These consolidated appeals arise from the trial court’s decision on remand to deny appellants’ motions for attorneys’ fees. Because we are satisfied that the trial court’s denial of fees was not an abuse of discretion, we affirm.
I.
A The Trial
On March 5, 1997, Yok T. Jung filed suit against her brothers, Bow G. Jung and Wee G. Jung, alleging intentional infliction of emotional distress arising from several family arguments over the disposition of their mother’s estate. 1 Yok sought damages for the emotional distress caused by threats she alleged her brothers made against her, including threats to “fight till the death” and to file false criminal charges against her. 2 During discovery, *1103 the parties’ conduct was no more harmonious than it had been during them family-discussions. As a consequence of extreme tardiness, incomplete and evasive discovery responses, failure to meet court-ordered discovery obligations, and frivolous filings for protective orders, the motions judge imposed discovery sanctions on Yok, including an award of attorneys’ fees to Bow and Wee amounting to $12,320. Both Bow and Wee then moved for summary judgment, but were denied. The motions court explained that “[w]hile most of plaintiffs allegations are very general in nature ... the plaintiffs affidavits also make claims regarding purported death threats and the bringing of false criminal charges which is sufficient to defeat summary judgment or partial summary judgment.” The court’s conclusion was based on Yok’s sworn statements that “Bow Jung and Wee Jung have threatened to fight me to the death, as recorded on the tapes,” that they “threatened my job,” and that they “threatened me with criminal charges.” Thereafter, Bow and Wee filed several counterclaims, alleging that Yok invaded them privacy, harassed their families in the course of service of process and disseminated scandalous personal information through court documents.
The case proceeded to trial in January of 1999. After hearing Yok’s case in chief, the trial judge entered judgment as a matter of law for Bow and Wee, concluding that no reasonable jury could have found that them conduct was extreme and outrageous, or that they intended to cause Yok severe emotional distress. On Bow’s and Wee’s counterclaims, the jury returned a verdict in favor of Yok.
Invoking the bad faith exception to the so-called “American rule” on attorneys’ fees, Bow and Wee separately moved to alter or amend the judgment in their favor in order to secure costs and attorneys’ fees. 3 In an order dated March 23, 1999, the court summarily denied both requests for fees without findings of fact or conclusions of law.
B. The Initial Appeal
Yok then appealed the judgment as a matter of law dismissing her claim of intentional infliction of emotional distress and the imposition of discovery sanctions. Both Bow and Wee cross-appealed the denial of attorneys’ fees.
See Jung,
G. The Proceedings orí Remand
On May 17, 2002, the trial court conducted a hearing on the remanded issue of attorneys’ fees. Following oral arguments, the court stated,
I am going to reconsider. That’s a given. I decided the issue that was left to me by the Court of Appeals this way in this fashion. I will reconsider this order. We start from scratch .... I want a statement of findings of fact and conclusions of law, and a proposed result, from each side in this matter.
All parties submitted the requested proposals. Appellant Wee’s submission specifically urged the trial court to assess fees on the ground that Yok demonstrated bad faith by (1) bringing unsupported allegations for an improper purpose, (2) committing perjury in her affidavit filed in opposition to summary judgment, (3) raising “scandalous and irrelevant” claims throughout the course of the litigation, (4) demanding unreasonable settlement terms, 5 (5) violating the rules of discovery, and (6) failing to investigate and prove her claim. On July 25, 2002, the trial court issued an order in which it concluded that it did not find a basis for disturbing its prior ruling denying attorneys’ fees. Although the court did not make findings of fact or draw conclusions of law, it did provide three reasons as justification for the denial: (1) although Bow and Wee contended that-Yok’s emotional distress claim was unfounded, “they ignore that the emotional, distress claim survived — although only barely — a pretrial motion for summary judgment, although it did not survive a motion for judgment at trial”; (2) although Bow and Wee referred the court to Yok’s established misconduct in discovery, “the discovery misconduct of plaintiff was sanctioned by [the motions judge] in *1105 the amount of $12,320”; and (3) although Yok’s behavior at trial was “far from stellar,” the weakness of her emotional distress claim was counterbalanced somewhat by defendants’ “less than compelling” counterclaims. Bow and Wee now appeal from the July 25 order denying an award of attorneys’ fees.
