Chapman v. Kamara

THIEME, Judge. This appeal is but one episode in continuing litigation over a tragic automobile accident. The entire scope of the controversy is somewhat complex, but the issues before us in this appeal are relatively few and narrowly drawn. Appellants moved to vacate a judgment against them in the Circuit Court for Prince George’s County (Spellbring, J.), and appellee Washington Metropolitan Area Transit Authority (WMATA) moved to intervene in order to oppose the motion to vacate.

The court granted the motion to intervene and denied the ⁴²³ motion to vacate. This timely appeal ensued, and the appellants raise the following issues for our review: (1) Whether WMATA had a justiciable interest in the friendly suit below such as permitted intervention in the action for the purpose of opposing the Motion to Vacate the Judgment? (2) Whether, in the absence of a justiciable interest on the part of WMATA, the judgment should have been vacated as requested by defendants and consented to by the plaintiffs? (3) Whether, in the absence of any service upon her or notice to her of the proceedings, Renee Cole is entitled to have the judgment against her set aside?

(4) Whether the entry of appearance of an attorney on behalf of an Estate not yet in existence is valid, permitting relief [to] be [granted] against the estate? For the reasons set forth herein, we affirm. FACTS The case arises out of an automobile accident on 11 October 3 991 in which a van carrying eight young men collided with a telephone pole. The driver of the van, Henry Norman Cole, II, was seriously injured, and he died as a result of those injuries about fourteen months later.

The other seven passengers survived, some sustaining serious injuries and some incurring substantial medical bills. Two of these other seven passengers were teen-aged minors: Arouna Koroma and Russell Cole, the latter of whom is also the brother of the deceased driver, Henry Norman Cole. The van was owned by the two Coles’ stepmother, Renee Cole, and she insured the van for up to $100,000 under a policy with Government Employees Insurance Company (GEICO). On 23 December 1993, the instant suit was filed.

The appellants characterize the suit as a “friendly” suit, brought for the sole purpose of binding two minors to a global settlement agreement with GEICO for the monetary limits of the insurance policy. Although appellees do not seriously contest ⁴²⁴ the accuracy of this characterization, they are correct to point out that it assumes facts not in the record. The record does show that the two plaintiffs are the parents of the two injured minors. Plaintiff Marie Kamara sued in her individual capacity and as the next friend of her son, Koroma; plaintiff Reverend Henry Norman Cole, Sr. (hereinafter, Reverend Cole, to distinguish him from his deceased namesake son), sued in his individual capacity and as the next friend of his son, Russell Cole.

The two defendants are Renee Cole and the Estate of Henry Norman Cole, II (“the Estate”). 1 The complaint alleged negligence on the part of the deceased, younger Henry Cole and vicarious liability on the part of Renee Cole. On the same day the complaint was filed, an answer was filed on behalf of both defendants, denying liability generally. Also on the same day, judgment was entered in favor of the plaintiffs pursuant to a consent order. The court awarded the following amounts, each of which was the same amount prayed for in the complaint: Kamara, as next Mend of Koroma $29,296.80 Kamara, individually $15,053.20 Reverend Cole, as next Mend of Russell Cole $ 5,508.27 Reverend Cole, individually $ 8,741.73 Thus, Kamara received a total of $44,350, and Reverend Cole received a total of $14,250.

Still on the same day, plaintiffs filed a Satisfaction of Judgment indicating the amounts had been paid in full. The next chapter of this narrative begins on 7 October 1994, when Reverend Cole took further action in two separate legal fora. On that day, he petitioned for administration of the Estate and was appointed as personal representative. On that same day, he filed suit in the Circuit Court for Prince George’s County against the (WMATA), alleging negligence in connection with the accident in which his son Henry was injured and died.

The allegation is that a WMATA bus crossed the center line into young Henry Cole’s lane of on-coming traffic and that ⁴²⁵ Cole swerved his van to the left and off the road in an attempt to avoid a collision. Reverend Cole brought a survival action in which he sued as the personal representative of the deceased’s estate and a wrongful death action in which he sued individually (as well as to the use of the deceased’s natural mother, Nankita Boseman). WMATA removed the case to the United States District Court for the District of Maryland (Southern Division, Case Number PJM-94-3185), where the case is still on-going. In October of 1995, WMATA filed a third party complaint against Renee Cole.

