MOYLAN, J.
Early Twentieth Century viewers were frozen to their nickelodeons by the heart-stopping melodrama "Curfew Shall Not Ring Tonight."
The appellants, Samuel and Rose Antar and Solomon and Gloria Lewittman, owned the building at 321 North Howard Street in Baltimore City. On August 31, 2006, they obtained an insurance policy from one of the appellees, the Mt. Vernon Fire Insurance Company. They obtained the policy through the other appellee, the Mike Egan Insurance Agency, Inc. On July 13, 2007, the insured building was destroyed by fire. The appellants submitted a claim to Mt. Vernon for their loss. Mt. Vernon denied the claim after a post-fire inspection revealed that the building lacked the
The date of the accrual of a cause of action is, of course, the vital starting point for computing a deadline under a statute of limitations. In the present case, no one has satisfactorily established the precise date on which Mt. Vernon refused to honor the appellants' claim. All parties agree, however, that the accrual date was no later than February 4, 2008, when the appellants filed their claim against Mt. Vernon in Pennsylvania. Although the limitations clock may already have been ticking for some weeks or even months before February 4, 2008, all parties are content to accept, as a point of departure for reckoning limitations, that the clock was ticking as of that day.
As a calculated trial tactic to take advantage of Pennsylvania's Bad Faith Statute, the appellants' suit against Mt. Vernon on February 4, 2008 was not filed in Baltimore City, or anywhere in Maryland, but in the Court of Common Pleas of Philadelphia County, Pennsylvania, alleging claims for breach of contract and bad faith. Mt. Vernon successfully joined the Mike Egan Agency as an additional party defendant in the Philadelphia County action.
On June 18, 2008, Mt. Vernon filed a motion to dismiss the suit in Philadelphia County on the grounds of forum non conveniens. On July 24, 2008, the Philadelphia County court granted Mt. Vernon's motion and dismissed the case, with leave to refile in Maryland. Not happy to leave Pennsylvania, the appellants sought appellate review of the Philadelphia County court's dismissal of their case. By Memorandum Opinion of June 15, 2010, the Pennsylvania Superior Court (the intermediate appellate court) affirmed the trial court's dismissal order. The appellants' subsequent motion for a rehearing was denied. Appellants did not seek review by the Pennsylvania Supreme Court. The order of the Superior Court was ultimately entered on the docket of the Philadelphia County Court of Common Pleas on September 27, 2010.
On May 18, 2011, the appellants first filed suit against both appellees in the Circuit Court for Baltimore City, alleging a breach of contract claim against Mt. Vernon and a negligence claim against the Mike Egan Agency. Both appellees moved for a dismissal of the suit as time-barred by the Statute of Limitations. Following a hearing on August 17, 2011, Judge Althea Handy granted the motions to dismiss the suit with prejudice. The appellants' motion for reconsideration was denied and this appeal followed.
All hands agree that the Maryland three-year Statute of Limitations for the present suit began running no later than February 4, 2008. In the ordinary course of events the filing deadline for the suit in Maryland would have been February 4, 2011. The suit ultimately filed in the Circuit Court for Baltimore City on May 18, 2011 would have been three months and two weeks beyond that ordinary filing deadline and would, therefore, have been time-barred.
The appellants contend, however, that the running of the limitations period in Maryland should have been tolled for the entire length of time that the suit was pending in Pennsylvania. It is their argument that the limitations clock in Maryland was frozen and did not continue to tick (or in this case did not even begin to tick) as of the moment the suit was filed in Philadelphia County. Their position is that time went into suspended animation and that the clock only resumed ticking
The appellants are a little vague as to their candidate for the terminal date of the case in Pennsylvania. It may have been July 24, 2008, when the Philadelphia County trial court dismissed the case on the ground of forum non conveniens. If Maryland limitations only resumed (or began) computing as of that date, the filing deadline in Maryland would have been July 24, 2011. The appellants, more grandiosely, further argue that the period of suspended animation may actually have continued until June 15, 2010, when the intermediate appellate court in Pennsylvania by Memorandum Opinion denied their appeal of the trial court's dismissal, which had come two years earlier. Under such a deferred terminal date, the Maryland filing deadline would not, indeed, be reached for yet another eight months.
