Kathy Wone’s “Misguided Complaint”
In Round Three of the statute of limitations (SOL) argument, the defense has filed their Reply Memorandum of Point and Authorities in Support of Motion to Dismiss Counts One, Three and Four (or in the alternative) Motion for Partial Summary Judgment.
At the center of this may be the interpretation of Chappelle v. Sanders and whether SOL was tolled by alleged acts of ‘fraudulent concealment.’ The plaintiffs say yes, but the defense says Team Covington’s Opposition“evidences a fundamental misunderstanding of DC’s statute of limitations jurisprudence.”
The defense reply states that while some jurisdictions holds that fraudulent concealment of the responsible party for a wrongful death tolls the limitations period, “…this is not the law in the District of Columbia.”
Calling Kathy Wone’s wrongful death complaint “misguided,” the defense hammers away in saying she was well aware of the circumstances of her husband’s death before the November 2008 filing, therefore blowing the one-year time limit.
While other jurisdictions may allow for tolling, the defense states:
“To the contrary, our Court of Appeals has expressly and unambiguously held that the SOL for wrongful death, like other intentional torts, begins to run when the plaintiff learns of the wrongful deaath itself. Whether the identities of the allegedly liable parties are fraudulently concealed, but the existence of the cause of action itself is known, the running of the SOL does not toll.”
Within weeks of the murder, the defense states that plaintiffs knew the following facts:
1. Robert was stabbed in 1509 on August 2, 2006
2. Zaborsky dialed 9-1-1 at 11:49pm.
3. The only occupants of the house were Robert and the defendants.
4. The knife used was kept in 1509.
5. Robert died as a result of the stabbing.
6. On August 3, the defendants told police and intruder entered the house.
7. On August 14, it was reported that MPD stated in an affidavit that the crime scene had been tampered with and at a press conference police said they did not believe the defendants’ account.
8. On August 16, the search warrant publiclly stated the crime scene had been tampered.
This was enough information, the defense states, to trigger a wrongful death claim. “Accordingly, rather than filing her misguided Complaint in November 2008, the plaintiff was perfectly capable of filing the same misguided complaint more than two years earlier.”
The defense also pounds away at the “Plaintiff’s perplexing plea for additional discovery,” and that Covington “failed to preserve its argument that more discovery is necessary before summary judgment can be rendered because Plaintiff did not comply with Super. Ct. Civ. R. 56(f) in multiple respects…” Simply put, the “Plaintiff’s Opposition does not contain an affidavit explaining why further discovery in necessary in order for this Court to rule on the defendants’ present Motion.”
The defense memo goes on to brush back plaintiff claims on the spoliation and conspiracy claims, but more than anything else, it looks like Judge Brook Hedge will have her hands full with the SOL. And if she agrees with the defense, the Estate of Robert Wone may be SOL.
Whatever it takes to get away with murder.
Hi:
I have read this twice and I personally have the opinion that it is a pretty good reply, and seems to attack concisely most of the important legal arguments of the plaintiff in her response.
I did enjoy more the bold and agressive writing style of the response brief by Mrs. Wone’s counsel.
Of course, none of us have time to actually read the forty or more cases cited in the motion and two briefs, so our opinions in this regard as to the merits of the legal arguments are inherently suspect. We are just making the best guesses we can.
The defendants do spend some time arguing that the issue before the judge is “legal” and not “factual,” thus proper for the judge to decide right now.
I personally have the opinion that factual issues remain, particularly since the MPD affidavit itself, for the arrest warrant on Ward, has not been properly introduced into evidence as to this motion (attached as an exhibit) by either side, and the plaintiff’s actual knowledge of facts and circumstances relating to the cause of action and identities of the defendants has not been presented or properly entered into evidence (in my opinion)as to this motion by affidavit, deposition or live testimony.
I know that both the plaintiff and defendants are relying upon the actual allegations in the complaint as “undisputed facts,” essentially.
Because of this, I took a look back at the original and the amended complaint by Mrs. Wone. I found something interesting, I think.
In both the original and amended complaints (p.5 for both), the plaintiff alleges that the MPD arrest warrant for Ward “provided a wealth of new information….” This allegation is just a conclusion, not a pleaded fact. What exactly does “wealth of new information” mean? “New information” to exactly whom?
But the two complaints differ in that the original complaint goes on for a number of paragraphs, showing what the MPD affidavit actually disclosed, and explains in the complaint (as to at least some of those items) that they were “new” or “newly published.”
Strangely, the amended complaint does not include these paragraphs as to what could be determined “new” or “newly published” in the MPD affidavit.
Why would Mrs. Wone’s attorneys remove most of those paragraphs, which really form the basis of their fraudulent concealment claim?
Were they feeling “unsure” as to what exactly Mrs. Wone knew prior to the Ward arrest affidavit? Just speculation, but I do think it is a bit odd.
The reply by the defendants certainly does try to rein in this case to the application of DC law, which the defendants promote as being clear (the judge will have to decide that!).
However, I still give the advantage to Mrs. Wone and her legal team. Sympathy remains with the plaintiff, and I, more and more, feel that this civil judge will try to craft some resolution of this motion to allow the wrongful death count to continue, or at least delay ruling on the pending motion, to allow for more evidence and discovery. Some of the other posters on here have helped me form this opinion and the “realities” and “practicalites” involved.
All of this is just my opinion and others may very well disagree, and I welcome that.