II.
Before addressing the merits, we first resolve the question of whether Bow’s appeal is properly before us.
Yok argues that Bow lacks standing to appeal the trial court’s July 25 order denying fees. She maintains that since Bow filed a stipulation of dismissal effectively terminating his appeal of the March 23, 1999 order during the course of the first appeal, he cannot benefit from this court’s subsequent decision in that appeal vacating the order and remanding the case for consideration of Wee’s request for attorneys’ fees. Bow responds by arguing that this court’s decision in the first appeal vacating the March 23 order, combined with the trial court’s “ruling” on remand that it would start “from scratch” and that “each side” should submit proposed findings of fact, is tantamount to an order issued pursuant to rule 60(b)(5) vacating the March 23,1999 denial of Bow’s request for attorneys’ fees. See Super. Ct. Civ. R. 60(b)(5) (authorizing the trial court to relieve a party from a final judgment when “a prior judgment upon which it is based has been reversed or otherwise vacated”) (emphasis added).
In support of his argument, Bow directs our attention to
Werner v.
Carbo,
We believe the present case is distinguishable. Unlike the judgment against the doctor and professional corporation in
Werner,
the trial court’s March 23 order against Bow did not depend on the trial court’s decision with respect to Wee. Whereas the judgment against the professional corporation in
Werner
“was wholly derivative of, coexistent with, and limited by the judgment against” the individual doctor,
id.
at 209, no such mutuality exists in this case. The record shows that Bow filed a separate motion for attorneys’ fees with the trial court. The fact that Bow incorporated by reference Wee’s motion does not collapse the two motions into one.
*1106
Bow’s counsel presumably filed a separate motion in order to present the court with his own account of hours and expenses incurred in defense of Yok’s suit. Although the trial court disposed of both motions in a single order and rejected them based on the same reasoning, the individualized nature of Bow’s interest persisted, as evidenced by Bow’s separately noted (and later separately withdrawn) appeal. We do not believe that the trial court’s decision to resolve two motions in one order based on the same reasoning is an “exceptional circumstance” of the kind contemplated by
Werner
as warranting relief under Rule 60(b)(5).
Id.
at 209. The reasoning espoused in
Werner
— the legal dependency of the unappealed judgment on the judgment reversed on appeal — is inapplicable here as the trial court’s order denying Bow’s motion for fees does not rest, legally or factually, upon the denial of Wee’s motion for fees.
See id.
at 208-09. Our decision .to vacate the order as it pertained to Wee’s motion did not hold any “prior legal significance” in relation to Bow’s motion.
Id.
at 208. Accordingly, once Bow filed a stipulation of dismissal, he affirmatively terminated his appeal from the March 23,1999 order and he now cannot rely on Rule 60(b)(5) to benefit from this court’s decision in favor of his brother, who did pursue the appeal.
See Cruickshank & Co., Ltd. v. Dutchess Shipping Co.,
Nor can the trial court’s action reconsidering Bow’s request for attorneys’ fees be based on our remand order in the first appeal, because Bow’s stipulation of dismissal in the first appeal implicates our jurisdiction to order a remand with respect to his claim. As we have long said, the noting of a timely notice of appeal is mandatory and jurisdictional in this court.
See, e.g., In re C.I.T.,
III.
We now turn to the question of whether on remand the trial court properly denied Wee’s motion for attorneys’ fees.
The District of Columbia applies the general principles of the “American rule” on attorneys’ fees, including its bad faith exception.
See In re Antioch Univ.,
In vindicating its authority, however, the court must scrupulously avoid penalizing litigants for aggressively litigating their claims or discouraging good faith assertions of colorable claims and defenses.
See In re Estate of Delaney,
Bad faith may be found either in the initiation of a frivolous claim or in the manner in which a properly filed claim is subsequently litigated.