The appellants cite no authority for so extreme a suspension of animation, one that would literally freeze time in its tracks. We know of none. The appellants, moreover, are twice bereft. They lose on the facts of their case, whatever the law, as we shall examine infra. Even if the facts were more favorable to their cause, however, they would still lose on the law. We look first to the law.
To get the subject matter before us in proper perspective, it is appropriate to take note of the fact that we are not dealing with a common law of limitations or with some judicial doctrine of limitations. We are dealing with the Statute of Limitations. As the noun "Statute" expressly states, we are dealing with a legislative policy determination to establish a definite and certain deadline for the filing of a civil lawsuit, notwithstanding the fact that an occasional injustice or hardship might sometimes result from such an arbitrary and definite legislative pronouncement. Maryland Code, Courts and Judicial Proceedings Article, § 5-101 expressly states:
(Emphasis supplied).
Deferring for the moment any consideration of the possibility of tolling, we can state that the cause of action in this case accrued no later than February 4, 2008. Russo v. Ascher, 76 Md.App. 465, 469, 545 A.2d 714 (1988); Bacon & Assocs. v. Rolly Tasker Sails (Thai.) Co., 154 Md.App. 617, 634-37, 841 A.2d 53 (2004). Absent the possibility of tolling, the statutory filing deadline for the claim in Maryland thereby became February 4, 2011 and the suit filed in the Circuit Court for Baltimore City on May 18, 2011, therefore, was time-barred by the Statute of Limitations and was properly dismissed for that reason. This is the norm from which analysis begins.
Why is this so? There is a lot more to appellate decision-making than simply doing a patch test, comparing the facts in the case at hand to the facts in cases cited by the appellants and the appellees respectively. Simply to compare a set of facts to other sets of facts is a trivializing exercise, almost always guaranteed to miss the bigger issues. A deeper reality is in play. There is an overarching social policy that illuminates this entire area of related decision-making. On the purpose and value of limitations, the guiding philosophy has nowhere been so cogently expressed as by Judge Irvine Levine for the Court of Appeals in Walko Corporation v. Burger Chef
That holding itself was relatively narrow, but the statement of controlling principle was far broader. Judge Levine quoted with approval from the Supreme Court in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945), in describing the values served by limitations statutes:
281 Md. at 210, 378 A.2d 1100 (emphasis supplied).
The Court of Appeals then spoke for itself in explaining that the Statute of Limitations is virtually an absolute bar that permits very little by way of exception:
281 Md. at 210-11, 378 A.2d 1100 (emphasis supplied).
The appellants claim that to allow a tolling of the Statute of Limitations during the pending of their litigation in Pennsylvania would be within the spirit and reason of the statute. Judge Levine, however, quotes with approval from McMahan v. Dorchester Fert. Co., 184 Md. 155, 160, 40 A.2d 313 (1944):
(Emphasis supplied).
Even in a situation far harsher than the one at bar, one wherein limitations had actually run out during the pendency of the suit in a foreign court, the Court of Appeals in Walko was steadfast that no bending of the rule would be permitted.
281 Md. at 211-12, 378 A.2d 1100 (emphasis supplied).
In Bragunier Masonry Contractors v. Catholic University of America, 368 Md. 608, 627, 796 A.2d 744 (2002), the Court of Appeals reaffirmed its deference to the Legislature's determination as to the demands of judicial economy:
(Emphasis supplied). See also Kumar v. Dhanda, 426 Md. 185, 209, 43 A.3d 1029 (2012) ("We have repeatedly touted the value of statutes of limitations as not only ensuring fairness between the parties, but also as essential to judicial economy and the pursuit of diligence in litigation."); Hecht v. Resolution Trust Corp., 333 Md. 324, 338, 635 A.2d 394 (1994) ("[T]he purposes of statutes of limitations are to provide adequate time for a diligent plaintiff to bring suit as well as to ensure fairness to defendants by encouraging prompt filing of claims."); Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 665, 464 A.2d 1020 (1983).
