Peay v. Barnett

Citation236 Md.App. 306,181 A.3d 931
Decision Date29 March 2018
Docket NumberNo. 1726, Sept. Term, 2016 ,1726, Sept. Term, 2016
Parties Phlonda PEAY v. Reginald BARNETT
CourtCourt of Special Appeals of Maryland

Argued by: Michael Steer (Mark E. Herman, on the brief), Baltimore, MD, for Appellant.

Argued by: Jeffrey L. Friedman, Reisterstown, MD, for Appellee.

Panel: Eyler, Deborah S., Berger, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.

Zarnoch, J.

On its surface, this case seems to involve a simple question—whether the Circuit Court for Baltimore City correctly denied a defendant's motion to vacate a default judgment against her where there was a defect in service of process, but where she likely had actual notice of the proceedings and did not diligently challenge the judgment for more than six years. Logic would suggest an obvious yes. However, relevant caselaw blocks an easy answer here. For the U.S. Supreme Court has said that "[a] defendant is always free to ignore judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding." Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinée , 456 U.S. 694, 706, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). And the Court of Appeals of Maryland, relying on the proposition that there can be no valid proceeding against a defendant in the absence of proper service, has allowed a challenge four years after entry of a default judgment and six years after actual knowledge of the litigation by the defaulting party. See Little v. Miller , 220 Md. 309, 153 A.2d 271 (1959). Further complicating this increasingly complicated issue is a trend in the caselaw—particularly in federal courts—making it easier to find that a defaulting defendant has waived personal jurisdiction by his or her conduct. See Ins. Corp. of Ireland , supra , 456 U.S. at 703–05, 102 S.Ct. 2099. In reliance upon this authority, we conclude that in this case, the circuit court, rather than focusing on post-judgment diligence, should have considered whether the appellant, Phlonda Peay, has waived personal jurisdiction. Thus, we reverse and remand this case for further proceedings.


In 2006, appellee Reginald Barnett, who was an inmate at the Maryland Correctional Adjustment Center ("Super Max") was seriously injured after several officers entered his cell and shackled him. Barnett was taken to the hospital in Super Max, and then transported to an outside hospital to have his wounds

sutured, and ultimately, was transferred to a different prison facility.1 On February 19, 2008, Barnett filed a complaint in the Circuit Court for Baltimore City against several officers whom Barnett alleged were involved in the incident.2 The defendants included appellant Phlonda Peay, who was a captain at Super Max at the time of Barnett's injuries. Although Barnett alleged that only some of the officers were directly involved, he asserted that Peay, along with three others, approved and supervised the other officers' conduct.

According to the docket, Peay was originally listed as "Capt. Phlander Peay." The complaint stated that Peay and the five other officers had the mailing address of the DPSCS in Baltimore City. On May 20, 2008, a notice of a motions hearing was mailed to Peay and the other five officers via DPSCS. A similar notice was sent to the same address on June 2, 2008, and another on June 12, 2008 and June 19, 2008. On July 9, 2008, Barnett filed a request to defer dismissal, apparently because he had not yet been able to serve the six individual officers. The court granted the request and deferred dismissal until December 31, 2008. Another notice of a motions hearing was mailed to Peay at DPSCS on August 11, 2008, and again on September 2, 3, and 5, 2008. After the court denied the third motion to dismiss filed by the State of Maryland, DPSCS, and the Department of Public Safety, more notices were sent to Peay on September 22 and October 22, 2008.

A private process server went to Peay's Owings Mills apartment on December 25, 2008 to serve Peay with the complaint and a summons. Peay's sister, Donna Dingle, answered the door. The process server filed an affidavit on December 31, 2008 stating that Peay's "sister and co-resident" had been served with the papers at Peay's Owings Mills home address in Baltimore County. Peay did not file an answer to the complaint. The docket indicates that after Dingle was served at Peay's home address, the court's notices were sent to Peay with her correct name, often to both her home address as well as to DPSCS.

