per disputed week. Cohen also Gilden- $700
was entitled to two weeks of unused vacation testimony hom’s that Cohen received other per and week for each week he worked $3001 namely Saturdays compensation, off and use during years preceding filing the three car, company exchange for the $300 i.e., (three action, September per salary. week decrease suit) years filing through September before (the 5,1991 termination).2 date of During closing argument, counsel for Co- gaining jury After access to Circle’s income tax hen asked the to return a verdict learned, $47,900: $45,900 during discovery, salary returns Cohen for for he claimed was weeks) time, ($300 per the first that sales had from to him for increased owed week $1,646,159 year $2,000 before Cohen hired and for two of unused was weeks vacation.4 (1983), $1,817,173 trial, during year two-day jury, obviously to Cohen After a (1984), $2,264,351 crediting agreement was hired to the first full Cohen’s version (1985). year Gildenhom’s, Except rejecting he and returned a ver- $60,000. gross Following sales were in excess of dict in favor of Cohen for million, verdict, orally court a two but not over two and one-half Cohen offered the dollars, thereafter, $12,100] $47,900,” every year million [of “remittitur down through including year requested by Cohen amount counsel Cohen closing argument. was terminated.3 $1,000 $2,000 ery 1. The Cohen claimed he was entitled to for two weeks of unused leave $1,000 actually paid. $700 receive less the he was per the rate of week. the total back pay requested award was: complaint 2. three after weeks = (104 49) per $300 x weeks + week he was terminated. Under the statute of limita- $47,900. $2,000 recovery pay tions + for a total of his was limited to back years preceding three of the suit. Thus prevailed, if Cohen he would be entitled to recov- only year gross sales did not pay years, er three the three weeks dollars, back less gross exceed two million sales were he did not work between the termination date $1,973,792. Cohen therefore suit. sought per $300 an award of week for two full 2, supra, support- the calculations 4. See note (104 weeks) years year and a third less the three ing Cohen’s for a sum of weeks). addition, (49 sought weeks he recov- Later, jury formally upon speaking fore- amended remittitur offer was never lobby regard- person in upon. appeals the courthouse acted These followed. ing the for Cohen learned counsel jury’s verdict was intend- II. pay prejudgment on the back ed as interest award, punitive damages not for as he a. made his had surmised.5 One week after he chal Circle raises several offer to oral lenges in favor of to the verdict reached captioned as paper, filed a written Cohen, Cohen, cross-appeal, in the Offer,” in Amended “Plaintiffs Remittitur judg entering claims the trial erred agreed offer and which he amended oral amount, the lower do not reach ment for $1,964.85. Acceptance of remittitur *4 any be of of those contentions the merits $58,- result in award of that offer would jurisdiction do not have to consider cause we ($47,900 pay for for back and 035.15 A on claims.7 verdict was reached those $10,135.15 plus prejudg- for unused vacation 20,1993, judgment and was entered same pay).6 ment interest back returned, day. counsel After the verdict was Thirty days entry of after the requested judge for Circle that the trial allow $60,000, judgment in the amount of Circle days post-trial thirty in of motions Judgment as a filed Renewal Motion for days for in provided rather than ten as Trial, Trial, After for New Matter of Law 50(b) (judgment rules. Remittitur. that and/or 59(b) law); Super.Ct.Civ.R. a matter of as requested, also a new trial was event (new trial). object to an en Cohen did not judgment or a was not entered not ordered thirty that largement protested of time but favor, judgment for that entered its longer necessary days than under the was $47,900, pay and the exact amount of back however, judge, The trial circumstances. sought. denied pay
