Lawrence S. LEIKEN, Appellant, v. Marie N. WILSON and Otmous Wingate, Jr., Appellees.
No. 80-376
District of Columbia Court of Appeals
Submitted March 25, 1981. Decided June 3, 1982.
444 A.2d 993
See Union Storage Company, Inc. v. Knight, D.C.App., 400 A.2d 316 (1979). Here, appellee‘s explanation for waiting over four years before moving to vacate the default judgment falls short of the requirement that there must be exceptional circumstances to warrant relief under Rule 60(b)(6). Compare Ohio Valley Construction Co., Inc. v. Dew, D.C.App., 354 A.2d 518 (1976); Citizens Building and Loan Association of Montgomery County, Inc. v. Shepard, D.C.App., 289 A.2d 620 (1972).
The trial court found that appellee was ignorant of the law and vacated the default judgment pursuant to Rule 60(b)(6). It is not clear that ignorance of the law would be a ground for granting relief under any part of Rule 60(b). Compare United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir.), cert. denied sub nom. 404 U.S. 849, 92 S.Ct. 83, 30 L.Ed.2d 88 (1971), with Dormeyer Company, Inc. v. M. J. Sales and Distributing Company, 461 F.2d 40 (7th Cir. 1972). Nonetheless, if we assume that it is a cognizable claim, ignorance of the law would describe “mistake” or “excusable neglect,” thereby bringing the claim within 60(b)(1). Since 60(b)(1) would encompass alleged ignorance of the law, granting appellee‘s motion to vacate pursuant to 60(b)(6) was error.
Accordingly, the order of the trial court granting appellee‘s motion to vacate the default judgment is
Reversed.
No brief was filed by appellees.
Before KELLY and FERREN, Associate Judges, and PAIR, Associate Judge, Retired.
FERREN, Associate Judge:
We granted this appeal from a decision of the Small Claims Branch because it
As to the first question, we conclude that the court did err in vacating the judgment because, in finding the settlement agreement unconscionable, the court misinterpreted its terms. Appellee Wingate accordingly is bound to pay appellant $490.
As to the second issue, which as a consequence of our first ruling pertains only to appellee Wilson, we decide as follows: Once appellant proved that appellees’ faulty brakes violated traffic regulations enacted to protect against injury from uncontrolled vehicles and proved, further, that this violation proximately caused the damage, appellant thereby presumptively established negligence. Consequently, appellee Wilson (who was not party to the settlement agreement) could avoid liability only if she rebutted this presumption with competent evidence tending to prove that neither she nor Wingate knew, or reasonably could have known, the brakes were defective. We conclude that the trial court‘s ruling for appellees is consistent with the application of this standard and is supported by the evidence.
Accordingly, we reverse and remand for reinstatement of the settlement agreement as to Wingate but affirm the judgment in favor of Wilson.1
I.
On September 19, 1979, a car driven by appellee Otmous Wingate, Jr. and owned by his fiancee, appellee Marie N. Wilson, collided with a parked car owned by appellant Lawrence S. Leiken. A week later, appellant filed a complaint in the Small Claims Branch seeking damages of $750. See
The Clerk of the Court will dismiss this case as settled, pursuant to the following agreement. Plaintiff agrees to amend his complaint to $490.00, representing actual damages of $440.00 and inconvenience of $50.00. Defendant Wingate agrees to pay Plaintiff $90.00 on or before October 29, and $80.00 each month on the 15th beginning in November and until the balance is paid off. If all terms of this agreement are complied with Plaintiff agrees to vacate default judg-
ment against Marie Wilson. Should Defendant miss a payment, Plaintiff will be entitled to a judgment for the remaining balance, plus costs and will be able to act on default judgment against Marie Wilson for damages alleged in the initial complaint.
