although notice of appeal in civil case had been filed prematurely, this court exercised jurisdiction where order had become final by the time the appeal was submitted to the panel
How later courts described this case
- although notice of appeal in civil case had been filed prematurely, this court exercised jurisdiction where order had become final by the time the appeal was submitted to the panel
- “[T]he trial court could, and possibly should, have insisted that appellant proceed to trial with her evidence as limited by the pretrial statements and the pretrial order[.]”
- award of costs under Rule 54(d) within trial court’s discretion
- the award of costs is within the trial court’s discretion
Written by the judges who cited it.
The opinion
TERRY, Associate Judge,
dissenting in part:
I would dismiss this appeal for lack of jurisdiction, on the authority of West v. United States, 346 A.2d 504 (D.C.App.1975), and In re Cys, 362 A.2d 726 (D.C.App.1976).
The judgment of the trial court is dated “this 29th day of November, 1981,” although the record makes clear that this is merely a typographical error and that September 29 is the correct date. It is file-stamped October 1, 1981; however, the docket sheet reflects that it was entered on the docket on September 29. Our rules provide that for the purpose of noting an appeal, a judgment “is deemed to be entered when it is entered in the civil docket by the clerk” — in this case, September 29, 1981. D.C.App.R. 4-II(a)(3). Appellant’s notice of appeal was filed on October 30, 1981, thirty-one days later. We are thus unanimous 1 in concluding that if this appeal' were taken from the September 29 judgment, it would be untimely, since the notice of appeal was filed on the thirty-first day, one day beyond the jurisdictional thirty-day limit imposed by D.C.App.R. 4-11(a)(1).
I agree with my colleagues that the order which is actually the subject of this appeal is the one entered on February 26, 1982, taxing costs in specific amounts to be paid to specific individuals. See Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 36-37 (D.C.App.1979). It is at this point that the majority and I part company. In my view, West v. United States, supra, requires us to dismiss this appeal because appellant filed her notice of appeal almost four months prematurely. The fact that West is a criminal case and this is a civil case is of no legal significance; there are no “concerns” applicable to West which do not apply with equal force to the case at bar. Carr v. Brown, 395 A.2d 79 (D.C.App.1978), on which my colleagues apparently base their conclusion that we have jurisdiction, is distinguishable on its facts. Our resolution of the jurisdictional issue in Carr depended on our interpretation of two successive or *1371 ders of the trial court and on whether the second order altered or merely explained the first. As I read Carr , it did not establish one rule for civil appeals and another rule for criminal appeals.
In short, I believe that the precedential effect of West and Cys remains undiluted. Because appellant did not file a notice of appeal “within thirty days after entry of the ... order from which the appeal is taken,” D.C.App.R. 4-II(a)(l) (emphasis added) — i.e., within thirty days after February 26, 1982 — I would hold, on the basis of West and Cys , that this court lacks jurisdiction to entertain her appeal. 2
. See footnote 1 of the majority opinion, supra at 1365.
. Were I to conclude that we had jurisdiction, I would join in the majority’s disposition of the case and in Judge Kern’s opinion on the merits.