Bruce: More appears to be on the way from Cov and we will post it post-haste: 11/08/2010 – Plaintiff’s Motion for Leave to File Sur-Reply in Opposition to Defendant’s Joint Motion to Dismiss or for Summary Judgment as to Counts One, Three, and Four Filed. Submitted 11/08/2010 Attorney: REYNOLDS, BRETT C
Thanks, Craig, very interesting.
And where will this end? If granted, will then the defendants request a sur-sur response to the sur-reply, and so forth?
Actually, I’m not being totally serious. I think this judge will not allow a long merry go round as to this briefing.
Too late.
Bruce, I agree with most of your comments!
It is puzzling why Covington did not attach evidence to the response (as to what evidence was necessary from discovery – though they may have been saying ‘we made the SOL regardless of what is uncovered in discovery, though the MSJ still requires it, in my limited experience).
Bea:
It is nice to be in some agreement!
In the response, covington appears to be arguing that they need further discovery on the issues, and the reply by the defendants argues that covington did not properly request to do that pursuant to an affidavit of the attorney in that regard, per the Summary Judgment rule in DC. Interesting.
Despite these arguments, if I were the judge, I wouldn’t feel comfortable ruling on the merits of this motion unless the Ward arrest affidavit and the plaintiff’s testimony or affidavit about it, and what new information it provided to the plaintiff, were properly in front of me.
Which may very well bode well for the plaintiff, at least in terms of putting off ruling on the motion as premature. All of this just being my opinion.
After reading the comments, I can’t bear to read the briefs. No affidavits? Amateur hour at the big firms? For the non-lawyers, Rule 56 is the rule that dictates the procedure for summary judgment. It limits what the court can consider to “the pleadings, the discovery and disclosure materials on file, and any affidavits.” Civ. R. 56. Thus, documents (like newspaper articles and warrants) cannot simply be attached to a brief ; to be considered by the court they must be incorporated into sworn testimony. For this reason, defendants depose the plaintiff before they move for summary judgment. For Plaintiff’s’ part, Covington’s lawyers should be well aware that the plaintiff “may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.” Civ.R. 56. As for Covington’s request for more time to conduct discovery, the rule is clear: “If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order.” Civ. R. 56.
Hey Cat:
Tiny post: Thank you for your thoughts on Rule 56. I’m still obsessing a bit that neither side gave the judge what she needs to rule on the motion: affidavits and proper evidence. Of course, they know this judge and the practice in DC better than us, but I agree about the Amateur Hour business. How is an appellate court going to look at it?
Tiny Addendum:
And I would give any lawyer in my firm a lecture on Rule 56 if they had given me these draft motion and briefs on any of my cases, as I’m sure you would also. Are they letting the new attorneys at the firms write them? Sorry for being catty, Cat.
I completely agree. I’ve given more than a few lectures to new lawyers on the mandates of Civil Rule 56. Compliance is not difficult, but you really have to read the rule!
Cat – Later today, but probably tomorrow we post the plaintiff’s Sur Reply. Attached to that is a Kathy Wone affidavit.
Hey Craig:
As to the Kathy Wone affidavit you mention. If it is what I expect it to be, defendants will undoubtedly request the court to take her deposition as to what she says, possibly for now just limited to the affidavit and Statute of Limitations issues, and the judge will allow it per Rule 56.
No ruling on the merits of the motion to dismiss/sj any time real soon. All of this contains my opinions only.
Why it’s attached to a motion for leave to file a sur reply and not the original brief is beyond me!
For the non-lawyers: we are all harping on the lack of affidavits (an affidavit is sworn testimony) because whatever this judge rules, this issue is likely to be reviewed by an appellate court at some point.
If this judge does not grant the motion for leave (legalspeak for “request for permission”) to file the sur reply, Mrs. Wone’s affidavit will not be “in the record.” In other words, even if it is attached to the “motion for leave to file sur reply,” its not officially “in the record” unless the court grants that motion and the sur reply is filed.
Failure to have the affidavit “in the record” can have long term and disasterous consequences. One of the most important duties of the trial lawyer is to ensure that, in the event the client ends up on appeal, everything the client might need to show the appellate court is “in the record.” The appellate court won’t even let you refer to evidence that is not “in the record.”
Generally, in my experience, lawyers file affidavits at the drop of a hat to make sure that, if the ruling on the motion at issue is adverse to their client, the record on appeal will be complete.
Hence my earlier response – amateur hour at the big firms? I don’t understand Defendants filing a bunch of newspaper articles without an affidavit from a paralegal, or Plaintiff responding to a motion on he issue of what Plaintiff knew when, without an affidavit of the Plaintiff.
Agree, Cat. First years only make this mistake once – and it never makes it out of draft form.
Sigh! One can only wish that Brook does not do a Lynn here by lecturing and guiding the plaintiff’s counsel on how to argue their side and on which paperwork to process. That public tutoring would be a bad omen, indeed!
But Clio, from what Cat wrote, both the defense and plaintiff attys both failed to file affidavits. Well, we can assume there’s a decent chance the judge will grant the motion for leave to file the sur reply. At this point, it seems to be in the judge’s hands.
P.S. I wonder, since most, if not all of the attys weighing in here don’t live in the District, if there is some variance in applicability of this general standard……?
Hello All:
Kitty Cat and I have been recently taking both sides to task on the motion to dismiss/summary judgment, the response and the reply.
To give you a little background on why we have concerns, I thought I would explain that here.
Those who are not really interested in the legal technical twists of the current controversy, should stop reading NOW!
[Beware All Ye Who Enter Here]
Defendants have called their motion a motion to dismiss, or, in the alternative, a motion for summary judgment. And it is ok to do so, generally.
