Bethlehem Steel Corporation v. Devers

• Decision Date: 12 January 1968
• Docket Number: No. 11397.,11397.
• Citation: 389 F.2d 44
• Parties: BETHLEHEM STEEL CORPORATION, Appellee, v. Malcolm B. DEVERS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

389 F.2d 44 (1968)

BETHLEHEM STEEL CORPORATION, Appellee, v. Malcolm B. DEVERS, Appellant.

No. 11397.

United States Court of Appeals Fourth Circuit.

Argued December 8, 1967.

Decided January 12, 1968.

Josiah Lyman, Washington, D. C., (Robert M. Sandler, Washington, D. C., on brief) for appellant.

Robert B. Barnhouse, Baltimore, Md., (J. Martin McDonough, Baltimore, Md., on brief) for appellee.

Before SOBELOFF, BOREMAN and WINTER, Circuit Judges.

SOBELOFF, Circuit Judge:

Defendant Devers appeals from the denial of his motion to rescind a partial summary judgment entered against him for $31,561.29 for goods sold and delivered by Bethlehem Steel. He contends that the District Court was clearly erroneous in finding that Devers had not rebutted the presumption that a licensed attorney appearing on behalf of a client is authorized to do so.

The underlying facts giving rise to this motion are fully delineated in the District Court's opinion, Bethlehem Steel Corp. v. U. S. Metal Plastics, 265 F.Supp. 535 (D.Md.1967), and need not be repeated here. For present purposes it is sufficient to say that J. Ambrose Kiley, a practicing Maryland attorney, entered a general appearance in this action for all the named defendants, including Devers.¹ Kiley filed an answer to the complaint, prepared responses to interrogatories propounded by the plaintiff, answered an amended complaint and contested two motions for summary judgment. In answering the amended complaint, Kiley unequivocally admitted that defendant Devers had executed a valid guarantee, assuring Bethlehem of payment for goods sold and delivered.

The District Court found that Devers, who was not personally served with process, had either given binding prior authorization to Kiley or had ratified Kiley's general appearance by failing to disavow the attorney's representation over a period of eighteen months. We think this finding is amply supported by the evidence and accordingly we affirm.

Particularly relevant on this appeal are the following facts: Kiley was representing Devers in other matters during the pendency of these proceedings, and they were in close personal contact on at least one of them; Kiley submitted progress reports on the litigation to Devers's regular attorney, Wallace Schubert; Devers's brother-in-law and close business associate had been personally served; Devers has never testified or submitted an affidavit apprising the court of when he first learned of Kiley's representation or the extent of his knowledge of the circumstances giving rise to the general appearance.²

The only evidence offered on Devers's behalf to rebut the presumption of authority consisted of the testimony of Kiley and Schubert. The confused story that emerges is that when Schubert was given the initial papers in this proceeding, he turned the matter over to Kiley and instructed him to handle the litigation. At one point in his testimony, Schubert stated that he told Kiley...