Reminder notices were mailed to all of the defendants on May 14, 2009. The trial was set to begin on August 3, 2009. On June 2, 2009, Barnett filed a request for an order of default against the five remaining defendants, including Peay. On July 1, 2009, the circuit court entered a default order against each of the defendants and notice of the default order was mailed to Peay's Owings Mills address.3 On August 7, 2009, the circuit court directed the Clerk of the Court to enter judgment in favor of Barnett, and against the five remaining defendants for $250,000 in compensatory non-economic damages, and $250,000 in punitive damages. All five defendants were held jointly and severally liable for a total of $500,000. Copies of the final judgment were mailed on the same day.

From January of 2010 through June of 2015, Barnett filed multiple requests for writs of garnishment of wages against the defendants' employers, including a writ of garnishment to Peay's then-employer, the University of Maryland Medical System, which was served on or around on June 1, 2015. Approximately nine months after the writ was filed, on March 28, 2016, Peay took action for the first time in this case by filing a motion to set aside the judgment of default and requesting a hearing. Peay's motion included two affidavits and a copy of her lease during the period when Peay's sister, Dingle, was served. The first was the sworn statement of Peay, stating that Dingle was only visiting Peay and their mother, who lived on the floor above Peay, and that Dingle did not live with Peay on December 25, 2008 or any other relevant time. The second was an affidavit from Dingle, stating that she did not live with Peay at the time of service and did not give her the papers that were served on her on December 25, 2008. Peay's lease indicated that it was effective at the time the papers were served on her sister and that Peay was the only named tenant in the residence.

On May 25, 2016, the circuit court held a hearing on Peay's motion to set aside the judgment. In a July 15, 2016 memorandum opinion, the circuit court found that service on Peay's sister was invalid, and that this constituted a "mistake" under Md. Rule 2–535(b). However, the circuit judge denied the motion because Peay had not diligently sought to set aside the judgment. Peay appealed to this Court.


This case requires consideration of procedural rules relating to service of process, personal jurisdiction, the entry of a default judgment, and a circuit court's discretion to set aside or revise an order of default. Typically, we review the circuit court's decision whether to grant a motion to revise a judgment pursuant to Md. Rule 4

2–535(b)5 under an abuse of discretion standard. See Rule 2–535(b) ; Wells v. Wells , 168 Md. App. 382, 394, 896 A.2d 1082 (2006) ("The existence of a factual predicate of fraud, mistake, or irregularity, necessary to support vacating a judgment under Rule 2–535(b), is a question of law. If the factual predicate exists, the court's decision on the motion is reviewed for abuse of discretion.") (Citation omitted).

The basis of Peay's motion to set aside the judgment is that she was not properly served with notice of the proceedings. Rule 2–121(a) governs the proper method of service of process, and requires the following:

Service of process may be made within this State or, when authorized by the law of this State, outside of this State (1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving a copy of the summons, complaint, and all other papers filed with it at the individual's dwelling house or usual place of abode with a resident of suitable age and discretion ; or (3) by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: "Restricted Delivery—show to whom, date, address of delivery." Service by certified mail under this Rule is complete upon delivery. [...]

Thus, because service was not made on Peay, herself, to be valid, it must have been left "with a resident of suitable age and discretion" at Peay's "dwelling house or usual place of abode." Rule 2–121(a). The circuit court's decision "[w]hether a person has been served with process is essentially a question of fact." Wilson v. Md. Dep't of Env't , 217 Md. App. 271, 286, 92 A.3d 579 (2014) (Alteration in original) (quoting Harris v. Womack , 75 Md. App. 580, 585, 542 A.2d 409 (1988) ).

A. The Two–Step Default Judgment Process

Rule 2–613 governs the default judgment process. An underlying purpose of the default judgment rule is to provide the plaintiff "a means of relief against the delay and neglect of defendants." See Smith–Myers Corp. v. Sherill , 209 Md. App. 494, 508, 60 A.3d 90 (2013) (quoting Glass v. Glass , 284 Md. 169, 172, 395 A.2d 485 (1978) ); see also Md. Rule 2–613. The Rule provides the circuit court with broad discretion to vacate an order of default before it becomes an enrolled, final judgment. See Md. Rule 2–613(a). Additionally, prior to 1984, Maryland's default judgment process provided the circuit court with the power to enter a default judgment once the time period for which a defendant was required to plead expired; that judgment was considered final and the defendant could file an immediate appeal, even before the...

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