Conwell Law LLC v. Tung

NAZARIAN, J. This appeal arises from a suit brought in the Circuit Court for Anne Arundel County by a law firm, Conwell Law LLC (the “Firm”), against its former employee, Mary Beth Tung, an associated firm, BIO Intellectual Property Services LLC (“BIO”), and BIO’s employee, Douglas Robinson. 1 The suit arose from the Firm’s representation of Technical Furniture Group, LLC (“Technical Furniture”) in matters before the United States Patent and Trademark Office (the “USPTO”) Patent Trial and Appeal Board (the “Appeal Board”). Ms. Tung, then an employee of the Firm, served as lead counsel in those matters and Mr. Robinson as back-up counsel. 2 The subject matter of the suit ends up not being important for our purposes, though — between failures of service and failure to state a claim, and notwithstanding the volume of paper filed in the case, the suit never got past the initial pleading stage. ⁴⁸⁶ The circuit court dismissed the Firm’s claims against both appellees with prejudice after finding that the Firm’s initial (and later amended) complaint failed to state a claim against the BIO Defendants and that the Firm failed to effect service of process on Ms. Tung. On appeal, the Firm challenges these findings and raises for the first time issues concerning the appearance of impropriety in the circuit court. We find that the Firm failed to preserve its impropriety argument, reject the Firm’s other arguments, and affirm.

I. BACKGROUND The Firm filed its initial complaint against Ms. Tung, Mr. Robinson, and BIO on December 16, 2011. 3 It filed two versions of the complaint — one titled “COMPLAINT (NOW-CONFIDENTIAL)” (the “Non-Confidential Complaint”) and the other titled “COMPLAINT (CONFIDENTIAL)” (the “Confidential Complaint”) — and explained in each version that only the Non-Confidential Complaint, which contained only a brief description of the parties and the claims, would be served on Ms. Tung and BIO. The Firm declined to serve the Confidential Complaint, which it claimed to have filed under seal, because it contained “extensive attorney-client and other extremely confidential information” regarding Technical Fur ⁴⁸⁷ niture. 4 On December 21, 2011, the circuit court issued original process directed to each defendant, which would expire 120 days after issuance (on April 19, 2012). The Firm, however, made no effort to serve the defendants in that time frame or for two months after the 120-day period expired. On May 24, 2012, as a result of the Firm’s failure to effect service, the court issued a Notification of Contemplated Dismissal: Pursuant to Maryland Rule 2-507, this [proceeding] will be “DISMISSED FOR LACK OF JURISDICTION OR PROSECUTION WITHOUT PREJUDICE,” 30 days after service of this notice unless, prior to that time, a written motion showing good cause to defer the entry of an order of dismissal is filed.

On June 18, 2012, the Firm requested that the court reissue summonses, which it did that day. Then, on June 22, the Firm filed a Notice of Service, explaining that each defendant had been served with summons and the Non-Confidential Complaint. That same day, the Firm also filed its Response to Rule 2-507 Notification and Motion to Defer Dismissal, in which it explained that it intentionally delayed the filing of its complaint to protect the interests of its client, Technical Furniture, and that it only filed the complaint when it did “because [filing] was necessitated by the statute of limitations.” It continued that the Firm “was delayed in proceeding [with service] ... for the same reason as the delays in the initial filing, that it was protecting client interests and advocating on their behalf, all on related matters that effected [sic ] and impacted the causes of action in the instant lawsuit.” On this basis, the Firm requested that the court defer dismiss ⁴⁸⁸ al, recognize that the Non-Confidential Complaint had been served, and stay the case. On July 16, 2012, Ms. Tung filed a Motion to Dismiss pursuant to Rule 2-322(a), alleging insufficiency of process and service.

