Pickett v. Sears, Roebuck & Co.

BATTAGLIA, Judge. Appellant, Allan Pickett, (hereinafter “Pickett”), comes before this Court to challenge the constitutionality of substituted service under Maryland Rule 3-121 (c) used in a debt collection action brought by appellee, Sears, Roebuck & Company (hereinafter “Sears”). Pickett argues that Sears’s service of process, pursuant to an order of the District Court of Maryland, sitting in Carroll County, failed to comport with the requirements of due process under the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. In the event of an affirmance, Pickett also requests that this case be remanded to the Circuit Court for Howard County for consideration of whether the amount in controversy, as set forth in Md.Code Courts & Judicial Proceedings Article (1974, 1998 RepLVol.) § 4-402(e), is sufficient to sustain his demand for a jury trial filed pursuant to Maryland Rule 3-325.

We granted certiorari to determine the applicability of the substitute service of process provisions of Maryland Rule 3-121 (c) to the facts of this case, and the process by which district and circuit courts should explore the validity of a jury trial demand under Maryland Rule 3-325. ⁷² I. Facts On July 25, 1995, appellee, Sears, Roebuck & Company, (hereinafter “Sears”) filed a debt collection action against appellant, Allan Pickett, in the District Court of Maryland, sitting in Carroll County (hereinafter “Sears action”). The Sears action alleged that Pickett had violated the terms of his consumer credit card agreement with Sears by failing to pay the balance due on his installment account. Pickett had failed to respond to a number of demand letters sent by Sears when it attempted to collect on the account. Sears filed suit against Pickett for $3,234.52 plus interest and attorneys fees.

The District Court issued a summons to be served on Pickett, which Sears sent to Pickett by certified mail, return receipt requested, to his post office box address. The summons was returned unclaimed and a “non-est” return was docketed with the District Court on November 16, 1995. On July 25, 1996, another summons was issued with service to be completed by August 24, 1996. Sears hired a private process server, Gwin B. Wilt, to effect personal service on Pickett.

Wilt attempted personal service of Pickett at his home address at 170 Baughmans Lane in Frederick, Maryland on three occasions: August 13, 1996, at 6:25 pm; August 18, 1996, at 11:15 am; and August 24, 1996, at 10:30 am. To confirm the correct address, Wilt spoke with Constable Stan Michaeleski, who was also attempting service in an unrelated matter. Michaeleski confirmed that 170 Baughmans Lane was a valid address for Pickett; Michaeleski had made more than thirty unsuccessful attempts to serve Pickett in an unrelated matter. Wilt attempted service in the Sears action again on October 8,1996, at 5:30 pm, at which time she posted a message on the door regarding the District Court summons.

On October 16, 1996, at 5:20 pm, Wilt attempted service for the fifth time, wherein she noted that the message that she had posted on October 8th had been removed. Wilt then posted a second message on the door for Pickett. ⁷³ Based on the difficulties in obtaining personal service on Pickett, Sears filed a Motion for Service of Process Pursuant to Rule 3-121(c). On December 5, 1996, the District Court granted the motion allowing for substituted service under Rule 3-121(c). The Order specifically stated that service on Pickett was to be made, “by posting a copy of the summons and complaint as near to the Defendant’s residence as is practicable and through mailing by the Clerk of the Court a copy of the summons and complaint by way of first class mail, postage prepaid to the Defendant’s [Pickett’s] last known residence.... ” The District Court re-issued a writ of summons for Pickett on March 28, 1997.

Sears employed a private process server, James C. White, who sent a copy of the summons and complaint to Pickett by first-class mail on March 31, 1997, and posted the summons and complaint at Pickett’s residence on April 3,1997. On May 16, 1997, Pickett filed a Motion to Quash Service of Process, stating that Sears had failed to acquire in personam jurisdiction over him. Pickett alleged that Sears violated Rule 3-126(e) 1 by failing to make a timely return of process including a copy of the process served. The motion also alleged that references in Wilt’s affidavit of due diligence submitted to the court as part of Sears’s application for an order granting authorization of substituted service contained hearsay statements of Constable Michaeleski, which could not be used to form the basis for granting an order for substituted service under Rule 3-121(c).