vacation The trial court request, granted Circle’s and directed that motion for new trial and the motion Circle’s thirty days. That the motion be law, granted for as a matter of and met, filed his time-table was and after Cohen The trial Circle’s motion remittitur. opposition, the trial entered an order court $47,900 be- court then entered denying Circle’s on 1993. offered on October “unequivocally cause Cohen had order, however, grant In the same the court prayed the record to ... the amount i.e., and $47,900.” Circle’s motion for remittitur complaint, Cohen’s ed $47,900 in the rather subsequent amount motion to alter/amend $60,000 jury written than the sum reached was denied. Cohen’s $1,964.85, complaint prejudgment sought in- amended remittitur was for offer terest, which, pressed accepted, was For that claim at trial. if would result in a total award $58,035.15: example, presented there was no con- evidence interest, cerning counsel made no such $45,900 (back $10,135.15 (interest pay) at + during closing interest ar- for an award = $58,035.15 6%) $2,000 (unused vacation) + seek, gument, did the trial and Cohen (amended requested) award regard- judge give, any juty instructions did not —$58,035.15 $60,000 verdict) (original jury prejudgment award of interest. Accord- = $1,964.85 (amended requested) award ingly, jury upon had no which to award basis offer). (amended remittitur it. court, pos- argument, perceiving learning, foreperson, 7.After oral jury 6. After from the problems, jurisdictional directed the jury sible returned included the verdict interest, supplemental on the issue. prejudgment to submit briefs Cohen filed award of motions, opposition his Remittitur Offer written Plaintiff's Amended $1,964.85. argued untimely pleading, hen had the motions were Cohen calculated In that days they had not filed within ten of back been at the amount interest 6% require. court did not per as the rules The trial pay $300 for 153 weeks. awarded at week 6%, Cohen did not address the timeliness issue and at the total His calculations indicated that pursue point in in this court. pay his initial brief prejudgment the back interest due on brief, however, $10,135.15, supplemental Cohen re- In his than rather untimely. jury. claim that were Consequently, newed his the motions Cohen's calculated specified original judg- and the amount in the Motions filed to both Rules 50 ment. On October Circle filed its and 59 must be filed within ten Thus, appeal.8 notice of the notice of entry judgment being challenged. Su ninety-nine days entry 59(b). held, of per.Ct.Civ.R. We have judgment following twenty- motions,9 but ten-day for Rule 59 that this least entry after two jurisdictional time10 limit is judge has no to decide the merits untimely. a motion if it is D.D. v. such
b.
M.T.,
(D.C.1988);
Household
550 A.2d
Co.,
Finance
III v. First Am. Title Ins.
Corp.
require
The rules of this court
that a no-
(D.C.1995).
may
Nor
thirty days
tice of
be filed within
taking
time for
action
trial court extend the
4(a)(1).
judgment. D.C.App.R.
under either Rule 50 or Rule 59. Su
mandatory
“This time limit is
6(b) (trial
may
per.Ct.Civ.R.
not extend
tional.” Frain v. District
to,
among
time for motions filed
A.2d
Here the notice of
others,
50(b), 59(b),
59(e));
Rules
was filed within
Responsibility,
Nuclear
Inc. v.
Center
5,1993,
juris-
October
order.
we have
Comm’n,
Regulatory
Nuclear
United States
diction to
underlying judgment
review the
if
*5
82, 88,
935,
U.S.App.D.C.
251
781 F.2d
941
motions,
post-trial
filed
(D.C.Cir.1986) (“Rule 59(e)
by
[and
motions
entry
judgment,
after the
20
of
were
50(b)
6(b),
to Rule
Rule
and Rule
reference
timely and tolled
filing
appeal
the time for
59(b)
expressly
motions] are
limited to the
judgment
of that
ruling
until the
10-day period following entry
judgment,
of
noted,
motions. As
the order that Circle
simply
power
and the District Court
has no
appeal disposed
seeks to
of motions filed
limitation”); Derrington-
to extend that time
pursuant
59;
50 and
Bey
Dep’t
v. District
Columbia
Correc
motion for new trial was denied and the
tions,
132, 133,
U.S.App.D.C.
309
39 F.3d
judgment
motion for
as a matter of law was
(1994)
(same);
Peyser,
Slater v.
91
denied to the extent that Circle contended it
314, 315,
360,
U.S.App.D.C.
judgment
200 F.2d
361
was entitled to a
as a matter of
(1952)
court, however,
(ten-day
filing
granted
law. The trial
limit for
new trial mo
Cir-
59,
may
cle’s motion for
remittitur and entered
tion
to Fed.R.Civ.P.
not be
ment for an amount
opposing
less than the sum award-
extended even with the consent of
counsel).
by
jury.
ed
post-trial mo-
because the
Braman,
appeal
judgment pur
8. As a notice of
from the
tended otherwise.
United States v.
Cf.
5, 1993,
denied,
portedly
530,
(D.C.1974),
entered on October
that notice
327 A.2d
535
cert.
423
appeal
premature
1032,
562,
(1975)
would have been
U.S.
S.Ct.
