Mooring v. Kaufman

• Decision Date: 14 October 1983
• Docket Number: No. 141,141
• Citation: 466 A.2d 872,297 Md. 342
• Parties: Barbara MOORING v. Lillian C. KAUFMAN.
• Court: Maryland Court of Appeals

Page 342

297 Md. 342

466 A.2d 872

Barbara MOORING v. Lillian C. KAUFMAN.

No. 141.

Court of Appeals of Maryland.

Oct. 14, 1983.

Marc J. Atas and Harold P. Dwin, Baltimore (Cohen, Dwin & Garfield, P.A., Baltimore, on brief), for appellant.

Robert L. Simmons, Baltimore (C. Russell Fields, George W. Fanshaw, III, Simmons & Fields and Andrew Lioi, Baltimore, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

RODOWSKY, Judge.

Substituted service of original process was attempted in this case pursuant to Maryland Rule 107 a 3. The writ of summons was quashed and the Plaintiff appeals from that order. We shall hold that the order in this case is an appealable final judgment. We shall also affirm because the record shows that, at the time of the attempted service, the premises at which substituted service was undertaken were not the "dwelling house or usual place of abode" of the Defendant, as required by MD.R. 107 a 3.

Appellant, Barbara Ann Mooring (Plaintiff), by a declaration filed in the Eighth Judicial Circuit on April 9, 1980, averred that she had been injured on October 14, 1979 in an automobile collision that occurred on a parking lot and involved a vehicle operated by her and one alleged to have been owned and negligently operated by the Appellee, Lillian C. Kaufman (Defendant). Service of process was directed to be made at 25 Maple Court, Elkton, Cecil County, Maryland, an address later described in an affidavit of Plaintiff's counsel as the one "listed on the accident report." On April 12, 1980 the writ was returned non est by the Cecil County Sheriff who reported that the Defendant had "moved to 1715 28th St. [,] Orlando, Florida." Suit papers sent by certified mail to that address under MD.R. 107 a 2 were returned by the postal service on July 18, 1980 with the notation, "Moved." Inquiry by letter to the U.S. Post Office in Orlando developed a record of a change of address from 1715 28th Street to 527 "Nowell," Orlando, Florida 32811. Papers sent to the latter address for service by certified mail were returned on September 18, 1980 with the notation that the addressee had moved and had left no forwarding address.

The foregoing facts were presented to the court below in an affidavit of Plaintiff's counsel to support an order authorizing substituted service pursuant to MD.R. 107 a 3 which deals with service of process to be made outside of the State of Maryland by other than personal delivery or registered mail, when a defendant has acted to evade service of process. ¹ That rule incorporates the manner of service provided in MD.R. 104 h 1 which provides h. Service Other Than Personal Delivery or Registered Mail.

1. When Allowed--How Made.

Service other than by personal delivery or registered mail, upon a domiciliary or resident or one who maintains his principal place of business in this State, may be made under the following circumstances:

When proof is made by affidavit that a defendant has acted to evade service, the court may order that service be made by mailing a copy of the summons together with a copy of the original pleading to the defendant at his last known residence and delivering a copy of each to a person of suitable age and discretion at the place of business, dwelling house or usual place of abode of the defendant within the State.

The order requested by the Plaintiff was entered on November 7, 1980, and we shall assume, arguendo, that the facts set forth in the supporting affidavit were sufficient to find that the Defendant had acted to evade service. In compliance with the further procedural step of "mailing ... to the defendant at his last known residence," the suit papers were sent by ordinary mail, postmarked November 10, 1980, to the Defendant at the "Nowell" address. That mailing was returned marked "moved, left no address."

To comply with the requirement of "delivering ... to a person of suitable age and discretion at the ... dwelling house or usual place of abode of the defendant," Plaintiff employed a private process server in Orlando, whose affidavits reflect the following. She was engaged around April of 1981 to serve the Defendant at 527 "Noel." At what she believed was that address there were two houses on a single lot, one in front and one to the rear. When she first attempted service there, no one was home at the house in front, and she obtained the name and address of the landlord from a Ms. "Vicky" Nance at the rear house. Ms. Nance was "not sure about a Lillian Kaufman." The process server then spoke with the landlord, Mrs. Charles Howard, who lived nearby. The affidavit describes their conversation:

Ms. Howard did state that Ms. Lillian Kaufman had been a tenant, but not any longer. She stated that she did not know where Ms. Kaufman went when she left. She stated Ms. Kaufman mentioned to her when they had spoken previously that she (Ms. Kaufman) had lived in Maryland and one day may go back there, or mentioned something about the state of Michigan.

