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Chapman v. Kamara12/2/1997
valid interest in the suit. Bradford, Shenk, and Birdsong all indicate that a specific potential resolution of a suit is too speculative an interest to warrant intervention. Even after entry of final judgment, WMATA's interest in the litigation would have been entirely speculative until an actual suit was filed against it, as was indicated in Bradford and Birdsong. It is further plain that WMATA's interest is dependent upon the fact that the asserted theory of recovery (negligence) underlying the prior judgment has a direct legal consequence (contributory negligence) in the second suit. While we need not further narrow the instant holding in order to parry appellant's argument, we also point out that WMATA's interest relates to a legal defense that is a complete defense, that a motion for summary judgment on that defense has already been filed, and that the specific issue before the other court is one of first impression. Motion to Vacate Judgment Appellants challenge the lower court's denial of their motion to vacate the judgment. They argue that neither one of them was ever served with service of process and that the judgment is therefore void because the court never acquired personal jurisdiction over them. Appellee counters that any objection by the Estate based on service of process was waived when attorney Francis J. Ford entered an appearance on its behalf. Appellee has taken no position on Renee Cole's motion to vacate, either in this Court or below. Appellants' retort is that the appearance was completely unauthorized and, in fact, unknown to either of them. The circuit court determined that each defendant had authorized an appearance by Mr. Ford, and denied the motion.
Courts exercise revisory power over their judgments pursuant to Maryland Rule 2-535. Subsection (a) of the Rule applies only where the motion to vacate is filed within thirty days of the entry of judgment, i.e., before the judgment is enrolled. As the instant motion was filed over two years after the judgment, appellants rely exclusively on subsection (b) of the rule. That portion of the rule provides, "On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity." The existence of such fraud, mistake, or irregularity must be demonstrated by clear and convincing evidence. Tandra S. v. Tyrone W., 336 Md. 303, 314, 648 A.2d 439 (1994). Moreover, Rule 2-535 applies to all final judgments; the standards do not change when the judgment is by consent. Bernstein v. Kapneck, 46 Md. App. 231, 238-40, 417 A.2d 456 (1980); Prince George's County v. Barron, 19 Md. App. 348, 351, 311 A.2d 453 (1973).
"Mistake" in the context of Rule 2-535 is limited to those instances in which a jurisdictional mistake is involved. Bernstein, 46 Md. App. at 239. Deficient service of process constitutes just such a jurisdictional mistake and therefore is a valid basis upon which to request that an enrolled judgment be vacated. Miles v. Hamilton, 269 Md. 708, 309 A.2d 631 (1971). There is no dispute that in the instant case no service was made on either defendant. Nevertheless, where, as in this case, a party enters a general appearance, either through counsel or personally, objections to deficiencies in service of process are waived. Howell v. Bethlehem-Sparrows Point Shipyard, 190 Md. 704, 711-13, 59 A.2d 680 (1948); Lovering v. Lovering, 38 Md. App. 360, 363, 380 A.2d 668 (1977). Furthermore, where a general appearance has been entered by an attorney on behalf of a client, there is a prima facie presumption that the appearance is authorized. Margos v. Moroudas, 184 Md. 362, 371, 40 A.2d 816 (1945); Lovering, 38 Md. App. at 362. This presumption may only be overcome
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