A defense attorney’s job includes trying to stop a law suit before trial. The Motion to Dismiss (MTD) and the Motion for Summary Judgment (MSJ) are the most often used weapons in the defense arsenal to try to accomplish that.
A MTD and a MSJ, however, are two very different motions, governed by different rules (Rule 12 and Rule 56, respectively).
The judge applies different standards to each, in accordance with the respective rules. Requirements of the parties in filing the motion and responding are different, and are set forth clearly in the respective rules.
A MTD is many times the first thing filed by a defendant after an appearance, if applicable. A MTD is filed in lieu (instead) of an answer to the complaint. You will note that plaintiff filed an amended complaint a month or so ago, and defendants have not filed answers to it. So, good so far.
The judge in dealing with a MTD must accept all “well pleaded facts” in the complaint (amended complaint here) as being true, for purposes only of the MTD motion. Not speculations, conclusions, etc. Well pleaded FACTS.
The defendant when filing a MTD says to the judge: Even if you accept every “well pleaded fact” in the plaintiff’s amended complaint as being true, you should stop this case now because it does not set forth a proper cause of action against the defendant.
For a MTD, you only focus on the “well pleaded facts” of the complaint. You do not add things for the judge to see and consider that are outside the complaint (like newspaper articles, affidavits, etc), other than appropriate case law and argument. You are restricted to looking only at the Complaint’s well pleaded facts.
A MSJ is very different from a MTD. It is filed after the parties are “at issue” (meaning a complaint has been filed and an answer to that complaint has been filed).
You will note that defendants have not yet filed an answer to the recent amended complaint. Technically, they should do so (even if they only raise the 5th Amendment) here as to their MSJ, but I don’t think this will be a major problem for the trial judge or any appellate court reviewing the trial court’s decision on the motion.
With this MSJ, you don’t accept the facts of the amended complaint as true, and the plaintiff cannot just rest on what they say in the amended complaint.
With an MSJ, the defendant relies upon things OUTSIDE the complaint, to show that the plaintiff has not filed a correct cause of action, such as affidavits and other evidence properly authenticated.
Of course, with both the MTD and the MSJ, it is quite proper and usual to cite legal cases and make legal arguments.
With an MSJ, the defendant says: judge look at what we have attached to our motion. Based upon these things, the plaintiff’s complaint should be dismissed and summary judgment entered because plaintiff can’t sustain a cause of action against the defendant.
Here are some criticisms of what we have seen so far:
(1) Although it is no crime to combine the motions, as defendants have done here, if you do, you should in your motion set forth everything that entitles you to an order granting your MTD, and separately show the judge exactly what you are relying upon that entitles you to an order granting your MSJ.
Defendants do not do this, but present the judge with a mish-mash of arguments, not really distinguishing between the requirements for, and what they are relying upon, for the 2 distinct motions.
Plaintiff does not help the judge out here either.
If I were the judge, I would not be happy with this situation. But this is probably not a good reason to not consider the motion or the response.
(2) The defendant attaches things outside the complaint to its motion, such as a transcript of a police interview and a number of newspaper articles. Since these are outside the complaint, they go to defendants’ MSJ.
However, anything that the parties rely upon that is outside the complaint on a MSJ must be properly authenticated and proper evidence for the judge to rely upon it.
Defendants failed to do this with their attachments to the motion. This is not a good thing to do, and is a clear violation of Rule 56.
Anyone who carefully reads Rule 56 knows what you have to do to get those attachments properly before the court.
(3) But plaintiff’s counsels do even worse on this score.
Rule 56 requires the party opposing a MSJ motion (like plaintiff here) to file proper affidavits and properly authenticated evidence to combat a MSJ, and Cat and I are just amazed & confused that plaintiff has not done so.
Plaintiff’s counsel “argue” what Mrs. Wone knew and when she knew it. They also rely heavily in their response upon the police affidavit supporting the arrest of Lil Dyl.
But they don’t attach an affidavit from Mrs. Wone supporting their arguments, and they do not properly provide an authenticated copy of the arrest warrant affidavit so that the judge can properly, under Rule 56, consider it.
This is a very critical motion. Don’t screw up on the technicalities that can ruin your chances on the motion!
The most surprising thing to me is that these things for which I criticize both sides are all things that law students learn their first year, and experienced litigators should know the requirements for a MTD and MSJ like the back of their hand.
Only Mrs. Wone can say what she knew and when she knew it, and the only way she can do so is by a proper affidavit or deposition under oath, or possibly her testimony at a hearing under oath.
Why plaintiff did not respond to this serious motion with proper evidence is a mystery to Cat and me that surpasseth all understanding.
Not following the rules is a significant risk for both sides.
If defendants win, and it goes up on appeal, it is very possible that an appellate court could reverse, simply on the basis that the defendants did not follow Rule 56.
The judge hearing the motion could determine that the plaintiff’s counsel’s failure to follow Rule 56 requirements in responding to the MSJ compels her to grant the defendants’ motion (and there is language in Rule 56 that would allow her to do this).
We are supposed to have some real hot talent on both sides of this case, but what we have seen from this motion and and the briefs, does not support that supposition.
If I were grading both sides on this controvery about their filings in regard to the current motion (and I have done this with mock cases with law students — have taught “Pre-Trial Procedure” at several law schools as an adjunct teacher), I would right now grade defendants with a C- and the plaintiff’s counsel with a D.
Cat may not be so lenient.
I’m not quibbling about the legal arguments here and case law cited. I think all of the arguments and case citations for both sides are solid and show real talent.
My grades would be reflective of both sides’ apparent ignorance or failure to follow fairly simple rules that all attorneys in their position should know almost by heart.