See Synanon Found., Inc., 517
A.2d at 38. To ascertain whether a litigant has initiated an action in bad faith the court examines whether “the claim is entirely without color
and
has been asserted wantonly, for purposes of harassment or delay, or for other improper reasons.”
Id.
at 40 (emphasis added);
see also Gen. Fed’n of Women’s Clubs,
A. Standard of Review
We recognize that when determining whether sanctions are warranted, the trial court “is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard .... ”
Cooter & Gell v. Hartmarx Corp.,
B. Analysis
On appeal, Wee raises several arguments, including that the trial court abused its discretion by failing to make formal findings of fact and conclusions of law, by misconstruing the legal significance of both Yok’s survival of summary judgment and Wee’s filing of counterclaims, and by disregarding the letters written by Yok’s counsel.
Appellant’s argument that the trial court was required to issue formal findings of fact and conclusions of law is unavailing. As the
Jung
court noted, the absence of an articulated explanation for the denial of sanctions is not a matter of concern in the ordinary case where the sanctions motion typically is deficient on its face.
See Jung,
Wee’s arguments on the merits largely challenge the bases upon which the trial court found that Yok did not initiate the present litigation in bad faith. We therefore begin with an examination of whether the trial court’s chosen factors were improper in the manner Wee asserts.
Appellant argues that the trial court should not have relied on the fact that Yok’s claim survived summary judgment. During the remand proceedings, Wee ventured to show Yok’s bad faith by emphasizing the baselessness of her claim for intentional infliction of emotional distress. It was in response to this evidence of bad faith that the trial court countered by reasoning that Yok’s claim had survived summary judgment. As a preliminary matter, we note that this type of reasoning was proper, since summary judgment is designed to test whether a triable claim exists.
See
Super. Ct. R. Civ. P. 56(a);
O’Donnell v. Assoc. Gen. Contractors of America,
Although the court’s rebanee on the denial of summary judgment is theoretically logical, in this case it is misleading, Wee argues, because Yok survived summary judgment only because she contemptuously evaded deposition and averred a false and conclusory affidavit. The trial court was specifically alerted to these claims in *1110 Wee’s proposed findings, but made no reference to them in its July 25 order. We agree that the trial court’s reliance on its denial of summary judgment of Yok’s claim would be stronger if the court had also examined whether Yok should have survived summary judgment had she complied with discovery. Despite this concern, however, we cannot say that the court’s denial of summary judgment constituted an “improper factor” in the court’s decision to deny fees, particularly where the trial court considered that Yok was separately sanctioned for delays and other tactics during the course of discovery. Thus, Wee already had received attorneys’ fees for whatever bad faith Yok may have exhibited by contemptuously evading deposition. More importantly, Yok’s delay in submitting to a deposition did not enable her to overcome summary judgment. Although Wee relates the two by arguing that his motion for summary judgment would have prevailed had he possessed the supposedly damning information contained in the deposition at the time he needed to respond to Yok’s opposition to the motion for summary judgment, our review of the record indicates that there was nothing in the deposition that would have empowered Wee to unmask Yok’s affidavit as being a sham.
Wee’s related assertion is that Yok’s bad faith is evident because she was able to survive summary judgment and bring her case to trial only by averring a false affidavit in support of her opposition to summary judgment. He argues that “[e]vidence at trial ... established that these sworn statements were simply false.” Generally speaking, the failure of proof at trial cannot, without more, be a basis for a finding of bad faith.
See Synanon Found., Inc.,
Wee also urges us to consider a discrepancy between Yok’s affidavit filed in opposition to summary judgment and the audio tape recording of the family argument in which Bow and Wee were alleged to have made the statements Yok claimed were intended to cause her severe emotional distress. Specifically, Wee points out that while Yok swore in her affidavit that “Bow Jung and Wee Jung have threatened to fight me to the death, as recorded on the tapes,” the tape recordings, in fact, reveal that although Bow talked of a “fight to the death,” Wee uttered no such words, and Yok admitted as *1111 much at trial. We do not believe that this putative discrepancy is conclusive evidence that Yok’s affidavit is perjured. Yok’s sworn statement is in fact consistent with her assertion that, by remaining silent, Wee adopted his brother Bow’s words. Yok’s later testimony, both in her deposition and at trial, does not repudiate this position. Without Yok’s repudiation of any of the statements she averred in her affidavit, we cannot say that her affidavit was a sham. Thus, there was no error in the court’s reliance on the denial of summary judgment (which in turn relied on Yok’s affidavit) as a basis for denying bad faith attorneys’ fees in this case.
