Wilson v. Maryland Department of the Environment ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2551
September Term, 2012
KEITH N. WILSON
v.
MARYLAND DEPARTMENT
OF THE ENVIRONMENT
Krauser, C.J.,
Graeff,
Berger,
JJ.
Opinion by Graeff, J.
Filed: May 27, 2014
This appeal arises from an action brought by the Maryland Department of the
Environment (“MDE”), appellee, against Keith N. Wilson, appellant, based on Mr. Wilson’s
ownership of two properties in Baltimore City that are subject to laws aimed at protecting
tenants from lead paint exposure. Specifically, after MDE determined that Mr. Wilson had
failed to certify that the two properties complied with lead paint risk reduction standards
prior to admitting new tenants, as required, it issued an administrative complaint and order
requiring Mr. Wilson to bring all occupied properties into compliance, as well as assessing
an administrative penalty in the amount of $30,000.
An Administrative Law Judge (“ALJ”) issued a Default Order against Mr. Wilson for
failing to respond to the complaint. The ALJ subsequently denied Mr. Wilson’s motion to
vacate the default order, and Mr. Wilson sought judicial review in the Circuit Court for
Baltimore City, which affirmed the ALJ’s decision.
On appeal, Mr. Wilson presents two questions for our review,1 which we have
reordered and rephrased as follows:
1. Did the ALJ err in denying Mr. Wilson’s Motion to Vacate the default
judgment?
1
Mr. Wilson’s questions presented to the Court are as follows:
1. Did the Circuit Court err in refusing to order the administrative agency
to reopen its hearing to take additional evidence, where the agency had
refused to open a default order despite an affidavit from the Appellant
that he had not received personal service of the notice of hearing[?]
2. Did the Circuit Court err in refusing to reverse the MDE’s decision for
a hearing on the basis that Wilson had shown a meritorious defense and
an excuse for responding to the complaint?
2. Did the circuit court err in denying Mr. Wilson’s Motion for Leave to
Present Additional Evidence?
For the reasons set forth below, we shall vacate the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Wilson is the owner of 39 residential properties in Baltimore. Because they were
built before 1950, the properties are classified as “Affected Properties” under Maryland
Code, Title 6, Subtitle 8 of the Environment Article, governing “Reduction of Lead Risk in
Housing.” See Md. Code (2010 Supp.) § 6-801 of the Environment Article (“Envir.”)
(“‘Affected property’ means: (i) A property constructed before 1950 that contains at least one
rental dwelling unit.”).
Envir. § 6-811 requires owners of an Affected Property to register the property with
MDE, and Envir. § 6-812 requires owners to renew the registration for the property annually.
Owners of Affected Properties must take certain actions each time there is a change in
occupancy at the property. Specifically, the property must either pass a test that detects lead-
contaminated dust,2 or the owner must perform specific lead hazard reduction treatments.
Envir. § 6-815(a)-(b). If the property is unable to pass the test for the presence of lead
contaminated dust, and the owner must perform lead hazard reduction treatments, the owner
must have “the property inspected to verify that the risk reduction standard . . . has been
2
Maryland Code (2010 Supp.) § 6-816 of the Environment Article provides that
MDE “shall establish procedures and standards for the lead-contaminated dust testing by
regulation.”
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satisfied.” Envir. § 6-815(c). MDE may, “at any time, spot check affected properties that
have been reported as satisfying the risk reduction standard or verified as satisfying the
modified risk reduction standard,” and if the check reveals that the Affected Property is not
in compliance with the risk reduction standard, MDE may order the owner to comply. Envir.
§ 6-852. The purpose of this statutory scheme is to “reduce the incidence of childhood lead
poisoning, while maintaining the stock of available affordable rental housing.” Envir.
§ 6-802.
On April 28, 2000, Mr. Wilson began registering Affected Properties with MDE and
renewing his registration annually in accordance with the statute. On June 3, 2010,
Mark Borgoyn, an MDE inspector, conducted a site inspection and tenant interview at 2224
Christian Street, one of Mr. Wilson’s properties. The tenant informed Mr. Borgoyn that he
had moved to the Christian Street residence on April 1, 2010. Mr. Borgoyn noted that,
despite the change in occupancy on April 1, 2010, Mr. Wilson had failed to obtain a
certificate indicating that the property had been inspected and that the risk reduction standard
had been satisfied, in violation of Envir. § 6-815.