While I know this is painful, it may help all of us on WMRW understand how the judge deals with this motion, and why she rules in the way she does.
Craig has just told us that plaintiff wants to file another brief in response to the defendants’ reply, has filed a motion requesting the judge’s approval to do so, and Craig also tells us that this new attempted filing includes an affidavit of Mrs. Wone.
Bruce,
Thanks for that very clear explanation of the differences between a MTD and a MSJ, and the requirements of each.
Re the plaintiff’s desire to file another brief, could this be because they realize the errors they made? and the gravity of those errors?
Hey CD:
Your guess is as good as mine on that question. Don’t think we can make any informed opinions on that until we actually see the affidavit, when our very busy and industrious editors are able to do so.
I wonder why the defendants MTD wasn’t thrown out to begin with for violating Rule 56. Plaintiffs were put in the position of responding to a faulty motion. N’est pas? Maybe not.
C’est vrai.
But, it could be reasonably argued that plaintiff’s counsel should have taken defendants to task on this topic in the Response Brief, and then should have argued in the Response that the motion should be denied for defendants’ failure to follow the rules.
Many thanks, Bruce for your clear and concise explanation of the legal matters at hand.
The Law Novices (LNs) are gaining understanding in lieu (instead) of running screaming from the building whilst pulling out our hair.
Regards,
Kate
Cat and Bruce (lady/gent),
Cat says: Generally, in my experience, lawyers file affidavits at the drop of a hat et al.
Agree totally. Very “common” practice. I scratch my head (now I need a hat) on this one but her Affidavit finally went to the Court.
Bruce says: If I were grading both sides on this controvery about their filings et al. I … now grade defendants with a C- and the plaintiff’s counsel with a D.
I would grade you and Cat A+. How dare I?
Absolute clear to non-lawyer, indeed.
Thanks much to both.
Denton
“…Of course, none of us have time to actually read the forty or more cases cited in the motion and two briefs…”
Why ever not?
No kidding AZ. What are we paying these people for? Oh yeah, nevermind… 🙂
Ok, AZ:
My goal for the rest of the day is to be silent or make only tiny tiny posts. Fingers hurt.
Bruce – while your poor lil’ fingers may hurt, it’s my BRAIN that hurts at present.
Many thanks to all the legal minds for their insights and opinions. This is a fascinating and complex case, and for us law novitiates, it requires a good bit of “active learning” (yeah. I’m somebody’s Mom – I’d have to be to use such edu-speak!).
For the life of me, I thought the Plaintiffs had included the MPD affidavit in their original and/or amended complaint. From the many sparking and intelligent posts above, I appear to to yet again be a few bricks shy of a load and this is not the case.
May I ask why Covington would not include such information? Is it a matter of legal strategy?
Cheers to all for your efforts, the rest of us are keeping up,
Kate
Hey Kate:
Tiny post: don’t know why Cov. didn’t provide the court with the MPD affid. They should, even as a courtesy. But also as evidence against the motion. Don’t think the MPD affid was attached to either complaint (at least not copies on this blog), but references were made to it in the complaints. Only the amended complaint applies now, and it is the only proper complaint for the judge to review.
I marvel at the fact that Covington didn’t include this (or may not have included this). I would have hoped they would be more “spit shined and Bristol-fashioned” on the inclusion of all relevant materials.
Tiny post are fine (but I must admit to liking the big. ol’ long ones, so lawyerly). Rest your fingers and I’ll rest my wee brain.
Hi Kate:
Tiny post: we can’t be critical of covington unless we know more….there may be good reasons they do or don’t do things we sometimes think they should.
So very true, sir.
Kate:
tiny tiny: didn’t mean to insinuate that you were bashing cov., as you weren’t.
teensy, tiny:
Thanks, B. No bashing intended.
The chutzpah, or rather, audacity (as Covington might call it) continues. After having continually portrayed themselves to friends and family as wrongly accused and persecuted, and having referenced the “multiple inaccurate and untruthful assertions of the Metropolitan Police Department and the U.S. Attorney General’s Office for the District of Columbia” in their recent motion for a gag order, the defendants now say that Kathy should have believed those statements and assertions, rather than the statements of Robert’s “friends” and filed earlier (see pages 7-10 of the reply).
Craig:
Great title and most excellent picture of the “statue” of limitations. We do not deserve you.
Hoya, love this irony too: “why in the world would Kathy Wone believe us when we said we didn’t murder Robert and didn’t know who did! She should have known better than to believe us!”
I believe there is an old song: “How Could You Believe Me When I Told You That I Love You When You Know I’ve Been a Liar All My Life.”
I do try very hard to be objective on this case and repeatedly consider that the guys could be innocent. If so, certainly it must be possible to mount a zealous defense without taking positions and engaging in logical contortions that don’t make one appear to be guilty. They don’t make it easy for us sometimes to take them at their word.
I have the same issue with considering the trio ‘innocent’ – though both WHAT they’re innocent of and which of them makes for a “match game” board. If none of them murdered Robert, why not clear their names NOW? Surely whatever it was which concerned them about zealous police must now be behind them since conspiracy, obstruction, and tampering are DONE.
That’s my conundrum – if none of the three are guilty of murder, and they cannot be retried for anything other than ‘accessory’ (before or after), would it not be better to go the truth route and ‘man up’? Martha Stewart did it, boys!
If they are indeed innocent of anything criminal they should not and would not hide behind the 5th on not just some but all interrogatories other than name/occupation (and on the latter, the response was incomplete).
It is a conundrum, isn’t it?
