Gladding v. Langrall, Muir and Noppinger

• Decision Date: 19 May 1977
• Docket Number: No. 998,998
• Citation: 36 Md.App. 225,373 A.2d 958
• Parties: Harry L. GLADDING et al. v. LANGRALL, MUIR & NOPPINGER.
• Court: Court of Special Appeals of Maryland

Page 225

36 Md.App. 225

373 A.2d 958

Harry L. GLADDING et al. v. LANGRALL, MUIR & NOPPINGER.

No. 998.

Court of Special Appeals of Maryland.

May 19, 1977.

Bayard Z. Hochberg, Baltimore, for appellants.

Rob Ross Hendrickson, Baltimore, with whom were Henry M. Decker, Jr., and Frank M. Benson, Jr., Baltimore, on the brief, for appellees.

Argued before MENCHINE, LOWE and MELVIN, JJ.

LOWE, Judge.

The interesting facts of this case are overshadowed by a procedural consequence which will compel reversal. The facts are simply that the accounting firm of Langrall, Muir & Noppinger (Langrall) recovered a $30,639 judgment in the Superior Court of Baltimore City against appellants Harry L. and Virginia L. Gladding (Gladdings) for some 17 hours of accounting work. Langrall's total fee of $40,639 ¹ represented an amount that had been contingent upon whatever sum was saved by its joint effort with the law firm of Venable Baetjer and Howard in protesting an assessment of approximately $1,300,000 against the Gladdings by the Internal Revenue Service.

The Gladdings did not question that the protest had resulted in a large recovery, or Langrall's computation of its contingent share, but did question whether Langrall had provided its 'very best efforts' as accountants in the tax case, which it had by its contract guaranteed to do. Because Langrall twice declined to assist the law firm in preparing the protest when requested, compelling the Gladdings to seek accounting assistance elsewhere, the Gladdings' chagrin at the judgment is hardly frivolous. ² However, our review on the merits-were we to reach them-would not have permitted us to substitute our opinion for the trial judge's. We are only empowered to ascdertain whether the record contains any evidence sufficient to warrant the decision below. Stated otherwise, our task is to determine whether the trial judge below was clearly erroneous, Md. Rule 1086, and unless he was, we are compelled to affirm his judgment notwithstanding our personal views.

But before we reached that review, appellants Gladding contended that the case should never have been tried for procedural reasons. Md. Rule 530 provides that if no 'proceedings of record' have taken place for a period of eighteen months, a pending action shall be subject to dismissal for lack of prosecution, and 'nothing except the presence of proceedings of record will toll the operation of Rule 530'. Stanford v. District Title Insur., 260 Md. 550, 555, 273 A.2d 190, 193. The declaration was filed on May 21, 1973. Because the record reflected no 'proceedings' after August 23, 1973, the clerk of the court on August 26, 1975 notified the parties, in accordance with the rule, that an order for dismissal for lack of prosecution would be entered in 30 days.

Although self-executing, the rule does permit a reprieve under proper circumstances upon motion filed within 30 days after service of the notice of contemplated dismissal. On September 25, 1975 Langrall moved to suspend the dismissal. On the same day the motion was granted ex parte for 90 days; however, three days later the Gladdings answered the motion to suspend and prayed a hearing of which there is no record but to which an allusion is made in the subsequent order as having transpired on November 26, 1975. On December 15, 1975 the court struck the September 25th ex parte suspension order, and ordered that the case 'be not dismissed under Rule 530, Maryland Rules of Procedure, for a period of six (6) months from the date hereof.' There is no record of what transpired at that hearing but we were told in the briefs and at oral argument that it consisted of an informal in-chambers discussion between court and counsel.

The question before us is whether there was any showing of 'good cause' by appellee, which is a prerequisite to the trial court's exercise of discretion in suspending the automatic dismissal:

'On motion filed at any time prior to thirty days after service of such notice, computed according to section c 3 of Rule 306 (Presumptions in Case of Service by Mail), the court for good cause shown may suspend the operation of this Rule. The order of suspension shall prescribe the duration and any other terms of the suspension.' (emphasis added). Md. Rule 530 c.

