Hi Caliber Auto & Towing, Inc. v. Rockwood Casualty Insurance

MARVIN H. SMITH, Judge, Retired, Specially Assigned. Appellant, Hi Caliber Auto and Towing, Inc. (“Hi Caliber”), filed an action in the Circuit Court for Howard County against appellee, Rockwood Casualty Insurance Company (“Rock-wood”), claiming, inter alia, breach of contract. The case was transferred to the Circuit Court for Baltimore County. Rock-wood then moved to dismiss the case.

The circuit court (Daniels, J.) granted the motion to dismiss with leave to file an amended complaint within 30 days. Hi Caliber filed an amended complaint on October 25, 2000. Thereafter, Rock-wood filed a motion to dismiss the amended complaint, which the court denied. ⁵⁰⁶ On May 1, 2001, Rockwood filed a motion for reconsideration and a request for a hearing. On May 23, 2001, the circuit court (Turnbull, J.) granted the motion for reconsideration and granted the motion to dismiss the amended complaint.

The docket entries reflect that no answer was filed with respect to either the motion to reconsider or the motion to dismiss. On June 4, 2001, Hi Caliber filed a “motion to reconsider” the court’s May 23, 2001 ruling. In that motion, Hi Caliber argued that its counsel “mistakenly believed he was not required to submit an answer to a motion to dismiss for thirty days, plus a three day automatic extension for service by mailing[.]” In support of its motion, Hi Caliber relied upon Md. Rule l-204(a), which provides, in relevant part: (a) Generally. When these rules or an order of court require or allow an act to be done at or within a specified time, the court, on motion of any party and for cause shown, may ...

(3) on motion filed after the expiration of the specified period, permit the act to be done if the failure to act was the result of excusable neglect. Hi Caliber argued that although its counsel failed to file a timely response to Rockwood’s motion to dismiss and motion to reconsider, that omission was not the result of dilatory behavior, but rather was an honest misunderstanding of the Maryland Rules. Counsel for Hi Caliber claimed that although Md. Rule 2-311 1 requires a response to be filed within fifteen (15) days, one of the annotations to that rule referenced a case, Thomas v. Ramsburg, 99 Md.App. 395 , 637 A.2d 863 (1994), which he believed provided that a response to a motion ⁵⁰⁷ to dismiss may be filed within thirty (30) days. 2 According to counsel, it was only after Hi Caliber’s case had been dismissed that he realized the Thomas case was inapplicable to this particular case. Rockwood filed an opposition to Hi Caliber’s motion to reconsider and requested a hearing.

The docket entries reflect that the motion to reconsider was denied. This appeal followed. ISSUE PRESENTED The sole issue presented for our consideration is whether the trial court erred in denying Hi Caliber’s motion to reconsider the circuit court’s May 23, 2001 ruling. Hi Caliber claims that its failure to file timely an answer to the motion to dismiss and to the later motion to reconsider was the result of excusable neglect on the pail; of its attorney because of the misleading annotation of the Thomas case.

We disagree. Assuming that excusable neglect is a defense to the failure to file a response to the motion to dismiss and to the later motion to reconsider, an issue which we need not resolve here, it is clear that the court did not abuse its discretion in denying the motion to reconsider. Accordingly, we shall affirm. DISCUSSION The circuit court did not abuse its discretion in denying Hi Caliber’s motion to reconsider for two reasons.

First, there was no evidence presented below, in the form of affidavit, testimony or otherwise, to support Hi Caliber’s claim of excusable neglect on the part of its