She contended that the Firm, on June 19, 2012, delivered to her an incomplete copy of its complaint (the Non-Confidential Complaint), and that she had yet to be served with a complete copy of the complaint (the Confidential Complaint). She argued that as a party to the litigation, she was “entitled to access under Maryland Rule 16 — 1002(f)” to a full and complete copy of the complaint. The Firm never responded to this motion. On July 24, 2012, the Firm filed a Motion to Stay, asking the court to stay the case until a similar case, involving “joint clients of both [the Firm] and Defendants,” was resolved.

(Emphasis in original.) The Firm contended that the court in the related case “issued an Order sealing all confidential client-related documents,” and that “[fjactual and legal issues, including the amount of damages, are likely to be decided in [the related case], that affect the issues to be resolved in the instant lawsuit.” Ms. Tung’s response to the Firm’s Motion to Stay, filed on July 30, 2012, incorporated her previously-filed Motion to Dismiss, noted that she still had not been served a complete copy of the complaint, and asked the court to rule on her Motion to Dismiss instead of staying the case. The court denied the Motion to Stay on August 6, 2012. On August 20, 2012, Ms. Tung filed an opposition to the Firm’s Motion to Defer Dismissal. She reiterated there much of what she had already argued: first, that the Firm had made no effort to serve the defendants with process for six months after filing its complaint; second, that the Firm only attempted to serve the defendants at all after the court issued the Notice of Contemplated Dismissal; third, that the Firm still had not served a complete copy of the complaint on the defendants; fourth, that the Firm had not demonstrated good cause for its delay; and finally, that she had been prejudiced by the delay. ⁴⁸⁹ On August 28, 2012, the circuit court entered an order denying Ms. Tung’s Motion to Dismiss, but found the Firm’s initial service attempt (of the Non-Confidential Complaint) insufficient.

Instead of dismissing the case, the court gave the Firm another opportunity to serve Ms. Tung: ORDERED, that [the Firm] shall re-serve a copy of the Complaint and all accompanying papers upon [Ms. Tung] and submit a new affidavit of service to the Court within ten (10) days from the date this Order is docketed. If [the Firm] fails to comply with this Order, this action will be dismissed. (Emphasis added.) The BIO Defendants had also moved to dismiss on the same grounds raised by Ms. Tung on August 22, 2012, and on September 5, 2012, the court entered an identical order with respect to them. But despite these orders, the Firm never served Ms. Tung or the BIO Defendants directly.

Instead, on September 6 and 7, the Firm served summons and the Confidential Complaint on counsel for each party. On September 28, 2012, the court entered an order noting the Firm’s failure to comply with its September 5, 2012 Order concerning the BIO Defendants and dismissing the case without prejudice as to them: Upon review of the file, the Court finds that an Order was entered on September 5, 2012, requiring [the Firm] to file a new affidavit of service on [the BIO Defendants]. [The Firm] has failed to comply as directed. Therefore, this 26th day of September, 2012, by the Circuit Court for Anne Arundel County, hereby ORDERED, that [the Firm’s] Complaint is dismissed without prejudice. The court did not mention whether the case was being dismissed with respect to Ms. Tung.

On October 11, 2012, the Firm filed a Motion for Reconsideration requesting that the court revisit its dismissal of claims against the BIO Defendants entered on September 26, 2012. The Firm argued that its service on the BIO Defendants’ counsel was sufficient and that dismissal was inappropriate. ⁴⁹⁰ The Firm reasoned that service on counsel was appropriate because the BIO Defendants “accepted and acknowledged service, and that ... Defendants had responded to the Complaint.” On October 24, 2012, Ms. Tung’s counsel wrote a letter to Judge Davis-Loomis, the County Administrative Judge, asking that the case be specially assigned to a single judge to hear all open motions. On October 31, 2012, before the court specially assigned the case, Ms. Tung filed a Motion to Dismiss for Failure to Comply with Terms of the Court’s August 28, 2012 Order.

