Pickett v. Sears

• Decision Date: 13 July 2001
• Docket Number: No. 104,104
• Citation: 775 A.2d 1218,365 Md. 67
• Parties: Allan M. PICKETT v. SEARS, ROEBUCK & COMPANY.
• Court: Maryland Court of Appeals

775 A.2d 1218

365 Md. 67

Allan M. PICKETT v. SEARS, ROEBUCK & COMPANY.

No. 104, September Term, 2000.

Court of Appeals of Maryland.

July 13, 2001.

Richard M. Winters, Frederick, for petitioner.

Ronald S. Canter and Ronald M. Abramson (Harry K. Wolpoff of Wolpoff & Abramson, L.L.P., on brief) Rockville, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ BATTAGLIA, Judge.

Appellant, Allan Pickett, (hereinafter "Pickett"), comes before this Court to challenge the constitutionality of substituted service under Maryland Rule 3-121(c) used in a debt collection action brought by appellee, Sears, Roebuck & Company (hereinafter "Sears"). Pickett argues that Sears's service of process, pursuant to an order of the District Court of Maryland, sitting in Carroll County, failed to comport with the requirements of due process under the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights.

In the event of an affirmance, Pickett also requests that this case be remanded to the Circuit Court for Howard County for consideration of whether the amount in controversy, as set forth in Md.Code Courts & Judicial Proceedings Article (1974, 1998 Repl.Vol.) § 4-402(e), is sufficient to sustain his demand for a jury trial filed pursuant to Maryland Rule 3-325. We granted certiorari to determine the applicability of the substitute service of process provisions of Maryland Rule 3-121(c) to the facts of this case, and the process by which district and circuit courts should explore the validity of a jury trial demand under Maryland Rule 3-325.

I. Facts

On July 25, 1995, appellee, Sears, Roebuck & Company, (hereinafter "Sears") filed a debt collection action against appellant, Allan Pickett, in the District Court of Maryland, sitting in Carroll County (hereinafter "Sears action"). The Sears action alleged that Pickett had violated the terms of his consumer credit card agreement with Sears by failing to pay the balance due on his installment account. Pickett had failed to respond to a number of demand letters sent by Sears when it attempted to collect on the account.

Sears filed suit against Pickett for $3,234.52 plus interest and attorneys fees. The District Court issued a summons to be served on Pickett, which Sears sent to Pickett by certified mail, return receipt requested, to his post office box address. The summons was returned unclaimed and a "non-est" return was docketed with the District Court on November 16, 1995.

On July 25, 1996, another summons was issued with service to be completed by August 24, 1996. Sears hired a private process server, Gwin B. Wilt, to effect personal service on Pickett. Wilt attempted personal service of Pickett at his home address at 170 Baughmans Lane in Frederick, Maryland on three occasions: August 13, 1996, at 6:25 pm; August 18, 1996, at 11:15 am; and August 24, 1996, at 10:30 am. To confirm the correct address, Wilt spoke with Constable Stan Michaeleski, who was also attempting service in an unrelated matter. Michaeleski confirmed that 170 Baughmans Lane was a valid address for Pickett; Michaeleski had made more than thirty unsuccessful attempts to serve Pickett in an unrelated matter.

Wilt attempted service in the Sears action again on October 8, 1996, at 5:30 pm, at which time she posted a message on the door regarding the District Court summons. On October 16, 1996, at 5:20 pm, Wilt attempted service for the fifth time, wherein she noted that the message that she had posted on October 8th had been removed. Wilt then posted a second message on the door for Pickett.

Based on the difficulties in obtaining personal service on Pickett, Sears filed a Motion for Service of Process Pursuant to Rule 3-121(c). On December 5, 1996, the District Court granted the motion allowing for substituted service under Rule 3-121(c). The Order specifically stated that service on Pickett was to be made, "by posting a copy of the summons and complaint as near to the Defendant's residence as is practicable and through mailing by the Clerk of the Court a copy of the summons and complaint by way of first class mail, postage prepaid to the Defendant's [Pickett's] last known residence...." The District Court re-issued a writ of summons for Pickett on March 28, 1997. Sears employed a private process server, James C. White, who sent a copy of the summons and complaint to Pickett by first-class mail on March 31, 1997, and posted the summons and complaint at Pickett's residence on April 3, 1997.