The trial judge, Dyer Justice Taylor, entered judgment in accordance with the terms of this agreement. See
After making two payments, Wingate defaulted. Appellant therefore pursued the matter once again in court, before Judge Bowers, requesting to put on ex parte proof of damages. See
After a joint trial later the same day, the court held that appellant had failed to prove negligence and entered judgment in appellees’ favor. This court granted appellant‘s timely application for allowance of appeal. See Little v. Johnson, D.C.Mun.App., 145 A.2d 852, 855 & n.6 (1958) (assuming, without deciding, that court can act under Rule 60(b) on its own motion, the court here acted untimely); McDowell v. Celebrezze, 310 F.2d 43, 44 (5th Cir. 1962) (court vacated judgment after hearing on court‘s own motion); 11 Wright & Miller, supra § 2865 at 226 & n.61 (“the court has power to act in the interest of justice in an unusual case in which its attention has been directed to the necessity for relief by means other than a motion“); cf. Eytan, supra at 881 (Small Claims Branch properly granted summary judgment on its own motion).3
II.
Appellant first contends that the trial court erred in declaring unlawful his settlement agreement with Wingate. We agree that the court misconstrued the agreement and thus should not have set aside the judgment.
After vacating Wilson‘s default and granting her a trial on the merits, the trial court, on its own initiative, “carefully scrutinized the settlement” between appellant and Wingate, who were “not ... represented by counsel.” The court concluded that the agreement was “unconscionable and should not be enforced” because it potentially allowed appellant a double recovery and because it was “confusing and unfair.” The court then set the case for trial as to both appellees.
If we assume that the Small Claims Branch has the power to set aside a consent judgment on its own motion and that “unfairness” may provide a basis for relief when the parties are not represented by counsel,4 we must determine whether the
Conciliation efforts in the Small Claims Branch are mandatory, and settlements are strongly favored. Potomac Small Loan Co. v. Myles, D.C.Mun.App., 34 A.2d 609, 611-12 (1943). See
The trial court found the agreement “unconscionable” for two reasons:
[1] [I]t potentially allows plaintiff a double recovery. The final line of the praecipe provides that if defendant Wingate misses a payment, plaintiff will be entitled to a judgment for the remaining balance and “will be able to act on default judgment against Marie Wilson for damages alleged in the initial complaint,” i.e., $750.00. The Court interprets this to mean that under the terms of the agreement, plaintiff will be able to execute on the judgment against Wilson in the amount of $750.00 and, at the same time, keep what he has collected from Wingate and pursue the judgment for the remaining balance against Wingate....
[2] [T]he penultimate line of the praecipe [is] equally confusing and unfair. Under that provision, if Wingate makes all the payments agreed upon, the result is merely that the default against defendant Wilson would be vacated. Plaintiff‘s claim against Wilson could then, presumably, be scheduled for trial.
Viewing the agreement in its entirety, we conclude that the penultimate provision of the agreement (which the trial court referred to second) is a release or covenant not to proceed against Wilson, unless Wingate fails to observe the agreement.7
It cannot fairly be construed to mean that once Wingate fulfills his bargain, appellant is free to seek a second recovery against Wilson, subject only to trial in lieu of default. The trial court‘s interpretation is erroneous as a matter of law.8
The final provision of the agreement (which the trial court referred to first) states: “Should Defendant miss a payment, Plaintiff will be entitled to a judgment for the remaining balance, plus costs and will be able to act on default judgment against Marie Wilson for damages alleged in the initial complaint.” The trial court interpreted this provision to mean that if Wingate fails to pay, appellant can keep all sums paid by Wingate, proceed against him for the balance due on the agreed $490, and, at the same time, obtain the full judgment of $750 against Wilson. According to this reading, Wingate could collect more than the $750 in damages he alleged in his initial complaint.