On August 17, 2010, Mr. Borgoyn conducted a site inspection and tenant interview
at another property belonging to Mr. Wilson, 1938 Christian Street. The tenant reported to
Mr. Borgoyn that he had moved into the property in September 2009. Again, Mr. Wilson
failed to obtain a certificate indicating that the property had been inspected and the risk
reduction standard had been satisfied, in violation of Envir. § 6-815.
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On October 5, 2010, MDE filed an Administrative Complaint, Order, and Penalty
against Mr. Wilson based on the two violations of Envir. § 6-815. Specifically, it alleged
that, “from April 10, 2010, through June 3, 2010, Keith Wilson failed to bring 2224 Christian
Street into compliance with the full risk reduction standard, in violation of § 6-815,” and that
“[d]uring the period of October 1, 2009, through August 17, 2010, Keith Wilson failed to
bring 1938 Christian Street into compliance with the full risk reduction standard, in violation
of § 6-815.” MDE asserted that, as of the date of its complaint, it still had not received full
risk reduction certificates for the two properties.
MDE’s administrative order provided that, within 30 days of the receipt of its
complaint and administrative order, Mr. Wilson “shall bring all occupied Wilson Affected
Properties into compliance” with the risk reductions standard set forth in the Code. It further
ordered, in part, that Mr. Wilson ensure that no children under the age of six and no pregnant
women be present during the performance of lead hazard reduction treatments, that he pay
reasonable expenses for relocating his tenants should the lead hazard reduction treatments
take more than one day, and that, within five days of the completion of the lead hazard
reduction treatments, Mr. Wilson ensure that the Affected Properties are inspected by an
accredited inspector and certificates of compliance be filed with MDE and provided to the
tenants. In addition, based on the two violations of Envir. § 6-815, MDE sought a $30,000
penalty against Mr. Wilson.
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MDE’s Administrative Complaint, Order, and Penalty informed Mr. Wilson of his
right to a hearing to contest the contents of MDE’s filing. To contest the Order portion of
the filing, Mr. Wilson was required to file a written request within 10 calendar days of
receiving the Complaint, Order, and Penalty. See Envir. § 7-261(b) (“Within 10 days after
being served with an order under § 7-259(a)(1) [governing orders for corrective action] of
this subtitle, the person served may request, in writing, a hearing before the Department.”).
To contest the Penalty portion of the document, Mr. Wilson had to file a written request for
a hearing within 30 days. See Code of Maryland Regulations (“COMAR”) 26.01.02.05C (a
contested case hearing “shall be requested . . . 30 days after notice is served, unless otherwise
provided by law”). MDE advised that, if Mr. Wilson chose “not to request a hearing within
the times required, the Order will become final from the date issued, and [MDE] will seek
a default order requiring [Mr. Wilson] to pay the entire penalty.”
On April 24, 2012, MDE filed with the Office of Administrative Hearings (“OAH”)
a Request for Final Default Order Assessing Administrative Penalties for Failure to Request
a Hearing. It contended that Mr. Wilson had failed to request a hearing on the
Administrative Complaint, Order, and Penalty.3 MDE further asserted that, “[p]ursuant to
§ 7-262(a) of the Environment Article, the Order portion of the Complaint is now a Final
3
Attached to MDE’s request was an affidavit by Lisa Kelly, an Administrative
Specialist in the MDE Lead Poisoning Prevention Program (the “Program”), who was tasked
with processing all requests for hearings for the Program. Ms. Kelly attested that, as of that
date, MDE had not received a request for a hearing from Mr. Wilson.
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Administrative Order.” See Envir. § 7-262(a)(1) (“Unless the person served with an order
. . . makes a timely request for a hearing, the order is a final order.”). Accordingly, MDE
requested that the ALJ enter a Final Default Order against Mr. Wilson, assessing an
administrative penalty of $30,000.
MDE asserted that, on March 25, 2011, Mr. Wilson was served with the
Administrative Complaint, Order, and Penalty via a private process server. It attached an
affidavit by the process server stating that the complaint was served, i.e., “Accepted by Corey
Blandon, co-resident” at 27 South Calhoun St, Unit 1, in Baltimore. MDE attested that it
mailed a copy of its request for a default order to Mr. Wilson at 27 South Calhoun Street,
Unit 1, in Baltimore.
On May 8, 2012, the ALJ issued a Default Order, finding Mr. Wilson in default. The
ALJ noted that COMAR 26.01.02.13A provides as follows:
If after receiving proper notice a party fails to timely request a hearing, or to
attend or participate in a prehearing conference, hearing, or other stage of an
adjudicative proceeding, either the hearing examiner or final decision maker,
whichever person is appropriate, may proceed in that party’s absence, may rely
on affidavits, or may conduct hearings as appropriate. Upon a prima facie
showing by the moving party, the final decision maker may issue a final
default order against the defaulting party.
