Smith v. Gehring

ADKINS, Judge. The issues in this case are (1) whether what appellant characterizes as misjoinder of a defendant and what appellee characterizes as mere misnomer can be corrected by amendment of a pleading after limitations have run, and (2) whether the doctrine of laches is now available as a defense to a legal, as opposed to an equitable, claim. The Circuit ³⁶² Court for Baltimore County (DeWaters, J.) accepted the amendment and refused to apply laches. We affirm.

Facts Since this is an expedited appeal, it is before us on an agreed statement of the ease. That statement frames the issues for us. It reveals that on May 5, 1972, the Circuit Court for Baltimore County entered two judgments, in the total amount of $8,000 plus interest and costs, against Warrington G. Smith, who then owned real property known as 534 Allegheny Avenue, Towson. In 1977 Warrington Smith, through a straw party, conveyed the property to himself and his daughter, appellant Jamie MacDermott Smith, as joint tenants.

That tenancy was severed on April 5, 1983, when Josef Gehring, husband of appellee Anne Gehring, purchased Warrington’s interest at a sheriff’s sale prompted by a judgment creditor not involved in this case. Warrington Smith died ten days later, but as of the date of his death (and ever since), 534 Allegheny Avenue was (and has been) owned by Josef Gehring and Jamie MacDermott Smith as tenants in common. The two judgments in this case were assigned (for consideration) to appellee Ann Gehring. Then began the proceedings that have produced this appeal.

On April 24, 1984, but a few days less than twelve years after the entry of the 1972 judgments against Warrington Smith, appellee filed an order to issue a scire facias on each of the judgments. Each order directed the writ to be served on E. June Smith [widow of Warrington and mother of appellant Jamie], heir-at-law of Warrington; E. June Smith, personal representative of Warrington’s estate; E. June Smith, guardian and next friend of Jamie, heir-at-law and terre-tenant, and Josef Gehring. Pursuant to directions contained in the orders, writs of scire facias were served on E. June Smith, individually, as personal representative, and as appellant’s guardian and next friend, and on Josef Gehring. Writs were also posted on the property. ³⁶³ At oral argument we were told that E. June Smith responded to the writs by asserting that she had no interest in the property in any capacity. 1 That prompted appellee to file amended orders for scire facias.

These were identical to the initial orders, except that they added appellant Jamie as “a minor and terre-tenant of Warrington G. Smith, deceased.” These amended orders, however, were not filed until June 29, 1984 — more than twelve years after the issuance of the 1972 judgments. Appellant answered, asserting that the claim against her was barred by the statute of limitations. 2 She also asserted that the claim was barred by laches. Judge DeWaters rejected both defenses and entered an order continuing the lien of the judgments against the property. Appellant, who attained her majority on March 28, 1985, appealed.

Misnomer v. Misjoinder It is appellant’s position that the original sci. fa. orders did not name her as a defendant; instead they named her mother as her guardian and next friend. An infant must be sued in her own name; if she is not named in the complaint, ³⁶⁴ she is not a party. 43 C.J.S. “Infants” § 221(c). Because of this, she says there was a nonjoinder or misjoinder that could not be corrected by amendment after limitations had run. Appellee, on the other hand, contends that there was a mere misnomer that could be corrected by amendment even after passage of the twelve-year period of limitations.

Judge DeWaters, as we have seen, agreed with appellee. So do we. The problem of amendment of a complaint after limitations has expired is one of relation back. For example, if an amendment states no new cause of action — if “the operative factual situation remains essentially the same” after the amendment as it was before it — the doctrine of relation back applies.

The amended cause of action is not barred by limitations. See Crowe v. Houseworth, 272 Md. 481, 485 , 325 A.2d 592 (1974). Where an amendment merely corrects the name of an original party, but does not add a new party, the doctrine is applicable. Id.

