Wiant v. Hudson

648 A.2d 482, 101 Md. App. 74, 1994 Md. App. LEXIS 105
CourtCourt of Special Appeals of Maryland
DecidedJune 29, 1994
DocketNo. 1113
StatusPublished

This text of 648 A.2d 482 (Wiant v. Hudson) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiant v. Hudson, 648 A.2d 482, 101 Md. App. 74, 1994 Md. App. LEXIS 105 (Md. Ct. App. 1994).

Opinion

MURPHY, Judge.

On July 14, 1989, Martha Mae Wiant, appellant, filed a complaint in the Circuit Court for Prince George’s County, alleging that on August 29, 1986, she had been injured in an auto accident caused by the negligence of Christopher John Hudson, appellee. Appellant attempted to serve appellee with a copy of the complaint by sending a process server to the address he gave her at the accident scene. That attempt was unsuccessful. On September 27, 1989, appellant’s counsel, William M. Ferris, Esq., received the following letter from another member of the Maryland bar:

[77]*77September 20, 1989
Re: Martha M. Wiant v. Christopher John Hudson
Dear Mr. Ferris:
Please be advised that I have been retained by USF & G to defend Mr. Hudson in the above-captioned matter. After you have obtained service, could you please notify me when you served him so that I might so [sic] whatever is necessary.
Thank you for your help.
Very truly yours,
/s/

On November 2, 1989, appellant’s process server made a second attempt to serve appellee at the same address. That attempt was unsuccessful as well. On June 1, 1990, Mr. Ferris requested that a subpoena duces tecum be issued to the “Authorized Representative of the United States Fidelity and Guaranty Insurance Co. c/o Maryland Insurance Commissioner” for a deposition at his office in Annapolis, Maryland. That request sought (1) all records indicating the name and address of the policy holder whose vehicle was driven by appellee when the accident occurred, and (2) all records indicating the types and amounts of insurance coverage supplied under that policy. On June 21, 1990, the attorney who wrote the September 20, 1989 letter filed a motion to quash that subpoena on behalf of USF & G, contending that (1) service of the subpoena on the insurance commissioner was improper, (2) the place for the deposition was improper, (3) the subpoena sought privileged documents, and (4) appellant failed to give USF & G at least 30 days notice as required by Md.Rule 2-412(c). On June 28, 1990, USF & G’s motion to quash was granted.

On July 13, 1990, appellant filed a revised request for subpoena, which provided as follows:

Please issue a subpoena duces tecum for the below named individual to appear for the purposes of deposition in the offices of Semmes, Bowen & Semmes, Attorneys at Law, [78]*78250 West Pratt Street, Baltimore, Maryland 21201, on August 15, 1990, at 11:00 a.m.
United States Fidelity & Guaranty Insurance Company
c/o Resident Agent:
William F. Spliedts
100 Light Street
Baltimore, Maryland 21202
The said representative is requested to bring with him or her any and all records indicating the name and address of the policy holder of a certain automobile which was insured by the USF & G Insurance Company being driven by Christopher John Hudson, which automobile was involved in an accident with an automobile operated by the above-captioned Plaintiff on August 28, 1986, in Baltimore, Maryland, said accident being referenced by USF & G Insurance Company member claim number 0400 AL 046478 01 07. Said representative is further requested to bring with him or her any and all records indicating the types and amounts of insurance coverage under the aforementioned automobile insurance policy.

On July 18, 1990, through the same counsel, USF & G filed another motion to quash, contending that (1) the documents appellant sought were privileged, and (2) USF & G’s resident agent was an improper deponent. That motion was granted on August 8, 1990.