Although the language of the agreement is literally consistent with the trial court‘s construction, such a result would be inconsistent with general principles of tort law. If two or more tortfeasors produce a single injury, the plaintiff may sue each one for the full amount of the damage and hold the defendants severally liable; but the plaintiff can obtain only a single recovery, and each defendant will be entitled to a credit for any sum that the plaintiff has collected from the other defendant. McKenna v. Austin, 77 U.S.App.D.C. 228, 233, 134 F.2d 659, 664 (1943); W. Prosser, Handbook of the Law of Torts § 49 (4th ed. 1971). It is unlikely that appellant and Wingate intended an agreement in derogation of these established principles.
There is another, more plausible interpretation of the final provision: If Wingate misses a payment under the agreement, appellant may keep all the payments Wingate has made, proceed against Wingate for the balance of the $490 he promised (plus costs), and proceed against Wilson (apropos of McKenna, supra) for the difference between the amount collected from Wingate and the $750 alleged in the complaint. So construed, the agreement would reflect an understanding that the driver of the car, Wingate, promised to pay $490 according to a fixed schedule in return for (1) appellant‘s willingness to forego suit for the additional $360 of alleged damages and (2) his promise to vacate the default against Wingate‘s fiancee, appellee Wilson. Thus, if Wingate failed to meet the payment schedule, appellant could try to collect the full $750 of alleged damages: up to $490 from Wingate without litigation over liability and, upon proof of damages, up to $750 from Wilson (provided that appellant collects no more than a total of $750 and the defendants may seek contribution, as appropriate).9
This latter construction of the settlement agreement is more consistent with the parties’ intentions and with law, whereas the trial court‘s interpretation would make it unconscionable (if not automatically unlawful under McKenna, supra). We hold, accordingly, that the trial court erred as a matter of law, and that the settlement agreement—to be interpreted as we summarized it above—must be reinstated.10
Because Wingate missed a payment under the settlement agreement, appellant proceeded against Wilson, seeking to put on ex parte proof of damages. Although we order reinstatement of Wingate‘s settlement obligation, we cannot overlook the fact that Wingate committed a breach of the agreement, which, by its terms, justified appellant in pursuing Wilson once again.
A. The first question is whether the trial court abused its discretion in vacating Wilson‘s default. “To be entitled to relief, the defaulting party must show that there is ‘good cause’ for setting aside the default.
Defendant Wilson testified that she did not appear in court on the answer date because she was still suffering from injuries resulting from the accident, including a concussion and multiple lacerations, and because she was pregnant. Defendant Wingate, Wilson‘s fiance, testified that he called plaintiff before the answer date and stated that she could not appear in court. Plaintiff could not recall this aspect of his conversation with Wingate but did recall speaking with him. The Court credited the testimony of the defendants and vacated the default.
“A motion to set aside entry of default is ... delegated to the discretion of the trial court.” Firestone, supra at 528 (citation omitted). Indeed, “[u]nder the power of the trial judge under ... Rule 55(c) to set aside entry of default at any time prior to judgment is restricted only by the requirements that it be exercised within a reasonable time and for good cause shown in the light of the circumstances of each case.” Lancaster v. Canuel, D.C.App., 193 A.2d 555, 557 (1963). See also Wheeley v. Smith, D.C.Mun.App., 160 A.2d 103, 106 (1960) (“reasonable time ... conceivably could be longer than the time allowed under Rule 60(b)“). This follows from the fact that the trial judge is in the “best position to evaluate the immediate circumstances of the case and the credibility of the parties.” Firestone, supra at 528 (citation omitted).
Wilson stated she failed to contact the court to confirm that she would be unable to appear as scheduled because she knew Wingate was coming to court. She did not explain, however, why she had waited almost five months before seeking to vacate the default. We cannot say it was unreasonable for the court to conclude that, given Wilson‘s injuries, she justifiably relied on Wingate to work matters out with appellant. Moreover, given Wingate‘s settlement with appellant, who thereby agreed not to pursue Wilson as long as Wingate kept up the agreed-upon payments, it is understandable why Wilson relaxed rather than taking the initiative to cure her default. Finally, we conclude that the trial court, in a small claims proceeding, has discretion to grant a motion to vacate a default without requiring simultaneous filing of a verified answer, particularly where, as here, the court decided to hold a trial on the merits on the same day it granted the motion to vacate. See note 11 supra. We are satisfied that, in the trial court‘s reasonable discretion, the proffer of a defense on the merits can await the trial.