The process server then returned to the "Noel" premises and served Ms. Vicki Nance.

At some point Plaintiff's counsel had established communications with the liability insurer of the Defendant. After proof of service by delivery to Ms. Nance was filed on April 14, 1981, counsel for the insurer, on behalf of the Defendant, filed a motion raising preliminary objection which, among other grounds, relied upon an affidavit by Ms. Nance that she resided at 525 "Nowell." This precipitated a second effort by Plaintiff at substituted service in Florida. The same process server reinterviewed Mrs. Howard who explained that 527 "Noel" had formerly been her home, that the dwelling to the rear was a converted former garage, and that the two buildings have separate post office addresses. She advised that the person then residing in the house on the front of the lot was a Larry Nixon. The process server went to 527 "Noel" where a female who identified herself as Jeanette Nixon, the wife of Larry Nixon, answered the door. In the words of the process server's affidavit,

Jeanette Nixon then accepted the papers and was very cooperative. She stated she hopes she does not get into trouble, but would accept and would hold onto the papers since she was not sure what to do with them.

The circuit court ordered the service of process quashed, and we granted certiorari on our own motion prior to consideration of the Plaintiff's appeal by the Court of Special Appeals.

(1)

The first issue is the Defendant's contention that there is no appealable judgment. In essence the Defendant's insurer says that the action remains pending in the court below and may go forward whenever the Plaintiff locates the Defendant and effects service. However, "this Court has consistently entertained appeals from orders quashing writs of summons and the returns thereon, when the result of the rulings of the lower Court was to put the parties out of Court." Sharpless Separator Co. v. Brilhart, 129 Md. 82, 88, 98 A. 484, 487 (1916). The "accepted test in determining finality" is whether "[t]he effect of the court's ruling was to put the plaintiff out of court and deny her the means of further prosecuting her case ...." McCormick v. St. Francis De Sales Church, 219 Md. 422, 426-27, 149 A.2d 768, 771 (1959) (appeal from order granting motion ne recipiatur to declaration). In Hunt v. Tague, 205 Md. 369, 109 A.2d 80 (1954) service on the defendant, by delivering the writ to the defendant's wife, was quashed because the defendant died before the attempt at service. This order effectively put the plaintiff out of court and was appealable. There was but one defendant named in the suit so that the plaintiff could not amend to substitute the decedent's personal representative (see MD.R. 320 b 1), and the institution of a new action was barred by limitations. Of similar effect is State ex rel. Bickel v. Pennsylvania Steel Co., 123 Md. 212, 91 A. 136 (1914). Jurisdiction over a foreign corporation, allegedly doing business in Maryland, was sought to be obtained by serving a Maryland corporation as agent of the defendant. That service was quashed. This was an appealable order because the trial court determined that the foreign corporation was not doing business in Maryland and that the local entity was not its agent. Consequently, the plaintiff had no means of obtaining jurisdiction over the defendant, under the law as it stood at that time, and the plaintiff was effectively out of court. See also Hillyard Construction Co. v. Lynch, 256 Md. 375, 379 n. 1, 260 A.2d 316, 318 n. 1 (1970) (dicta statement that an appeal will lie from an order quashing service of summons); Davidson Transfer & Storage Co. v. Christian, 197 Md. 392, 79 A.2d 541 (1951) (appeal from the quashing of a writ of summons for want of venue is not premature). There are also many cases in which this Court has entertained appeals from determinations that the plaintiff had failed to acquire in personam jurisdiction over a nonresident defendant and in which appealability was implicitly recognized. See Mohamed v. Michael, 279 Md. 653, 370 A.2d 551 (1977) (dismissal of declaration on MD.R. 323 motion); Geelhoed v. Jensen, 277 Md. 220, 352 A.2d 818 (1976) (same); Harris v. Arlen Properties, Inc., 256 Md. 185, 260 A.2d 22 (1969) (same); Vitro Electronics v. Milgray Electronics, Inc., 255 Md. 498, 258 A.2d 749 (1969) (same); Novack v. National Hot Rod Ass'n, 247 Md. 350, 231 A.2d 22 (1967) (quashing writ of summons); Gilliam v. Moog Industries, Inc., 239 Md. 107, 210 A.2d 390 (1965) (quashing writ of summons; judgment for defendant for costs); White v. Caterpillar Tractor Co., 235 Md. 368, 201 A.2d 856 (1964) (MD.R. 124 c dismissal and quashing of writ of summons); Chesapeake Supply & Equipment Co. v. Manitowoc Engineering Corp., 232 Md. 555, 194 A.2d 624 (1963) (quashing writs of summons and entry of non pros ); Feldman v. Thew Shovel Co.,...