The appellants, however, lean heavily on Bertonazzi v. Hillman, 241 Md. 361, 216 A.2d 723 (1966). They seek to utilize it as a launching pad for wide-ranging judicially created exceptions to the perceived harshness of the Statute of Limitations. They would thereby turn a legislative judgment as to a filing deadline into judicial balancing of competing equities, conferring on the judicial branch broad discretion to ameliorate the stern commands of the legislative branch. The appellants argue to this Court as if we were commissioned to write limitations law in the first instance. We are not. Bertonazzi cannot be read as sanctioning so sweeping a judicial override of what in the last analysis is the legislative prerogative.
Bertonazzi, to be sure, did carve out a small and narrow exception to the mechanically harsh application of the Statute of Limitations that at that time prevailed. In that case the Court of Appeals was not dealing with the general three-year Statute of Limitations, but with the six-month period of limitations following the qualification of a personal representative within which a suit against the estate of a deceased tortfeasor must be filed under what was Maryland Code (1964 Replacement Vol.), Art. 93, § 112. The general principles announced by the Bertonazzi opinion, however, would apply to the more general Statute of Limitations as well.
Suit should have been brought against the deceased tortfeasor Hillman or Hillman's personal representative in Baltimore City. The Hillman residence, however, was located right on the Baltimore City-Baltimore
The case came on for a hearing in Baltimore County six months and fourteen days after Hillman's personal representative had qualified and fourteen days, therefore, after the statutory filing deadline. The defense motion to dismiss the suit was granted on the ground that neither the plaintiff nor the defendant actually lived in Baltimore County and that Baltimore County was an improper venue to hear the case. The motion to dismiss was granted on September 4, 1963. Bertonazzi's attorney immediately refiled the suit in Baltimore City, within one to two hours later. At a subsequent hearing in Baltimore City, however, the trial court granted Mrs. Hillman's motion to dismiss the case on the ground that it had not been filed until after limitations had run. Judge Hammond's opinion, 241 Md. at 365, 216 A.2d 723, pinpointed the issue before the Court of Appeals:
(Emphasis supplied).
In reversing the trial court and holding in favor of Bertonazzi, the Court of Appeals was "persuaded that the six months' limitations period was tolled" when the plaintiff "commenced an action in Baltimore County within six calendar months after the date of the qualification of the administratrix." 241 Md. at 365, 216 A.2d 723. Unlike the present case dealing with a difference between states (Maryland and Pennsylvania), the Bertonazzi opinion considered significant the fact that Baltimore County, albeit the wrong venue, nonetheless actually had jurisdiction over the subject matter:
241 Md. at 365-66, 216 A.2d 723 (emphasis supplied).
A trial of Bertonazzi's suit in Baltimore County would have produced an effective decision on the merits, whereas in the case at hand a trial in Philadelphia County would not have been an effective trial on the merits of the subsequent Maryland suit.
241 Md. at 366, 216 A.2d 723 (emphasis supplied).
Because of the extreme accumulation of extenuating circumstances, Bertonazzi is essentially sui generis, if not actually aberrational. In Walko v. Burger Chef, 281 Md. at 213, 378 A.2d 1100, Judge Levine gave us a good interpretive guide for reading Bertonazzi:
(Emphasis supplied). The Court of Appeals characterized Bertonazzi as a "narrow exception":
281 Md. at 214, 378 A.2d 1100 (emphasis supplied). There is a suggestion there that the Bertonazzi exception might never have come to pass if Maryland at the time had actually had a saving statute.