“It is the policy of the law to have every case tried on its merits. When satisfied of the good faith of the applicant moving to set aside a default, the court should be liberal in its consideration of the application.” Manos v. Fickenscher, D.C.Mun.App., 62 A.2d 791, 793 (1948) (citations omitted). Here, in addition to the reasons
B. We must, therefore, address the merits: whether the court properly resolved the question of negligence. In making this assessment, we confront this question: in a brake failure case, reflecting a violation of the traffic regulations, is the defendant automatically negligent as a matter of law, or can exonerating circumstances preclude a finding of negligence?12
We conclude that a defendant‘s failure to comply with traffic regulations creates a presumption of negligence.13 To rebut this presumption, the defendant must produce sufficient competent evidence to justify a finding that the defendant did all a reasonable person who wished to comply with the law would do. Here, the trial court found that Wilson‘s brakes were defective and that this failure caused the accident. The court also found, however, that neither “defendant knew or reasonably could have foreseen that the brakes were faulty.” This finding is supported by the evidence. The trial court reported in its Statement of Proceedings and Evidence Pursuant to [D.C.App.] Rule 6(d)(3):
Wingate testified that the car, a 1966 Dodge, had been inspected three to five days prior to that accident and had passed. The brakes worked properly between the time of inspection and the accident when Wingate drove it back and forth to work. After the collision, Wingate took the car to a mechanic to determine why the brakes failed and was informed that a rubber hose in the brake system was broken. Wilson was also called as an adverse witness and corroborated Wingate‘s testimony that the car passed inspection and that the brakes worked properly until the accident. She specifically remembered the brake tests being performed at the inspection which she attended.
The trial court—as factfinder here—properly could conclude, on the basis of this testimony, that appellee rebutted the presumption of negligence. We affirm the judgment in Wilson‘s favor.
1. This court has stated that violation of a traffic regulation usually constitutes negligence as a matter of law. Stevens v. Hall, D.C.App., 391 A.2d 792, 796 n.2 (1978) (citing Herrell v. Pimsler, 307 F.Supp. 1166, 1168 (D.D.C.1969)).14 We have cautioned, however, that this per se rule is limited “to situations in which the violation of a statute or regulation has frustrated its protective purpose. ‘Violation of a regulation does not, ipso facto, give rise to civil liability unless the regulation is one designed to prevent the sort of harm to the individual relying on it which has in fact occurred.‘” Stevens, supra at 795 (quoting Peigh v. Baltimore & O. R. Co., 92 U.S.App.D.C. 198, 200, 204 F.2d 391, 393 (1953)). Furthermore, a traffic violation cannot give
In this case all three conditions are met. Appellees violated two traffic regulations governing brakes,16 the “protective purpose” clearly is to forestall personal injury or property damage from uncontrolled vehicles, and the trial court found “the cause of the accident was the failure of the brakes.”17 The question, then, is whether the court nonetheless can permit appellees to introduce evidence tending to excuse the violation.
2. In the case of a traffic violation that causes injury within the protective scope of the regulation, we have two choices in applying negligence per se theory: imposition of automatic liability, or creation of presumptive liability subject to rebuttal with a number of acceptable excuses. This court has chosen the latter course. Recently, we stated:
If a party charged with statutory or regulatory negligence produces competent evidence tending to explain or excuse his or her violation of the statutory or regulatory standard, the jury is properly instructed, upon proper request of the party, that the violation is evidence of negligence, but not negligence as a matter of law. [Ceco Corp. v. Coleman, D.C.App., 441 A.2d 940, 945 (1982).]