Wee also argues that the trial court misused the counterclaims to mitigate Yok’s alleged bad faith in initiating the litigation. He considers this particularly egregious because his request for attorneys’ fees was limited to those hours and expenses dedicated to defending Yok’s emotional distress claim, and excluded fees and expenses incurred with respect to his own counterclaims. While Wee persuasively argues that his counterclaims cannot logically mitigate Yok’s alleged bad faith, it is not clear from the record that the court did so. In the July 25 order, the trial court said it previously concluded that “the weakness of [Yok’s] emotional distress claim was counterbalanced somewhat by defendants’ less than compelling counterclaims. After all, the jury decided against the defendants on their counterclaim after a fair trial ....” Taken as a whole, the July 25 order at first glance seems to suggest somewhat illogically that Yok’s ability to survive summary judgment and present her claim to a jury indicates an absence of sanctionable bad faith on her part, yet Wee’s success in getting to a jury which happened to decline rendering a favorable verdict somehow suggests the presence of counterbalancing bad faith on Wee’s part. Upon closer inspection, however, we believe that the judge’s words are best understood in another way. This statement takes on clearer meaning when put into the context of the court’s “previous conclusion” to which it specifically alluded. During the remand hearing, the following exchange occurred:
[Yok’s Attorney]: ... I’d say here is the pot calling the kettle black....
[Court]: I must confess that that is really what I was thinking when I, when I denied the motion.... I viewed this as a frivolous lawsuit brought by the plaintiff. But I don’t — I didn’t think that the responses, how shall I say this, of the, of the defendant counter claimants were calculated to create economies. I can’t say it any better than that. I thought there was a lot of stuff going on both sides and in both direction[s] that was uncalled for.
Thus, in keeping with the court’s inherent equitable power under the bad faith exception to vindicate its authority and punish abuses of the judicial process,
Jung,
Lastly, we address an issue raised at oral argument. Although counsel initially indicated that Wee was not challenging the selection of factors used by the judge in rendering the decision (but rather the legal significance that the judge attached to those factors), counsel later stated that the trial court abused its discretion by failing to consider the series of letters written by Yok’s attorney. Counsel argued that the letters are further evidence that Yok initiated this lawsuit in bad faith. We therefore limit our review of “whether the trial court failed to consider a relevant factor,”
Johnson,
Wee’s proposed findings of fact and conclusions of law (submitted on remand) included as exhibits the letters drafted by Yok’s counsel, the substance of which we already have outlined. See note 5,
supra.
After reviewing the letters in the full context of this case, we are of the opinion that the letters do not constitute a relevant factor which the trial court improperly neglected. The trial court’s analysis of the significance of the denial of summary judgment is critical, because it clearly indicates that the trial judge found that Wee had not met his burden of showing the first prong of the bad-faith test, that is, that Yok’s claim was wholly without legal and factual support.
See Gen. Fed’n of Women’s Clubs,
Our decision today should not be-interpreted to mean that the specific letters in this case were proper, or that letters of
*1113
counsel are never relevant in ascertaining the existence of bad faith. Such letters may well shed light on the existence of bad faith where a claim has been filed, or a defense interposed, without any legal or factual support, or where an obstinate procedural maneuver is undertaken without proper justification. None of these circumstances is present here, thus distinguishing this case from those we previously have found warranted imposition of bad faith fees.
See, e.g., Fischer v. Estate of Flax,
For all the foregoing reasons, the judgment of the trial court denying the motion for bad faith attorneys’ fees is
Affirmed.
Notes
. For convenience, we refer to the parties by their first names: "Yok,” "Bow,” and "Wee.”