All concede that a judicial exercise of discretion will not be set aside on appeal except in extreme cases of abuse. See Tydon v. Spong, 237 Md. 107, 110-111, 205 A.2d 220; Cooney v. Bd. of Co. Comm'rs, 21 Md.App. 57, 60, 318 A.2d 231. However, the discretion exercised under Md. Rule 530 is far more limited than that exercised pursuant to the court's revisory power under Md. Rule 625 a. The broader revisory power discretion should be liberally exercised, Eshelman Motors v. Scheftel, 231 Md. 300, 189 A.2d 818, in cases where meritorious and substantial reasons are shown. J. B. Corporation v. Fowler, 258 Md. 432, 265 A.2d 876. But unless there is some showing of good cause under Md. Rule 530 there can be no discretion for the court to exercise. ³ We are therefore called upon in this case to determine first, what will constitute 'good cause' and, secondly, whatever it is, if there was any showing of it to the court below.

-good cause-

Md. Rule 530 c. requires the party desiring suspension of the dismissal to take affirmative action by motion before the court's discretion may be exercised. Because the Court of Appeals made no attempt to define 'good cause' in its rule, but committed that determination to the court's discretion, we might assume that it was the Court's intent to give a trial judge broad authority to forgive the neglect of a case which its rule condemns. Cf. Madore v. Baltimore County, 34 Md.App. 340, 346, 367 A.2d 54. That assumption, however, is not warranted because although the Court did not define the term by rule, it has since restricted its meaning by case law, while affirming the notion that suspending the dismissal is discretionary. After explaining the underlying purposes of the dismissal rule in Stanford, supra, 260 Md. at 555, 273 A.2d at 192, Judge Digges turned his attention, on behalf of the Court, to the narrowness of the escape route provided by the rule:

'Seizing upon eighteen months as the utmost reasonable time period in which a case can be permitted to remain catatonic, that rule permits the trial judge to allow a brief reprieve where it is affirmatively demonstrated that total inaction has been justified. The decision to permit the redemption of a cause lost through delay involves subtle judgment, requiring the trial judge to balance the individual litigant's right to ultimately have his day in court against the public's paramount interest in insuring that all citizens can obtain a prompt resolution of conflicts while they still remain current. The primary focus of his inquiry should be on diligence and whether there has been a sufficient amount of it during an eighteen month period of inaction for the court to affirmatively conclude that the case should not be automatically dismissed. That decision, whatever it may be, rests in the sound discretion of the trial judge and we will only invade his province on appeal in extreme cases of clear abuse.' (emphasis added).

Thus, while the Court of Appeals has assured us that the suspension of a dismissal under Rule 530 remains discretionary, it has also, by its careful language, made it evident that such discretion may be exercised only within the niggardly limits set forth. We, therefore, conclude that the good cause rack which the moving party must provide upon which a trial judge may hang his discretionary hat in the absence of proceedings of record, must consist of some showing of diligence in moving the case forward, which was not reflected by the record. Whether such conduct is diligent, of course, must depend upon the circumstances of each case and its effect under the circumstances is measured by the court's discretion.

We have carefully chosen the words 'some showing' rather than 'some evidence' of diligence because of the nature of the review reflected by Tydon v. Spong, supra. Although the Court in that case was not confronted with Md. Rule 530, it had before it a comparable local dismissal rule and affirmed reinstatement under that rule. But if we look to it for guidance in seeking the evidentiary limitations upon us when reviewing an exercise of discretion under a dismissal rule, it appears there is very little upon which we cannot rely for a showing of good cause. There, the Court, speaking through Chief Judge Hammond, expressly sought its jurisdiction in the petition, the answer, statements of fact in the briefs and apparently assertions at argument:

'In the present case the allegations of the petition to reinstate and of the answer thereto, considered with the statements of fact in the brief and at the argument, on which the parties did not differ significantly or materially, lead us to believe that Judge Hamill could properly have concluded that counsel for the plaintiff in Garrett County, in good faith and with reason, believed as a result of his negotiations and conversations with his brother at the Garrett County bar who represented the defendant, it would not be necessary to take action as to the status of the case until either a settlement had been reached or a trial date agreed on.' (emphasis added). 237 Md. at 111, 205 A.2d at 222.

Nor do the parties here 'differ significantly or materially' upon that which transpired below. Although it is inconceivable that the Court of Appeals would consciously indicate that we should hold what would be in effect a de novo review on appeal, without even evidentiary safeguards, the case before us is so wanting in good cause as to permit our indulgence and still arrive at the same result. Thus, recognizing the probable error of our ways in so favoring appellee's cause, we come down on the side of prudence. We, too, shall fling our evidentiary net broadcast, but...