Kagle v. Allegheny Transfer & Storage Co.

FISCHER, Judge. Leroy E. Kagle, appellant, an attorney at law acting pro se, appeals from a decision of the Circuit Court for Baltimore City (Byrnes, J.) that dismissed three of four counts of appellant’s complaint and “remanded” the remaining count to the district court for trial. The case stemmed from Kagle’s hiring of Allegheny Transfer and Storage Company, Inc., appellee, to facilitate Kagle’s change of residence. ⁶⁸⁰ Kagle alleged various acts of wrongdoing on the part of Transfer during the move. In this appeal, appellant raises three issues which we have slightly rephrased as follows: 1.

Did the trial court justifiably and properly ignore Md.Rule 2-311(b) when it acted prematurely to deny the plaintiff an opportunity to move for a hearing or to otherwise respond to defendant’s motion? 2. Did the trial court act properly in sua sponte dismissing counts sounding in conversion and breach of contract without giving the plaintiff notice and an opportunity to be heard? 3. Did the trial court act properly in dismissing with prejudice counts sounding in conversion, breach of contract, and negligent hiring/retention on the basis of the pleadings alone? [Emphasis in original.] Appellee, in turn, avers that this appeal was either filed belatedly or prematurely. Since it is clear to us that this appeal is untimely, we need not reach appellant’s contentions.

The record shows that on April 4,1991, Judge Byrnes sua sponte “remanded” 1 count II of appellant’s amended complaint (alleging trespass to chattels) to the District Court of Maryland for Baltimore City. In addition, Judge Byrnes dismissed, with prejudice, the remaining counts set forth in appellant’s amended complaint. Due to the movement of the case between the two courts and the resulting failure to make proper docket entries, it is impossible to know precisely when some of the actions in this case were taken. From the information available, however, we are able to conclude that this appeal is belated.

The docket entries reflect the April 4, 1991 dismissals noted above and the “remanding” of count II to the ⁶⁸¹ district court. The next entry reads, “4/16/91 original papers & docket entries returned to the D.C.” The following entry states, “7/24/91 Motion for Reconsideration Denied, Byrnes, J.” From this, the obvious question arises, when was the motion for reconsideration filed? The docket entries are of no assistance in answering this question, but the original motion itself contains a district court date stamp of April 26, 1991. The motion to reconsider is, therefore, a Md.Rule 2-535 motion (filed beyond ten days of the entry of judgment) and does not stay the time for appeal.

It follows that, for an appeal to have been timely, it must have been filed within thirty days of April 4, 1991. The docket entries, however, reflect that this