The August 28, 2012 Order had directed the Firm to re-serve Ms. Tung with the Confidential Complaint within ten days of entry, but, as we explained, the Firm served counsel for Ms. Tung, not Ms. Tung herself. Ms. Tung argued that the Firm failed to comply with the August 28, 2012 Order because she never agreed to allow her counsel to accept service on her behalf, and that dismissal was appropriate. The circuit court, through Judge Goetzke, entered an order on November 19, 2012, addressing both the Firm’s Motion for Reconsideration of the September 26, 2012 Order (filed on October 11, 2012) and Ms. Tung’s Motion to Dismiss for Failure to Comply with the August 28, 2012 Order. Judge Goetzke explained that the court “determined that, as of the date of this Order, it has no in personam jurisdiction over any defendant in [the] matter” and gave the Firm another chance to effect service: ORDERED, that this case is dismissed without prejudice as to all [defendants]; and it is, ORDERED, that [the Firm] may request one additional summons pursuant to Rule 2-122(a) for each Defendant, provided the request is not made later than 7 days from the date on which this Order is docketed[ 5 ] (“Final Summons”); and it is, ⁴⁹¹ ORDERED, that this dismissal shall be stricken as to any Defendant over whom the court acquires in personam jurisdiction as a result of service pursuant to Rule 2-121 of the Final Summons for that Defendant; and it is, ORDERED, that on request of a Defendant, an order of dismissal with prejudice shall be filed as to any Defendant over whom the court has not acquired in personam jurisdiction as set forth in the preceding paragraph.

(Underlining supplied.) Shortly thereafter, on December 5, 2012, Judge DavisLoomis entered an Assignment Order assigning the case to Judge Caroom. On January 28, 2013, the Firm filed an Affidavit of Service stating that “the Defendants were previously served the Confidential Complaint on September 6th and 7th, 2012,” and providing documentation of subsequent service on counsel between January 22 and 24, 2013. The Firm concluded that “[a]ll counsel have been served.” (Emphasis added.) That same day, Judge Caroom, now specially assigned to the case, held a hearing on the open motions. 6 The parties discussed the November 19, 2012 Order issued by Judge Goetzke that dismissed the case without prejudice and provided the Firm one additional chance to serve the defendants: [COUNSEL FOR MS. TUNG]: ...

I would point out ... that Judge Goetzke’s order from November 21 said that Judge Goetzke had considered the motion for reconsideration and that as of that date the Court determined that, as of November 21, it had no in personam jurisdiction over any defendant after having considered the motion for reconsideration. ⁴⁹² And then went [on to] order [the Firm], with regard to all Defendants, to have summonses reissued within seven days. And then indicated that, upon request of the Defendant, an order for dismissal with prejudice would be filed as to any defendant as to whom service had not been acquired under, as Judge Goetzke termed it, in a defined term, the final summons. THE COURT: And set a deadline of January ... 28, meaning it needed to be done before today? [COUNSEL FOR MS. TUNG]: Right.

Well, they needed to be issued by [November 28] and ... that has not occurred. The same thing occurred with the motion for reconsideration. There were exhibits from [the Firm] saying we mailed them to counsel for Ms. Tung. Mailing to counsel of the summons is not service.

Judge Goetzke ordered that they be served pursuant to Maryland Rule 2-121. And Maryland Rule 2-121 expressly delineates the means of service, as I am sure you are aware, and mailing them to counsel is not service. (Emphasis added.) In response, the Firm argued that its service of the Confidential Complaint and Final Summons shortly before the hearing satisfied Judge Goetzke’s Order: [COUNSEL FOR THE FIRM]:[ 7 ] I served personally last week via certified mail all the Defendants. I have green cards right here with their signatures.

Last week, I did file an affidavit of service with the Court for both cases, Conwell Law and Technical Furniture Group. I have a copy of the Technical Furniture Group case with the date stamped right here. I would also like to point out, first of all, it was the confidential complaint that was served in January to all ⁴⁹³ Defendants. I would also like to mention that this was not— THE COURT: Meaning for which you have the green cards? [COUNSEL FOR THE FIRM]: Yes.

