Driver v. Parke-Davis & Co.

• Citation: 348 A.2d 38,29 Md.App. 354
• Decision Date: 04 December 1975
• Docket Number: PARKE-DAVIS,No. 297,297
• Parties: Thomas H. DRIVER, Sr., et al. v.& CO. et al.
• Court: Court of Special Appeals of Maryland

Page 354

29 Md.App. 354

348 A.2d 38

Thomas H. DRIVER, Sr., et al. v. PARKE-DAVIS & CO. et al.

No. 297.

Court of Special Appeals of Maryland.

Dec. 4, 1975.

Certiorari Denied March 2, 1976.

John T. Enoch, Baltimore, with whom were Goodman, Meagher & Enoch, Baltimore, on the brief, for appellants.

Donald L. DeVries, Jr., Baltimore, with whom were John H. Mudd, Charles E. Iliff, Jr. and Semmes, Bowen & Semmes, Baltimore, on the brief, for appellee Parke-Davis & Company.

E. Dale Adkins, III, Baltimore, with whom were John F. King and Anderson, Coe & King, Baltimore, on the brief, for other appellees.

Argued before ORTH, C. J., and DAVIDSON and LOWE, JJ.

LOWE, Judge.

As unrelenting as Juno's hate, Md.Rule 530 once again brings about an 'inexorable dismissal' where 'no proceedings of record have been taken within a period of eighteen months . . ..'

On December 10, 1969, appellants sued in the Circuit Court for Harford County, for the wrongful death of Mary Driver which, according to appellants, was caused by a prescription of an antibiotic drug known as Chloromycetin. In answer to demurrer timely filed and granted, an amended declaration was filed July 24, 1970. Appellees put the case at issue by pleas on August 7 and 14, 1970. The docket reflects substantial activity until after October 20, 1972, upon which date an entry indicates the filing of an unanswered supplemental interrogatory by appellee Parke-Davis & Co.

Nearly two years elapsed before the next entry on October 15, 1974 indicating that notice was sent of contemplated dismissal pursuant to Md.Rule 530. That rule prescribes that a pending action in which proceedings of record have not taken place within an eighteen month period shall be dismissed, unless for good cause shown, the court suspends the operation of the rule. ¹ Pursuant to a motion filed by appellants on October 25, 1974, Judge Albert Close signed an ex parte order suspending the operation of Md.Rule 530, as provided by subsection c, on October 29, 1974. Without knowledge of this ex parte order signed four days after the motion, appellee Parke-Davis & Co. filed its timely answer to the motion on October 31, 1974. Appellee doctors filed their answer on November 12, 1974.

On or about November 16, 1974 notice was sent that a trial date for April 2, 1975 had been assigned. Upon receipt of this notice, appellee Parke-Davis & Co., still unaware of the ex parte order, requested a hearing on the motion to suspend the rule which it had answered.

A full hearing was held on February 11, 1975 before Judge Edward Higinbothom, which resulted in an order subsequently filed rescinding Judge Close's ex parte suspension of Rule 530. Appellants then moved for reconsideration by Judge Higinbothom under Md.Rule 625. Additional grounds were added to their original petition under Md.Rule 530 c. The court consented to the reconsideration, considered the additional grounds suggested by appellants, and reaffirmed its former decision by memorandum opinion and order rescinding the suspension of dismissal, dismissing the case under the Rule, and assessing costs to appellants.

The three issues raised below and answered adversely to appellants are brought to us on appeal. Essentially appellants contend that:

1. Md.Rule 1211, as supplemented by an order of the Circuit Court for Harford County dated January 2, 1970, requires the Clerk of the Court of Harford County, acting as assignment clerk, to notify all parties of a trial date within two weeks after the case becomes at issue. Since this was admittedly not done in the instant case, appellants argue that they are relieved from the onus of dismissal under Rule 530;

2. Because Judge Close suspended the Rule's operation by ex parte order, another judge of the same court cannot reconsider or reverse his action;

3. Because it has been the practice of the Third Judicial Circuit to waiver the operation of Rule 530 upon request, the court abused its discretion by denying that relief.

-Md.Rule 1211, as supplemented-

Md.Rule 1211 lays the supervisory responsibility for trial assignments upon the County Administrative Judge, '. . . to the end that maximum use of available judicial manpower is obtained, and pending actions brought to trial and disposed of as expeditiously as feasible.' The Rule then provides that he will institute procedures designed among other purposes, to

'. . . Establish trial and motion calendars and other appropriate systems under which actions ready for trial will be assigned for trial and tried, after proper notice to parties, without the necessity of a request for assignment from any party.'