The OAH’s procedural rules, set forth in COMAR 28.02.01.23A, similarly provide that, if
a party fails to participate in a hearing after receiving proper notice, “the judge may proceed
in that party’s absence or may . . . issue a final . . . default order against the defaulting party.”
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The ALJ ordered that Mr. Wilson was “required to comply with . . . Maryland’s laws
pertaining to the reduction of lead paint hazards in rental housing, as set forth in the Order,”
and he granted MDE’s request for a penalty assessment of $30,000. The Default Order
further provided that, within 30 days, Mr. Wilson could file a written motion to modify or
vacate the Default Order. If Mr. Wilson did not show good cause to excuse his default, the
order was to become final and enforceable. The Default Order was mailed to Mr. Wilson at
27 South Calhoun Street, Unit 1, in Baltimore.
On July 3, 2012, Mr. Wilson filed a Motion to Vacate Default Order.4 He asserted
that “[t]he service of paperwork that was supposed to serve as my notification was not
handled properly,” and he attached an affidavit of Mr. Blandon, “the person named as
receiving service.” The affidavit stated, in part, as follows:
2. On the night I was supposed to have been served this paperwork, March 25,
2011, at 9:30pm, I yelled at the process server from the 2nd floor window that
I would not accept any papers for my landlord, Keith N. Wilson. I stated this
more than once.
3. The police officers who accompanied the process server asked my name,
and I gave it to them. This is the only reason the process server named me as
accepting service. I never took any papers from the process server, I told him
I would not accept service, and that he should come back when Mr. Wilson
was available - in the morning.
4. I never received any paperwork from the process server, and was not made
aware that I would be named as having accepted service.
4
Mr. Wilson inserted a date of June 7, 2012, in the motion, but the cover letter of the
motion is dated stamped as having been received by the court on July 3, 2012, beyond the 30
day deadline set forth in the Default Order. The ALJ, nonetheless, treated Mr. Wilson’s
motion as timely filed.
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Below his signature on the motion to vacate, Mr. Wilson listed his address as “27 S. Calhoun
Street, First Floor,” in Baltimore. Below his signature on his affidavit, Mr. Blandon listed
his address as “27 S. Calhoun Street, Second Floor, Baltimore, MD.” 5
On August 15, 2012, the ALJ issued his ruling on Mr. Wilson’s Motion to Vacate. In
rejecting Mr. Wilson’s claim of defective service, the ALJ found that: (1) the affidavit from
the private process server that accompanied MDE’s request for a default order “contradicts
Mr. Blandon”; (2) Mr. Wilson “was sent documents by ordinary mail as well, and there is no
evidence that the mail was returned by the U.S. Postal Service”;6 and (3) in his motion,
Mr. Wilson “explains why he is not in violation of the lead paint reduction laws, establishing
that he received the documents.” 7
The ALJ further found as follows:
5
Mr. Wilson also asserted in his motion to vacate default order several defenses to
MDE’s complaint. He stated that he was “undertaking getting my properties into compliance
with the law” with “inspections scheduled for some of my properties this very month, June
2012,” that he has “strived to keep my properties from good condition and free from lead
paint,” and that he hired a property management company to ensure his properties were in
compliance with the law, but the property management company had “failed miserably in
their job.” He also asserted that he had obtained “lead-paint certificates on the property” and
that he had received assurances “from the staff at [MDE] and Baltimore Housing” that his
certificates were in good order.
6
As indicated, MDE’s request for a default order and the default order itself were
mailed to Mr. Wilson’s address at 27 South Calhoun Street, Unit 1, in Baltimore.
7
In his Motion to Modify or Vacate Default Order, Mr. Wilson argued that he “was
unaware that any lead paint action against me or my properties was still happening,” and he
was “undertaking getting [his] properties into compliance with the law.” We note, however,
that the default order, which he clearly received and was seeking to vacate, stated that he had
been found to have violated the lead paint laws.
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The Complaint is clearly written and sets forth the time periods to file
a request for a hearing. [Mr. Wilson] must have known that the letters he
received from the MDE by mail involved his non-compliance with applicable
lead paint reduction laws. Additionally, I find that the private process server
served Mr. Blandon, who accepted service. . . .
