Robinson v. Howard University

sum, Second, In remanding this case Hearing Committee conclud- ed respondent “deliberately Board, in a acted con- majority expresses several manner that prejudice which, submit, resulted in and dam- are sim- respectfully cerns I age by to his client to properly his failure not in the Committee ply reflected present an appeal to the District of Colum- needless, dis- Board And there reports. bia I Appeals.” agree Court cannot subject of client ne- on turbing dicta my colleagues that the Committee here was glect. evaluating respondent’s “effectiveness ante presenting appeal,” his [client’s] Rath- professional skills sense. er, commenting the Committee was simply

on respondent’s or- failure follow court

ders with respect and other- carry

wise to out the his profes- basics of obligation.

sional Finally, disagree I following with the dis- ROBINSON, Repre Dorothy Personal my colleagues present: tinction of Rosa L. of the Estate sentative complete While a an by attorney failure Walls, Appellant, represent his client —as situation in In re Whitlock —seems rele- UNIVERSITY, Appellee. HOWARD to a vant determination of client neglect attorney, an persuaded we are not No. 81-1450. Hearing Board and its Commit- Appeals. of Columbia Court of District tee should also undertake an evaluation an in present- effectiveness Nov. 1982. Submitted ing appeal. his Decided Jan. Ante will every there case be an area judgment by of tactical on

lawyer, client, behalf of the that a disci-

plinary authority second-guess. should not Thorup,

See In re D.C.App., 432 A.2d obviously But there can professional responsibilities

defaults basic

during representation course of

which an attorney should be called

account. (Failing Compe- DR 6-101 to Act

tently). evaluating neglect and related violations,

ethical the Board on Professional lim-

Responsibility and this court should not disciplinary the reach of the process complete

to “a attorney failure

represent his client.” Ante at 1361. The

majority, crafting the sentence contain-

ing language, may intended to neglect inquiries hope

limit so I sharply; Be- language

not. But their is worrisome. length disciplinary

cause the reach

into areas of is more attorney presented

directly pending in other cases court,

before this fur- will comment subject

ther here.

