*2 HARRIS, KELLY, Before KERN and Judges. Associate KERN, Judge: Associate appeal is trial court’s denial This from the ratifying motion to an order of a realty by of the sale of the executor estate the trial Ethel D. and from court’s Starr of a motion for reconsideration or for denial We conclude that trial clarification. refusing grounds stated for amend- court’s According- of this order are invalid. ment we reverse. we remand the ly, finding for a factual case to necessary for determination whether sought order of sale the amendment appropriate under the circumstances. particular broker Appellant is real estate sale for the procured contract of dece- property dent’s at 4414 Greenwich Park- N.W., Linda W. way, Kelly Sandy, C. and $120,000,subject to a broker’s commis- percent. accepted of six The executor sion estate,1 contract on sub- behalf approval order nisi. Fol- ject to court lowing publication, notice and January on proceedings held the order nisi 23, 1979, bids for the higher to consider required The to be initial bid property. net excess of the estate’s ten offer. original from the gain proceedings, the nisi Both before and at advised, first counsel for appellant was attorney, own the executor her bids over the any higher that if there were contract, purchase she would not be if the ulti- entitled to commission—even Sandys. were the mately bidders Believing this to the standard court prac- be knowing higher bid would be tice made, appellant, beginning brokerage Norris, C., agreed to waive Washington, proceedings, Robert B. D. appellant. net amount aceru- fee in order raise the tageous price Ratify for the sale” of 1. In “Petition to Sale of reasonable Executor’s Realty,” property. the executor that he considered Sandys advan- the offer of the to be “a fair and Super.Ct.Civ.R. pursuant to appeal, filed ing to the estate under that offer. Almost January to amend 60(b)(6),a motion immediately after counsel for in- six to a waiver, entitlement presented formed court of he order to reflect commission. argument inequities to the court of of percent broker’s broker, losing represented attorney estate who had appellant, the real ac- affidavits proceeding. commission in this filed at the nisi *3 however, motion, they argu- stating this that refused entertain the companying ment. the Superior recently informed only were Regis- the acknowledged practice, agreed proceeding The court at this first the Wills, commissionsto allowing ter the net basis that waiver raised following order estate broker procuring real $120,000. bidding for after suc- ultimately the proceedings where nisi than the counsel for the bidder other pur- original the contract cessful bidder for took the Sandys and counsel the estate that she would Appellant chaser. claimed position that the net basis for bids should be at nisi the have waived commission not equivalent gain to the estate’s net concerning the sale of dece- proceedings offer, original published, the contract the practice; this had she known of dent’s house court then ruled that equity favored bids and, that waiver was based less she asserted the percent published ten over the offer the the securing the in percent Sandys six a desire to aid bidding, commission. The on therefore, $124,800, repre- commenced at property.2
senting a ten over the increase appel- the court denied June On $112,800 price. Sandys advertised net grounds. on five to amend lant’s motion met and they ultimately raised each bid till First, the motion judge the ruled that $129,000. prevailed highest with the offer of second, practice of al- untimely; at
Appellant’s attempted counsel this pay a commission lowing an estate hearing to make a on quantum meruit claim has been waiver only when there plies behalf of for in pro- her efforts sought relief motion and that curing original The court contract. de- of the estate reduce the assets which would to rule this clined contention because it nisi and thus defeat deemed matter not before it. properly third, have that the relief would process; 26, 1979, January On the court entered an those who had defrauding the effect of Realty Finally Ratifying “Order Sale fourth, that bidding; in the participated Executor,” providing for the sale intelligent waiv- claim of lack of $129,000 property Sandys to the for “all would amending the order er as a for basis subject cash and not broker’s com- any adversary proper for require proceeding mission.” resolution; fifth, that the movant party 28,1980, standing because she was appellant, by