On May 16, 1997, Pickett filed a Motion to Quash Service of Process, stating that Sears had failed to acquire in personam jurisdiction over him. Pickett alleged that Sears violated Rule 3-126(e)¹ by failing to make a timely return of process including a copy of the process served. The motion also alleged that references in Wilt's affidavit of due diligence submitted to the court as part of Sears's application for an order granting authorization of substituted service contained hearsay statements of Constable Michaeleski, which could not be used to form the basis for granting an order for substituted service under Rule 3-121(c).

On July 14, 1997, a hearing was held on Pickett's motion to quash. Pickett argued that there was insufficient evidence to show that he had been avoiding service making personal service or service by certified mail impossible or impracticable, when the constable's hearsay statements were excluded. Pickett never asserted that he had not received a copy of the summons and complaint.

At the hearing, Sears tendered the return of service and copy of the process served to the court. In denying Pickett's motion to quash, the court found that the summons and complaint posted at Pickett's residence on April 3, 1997, and the package containing the same documents sent by first class mail on March 31, 1997, qualified as valid service of process pursuant to Rule 3-121(c) to establish in personam jurisdiction.

At the end of the July 14, 1997 hearing, Sears agreed to let Pickett have fifteen days within which to file a notice of intention to defend and a request to transfer venue. On July 29, 1997, Pickett filed a Motion for Reconsideration of his motion to quash. The court denied this motion on July 30, 1997.

On August 21, 1997, Pickett filed a notice of intention to defend and a request for a jury trial, thirty-eight days after the trial court's denial of Pickett's motion to quash and twenty-three days after the last day of the extension. On August 26, 1997, Sears filed a motion to strike Pickett's request for a jury trial asserting that Pickett had not made a timely request and that the amount in controversy did not meet the jurisdictional requirements for a jury trial. The trial court struck Pickett's demand for a jury trial stating that the amount in controversy did not exceed $5,000.

Following the trial court's denial of his motion to quash service of process and the striking of his jury demand, Pickett filed a separate action in the form of a Petition for Writ of Certiorari in the Circuit Court for Carroll County, Allan M. Pickett v. Sears, Roebuck & Co. et al., Case No. C-97-25675, against Sears and the District Court of Maryland, sitting in Carroll County (hereinafter "Pickett action").² In the Pickett action, Pickett challenged the jurisdiction of the District Court to authorize service of process under Rule 3-121(c), alleging that such service amounted to an unconstitutional violation of his due process rights. On January 19, 1999, the Circuit Court for Carroll County denied Pickett's petition, reasoning that the District Court had jurisdiction under Maryland Rule 3-121(c) to order the substituted service in this case, and that Pickett had failed to demonstrate any constitutional violation abrogating such jurisdictional authority. On February 2, 1999, the court entered the order denying the Petition for Writ of Certiorari in the Pickett action. Pickett did not appeal this judgment.³

On May 28, 1999, upon Sears's motion, the Sears action was transferred from the District Court sitting in Carroll County to the District Court sitting in Howard County and was set for trial. A trial was held on September 27, 1999. Pickett did not testify at trial, nor did he offer any evidence to refute the records regarding his account as offered into evidence by Sears. The court granted a judgment on the papers for Sears in the amount of $3234.52, plus prejudgment interest of $2931.01, attorney's fees of $485.18, and costs of $73.00. Thereafter, Pickett filed a motion to vacate the judgment, which the trial court denied on October 28, 1999.

On November 29, 1999, Pickett appealed the trial court's decision to the Circuit Court for Howard County, which affirmed the decision in favor of Sears.⁴ The Circuit Court found that the facts demonstrated a good faith effort by Sears to serve Pickett prior to obtaining the order authorizing substituted service under Rule 3-121(c). The court also reasoned that the validity of service of process would not be affected by Sears's failure to make prompt proof of service pursuant to Maryland Rule 3-126(g).⁵ The Circuit Court also found that Pickett failed to file a timely jury trial demand even considering the fifteen day extension period. The Circuit Court agreed with Pickett that the District Court did not have jurisdiction to strike the jury demand on the basis of an insufficient amount in controversy, but it found that the jury demand was untimely and would have been stricken by the District Court on that basis.

Pickett now seeks relief before this Court, pursuant to Maryland Rule 8-302(b), and Code, Cts. & Jud.Proc. § 12-305, and presents the following questions for our consideration:

1. Did the District Court err as a matter of law by ruling that substituted service of process as ordered and effectuated in this case conferred in personam jurisdiction upon the court?

2...