1365

proposed testimony of appellant’s expert testimony which the trial court witness — “changed later would have profound- found ly” scope of the trial. Record at following day, appellees moved to expert restrict witness’ testimony to previously pursuant matters disclosed to Claxton, D.C., Charles R. Washington, for Super.Ct.Civ.R. ruling 26. was No made appellant. trial on that motion until Hugh Donovan, Md., E. Silver Spring, for trial, 8,1980, day second December when appellee H.W. Williams. granted. (Record 50.) it was at The court O’Donnell, John D.C., Jude Washington, prejudice” noted the “intolerable to risk to for appellee D.H. Pendergrast. in appellees having adequate time prepare testimony; meet the new Mahoney, Jr., John F. but D.C., Washington, recognizing for also appellee the additional testimo- Howard University. ny significant part would been a NEWMAN, Before Judge, Chief case, suggested the court that a TERRY, KERN and Judges. Associate might be appropriate. mistrial Rec- 6-7.) ord at KERN, Judge: Associate The day, appellant requested next Appellant Dorothy Robinson, L. personal mistrial; however, granted was the court representative for the estate of Rosa L. upon appellant’s conditioned the mistrial Walls, challenges the propriety of trial paying Appellant object costs. did not at court’s assessment of against certain costs imposition that time to the of costs. (Supp. her following two and one-half days trial 9-11.) at Record which ended in a mistrial. 7, 1981, Accordingly, July on the trial In April appellant filed this action directing court entered an order in behalf of the Walls grant- estate and was “per diem” pay costs of each $250 ed leave proceed in forma pauperis by an counsel and defense to each individual de- order of the court waiving payment by her (Rec- who prevailed fendant on the merits. of “all court costs” and relieving her from 15.) ord A new in September at trial held “prepayment of witness (Record fees.” at appellees; in a verdict resulted 25.) That order also stated that trial, following were costs would be required to pay “all taxable costs $3890, against appellant in the amount of and appropriate witness pro- fees” from the fees representing witness $140 $3750 ceeds any (Id.) recovery. pursuant July 7 order as awarded 24, 1980, On pretrial November after the “per diem” costs. conference had been days held and only commenced, before trial appellant’s attor- makes two here Appellant arguments ney First, notified defense counsel of additional she appeal.1 contends trial appellees appeal 1. The judgment, contend that was this case were from the order it untimely it untimely since was filed on October not filed since it was until judgment case, [Sep- days The order of is dated November later. in this the order 29,1981, file-stamped February actually appealed and is October tember] from is the 1981; however, taxing specific the docket sheet reflects that amount. Trilon order costs in a Corp., judgment Leasing actually D.C.App., order of Plaza Co. Allstate verdict and were September (Record Technically, entered on 35-37 judgment, presence February appeal A rendered in the order October entered, parties, pur- premature, is deemed to be since the time the poses appeal, taken, yet taxing of a notice when entered in the the order costs was not “fi- i.e., docket, September 29, required by civil 1981. D.C. 11- § nal” as D.C.Code Therefore, App.R. 411(a)(3). However, by 721(a). if the the time added). taxing (emphasis applicable court abused its discretion in costs The against her because she was obli proceeding party court rule relieves pauperis forma and was pay they therefore relieved or as gation costs advance any obligation costs, accrue; pay absent provides no mechanism for misconduct, showing of bad faith or other by anyone of costs eventual she against unless recovered pauperis litigant. Super. than the in forma Second, appellees. appellant maintains Ct.Civ.R. 54-11. that, even if the award of costs long-established It is a rule that pauperis unsuccessful in party forma proceed pauperis leave to in forma does proper, the trial court abused its discretion responsi from the ultimate absolve ordering payment diem” “per litigation:3 the costs of bility paying (1) statute, rule, because no or practice permitting pro effect statutes authorizes the award of unspecific ceedings ordinarily in pauperis forma costs, (2) diem” because diem” the eventual pauper not to relieve the from appellees’ attorneys costs awarded to payment merely postpone of costs but fees, actually attorney not be may determination of payment until final showing awarded absent a of “unwarrant C.J.S., 146, at case .... Costs § [20 ed, oppressive, or vexatious Wis conduct.” 385.] Associates, consin Wis Avenue Inc. v. 2720 in person proceeding pauperis A forma 20, Coop., consin Avenue A.2d D.C.App., 385 eventual ordinarily not relieved of the (1978).

24 in the of an ad- payment of costs event against verse determination the case Am.Jur.2d, 47, Costs at him. § 38.] [20 assertion, may

Appellant’s first that costs may against arguing properly not be an unsuccessful that costs awarded in for- plaintiff pauperis, against party proceeding forma not well assessed relies Harris v. appellant upon pauperis, founded. The District Columbia statute ma 806, Harris, 318, 424 F.2d authorizing permit U.S.App.D.C. the courts to 137 parties 826, 50, denied, 27 91 proceed pauperis only forma refers cert. 400 U.S. S.Ct. court held (1970), in which the “pre waiver of and costs L.Ed.2d 55 -payment” “fees 1981, the District of Columbia security or the intent of therefor.”2 D.C.Code Catz, W.Va.1978); Guyer, panel, In Forma Federal submitted to final. was Pauperis Litigation: Stan case in filed after In Search of Judicial criminal which 655, sentencing, dards, (1978); An conviction but before we dismissed 660-61 31 Rut.L.Rev. jurisdiction. Moreover, not., v. for lack of West 274 20 A.L.R.Fed. States, D.C.App., proceed United 346 A.2d 504 granting leave to court order However, deny which us to only concerns led pauperis in forma waived premature appeals apply do criminal prepayment fees. of witness costs and court Brown, D.C.App., case before us. See Carr v. Thus, other witness fees and costs the award of (1978) (noting appel- 82 that other ordinary with costs does not conflict than jurisdiction courts have found in civil cases late the court’s order. though technically prema- even ture). Calendine, supra, at v. 80 F.R.D. 3. Marks provisions (interpreting 28 U.S.C. statute, pauperis 28 2. The federal in forma 1915(a), those of the are similar to which § (1966), in lan- refers to “costs” § U.S.C. 1915 statute, relying and not District Columbia guage identical to that of District Colum- 1915(e)). upon conclud- The court in Marks § language bia statute. That has been construed “immu- other cases to the ed references only postpone payment costs as are such parties nity” pauperis intend- were of in forma ordinarily by required be incurred court to “inability of a court ed indicate fees, fees, (such filing process marshal against prevailing party to enforce fees, fees, bonds), security jury transcript indicating money rather than who has no one litigant’s obligations and not affect a grant forma any of in shield erected expenses such as fees. additional pauperis Id. at 28. status.” Calendine, (N.D. Marks v. 80 28 See F.R.D.