The question whether a defendant has produced “competent evidence tending to explain or excuse” a regulatory violation is obviously a contextual one. We deal here only with failing brakes, but we are emphatic in our belief that violation of a traffic regulation governing automobile brakes should not easily be converted from negligence per se to mere evidence of negligence. The phrase “competent evidence tending to explain or excuse” brake failure accordingly means that once the jury has found there was a traffic violation, negligence is established unless the jury also finds that the violator has produced evidence demonstrating that he or she did everything a reasonably prudent person would have done to comply with all applicable regulations:
A defendant‘s failure to comply with [traffic] provisions gives rise to a presumption of negligence that he may rebut by proof “that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” (Alarid v. Vanier (1958) 50 Cal.2d 617, 624, 327 P.2d 897, 900 ....) [Maloney v. Rath, 69 Cal.2d 442, 444, 71 Cal. Rptr. 897, 898, 445 P.2d 513, 514 (1968) (Traynor, J.) (en banc)]18
See McConnell v. Herron, 240 Or. 486, 491-92, 402 P.2d 726, 729 (1965) (en banc); Albers v. Ottenbacher, 79 S.D. 637, 641-42, 116 N.W.2d 529, 531 (1962). We adopt this “presumption of negligence” formulation for two reasons: it states more precisely the evidentiary burden on a violator that appears to be inherent in the “producing competent evidence” standard, and it reflects this court‘s traditional view that a defendant should be held accountable for injuries proximately caused by faulty brakes, absent proof that the defendant did not know—and should not reasonably have been expected to know—about the defect. District of Columbia v. Tilgham, D.C.Mun.App., 157 A.2d 629, 632 (1960); Ravin v. Hanson, D.C.Mun.App., 142 A.2d 830, 832 (1958); cf. Andrews v. Forness, D.C.App., 272 A.2d 672, 673 (1971) (res ipsa loquitur doctrine applied in brake failure case). See generally Restatement (Second) of Torts § 288A (1965) (Excused Violations).
3. Here, the trial court did not explicitly mention the violation of the traffic regulations in its findings, but it did engage in extensive sua sponte questioning of Wingate and Wilson concerning their maintenance of the automobile brakes. The court found that neither of them “knew or reasonably could have foreseen that the brakes were faulty.” This finding is adequate to rebut the presumption that appellees were negligent.
The judgment vacating appellant Leiken‘s settlement agreement with appellee Wingate is reversed and the case is remanded with instructions to reinstate the consent judgment incorporating that agreement. The judgment in favor of appellee Wilson is affirmed.
So ordered.
KELLY, Associate Judge, concurring in part and dissenting in part:
I agree that it was clear error to set aside the settlement agreement between appellant Leiken and appellee Wingate. And while I do not necessarily disagree with the majority‘s discussion of the negligence issue, I deem it superfluous since in my view it was an abuse of discretion to vacate the default against appellee Wilson. She did not contest liability in the motion. Her complaint was that she did not owe the full amount claimed. I would reverse the judgment as to both appellees.
Notes
A consent judgment is basically an agreement which the Court turns into a judgment. It is similar to a contract between the parties. This means that the Court should not allow a party to free himself from the judgment unless there is some theory in operation which would free him from the contract. [Citations omitted.]
These discussions accord with our interpretation of the agreement.LEIKEN: I do have a default judgment in effect, I understand, against Miss Wilson in settling this matter. Basically I agreed, as I understand it, that if the payment schedule is met that that judgment against Miss Wilson, the owner of the car, will be vacated.
COURT: Correct.
LEIKEN: However, this agreement specifies that that judgment may still [ ] have effect in the event that the payment schedule is not met.
COURT: That‘s correct. That‘s what it says here.
LEIKEN: Thank you.
COURT: You‘re quite correct to try to get your understanding clarified ... on the record....
Rule 55 is applicable in the Small Claims Branch except where it is inconsistent with the expeditious and informal nature of small claims proceedings. SeeFor good cause shown, and upon the filing of a verified answer setting up a defense sufficient if proved to bar the claim in whole or in part, the Court may set aside an entry of default....