Judge Levine's unambiguous conclusion was that Bertonazzi "stands alone" and is "confined to [its own] special circumstances":
281 Md. at 214, 378 A.2d 1100 (emphasis supplied).
As Walko pointed out, 281 Md. at 214, 378 A.2d 1100, Burket v. Aldridge, Adm'r, 241 Md. 423, 216 A.2d 910 (1966), was decided by the Court of Appeals one day after the filing of Bertonazzi and was a sobering reminder that Bertonazzi was not the open-ended boon that the appellants
241 Md. at 430, 216 A.2d 910 (emphasis supplied).
The subsequent substitution of the tortfeasor's personal representative as the party defendant was held to be the actual commencement of a new action and it came after the three-year limitations period had run:
241 Md. at 430-31, 216 A.2d 910 (emphasis supplied).
Suit was dismissed as time-barred. Judge Oppenheimer's words, 241 Md. at 429, 216 A.2d 910, express the Court of Appeals's generally militant support for the Statute of Limitations and its unforgiving attitude toward possible exceptions:
(Emphasis supplied). See also McMahan v. Dorchester Fertilizer Corp., 184 Md. 155, 160, 40 A.2d 313 (1944); Booth Glass Co. v. Huntingfield Corp., 304 Md. 615, 624, 500 A.2d 641 (1985) ("In Maryland, it is well settled that equitable estoppel will not toll the running of limitations absent a showing that the defendant `held out any inducements not to file suit or indicated that limitations would not be pleaded.'"); Kumar v. Dhanda, 198 Md.App. 337, 353, 17 A.3d 744 (2011).
In Baker, Watts & Co. v. Miles & Stockbridge, 95 Md.App. 145, 620 A.2d 356 (1993), Judge Harrell spoke for this Court as we endorsed Walko's restrictive reading of Bertonazzi. The appellant in Baker, Watts had "attempt[ed] to argue that, in general, a defense of statute of limitations is disfavored and should be sparingly granted." 95 Md.App. at 194, 620 A.2d 356. In resoundingly rejecting that argument, Judge Harrell pointed out that the "Court of Appeals' holding in Walko ... clarifies its decision in Bertonazzi" and then went on to quote extensively with approval from Walko, including its interpretation that "Bertonazzi stands alone" and is "confined to the special circumstances" of that case. 95 Md.App. at 194-95, 620 A.2d 356.
How then do we read Bertonazzi? Even if it be true that hard cases make bad law, the circumstances that made Bertonazzi a hard case no longer exist. Bertonazzi has, in effect, been reduced to a lifeless hypothetical. Notwithstanding the fact that the case would not be decided today as it was in 1966, it nonetheless still haunts us as it is regularly and promiscuously invoked, as it was in the present case, as a proffered "Open, Sesame" for every conceivable variety of tolling exception.
The differences between the present case and Bertonazzi are profound. Geographically and jurisdictionally, the transfer in Bertonazzi was between two adjacent venues dealing with precisely the same cause of action under the same state law. In this case, the removal was from Pennsylvania to Maryland with different laws and different procedures. In Bertonazzi the filing in Baltimore County was the result of a mistake made in good faith. In this case, the filing in Philadelphia County was the result of a deliberate trial stratagem.
In Bertonazzi the plaintiff was a whirlwind of diligence, filing his claim in Baltimore City within less than two hours after it had been dismissed in Baltimore County. In this case, in sluggish contrast, the plaintiffs filed their claim in Baltimore City two years and eleven months after the case had been dismissed in Philadelphia County
In Bertonazzi the plaintiff had no reason to be alert to the possible need for a protective filing. In this case, the plaintiffs had every reason to be alert to such a possible need from the very moment the case was filed in Pennsylvania. In Bertonazzi the plaintiff was dismissed from Baltimore County as a matter of law and the time for a new filing had already run. In this case, the plaintiffs were dismissed from Philadelphia County as a discretionary matter and months, if not years, were still available for a new filing in Maryland.
Bertonazzi was dealing with an unusually harsh set of circumstances wherein a completely sympathetic plaintiff was utterly left without any avenue of relief. Maryland stood in Draconic contrast with the federal courts and with "most of the states of the Union" in offering no succor whatsoever. In Bertonazzi the Court of Appeals attached great, if not indeed dispositive, significance to the fact that in Maryland, at that time, there was neither a transfer statute without the need for refiling nor a saving statute:
241 Md. at 365, 216 A.2d 723 (emphasis supplied).
Bertonazzi, 241 Md. at 368, 216 A.2d 723, expressly referred to the type of saving statute, available in most states, that would have provided the necessary relief to a plaintiff such as Mrs. Bertonazzi:
(Emphasis supplied).