Yes, that is what this is from. THE COURT: Okay, so let me invite you to show — I am not sure if they have seen it any more than I have, the green cards and the return of service that you are preparing to file today. [COUNSEL FOR MS. TUNG]:[ 8 ] Your Honor, I think the misunderstanding here is that these green cards show that — well, read it. I don’t know if it is a misunderstanding or not.

I thought I made all positions clear. The green cards reflect certified mail, me and my partner. THE COURT: Not to the parties individually? [COUNSEL FOR MS. TUNG]: Not to the party.

And mailing or delivery by a process server or by certified mail, the counsel is not serviced. THE COURT: Okay. So let me go back to [Counsel for the Firm]. I thought you just said that it was — that these were green cards signed by each of the Defendants individually. [COUNSEL FOR THE FIRM]: I am sorry.

It was not by the Defendants, by defense counsel, given that— THE COURT: By counsel. [COUNSEL FOR THE FIRM]: — % counsel. That is correct. (Emphasis added.) The parties then discussed whether service upon counsel satisfied Rule 2-121(a): [COUNSEL FOR THE FIRM]: Given that all counsel had entered appearances with regard to each of those cases. It seemed, under the rule, that counsel could be served direct ⁴⁹⁴ ly.

Counsel of record, you know, in the system, and had to represent their clients with regard to these cases. [COUNSEL FOR MS. TUNG]: Well, let me just point out, Your Honor, that only, as Maryland Rule 2-321(a) states, “Only documents other than original pleadings in process can be served on counsel, after counsel has entered an appearance.” And Maryland Rule 2-121 (a) specifically sets forth the three types of in personam service. Delivery to the person to be served, or leaving it at the person’s dwelling, house, or usual place of abode with a person, the resident of a suitable age or discretion, or mailing to the person to be served a copy of the summons, complaint, et cetera, et cetera, by a certified mail return receipt requested. The Firm’s counsel argued in response that service on counsel was appropriate because he had received letters from counsel for the Defendants “[t]hat specifically stated that they would agree to accept [service],” and that counsel had been representing and acting as agents for their clients in this case.

But when asked by the court to produce the letters, counsel could not do so, and Ms. Tung’s counsel pointed out that “there is no correspondence from [them] agreeing to accept service.” At the same time, however, counsel for the BIO Defendants did acknowledge such an agreement: [COUNSEL FOR BIO DEFENDANTS]: We will accept service of the [Firm] complaint, because we prefer to have it decided on the merits. We are just going to move to dismiss, but at the appropriate time. So that is fine. We will accept service and move to dismiss at the appropriate time.

Ms. Tung then asked the court to dismiss the Firm’s claim with prejudice because the Firm failed to comply with Judge Goetzke’s November 19, 2012 Order, which provided that a defendant could request dismissal with prejudice if the Firm failed to complete service upon that defendant. The court agreed to do so: THE COURT: Okay. Obviously [the Firm’s counsel], your position was that Ms. Tung’s counsel agreed to accept ⁴⁹⁵ service also, but since today is the motion hearing, we don’t have the document confirming that. I am inclined to grant their motion to make it as to this timely dismissal with prejudice and to direct the Court to put in the hearing sheet that the [BIO Defendants] ... have agreed to accept service.

