Goodman v. Commercial Credit Corp.

BELL, Chief Judge. The issue this case raises is the propriety of the District Court’s entry of judgment for the defendant when the plaintiff, who gave notice of the intention to obtain a judgment by affidavit and although aware of the trial date, failed to appear for trial. Acting in its appellate capacity, the Circuit Court for Prince George’s County reversed, concluding that the trial court abused its discretion both in the entry of judgment and its refusal to strike the judgment, on the plaintiffs motion. Having granted the defendant’s Petition for Writ of Certiorari, Goodman v. Commercial Credit, 354 Md. 570 , 731 A.2d 969 (1999), we shall reverse the judgment of the Circuit Court.

Commercial Credit, the respondent, filed, in the District Court of Maryland sitting in Prince George’s County, a complaint against Debra Goodman, the petitioner, in which it alleged that the petitioner breached her contract with the respondent and was indebted to it in the amount of more than eight thousand dollars ($8,000), consisting of the purchase price of goods and services, interest and attorney’s fees. ⁴⁸⁷ Demanding judgment on affidavit, the complaint, to which was attached the contract under which the claim was made and an interest worksheet, was supported by affidavit of the respondent’s agent. The summons served on the petitioner set a trial date of September 16, 1998, provided that the petitioner had been served and filed notice of intention to defend before August 5, 1998. The petitioner was served, demanding strict proof of the respondent’s claim, and filed notice of intention to defend prior to that date. The petitioner and her counsel appeared for trial on the trial date, but neither the respondent nor its counsel appeared, whereupon the following occurred: “Clerk: Commercial Credit Corporation versus Debra Goodman, 39273-97. “[Petitioner’s counsel]: Good Morning, Your Honor, Cheryl Goliday on behalf of the Defendant, Debra Goodman. “Court: Anyone present for the Commercial Credit Corporation?

Notice of intention to defend having been timely filed, the Court will grant the judgment in favor of Defendant for failure of prosecution. “[Petitioner’s counsel]: Thank you, Your Honor.” The respondent filed a Motion To Vacate Judgment, and To Reset for Trial the next day, well within thirty (30) days of the entry of judgment. In the motion, it acknowledged that the writ of summons set the trial date, of which it was aware, and that it received notice from the court that the petitioner had filed a notice of intention to defend. The respondent then offered the following as the basis for the relief it sought-vacation of the judgment and the resetting of the trial on the merits in the ordinary course: “3. That this office has a standing scheduling policy with the assignment office to schedule all cases in which the undersigned law firm is counsel of record for Tuesday mornings, and that when an intention to defend is filed, the case is automatically reset by the Court for a Tuesday morning.

That it has been the experience of the undersigned law firm that, without exception, when a defense is ⁴⁸⁸ filed to a case in this Court, the court resets the case for a .later merits trial date, and does not keep the case in for trial on the original date set. “4. That due to the prior experience of the undersigned law firm with the scheduling of cases by the assignment office, this matter was erroneously omitted from counsel’s trial calendar for September 16, 1998, while this office awaited a further notice from the Court as to a new merits trial date. “5. That the defendant has previously indicated in her response to the plaintiffs interrogatories that she does not contend that she is not indebted to the plaintiff in the amount alleged in the complaint.” The petitioner opposed the respondent’s motion, noting specifically the respondent’s admission that it had notice both of the trial date and of the petitioner’s having filed an intention to defend. Citing Maryland Rule 3 — 306(b)(1), she argued,“[p]laintiff filed the complaint by affidavit, and this Court [the District Court] properly rendered a judgment on affidavit in favor of the defendant,” maintaining, as well, that the assignment office’s failure to inform the respondent’s counsel that the trial date had not been changed did not excuse the respondent from having to appear at trial and prove its damages.

The District Court denied the respondent’s motion and the respondent appealed to the Circuit Court. That court reversed, reasoning: “Maryland Rule 3-519 clearly states that ‘a party may move for judgment ... at the close of evidence offered by an opposing party.” 1 In this case, there was no evidence ⁴⁸⁹ presented by the opposing party, Commercial Credit, because Commercial Credit’s representative failed to appear. Therefore, the District Court’s judgment in favor of Defendant was improper. “Instead, the District Court should have dismissed the case without prejudice, for lack of prosecution, in accordance with Maryland Rule 3-507. 2 Had the District Court properly dismissed the case, there would have been good cause to vacate the order and reset the case for trial.” As already indicated, this Court granted certiorari to address this interesting and important issue. Maryland Rule 3-306 addresses judgments on affidavit.

Subsection (a) prescribes the pleading prerequisites: the action must be one for money damages, the demand for judgment on affidavit must be filed at the time of the filing of the complaint, and the complaint must be supported “by an affidavit showing that the plaintiff is entitled to judgment as a matter of law.” 3 The effect of the filing of, or the failure to file, a notice of intention to defend is the subject of subsection ⁴⁹⁰ (b). 4 Subsection (b)(1) requires the plaintiff to appear in court on the trial date prepared for a trial on the merits. It also prescribes what happens when the defendant fails to appear in court on the trial date, “the court may proceed as if the defendant failed to file a timely notice of intention to defend.” When the defendant does not file a notice of intention to defend, subsection (b)(2) excuses the plaintiff from appearing for trial on the trial date, permits the court to determine liability and damages on the basis of the complaint, affidavit, and supporting documents and, if they are sufficient to entitle the plaintiff to judgment, requires the court to grant the demand for judgment on affidavit. See also Maryland Rule 3-307(e), which provides: “(e) Effect of Failure to File Notice. If a defendant fails to file a timely notice of intention to defend pursuant to this Rule, the court, on the date set for trial, may determine liability and assess damages based on ex parte proof by the plaintiff, unless the defendant appears and the court is satisfied that the defendant may have a defense to the claim.