On June 5, 1991, appellant filed a motion to substitute service on appellee by delivering the summons and complaint to the lawyer who had written to Mr. Ferris and who had filed the motions to quash on behalf of USF & G. Appellant’s counsel did not request a hearing and did not attach a certificate of service to that motion. Appellant asserted that (1) five unsuccessful attempts had been made to serve appellee, (2) appellee could not be served because (a) he no longer resided at the address listed on his driver’s license, (b) he left [79]*79no forwarding address with the persons who currently reside at his old address or with the post office, and (3) justice and reason dictated that the court should permit substituted service on the attorney retained by USF & G to represent appellee. On June 11, 1991, that motion was denied.

On June 15, 1992, the clerk of the circuit court filed a “Notification to Parties of Contemplated Dismissal” for lack of prosecution. Appellant filed a motion to defer dismissal. That motion was granted, extending the deadline until February 4, 1993. The circuit court later extended the deadline to May 24, 1993. On May 21, 1993, however, appellant’s case was dismissed for lack of prosecution.

Appellant presents the following questions for our review:

I. Where a Party’s whereabouts are unknown but he or she is represented by an interested insurance company, may the insurance company be deposed for the purpose of locating that party?
II. Where an attorney purporting in writing to represent a party defendant whose whereabouts are unknown to plaintiff writes to plaintiffs counsel stating that he or she represents the defendant and should be contacted when plaintiff obtains service on the defendant, may service of process be made on the attorney who represents the defendant?
III. Where a trial court has entered an order deferring dismissal under Rule 2-507 has been entered, may the trial court Sua Sponte dismiss the suit prior to the date stated in the order for completing the case?

I.

Appellant contends that the trial court erred by denying her the right to depose a representative of USF & G for the purpose of locating appellee. We agree. Maryland Rule 2-411 provides:

DEPOSITION—RIGHT TO TAKE

[80]*80Any party to an action may cause the testimony of a person, whether or not a party, to be taken by deposition for the purpose of discovery or for use as evidence in the action or for both purposes. Leave of court must be obtained to take a deposition (a) before the earliest day on which any defendant’s initial pleading or motion is required ____ Leave of court may be granted on such terms as the court prescribes.

Rule 2-411 is similar to Fed.R.CivP. 30.1 Leave should be granted “only v/hen some unusual circumstances or conditions existed that would be likely to prejudice the party if [s]he were compelled to wait the required time.” Gibson v. Bagas Restaurants, Inc., 87 F.R.D. 60, 61 (1980), citing 8 C. Wright & A. Miller, Federal Practice and Procedure § 2104 at 384 (1970). This is such a case.

Fundamental fairness requires that, except in extraordinary circumstances not present in this case, the merits of a claim or defense should be submitted to a factfinder. Schwartz v. Merchants Mort. Co., 272 Md.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Powell v. Gutierrez
529 A.2d 352 (Court of Appeals of Maryland, 1987)
Feuchtbaum v. Constantini
280 A.2d 161 (Supreme Court of New Jersey, 1971)
Sunga v. Lee
141 N.E.2d 63 (Appellate Court of Illinois, 1957)
Schwartz v. Merchants Mortgage Co.
322 A.2d 544 (Court of Appeals of Maryland, 1974)
Fleisher v. Fleisher Co.
483 A.2d 1312 (Court of Special Appeals of Maryland, 1984)
Peterman v. Schpelman
274 A.D. 901 (Appellate Division of the Supreme Court of New York, 1948)
Dobkin v. Chapman
236 N.E.2d 451 (New York Court of Appeals, 1968)
In re the Appointment of a Guardian for Jacqueline F.
391 N.E.2d 967 (New York Court of Appeals, 1979)
Saucedo v. Engelbrecht
716 P.2d 79 (Court of Appeals of Arizona, 1986)
Feinstein v. Cleveland
121 N.E.2d 112 (Cuyahoga County Common Pleas Court, 1953)
Brown v. McDonald
133 F. 897 (Third Circuit, 1905)
Gibson v. Bagas Restaurants, Inc.
87 F.R.D. 60 (W.D. Missouri, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
648 A.2d 482, 101 Md. App. 74, 1994 Md. App. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiant-v-hudson-mdctspecapp-1994.