The only thing that makes sense to me is revisiting Judge L’s decision. It is possible, even probable, that one or more of the three is innocent – or “less guilty” of any overt wrongdoing. The Judge was unable to separate them based on the evidence presented. The defense strategy of banding together and keeping mum worked well during the criminal trial. It appears that they’re sticking to this formula for the civil trial, as well.
And the murder investigation is still open. One or more of them could eventually be tried for murder, or ‘accessory’ (before or after), even if innocent. An apparently innocuous statement made during the civil trial could be used against them somewhere down the road.
Like you and Hoya,it’s difficult for me to maintain a level of objectivity regarding the innocence of the 3, because it’s so difficult to separate them. That being said, and following Judge L’s ruling, I think Joe knows something … if only the other two could be cut free of him.
Very little chance of that happening, methinks.
Regards,
Kate
I agree with you in principle, but keep in mind that, for at least two of the defendants, their lawyers are the ones doing the arguing, and it’s fairly likely that they’re only vaguely aware of what’s being argued. (Of course, this means that their lawyers aren’t even bothering to pretend like they’re innocent, which really isn’t much better.)
BillO,
I disagree with you. I’m sure JP has taken much time to explain what is being argued and I’m sure they’ve all conferred and united on their defense tactics. We aren’t talking about two ignoramuses but about two men who made their living manipulation words (at least at one point with DW and his fundraising appeals for EVA and the other job JP got for him). They are by all accounts men who have the ability to understand a defense effort made on their behalf.
manipulating (above)
Tiny post:
Susan, you could be very spot on about JP’s involvement. However, I hope JP’s attorneys have laid down the law as to who the responsible attornies are here for the defense, and who has to keep his nose out of everything, or said responsible attorneys will quit. JP is NOT a criminal attny, although he did get involved with the thing with Michael and his boyfriend, as I recall. That’s chicken “refuse.”
errrr….6th line down of actual post = “attorneys”
Tiny correction, above.
……and now I’m going to my tiny bed. Nite!
Bruce,
(Maybe this will reach you in some tiny dreams?), not being a def. atty didn’t stop JP from practically sitting in the laps of the trouple’s defense team throughout their crim. trial (apparently) and being very much involved.
Tiny yawn. Tiny stretch:
Susan:
None of us have any idea what the real client/attorney relationship is there.
But knowing that my client is an aggressive attorney, I can tell you that I would make sure we had a working relationship
agreement to my liking, or I wouldn’t represent him.
Gang – Joe took the 5th on most of the ROGS and signed an attestation. There is NO way he didn’t know even if his counsel is keeping him more at bay than in the criminal case (in my view, likely not – he was a civil litigator, not limited to IP).
No doubt, Bea, that JP knows what is going on. A lawyer has a duty to keep his client well informed as to all material actions in a case.
The question is: how much is he actually involved in driving and writing for the defense.
Interesting question, but begs rank speculation.
Great post Hoya- I have this goofy thought that the Defendants’ lawyers took umbrage to the term “audacious.” Perhaps that’s why they came back with “misguided” in reference to Kathy Wone’s wrongful death claim.
It was a tad excessive to use the term TWICE, however.
I don’t think Joe cares if he is redundant (or repeats himself:)!) It reminds me of the old Saturday Night Live skit: “yeah, MISGUIDED, that’s the word! MISGUIDED!”
Good god, Bea – I was thinking of Saturday Night Live myself when I read it. What’s to become of us? Old Saturday Night Live sites, and not knowing what the heck “Jk” means.
Touch. Or if you prefer the French … Touche.
In post above: sites = cites.
Again, from a strategic standpoint, I can’t understand why the defendants didn’t fight this battle BEFORE they started invoking their fifth amendment rights on issues such as their phone numbers. I know justice is supposed to be blind, but the optics are just terrible here. Was there some sort of procedural reason for the order of the motions? Because the argument here really should have been, “Look, we talked to Kathy Wone every time she wanted to talk to us. We told her everything we knew, and we were totally honest about it. We only invoked our fifth amendment rights WITH THE POLICE when it became clear to us that they were on an anti-gay witch-hunt.” That would’ve been a fairly powerful argument. Instead, they’ve already told the judge that they won’t even admit to their own phone numbers.
Hey Bill O:
Tiny post: You make a very good point. Usually, one files a motion to dismiss BEFORE you answer the complaint. Under the proper procedure, they would have answered the one count they are not trying to dismiss (now), but then file the motion to dismiss in lieu of filing answers to the other counts. It is a little odd to me that they didn’t do this in the proper order, but they may have had their reasons, and this is getting too long…..
Bruce:
Simple reminder:
You have to work for a living.
Don’t lose sight of it.
Your clients will start comaplining unless you have roped them inot this site already and they are the same posters that push back on you. 🙂
Love to have you here. Looked for you last week, but, the posting was lost.
Just do not get lost in it.
As Chi Law told me in her last post,”Someone Else Will Carry On.”
I’ve kicked back and it’s been quite nice.
Well, that was all very informative. Now I have no idea if this statute thingy makes a spec of sense or not. Of course, I’m still recovering my senses from trying to figure out what David Chappell has to do with the Wone murder inquiry. All I could find was this:
http://www.metacafe.com/watch/473532/dave_chappelle_stand_up_scared_of_the_police/
Seems curiously pertinent to me.
Maybe someone was going to the Chappelle and was gonna get ma-a-aried. Then again, three-way marriage is not allowed in the District. Alas.
Not yet! (very tiny)
Going to the (David) Chappelle may mean going further into the absurd and surreal: Kathy is being criticized by Team Price for NOT seeing the defendants guilty as charged from day one! She gave them the benefit of the doubt, too long as it turned out, and now they’re trying to use that to escape any civil judgment.
