                            District of Columbia
                             Court of Appeals
No. 15-CV-906
                                                                   MAR 16 2017
JIMMY A. VENTURA,
                                         Appellant,

         v.                                                       CAB-8035-09


MCDONALDS WELBURN MANAGEMENT,
                         Appellee.


              On Appeal from the Superior Court of the District of Columbia
                                    Civil Division

         BEFORE: BECKWITH and MCLEESE, Associate Judges; and NEBEKER, Senior
Judge.

                                   JUDGMENT

               This case was submitted to the court on the transcript of record and the
briefs filed, and without presentation of oral argument. On consideration whereof, and
for the reasons set forth in the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the judgment of the Superior Court is
reversed.

                                            For the Court:




Dated: March 16, 2017.

Opinion by Associate Judge Roy W. McLeese.
Notice: This opinion is subject 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 before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-CV-906

                         JIMMY A. VENTURA, APPELLANT,

                                        V.


                MCDONALDS WELBURN MANAGEMENT, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                 (CAB8035-09)

                       (Hon. Erik P. Christian, Trial Judge)

(Submitted December 1, 2016                            Decided January 13, 2017)*

      Josselin Saint-Preux for appellant.

      Before BECKWITH and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.




      *
           The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court’s
grant of the Legal Aid Society’s motion to publish.
                                             2

      MCLEESE, Associate Judge: Appellant Jimmy Ventura challenges the trial

court’s order denying his motion for an extension of time to file a notice of appeal.

We reverse.



                                             I.



      In 2009, Mr. Ventura filed a complaint against appellee McDonalds

Welburn Management and Darrell Coles, alleging among other things that injuries

Mr. Ventura suffered during an altercation with Mr. Coles resulted from

McDonalds Welburn Management’s negligence.1 In 2011, the trial court dismissed

the case for want of prosecution after Mr. Ventura failed to appear at a scheduling

conference. Mr. Ventura asked the trial court to reopen the case, but the trial court

refused. Mr. Ventura appealed to this court, and in 2012 we remanded the case to

the trial court for further consideration.



      On July 16, 2014, the trial court again denied Mr. Ventura’s motion to

reopen the case, concluding that Mr. Ventura had not promptly prosecuted the

      1
        It is unclear whether Mr. Coles was ever properly served, and he did not
make an appearance in the trial court. In the present appeal, this court has not
treated Mr. Coles as an appellee. Neither he nor appellee McDonalds Welburn
Management has participated in this appeal.
                                        3

matter, did not demonstrate good faith, and did not show lack of actual notice of

the proceedings or the court’s orders. Mr. Ventura filed a notice of appeal on

August 21, 2014, six days after the thirty-day deadline to file such a notice under

D.C. App. R. 4 (a)(1). This court issued an order to show cause why the appeal

should not be dismissed as untimely. After reviewing Mr. Ventura’s response, this

court dismissed the appeal without prejudice to filing a motion for extension of

time in the Superior Court.



      In December 2014, Mr. Ventura filed a motion for extension of time to file a

notice of appeal under D.C. App. R. 4 (a)(5), which permits the Superior Court to

extend the time for filing a notice of appeal if the party (1) files the notice of

appeal no more than thirty days out of time and (2) shows excusable neglect or

good cause. Mr. Ventura explained that he filed the notice of appeal only six days

late, and he contended that the circumstances surrounding the filing supported a

finding of excusable neglect.      Specifically, Mr. Ventura explained that he

attempted to electronically file the notice of appeal on August 14, the day before

the deadline, but the Superior Court Clerk’s Office rejected the filing after

receiving only some of the submitted documents. Mr. Ventura went to the court on

August 15 to try and remedy the situation, but was unable to resubmit the notice

until the following Monday, August 18. The Clerk’s Office again rejected Mr.
                                          4

Ventura’s filing, this time because the document was illegible. Mr. Ventura’s

motion was finally accepted on August 21.          Mr. Ventura argued that these

circumstances demonstrated excusable neglect, because he had made every effort

to file the appeal on time and was not negligent in doing so.



