Owen v. Freeman

• Decision Date: 25 January 1977
• Docket Number: No. 58,58
• Citation: 279 Md. 241,367 A.2d 1245
• Parties: Margaret A. OWEN v. Norman R. FREEMAN, Jr.
• Court: Maryland Court of Appeals

Page 241

279 Md. 241

367 A.2d 1245

Margaret A. OWEN v. Norman R. FREEMAN, Jr.

No. 58.

Court of Appeals of Maryland.

Jan. 25, 1977.

Jonathan Schochor, Baltimore (Marvin Ellin, Baltimore, on the brief), for appellant.

Richard Bloch, Baltimore (John F. King and Anderson, Coe & King, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

DIGGES, Judge.

This is the tale of a stale case. The legal issue presented by this appeal concerns the applicability of Maryland Rule 625 a, pertaining to trial courts' revisory power and control, to judgments of dismissal for lack of prosecution pursuant to Rule 528 L(6) of the Supreme Bench of Baltimore City. Concluding both that Rule 625 a does apply to such final judgments and that the trial judge here erroneously failed to exercise the discretion entrusted to him under that rule, we will vacate his order and remand the action for further proceedings.

Before delving into the intricacies of these rules, we will initially delineate what has occurred with respect to this case, as yet not tried, over the past four and three-quarter years. Appellant Margaret A. Owen instituted this medical malpractice action in the Baltimore City Court against appellee Norman R. Freeman, Jr., M.D., on April 10, 1972. It was initially scheduled for trial on October 4, 1973, but due to a request of the defendant, an assignment and consent order was entered on September 19, 1973, resetting the action for trial on a 'right-of-way' basis for April 15, 1974. Although the court specifically directed that counsel 'avoid the starting of any prior proceeding immediately in advance of the instant case that might intrude into the trial date hereby set,' the case was not tried on that April day. In fact, other than the plaintiff's filing of interrogatories in November 1973 and the defendant's answers thereto in January of the following year, the docket entries disclose no further activity until July 10, 1975. At that time a notice was mailed to counsel pursuant to Supreme Bench Rule 528 L informing them that an order of dismissal for lack of prosecution would be entered after the expiration of thirty days unless prior to that time a motion was filed seeking reinstatement of the case to the trial docket. ¹ Such a motion was filed by the plaintiff's counsel on August 6, within the thirty-day period, and twelve days thereafter, Judge Solomon Liss signed an order setting trial for December 1, 1975, as a 'right-of-way' case, with 'no postponement.'

Perhaps the 'rain and wind (that) beat dark December' ² in 1975 kept counsel away from the Baltimore City Courthouse, but in any event, the action was not tried as scheduled. On January 12, 1976, the clerk of the court, as authorized by subsection (6), entered a judgment of non pros in favor of the defendant by marking the case: 'Dismissed under Rule 528 L of the Supreme Bench of Baltimore City for lack of prosecution. Judgment absolute in favor of the defendant for costs of suit.' Two days later, plaintiff Owen filed a motion 'pursuant to Maryland Rule 625 a and Supreme Bench Rule 528 L,' accompanied by a request for a hearing, to strike the judgment and reinstate the case; however, no hearing was held and that same day the motion was denied by Chief Judge Anselm Sodaro without explanation. On the sixteenth of January, Owen filed a motion to strike the court's January 14 order on the ground that she had not been afforded her requested hearing on the matter. Following a hearing, Chief Judge Sodaro on February 23 issued an order, accompanied by a memorandum opinion which mentioned Supreme Bench Rule 528 L(4) but did not refer to Rule 625 a, once again denying the plaintiff's reinstatement request. ³ On March 17 Owen's counsel noted an appeal to the Court of Special Appeals from the order of February 23, but we granted certiorari before that court considered the case.

The power of courts in this State to set aside judgments during the term they were entered has long been recognized as inherent to them as courts of record, and is generally subject only to the restraints imposed by rules of court. See Tasea Investment Corp. v. Dale, 222 Md. 474, 478, 160 A.2d 920, 923 (1960); Sunderland v. Braun Packing Co., 119 Md. 125, 130-31, 86 A. 126, 127-28 (1912); Dorsey v. Gary, 37 Md. 64, 74, 11 Am.Rep. 528, 529 (1872); Kemp v. Cook, 18 Md. 130, 138, 79 Am.Dec. 681 (1861); 3 J. Poe, Pleading and Practice § 388 (6th ed. H. Sachs 1975); cf. United States v. Morgan, 307 U.S. 183, 197, 59 S.Ct. 795, 83 L.Ed. 1211 (1939); United States Fidelity & Guaranty Co. v. Poetker, 180 Ind. 255, 102 N.E. 372, 376 (1913), error dismissed, 235 U.S. 683, 35 S.Ct. 201, 59 L.Ed. 423 (1914); State v. Cannon, 244 N.C. 399, 94 S.E.2d 339, 342 (1956); In re Loevinger's Estate, 40 S.D. 450, 167 N.W. 726, 727 (1918). See generally 20 Am.Jur.2d Courts §§ 78-79 (1965); 21 C.J.S. Courts § 88 (1940). This power may now be exercised in civil actions by trial courts, other than the District Court, only in accord with the dictates of Maryland Rule 625, Section a of which provides:

For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.