Cryptic moral of the story: snakes in the grass apparently need to be crushed right away.
BTW, in 2003, Dyl had no intention of cementing a Triple Entente: he apparently wanted to replace Victor to become the third Mrs. Price (the first being the Frenchman.) By 2006, it was clear that that was not going to happen: thus, the flurry of tricks right before the murder. So, only Victor went to the Chappelle in 2006 and got “married,” and he got what he apparently deserved — social disgrace, emotional misery, and financial decline. Enjoy!!
Amen.
Don’t see how the Chappelle case compares to this case re tolling the statute. Two different scenarios. Ms. W and RW’s family aren’t saying identity was the issue; they are saying the facts that became available in the 2008 MPD affidavit ended up tolling the stat.
Agree; it’s not the identity of the tort-feasors that was in doubt until after the year had elapsed, it was actually the facts. Without reading Chapplle, it’s impossible to know if it’s controlling, but I keep going back to the fact that here we have the close friend of the now-presumed killers who was lied to by her murdered husband’s dear friends about the fact that they did not kill their close friend, her husband. Should she have believed then? It’s certainly different than an automobile accident involving – presumably – total strangers who perhaps lied about who was driving an automobile involved in an involuntary tort. Hopefully, the sur-reply will supply more facts and cogent argument to assist the judge in differentiating. She need all the help she can get. (And, seemingly, DC needs some new law on variaions on the statute of limitations in wrongful death cases.)
Boo:
I’m not entirelt sure SOL stautes diifer from one wrong action to another.
Wrongful death does not drive, “Fraudulent Consealment, ” exclusively.
The argument can be used for other SOL actions.
Chappelle is spelled wrong above; as is variations. To bed!
Below is the text of Chappelle. I think this is an important sentence from the case: “mere doubt in the mind of a party in connection with his legal rights, or his right to recover in a lawsuit, will not suspend the running of the statute of limitations.”
Have fun…
Appellant, administratrix of the estate of decedent Nan Chappelle, appeals from an order of the trial court granting appellees’ motion for summary judgment on statute of limitations grounds, arguing that appellees’ concealment of their identities should have tolled the running of limitations periods. We disagree and affirm the order of the trial court.
Appellant’s complaint alleged that on or about June 17, 1976 appellee Theophilus Sanders, Jr., while driving Retta Sanders’ car, collided with a vehicle in which the decedent rode as a passenger, causing injuries which resulted in her death. Appellant contends that Theophilus Sanders gave decedent a false name, address and telephone number, left the scene of the accident before police arrived, and failed to file an accident report. [FN1]
FN1. D.C.Code 1973, s 40-426 provides:
The driver of a vehicle of a type subject to registration under the motor vehicle laws of the District of Columbia which is in any manner involved in an accident within the District of Columbia, which accident has resulted in damage to the property of any one person in excess of $100 or in bodily injury to or in the death of any person shall within five days after such accident report the accident on a form approved by the Commissioner to the office of the Commissioner ….
Appellant concedes, however, that the driver of the decedent’s car noted the license plate number of Sanders’ car and traced ownership to Retta Sanders. [FN2]
FN2. The driver of decedent’s car filed a timely claim against Retta Sanders based on this information, amending her complaint to add Theophilus Sanders, Jr. as a party defendant when pretrial discovery revealed his identity.
The complaint further alleged that appellee Retta Sanders denied that her car had been involved in this collision when questioned.
Appellant filed wrongful death and survival claims on behalf of the decedent’s estate on July 5, 1979, over three years after the date of the accident. The trial court granted appellees’ motion for summary judgment on statute of limitations grounds following a hearing at which appellant argued that appellees’ fraudulent concealment of their identities should have tolled the running of the limitations periods.
D.C.Code 1973, s 16-2702 requires that wrongful death claims be filed within one year of a decedent’s death. While the survival act, id. s 12-101 imposes no specific limitation, s 12-301(8) imposes a three-year limitation period on personal injury claims. Appellant’s survival action accrued on the date of her injury, seeShehyn v. District of Columbia, D.C.App., 392 A.2d 1008, 1013 (1978), and the one-year wrongful death limitation period began to run on August 17, 1976, the date of her death. As appellant acknowledges, both claims are therefore barred by these time limitations in the absence of a condition that tolled the running of these periods.
It is well established that affirmative acts employed by a party to fraudulently conceal either the existence of a claim or facts forming the basis of a cause of action toll the running of limitations periods. William J. Davis, Inc. v. Young, D.C.App., 412 A.2d 1187, 1191 (1980). Accord, Weisberg v. Williams, Connolly & Califano, D.C.App., 390 A.2d 992 (1978); Emmett v. Eastern Dispensary and Casualty Hospital, 130 U.S.App.D.C. 50, 396 F.2d 931 (1967). However, “ ‘(o)ne well established defense to a claim of fraudulent concealment is that the plaintiff knew, or by the exercise of due diligence could have known, that he may have had a cause of action.’ ” Weisberg, supra at 996, quoting Westinghouse Electric Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 67, 351 F.2d 762, 764 (1965). “(A) mere doubt in the mind of a party in connection with his legal rights, or his right to recover in a lawsuit, will not suspend the running of the statute of limitations.” 51 Am.Jur.2d Limitation of Actions s 146 (1970) (footnote omitted).
