Chapman v. Kamara, No. 18, September Term, 1998 CIVIL PROCEDURE—TRIAL COURT’S REVISORY POWER—LACK OF PERSONAL JURISDICTION. Where trial court exercised jurisdiction without service of process on defendant or valid waiver of process, court should upon motion have exercised revisory power to vacate judgment. Maryland Rule 2-535. CIVIL PROCEDURE—PERSONAL JURISDICTION—SERVICE OF PROCESS— WAIVER BY ATTORNEY’S APPEARANCE—PRESUMPTION THAT APPEARANCE IS AUTHORIZED. Where insured’s unrebutted testimony established lack of service of process and lack of authorization for insurer’s attorney’s appearance, any presumption that entry of attorney’s appearance was authorized was rebutted. ESTATES AND TRUSTS—PERSONAL REPRESENTATIVE—ACTION BEFORE APPOINTMENT—RATIFICATION BY SUBSEQUENT ACTION. Where personal representative of estate participated in consent judgment against estate before appointment as personal representative, he ratified consent judgment by doing nothing to amend or alter consent judgment during his subsequent tenure. Maryland Code (1974, 1991 Repl. Vol., 1998 Cum. Supp.) § 6-105 of the Estates and Trusts Article. CIVIL PROCEDURE—INTERVENTION OF RIGHT. Where prior judgment’s collateral estoppel effect arguably would entitle party in subsequent suit to summary judgment, where parties to original suit moved to vacate original judgment, and where no party to original suit opposed motion to vacate, party moving for summary judgment in subsequent suit was entitled to intervene to oppose motion to vacate. Circuit Court for Prince George’s County Civil No. CAL 93-23012 IN THE COURT OF APPEALS OF MARYLAND No. 18 September Term, 1998 CHERYL CHAPMAN, PERSONAL REPRESENTATIVE OF THE ESTATE OF HENRY NORMAN COLE, II, et al. v. MARIE KAMARA, Individually, etc. Bell, C.J. Eldridge Rodowsky *Chasanow Raker Wilner Cathell, JJ. Opinion by Raker, J. Rodowsky and Wilner, JJ., dissent. Filed: October 25, 1999 * Chasanow, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion. This case arises out of an automobile accident that occurred in Prince George’s County. Several of the parties to that accident filed a “friendly suit”1 in the Circuit Court for Prince George’s County, and the court entered a consent judgment. Several years later, parties to the friendly suit became concerned with the preclusive effect of that consent judgment on a subsequent lawsuit filed in federal court, and moved to vacate that judgment. The Washington Metropolitan Area Transit Authority (WMATA), which was not a party to the suit, but was a party to the subsequent federal lawsuit, moved to intervene as a matter of right in the motion to vacate. The circuit court granted WMATA’s motion to intervene and denied the motion to vacate judgment. We granted the writ of certiorari to consider the following questions: I. Whether WMATA had a justiciable interest in the “friendly suit” in the Circuit Court for Prince George’s County such as permitted intervention in the action for the purpose of opposing the motion to vacate the judgment? II. Whether the judgment by consent in the “friendly suit” should have been vacated as requested by both defendants and consented to by both plaintiffs? III. Whether, in the absence of any service upon her or notice to her of the proceedings, Renee Cole is entitled to have the judgment against her set aside? IV. Whether the entry of appearance of an attorney on behalf of an estate not yet in existence is valid, permitting relief to be granted against the estate? I. 1A “friendly suit” is defined at BLACK’S LAW DICTIONARY 667 (6th ed. 1990) as “any suit instituted by agreement between the parties to obtain the opinion of the court upon some doubtful question in which they are interested.” The trial court defined a “friendly suit” as “the means by which an insurance company may obtain finality for the settlement of claims made by a minor. Because the minor is not competent to enter into a binding contract (a Release), a judgment is entered to preclude further litigation of any claim resolved with the insurance company on behalf on the minor.” 