On July 14, 1997, a hearing was held on Pickett’s motion to quash. Pickett argued that there was insufficient evidence to show that he had been avoiding service making personal service or service by certified mail impossible or impracticable, when the constable’s hearsay statements were excluded. Pickett never asserted that he had not received a copy of the summons and complaint. ⁷⁴ At the hearing, Sears tendered the return of service and copy of the process served to the court. In denying Pickett’s motion to quash, the court found that the summons and complaint posted at Pickett’s residence on April 3, 1997, and the package containing the same documents sent by first class mail on March 31, 1997, qualified as valid service of process pursuant to Rule 3-121 (c) to establish in personam jurisdiction.

At the end of the July 14, 1997 hearing, Sears agreed to let Pickett have fifteen days within which to file a notice of intention to defend and a request to transfer venue. On July 29, 1997, Pickett filed a Motion for Reconsideration of his motion to quash. The court denied this motion on July 30, 1997. On August 21, 1997, Pickett filed a notice of intention to defend and a request for a jury trial, thirty-eight days after the trial court’s denial of Pickett’s motion to quash and twenty-three days after the last day of the extension.

On August 26, 1997, Sears filed a motion to strike Pickett’s request for a jury trial asserting that Pickett had not made a timely request and that the amount in controversy did not meet the jurisdictional requirements for a jury trial. The trial court struck Pickett’s demand for a jury trial stating that the amount in controversy did not exceed $5,000. Following the trial court’s denial of his motion to quash service of process and the striking of his jury demand, Pickett filed a separate action in the form of a Petition for Writ of Certiorari in the Circuit Court for Carroll County, Allan M. Pickett v. Sears, Roebuck & Co. et al., Case No. C-97-25675, against Sears and the District Court of Maryland, sitting in Carroll County (hereinafter “Pickett action”). 2 In the Pickett action, Pickett challenged the jurisdiction of the District Court to authorize service of process under Rule 3-121(c), alleging that such service amounted to an unconstitutional violation of ⁷⁵ his due process rights. On January 19, 1999, the Circuit Court for Carroll County denied Pickett’s petition, reasoning that the District Court had jurisdiction under Maryland Rule 3-121 (c) to order the substituted service in this case, and that Pickett had failed to demonstrate any constitutional violation abrogating such jurisdictional authority.

On February 2, 1999, the court entered the order denying the Petition for Writ of Certiorari in the Pickett action. Pickett did not appeal this judgment. 3 On May 28,1999, upon Sears’s motion, the Sears action was transferred from the District Court sitting in Carroll County to the District Court sitting in Howard County and was set for trial. A trial was held on September 27,1999. Pickett did not testily at trial, nor did he offer any evidence to refute the records regarding his account as offered into evidence by Sears.

The court granted a judgment on the papers for Sears in the amount of $3234.52, plus prejudgment interest of ⁷⁶ $2931.01, attorney’s fees of $485.18, and costs of $73.00. Thereafter, Pickett filed a motion to vacate the judgment, which the trial court denied on October 28,1999. On November 29, 1999, Pickett appealed the trial court’s decision to the Circuit Court for Howard County, which affirmed the decision in favor of Sears. 4 The Circuit Court found that the facts demonstrated a good faith effort by Sears to serve Pickett prior to obtaining the order authorizing substituted service under Rule 3-121(c). The court also reasoned that the validity of service of process would not be affected by Sears’s failure to make prompt proof of service pursuant to Maryland Rule 3-126(g). 5 The Circuit Court also found that Pickett failed to file a timely jury trial demand even considering the fifteen day extension period.

The Circuit Court agreed -with Pickett that the District Court did not have jurisdiction to strike the jury demand on the basis of an insufficient amount in controversy, but it found that the jury demand was untimely and would have been stricken by the District Court on that basis. Pickett now seeks relief before this Court, pursuant to Maryland Rule 8-302(b), and Code, Cts. & Jud.Proc. § 12-305, and presents the following questions for our consideration: 1. Did the District Court err as a matter of law by ruling that substituted service of process as ordered and effectuated in this case conferred in personam jurisdiction upon the court? 2. Did the District Court err as a matter of law in striking Pickett’s demand for a jury trial on the basis that the amount in controversy was below the monetary minimum required for a litigant’s exercise of that right? ⁷⁷ We review these questions of jurisdiction pursuant to Rule 8-131(a).