Appellant, however, does not allege that appellees concealed the existence of a cause of action but rather, that they concealed their identities. While the effect of such a concealment on the statute of limitations is a question of first impression in this jurisdiction, other jurisdictions have generally refused to toll the running of limitations periods under similar circumstances. “Concealment of the identity of parties liable, or concealment of the parties, has been held not to constitute concealment of the cause of action and not to be available to avoid the running of the statute of limitations.” Id., s 148 (footnote omitted). See, e.g., Lim v. Superior Court, 126 Ariz. 481, 616 P.2d 941 (1980); Guebard v. Jabaay, 65 Ill.App.3d 255, 21 Ill.Dec. 620, 381 N.E.2d 1164 (1978); Staples v. Zoph, 9 Cal.App.2d 369, 49 P.2d 1131 (1935).
Appellant argues that appellees’ failure to file an accident report in violation of D.C.Code 1973, s 40-426 should have tolled the running of the limitations periods, citing St. Clair v. Bardstown Transfer Line, Inc., 310 Ky. 776, 221 S.W.2d 679 (1949) (holding that tortfeasor’s failure to comply with statute requiring accident report to be filed tolled the limitation period). Appellant’s reliance on this authority is misplaced for, even if we assume that the purpose of this statute is “to provide the means whereby*159 one injured or otherwise damaged by an automobile collision … may be given the opportunity to seek compensation …,” id. at 779, 221 S.W.2d at 680-81, appellant can hardly claim, as did the plaintiff in St. Clair, that “(s)he possessed no clew with which to begin such (a) search.” Id. Appellant was well aware, not only of the existence of wrongful death and survival claims, but also of Retta Sanders’ identity as owner of the vehicle that collided with decedent’s car. Pursuant to D.C.Code 1973, s 40-424,[FN3] appellant could have filed a timely claim against Retta Sanders and amended it as pretrial discovery revealed the identity of any other liable parties.
FN3. D.C.Code 1973, s 40-424 provides:
Whenever any motor vehicle, … shall be operated upon the public highways of the District of Columbia by any person other than the owner, with the consent of the owner, express or implied, the operator thereof shall in case of accident, be deemed to be the agent of the owner of such motor vehicle, and the proof of the ownership of said motor vehicle shall be prima facie evidence that such person operated said motor vehicle with the consent of the owner.
We hold that appellees’ concealment of their identities did not toll the running of these limitation periods. In the circumstances here we are inclined to follow the rationale of those jurisdictions which have held generally that concealment of the identity of liable parties, unlike the concealment of the existence of a claim, is insufficient to toll the statute of limitations. See cases collected in 51 Am.Jur.2d Limitation of Actions s 148, supra. In any event, appellant possessed information with which a timely claim could have been filed.[FN4] We therefore affirm the trial court’s order granting summary judgment for appellees.
FN4. Because appellant possessed information that revealed the identity of Retta Sanders as the owner of the car, we do not decide the question whether, in the absence of such information, D.C.Code 1973, s 40-426 would have operated to toll the running of the limitations periods.
Mr. Price never tried to conceal his overall identity: his sexual and class identities were on full display at Anacostia. Who could forget “Mercedes, Mercedes, Mercedes!”
Neither did Ma’am or Sparkly Cat hide their sexual, racial, gender (well here, maybe Ma’am, but he/she couldn’t help it!), class, professional, educational, etc. identities. They probably, however, tried in concert to distract the police from what really went down that night. Thus, it may be no coincidence that it will be Covington 7, Team Price 0 at the end of the first quarter for this civil court game. About time!
The widow’s counsel is worth every penny she is paying them. Plaintiff is SOL! Defendants shall prevail.
Ben dearest, why do you have such a low opinion of the Covington lawyers? Even Bruce gives the plaintiff an edge here, and the Lil Dyl as zombie theory has not been once floated … yet.
Thanks so much, KiKi for giving us the meat of Chappelle.
For whatever it’s worth, in my opinion the judge here can find fraudulent concealment and disallow the applicability of the statute of limitations, thus denying that part of defendant’s motion, without violating Chappelle . The court in Chappelle says: “Appellant, however, does not allege that appellees concealed the exitence of a cause of action, but rather that they concealed their identities. While the effect of such a concealment is a question of first impression in this jurisdiction….” The court in Chappelle then properly refers to the facts there obtaining: “In the circumstances here…”
In the Wone case, the judge needs only distinguish the facts, pointing out that the Swann Three did not, as a matter of fact, hide their identities, but brazenly, shamelessly put themselves out there as Mrs. Wone’s dearest friends and supporters, lovingly becoming a part of the grief-stricken even to the extent of carrying the dead body to its resting place; all the more to convince the widow that “there is no cause of action here, not among us”. As I see it, the cause of action is not simply the death, but the how, why and wherefore. These facts were kept from the plaintiff by the malicious acts of the defendants, who now seek to benefit from those unlawful acts.
The judge here might begin her order denying defendants’ motion thus: “In the circumstances here [i.e., based on these facts], we are inclined to follow…” Not only is equity clearly with her, but a court of appeals would not disturb such a ruling inasmuch as it comports with established DC decisions on the law, and as the trial judge, she’s entitled to find the facts in the first instance.
Just my opinion, based on what info we have.
Hi Boo Radley & Susan:
My take on defendants’ argument as to Chappelle is this:
(1) Plaintiff knew immediately of the death; and
(2) Plaintiff knew immediately that the cause was murder by stabbing.
Thus, the only thing really left is “Who did it?” Which implicates “identity.”
Chappelle says, defendants claim, that the “fraudulent concealment” exception to the one year Statute of Limitations for wrongful death is not recognized in DC if it goes to “identity” issues. They also argue directly or by implication that Chappelle and other cases are “clear DC law,” which the judge must follow.