2 On October 11, 1991, Henry N. Cole, II was driving a van in Prince George’s County. The vehicle collided with a telephone pole. Henry N. Cole, II, was seriously injured in the accident, and died from his injuries approximately fourteen months later. Seven passengers were in the van, each of whom sustained physical injury. Among the injured passengers were two minors, Russell Cole (the brother of the decedent) and Arouna Koroma. On December 23, 1993, the Reverend Henry N. Cole and Marie Kamara, the parents of Russell Cole and Arouna Koroma, filed a suit in the Circuit Court for Prince George’s County on behalf of the two minors and individually. This was characterized as a “friendly suit”, filed to effectuate a settlement of remaining claims under the insurance policy of Renee Cole, the owner of the van and the step-mother of the driver. The named defendants were the estate of Henry N. Cole, II, as the driver of the van, and Renee Cole, as the owner. Renee Cole had insured the van for up to $100,000 under a policy issued by Government Employees Insurance Company (GEICO). Marie Kamara sued the estate and Renee Cole for $29,296.80 as mother and next friend of Arouna Koroma, and for $15,053.20 individually. Reverend Cole sued the estate for $5,508.27 as father and next friend of Russell, and for $8,741.73 individually. He did not sue Renee Cole.2 An attorney hired by GEICO consented to the entry of judgment against the estate and Renee Cole. 2Reverend Cole and Renee Cole were married. 3 The complaint alleged that Henry N. Cole, II “did negligently and carelessly operate the vehicle so as to cause it to leave the roadway,” and that “as a consequence of the negligence and carelessness of the decedent,” the minor plaintiffs sustained injury. The complaint also alleged that the parents had sustained and would continue to sustain medical expenses and loss of services. Finally, in the name of Marie Kamara but not Reverend Cole, the complaint alleged that the decedent was operating the van as the agent, servant, and employee of Renee Cole. On the day the complaint was filed, the insurance company counsel filed an answer on behalf of the estate and Renee Cole, denying liability generally. Also on that day, the Circuit Court for Prince George’s County entered a consent judgment against the defendants for the amounts prayed. The plaintiffs filed on that date an order of satisfaction, marking the judgments as paid and satisfied.3 On October 7, 1994, Reverend Cole petitioned for administration of the estate and was appointed personal representative.4 Attorney Cheryl Chapman represented Reverend Cole in that petition. On the same day, Reverend Cole, as the personal representative of the 3Trust accounts were established on behalf of the minors. On May 12, 1994, the attorney for Marie Kamara filed a petition to withdraw $8,000 from the trust to purchase a car for her son. The court granted the request on May 23, 1994. On July 14, 1995, Arouna Koroma, having reached the age of majority, requested that the trust be terminated and all remaining funds be transmitted to an account in his name. The court ordered termination of the trust and transfer on July 17, 1995. 4On April 5, 1996, Reverend Cole resigned as personal representative of the estate. Cheryl Chapman was then appointed personal representative. 4 estate, and through counsel, filed a wrongful death and survival action against WMATA in the Circuit Court for Prince George’s County. In the wrongful death count, Reverend Cole filed suit as surviving parent of Henry Cole, II, as well as to the use of Nankita Boseman, natural mother of the decedent. In the survival action, Reverend Cole filed suit as the personal representative of the estate. In that complaint, the plaintiffs alleged that a WMATA bus caused the accident when it crossed the center line, causing decedent to veer off the road into a utility pole in an attempt to avoid a collision. WMATA removed the case to the United States District Court for the District of Maryland, Southern Division. In that court, the case is captioned Henry N. Cole, as Personal Representative and Surviving Parent of Henry N. Cole, II, Deceased, and to the Use of Nankita Boseman vs. Washington Metropolitan Area Transit Authority, Civil Action No. PJM-94-3185. On March 29, 1996, WMATA filed a motion for summary judgment in the federal suit. WMATA argued that because the consent judgment in the friendly suit was based on the finding that decedent’s negligence had caused the accident, Reverend Cole and the estate were collaterally estopped from subsequently arguing, in the federal suit, that WMATA’s negligence, and not the negligence of decedent, had caused the accident. On April 17, 1996, Cheryl Chapman, as personal representative of the estate, and Renee Cole filed a motion to vacate the consent judgment entered on December 23, 1993, alleging lack of personal jurisdiction based on defective service of process. Renee Cole 5 argued that she was never served with process in the suit and that she did not consent to the entry of judgment against her. The estate argued that it could not have been served with process in the December, 1993, action because the estate did not come into existence until Reverend Cole was appointed personal representative in October, 1994. With this motion, the parties filed an affidavit of Russell Cole, who had then attained the age of majority; in the affidavit, he consented to the motion to vacate the judgment.