In that event, the court shall proceed with trial or, upon request of the plaintiff, may grant a continuance for a time sufficient to allow the plaintiff to prepare for trial on the merits.” ⁴⁹¹ The rules applicable to the District Court do not expressly address the consequences to a plaintiff seeking judgment on affidavit of failing to appear for trial when the defendant has filed notice of intention to defend, only those applicable to defendants who file notice of intention to defend and then fail to appear for trial. Rule 3-306(b)(1). That there is a consequence may be inferred, however, from the requirement that, in response to the defendant’s notice of intention to defend, the plaintiff must appear on the day of trial ready for trial on the merits. Because not expressly stated and, therefore, there is no hard and fast rule, see In re Don Mc., 344 Md. 194, 201 , 686 A.2d 269, 272 (1996); Colter v. State, 297 Md. 423, 427 , 466 A.2d 1286, 1289 (1983); Saltzgaver v. Saltzgaver, 182 Md. 624, 635 , 35 A.2d 810, 815 (1944), Schneider v. Hawkins, 179 Md. 21, 25 , 16 A.2d 861, 864 (1940); Thodos v. Bland, 75 Md.App. 700, 712 , 542 A.2d 1307, 1313 , cert. denied, 313 Md. 689 , 548 A.2d 128 (1988); Ogburn v. State, 71 Md.App. 496, 509 , 526 A.2d 614, 621 , cert. denied, 311 Md. 145 , 532 A.2d 1372 (1987), determining what that consequence should be, i.e., its nature and extent, is a matter entrusted to the discretion of the trial court.

See also Langnes v. Green, 282 U.S. 531, 544 , 51 S.Ct. 243, 248 , 75 L.Ed. 520, 526 (1931) (“discretion” means the absence of a hard and fast rule). This Court has defined judicial discretion as “that power of decision exercised to the necessary end of awarding justice and based upon reason and law, but for which decision there is no special governing statute or rule.” Saltzgaver v. Saltzgaver, 182 Md. at 624 , 35 A.2d at 810 . Necessarily, when there is no hard and fast rule governing the situation, in arriving at a decision, the trial judge must exercise his or her judicial discretion and the resulting decision is reviewed for the soundness and reasonableness with which the discretion was exercised. In making that evaluation, the reviewing court defers to the trial court.

The necessity for doing so is inherent in the very nature of judicial discretion. “Where the decision or order of the trial court is a matter of discretion it will not be disturbed on review except on a clear showing of ⁴⁹² abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” In re Don Mc., 344 Md. at 201 , 686 A.2d at 272 (quoting State ex rel. Carroll v. Junker, 79 Wash.2d 12 , [26,] 482 P.2d 775, 784 (1971)). See also Coles v. State, 290 Md. 296, 308 , 429 A.2d 1029, 1035 (1981); Mosley v. State, 289 Md. 571, 580 , 425 A.2d 1039, 1044 (1981); Maus v. State, 311 Md. 85, 108 , 532 A.2d 1066, 1077 (1987); Gunning v. State, 347 Md. 332, 354 , 701 A.2d 374, 384 (1997). The trial court was not obliged to grant judgment for the petitioner when the respondent failed to appear on the day of trial; to be sure, it could have, as the respondent and the Circuit Court maintain that it must have done, dismissed the respondent’s action without prejudice.

Nor was the trial court required to deny the respondent’s motion to vacate the judgment and reset the case for trial; it certainly could have granted the motion. Since the trial court granted judgment in favor of the petitioner and denied the respondent’s motion to vacate, the question for this Court is whether, in so ruling, the trial court abused its discretion. This Court has acknowledged that a trial court may, without abusing its discretion grant judgment in favor of a defendant when the plaintiff fails to appear at trial. Zdravkovich v. Bell Atlantic-Tricon Leasing, Corp., 323 Md. 200, 208 , 592 A.2d 498, 502 (1991).

In that case, having been sued in the District Court by Bell Atlantic for breach of contract, Zdravkovich filed his own action for breach of contract and for fraud against American Communication Terminals, Inc. and its president. Id. at 203 , 592 A.2d at 499 . The cases were consolidated for trial on Zdravkovich’s motion. Id. at 201 , 592 A.2d at 499 .

Zdravkovich obtained one continuance and sought a second, but it was denied three days before trial. Id. Although appearing for docket call, Zdravkovich was not present when the case was called for trial, whereupon, at the prompting of the trial court, the defendants in the Zdravkovich action moved for judgment, and the court granted their motion. Id. at 203-04 , 592 A.2d at 500-01 .

Noting that the judgment was ⁴⁹³ not a judgment by default, this Court pointed out “[t]he [trial] court could, however, grant a judgment in favor of the defendants based on plaintiffs failure to prove a prima facie case.” Id. at 208 , 592 A.2d at 502 . It is true that Zdravkovich did not move to vacate the judgment entered against him in his case, a fact on which this Court commented when noting how meager the record on appeal appeared. That is the context in which it said: “The better procedure would have been to file a motion for new trial pursuant to Rule 3-533 and supplement the record with proffers of why he was not in court, how long he was gone, the merits of his case, and why