The catalyst of the present dispute is WMATA’s motion for summary judgment filed in the federal court suit on 29 March 1996. Although the motion and its resolution are not a part of the record, the parties are in substantial agreement that the motion raised the existence of a final judgment in the instant “friendly” suit as a bar to the suit against WMATA. The parties have not informed us of any ruling on the merits of the motion. 2 Reverend Cole thereafter resigned as personal representative of the Estate on 5 April 1996, and he was replaced in this capacity four days later by Cheryl Chapman. Chapman is Reverend Cole’s attorney in the federal suit and represented him in his petition for letters of administration of the Estate. 3 Chapman, as personal representative of the Estate, and Renee Cole filed the instant motion to vacate judgment on 17 April 1996, alleging lack of personal jurisdiction due to deficient service of process.

No party to the suit opposed the motion. On 3 May 1996, WMATA filed a Motion to Intervene as of right pursuant to Maryland Rule 2-214(a) and an Opposi ⁴²⁶ tion to the motion to vacate. The intervention motion was granted on 24 May 1996 and, after two rounds of hearings, the motion to vacate was denied on 26 February 1997. DISCUSSION We first make plain that we are not resolving the question that is currently before the United States District Court as to the preclusive effect of a judgment in a friendly suit brought for the sole purpose of binding a minor to a settlement agreement.

While that very issue is, of course, the driving force of the instant dispute, we are limited to reviewing only the lower court’s orders, which did nothing more than permit intervention by WMATA and deny the motion to vacate judgment. Any opinion we could render regarding issue preclusion would not be binding upon the District Court and would therefore be entirely advisory in nature. E.g., Hammond v. Lancaster, 194 Md. 462 , 71 A.2d 474 (1950). We would not presume that the District Court has any need for advice, and, if it finds to the contrary at a later time, it may certify a question to the proper authority, the Court of Appeals.

Motion to Intervene Appellants’ first claim of error is that WMATA had no “justiciable interest” sufficient to support its intervention in the suit. There are two types of intervention contemplated in the'Maryland Rules of Civil Procedure: intervention as of right and permissive intervention. With regard to intervention as of right, Maryland Rule 2-214(a) states, in pertinent part: Upon timely motion, a person shall be permitted to intervene in an action ... when the person claims an interest relating to the property or transaction that is the subject of ■ the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties. ⁴²⁷ A party moving for intervention as of right must show four things: (1) the application for intervention must be timely; (2) the applicant must have an interest in the subject matter of the action; (3) the disposition of the action would at least potentially impair the applicant’s ability to protect its interest; and (4) the applicant’s interest must be inadequately represented by existing parties. Pharmaceia ENI Diagnostics, Inc. v. Washington Suburban Sanitary Comm’n, 85 Md.App. 555, 566 , 584 A.2d 714 (1991); Hartford Ins.

Co. v. Birdsong, 69 Md.App. 615, 622 , 519 A.2d 219 (1987). Appellants do not question the timeliness of appellee’s application or the inadequacy of representation by existing parties. Their appeal focuses primarily on the second prong (existence of an interest in the subject matter), but it also implicates the third prong (relevance of any disposition to the claimed interest). We will accordingly address both.

We will review the instant intervention order for error. WMATA argues that we should review for abuse of discretion, on the grounds that the lower court has some discretion to grant permissive interventions. Appellants conceded the abuse of discretion standard at oral argument, but we have some lingering doubts. WMATA moved to intervene as a matter of right pursuant to Rule 2-214(a) only; there was no motion for permissive intervention under subsection (b) in the alternative.