The court also noted that it would consider altering the order if the Firm’s counsel produced the letter in which Ms. Tung’s counsel agreed to accept service on her behalf: THE COURT: If [the Firm’s counsel] go back to the office and they find the missing letters in which counsel for Mary Tung say we agree to accept service of the full complaint, then there could be a motion to reconsider on the motion to reconsider, but I am not going to, at this point, hold my breath on that. We will assume that the ruling that I just made is what is going to be going on with this case going forward. On January 30, 2013, Judge Caroom entered an order noting the court’s denial of the Firm’s Motion for Reconsideration and the BIO Defendants’ Motion to Dismiss (reasoning that counsel for each had “agreed to accept service on behalf of the defendants”), and its decision to grant Ms. Tung’s Motion to Dismiss. On February 20, 2013, the BIO Defendants filed a Motion to Dismiss, alleging that the Firm failed to state a claim upon which relief could be granted, or in the alternative, that, as a result of Ms. Tung’s dismissal, the Firm had failed to properly join a necessary party.

That same day, the Firm filed a Motion for Reconsideration of the January 30, 2013 Order, arguing that dismissal of its suit against Ms. Tung was inappropriate. Ms. Tung filed an Opposition to the Firm’s Motion for Reconsideration on March 8, 2013. 9 ⁴⁹⁶ The circuit court held a hearing on these motions on March 18, 2013. During the hearing, the trial judge walked through the timeline of this case, found no justification for the delay in service, presumed prejudice from the delay, and ultimately denied the Firm’s Motion for Reconsideration and dismissed its suit against Ms. Tung with prejudice: [THE COURT]: ... In this case, the [Firm] case, the Court thinks that it is very comparable to the situation in Reed v. Cagan, 128 Md.App. 641 [ 739 A.2d 932 (1999) ], where there was no real explanation for the initial delay [in service], as filed in late 2011.

Summonses are issued. Nothing happens for six months. The Court issues the notice of contemplated dismissal. The Defense moves to dismiss for lack of service.

There are two motions to dismiss, which are considered by the Court in August and September for different Defendants, each giving additional time for service. That additional time for service is not used. There are two dismissals, September 28th, ... November 21st.

Those dismissals were [without] prejudice. But again, potentially with the opportunity to seek to reopen and reserve. So in effect the Court has given many, many warnings in this case that the case could be dismissed, the [Firm] versus Tung, for lack of adequate service. And in terms of whether there is some justification for the delay, the Court really doesn’t find any justification for the delay, because all of the problems were problems basically of Plaintiffs’ own making.

The delay was your own making. The private [versus] public version of the complaint, or confidential or non-confidential version of the complaint, however you want to call it, the issue was of your own making. The, I think, misconstrue [sic] of the communications with counsel as to whether they would accept service or serve themselves and just take notice of what was in the Court’s ⁴⁹⁷ file instead of actually receiving it as required by the rules, was a problem of your oum making. The Court asked if you had written documentation that counsel had agreed to accept some other arrangement and that has not been provided to the Court’s satisfaction.

So I think really there is no justification for the delay. The prejudice is presumed — the Court could infer actual prejudice in terms of all of the legal services that the Defense has had to pay for, just litigating on this one issue, all of Plaintiffs’ making. So the Court is going to deny the motion to reconsider in the Firm [versus] Tung case.... And recognize that that dismissal has become one which is with prejudice after the passage of more than 30 days.

(Emphasis added.) On March 22, 2013, Judge Caroom entered an order denying the Firm’s Motion for Reconsideration, dismissing the Firm’s case against Ms. Tung, and dismissing the Firm’s case against the BIO Defendants for failure to state a claim and based on the dismissal of Ms. Tung, all dismissals with prejudice. The Firm appealed from that order.

II

DISCUSSION The Firm raises the following questions for our review: 1. Whether the Appellees had been served and jurisdiction had been conferred. 2. Whether the trial judge erred in his two orders dismissing the case against all Appellees. 3. Whether the combined actions of two judges gave the appearance of impropriety, partiality, and prejudicial influence.

