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Chapman v. Kamara12/2/1997
by clear and convincing evidence of a lack of authority. Lovering, 38 Md. App. at 362. The trial court's determination that a party has failed to overcome the presumption will only be reversed for clear error. Carroccio v. Thorpe, 230 Md. 457, 463, 187 A.2d 678 (1962); Lovering, 38 Md. App. at 363.
While we have almost two centuries of precedents stating that an appearance by an attorney is presumptively authorized, most of these cases only concern disputes over whether the attorney was authorized to perform some discrete act or another during the course of a trial or appeal. We are aware of only two Maryland cases dealing with an assertion that an attorney's appearance itself was unauthorized. In Kelso v. Stigar, 75 Md. 376, 404-05, 24 A. 18 (1892), this assertion was raised offensively by a defendant in claiming that one of the named plaintiffs had not agreed to file the lawsuit and, given the lack of any objection by that plaintiff, the Court of Appeals refused to look beyond the presumption of authority.
The Lovering case presents a situation much closer to the one alleged here. Appellant wife brought a divorce suit which the circuit court dismissed based upon a divorce decree obtained by the husband four years prior in Pennsylvania. The claim on appeal was that the foreign court never obtained personal jurisdiction over the wife because appearance by counsel on her behalf had been unauthorized. At the time the earlier suit was brought, appellant was hospitalized in Illinois for mental illness. (There was no assertion of non compos mentis.) She admitted on cross-examination that, while institutionalized, she received several letters from her Pennsylvania lawyer, but that she did not pay much attention to them. At least one of those letters concerned in some way the filing of the divorce action. Four months after the suit was filed, she was discharged and returned to Pennsylvania, where she signed a divorce settlement. We noted that the settlement agreement was drafted by the husband's lawyer and that both parties signed in the presence of both of their attorneys while at the office of the wife's attorney. No reference was made at that time to the pending suit. The wife then immediately returned to Illinois to be admitted into another mental institution. The husband reinstated the suit, and the wife's attorney accepted service of process and entered an appearance on her behalf. He apparently took no further action than this, as he filed no answer to the complaint and did not appear at the scheduled hearing. The Pennsylvania Court ruled that it had jurisdiction over the wife, and it granted the divorce to her husband. In the wife's suit four years later, the circuit judge found that the wife had failed to prove by clear and convincing evidence that the appearance on her behalf was not authorized. We ruled that the lower court's determination was not clearly erroneous, taking special notice of the wife's long delay.
We are also instructed by Bethlehem Steel Corporation v. Devers, 389 F.2d 44 (4th Cir. 1968), cited favorably in Lovering and relied upon by the court below in the instant suit. Although it does not represent the majority rule among federal circuit courts, Bethlehem applied the same burden of proof and standard of review we approved in Lovering. Plaintiff sued multiple defendants on a debt of a dissolved corporation and obtained summary judgment against one defendant, Devers. Before thirty days had expired, Devers moved the trial court to rescind the summary judgment order, arguing that he was never served with process and the attorney who had entered an appearance on his behalf had no authority to do so. The motion was submitted by two attorneys making their first appeara
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