1367 Parasole, pauperis (E.D.N.Y. in forma statute is avail- v. 66 “to make F.R.D. 390 indigent, able to the Calendine, with his 1975); common see Marks v. citizen, fellow full range of civil reme- F.R.D. ” dies contrived court or .... legislature opinions Some have contained lan 322-23, Id. 137 U.S.App.D.C. 424 F.2d at were guage suggesting that costs assessed 810-11. indigent rule that an parties in forma against pauperis because is not entirely responsibility relieved a malicious or friv they proceeding for the litigation costs of is not inconsistent Carlson, v. E.g., olous manner. Duhart indigent Harris: it ensures that an Cir.1972), (10th denied, cert. F.2d party, like any litigant, will ac- 958, 93 410 U.S. S.Ct. L.Ed.2d 692 cess to the courts of dis- resolution (1973); Cingliano, Perkins F.2d putes, weigh litigation but will the costs of (4th Cir.1961); Holsey Bass, against the pro- likelihood success before (D.Md.1981). However, F.Supp. ceeding in court.4 required the court is not conclude that, Finally, be contends finding make such a malice or bad faith cause the District Columbia in forma against in order to assess costs a party pauperis statute provisions contains no ex proceeding prepayment without costs un pressly permitting the courts to assess may der D.C.Code 15-712. Costs against an pauperis in forma at the party proceeding in for- suit, conclusion of the had no trial court pauperis ma at the conclusion of an unsuc authority points to do so here. Appellant to case, suit as any according cessful in other the fact statute, by that the federal con Super.Ct. to the standards applicable trast, explicitly states “[j]udgment that 54(d) and exercise Civ.R. in the of the may be rendered for costs at the conclusion equitable court’s discretion.7 ” of the suit or action as in other cases .... 1915(e). However, U.S.C. the failure § II of the District of Columbia statute to in The is question then whether clude such provision a is not in significant awarding trial court abused its discretion in light of practice the established the appellees following costs to the mistrial courts assessing in against indigent costs by appellant’s which was necessitated eve- plaintiffs proceeding in forma pauperis.5 request expand scope of-trial of her Moreover, the pro federal statute does testimony. expert vide any new authority to the courts federal to assess costs. It states at posture that costs The this case the time costs may cases," taxed, following assessed “as in e.g., initially grant were pursuant mistrial, 54(d).6 to Fed.R.Civ.P. like that in very Maldonado a much Par- fact, Harris, 656-58, Catz, explained plaintiff. Guyer, citing supra, in the court at provid[es] prosecu- (1494). “D.C.Code § for the c. 12 11 Hen. by indigents prepay- tion of all suits without deposit upon presentation ment or of costs 54(d) states that “costs shall be 6.Fed.R.Civ.P. satisfactory plaintiff evidence that indi- prevailing party.” as of course to the allowed gent deposit and unable make Id. costs.” 54(d) substantially Super.Ct.Civ.R. identical added). (emphasis at at 811 F.2d federal statute. provisions statutory 5. Most been con have courts, exercising in their discretion to 7 Some permit strued to the con for costs at suit, costs at the award conclusion they, clusion the Dis of the suit because like impose upon indigent costs declined statute, only encompass pre trict of Columbia disparity of economic where there is wide Litigation of costs. Hid Costs: parties. See Maldonado between the resources Indigent, den Barrier to the 56 Geo.L.J. Parasole, at 390. 66 F.R.D. the first n. 55 Since the enactment of think, argued, appellant we has not and do not pauperis year 1494 the forma statute in the necessarily contrary constitutes result that a prevailing practice has tax costs been to discretion. abuse against pauperis unsuccessful forma Inc., trial. Service, finally imposed, following the second McKee Auto D.C. askevas v. Paraskevas, circumstances, we conclude App., Under this court held the assessment of costs that there was no abuse discretion against plaintiff to be a condition proper upon conditioning of a mistrial plain to the dismissal of a lawsuit when the trial, first the costs of the paying sought proceed tiff in order to dismissal against appellant costs assessment those had second suit he instituted at conclusion as a matter of course (based another same cause pursuant 54(d). to Rule the suit dam significantly greater action but for ages). the trial courts in Paras- Because Ill “could, giv possibly kevas and should” have turn, appellant’s contention finally, We plaintiff elect as opportunity en the that, properly even if costs were af prosecuted to which case her, prop- costs are not “per diem” firmed the of costs.8 162 A.2d award recoverable items of costs. erly us, In the case the trial court before “Costs,” to those used to refer as should, could, and have insisted possibly recov is entitled to prevailing party items a her appellant proceed to trial with course, construed matter has been er as a pretrial state- evidence limited litigant’s something less than to mean order; per- and the pretrial ments the suit. expenses in connection with total mitting to take a mistrial ordinarily fees Court fees and witness her she probably gave trial court more than circum but, absent unusual recoverable right had a to ask.9 stances, parties person must their bear object did Appellant apparently attorney expenses expenses al and the imposition of costs the time fees. lodging travel granted. from mistrial was Nor it clear Miller, & A. Federal Practice Wright C. the record that unaware 126; Hodge (1973), at see Procedure if a might be awarded mistrial Cir.1977). Seiler, (5th 558 F.2d con- Further, appellant not granted. does a to assess authority The court appellees “prevail- that were not the tend a matter partly as costs particular item of Rule ing” parties meaning within the (or rule),10 partly and 54(d) the costs in of statute court question time the 921, 1857, (1980), Getz, 64 275 100 L.Ed.2d case is to Williams v. U.S. S.Ct. 8. This also similar aof App.D.C. (D.C.Cir.1901), affirmed trial court’s dismissal the we the 17 388 which case, remarkably prejudice, stay proceed- similar with use of a court sanctioned the complet enforcing pay proceedings ings had been to facts. Pretrial as a means of an order trial, suit, ed, days reasoning: remained before previous “It has and two the costs of a plaintiff sought expand the testi long practice rule ... when the been an established bring mony expert in new non of an witness to action been that where a former has suited, discontinued, liability. by refused to prossed, The trial court or or the theories non permit of testimo plaintiff, action the last-minute modification that a second direction continuance; ny the and when to be and denied a same not allowed for the prosecuted, cause would go without, plaintiff the trial precedent, forward with refused to as a condition testimony, dis court paid.” the Id. at additional action without the costs the former v. Although by plain- court in Giovanetti the case. The missed the action taken University Hospital, Georgetown 22 493 (and apparently F.R.D. in Wil- tiffs Paraskevas denied, 831, dismissal, 80 (D.D.C.1958), liams) actually voluntary 361 U.S. as cert. was 81, (1959), mistrial, dis 4 73 likewise distinguished L.Ed.2d view their S.Ct. from a prejudice facts. reasoning persuasive on similar as this missed as a case such one, essentially re- where the mistrial was (1966 example, and by pro- 1920 voluntary party 28 U.S.C. 10.For sult ceeding. action permits Supp.1982) to tax the federal courts fees, fees, printing copying and witness court expenses, Center, Washington Hospital such items as costs. Taylor and other v. denied, such no (1979), Code contains D.C.App., 446 District Columbia 407 A.2d 585 cert.