We affirm the circuit court’s decision to dismiss the Firm’s complaint against both Ms. Tung and the BIO Defendants. The Firm did not effect proper service upon Ms. Tung, and despite multiple opportunities, the Firm failed to cure this jurisdictional defect, so dismissal was proper under both Rules 2-121(a) and 2-507(b). And although the Firm effected ser ⁴⁹⁸ vice upon the BIO Defendants, the court appropriately dismissed its complaint for failure to state a claim because the complaint failed to address a necessary predicate of its legal malpractice claim — the existence of an attorney-client relationship between the Firm and the BIO Defendants. 10 Finally, the Firm failed to preserve the issue of judicial impropriety for review. A. The Circuit Court Properly Dismissed The Firm’s Claims Against Ms. Tung For Insufficient Service Of Process. “ ‘It is fundamental that before a court may impose upon a defendant a personal liability or obligation in favor of the plaintiff or may extinguish a personal right of the defendant it must have first obtained jurisdiction over the person of the defendant.’” Flanagan v. Dep’t of Human Res., 412 Md. 616, 623-24 , 989 A.2d 1139 (2010) (quoting Lohman v. Lohman, 331 Md. 113, 125 , 626 A.2d 384 (1993)).

A court obtains in personam jurisdiction over a defendant when that defendant is “ ‘notified of the proceedings by proper summons.’ ” Id. at 624, 989 A.2d 1139 (quoting Lohman, 331 Md. at 130 , 626 A.2d 384 ). “[T]he court has no jurisdiction over [a defendant] until such service is properly accomplished,” or until service “ ‘is waived by a voluntary appearance by the defendant, either personally or through a duly authorized attorney.’ ” Id. A party’s failure to comply with the Maryland Rules governing service of process “constitutes a jurisdictional defect that prevents a court from exercising personal jurisdiction over the defendant.” Id. (citing Lohman, 331 Md. at 130 , 626 A.2d 384 ). “The ‘abuse of discretion’ standard of review is applicable to the issue of whether an appellate court should ⁴⁹⁹ reverse the Circuit Court’s decision to dismiss an action for ‘lack of jurisdiction.’ ” Hariri v. Dahne, 412 Md. 674, 686 , 990 A.2d 1037 (2010). “ ‘[T]here is an abuse of discretion where no reasonable person would take the view adopted by the [trial court] ... or when the court acts without reference to any guiding principles.’ ” Id. at 687 , 990 A.2d 1037 (internal quotation marks omitted) (quoting Pasteur, Inc. v. Skevofilax, 396 Md. 405, 418 , 914 A.2d 113 (2007)). “In sum, to be reversed ‘[t]he decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’ ” Id. (quoting Pasteur, Inc., 396 Md. at 419 , 914 A.2d 113 ). 1.

The Firm did not effectively serve process on Ms. Tung. The Firm contends that no jurisdictional defect existed, and that dismissal was improper, because Ms. Tung and her counsel had been personally served with summons. The Firm made three attempts to serve Ms. Tung: first, on June 19, 2012, by delivery of the Non-Confidential Complaint to Ms. Tung; second, on September 6 and 7, 2012, by delivery of the Confidential Complaint to Ms. Tung’s counsel; and third, on January 18, 2013, again by delivery of the Confidential Complaint to Ms. Tung’s counsel. But for the circuit court to obtain personal jurisdiction over Ms. Tung, the Firm was required to effect service of process in accordance with Rule 2-121(a).

See Lohman, 331 Md. at 130 , 626 A.2d 384 : Service of process may be made ... (1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving a copy of the summons, complaint, and all other papers filed with it at the individual’s dwelling house or usual place of abode with a resident of suitable age and discretion; or (3) by mailing to the person to be served a copy of the summon, complaint, and all other papers filed with it by certified mail requesting: “Restricted Delivery — show to whom, date, address of delivery.” ⁵⁰⁰ Md. Rule 2-121(a). None of the Firm’s attempts to serve Ms. Tung complied with this rule. The Firm’s first attempt to serve Ms. Tung — delivery of the summons and Non-Confidential Complaint to her — did not amount to effective service.

