J.T. Masonry Co. v. Oxford Construction Services, Inc.

ROBERT M. BELL, Judge. This is an appeal by J.T. Masonry Company, Inc., appellant, from the judgment of the Circuit Court for Baltimore City denying its Motion to Strike Judgment and Further Reinstate Case to Trial Docket. Although appellant submits three questions for our consideration, we believe they may be condensed into one, namely: ⁶⁰¹ Did the trial judge abuse his discretion in refusing to exercise revisory power over an enrolled judgment, which dismissed appellant’s action against appellee for lack of prosecution? 1 Because we will hold that the trial judge did not abuse his discretion, we will affirm. THE FACTS Pursuant to a contract, dated August 17, 1982, with appellee, Oxford Construction Services, Inc., appellant agreed to perform masonry work on a project being constructed by appellee in Baltimore City.

After appellant had performed pursuant to the contract, a dispute arose concerning the payments due under the contract and the quality of the work being performed by appellant. As a result of this dispute, appellant filed a breach of contract action against appellee, and appellee filed a counter-claim, which also sounded in breach of contract, against appellant. Suit was filed on August 3, 1984. From the filing of the action to June 10, 1985, appellant pursued its action against appellee by conducting discovery.

Appellee, on the other hand, made no effort to pursue its counter-claim. From June 10, 1985 through October 28, 1986, there was no docket activity in the case. On the latter date, the clerk of the Circuit Court for Baltimore City sent the parties a notice, pursuant to Maryland Rule 2-507(d), of impending dismissal of the case for lack of prosecution. Neither party moved to defer dismissal as permitted by Rule 2-507(e).

Consequently, an order dismissing the case ⁶⁰² was signed on December 1, 1986. The judgment therefore became enrolled thirty days later, i.e., on or about January 1, 1987. See Maryland Rule 2—535(b); Ventresca v. Weaver Brothers, 266 Md. 398, 403 , 292 A.2d 656 (1972); Gay Investment Co. v. Angster, 231 Md. 318, 321 , 190 A.2d 95 (1963); Kramer v. McCormick, 59 Md.App. 193, 204 , 474 A.2d 1346 (1984). Appellant learned that its action had been dismissed when the new counsel it had retained attempted to enter his appearance in the case.

This occurred on February 25, 1987. Approximately one and a half months later, on April 15, 1987, appellant filed the motion to strike the judgment. That motion, which was supported by the affidavit of Michael Rinn, counsel of record when the case was dismissed, alleged that Rinn had not received the notice of impending dismissal. 2 At the hearing held on the motion, Rinn was called as a witness for appellant and testified in favor of the motion. He endeavored to establish that non-docket activity occurred in the case after June, 1985 and to explain the absence of docket entries.

He testified that the time between the last docket entries and the fall or winter of 1985 was consumed by scheduling the production by appellee of the documents sought by appellant’s Request for Production of Documents and by discussions between appellant and himself aimed at settling the case. Thereafter, in early to middle 1986, problems arose between Rinn and appellant and between Baker & Baker, a law firm with which Rinn was formerly associated, and appellant, over fees allegedly due and payable by appellant. Eventually both Rinn and Baker & Baker, in separate actions, sued appellant for recovery of the disputed fees. Rinn thus became a poten ⁶⁰³ tial adverse witness against appellant and, as a result, stopped all further work on the case.

Rinn also testified that he did not receive the notice of impending dismissal of the case. By way of explanation, he apprised the court of the history of the case. It was filed when Rinn was with the firm of Saiontz & Kirk. He severed that relationship, effective March 1, 1986.

Prior to doing so, however, he contacted the clerk’s office regarding the procedure for changing his address in the 150-200 cases, in which he was counsel of record, then pending before the Circuit Court for Baltimore City. He was advised by the clerk’s office that one letter, containing the address change desired, would suffice, for purposes of computer generated notices, to change his address in all open files in which he was counsel of record. Relying on that advice, in February, 1986, Rinn forwarded a letter stating his new address, as of March 1, 1986, to the clerk’s office; he did not forward separate change of address forms for each of his open cases. Rinn stated that he also notified the post office of his change of address.

Furthermore, Rinn reported “arrangements were made on a daily, bi-weekly basis, to come down to Saiontz & Kirk to pick up any mail that had not been forwarded during that time”. Despite the foregoing, Rinn testified that he absolutely did not receive the notice of impending dismissal; it was neither forwarded by the post office to his new address nor picked up at his former law office. On the other hand, Rinn acknowledged that notices concerning other cases in which he was involved were received at the new address. Although he did not actively represent appellant after he filed suit against it, Rinn did not strike his appearance in the case; he remained counsel of record up to and through the time the case was dismissed.

He offered an explanation. He said that just prior to filing suit, he advised appellant that he would no longer do legal work for it and that it should retain new counsel. In September, 1986, he met with appellant and present counsel to discuss the status of appellant’s representation, after which he turned his files ⁶⁰⁴ involving appellant, including the file in this case, over to present counsel for their review. 3 Rinn assumed that present counsel would enter an appearance in the ordinary course, and, simultaneously, Rinn’s appearance would be stricken. He noted, however, that had he received the notice, he would have filed a motion to defer dismissal on several grounds, namely: (1) that the lack of activity in the case was not intentional; (2) that appellant did not have sufficient monies to fund discovery; and (3) that the delay in the case was occasioned by the adversarial relationship between appellant and himself. 4 Michele Jacobson of the clerk’s office confirmed that, consistent with its usual practice and procedure, the clerk’s office required only one change of address letter to be submitted by counsel to ensure that computer generated notices pertaining to any open case in which counsel was involved would be sent to counsel at counsel’s new address.