Now, Mrs. Wone’s attorneys are aggressively attacking these arguments by defendants, and are trying to convince the judge that the ruling in Chappelle is being given too broad an interpretation by the defendants and that the issue in Chappelle was much more narrow, the facts between Chappelle and the present case are quite different, and Chappelle does not apply to the present case.
How the judge would rule on this particular issue is anyone’s guess.
It looks like we have different takes. The question wasn’t identity (in my opinion) it was facts and that’s the point plaintiff’s attorneys make quite clear in their response. Identity doesn’t factor in and I think Boofoc made a good case of this argument as others have here. I guess your viewpoint represents defendants’ attorneys and mine and some others represent the plaintiffs.
And guessing how the judge will rule is a crap shoot, without having comparable rulings by the judge as a basis for comparison.
Can’t disagree with you at all, Susan.
However, while I am a defense attorney by profession, I am (really!) trying to be objective here, meaning that I am consciously trying to not favor either side in my opinions.
Whether I can really do that is another thing altogether, and well worth considering by readers.
Thanks, Bruce. You may be wed to the role of defendants’ defendant but perhaps it is hard to shed that role in your off hours. That said, it’s good to have all viewpoints represented here.
Looks Like A Status Hearing is chedued for the SOL Argument.
Event Scheduled Event: Status Hearing Date: 12/08/2010 Time: 10:00 am Judge: HEDGE, BROOK Location: Courtroom 517
Rich,
Found below from the Court.
Confirmed Stat Hearing per your info.
10/17/2011 09:00 AM Jury Trial
09/07/2011 04:00 PM Pretrial Conference
06/14/2011 09:00 AM Mediation Session (Civil 2)
12/08/2010 10:00 AM Status Hearing
11/10/2010 Order Granting Plaintiff’s Motion For Leave To File Sur-Reply In Opposition To Defendants’ Motion to Dismiss, Or In the Alternative, Motion For Partial Summary Judgment signed in chambers by Judge Hedge efiled, eserved and docketed 11/10/2010. (ph). Copies of the order deposited in the court’s mail to the pro se parties 11/10/2010. (ph).
11/10/2010 Event Scheduled Event: Status Hearing Date: 12/08/2010 Time: 10:00 am Judge: HEDGE, BROOK Location: Courtroom 517
11/10/2010 Notice of Hearing Mailed Next Business Day Notice Of Hearing Sent on: 11/10/2010 11:35:12
11/10/2010 Order Sua Sponte to/for: Order Setting Hearing signed in chambers by Judge Hedge efiled, eserved and docketed 11/10/2010. (ph). Copies of the order deposited in the court’s mail to the pro se parties 11/10/2010. (ph).
11/09/2010 Additional eFiling Document to Motion to Intervene Filed. submitted 11/09/2010 12:19. tw Attorney: HASS, MICHAEL A (985620)
11/09/2010 Motion to Intervene Filed. submitted 11/09/2010 12:19. tw Attorney: HASS, MICHAEL A (985620) Receipt: 179799 Date: 11/10/2010
11/08/2010 Plaintiff’s Motion for Leave to File Sur-Reply in Opposition to Defendant’s Joint Motion to Dismiss or for Summary Judgment as to Counts One, Three, and Four Filed. Submitted 11/08/2010 19:16. ts. Attorney: REYNOLDS, BRETT C (996100) Receipt: 179680 Date: 11/09/2010
Cheers,
Denton
Way more than I had!
Thanks.
A Wednesday morning in December — with all the cards to mail and gifts to wrap, who will have the time to go? Will Brook’s courtroom be decorated in holiday swag? Ho, ho, ho — and I’m not talking about the defendants either!
The above mentioned was emailed to me from a colleague tied to the case at the courthouse.
I assumme the language is from an internal document.
I hope it’s correct.
Otherwise, sorry for the false alarm.
I’ll go back to being labeled as, “Off Topic and of No Value!” 🙂
“How the judge would rule on this particular issue is anyone’s guess.”
I guess this is where our, “usual ongoing speculation” should cease.
Clearly the judge is not siding with either party at this moment, if she plans to bring both sides in for a discussion on December 8.
Assuming the status hearing scheduled is for SOL resolution.
Well, Rich, the immediate SOL resolution needed is that of the pictured statue that accompanies this post. Is the Statue of Liberty really a drag king: who knew what was/is under that particular robe! And yet, is the statue an amalgam of the Thinker and Lady Liberty — an appeal to gay men’s best angels or a celebration of that certain ambivalent and androgynous irony which requires a good ponder? It does seem “strong enough for a man, but made for a woman.”
At any rate, has 1509 Swann been attracting potential buyers: will there really be an open house? I am guessing — no, not in this downbeat market for high-end real estate. But then again, some Republican operative will probably buy it in the upcoming Prague spring of the third Reagan Revolution. Perestroika without glasnost will be back in Beijing’s newest satellite!
Awesome art historical analysis of the “Statue.”
As for 1509 Swann, I suppose we cannot expect an invitation to the first tea party hosted there.
Regards,
Kate
A Virginia footnote: in the Old Dominion of myself and Aunt Marcia, the acronym SOL refers to the Standards of Learning for the Commonwealth’s public school children.
So, SOL itself has many meanings and interpretations: let’s just pray that Brook chooses the right one!
Ah yes, Clio – I work with Virginia’s SOLs each and every day in writing historical interpretive programs and lesson plans.
Just like in the DC Courts, SOLs can be a frustrating milieu. Let’s hop this is not the case for Judge Brook.
Indeed!