Because an interpretation of the Maryland Rules is appropriately classified as a question of law, we review the issue de novo to determine if the trial court was legally correct in its rulings on these matters. See Calomiris v. Woods, 353 Md. 425, 434 , 727 A.2d 358, 362 (1999).

II

Substituted Service of Process Pickett argues that the service of process employed in this case pursuant to court order under Maryland Rule 3-121(c) violated the due process rights afforded him by the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Pickett sets forth several arguments, which we consider in turn, to support his claim that the substituted service ordered by the District Court and executed by a private process server failed to confer in personam jurisdiction on the court. The Fourteenth Amendment of the United States Constitution prohibits States from depriving “any person of life, liberty, or property, without due process of law.” Similarly, Article 24 of the Maryland Declaration of Rights states as follows: That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. Md.Ann.Code, Const.

(1958, 1981 Repl.Vol.). 6 This Court has interpreted Article 24 of the Maryland Declaration of Rights and the Due Process clause of the Fourteenth Amendment of the United States Constitution to be in pari materia, such that the interpretations of the Due Process clause of the Fourteenth Amendment provided by the United States Supreme Court serve as persuasive authority for Article 24. See Pitsenberger v. Pitsenberger, 287 Md. 20, 27 , 410 A.2d 1052 , ⁷⁸ 1056 (1980)(citing Barry Properties v. Fick Bros., 277 Md. 15, 22 , 353 A.2d 222, 227 (1976); Bureau of Mines v. George’s Creek, 272 Md. 143, 156 , 321 A.2d 748, 755 (1974)). In order to properly challenge state action as a violation of procedural due process, the party challenging the action must show that the state acted to deprive the complainant of a property interest encompassed by the language of the due process clause. See Fuentes v. Shevin, 407 U.S. 67, 84 , 92 S.Ct. 1983, 1996 , 32 L.Ed.2d 556, 572 , reh’g denied, 409 U.S. 902 , 93 S.Ct. 177 , 34 L.Ed.2d 165 (1972).

Where the Court finds that the State action deprived an individual of a protected property interest, the Court must balance the interests of all parties to the matter in order to determine the level of procedural due process which is constitutionally required under the circumstances. See Golden Sands Club Condominium, Inc. v. Waller, 313 Md. 484, 496 , 545 A.2d 1332, 1338 (1988); see also Tulsa Prof'l Collection Services, Inc. v. Pope, 485 U.S. 478, 484 , 108 S.Ct. 1340, 1344 , 99 L.Ed.2d 565, 574-75 (1988). Central to Pickett’s argument is his assertion that the substituted service of process ordered by the District Court pursuant to Rule 3-121(c) in this case, failed to meet the level of procedural due process required for conveying in personam jurisdiction. Pickett claims that the posting of the summons, complaint, and all relevant papers concerning the Sears action at his residence, while sanctioned in Maryland law for in rem proceedings, is constitutionally inadequate to convey jurisdiction on the District Court for in personam actions.

He asserts that in actions where the execution of service involves posting, due process requires that the notice should be left in a conspicuous place which discourages tampering, and which will protect the papers from the elements. When interpreting the Maryland Rules, we apply the same principles used in statutory construction. See Johnson v. State, 360 Md. 250, 264 , 757 A.2d 796, 804 (2000); Lerman v. Heeman, 347 Md. 439, 443 , 701 A.2d 426, 428 (1997). The principal aim of interpreting the Maryland Rules is to ascer ⁷⁹ tain and effectuate the intention of the drafters.

See Mayor and City Council of Baltimore v. Chase, 360 Md. 121, 128 , 756 A.2d 987, 991 (2000). “We should first attempt to ascertain [the Rules Committee’s] intent from the statutory language, reading pertinent parts of the [rule’s] language together, giving effect to all of those parts if we can, and rendering no part of the [rule] surplusage.” Sinai Hosp. of Baltimore v. Dept. of Employment and Training, 309 Md. 28, 39-40 , 522 A.2d 382, 388 (1987). The words of the rule must also be construed so as not to yield a result which is unreasonable, absurd, or illogical. See Degren v. State, 352 Md. 400, 418 , 722 A.2d 887, 895-96 (1999). Where the words of the rule are plain and unambiguous, our inquiry ends and we need not look beyond the text of the rule.