The court’s order granting the motion also relied exclusively on 2-214(a). We are aware of no precedent for affirming a Rule 2-214(a) grant on the alternate grounds of Rule 2-214(b), and we have some concerns that to do so would interfere in the as yet unexercised discretion of the lower court to deny a 2-214(b) motion. Furthermore, because we believe that the lower court was correct in ordering intervention as of right, we will forego ruling on the question of whether a more deferential standard of review may be warranted. ⁴²⁸ Our precedents on the sufficiency of an interest have tended to ask the question of whether the claimed interest “is essential to protect and ... is not otherwise protected.” Shenk v. Maryland Dist. Sav. & Loan Co., 235 Md. 326, 826 , 201 A.2d 498 (1964); Birdsong, 69 Md.App. at 626 , 519 A.2d 219 ; see Citizens Coordinating Comm. on Friendship Heights, Inc. v. TKU Assocs., 276 Md. 705, 712 , 351 A.2d 133 (1976).

Just this year, however, in Montgomery County v. Bradford, 345 Md. 175, 197-98 , 691 A.2d 1281 (1997), the Court of Appeals cautioned, “The phrases ‘essential to protect/ ‘essentiality of interest/ and ‘might be disadvantaged/ used in some of our cases ... do not of themselves constitute the legal standard to be applied.” Rather, a moving party must “establish[] ‘an interest relating to the property or transaction that is the subject of the action/ and further establish that it is ‘so situated that the disposition of the action may, as a practical matter, impair or impede the ability to protect that interest.’ ” Id. at 198 , 691 A.2d 1281 . In Bradford , several plaintiff organizations sued the State Board of Education and some State officials in two different actions. The main thrust of each action was a prayer for a declaratory judgment that the State had violated the Maryland Constitution’s guarantee of a minimum quality education to the “atrisk” students of Baltimore City schools. Montgomery County sought to intervene in each of the suits but was denied each time.

The Court of Appeals ruled that any interest claimed by the County in the litigation against the State over the quality of Baltimore schools was “insufficient to bring its intervention motions within the ambit of Rule 2-214(a)[ ].” Id. at 198 , 691 A.2d 1281 . The County’s concern that a verdict for the plaintiffs would cause an increase in State funding for Baltimore schools and a concomitant decrease in funding for Montgomery County schools was ruled “too remote and indefinite” to justify intervention, in that such a result was “contingent upon the happening of uncertain and speculative events.” Id. A second claimed interest in avoiding the potential impact of a plaintiffs’ verdict upon Montgomery County’s own “at-risk” students was deemed to be “indirect, ⁴²⁹ remote, and speculative,” and a third interest in preventing an eventual overhaul of the current State-local educational financing blueprint was determined to be “based entirely on supposition and speculation.” Id. at 199-200 , 691 A.2d 1281 . The Court of Appeals reached a similar result in Shenk.

There, a shareholder in a savings and loan sought to intervene in receivership proceedings for the sole purpose of keeping herself informed as to any potentially adverse consequences that may arise in the future. The case concerned Rule 208, the precursor to current Rule 2-214. The Court found that the claimed interest was “merely speculative and affords no present basis upon which to become a party to the proceedings.” 235 Md. at 326 , 201 A.2d 498 . In Birdsmg, we rejected appellant insurance company’s argument that it had an interest in the litigation because the claim itself was inconsistent with the appellant’s constant denial that the sole remaining defendant was covered under its policy.

We did, however, make some comments as to the merits of appellant’s argument. Plaintiffs had been rear-ended in their automobile by a commercial truck, and they sued multiple defendants. Appellant insured the owner of the truck and represented him in the litigation, but appellant denied coverage on the grounds that the driver was an agent of an independent contractor hired to refit the truck. The driver failed to file a responsive pleading, and a default judgment was entered against him.

The plaintiffs later moved to dismiss all the other defendants besides the driver, and the motion was granted with consent. Thereafter, the insurer moved to intervene as a defendant out of concern that the plaintiffs would somehow win a judgment against the pro se driver that could later be enforced against it as insurer. We maintained in dicta that the asserted interest was “merely speculative” in that it “was predicated on the possible occurrence of two events: an award of damages against [the driver] and an attempt by the [plaintiffs] to enforce such an award against” the insurer. We felt that this interest would have been insufficient to support intervention as of right, had we reached the issue. ⁴³⁰ Not every case has involved so speculative an interest.