[Mr. Wilson] was served with the Complaint and did not respond in a
timely manner. He had sufficient time to respond to the Complaint but he
chose not to. The rationale offered for not timely filing is unpersuasive. Not
only did [Mr. Wilson] fail to timely request a hearing, he did not respond to
MDE’s request for a final default order assessing administrative penalties for
failure to request a hearing, which was sent to him on April 23, 2012.
The ALJ determined that Mr. Wilson’s arguments regarding service “do not constitute
good cause for failing to respond to the documents issued by the MDE.” Accordingly, he
denied Mr. Wilson’s request to vacate the Final Default Order, rendering the Final Default
Order final and enforceable.
On September 13, 2012, Mr. Wilson, acting pro se, filed a Petition for Judicial
Review in the circuit court. He asserted that the ALJ’s ruling “offers no reasons why the
unnamed process server’s affidavit of service is more persuasive than the signed affidavit of
[Mr.] Blandon who refused service.”
On January 4, 2013, acting through counsel, Mr. Wilson filed a Motion for Leave to
Present Additional Evidence. Specifically, he requested that the court remand the case to the
ALJ to allow the ALJ to take additional evidence, in accordance with Maryland Code (2012
Supp.) § 10-222(f) of the State Government Article (“S.G.”). This statute provides that,
when reviewing a final administrative decision in a contested case, a circuit court “may order
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the presiding officer to take additional evidence on terms that the court considers proper” if
the following conditions are met:
(i) before the hearing date in court, a party applies for leave to offer
additional evidence; and
(ii) the court is satisfied that:
1. the evidence is material; and
2. there were good reasons for the failure to offer the evidence in
the proceeding before the presiding officer.
S.G. § 10-222(f)(2). If the court remands the case to allow for additional evidence, “the final
decision maker may modify the findings and decision” based on that evidence, and shall file
with the circuit court the additional evidence, as well as “any modifications of the findings
or decision.” S.G. § 10-222(f)(3)-(4).
Mr. Wilson argued that his request was proper because he “did not receive due process
in the administrative hearing level.” Specifically, Mr. Wilson asserted that the hearing
examiner did not consider constitutional violations inherent in the nature of service, i.e., that
the person alleged to have been served was a tenant, rather than a co-resident, and therefore,
he was not a “resident of suitable age and discretion.” 8
Mr. Wilson further contended that “[h]e has a meritorious defense to the allegations
against him, but was unable to be heard because he was not properly notified of his rights.”
He asserted that the circuit court would “be better able to address the issues in the matter if
the hearing officer at the [OAH] first hears from both parties and makes specific findings of
8
Pursuant to Maryland Rule 2-121(a)(2), a person may be served “by leaving a copy
of the summons, complaint, and all other papers filed with it at the individual’s dwelling
house or usual place of abode with a resident of suitable age and discretion.”
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fact.” Mr. Wilson requested that the court order the ALJ to take additional evidence on the
inadequacy of service, as well as “the impropriety of levying fines on him despite his evident
compliance.”
On January 16, 2013, after a hearing, the circuit court issued its order affirming the
decision of MDE and the ALJ.9 In a Memorandum Opinion issued the same day, the court
determined that the ALJ’s finding that Mr. Wilson had failed to establish good cause for not
requesting a hearing to contest MDE’s administrative order was supported by substantial
evidence and was correct as a matter of law. The court noted that, although there was
conflicting evidence regarding service, the ALJ credited the affidavit of the process server,
which was his province as the fact finder.
In a footnote to its Memorandum Opinion, the court addressed Mr. Wilson’s “Motion
for Leave to Present Additional Evidence.” The court noted that, under S.G. § 10-222(f),
judicial review of “disputed issues of fact shall be confined to the record.” It recognized,
however, that it could order the ALJ to take additional evidence if it was “satisfied that the
evidence is material; and there were good reasons for the failure to offer the evidence in the
proceeding before the presiding officer.” Id. The court found that “[n]o such showing has
been made in this case.” It rejected Mr. Wilson’s argument that his pro se representation
constituted “good reasons,” noting that this Court has held that “giving the appellee a ‘second
bite at the apple’ simply because he was not represented by counsel during the administrative
9
The order was entered on February 13, 2013.
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hearings” was error. (Citing Dep’t of Labor, Licensing, and Regulation v. Woodie, 128 Md.
App. 398, 410-11 (1999)).
This timely appeal followed.
