Appellate Decisions Edited by Mark E. Herman
Mark E. Herman, of the Law Office of William G. Koldner, PA of Baltimore is a member of MTLA’s Board of Governors and is a member of its President’s Club as a Supporter. Mr. Herman is certified in trial advocacy by the National Board of Trial Advocates. He is also a member of the Baltimore City Bar Association and is an arbiter/mediator on its Fee Arbitration Committee.
Civil Procedure
Service of Process-Demand for a Jury Trial.
Although personal service of process is the preferred method for obtaining in personam jurisdiction over a defendant, Maryland Rule 3-121 (c) gives courts the ability to customize service of process while protect- ing the defendant’s due process right to receive notice. Maryland Rule 3-121(c) authorizes a court to order substituted ser- vice of process which includes posting as a method of service. Under the facts of this case, where good faith efforts at personal service have failed, substituted service may be made by posting a copy of the summons and complaint at the defendant’s residence along with mailing a copy of them to the
defendant by certified mail, return receipt requested. This procedure is commonly known as “nail and mail.” The Court of Appeals also held that when the District Court considers the va- lidity of a jury trial request pursuant to Maryland Rule 3-325 it may strike the de- mand as untimely when filed. The court also noted that the rule does not give the District Court the authority to strike the demand for failure to meet the amount in controversy requirements set forth in Md. Code Ann., Cts. & Jud. Proc. § 4-402 (e). Once the demand for a jury trial has been filed, the District Court is divested of its jurisdiction as a matter of law, and jurisdic- tion immediately vests in the circuit court. While the District Court may not evaluate the “amount in controversy” requirement of the jury trial demand, Maryland Rule 3- 325 gives the District court a fifteen-day
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period in which to examine the timeliness of a jury trial demand either on its own ini- tiative or on request by a party to the action prior to transmitting the record to the cir- cuit court for further proceedings. Therefore, the District Court maintains the ability to strike a jury demand as untimely filed until the record has been transferred to the Circuit Court.
Allan M. Pickett v. Sears, Roebuck & Com- pany, No. 104, September Term, 2000, filed July 13, 2001. Opinion by Battaglia, J.
Civil Rights Arrest – Use of Force
Although police officers have the right to take reasonably necessary measures to make an arrest in a manner that protects both the public and themselves, they may not use force in excess of that which a reasonable officer on the scene would deem necessary given the immediate danger the plaintiff poses to the public or the police, and whether the plaintiff was resisting arrest. Generally, police officers acting without malice have qualified immunity against most common law claims. Police officers do not, however, have qualified immunity from a claim made under the Maryland Declaration of Rights. Consequently, po- lice officers acting without malice may be liable for using excessive force in an arrest, in violation of Article 24 of the Maryland Declaration of Rights.
Kamran Tavakoli-Nouri v. State of Maryland, et al., No. 0048, September Term, 2000, filed August 30, 2001. Opinion by Adkins, J.
Contracts
Minors - Parent/Child—Doctrine of Nec- essaries—Medical Treatment— Liability of Child Upon Reaching Adulthood.
Summer 2002
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