She noted, however, that such a letter would not ensure that a change of address form would actually be placed in each open file. She also confirmed that, as of December 31, 1986, the computer contained Rinn’s new address, although she was unable to tell when it was received and/or placed in the computer. The notice mailed to Rinn was handwritten, as opposed to computer generated. This indicated, Jacobson said, that, in all probability, the computer was down when the notice was prepared.

In such cases, the usual procedure is to send the notice to the address contained on the last pleading in the file. Thus, Jacobson testified that, in the ordinary course of events, the notice of impending dismissal was sent to Rinn at 222 St. Paul Place. ⁶⁰⁵ The trial judge denied appellant’s motion. In so doing, he made findings of fact as follows: (1) that the last pleading filed in the case prior to the issuance of the notice of dismissal listed Rinn’s address as 222 St. Paul Place; (2) that Rinn advised the clerk’s office, in February or March of 1986, of his change of address; (3) that Rinn was told by the clerk that for purposes of computer generated notices, it was only necessary that he submit one change of address letter; (4) that the notice in this case was not computer generated, but was done manually, using the last address for the attorney in the file; 5 (5) that notice was sent to 222 St. Paul Place; (6) that Rinn went to 222 St. Paul Place to check his mail, either on a weekly or bi-weekly basis, which was sufficient to allow for receipt of, and timely responses to, the notice; and (7) “that the irregularity referred to in [Maryland Rule 2-535(b)] is not the kind of irregulatory which occurred in this case.” The court concluded: If any irregularity occurred in this case, it was sending the notice to the wrong address. But what difference did it make because the lawyer, [Rinn] testified that he went to both addresses.

So, he would have picked it up. If it went to 222 Saint Paul, he would have received it if it went to 90 Blondell Court. So, no matter where the notice went, the attorney would have received it. Therefore, it would hardly be the kind of irregularity referred to in 2-535____ Alternatively, the court determined that, even if there were irregularity of the kind referred to in Rule 2-535(b), appellant did not act with “due diligence”.

In support of that conclusion, the court observed that Rinn’s explanation for the inactivity in the case from June 10, 1985 through October 28, 1986 “lacked any substance at all.” With ⁶⁰⁶ specific reference to the time period immediately following the last docket entry, the court found that there had been “no effort at all stated to obtain those documents in accordance with discovery, no motion for sanctions, no motion to compel discovery, nothing.” Nor was the court impressed by the potential conflict of interest situation in which Rinn found himself vis-a-vis appellant. The judge observed that, although in July, 1986, Rinn advised appellant that he would no longer represent appellant, he made no effort to strike his appearance. Moreover, the court emphasized that appellant did not follow through on Rinn’s recommendation and obtain counsel and, as a consequence, nothing happened in the case. In addition to taking notice of the fact that inactivity persisted after the September, 1986 meeting and the delivery of the case file to present counsel, the court commented upon Rinn’s and present counsel’s failure to act prior to February 25, 1987, even though both knew about the effect of Maryland Rule 2-507.

Finally, the court mentioned that the motion to strike was not filed until April 20, 1987, almost two months after appellant learned the case had been dismissed. DISCUSSION Maryland Rule 2-535 provides, in pertinent part: (a) Generally.—On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534. (b) Fraud, Mistake, Irregularity.—On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake or irregularity. “Irregularity”, as used in Rule 2-535(b), has been defined as “doing or not doing ... that, in the conduct of a suit at law, which, conformable with the practice of the court, ought or ought not to be. done.” Calvert Fire Ins. Co. v. Reick, 39 Md.App. 620, 625-26 , 387 A.2d 789 (1978), quoting ⁶⁰⁷ Mut.

Benefit Soc’y v. Haywood, 257 Md. 538, 541 , 263 A.2d 868 (1970) and Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475, 479 , 240 A.2d 239 (1968). 6 “[A] defect in process or proceeding”, Hamilos v. Hamilos, 52 Md.App. 488, 498 , 450 A.2d 1316 (1982), aff'd, 297 Md. 99 , 465 A.2d 445 (1983), and a dismissal without notice, Mut. Benefit Soc’y, 257 Md. at 541 , 263 A.2d 868 , are examples an irregularity. Irregularity also encompasses the “failure of an employee of the court or of the clerk’s office to perform a duty required by statute or a Rule.” See Maryland Cts. and Jud.Proc.Code Ann. § 6-408, which provides: For a period of 30 days after the entry of a judgment, or thereafter pursuant to a motion filed within that period, the court has revisory power and control over the judgment. After the expiration of that period the court has revisory power and control over the judgment only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rule.

See also Maryland Lumber v. Savoy Constr. Co., 286 Md. 98, 101-02 , 405 A.2d 741 (1979) and Committee note to Rule 2-535 (“This section is