STANDARD OF REVIEW
Judicial review of an administrative decision “generally is a ‘narrow and highly
deferential inquiry.’” Seminary Galleria, LLC v. Dulaney Valley Improvement Ass’n, 192
Md. App. 719, 733 (2010) (quoting Maryland-Nat’l Park & Planning Comm’n v. Greater
Baden-Aquasco Citizens Ass’n, 412 Md. 73, 83 (2009)). This Court looks “through the circuit
court’s decision and evaluates the decision of the agency,” Chesapeake Bay Foundation v.
Clickner, 192 Md. App. 172, 181 (2010), determining “‘if there is substantial evidence in the
record as a whole to support the agency’s findings and conclusions, and to determine if the
administrative decision is premised upon an erroneous conclusion of law.’” Cosby v. Dep’t
of Human Res., 425 Md. 629, 638 (2012) (quoting Bd. of Phys. Quality Assurance v. Banks,
354 Md. 59, 67-68 (1999)).
With respect to the agency’s factual findings, the substantial evidence test “‘requires
us to affirm an agency decision, if, after reviewing the evidence in a light most favorable to
the agency, we find a reasoning mind reasonably could have reached the factual conclusion
the agency reached.’” Miller v. City of Annapolis Historic Pres. Comm’n, 200 Md. App.
612, 632 (2011) (quoting Montgomery County v. Longo, 187 Md. App. 25, 49 (2009)).
Accord Bucktail, LLC v. Cnty Council of Talbot Cnty, 352 Md. 530, 553 (1999) (“‘In a
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judicial review of administrative action the court may only uphold the agency order if it is
sustained by the agency’s findings and for the reasons stated by the agency.’”) (quoting
Harford Cnty v. Earl E. Preston, Jr., Inc., 322 Md. 493, 505 (1991)). When reviewing an
agency’s conclusions of law, we “‘must determine whether the agency interpreted and
applied the correct principles of law governing the case and no deference is given to a
decision based solely on an error of law.’” Bd. of Dental Exam’rs v. Tabb, 199 Md. App.
352, 373 (2011) (quoting Solomon v. Bd. of Phys. Quality Assurance, 155 Md. App. 687,
696-97 (2003)).
Additionally, as the reviewing court, we “may not pass upon for the first time issues
not encompassed in the final decision of the administrative agency.” Cross v. Baltimore City
Police Dep’t, 213 Md. App. 294, 307 (2013). “Stated differently, an appellate court will
review an adjudicatory agency decision solely on the grounds relied upon by the agency.”
Dep’t of Health & Mental Hygiene v. Campbell, 364 Md. 108, 123 (2001).
DISCUSSION
Mr. Wilson contends that the ALJ erred in denying his motion to vacate the order of
default because he was not properly served with MDE’s complaint. He asserts that service
was defective in several ways. First, he argues that the affidavit of the process server did not
include the printed name, address, and telephone number of the server, as required by the
Maryland Rules. Second, he notes that Mr. Blandon’s affidavit states, contrary to the
affidavit of the process server, that he refused to accept service. Mr. Wilson contends that
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the ALJ’s determination that he had been served, based on resolution of a credibility issue
in the two affidavits, was improper. Third, he contends that Mr. Blandon’s affidavit stated
that he was a tenant, not a co-resident, and therefore, even if the complaint was served on
him, it was not proper because he did not qualify as a “resident of suitable age and
discretion.”
MDE contends that the ALJ’s decision to deny Mr. Wilson’s motion to vacate “was
supported by substantial evidence in the record” and was correct as a matter of law.
Specifically, it argues that there was evidence, including the affidavit of the process server,
that Mr. Wilson had received the materials filed by MDE. Accordingly, MDE asserts, there
was substantive evidence to support the ALJ’s finding that Mr. Wilson was properly served
and failed to timely request a hearing. MDE contends that, in light of Mr. Wilson’s failure
to request a hearing, the circuit court properly upheld the ALJ’s findings that Mr. Wilson was
in default and had failed to show good cause such that the default order should be vacated.
COMAR 28.02.01.23(B) sets forth the default order procedures for the OAH.
Specifically, it provides as follows:
(1) Unless otherwise provided by law, a party may move to vacate a final order
of default within 30 days after the date of the order. The motion shall state the
reasons for the failure to attend or participate in the proceeding.
(2) If the judge finds that there is good cause for the party’s failure to attend
or participate in the proceeding, the judge shall vacate the order and set the
case in for further proceedings as appropriate.
(3) If a motion is not filed under §B(1) of this regulation, or is filed and
denied, the final default order is effective.