Significantly, both of those deficiencies, rued by Bertonazzi, have since been remedied. When the Bertonazzi suit was dismissed from Baltimore County, it was terminated, notwithstanding that nothing more was required than a simple transfer of the suit to an immediately adjacent venue. Such a simple transfer, however, was not then authorized. The Court of Appeals understandably took umbrage at this. That arbitrary harshness, however, has since been rectified. As of July 1, 1973, Rule 317 (Repl.Vol.1977) provided for the transfer of venue after a ruling that venue had been sought in the wrong county. In slightly reworded form, former Rule 317 is now Rule 2-327(b), which provides:
(Emphasis supplied).
Under the new rule, had it then been available, the Bertonazzi case would uneventfully have been transferred from Baltimore County to Baltimore City. It would not have been terminated and it would not, therefore, have had to be commenced all over again. Significantly, no question of limitations would ever have arisen, and there would have been no need for the Bertonazzi holding.
In 1992, the second of the two deficiencies noted by Bertonazzi was corrected by the enactment of, for the first time in Maryland, a savings statute (actually a rule of court). The appellees refer to this as the "Safe Harbor Provision." As of May 14, 1992, Maryland Rule of Procedure 2-101(b) now provides:
(Emphasis supplied).
The Minutes of the meeting of the Rules Committee held on October 11, 1991, make it clear that the change in the Rules of Procedure accomplished by the addition of subsection (b) to Rule 2-101 was in response to the desire by the Court of Appeals to ameliorate some of the harshness of Walko v. Burger Chef:
Had such a rule been available in Bertonazzi and had the Baltimore County judge, arguendo, simply dismissed the claim instead of exercising his discretion to transfer the case to Baltimore City, Mrs. Bertonazzi would still have been protected from the running of limitations. Even if limitations would otherwise have run out while the case was in the wrong court, the savings statute would have given her a grace period of 30 days in which to get the case refiled in the proper court. She only needed two hours.
Had those two ameliorative rules — Rule 2-327(b) and Rule 2-101(b) — been on the books, the Bertonazzi holding would almost certainly never have come to pass. Under the circumstances, we discern extremely little, if any at all, precedential vitality left in Bertonazzi v. Hillman. Its ghost should be laid to rest.
On the facts of this case, the new (1992) saving statute would not do the appellants a bit of good. Because the Maryland Statute of Limitations had not run when the Pennsylvania case was terminated (whatever time of termination one chooses), the saving provision of Rule 2-101(b) would not even apply. Absent that precondition, there simply is no statute or rule providing for the plenary tolling of the Statute of Limitations during the pendency of a case in the wrong forum.
As we turn attention to the appellants' case, it is clear that the remedy provided by Maryland law to a plaintiff whose case is delayed by having been filed in the wrong court is not a plenary tolling of limitations for the total duration of the erroneous filing but rather a precise grace period of 30 days for any necessary refiling. In this case, of course, the appellants did not need the benefit of Rule 2-101(b)'s 30 day grace period, because when the Philadelphia County Court dismissed the case on the grounds of forum non conveniens on July 24, 2008, they still had two years and seven months within which to refile the case timely in Baltimore. Even figuring from the affirmance of the dismissal by the Pennsylvania intermediate appellate court on June 15, 2010, they still had eight months within which to accomplish a timely refiling of the case in Baltimore (or four months and eight days figuring from September 27, 2010). Under any of those languid and latitudinarian deadlines, they utterly failed to exhibit a shred of diligence. Dissatisfied by the only relief provided by rule or statute, the appellants would have us invent a new form of relief.