On March new and no reconsid- Appellant’s different counsel who now motion represents interest. matically loss of her commission result in her stated affidavit of March contract, original whether or on the ultimately Sandys bid- successful were bidding I understood that [h]ad would diligent hearing.... made a ders I $112,800.00 ($120,- at the price start at a base of Columbia $7,200.00), search of the law in the District 000.00 less commission of then I validity of my agreed to ascertain the correctness would not have to waive commis- my Notwithstanding position. efforts sion because a waiver in those circumstances regard, statutory Sandys deci- would this I could not have benefited either the find no Therefore, point. or me. law on this sional narrow reluctantly Sandys despite inequities, Counsel obvious proceeding any higher his affidavit: bids concluded there were by [appellant] I was contacted hearing, who informed made at whether or not attorney me that ... for the Executor in Sandys ultimately [the] bid- Estate, had advised that he ders, believed [appellant] would lose her commission higher there would be made at the bids hear- price. on the ing any higher ... would and that bids auto- eration or clarification of the court’s order in order was the form of amendment. denied. 60(b) provides in pertinent part: On motion and such terms as are I. just, the court relieve or his Initially, appropriate it is to address legal representative judg- from a final the issue of standing. Super.Ct.Civ.R. 60 ment, order, for the follow- states that a court may grant relief to “a (1) mistake, inadvertence, reasons: party or legal representative his from a surprise, neglect; (6) or excusable ... or judgment, final order or proceeding.” Be any justifying other reason relief from cause of special probate pro nature of the operation judgment. The mo- ceedings, we are of the opinion appel tion shall be made within a reasonable lant is a party who may seek the relief time, (1), (2), and for reasons provided by Rule hearing, 60. The nisi subject of judgment, which is the more than one after the property, sale of *4 directly involves a variety parties, order, unlike proceeding was entered or tak- the usual adversary proceeding. Here, ap en.... pellant was proceeding involved in the from possible Because it is to conclude that this its initiation. The contract which pro she case is the unusual which situation to Rule cured on behalf of instigated the estate the 60(b)(6) applicable, is remand we must this proceeding. Appellant case by determination the court of was represented by hearing, counsel at the certain matters. which part was a proceeding. such Fur thermore, appellant, appellant as The record reflects that negotiating agent of waived the sales contract which provided for a bro right to a commission on the contract ker’s right which she price only by because she was led to believe may seek to enforce.3 lawyers in the nisi presence of a bidder there who was willing
The executor’s reliance on Bulloch Fisher, App.D.C. 165,
higher
to
than the
(1928),
precluded
II. only particular prac- The evidence Appellant tice in the record other than the statements contends that she is enti tled 60(b)(6) to relief from the appellant and her counsel4 is several interest, finding 3. The trial court’s stated basis for this would not warrant dismissal with- standing lack of affording opportuni- was that was not a out the court a reasonable “party apparent ty join corporate in interest.” It is from the to substitute or to broker appellant, 17(a). party-movant. Super.Ct.Civ.R. record that broker, it was as real estate rather than the firm whom she was employed, have been entitled to the and her counsel both state that the Super.Ct. six Civ.R. sought “Register commission. Under of Wills for the District of Columbia 17(a) position pur- it is who “has the takes the that when the contract Moreover, ultimately to be enforced.” if the basis bidder chaser and the finding same, standing for the trial court’s hearing of lack of an order nisi are one and the was that firm was the real practice to allow a real estate of this court is lan- practice. light ambiguous of this judge statements in her order denying appellant’s cannot, motion to deline- without further guage, we The judge nisi order. trial refers to practice, first assess ation the court of alleged ‘equitable practice’ allowing “an discretion whether court abused an to pay origi- estate commissionwhen the motion under denying bidder,” nal offeror the successful final further factual 60(b). Because we conclude seeming to thus cast doubt on the existence proper to enable a findings necessary are practice. of such a The court appears case, we set forth our of this resolution acknowledge the existence of practice, each the alter- analysis of however, as it in its proceeds explain find. might trial court natives which the opinion applies that the practice only where upon remand If the court finds there has been no waiver. by appellant The court’s references to the are exist, appel does not in fact counsel in the following contained reason denial from the has no basis for relief lant listed in the June 23 order: circumstances, trial order. Under these motion, although labelled innocuous- denying court did not abuse its discretion ly seeking as one “amendment” of her motion. order, actually recovery seeks of a sum hand, the trial court finds On the other which money would reduce the assets exists, it is well- the estate. The basis ad- which it practice, as a known standard dresses this is urges one that attorneys practicing that it is knowable *5 alleged “equitable “reaffirm” an prac- appellant’s motion before then tice” of an estate allowing pay to com- 60(b)(1) re- falls into the rubric of original mission when the offeror is the appellant’s igno- relief quest for because final bidder. That practice practice mistake. rance of the amounts to plies when there has been no of waiver these circumstances motion Under broker’s commission. To it when apply of denied on the basis properly relief was there has been a waiver of commission untimeliness, appellant did not file