Effective service under Rule 2-121(a) requires delivery of “a copy of the summons, complaint, and all other papers filed with it.” Md. Rule 2-121(a) (emphasis added). Delivery of the Non-Confidential Complaint did not satisfy this rule because that version of the complaint was not the complete version of the complaint filed with the court. Service of the complaint filed with the court is necessary because “ ‘[t]he purpose of service of process is to give the defendant fair notice of the action against him and the resulting fair opportunity to be heard.’ ” Mooring v. Kaufman, 297 Md. 342, 350 , 466 A.2d 872 (1983) (quoting 1964 Md. Laws, Chap. 95); see also West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1529 (9th Cir.1990) (“[Sjervice of an incomplete draft complaint which was seven pages shorter than the complaint filed cannot be deemed to constitute compliance with [Fed.R.Civ.P. 4(m) 11 ] because that Rule requires service of the filed complaint.”). The Non-Confidential Complaint, although also filed with the court, contained only “a description of the parties and the claims for notice purposes,” and could not provide Ms. Tung with fair notice of the action against her.

Only the Confidential Complaint could provide such notice. The Firm’s second and third attempts to serve Ms. Tung— delivery of the summons and Confidential Complaint to her counsel — also did not amount to effective service. Although a plaintiff, in certain circumstances, can serve an individual by service upon an agent, that agent must be “authorized by ⁵⁰¹ appointment or by law to receive service of process for that individual,” Md. Rule 2-124(b) (emphasis added), and no such authorization existed here. Although, at the January 28, 2013 hearing, the Firm claimed to have received a letter from Ms. Tung’s counsel agreeing to accept service on her behalf, the Firm could not produce evidence of Ms. Tung’s authorization when the court asked for it: THE COURT: Let me ask you to go — and if you are saying that there is correspondence from counsel by which they agree to accept service, go ahead and pull that out and we can make that an exhibit for today.

Show it to opposing counsel and see if they agree or have anything else that the Court should consider. (Pause.) [COUNSEL FOR THE FIRM]: Your Honor, obviously we have a lot of paperwork to go through. [COUNSEL FOR THE FIRM]: It appears we don’t have the letter with us in Court right now, Your Honor. However, we would be happy to go back to our office with the more complete record and provide that to you. [COUNSEL FOR MS. TUNG]: On behalf of my firm, Your Honor.

This represents Ms. Tung. You know, there is no correspondence from us agreeing to accept service. And without authorization from Ms. Tung that her counsel could be served on her behalf, the Firm’s attempts to serve her counsel were ineffective. The Firm also argues that service of the Confidential Complaint on Ms. Tung’s counsel was proper because counsel had entered a general appearance.

This argument flows from an incorrect legal premise. An attorney’s appearance on behalf of a client affects only filing of pleadings other than original pleadings. Service of an original pleading, “the first pleading filed in an action against a defendant,” Md. Rule l-202(s), is governed by Rule 2-121(a), the rule applicable to service of process. See Francz v. Francz, 157 Md.App. 676, 688 , 853 A.2d 839 (2004).

Service of pleadings and papers other than original pleadings, on the other hand, is governed by Rule 1- ⁵⁰² 321, which does, in fact, permit service upon an attorney who has entered an appearance. See Rule l-321(a). Here, the Firm argues that its service of the Confidential Complaint, its original pleading, was properly made on counsel because counsel had entered an appearance. But, as we explained, the rules governing service of process (applicable to service of original pleadings, see Francz, 157 Md.App. at 688 , 853 A.2d 839 ) do not permit service of an individual by service upon counsel without prior authorization.

See Md. Rule 2-124(b). So even if Ms. Tung’s counsel had entered an appearance, and we make no findings in that regard, the Firm still needed to serve the Confidential Complaint on Ms. Tung herself. The Firm’s failure to effect service on Ms. Tung left the circuit court without personal jurisdiction over her. The only other possible avenue through which the court could obtain personal jurisdiction was through a waiver of service and consent by Ms. Tung.