Even if the Maryland Statute of Limitations had run out on the case while it was still pending in Pennsylvania, the only relief available to the appellants would have been pursuant to Rule 2-101(b), which would have given them a 30-day period of grace within which to file, following the dismissal of the suit in Philadelphia County. As a matter of law, there would be no other avenue of relief available. And even if, purely arguendo, other forms of relief had been available, the appellants, because of their utter lack of diligence, would have failed to qualify for such relief, as a matter of fact.
Still persisting, however, in their effort to come up with some new variety of relief, the appellants seek to find in Bertonazzi a juridical fountainhead of tolling exceptions, optimistically pointing to such cases as 1) Christensen v. Philip Morris, 162 Md.App. 616, 875 A.2d 823 (2005), aff'd by Philip Morris v. Christensen, 394 Md. 227, 905 A.2d 340 (2006); and 2) Swam v. Upper Chesapeake Medical Center, 397 Md. 528, 919 A.2d 33 (2007), as its doctrinal outpouring. The two cases, however, resist such easy categorization. They are not part of the ripple effect of Bertonazzi.
As much as the appellants here look to Christensen as authority for some generic "equitable tolling doctrine," what Christensen dealt with was a far more specific and far more limited "doctrine of equitable class action tolling." 162 Md.App. at 638-39, 875 A.2d 823. Christensen was from start to finish a case tied to class action law. The bottom line, to be sure, was that "during the pendency of the class action lawsuit ... limitations was suspended for potential class members." 162 Md.App. at 659, 875 A.2d 823. At issue, however, was a basic clash between two competing social and legal policies: statutes of limitation, on the one hand, and class action law, on the other. In the Court of Appeals's affirming opinion, Judge Raker set out the two necessary preconditions that must be satisfied before the Court of Appeals will recognize a tolling exception to a statute of limitations:
394 Md. at 238, 905 A.2d 340 (emphasis supplied).
The opinions of both the Court of Special Appeals and the Court of Appeals laid out meticulously the "persuasive policy considerations" supporting a class action tolling exception. Judge Hollander pointed out for the Court of Special Appeals that:
162 Md.App. at 639, 875 A.2d 823. The opinions of both courts relied heavily on the Supreme Court's decision in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), construing Federal Rule 23. The opinion of this Court first articulated the general principle that, basically, Maryland will not recognize a tolling exception to the Statute of Limitations absent some legislative expression authorizing such an exception:
162 Md.App. at 655, 875 A.2d 823 (emphasis supplied). The Court of Appeals also recognized that the creation of a tolling exception required not simply a sympathetic case but a solid grounding in Maryland law:
394 Md. at 236-37, 905 A.2d 340 (emphasis supplied). Judge Raker's opinion then relied on Maryland Rule 2-231 dealing with class actions as the required predicate on which a class action tolling exception might be created:
394 Md. at 241, 905 A.2d 340 (emphasis supplied).
Recognizing a legitimate authority to create a class action tolling exception was but half the battle. The opinion of this Court explained how the recognition of the class action tolling exception had been deemed necessary by the Supreme Court in the American Pipe case in order "to protect the policies undergirding the class action procedure." 162 Md.App. at 645, 875 A.2d 823. The majority opinion in American Pipe, 414 U.S. at 550-51, 94 S.Ct. 756 had pointed out how the failure to toll the statute of limitations would work to the detriment of class action law.
(Emphasis supplied).
In its subsequent opinion to the same effect in Crown, Cork & Seal v. Parker, 462 U.S. 345, 350-51, 103 S.Ct. 2392, 76
(Emphasis supplied).
The discussions by both Courts in Christensen did not involve the mere personal fortunes of an individual litigant. The Statute of Limitations itself routinely handles such cases. The clash in Christensen was on a higher plateau. It was a confrontation between conflicting policies. Judge Hollander's opinion described the much higher stakes on the table in that case:
162 Md.App. at 659, 875 A.2d 823 (emphasis supplied).
In Kumar v. Dhanda, 198 Md.App. at 348, 17 A.3d 744 Judge Deborah Eyler explained how the policy consideration favoring class action suits was the critical factor in Christensen's recognition of the tolling exception:
(Emphasis supplied). There is nothing comparable at stake in the present case, and the Christensen case has no applicability to it.