triggers insurmountable entanglements was until over a after the order motion computation of into the question of Moreover, failure attorney’s entered. open whether final offer made in applicable court adequately ascertain court in the presence competing bid- procedures and advise is to so ders in fact highest is the net-to- offer neglect type not be the the-estate, excusable or- warranting of mistake relief from process would be defeated. Building & Loan Ass’n der. Citizens See Furthermore when it is applied, D.C.App., Shepard, Montgomery County practice entry involves into a new con- (1972); Express Railway 622 289 A.2d whereby tract the estate becomes con- Hill, D.C.App., A.2d Inc. v. Agency, obligor tract for that amount of commis- out brought are (1969). If facts these sion that is attributable remand, say the trial we on could case, offer. In having such a there denying abused its discretion waiver, court what, there is no reduction of order. during sale, high- accepted as the net-to-the-estate,
est offer no one’s procedure probate thereby. are adversely interests affected is exist but so obscure does [Emphasis supplied.] as- have reasonably could not attorney mo- existence, then certained impossible It is to determine from this the context of comes within discussion the trial court tion whether a a com- affording, If the actually 60(b)(6). practice practice allowing commission so, found exists, procuring to the broker is guidelines and if what the mission govern price.” procuring agent to the on the contract broker’s commission one, be an obscure then the and extraordinary Railway events sur situations. See rounding appellant’s loss of commission fall Hill, Express Agency, supra Inc. v. at 925. within those unusual extraordinary sit finality outweighed Considerations are uations to which the application of subsec inequitable this situation the unusual (b)(6) tion is generally restricted. See Ohio Thus, that, to appellant. result we conclude Valley Co., Dew, Construction Inc. v. D.C. practice if the court of allowing commis- App., 354 (1976). A.2d 518 Under these reasonably sions exists and was not as- circumstances, appellant’s waiver of the counsel, certainable the court abused its commission could not have been a knowing denying discretion in motion waiver because she did not know and could 60(b)(6) as untimely. not have ascertained that a practice existed turn reasoning We now to the court’s which would have allowed her to receive allowing appellant to receive a com- Moreover, commission. record mission would reduce the current assets of the nisi hearing indicates that proceed- the estate. We note that the nisi judge put notice as to place would not have taken had it not lack of a knowing waiver. Her counsel been for the work appellant, pro- called the inequity of her loss of the com practice cured the sales contract. A court mission probate to the court’s attention al allowing commissions where the contract most immediately after she had made purchaser necessari- successful bidder waiver, but the court ruled “out of order” ly potential reduces the assets of the estate any discussion of this loss aof commission. commissionamount. Such It was apparent to the appel- court that however, it by public policy, is favored lant waived the commission in order to to sell hous- supplies an incentive to brokers increase the base price bidding; yet exists, es of decedents. If that court started bidding as if a commission result denying application here would paid was to be and continued to refuse to unjust enrichment to the estate. entertain arguments regarding any inequity appellant’s unknowing waiver should to appellant. denying its order amend- recovery. bar her from ment, the court indicated *6 of allowing applies only commissions where there has been no waiver. To deny III. basis, however, amendment on that would The trial court noted two additional constitute an abuse of prac- discretion the of its or grounds denying amendment if, here, tice is found to exist and grounds der. We find each of these insuffi trial court had ample opportunity to correct claim, appellant’s provided cient to defeat any misinformation regarding proce- court proceedings on remand reveal dure. un appellant otherwise is entitled to relief unique The facts of this situation also 60(b)(6). der Rule lapse lead us to conclude that the of four- The court stated that amendment of the teen months between the order and order would “constitute fraud motion was not an amount of unreasonable seg- upon public, specifically and meaning 60(b)(6). time within the of Rule bidding.” ment thereof in court and The record reflects that thirteen months a commission on the Allowing appellant