See Marsheck v. Bd. of Trustees of the Fire & Police Employees’ Ret. Sys. of the City of Baltimore, 358 Md. 393, 402-03 , 749 A.2d 774, 779 (2000); Long v. State, 343 Md. 662, 667 , 684 A.2d 445, 447 (1996)(quoting In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012, 1016 (1994)). Even where the language of the rule is plain and unambiguous, however, we may consider “relevant case law and appropriate secondary authority” in order to “place the rule in question in the proper context.” See Johnson v. State, 360 Md. 250, 265 , 757 A.2d 796, 804 (2000). The basic service of process rule, contained in 3-121 (a) authorizes service of process “by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it, or by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: Restricted Delivery — show to whom, date, address of delivery.” Rule 3-121(a)(intemal quotations omitted).

In situations where an individual evades service of process, Rule 3-121 (b) provides that: When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons, complaint, and all other papers filed with it to the defendant at the defendant’s last known residence and delivering a copy of each to a person ⁸⁰ of suitable age and discretion at the place of business, dwelling house, or usual place of abode of the defendant. Maryland’s substitute service provision, effective July 1, 1984, and inserted into the rule as subsection (c) states that: When proof is made by affidavit that good faith efforts to serve the defendant pursuant to section (a) of this Rule have not succeeded and that service pursuant to section (b) of this Rule is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice. Rule 3 — 121(c). 7 The rule also contains a “disclaimer” provision which states that “[t]he methods of service provided in this Rule are in addition to and not exclusive of any other means of service that may be provided by statute or rule for obtaining jurisdiction over a defendant.” Rule 3-121(d). 8 The language of 3-121(c) contains no provision which prevents a court from designing an order for substituted service to convey in personam jurisdiction by using posting as a means of providing notice. Once a litigant has filed an affidavit showing good faith efforts to serve the defendant pursuant to 3-121(a) and that service under 3-121(b) would be ⁸¹ “inapplicable or impracticable,” the court is free to customize a method of service based on the facts and circumstances restricted only by the need to be “reasonably calculated to give actual notice” to the defendant.

This Court has long held that procedural due process requires that litigants must receive notice, and an opportunity to be heard. See Ulman v. Mayor and City Council of Baltimore, 72 Md. 587, 591-92 , 20 A. 141, 141-42 (1890)(explaining that “notice ... is required to constitute due process of law” in cases involving a deprivation of a property interest). For “the fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394 , 34 S.Ct 779, 783 , 58 L.Ed. 1363, 1369 (1914). Rule 3-121 (c) contains the language “reasonably calculated to give actual notice,” mirroring the language of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 , 70 S.Ct. 652 , 94 L.Ed. 865 (1950), in embodying the spirit and purpose of procedural due process.

In Mullane, the Supreme Court made the following pronouncement regarding service of process: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such a nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.” Id. at 314-15, 70 S.Ct. at 657 , 94 L.Ed. at 873. (internal citations omitted).

The Supreme Court further refined its service of process doctrine in Greene v. Lindsey, 456 U.S. 444 , 102 S.Ct. 1874 , 72 L.Ed.2d 249 (1982). The Greene case involved service of process pursuant to a Kentucky statute by posting notice in ⁸² forcible entry and detainer actions. Id. at 446 , 102 S.Ct. at 1876 , 72 L.Ed.2d at 252 . Justice Brennan, writing for the Court, described the utility of service of process by posting as follows: It is, of course, reasonable to assume that a property owner will maintain superintendence of his property, and to presume that actions physically disturbing his holdings will come to his attention.

The frequent restatement of this rule impresses upon the property owner the fact that a failure to maintain watch over his property may have significant legal consequences for him, providing a spur to his attentiveness, and a consequent reinforcement to the empirical foundation of the principle. Upon this understanding, a State may in turn conclude that in most cases, the secure posting of a notice on the property of a person is likely to offer that property owner sufficient warning of the pendency of proceedings possibly affecting his interests. Id. at 451-52 , 102 S.Ct. at 1879 , 72 L.Ed.2d at 256-57 (internal citations omitted). The process servers in Greene , however, were aware of the fact that there were repeated problems with children removing writs from the doors of the apartment complex where the appellee’s resided.