. The parties recorded their dispute on audio tape, the transcription of which reveals that Bow specifically stated,
*1103 Okay. We’re going to bring the [audio] tape [of our meetings] to the lawyer. We’re going to hire the lawyer. Then we’ll see what we can do. That's something we can do. Let’s just fight till the death, to the death. Okay. Let's go.
With regard to the threat to file false criminal charges, Bow apparently warned Yok about what could happen if she concealed assets and defrauded the estate. Yok further maintains that Wee adopted his brother’s threats.
See Jung v. Jung,
. Bow filed his motion for attorneys’ fees on February 22, 1999, incorporating by reference a lengthier motion by Wee, also dated February 22, 1999.
. The court expressly chose to remand the case rather than remand the record.
See Jung,
. Yok’s settlement demands were delivered through three letters written by her attorney over the course of the first year of this lawsuit. Wee points to several passages from each that "clearly identifjy Yok’s] motives for filing and pursuing this lawsuit.”
In the first letter, Yok’s counsel stated that he believed that the jury in this case would "award [Yok] a six figure compensatory damages verdict and punitive damages verdict .... ” To avoid this likelihood, counsel suggested that Wee "return the $60,000.00 distributed to him by the personal representative for the estate of [their mother],” reimburse the estate for any attorneys’ fees it may be required to pay, and assign his interest in their mother’s estate to Yok without compensation.
In the second letter, counsel predicted that a ruling adverse to Yok in the separate probate proceeding would be reversed on appeal, thus compelling him to "aggressively tty to sell Wee's house ... to satisfy [the resulting] judgment.” Counsel again suggested that Wee settle by assigning his interest' in their mother's estate to Yok, and paying $15,000, which constituted one half of Yok’s then-current attorneys' fees and costs.
In the third and final letter, Yok’s attorney indicated that he would need to conduct extensive discovery — including, if necessary, subpoenas to Wee's minor children — related to Wee's emotional distress counterclaim. Counsel outlined the contours of this anticipated discovery, stating that whatever emotional distress Wee claims to suffer is more likely the result of his "serious marital problems,” "physical fights with his wife’s brother(s),” ”difference[s] he has with his wife about the care of his wife's mother,” and his "wife's failed childcare business.”
. Superior Court Civil Procedure Rule 60 is identical to Federal Rule of Civil Procedure 60 except for a singular provision inapplicable here. See SUPER. CT. CIV. R. 60 cmt. (2003).
. Because we conclude that our decision in Jung did not vacate the March 23 order as to Bow’s motion for fees, we reject the suggestion that the trial court's decision on remand to "start from scratch” permits Bow to appeal the July 25 order. In that order, now under review, the trial court apparently misper-ceived our instruction in Jung to mean that it should " ‘revisit the motion' filed by Wee Jung and Bow Jung.” The manner in which the proceedings were conducted on remand, however, cannot cure the antecedent limitation on our own authority to remand the case in the first place, which consequently also limited the trial court’s authority on remand..
In this regard, we wish to clarify the significance of our action in Jung to remand the case as opposed to remanding the record. As we explained in Bell,
in a record remand, this court retains jurisdiction over the case, and the trial court may take no action, with respect to the case, other than that specified in the record remand order.
A "case” remand, on the other hand, returns the case to the trial court for all purposes. This court retains no jurisdiction over the case and the appeal is terminated. If, after a case remand, a party is dissatis *1107 fied with the action of the trial court, the only course available to obtain review in this court, is to file a new notice of appeal, once a final order or judgment is entered.
. During oral argument, Bow’s counsel urged us to consider two orders issued by a motions division of this court denying Yok’s motion to strike Bow's appellate brief and dismiss Bow’s appeal for lack of standing. Counsel argued that these orders constrain our deliberations and direct a decision permitting Bow to maintain his present appeal. We disagree. Although appellate courts generally adhere to a ruling made on a prior motion, such adherence is discretionary.
See Kleinbart
v.
United States,
. We usually do not consider claims raised for the first time during oral argument because of the unfairness to the opponent, who has not had an opportunity to consider and present a response.
See D.D. v. M.T.,