elapsed before discovery procured contract which she would not so paying pro- commissions to the rights expectations any affect curing discovery broker and this afforded persons degree to such a as to constitute a her a legal basis for a motion to amend. public through fraud. The was informed recognize We policy that Rule 60 evinces a published percent notices of the six commis- buttressing finality judgments and the application (b)(6), Despite of subsection sion on the sales contract. commission, which is not limited a specific peri- time the new bidder the “waiver” of od, has therefore restricted to unusual proceeding place was allowed to at the nec- findings Further factual are not law. planned bid that she had in reliance on this publication. addition, applicability In of these essary we cannot find to assess application of a court procedure estop- allow- of laches and defenses. defenses ing a commission to upon be a fraud due to our conclusion that pel precluded are estate, which, prior proceeding, to the nisi was un- appellant’s waiver of commission agreed to a six commission and Because knowing. prompt- acted price subject discovery of a court ly upon that commission was fair.5 her to receive a that allowed was reasonable6 and she cannot delay The court further reasoned that denial of asserting from estopped be claim.7 the motion for amendment of the nisi order Furthermore, we have concluded that ap- justified because an adversary proceed- entitled to the pellant may equitable be ing would be required in order to assess Thus, 60(b)(6). Rule relief authorized appellant’s claim of lack intelligent waiv- raised none of the defenses merit denial of er and to allow the estate to raise defenses. the amendment unless remand the al- persuaded We are that the record contains is found to be non- leged procedure uncontroverted evidence of lack ascertainable. readily existent or of a knowing, intelligent waiver. A waiver must voluntary be a relinquishment of a the trial court’s Accordingly we reverse right. known Gibson v. District of Colum- proceed- for further decision and remand bia, D.C.App., (1966). A.2d Ap- opinion. ings consistent with this pellant clearly did not know of a court So ordered. procedure allowing her to maintain her commission and it remains now be dissenting: KELLY, Judge, Associate ascertained upon remand pro- whether this the un- presents case disagree that this cedure existed. 60(b)(6) appli- Rule usual situation where With respect to the trial court’s concern motion to view, my cable. In regarding the estate’s to raise defens- 60(bXl) motion amend was a Rule es, we conclude that the estate had the untimely. properly denied to, fact, opportunity legal did raise 60(b) provides Superior Court Civil defenses to an amendment the nisi order part: pertinent during the trial on the proceedings as are such terms 60(b) motion and motion for relief. The executor On or his relieve a argued appel- just, that relief should be denied the court judg- a final from laches, legal representative estoppel, lant on the basis of follow- ment, order, for the general inappropriateness equitable ac- inadvertence, mistake, tion of each de- reasons: support the court. *7 (6) neglect; ... fense, or excusable surprise, executor facts and ar- asserted relief from justifying any other reason gued interpretation applicable arising appellant from a denial of that, relief, prejudice to appellant We note is entitled per- is six amendment. the amount to which she is entitled the order’s price. cent of the estoppel, principle a 7.Under Specifically, in the defense order to establish absolutely the truth is should know knows or laches, the evidence must show that contrary asserting his precluded from delay prejudiced that it was unreasonable and Am.Jur.2d, Estoppel position. See 28 earlier and party asserting the defense. Powell v. Zuc Waiver, 27, pp. If the court 627-28. § kert, 634, 55, 57, U.S.App.D.C. 125 366 F.2d upon ex- that the court remand finds delay (1966). Finding appellant’s 636 in mov by reasonably ascertainable and isted reasonable, ing for relief from the nisi order we counsel, precluded from is not prejudice need not examine the to the estate. difficulty claiming because a to a commission now note, however, We knew or should have be said that she it cannot viz., estate, delay the need to caused Thus, practice. the de- true court known the accounts, various is not amend significant tax returns and estoppel fail. must fense of light when it is considered 540 601, 384, 93 266, modified U.S. 69 S.Ct. L.Ed. operation judgment. The mo- 942, 384, 69 grounds,
tion shall be made
336 U.S.
S.Ct.