1369 custom, practice, matter of and usage. responsible er in one party cases where Newton Co., v. Consolidated Gas 265 expense U.S. for inconvenience and additional 78, 481, 44 (1924); S.Ct. 68 909 L.Ed. Ad v. Eg., other. Schneider Lockheed Air Gotthardt, lung 103 U.S.App.D.C. 87, 105-106, Corp., U.S.App.D.C. craft (1958). However, F.2d (1981), denied, even as to 658 F.2d cert. special items of representing costs not cus 102 S.Ct. 71 L.Ed.2d 855 U.S. costs, tomarily taxable court (1982) (award proper decision of amicus fees is if whether to allow disallow the award is to be paid by party responsible directed committed to the trial court’s discretion. that the court prompted situation Nefflen, Panos v. D.C.App., amicus); A.2d 600 appoint Alonso Union Oil (1964); Brown, California, (S.D.N. Shima v. 78 U.S.App.D.C. Co. of 71 F.R.D. 268, 140 denied, F.2d cert. 318 U.S. Y.1976) (party required pay travel ex (1943) (“Trial S.Ct. 87 L.Ed. 1154 penses of opposing attending counsel large courts have discretion in regard deposition arranged deposi since costs, and it is function of appellate tion place). at an inconvenient courts to discretion”). substitute their own assuming arguendo “per Even that Moreover, the power courts have inherent diem” appellees’ attorneys costs awarded to levy sanctions —such contempt, dis fees, actually attorney’s sup- record prosecute, missal for failure to or costs—in ports responsi- had a Appellant the award. response to litigation abusive practices. bility apprise Rule 26 to the court under Roadway Express, Piper, Inc. v. 447 U.S. appellees scope before trial 752, 764-67, 100 2455, 2463-2464-2465, S.Ct. testimony. Appellant’s her counsel expert 65 L.Ed.2d 488 power, This al 26(b)(4) conceded that Rule though it must be exercised with “restraint give adequate statement “did not notifica- discretion,” ‘“governed rule Appellant’s tion.” Record at or statute but necessarily control year suit had been active for over a vested in manage courts to their own af arose; seven months before this issue fairs Id., ....”’ quoting from Link v. there is no evidence the record before us Co., 626, 630, Wabash R. 370 U.S. 82 S.Ct. during appellant that ever indicated that 1386, 1388-1389, 8 L.Ed.2d time she was for trial or unprepared case,