See id. at 453, n. 7 , 102 S.Ct. at 1880, n. 7 , 72 L.Ed.2d at 257, n. 7 . Under these circumstances, the Supreme Court held that service of process by posting “does not satisfy minimum standards of due process.” See id. at 453 , 102 S.Ct. at 1879 , 72 L.Ed.2d at 257 . In dicta, the Court did comment that “[n]otice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy.” See id. at 455 , 102 S.Ct. at 1880 , 72 L.Ed.2d at 258 . See also Mennonite Board of Missions v. Adams, 462 U.S. 791, 800 , 103 S.Ct. 2706, 2712 , 77 L.Ed.2d 180, 188 (1983)(“Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the ⁸³ liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.”).

We recognize the need for flexibility in the application of due process, for “the process that is due may change according to the circumstances.” Miserandino v. Resort Properties, Inc., 345 Md. 43, 65 , 691 A.2d 208, 218 (1997). While personal service is the preferred method, Rule 3-121 (c) allows the District Courts to customize a method of service for situations where good faith attempts at personal service have been made unsuccessfully and prove futile. In Miserandino , we held that original service of process by first-class mail did not satisfy the constitutional requirements of due process under Maryland law. Id. at 56 , 691 A.2d at 214 .

Miserandino , however, involved the original effort at service of process pursuant to the Commonwealth of Virginia’s long arm statute as applied to defendants residing in Maryland. See id. at 52 , 691 A.2d at 212 . In the matter now before us, the District Court heeded the caution of the Greene case and ordered a two-fold service of process involving posting notice at Pickett’s residence and mailing a copy of the same to him through first-class mail, colloquially known as “nail and mail,” to inform Pickett of the proceedings instituted against him by Sears. Pickett has presented no such evidence in this case which would inform the Court that posting at his residence would not be reasonably calculated to give him actual notice.

The record shows that Sears made good faith attempts to personally serve Pickett pursuant to the requirements of Rule 3-121(a) and offered proof of its efforts and of the impractical nature of attempting service under Rule 3-121(b) given the circumstances of this case. Furthermore, the District Court order did not sanction service by first-class mail alone; it also required posting at Pickett’s residence. While the plain language of Rule 3-121 (a) and our holding in Miserandino mandate that use of the “nail and mail” procedure for service of process would be insufficient as the primary at ⁸⁴ tempted method of service, where the facts and circumstances warrant substituted service pursuant to Rule 3-121(c), service by “nail and mail” may be ordered by the District Court. The record in this case fails to support Pickett’s arguments concerning the constitutional adequacy of the substituted service of process he received in this case.

A proper return of service serves as prima facie evidence of valid service of process. See Sheehy v. Sheehy, 250 Md. 181, 185 , 242 A.2d 153, 155 (1968). The process server’s return was filed at the July 14,1997 hearing on Pickett’s Motion to Quash Service of Process in accordance with Rule 3-126. 9 The return stated that a copy of the summons and complaint had been posted at Pickett’s residence at 170 Baughmans Lane, Frederick, Maryland on April 3,1997, and by mailing a copy of the summons and complaint by first class mail, effective March 31,1997. At no time during the course of this protracted litigation had Pickett denied that 170 Baughmans Lane was his address.

Pickett would have to make more than a mere denial of service of process or a broad assertion that it was invalid in order to rebut the presumptively valid return of process. See Ashe v. Spears, 263 Md. 622, 627-28 , 284 A.2d 207, 210 (1971) (internal citations omitted). In weighing the alternative methods of service of process, a court ordering substituted service under Rule 3-121(c) must be careful that the method prescribed in the court order “is not substantially less likely to bring home notice than other of the feasible and customary substitutes.” Mullane, 339 U.S. at 315 , 70 S.Ct. at 658 , 94 L.Ed. at 874. In the instant case, the District Court was presented with an affidavit ⁸⁵ documenting the good faith efforts of a private process server to effect personal service on Pickett on at least five separate occasions.

Service had also been attempted by certified mail with restricted delivery on two occasions, which was returned unclaimed. Thus, the usual and customary methods of service would not suffice. Confronted with these facts, the District Court struck a constitutionally sufficient balance between the interests of Sears in obtaining a judgment against Pickett for the debt owed to it on Pickett’s consumer credit account and Pickett’s right to