Cellano v. Farbo

BLOOM, Judge. After granting a default judgment as to liability against the appellant, Debra Lynn Cellano, the Circuit Court for Baltimore City conducted an inquest to determine the damages sustained by the appellee, Catherine C. Farbo, in a motor vehicle collision. As a result of the inquest, a judgment was entered in favor of the appellee for $45,-742.99. We will vacate that judgment because it is tainted by a deception practiced upon the court.

Appellee’s action was brought against appellant and Keystone Insurance Corporation, appellee’s uninsured motorist insurance carrier. Keystone is not a party to this appeal. Appellant appeared by counsel and pleaded in bar of the action but subsequently failed to obey an order for discovery, as a result of which the default judgment was entered on April 26, 1982. Appellee promptly requested an inquisition by jury to determine damages in accordance with Md.Rule 648.

The case was then placed on the court’s jury trial docket for June 25, 1982. Ms. Cellano’s attorney was scheduled to begin a jury trial in another case (hereinafter referred to as the Pineda case) in the same court on June 21. The Pineda case was not ⁶⁰⁸ called for trial on June 21 because the docket was so congested that there was no judge or courtroom available for the trial of that case. In accordance with the court’s normal procedure, the Pineda case was not removed from the jury trial docket to be rescheduled for a later date but remained on the docket awaiting its turn for trial on a day-to-day basis, while cases that had been set for jury trial subsequent to the Pineda case (including Farbo vs. Cellano ) began to stack up on a waiting list.

The trial of the Pineda case began on the afternoon of June 24. As of then, Farbo vs. Cellano was number 19 on the jury trial docket, so counsel for Ms. Cellano was sure that it could not possibly be reached for trial before he finished trying the Pineda case. His appraisal of the court’s jury system was correct, but he underestimated his opponent. Angered by what he perceived to be the cavalier manner in which defense counsel had treated him and his case and, perhaps, frustrated by a system that threatened what he considered to be an unnecessary delay in bringing his case to a just conclusion, plaintiff’s attorney conceived of a clever device to cut through the judicial red tape and by-pass opposing counsel at the same time.

He merely appeared for trial on June 25 armed with a written motion to waive inquisition by a jury and to request inquisition by the court, as authorized by Rule 648. In that manner he and the case of Farbo vs. Cellano were referred to a nonjury courtroom and a judge available to hear the case then and there. Defense counsel, of course, was not present. He had received no notice of the motion to waive inquisition by jury and was thus totally and blissfully unaware of the proceedings about to take place in the nonjury courtroom.

Counsel for Keystone Insurance Company, however, was present. Plaintiff’s counsel had served him with a copy of the jury waiver motion, although Keystone had no real interest in the inquisition. The proceedings began with the following colloquy: ⁶⁰⁹ MR. GOLDMAN: Robert G. Skeen and Harry Goldman, Jr., for the plaintiff.

There is an appearance by Will Abercrombie for the defendant. Let the record show that Mr. Abercrombie is not here. The plaintiff moves to waive inquisition by jury and proceed to inquisition by the court alone. THE COURT: Who do you say Mr. Abercrombie represents?

MR. GOLDMAN: Cellano. He will not be here, I am reliably informed. THE COURT: So that the defendant will not be represented.

MR. GOLDMAN: The defendant is represented by counsel. Counsel chooses not to appear. He will not appear.

THE COURT: But in this matter— MR. GOLDMAN: They will not be represented in this matter. THE COURT: He advised you accordingly? MR.

GOLDMAN: We were reliably informed that he will not be here. THE COURT: Very well. MR. GOLDMAN: Your Honor, will the court grant our Motion to Waive Inquisition by jury and allow inquisition without the jury?

THE COURT: I sure shall. The inquisition then proceeded ex parte. On the basis of the evidence presented, the court rendered a judgment nisi in the amount of $45,742.99. Judgment absolute was entered on June 30; on July 3, appellant moved to set the judgment aside.

As of then, there was no transcript of the June 25 proceedings and appellant was unaware of Mr. Goldman’s representations to the court. Her motion, there- • fore, was based primarily upon lack of notice of the waiver of jury trial. Appellant’s motion was initially granted because the court believed that she was entitled to a jury trial. On reconsideration, the court reinstated the judgment when ⁶¹⁰ it was pointed out that under Md.Rule 343e, after entry of a judgment by default, an election for jury trial may be withdrawn by the party not in default, with or without the approval of the defaulting party.

From the record, it is clear that the trial judge did not