In the present searching we conclude she was still additional fact, that the trial court did not abuse discre its critical evidence. trial taxing tion in diem” sought costs to had not appellant observed grant after of the mistrial. The continuance and that this was a case in award clearly fishing a lesser sanction which for an “not 8, prejudice than the dismissal with Given expert.” which Su Record factors, per.Ct.Civ.R. 41(b) permits implicit the trial court’s which we Taylor upon affirmed on comparable conditioning facts v. the mistrial Center, Washington Hospital finding Other a of a of misconduct supra. costs was level for an required courts held assessment for bad faith have the of costs tantamount attorney’s are The trial court ordinarily prop- items which not taxable award of fees.11 “costs,” explicit defining Super. Roadway Express, Piper, provision Language v. Inc. 767, 2464-2465, appear 447 100 S.Ct. at Ct.Civ.R. does not to be intended U.S. at finding complete listing specific suggests faith is to be a costs that a bad the which Thus, (and properly required it is not sufficient that taxable in the District courts. thus that opinion Supreme adjura implied). that dealt we are mindful of it be the Court’s attorney’s tion “the tax fees taxed that discretion ... costs should with an award of attorney, sparingly party; be a and the Court had with reference to ex an not exercised specific penses specifically already for a remand more not allowed statute.” held that Co., findings required other We Oil for reasons. Farmer v. Arabian American 379 U.S. attorney’s 227, 411, 235, 416, fees 85 13 L.Ed.2d 248 the award S.Ct. affirmed (1964). court made observations where the trial has 1370 States, (D.C.App.1975), A.2d “unquestioned power”