See Flanagan, 412 Md. at 624 , 989 A.2d 1139 (“[Tjhere can be no judgment nor decree in personam unless the defendant has been notified of the proceedings by proper summons, for the court has no jurisdiction over him until such service is properly accomplished, or is waived by a voluntary appearance by the defendant, either personally or through a duly authorized attorney.” (quoting Lohman, 331 Md. at 130 , 626 A.2d 384 )). As we explain next, no such waiver or consent occurred. 2. Ms. Tung did not consent to jurisdiction or waive her right to service of process. The Firm argues next that “[j]urisdiction is conferred [and objections to service issues are waived] when a party makes a voluntary appearance,” and that Ms. Tung entered a voluntary appearance through two avenues: first, by failing to comply with Rule 2-322(a), which, according to the Firm, “requires that no motion or pleading ... be filed before any motion to dismiss is filed”; and second, by filing “a pleading addressing in any way any subject other than jurisdiction.” The Firm’s arguments are premised upon both an incorrect timeline of this case and a misunderstanding of the law. ⁵⁰³ Assuming for the moment that the Firm was correct (which, as detailed below, is not the case), the Firm would have to establish that Ms. Tung filed a pleading or motion 12 before she filed her Rule 2-322(a) Motion to Dismiss.

In support of this argument, the Firm contends that “the first pleading filed by [Ms.] Tung was an Opposition to Motion to Defer Dismissal. Thus, as of August [20], 2012 when that motion was filed and served, [Ms.] Tung had waived Rule 2-322(a) defenses and had voluntarily consented to the jurisdiction of the court.” The docket tells a different story: Ms. Tung filed her Motion to Dismiss, raising Rule 2-322(a) defenses, on July 16, 2012, more than a month before she filed her Opposition to the Firm’s Motion to Defer Dismissal on August 20, 2012. 13 So on this basis alone, the Firm’s argument that Ms. Tung consented to jurisdiction by failing to raise Rule 2-322(a) defenses in a motion to dismiss filed before any other pleading or motion fails. But we don’t even get to that hypothetical because the Firm is wrong about the law. The Firm argues that a defendant waives Rule 2-322(a) defenses by filing any motion, or pleading before a motion to dismiss raising those defenses.

The Firm is incorrect. Instead, a party waives the defenses listed in Rule 2-322(a) only when that party files an answer before raising those defenses. See Md. Rule 2-322(a) (“The following defenses shall be made by motion to dismiss filed before the answer ...: (1) lack of jurisdiction over the person, ... (3) insufficiency of process, and (4) insufficiency of service of process.

If not so made and the answer is filed, these defenses are waived.” (Emphasis added.)). 14 ⁵⁰⁴ We recognized this principle in Smith v. Cylus, 147 Md.App. 78 , 807 A.2d 777 (2002), and rejected the same argument the Firm raises now. In Smith , the appellant argued that the appellee had “waived the defense of improper venue when [the appellee] served [appellant] with a request for admissions” because “[p]ursuant to Rule 2-322, the issue of venue is a mandatory defense which must be plead before any initial filing by the defendant” Id. at 80, 807 A.2d 777 (emphasis added) (internal quotation marks omitted). We rejected this argument because only an answer waives the mandatory defenses listed in Rule 2-322(a): While appellant is correct that Rule 2-322 governs mandatory defenses, she misunderstands the rule. Rule 2-322(a) reads: “The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the person, (2) improper venue[, (3) insufficiency of process, and (4) insufficiency of service of process].” (Emphasis added.) In the case sub judice, appellee never filed an answer.

Therefore, she has not waived the defense of improper venue. Id. at 81 , 807 A.2d 777 (emphasis added). 15 So even if Ms. Tung had filed her Motion to Dismiss after the Opposition Motion, which she didn’t, she still would not have waived her ⁵⁰⁵ right to