FIRST WHOLESALE CLEANERS INC. v. DONEGAL INS. CO.
| Decision Date | 28 February 2002 |
| Docket Number | No. 02828,02828 |
| Parties | FIRST WHOLESALE CLEANERS INC. t/a Queens Cleaners, v. DONEGAL MUTUAL INSURANCE COMPANY. |
| Court | Court of Special Appeals of Maryland |
Joel Marc Abramson, Columbia, for appellant.
Jeanie L. Scherrer (Jeffrey A. Wothers and Niles, Barton & Wilmer, LLP, on the brief), Baltimore, for appellee.
Argued before HOLLANDER, SONNER, and CHARLES E. MOYLAN, Jr. (Retired, Specially Assigned) JJ. HOLLANDER, Judge.
This case is an example of the proverbial "rush to judgment." Here, judgment was granted in favor of the defendant because the plaintiff failed to file timely an amended complaint after the case was removed by the defendant from the District Court for Anne Arundel County to the Circuit Court for Anne Arundel County.
In July 2000, First Wholesale Cleaners Inc., t/a Queens Cleaners ("Wholesale"), appellant, filed suit against Donegal Mutual Insurance Company ("Donegal"), appellee, in the District Court. Appellant alleged that Donegal breached its contract of insurance by failing to satisfy Wholesale with respect to a loss it had sustained in August 1997. Pursuant to appellee's request for a jury trial, the case was transferred to the circuit court in October 1997. Within a month, appellant's lawyer withdrew from the case. Then, in January 2001, the circuit court granted appellee's motion to strike and dismissed the suit, with prejudice, because appellant did not file its amended complaint in the time prescribed by the circuit court.
On appeal, Wholesale presents two questions:
I. Did the circuit court err as a matter of law in granting Appellee's Motion to Strike Complaint by default thereby striking Appellant's Complaint and dismissing its case with prejudice?
II. Did the circuit court abused [sic] its discretion in granting Appellee's Motion to Strike Complaint by default thereby striking Appellant's Complaint and dismissing its case with prejudice?
Among other things, appellee asks:
Should the Appeal be dismissed because the owner of the corporation filed the Notice of Appeal on behalf of the Appellant corporation, making such filing a nullity?
For the reasons that follow, we shall vacate the judgment and remand for further proceedings.
On July 13, 2000, Wholesale, through counsel, instituted suit in the District Court against Donegal for breach of an insurance contract. Wholesale sought to recover $25,000 in damages, claiming that Donegal failed to pay monies due and owing under an insurance policy issued to Wholesale, in regard to a loss that appellant incurred in August 1997. On or about September 27, 2000, Donegal prayed a jury trial. Accordingly, the case was transferred to the circuit court on October 6, 2000.
By letter dated October 5, 2000, appellant's counsel, Paul Bennett, sent a letter to Adebisi Anthony A'Denariwo, Wholesale's sole owner, advising of his intent to withdraw as counsel for Wholesale. The letter said, in part:
[P]lease be advised that I will file my withdrawal as your attorney with the court in the above referenced matter in five days. My office has been advised that [Donegal] has requested a jury trial, and the case will be transferred to the Circuit Court. You have the option of having another attorney enter an appearance in the case or of notifying the court clerk in writing of your intention to proceed and represent yourself.
(Emphasis added).
On October 16, 2000, Bennett filed a motion to withdraw his appearance, and attached as an exhibit his letter to A'Denariwo of October 5, 2000. The motion was granted by order dated November 6, 2000. On November 8, 2000, when the order was docketed, the court sent notice to Wholesale, stating, in relevant part:
In the meantime, on November 6, 2000, appellee filed a Motion for More Definite Statement, pursuant to Maryland Rule 2-322(d), asserting that appellant's District Court complaint was "so general, vague and ambiguous that movant cannot reasonably frame an answer." Appellee sought such information as appellant's policy number, date of loss, nature of the claim, and the reason that the claim was denied. By Order dated November 29, 2000, docketed on November 30, 2000, the court granted appellee's motion, and ordered appellant to file an amended complaint within thirty days.
