Douglas Johnson Frazier v. Angela Underdue-Frazier
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Notice: This opin ion is subjec t to formal revision before publication in the Atlantic and Maryland Reporters . Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made b efore the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 02-FM-379 D OUGLAS J OHNSON F RAZIER, A PPELLANT, V. A NGELA U NDERDUE-F RAZIER, APPELLEE. Appeal from the Superior Court of the District of C olumbia (DR-2128-00) (Hon. Linda Kay Davis, Trial Judge) (Decided July 25, 2002) Before G LICKMAN, Associate Judge, and K ERN and N EBEKER, Senior Judge s. P ER C URIAM: We confront the question whether an appellant s alleged reliance on erroneous information from court personnel provides a basis for invoking the unique circumstances doctrine so as to save an untimely appeal from dismissal. On April 4, 2002, appellant noted this pro se appeal from a judgment of absolute divorce entered in the trial court on February 6, 2002. After this court directed him to show cause why his appeal should not be dismissed for lack of jurisdiction as untimely, he filed a response contending that he relied on an uniden tified court employee s statement that he had sixty days in which to file an app eal. 1 1 Appellant was represented by counsel in the trial court. He contends that he was dissatisfied with the div orce settlem ent from th e outset, but th at his repeate d calls to his counsel were ignored. He states that he then decided to appeal the decree pro se, and it was thereafter that he was misinformed about his appeal time. 2 D.C. App. R. 4 (a)(1) requires notices of appeal to be filed within thirty days after entry of the order a ppeale d. Tha t time lim it is man datory an d jurisdi ctional. In re C.I.T., 369 A.2d 171, 172 (D.C. 1977). But under the doctrine of unique circumstances, this court may deem an untime ly appeal timely if the untime liness was d ue to the ap pellant s reaso nable reliance on some affirmative, misleading action of th e trial cou rt. Frain v. District of Colum bia, 572 A .2d 447 , 450-52 (D .C. 1990). That doctrine, however, applies to a statement or action of the trial court. In re Alexander, 428 A.2d 812, 815 n.4 (D.C. 1981) (emphas is added ), cert. denied, 454 U.S . 1149 (19 82). Altho ugh we have not e xplicitly held that the doctrine does not extend to misinformation given by a court employee, we have stated that [w]e would be most reluctant to rely solely on the statements or actions of an unidentified court functionary [as opposed to those of a trial judge] as grounds for bypassing the jurisdictional requirements of our rules. Robinson v. Evans, 554 A.2d 332, 336 (D.C. 1989). The United States Court of Appeals for the District of Columbia Circuit has squarely addressed this issue and held that the unique circumstances doctrine does not apply in such a situation. Moore v. South Carolina Labor Bd., 321 U.S. App. D.C. 346, 100 F.3d 162 (1996) (appeal dism issed despite claim that a staff person in the district court clerk s office erroneou sly told the appellan t he h ad sixty da ys, rather than thirty, to file his appeal). As that court reasoned, only official judicial action occasions the justifiable reliance required by the unique circum stances doctrin e. See id. at 348, 100 F.3d at 164. Moreover, appellant s assertion that a court employee, whom appellant does not iden tify, told him the appeal period is sixty days may well present a credibility issue, 3 particularly in light of the fact that none of this jurisdiction s rules of procedure mentions a sixty-day appeal period. That such claims of misinformation inherently present questions of credibility is another reason why the unique circumstances doctrine is limited to judicial actions or statements, which are matters of record. The doctrine of unique circumstances is to be construed very narrow[ly] and applied in limited circumstances. Frain, supra, 572 A.2d at 451. We hold that those circumstances do not include misinform ation provid ed by nonjud icial court pers onnel. 2 Acc ordingly, we dismiss this appeal for lack of jurisdiction. We note, however, that appellant filed his notice of appeal within the thirty-day excusable neglect period of D.C. App. R. 4 (a)(4); thus, the dis missal is with out prejudic e to reinstatem ent of the a ppeal if appellant seeks and receives in th e trial court a nunc pro tunc extension o f time to file h is notice of a ppeal. So ordered. 2 This case is different from Ouriaghli v. Moore, 621 A.2d 392 (D.C. 1993), in which we held that reliance on misinformation from a trial judge s law clerk was a colorable basis for a motion fo r reconside ration. Wh ether to grant a motion for reconsideration is a discretionary decision of the trial court, whereas the timeliness of an appeal is mandatory and jurisdictional.
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