Rupp v. Hurley

HARTZ, J.,

(specially concurring).

{46} I join all of Judge Bustamante’s opinion except for the deference it accords to Defendants’ reliance on Rule 1-015(B). Defendants’ problem here is the untimeliness of their motion to dismiss. Rule 1-015(B) does not address such a problem.

{47} The first sentence of Rule 1-015(B) states: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” (Emphasis added.) As I understand this Rule, it does not apply when an issue has been raised by the pleadings. Here, Defendants had filed a motion, albeit an untimely one, raising the issue of inadequate service. Rule 1-015(B) says nothing about treating a pleading that was actually filed as having been filed earlier than it was.

{48} Moreover, even if Defendants had never filed a pleading seeking dismissal for insufficient service of process, Rule 1-015(B) could not save them. Under Rule 1-015(B) a pleading will be deemed to have been filed, but it will not necessarily be deemed to have been timely filed. Presumably, the Rule would, treat the matter as if the pleading raising the issue was filed at the time that the issue was tried by consent. But cf. Rule 1-015(C) (relation back of amendments). I do not see how the Rule could put a party in a better position than it would have been in if the court had explicitly permitted the party to file a pleading raising the issue at the time that the issue was litigated by consent of the parties. In short, I cannot see how Rule 1-015(B) could ever be used to cure a waiver under Rule 1-012(H)(1). Indeed, the very language of Rule l-012(H)(l)(b) indicates that Rule 1-015 can cure such a waiver only to the extent that it permits an amendment to the pleadings “as a matter of course,” which is the subject of Rule 1-015(A).