397 Md. at 541, 919 A.2d 33 (emphasis supplied). That is policy language par excellence, and the decision involves far more than the routine pros and cons of an individual litigant. In the present case, no policy concerns are in any way implicated.
The completely compatible opinions of Kumar v. Dhanda, 198 Md.App. 337, 17 A.3d 744 (2011) and Kumar v. Dhanda, 426 Md. 185, 43 A.3d 1029 (2012) add yet further demerit to the appellants' cause. The two cases together establish the following rule: If, even while a case is pending in one forum, there is the theoretical possibility that it may end up being tried at a later time in a different forum, the diligent litigant is obligated to guard against a running of the Statute of Limitations in that other forum by a protective filing of the claim in that possible future forum.
Dr. Kumar and Dr. Dhanda entered into an employment contract on August 31, 2001. The contract included a mandatory non-binding arbitration clause. It also included a non-competition clause that prohibited Dr. Dhanda from engaging in the practice of urology within specified geographic limits and for three years after his termination of employment. After a tangle of convoluted procedures not here pertinent, Dr. Kumar filed suit against Dr. Dhanda on March 16, 2009, in the Circuit Court for Montgomery County. Dr. Dhanda moved to dismiss the suit, asserting that the claims were time-barred by the general three-year Statute of Limitations. The trial judge agreed and granted the motion to dismiss. The Court of Special Appeals affirmed that dismissal. The Court of Appeals affirmed the Court of Special Appeals.
With the latest possible accrual date for the regular breach of contract claim being August 31, 2002, and the latest possible accrual date for the breach of the non-competition clause being August 31, 2005, Judge Eyler held for this Court, 198 Md. App. at 343, 17 A.3d 744:
(Emphasis supplied).
The mandatory but non-binding arbitration hearing had been held on March 28,
198 Md.App. at 346, 17 A.3d 744 (emphasis supplied).
Judge Greene for the Court of Appeals identified precisely the same issue of whether the running of limitations had been tolled as the dispositive question:
426 Md. at 204, 43 A.3d 1029 (emphasis supplied).
Judge Eyler explained that the mandatory but non-binding arbitration clause did not affect the accrual date of the cause of action. It simply imposed on a diligent litigant, with a weather eye on the limitations horizon, the obligation to speed up the arbitration process and/or to take other protective steps:
198 Md.App. at 345, 17 A.3d 744 (emphasis supplied). The opinion also gave us a useful adverb as it referred to the precaution of "filing suit prophylactically to guard against the running of the statute of limitations." Id. n. 3.
Although the suit could not actually go to trial in the circuit court until the arbitration had been wrapped up, there was nothing to inhibit its being filed prophylactically:
Id. (emphasis supplied). Judge Greene reaffirmed for the Court of Appeals that conclusion that diligence presupposes taking sound precautions:
426 Md. at 210, 43 A.3d 1029 (emphasis supplied).
This Court in its opinion examined the many ways in which a cautious plaintiff can protect itself from the running of limitations:
198 Md.App. at 350, 17 A.3d 744 (emphasis supplied).
In its affirming opinion, the Court of Appeals again expressed its disinclination to invent "a judicial tolling exception" where the legislature has not provided one:
426 Md. at 204, 43 A.3d 1029 (emphasis supplied).
In the present case, of course, there was no prophylactic filing of the appellants' claim in Maryland nor even a more leisurely filing of the claim in the months, or years, following the dismissal of the case in Philadelphia County. The appellants lose on the facts and they lose on the law.
For these non-diligent and incautious appellants, the curfew bell did ring. With rare, rare exceptions not here applicable, once a cause of action accrues and limitations begin to run, time marches on.
Kumar v. Dhanda, 198 Md.App. at 349, 17 A.3d 744 highlighted the stress that Walko had put on the diligence factor:
(Emphasis supplied).
(Emphasis supplied).