59(e),
or as a
in the nature of
a
A.2d at 804.
it is not
motion
such
brief, however,
post-argument
necessarily dispositive
motion. In its
Amended
Cohen’s
59(e)
Rule
did not
Remittitur Offer did
reference
Circle
contend that Cohen’s Amended
construed,
seeking
to alter or
Remittitur Offer should be so
state that Cohen
such,
But,
judgment.
qualify
it
amend
as
it is clear that Cohen did not view as
to
a
59(e) motion,
observing
paper
Rule
seek
supplemental
in his
brief
must
“re
that:
consequences
lief from
adverse
Appellee Cohen
to
had no reasons
seek to
original
of error of law.”
order
basis
20,
original July
vacate
amend or
Id.16 Because the Amended Remittitur Offer
judgment,
merely
since it
confirmed the
(there
sought no relief
were no adverse con
jury’s
Appellee
award
his favor.
did
order)
sequences
previous
Cohen—in the
20,
July
make an oral offer of remittitur on
—to
law,
could not
there was no error
it
writing
which he amended in
59(e)
Therefore,
a Rule
motion.
we conclude
27,1993.
does
the Amended Remittitur Offer
Indeed it is not
all clear that
at
Cohen’s
59(e)
qualify
motion
as a Rule
motion or a
can
paper
even be characterized as a motion
It, therefore,
a
nature of such motion.
all, much less a
to alter or
motion
amend
did not
toll the
of the time
7(b)(1)
judgment. Super.Ct.Civ.R.
provides
appeal.
application to
the court “for an order
sum,
because Circle’s
reverse,
Stating
shall be motion.”
a matter
and for
as
of law
application
motion is defined
“an
to a
as
untimely,
new trial were
the trial court was
States,
Perry
court for an order.”
v. United
authority
without
5 or
enter its October
U.S.App.D.C.
195 F.2d
Therefore,
der.
we vacate it. See Clement
(1952).
Offer,
The Amended Remittitur
how-
Dep’t
v. District
Columbia
Human
defined,
way
it is
ever
can
no
be construed
Servs.,
A2d
Fur
for an
It does
order.
no more
ther,
of appeal
because no notice
was filed
request that
offer that
than
the oral
had been
within
made seven
earlier be
amended.
judgment,
thirty-day
and because the
short,
Offer,
by the Amended Remittitur
period
any
not tolled
motion as
re
that,
informing
hen is
the court
should the
quired by
July 20 order
our Rule
is
court decide to
an amended
enter
final judgment
that we
no
have
specified,
for the lesser sum
he would not
Finally,
review.
because the October
object.
nullity,
order was a
and must be vacat
support
We find
for this conclusion when
ed,
timely appeal
trial
court’s
compare the
Amended Remittitur Offer
denial
that or
of his motion
alter/amend
motion
with the
Cohen after the
is
der moot.
5,1993,
entering judgment
October
order
and cross-appeal
Order vacated
dismissed
legitimate
latter is a
While the
as moot.
*8
judgment,
motion to alter or amend
is not.
Amended Remittitur Offer
In the
WAGNER,
Judge, dissenting:
Chief
motion,
5,
filed after the order of October
view,
1993,
59(e),
my
Remittitur
Cohen invoked Rule
labeled it as
Cohen’s “Amended
Offer,”
judgment,
motion to alter
amend
was filed within ten
a
or
judgment,
sought an order from the trial court for the
is
the nature of a motion to
contrast,
judgment,
larger amount.
the Amended
alter or amend
and therefore
no such
Frain v.
Remittitur Offer contained
refer-
should be treated
such. See
(D.C.
447,
are of
mindful
District
572 A.2d
“[t]he
ences. We
course
(“The
1990)
a
of a motion
nature of motion is determined
nature
is determined
the relief
Wallace,
sought,
label
sought,
caption.”
not
its label or
relief
not
its
(where
flowing
Dyer,
n.
defendant
16. See
quested judgment. existing alteration of the Assocs., Dyer Bergman v. William S. &
635 A2d n. 4 A time
ly judgment, filed motion to alter or amend was,
as this one
tolls the
of the time
parties.2
all
as to
21, 1993,
July
prejudg-
1.On
had indicated that the verdict included
Cohen,
cross-appellant, Herman
in the amount
ment interest.
juiy
in accordance with a
verdict.
22, 1993,
July
The
was docketed on
2. A motion to alter or amend
must be
and mailed to the
On
judgment.
filed within ten
of the
27, 1993,
Cohen filed an
Remitti-
“Amended
59(e).
Super.CtCiv.R.
agreeing
tur Offer”
to remit
$58,035.15.
accept
ment and to
majority’s disposition
3. Even under the
support
In
complaint
Cohen stated that the
case,
impediment
I see no
to the trial court on
prayed
prejudgment
had
interest to
reducing
judgment by
remand
the amount to
which he was entitled
to D.C.Code
(1995),
§
attorney
agreed
and that his
which Cohen
he was not entitled and
had not
entering judgment
taken these facts into account when he offered
in the amount to which he
orally
consented, i.e., $58,035.15.
a reduced
SeeDonovan v. Penn
supporting
Cohen also
Co.,
attached
affidavit and a
Shipping
U.S.
S.Ct.
spreadsheet reflecting the calculation of interest.
(1977) (“[A] plaintiff