But if a totally new defendant is added, the doctrine of relation back does not apply. Talbott v. Gegenheimer, 237 Md. 62, 63-64 , 205 A.2d 285 (1964). The problem of new defendant versus mere misnomer resolves itself into a question of who was intended to be sued, and whether that party had timely knowledge of the action. In Abromatis v. Amos, 127 Md. 394 , 96 A. 554 (1916), for instance, Amos sued Peter Abromatis in ejectment and process was issued for Peter.

It was served, however, on Joseph Abromatis, the individual actually in possession of the land. The Court of Appeals held that an amendment to the declaration, substituting Joseph for Peter, was proper once the trial court was satisfied that Joseph, the party summonsed as defendant, was in fact the party intended to be sued. 127 Md. at 404 , 96 A. 554 . Similarly, in Western Union Telegraph Co. of Baltimore City v. State Use of Nelson, 82 Md. 293 , 33 A. 763 (1896), the plaintiff named as defendant Western Union Telegraph Co., a New York corporation. The intended defendant was ³⁶⁵ Western Union Telegraph Co. of Baltimore City, a Maryland corporation.

Summons was served on an individual who happened to be an officer and manager of both corporations. When the pleading was amended, after limitations had run, to designate the Maryland corporation as defendant, the Court of Appeals rejected the statutory bar, reasoning that the amendment only corrected the name of the party actually summonsed. 82 Md. at 307 , 33 A. 763 . More recently, the Court reached the same result in McSwain v. Tri-State Transportation Co., Inc., 301 Md. 363 , 483 A.2d 43 (1984). There, the plaintiff named in his declaration Tri-State Trucking, although he intended to sue a totally different corporation, Tri-State Transportation.

He gave Transportation’s address in the declaration against Trucking, and the resident agents of both corporations were served. As in Western Union the Court of Appeals rejected the argument that the action was barred by limitations. Pointing out that Transportation was well aware, both before and after suit, that it was the intended defendant, the court held that “the designation of Trucking was a [mere] misnomer.” 301 Md. at 366 , 483 A.2d 43 . In each of these cases, the correct defendant — the one actually intended to be sued — was served with process before limitations had run.

This fact, however, is not critical. The critical factors are (1) who, on the facts of the case, was the appropriate defendant, and (2) whether that party had notice of his, or her, or its, intended status as defendant within the limitations period. In each of the three cases we have discussed, the significance of service of process was that by that means notice to the intended defendant was made apparent. In McSwain the Court of Appeals relied not only on service of process, but also on pre-suit notice to the intended defendant, Transportation.

That service of process on the intended defendant is not essential to stop the running of limitations appears from our decision in Reed v. Sweeney, 62 Md.App. 231 , 488 A.2d 1016 (1985). ³⁶⁶ Reed , was not a misnomer case. There was no question that Sweeney and his co-defendants were the parties Reed intended to sue to recover for injuries incurred in a motor vehicle accident. Thus, factor (1) was not an issue. But factor (2) was.

Reed filed suit within the period of limitations; process was issued; it was not, however, served on the defendants until after the statute had run. Judge Moylan, for this court, pointed out that the “Maryland statute of limitations [there] pertinent [Courts Art. § 5-101] requires that a civil action at law be commenced within three years from the date the claim accrues.” 62 Md.App. at 286 , 488 A.2d 1016 . That is equally true of § 5-102, except that the time period is twelve years instead of three. He went on to observe that the commencement requirement was met by the filing of the suit.

Id. Again, that requirement was met timely here. Turning to the problem of nonservice of process within the statutory period, Judge Moylan explained that “[w]hile mere actual, as opposed to formal, notice [to] a potential defendant of a claim will not cure an improper or defective service of process, when that is the issue in the case ..., notice of a filed suit may nonetheless prevent a dismissal based upon the statute of limitations, a very different issue.” 62 Md.App. at 237 , 488 A.2d 1016 [citations omitted]. This is because service of process raises jurisdictional issues and focuses on the power of a court to exert its authority over a particular party[.