As is clear from the language of Rule 625 a, no judgment is specifically excluded from the operation of the rule, and our cases hold it applies to all final judgments. See Devidson v. Miller, 276 Md. 54, 85-86, 344 A.2d 422, 440-41 (1975); Owl Club v. Gotham Hotels, 270 Md. 94, 100, 310 A.2d 534, 537 (1973); Maggin v. Stevens, 266 Md. 14, 16, 291 A.2d 440, 441 (1972). See also Hughes v. Beltway Homes, Inc., 276 Md. 382, 347 A.2d 837 (1975). Moreover, this Court has consistently indicated that judgments entered in situations virtually identical with that of the present case are subject to this revisory power. We have held that a judgment of non pros, the same type that was entered here, is final for purposes of the applicability of Rule 625 a, Williams v. Snyder, Adm'r, 221 Md. 262, 267, 155 A.2d 904, 907 (1959); that a dismissal for want of prosecution pursuant to local rules of other circuits is subject to the trial court's Rule 625 a revisory power, Tydon v. Spong, 237 Md. 107, 110-11, 205 A.2d 220, 222 (1964) (Fourth Maryland Judicial Circuit); Petite v. Estate of Papachrist, 219 Md. 173, 177, 148 A.2d 377, 380 (1959) (Circuit Court for Howard County); Crawford v. Richards, 193 Md. 236, 243, 66 A.2d 483, 486 (1949) (Circuit Court for Allegany County); and that a dismissal for failure to place a case on the consolidated trial docket in accordance with Supreme Bench Rule 528 C is not exempt from the operation of Rule 625 a. Mut. Benefit Soc'y v. Haywood, 257 Md. 538, 540, 263 A.2d 868, 870 (1970). See also Bowen v. Rohnacher, 15 Md.App. 280, 290 A.2d 560, cert. denied, 266 Md. 742 (1972) (where Court of Special Appeals applied Rule 625 a to case dismissed under Supreme Bench Rule 528 L(2)). With respect to Maryland Rule 530, the statewide prescription governing dismissals for lack of prosecution in civil cases, we think it is significant that the Committee Note to Section c (appearing at page 274 of Volume 9B of the Maryland Code (1957, 1971 Repl.Vol.)), as that Section was originally adopted, stated that 'relief (from a Rule 530 dismissal) may be granted under Rule 625.' And contrary to what the Court of Special Appeals has stated in Armes v. Cook, Md.App., 367 A.2d 85, 87 (1977) and Chase v. Jamison, 21 Md.App. 606, 613, 320 A.2d 580, 584 (1974), we find nothing which indicates otherwise in Pappalardo v. Lloyd, 266 Md. 512, 295 A.2d 221 (1972) (per curiam). ⁴ As we held in Davidson v. Miller, supra, 276 Md. at 86, 344 A.2d at 440-41, 'ordinarily in a civil proceeding the trial court possesses the power to reconsider and correct any of its rulings . . . until a final judgment becomes enrolled.' Finding nothing out of the ordinary with respect to final judgments entered pursuant to Supreme Bench Rule 528 L(6) dismissals and nothing in our rules or decisions which would indicate any intent that Maryland Rule 625 a should no be applied to these dismissals for lack of prosecution, we conclude that it applies. Because both Chase v. Jamison, 21 Md.App. 606, 320 A.2d 580 (1974) and Hoffer v. Anthony De Crenzo, Inc., 26 Md.App. 655, 338 A.2d 424, cert. denied, 276 Md. 745 (1975) and 423 U.S. 1088, 96 S.Ct. 880, 47 L.Ed.2d 99 (1976), are premised on the ground that dismissals under Supreme Bench Rule 528 L(6) are not subject to being stricken under Maryland Rule 625 a, those cases must be, and are, overruled. ⁵

It may be suggested that the Supreme Bench in adopting Rule 528 L intended that dismissals pursuant to its provisions would not be subject to reinstatement under Maryland Rule 625 a. Even if we assume the words of Supreme Bench Rule 528L(6)-that cases not reinstated pursuant to subsections (3) and (4) 'shall under no conditions be ordered reinstated by any order of Court or otherwise'-were intended to preclude the use of Rules 625 a, such an intent could not be effectuated. This is so because those parts of any local rule which are contrary to or inconsistent with the Maryland Rules are abrogated by the latter. ⁶ Mut. Benefit Soc'y v. Haywood, supra, 257 Md. at 541, 263 A.2d at 871; Bastian v. Watkins, 230 Md. 325, 331, 187 A.2d 304, 307 (1963); see Md.Const., Art. IV, § 18A; Md.Rule 1 f. Moreover, the courts in Baltimore City cannot 'relinquish' or 'waive' the mandate expressed in Maryland Rule 625 a since it has long been recognized that the courts of this State cannot dispense with validly established rules. See, e. g., Carey v. Safe Dep. & Tr. Co., 168 Md. 501, 518, 178 A. 242, 248-49 (1935); Washington & R. Rwy....