Carter v. Harris

MURPHY, Chief Judge. Maryland Rule 2-613 sets forth provisions relating to the entry of an order of default, to possible vacation of that order, and to entry of a default judgment if there is no vacation. In this case we focus on the provisions concerning possible vacation of the default order. We must decide whether, under the facts presented, there was adequate compliance with these provisions.

If there was not, we must determine the consequences of noncompliance in the circumstances of this case. Rule 2-613(a) permits, upon written request of the plaintiff, the entry of a default order against a defendant when the time for pleading has expired and the defendant has failed to plead as provided by the rules. Promptly upon entry of the default order, notice must be issued informing the defendant that the default order has been entered and that the defendant may move to vacate the order within thirty days. Rule 2-613(b).

Rule 2-613 then provides in (c) and (d): “(c) ... The defendant may move to vacate the order of default within 30 days after its entry. The motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim. (d) ...

If the court finds that there is a substantial and sufficient basis for an actual controversy as to the merits ³⁷⁴ of the action and that it is equitable to excuse the failure to plead, the court shall vacate the order.” If there is no vacation of the default order, the court “may enter a judgment by default” providing it is satisfied that it has personal jurisdiction and that the requisite notice has been mailed. Rule 2-613(e). This default judgment, except as to the relief granted, is not subject to the court’s revisory power under Rule 2-535(a). 1 Rule 2-613(f). I In May 1984 appellee Harris was operating his motorcycle on Saratoga Street in Baltimore City when he collided with an automobile operated by appellant Carter.

Alleging that Carter’s negligence was the cause of his resulting injuries, Harris sued Carter in the Circuit Court for Baltimore City on July 16, 1984. When Carter failed to answer, Harris, on October 2, 1984, filed a motion to enter default. Judge Joseph Kaplan, sitting as motions judge, entered an order of default that same day. Notice of the default order was issued October 4; on that day Carter filed an answer to Harris’ complaint.

As a first defense, she denied the allegations in the complaint and, as a second defense, claimed that Harris “contributed to his own harm in this case.” On October 19, Carter moved to vacate the order of default. 2 As grounds for the motion, she stated that upon receipt of Harris’ complaint she forwarded it to her insurance company, which, “as a result of excusable negligence,” failed to forward the complaint to Carter’s defense counsel; that she had “a good and meritorious defense to the cause of action”; and that no prejudice would be occasioned to Harris ³⁷⁵ by vacating the default order. Carter’s motion contained no further elucidation of the legal and factual basis for her defense. On October 22, Harris filed an answer in opposition to Carter’s motion to vacate the default order. He denied that the insurance company’s negligence was excusable and also denied “that the Defendant has a good and meritorious defense to the cause of action but rather asserts that the facts surrounding the accident would indicate that the Defendant was ‘grossly’ negligent____” Harris further alleged that he would be prejudiced by vacation of the default order because he “would then have to prove each and every element of his case____” Agreeing, mistakenly, that the court had revisory power over the default order under Maryland Rule 2-535 {see supra, nn. 1 and 2), Harris contended the court should not exercise this power because the “Defendant has failed to show any equitable circumstances or a meritorious defense in the pleading____” Harris requested a hearing on his motion in opposition.

On December 27, 1984, Judge Kaplan, without a hearing, granted Carter’s motion to vacate the default order, stating that he found “for the reasons set forth in the Motion to Set Aside Default judgment, that there exists a substantial basis for controversy as to the merits of this action and it [is] equitable to excuse defendant’s untimely Answer. Therefore, this Court has a sufficient basis to vacate the Order of Default under Md. Rule 2-613.” The matter then went to trial and a jury returned a verdict for Carter. On appeal the Court of Special Appeals held that Judge Kaplan erred in vacating the default order. Harris v. Carter, 71 Md.App. 257 , 524 A.2d 1250 (1987).

The court reasoned that Carter’s motion to vacate contained neither the legal nor the factual basis for her defense, in contravention of Rule 2-613(c); that Carter’s answer to Harris’ complaint did not cure this defect; and that Judge Kaplan ³⁷⁶ therefore abused his discretion in vacating the default order. We granted certiorari to consider the significant issue presented in the case. II Rule 2-613 was included within the four titles of revised rules proposed by the Court’s Standing Committee on Rules of Practice and Procedure, which we adopted on April 6, 1984, effective July 1, 1984. Rule 2-613 carried over