Therefore,] it cannot be waived or ignored simply because the defendant had actual notice of the action____ The statute of limitations, on the other hand, is a “practical and pragmatic device” which protects a defendant from stale and untimely suits by forcing a plaintiff to file by a known deadline. Where a suit has been timely filed and the defendant is aware of its existence and basic substance, use of the statute to defeat the claim would be improper, with no purpose being served. 62 Md.App. at 237-38 , 488 A.2d 1016 [citations omitted]. In other words, the statute of limitations does not “... extend ³⁶⁷ to situations where, in the words of Justice Holmes, ‘... a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specific conduct____’” (New York C. & H.R.R. Co. v. Kinney, 260 U.S. 340, 346 , 43 S.Ct. 122, 123 , 67 L.Ed. 294 (1922)). Doughty v. Prettyman, 219 Md. 83, 93 , 148 A.2d 438 (1959).

See McSwain v. Tri-State Transportation Co., Inc., 301 Md. at 370 , 483 A.2d 43 (“Transportation was neither prejudiced nor misled by the naming of Trucking rather than Transportation as the defendant” because Transportation’s counsel had notice of the suit before limitations had run). With these principles in mind, we turn to the case before us. As in Reed we are dealing with a limitations question. No issue is raised regarding defective service of process.

As to factor (1), there can be no doubt that appellee intended to obtain scire facias against appellant. The recitals in the orders and writs make it clear that appellant was the owner of an interest in the Allegheny Avenue property, an interest to which the lien of the judgments had attached. Appellant was specifically named in those documents, and the manner in which she had acquired her interest was set forth. It is obvious that she was intended as a defendant, even though appellee sued her through her guardian and next friend rather than individually.

The more difficult question has to do with factor (2) — notice to appellant that she was the intended defendant. Judge DeWaters found as a fact that he was dealing with a case of misnomer — that appellee had intended at all times to sue appellant. It is a finding we cannot set aside unless it is clearly erroneous. Md.Rule 1086.

The burden is on appellant to persuade us of the existence of clear error. Moreover, although Judge DeWaters made no express finding that appellant had notice of her intended status as defendant, his conclusion as to misnomer had to include an implicit finding to that effect. We think the record contains evidence to support such a finding. ³⁶⁸ As we have already seen, the writ of scire facias was posted on the subject property before limitations had run. Although the constructive notice so given might be insufficient in this case to provide personal jurisdiction over appellant (see Rule 2-122), notice for personal jurisdiction purposes is not the issue before us, as it was not in Reed .

Rather, the issue is whether appellant had sufficient notice of the pending action before the running of limitations to satisfy the purpose of limitations — the protection of defendants from stale claims. Judge DeWaters might have concluded that the posting was sufficient to provide the requisite notice to appellant. He might also have concluded that appellant, who was seventeen years old when the proceedings were commenced, and who lived with her mother, was made fully aware of the matter by her mother, but the record is silent as to that. Nevertheless, we think there was another basis for deciding that appellant had notice of these proceedings.

When the original sci. fa. orders were issued, appellant’s mother, E. June Smith, was appellant’s guardian, having been so appointed by the Orphans’ Court of Baltimore County on April 25, 1983. 3 Under certain circumstances notice to a fiduciary such as a guardian is sufficient notice to the ward, at least where there is no conflict between their respective positions. See Matter of Easton, 214 Md. 176, 189 , 133 A.2d 441 (1957) (no notice need be given incompetent that trustee intended to sell property because trustee represents incompetent and acts under direction of the court). In the instant case the writs were served on appellant’s court-appointed guardian. 4 We hold that the ³⁶⁹ notice so given was, for purpose of limitations, notice to appellant. In short, on the record before us, we are not persuaded that Judge DeWaters’s fact-finding was clearly erroneous.

Thus, we affirm his determination as to misnomer, and hence, his conclusion that appellee’s claim was not barred by limitations when appellant was correctly named as a defendant in June 1984. Laches When appellant filed her laches