A Committee note under the rule recognizes 'that it may be inexpedient to require a uniform assignment procedure in all jurisdictions'; however, it then suggests a desirable procedure 'which may be adopted in whole or in part. . . .' Apparently by Order No. 69, the Administrative Judge of the Circuit Court for Harford County promulgated a procedure patterned after the committee's recommendations, to take effect on the second Monday of January, 1970. It provides that when a law case is at issue '. . . it shall automatically have a tentative trial date, six months from the date of issue.' In addition to maintaining a trial calendar showing details of all cases at issue, the assignment clerk was required to notify all counsel in writing of the tentative trial date within two weeks after the case is at issue and again by written notice when the trial date is firm.

Appellants admit that the case was 'at issue' after appellees filed their general issue pleas in August of 1970 and contend that they were entitled to, but did not receive from the assignment clerk, either a trial date or notice thereof, 'without the necessity of a request for assignment from any party.' By analogizing the mandatory reissuance of a summons returned non-estpursuant to Md.Rule 1211, appellants cite Piersma v. Seitz, 10 Md.App. 439, 271 A.2d 199, to support their premise that the implementation of Order No. 69 pursuant to Md.Rule 1211 placed the mandatory duty of trial assignment and notice upon the assignment clerk. They argue that the imposition of those duties upon the clerk relieves counsel and parties plaintiff from prosecuting their cases under Md.Rule 530, which provides for dismissal upon lack of prosecution.

'One plain purpose of the Rule (1211) and Administrative Order (No. 69) was to assure that . . . Counsel need have no concern about jeopardizing his client's case by failing to request a trial assignment.'

In short, they contend inferentially, if not overtly, that the combined impact of Rule 1211 and Order No. 69 not only augments the underlying purpose of Rule 530, i. e., to 'focus on the dead case, the case left unprosecuted for years at a time, . . .' Mut. Benefit Soc'y v. Haywood, 257 Md. 538, 539, 263 A.2d 868, 869, but negates or in effect repeals it.

Judge Higinbothom ruled that Order No. 69, dated January 2, 1970, is not applicable to cases filed before its effective date. Hence it should not apply to this case filed in December of 1969. Furthermore, he said,

'The Rules do not make the operation of Rule 530 contingent upon receipt of a trial date.'

We agree with the trial court. If the Court of Appeals intended to repeal or negate the self-executing effect of Md.Rule 530 by its enactment of Md.Rule 1211, it would have so stated.

In Cooney v. Bd. of Co. Comm'rs, 21 Md.App. 57, 59, 318 A.2d 231, 232 Judge Thompson quoted the Court of Appeals' holding in Stanford v. District Title Insur., 260 Md. 550, 554, 273 A.2d 190, that Md.Rule 530 was

". . . self-executing, in the sense that it is actuated by inaction of the parties and the passage of time."

The Stanford Court had made it abundantly clear that

'. . . nothing except the presence of proceedings of record will toll the operation of Rule 530; . . ..' Id. at 555, 273 A.2d at 193.

Even if we assume that the assignment clerk was responsible for setting a trial date and sending notification thereof under Order No. 69 in this case, and failed to do so, we interpret Stanford as saying that the plaintiff is not relieved of prosecuting his case and providing proof of proceedings therein on the record. If the clerk has failed in his responsibility (and we do not so decide) under one Rule, that does not relieve appellants from their responsibility under another -horizontal appeal-

Appellants contend that, because Judge Close had signed an ex parte order suspending operation of Md.Rule 530, it was beyond Judge Higinbothom's authority to reverse the discretionary decision of Judge Judge Higinbothom pointed out that the ex parte order was signed by Judge Close well order was signed by Judge Close well before the fifteen days for an answer to be filed had elapsed. He noted further that timely answers were filed and that appellees were entitled to a hearing under Md.Rule 1210 c.

Appellants rely heavily on the decision of the United States Court of Appeals for the Second Circuit in In re Hines, 88 F.2d 423. They quote this 1937 case as stating:

'. . . (i)t is well established that a judge may not overrule the decision of another judge of coordinate jurisdiction made in the same case.' ²

Appellees point out to us, however, that Hines was expressly founded upon the Second Circuit case of Commercial Union of America v. Anglo-South American Bank, 10 F.2d 937 which was overruled in Dictograph Products Co. v. Sonotone Corporation, 230 F.2d 131, cert. dismissed, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82. In a long discussion of the question the Dictograph court viewed the question as

'. . . in substance the same as that which arises when an appellate court upon a second appeal is faced with an earlier decision of its own, especially if the earlier decision happens to be that of a different panel of judges. The second panel has unquestioned power-'jurisdiction'-to deviate from the first, but as a matter of practice it...