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Mr. Wilson asserted that there was good cause for his initial failure to participate
because he was not properly served. Although he raises several arguments on appeal in
support of the argument, he raised in his motion to vacate only the issue of whether he
actually was served, and that was the basis of the ALJ’s decision. Accordingly, that is the
only issue properly before us. See Campbell, 364 Md. at 123 (“[A]n appellate court will
review an adjudicatory agency decision solely on the grounds relied upon by the agency.”).
A proper return of service is prima facie evidence of valid service of process, but the
presumption of validity can be rebutted. Pickett v. Sears, Roebuck & Co., 365 Md. 67, 84
(2001). Although a mere denial of service is not sufficient, id., if the “denial is supported by
corroborative evidence by independent, disinterested witnesses, the denial will stand unless
the corroborative evidence is refuted.” Ashe v. Spears, 263 Md. 622, 628 (1971).
Here, the private process server filed an affidavit indicating that Mr. Wilson was
served, stating: “Accepted by: Corey Blandon, co-resident.” Mr. Wilson submitted the
affidavit of Mr. Blandon, who stated, contrary to the affidavit of the process server, that: (1)
he “never received any paperwork from the process server”; and (2) he advised the process
server that he “would not accept any papers” for Mr. Wilson.
The determination “[w]hether a person has been served with process is essentially a
question of fact.” Harris v. Womack, 75 Md. App. 580, 585 (1988). The ALJ in this case
made a factual finding that Mr. Wilson had been served based on the affidavit of the private
process server. The ALJ specifically found that the two affidavits were conflicting, stating
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that Mr. Blandon’s affidavit “contradicts” the affidavit of the process server. Nevertheless,
without explanation, the ALJ credited the process server’s statement that Mr. Blandon
accepted service, despite Mr. Blandon’s statement to the contrary.
The question here is whether it is proper to resolve a credibility determination based
solely on conflicting affidavits.10 We hold that it is not. Where the only evidence before the
ALJ regarding service of process was two conflicting affidavits regarding whether
Mr. Wilson was properly served, there was insufficient evidence to support the ALJ’s
decision to deny Mr. Wilson’s motion to vacate the default order.
Other jurisdictions have reached a similar conclusion. In Astudillo v. Flushing
Hospital Medical Center, 796 N.Y.S.2d 95, 97 (N.Y. App. Div. 2005), the court held that
dismissal of the complaint on the ground that the defendant was not properly served with
process was improper where the only evidence before the court was two conflicting
affidavits. The court held that, “[i]n view of the parties’ conflicting affidavits with respect
to service [on the defendant], a hearing should have been held to determine whether service
10
As indicated, supra, although the ALJ said that there was additional evidence of
service of the Complaint, the record does not support that assertion. The ALJ stated that
there was evidence that Mr. Wilson was served based on the mailing of MDE’s request for
a default order and the default order and Mr. Wilson’s response to the default order. This
evidence, however, did not corroborate the process server’s affidavit relating to service of
the initial complaint. See Reed v. Sweeney, 62 Md. App. 231, 237-38 (1985) (“Because
service of process raises jurisdictional issues and focuses upon the power of a court to exert
its authority over a particular party, it cannot be waived or ignored simply because the
defendant had actual notice of the action.”).
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upon [the defendant] was properly effected.” Id. Thus, the court remanded for further
proceedings to make that determination.
In Classen v. Classen, 893 P.2d 478, 481 (N.M. Ct. App. 1995), the New Mexico
Court of Appeals held that, in a divorce proceeding, where “[t]he only matters of record
regarding propriety of service” were “conflicting affidavits,” the trial court “cannot resolve
the factual issues that control whether service was proper.” Accordingly, the court remanded
the case for evidentiary proceedings on that issue. Id. at 482.
As this Court has stated, a default judgment “should not proceed until the court is
completely satisfied that there has been proper notice of the impending proceedings served
on the defaulting absentee party.” Roddy-Duncan v. Duncan, 157 Md. App. 197, 201 (2004)
(reversing denial of motion to vacate default judgment because questions relating to affidavit
of service warranted a hearing). Here, the ALJ erred in resolving the factual issue whether
Mr. Wilson was served based on conflicting affidavits. Accordingly, we vacate and remand
for further proceedings to resolve that issue.
JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY
VACATED. CASE REMANDED TO
TH E CIRCUIT COURT W ITH
INSTRUCTIONS TO REMAND TO
THE OFFICE OF ADMINISTRATIVE
HEARINGS FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID
BY APPELLEE.
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