has to do United equity the by awarding (D.C.App.1976). “against par- Cys, fees a re 362 A.2d 726 and In ty by delaying who shows bad faith or the is judgment of trial court dated the disrupting litigation by hampering November, 1981,” al- day “this 29th enforcement of court Hutto v. a order.” makes that this the record clear is though 14, 689 n. Finney, U.S. S.Ct. typographical Sep- a error and that merely 2573 n. For 57 L.Ed.2d 522 It file- 29 is the correct date. is tember the same reasons that the diem” costs 1, 1981; however, stamped October case were assessed in the before us—that that on sheet reflects it was entered docket party with had caused charged costs 29. Our rules September docket on unnecessary expense money of time and noting provide purpose parties attorney’s per- fees were — “is en- deemed be appeal, Paraskevas, supra. mitted in it civil when is entered in the docket tered Moreover, the us record before case, September this by the clerk” —in complete. taxing is In its 7 order July 4-II(a)(3). Appellant’s D.C.App.R. following mistrial, the trial costs court appeal was filed on October notice al separate stated that three motions for later. We are thus thirty-one days filed and lowance fees and costs were ap- if concluding this unanimous1 court, along with memo- considered September from the peal' were taken those supporting opposing randa costs untimely, since the judgment, provided Appellant and affidavits. has not filed appeal thirty-first on notice copies us with of those bills of costs and thir- day beyond jurisdictional one day, Therefore, we have supporting documents. 4- D.C.App.R. ty-day imposed by limit way knowing unspecific “per no that the 11(a)(1). not, fact, rep diem” costs awarded did colleagues that the order agree my I with customarily resent more typical, this minimum, subject At a contrary actually costs. absent which is showing by February 26, we must assume that appellant, is one entered fully proposed trial court considered paid amounts specific costs in taxing submitted and exercised its properly See Trilon Plaza Co. individuals. specific los approving discretion in final sum. A A.2d 36- Leasing Corp., Allstate ing bears of con trial the burden point It at this (D.C.App.1979). appeal that trial vincing this court on part company. my majority erred, duty to court and “it is States, view, supra, requires v.West United present this with record sufficient us dismiss this because affirmatively to show that error occurred.” four almost filed her notice Drug Co., D.C.App., 453 Cobb v. Standard fact that prematurely. The West months is even A.2d 110 at 111 The burden civil case is of case and is a criminal greater when the standard of review are no “con significance; no there legal discretion, here, as it is rather than abuse of ap do to West which applicable cerns” mere error. to the case at bar. ply equal force Affirmed. Brown, (D.C.App.1978), A.2d 79 Carr base my colleagues apparently on which TERRY, dissenting in Judge, Associate jurisdiction, their conclusion part: on its facts. Our resolution distinguishable depended issue jurisdictional in Carr this for lack of appeal I would dismiss or- successive interpretation two v. on our jurisdiction, authority on the of West majority opinion, supra required finding, 1. 1 of the this See footnote consistent with the Assoc., Inc. 1365. case. Wisconsin Avenue Coop., 24. Wisconsin Ave. 385 A.2d at ders of the trial court and on whether the

second order altered or merely explained Carr,

the first. As I read it did not estab-

lish one rule for civil appeals and another

rule appeals. for criminal short, I believe that the precedential

effect of West and Cys remains undiluted.

Because appellant did not file a notice of thirty days entry “within after

the ... order from which the

taken,” D.C.App.R. 4-II(a)(l) (emphasis

added) i.e., thirty within Febru- days after — ary hold, 1982—I would basis of

West and Cys, jurisdic- this court lacks

tion to her appeal.2 entertain HOWELL,

Marquis Appellant, Stetler, D.C., Bradley Washington, S. appellant. STATES, Appellee. UNITED Fisher, Atty., John R. Asst. U.S. No. 80-963. Harris, Stanley Atty., whom S. U.S. Michael District of Appeals. Columbia Court of Farrell, Mary McLaughlin, W. A. Asst. Attys., D.C., Washington, U.S. were on

Argued Sept. En Banc preargument appellee. memorandum for Decided Jan. NEWMAN, Judge, Before Chief KERN, NEBEKER, MACK, KELLY, FER- BELSON, REN, PRYOR and Associate Judges.

NEWMAN, Judge: Chief rehearing en we consider On this banc 8,1981, vacat- this court’s order of October ing opinion August our follow- reversing appellant’s conviction death, ing notification dismissing pro nunc tunc as States, by Harvey D.C. required v. United A.2d 36 We conclude that App., 385 direct re- pending when an dies opinion on the merits. Judge jurisdiction, Kern’s 2. Were I to conclude that case and we had join majority’s disposition of

Case Details

Case Name: Robinson v. Howard University

Court Name: District of Columbia Court of Appeals

Date Published: Jan 26, 1983

Citation: 455 A.2d 1363

Docket Number: 81-1450

Court Abbreviation: D.C.