On January 2, 2001, when appellant had not yet filed its amended complaint, appellee filed a "Motion to Strike Complaint," requesting dismissal of the case, with prejudice.1 Although the motion was filed on that date with the court, the certificate of service indicates that appellee chose to serve the motion on appellant by mailing it on that date.
On January 23, 2001, A'Denariwo, as "owner" of Wholesale and its "only principal officer," filed a response to the motion to strike, titled "Plaintiff First Wholesale Cleaners, Inc[.] Response Motion Not to Grant the Defendant's Motion to Strike With Prejudice." According to the certificate of service, the opposition to the motion to strike had already been mailed to appellee's attorney on January 8, 2001. A'Denariwo included a sworn affidavit in which he averred that he had not received a copy of the court's order requiring Wholesale to file an amended complaint. Furthermore, he stated that he was the only person with sufficient personal knowledge to respond for Wholesale, and he had been away on vacation from November 22, 2000 to January 3, 2001—his first vacation in nine years. Additionally, he asserted that he was "making progress for arrangement for a new counsel," but told the court that, "because of statue [sic] of limitation, if this honorable court favorably grant the defendant's Motion to Strike we would not be able to refile this case...." On behalf of Wholesale, A'Denariwo also filed a "Response To Order," in answer to the Motion For More Definite Statement.
The next day, January 24, 2001, the circuit court granted appellee's motion to strike and dismissed appellant's suit, with prejudice. In doing so, the court signed appellee's proposed order, but added that the motion was granted "by default." Because the court did not mention the opposition to the motion to strike, filed the day before, we cannot determine with certainty whether the judge was aware of the opposition when he ruled on the motion to strike. In view of the "by default" language added by the judge, however, it is reasonable to assume that the judge had no knowledge of the opposition.
After the suit was dismissed, A'Denariwo filed a notice of appeal on behalf of Wholesale. The notice of appeal states in its entirety: "FIRST WHOLESALE CLEANERS, Inc[.], notices an appeal to the Court of Special Appeals in the above-captioned action." Wholesale subsequently retained a lawyer to prepare its appellate brief and to present oral argument.
We shall include additional facts in our discussion.
Preliminarily, appellee urges the Court to dismiss the appeal as a nullity, because Wholesale, the appellant, is a corporation, A'Denariwo is not a lawyer, and therefore A'Denariwo was not allowed to file the appeal on behalf of Wholesale. We decline appellee's invitation.
Maryland Rule 2-131 requires that, ordinarily, a lawyer must represent a corporation in court. It states, in pertinent part:
Rule 2-131. Appearance.
(a) Except as otherwise provided by rule or statute:(1) an individual may enter an appearance by an attorney or in proper person and (2) a person other than an individual may enter an appearance only by an attorney.
A corporation is considered a "person" for purposes of the rule. See Rule 1-202(r)( that "Person" includes, inter alia, a corporation).
Other rules and statutory provisions are also relevant. Maryland Rule 1-311(a) states that "[e]very pleading and paper of a party represented by an attorney shall be signed by at least one attorney who has been admitted to practice in this State...." Under Rule 1-311(c), "if a pleading or paper is not signed as required... or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading had not been filed." Similarly, Md. Rule 8-402(d) pertaining to the appellate courts, states: "A corporation may enter an appearance only by an attorney, except as otherwise provided by rule or statute."
Sections 10-206 and 10-601 of the Business Occupations and Professions Article ("B.O.P.") of the Maryland Code (2000) are also relevant. B.O.P. § 10-206(a) provides, in relevant part:
§ 10-206. Admission required; exceptions.
B.O.P. § 10-206(b) enumerates certain exceptions to the requirement that a corporation must be represented in court by an attorney. In part, § 10-206(b)(4)(i)(1) permits a corporate officer to appear on behalf of the corporation in a civil action in District Court, so long as the claim does not exceed the amount set forth for a small claim action under Md.Code (1974, 1998 Repl.Vol.), § 4-405 of the Courts & Judicial Proceedings Article ("C.J."). That sum is $2500.
B.O.P. § 10-601(a) states, in pertinent part:
§ 10-601. Practicing without admission to Bar.
(a) In general.—Except as otherwise provided by law, a person may not practice, attempt to practice, or...
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