In TKU, commercial property owners brought a suit against Montgomery County, seeking a declaration that a recent zoning alteration had not affected their development rights. Local residents sought to intervene, but their application was denied. The Court of Appeals took notice of the fact that the developers and the residents were already opposing parties in separate statutory appellate proceedings challenging the same zoning alteration. Even though the legal issues in the appeal were different from those of the declaratory judgment action, the Court of Appeals found a strong basis for intervention as of right.

If appellees were to prevail here, the practical effect would be a reversal of the council’s zoning action as applied to their property, and appellants would have lost the very right granted them by statute to contest the final result. The disposition of this case, then, which deals with a transaction in which appellants claim an interest, may as a practical matter impair or impede their ability to protect that interest. 276 Md. at 712 , 351 A.2d 133 . The Court did not make clear whether “that” interest is a zoning interest or a statutory appellate interest, but it is likely to have been intended to be a combination of the two. In Stewart v. Tuli 82 Md.App. 726 , 573 A.2d 109 (1990), this Court reversed the circuit court’s denial of a motion to intervene, relying in part upon the sufficiency of the interest alleged.

Property sellers had nullified a contract of sale pursuant to a contingency clause after becoming dissatisfied with the financial information provided by the potential purchaser. The sellers then entered into a second contract of sale with another party. The first purchaser brought a suit for specific performance and the second purchasers sought to intervene. In such a situation, we found that the second purchasers “undoubtedly” had a sufficient interest in the subject matter.

In the instant case, we can find nothing speculative about the interest asserted by WMATA. As of the time of the ⁴³¹ motion to intervene (and as of this date, as well), all the necessary events had occurred to give WMATA a real interest in the motion to vacate judgment. A final judgment had already been entered against the Estate in a negligence suit. The Estate had already sued WMATA for negligence in a related action, and WMATA had already moved for summary judgment based on the existence of the prior judgment.

As Maryland is a contributory negligence jurisdiction, the summary judgment motion apparently asserted a complete defense. The Estate had already moved to vacate the prior judgment, and the Federal court had yet to rule on the merits of the summary judgment motion, perhaps waiting to see if the motion to vacate would succeed. It is hard to imagine what further preparatory step could be taken to make WMA-TA’s interest more palpable. The resolution of the motion to vacate would determine whether WMATA would have the opportunity to present this complete defense to suit.

The fact that the Federal court may eventually deny the summary judgment motion does not render the interest speculative or moot the issue. Just as in TKU, WMATA had an interest in preventing the foreclosure of its opportunity to protect its legal interests in another forum. 4 Appellant’s argument to the contrary, that WMATA could not possibly have interest in a friendly suit to which it was not a party, is not true to our precedents. 5 We find that WMATA’s interest, therefore, was entirely sufficient, that it related to the subject of the action, ⁴³² and that the disposition of the action may as a practical matter impede WMATA’s ability to protect its interest. Intervention as of right was therefore warranted. Appellants argue on policy grounds that to permit intervention here, where the asserted interest is a mere “possible collateral effect of a suit or judgment,” would create a precedent that would make litigation more cumbersome, more protracted, and less conducive to settlements.

We do not agree. Appellants err in failing to recognize the rarity of the present situation and the resulting narrowness of the present holding. Prior to the entry of a final judgment against the Estate, WMATA could never have claimed a valid interest in the suit. Bradford, Shenk, and Birdsong all indicate that a specific potential resolution of a suit is too speculative an interest to warrant intervention.

Even after entry of final judgment, WMATA’s interest in the litigation would have been entirely speculative until an actual suit was filed against it, as was indicated in Bradford and Birdsong . It is further plain that WMATA’s interest is dependent upon the fact that the asserted theory of recovery (negligence) underlying the prior judgment has a direct legal consequence (contributory negligence) in the second suit. While we need not further narrow the instant holding in order to parry appellant’s argument, we also point out that WMATA’s interest relates to a legal defense that is a complete defense, that a motion for summary judgment on that defense has already been filed, and that the specific issue before the other court is one of first impression. Motion to Vacate