      The trial court denied Mr. Ventura’s motion for an extension of time to file a

notice of appeal. The trial court relied on four principal considerations: (1) the

motion for extension of time was itself untimely, because the rules require such a

motion to be filed within sixty days of judgment; (2) unsuccessfully attempting to

file a notice of appeal the day before it is due does not constitute good cause or

excusable neglect; (3) counsel had previously had problems with efiling

documents; and (4) counsel had failed to respond to this court’s order to show

cause why the earlier appeal should not be dismissed.



                                         II.



      “We review the trial court’s denial of an extension of time to file an appeal

for abuse of discretion.”    In re Ak. V., 747 A.2d 570, 574 (D.C. 2000).         In

conducting our review, we examine whether the trial court made an “informed

choice” and whether its determination was “based upon and drawn from a firm
                                          5

factual foundation.” In re Estate of Yates, 988 A.2d 466, 468 (D.C. 2010) (internal

quotation marks omitted).



      Under the applicable standard of review, we are unable to sustain the trial

court’s ruling that Mr. Ventura failed to show excusable neglect. First, the trial

court erred in stating that the rules required Mr. Ventura to file a motion for

extension of time within sixty days of judgment. In fact, the rules do not state a

deadline for filing a motion for extension of time, instead requiring only that the

notice of appeal have been filed no more than thirty days out of time. D.C. App.

R. 4 (a)(5)(A)(i). Mr. Ventura complied with that requirement, because he filed

the notice of appeal only six days out of time. Second, the trial court erred in

stating that Mr. Ventura failed to respond to this court’s order to show cause. In

fact, Mr. Ventura filed a timely response to the show-cause order. Third, the trial

court described Mr. Ventura’s first efiled notice of appeal as “deficient,” without

addressing Mr. Ventura’s claim that the notice of appeal was not accepted for

efiling due to no fault of his own. Finally, the trial court noted Mr. Ventura’s prior

difficulties with efiling and faulted Mr. Ventura for failing to make earlier attempts

to file his notice of appeal, rather than waiting until the day before the deadline.

We are doubtful that this consideration weighs significantly against a finding of

excusable neglect. See generally In re Ak. V., 747 A.2d at 575 (in determining
                                         6

whether appellant established excusable neglect, trial court “must focus primarily

on the particular facts of an appellant's failure to timely file an appeal,” although

trial court may “take into account what he or she may have observed of

[appellant’s] prior behavior”).



      Mr. Ventura argues that this court should conclude as a matter of law that he

established excusable neglect and thus was entitled to an extension of time.

McDonalds Welburn Management did not oppose Mr. Ventura’s motion for

extension of time in the trial court and has not participated in the present appeal.

Under the circumstances, we accept as uncontested Mr. Ventura’s persuasive

contention that the current record establishes excusable neglect.      Cf. Wynn v.

United States, 386 A.2d 695, 698 n.10 (D.C. 1978) (declining to remand for further

factual findings where United States did not present evidence at hearing in trial

court and did not seek remand on appeal).



      Having concluded that the record establishes excusable neglect, and that the

motion for an extension of time to file a notice of appeal therefore must be granted,

“we think it appropriate to treat this appeal as though [appellant] obtained the

necessary extension from the trial court . . . .” Clark v. Bridges, 75 A.3d 149, 153

(D.C. 2013); see also, e.g., Gibbs v. Frisco City, Ala. Police Dep’t, 626 F.2d 1218,
                                         7

1221 (5th Cir. 1980) (“We therefore reverse on the finding of no excusable neglect

and hold the notice of appeal was timely filed and proceed to a review of the case

on the merits.”); cf. United States v. Andrews, 790 F.2d 803, 807 (10th Cir. 1986)

(“[W]e conclude as a matter of law that [appellant] has established excusable

neglect. We therefore have jurisdiction to consider the merits of his appeal.”)

(citation omitted). Mr. Ventura’s August 21, 2014, notice of appeal thus must be

treated as timely. The Clerk of this court is therefore directed to issue a briefing

order so that the appeal may be “consider[ed] on the merits.” Clark, 75 A.3d at

153-54.



                                             So ordered.
