Hartford Leasing Corp. v. State

DAVIS, Judge

(concurring in the result):

I concur in the result reached by the court because the mandatory language of Rule 4-506 makes notification of the unrepresented party an express precondition to initiation of further proceedings against that party. The rule mandates notice prior to initiation of further proceedings, and the proceedings may be held twenty days after the date of filing the notice. The rule does not require a twenty-day waiting period between the filing of the notice and initiation of further proceedings. Thus, under the terms of the rule, the State could have filed the notice required under Rule 4-506 immediately prior to its March 26, 1993 motion to dismiss; and, under the rule, the court would not be in a position to hold proceedings on the motion until twenty days after the filing of the notice — on or about April 15, 1993. On April 12, 1993, and June 8, 1993, plaintiff filed responsive pleadings, and the court made rulings on June 21, July 15, and July 19, 1993, all approximately ninety days after the State filed its motion to dismiss without having first given notice as required by Rule 4-506.

But for the mandatory language contained in Rule 4-506, I believe the trial court’s analysis of this issue would have been entirely correct, as any purpose to be served by the provisions of Rule 4-506 was served by the lapse of time between the initiation of proceedings by the State and the conduct of those proceedings by the court. For the foregoing reasons, I also disagree with the court’s analysis that plaintiff suffered some sort of injustice as a result of the State’s failure to perform an act that, under the facts of this case, was hardly more than ministerial. The record does not suggest that plaintiff relied upon or to any way changed its position in reliance on the State’s failure to file notice under the rule or that had plaintiff reactivated the case in response to a Rule 4-506 notice, any of the dismissal factors set out on pages 697-98 of the court’s opinion would have been resolved in plaintiffs favor. While the State may have been remiss in failing to comply with the provisions of Rule 4-506, it can hardly be suggested that the motion to dismiss did not let plaintiff know that the State was tired of waiting and plaintiff was, in fact, spurred to action.