within a reasonable
on other
time,
(1), (2),
(1949),
and for reasons
where the Court
and
541 appellant not hearing. nisi Had either his order outrageously is in violation of $129,- commission, Sandys’ the to implicit duty or waived express instructions his the bid highest been 000 bid would not have representing devote reasonable efforts in by estate the recovered the since amount Express Inc. Railway Agency, his client.” $121,800, the only would have been (citations omitted). To Hill, supra v. at 926 $128,500) bid highest (who next bidder the the that counsel misunderstood extent purchaser.1 have the ultimate would been ne Superior was it, discovering conduct was glectful his of Moreover, is firm evidence there no extraordinary outrageous neither so nor so appellant which that the record it his duties that should ly violation of to a broker’s cites would have entitled Compare imputed appellant. to Citi be other anything it commission or was Building Montgomery zens Ass’n & Loan of permissive rule. The fact that than a 620, Shepard, v. 289 A.2d County D.C.App., pellant’s was uninformed would waiver (Rule 60(b)(6) 622 to relieve (1972) applied significant be since she had enforceable appellees attorneys’ of actions which if the to Thus even right the commission. “curbstone, erroneous,” un “patently found alleged unwritten had level, al reaching] informed advice the Judge to attention at brought Haywood's Steuart, most, L. absurdity”); P. Inc. is no proceeding, there assurance the Matthews, U.S.App.D.C. 329 F.2d estate to she have allowed the would denied, cert. 379 U.S. S.Ct. case, brokerage commission in this award (Rule 60(b)(6) L.Ed.2d 35 relief have elected to do or that estate would applicable neglect where was not counsel’s Therefore, so, I conclude that if allowed. excusable, but grossly negligent). 60(b)(1) mo- motion was a and, having been filed more than one tion Additionally, argu- none the other it to sought after the order com- by appellant provide ments advanced entered, the trial correctly denied pelling equitable grant reasons to her relief untimely. court as (b)(6). accept under subsection do not position that a majority’s practice of allow- con- majority’s if I accept Even could commissions to brokers is favored in this case the clusion that there exist public policy. contrary, On noted to extraordinary required circumstances sought by appel- trial the relief 60(b)(6), of Rule support application lant would defeat of the nisi timely appellant’s motion rendering thus process which is to assure the maximum within a reasona- presumably filed because sale price to the estate. seeks time, uphold the trial I would still ble deplete now to the estate amount to denial of motion court’s equivalent price to six of the sale grant Since decision amend. “[t]he the subject 60(b)(6) This would not is com- property. deny a motion net reduce the return to the estate from mitted to the sound discretion sale, Co., judge,” but would also mean that the true Construction Valley court Ohio 518, 521 Dew, 354 A.2d Sandys’ D.C.App., nature of the offer was correct- Inc. v. corre- motions is ly public present (1976),2 reflected to the our review such granting a motion trial court’s discretion dle before When counsel announced to the court where, 60(b)(6) bidding pursuant fol- vacate start wished accident, appellee’s prospective lowing waive her in- other bid- a multi-vehicle protested brought propertydamage ders that such an action was suit with- surer change in the advertised terms sale. Coun- appellee’s authorization and obtained out sel insisted that it was to to judicata judgment which would have been res waive her commission. To allow against injury appellee’spersonal action would, receive a now trial commission case, defendants. Unlike same correctly determined, constitute fraud. trial found that the case Valley, Ohio extraordinary reliefand exercised warranted Valley, Appellant’s supra, reliance Ohio Also, grant action that relief. discretionto misplaced, even if we consider her motion un- case, (b)(6). upheld der subsection we *9 January The order of spondingly limited. reasonable and supported by Therefore,
just equitable considerations.
deny appellant ability to reduce prac-
assets of the of a estate on the basis
tice, the nature and existence of which are
unclear, sphere would be well within the
the trial court’s discretion under
60(b)(6). I dissent. respectfully TURNER, Appellant,
Jewel
v. STATES, Appellee.
UNITED BROOKS, Appellant,
Walter A. STATES, Appellee.
UNITED 79-1094,
Nos. 79-1135. Appeals.
District Columbia Court of
Argued Nov. March
Decided appellee Valley in this made to the court on behalf of taken on behalf of the Ohio unauthorized, express approval. representations case had her whereas