Abrishamian v. Washington Medical Group, P.C.

NAZARIAN, J. The saga before us in this case began in 2005 with an auto accident, but since has snowballed into litigation about litigation. Azizolah Abrishamian appeals a jury’s verdict in the Circuit Court for Montgomery County finding that he breached his contract with appellee Washington Medical Group, P.C. (“WMG”) to pay bills for medical treatment WMG provided to him after the accident. Mr. Abrishamian opposed WMG’s claims by arguing that his treating physician at WMG, Pedro Macedo, M.D., refused to honor an agreement to testify as an expert on his behalf in the post-accident personal injury lawsuit.

Mr. Abrishamian interpreted this refusal as relieving him of his obligation to pay WMG’s bills, but WMG disagreed and sued to recover the unpaid balance. Mr. Abrishamian counterclaimed for fraud and breach of contract, and after some fairly complicated (but not really complex) pre-trial wrangling, a jury returned a verdict in favor of WMG. Mr. ³⁹⁴ Abrishamian challenges a number of the circuit court’s procedural and evidentiary decisions, and we affirm. I. BACKGROUND Mr. Abrishamian suffered a head injury in his auto accident, and his physician referred him to WMG for treatment.

At his first visit to WMG, Mr. Abrishamian signed an Authorization and Assignment Agreement (the “A & A”), in which he agreed to pay WMG’s medical bills out of the proceeds of any settlement or judgment he might recover from the lawsuit. Mr. Abrishamian recovered $30,000 in that suit, but never paid any of those proceeds to WMG. Instead, according to WMG, Mr. Abrishamian “filed an interpleader action in the Circuit Court to dispute the amounts owed to his medical providers.” (The record does not contain any of the pleadings or other documents from that litigation.) On January 11, 2010, WMG filed suit in the District Court for Montgomery County to enforce the A & A, seeking to recover unpaid medical bills totaling $11,510.00, plus interest and attorneys’ fees. On November 21, 2011, after discovering that it had received payments shortly after the accident from Mr. Abrishamian’s Personal Insurance Protection policy (“PIP”) that it mistakenly had failed to apply to Mr. Abrishamian’s account, WMG refiled its complaint and reduced the amount in dispute to $4,810.00.

For his part, Mr. Abrishamian contends that WMG harbored an ulterior fraudulent motive for filing its initial complaint, and characterizes the trial court’s (pretty routine) decision to allow WMG to refile the complaint in dramatic terms: [WMG] knowingly and deliberately made the false representation that I owed [WMG] $11,510.00, which I did not. Not only had [WMG] sued me for this crafted amount they had also sued Mr. Edward J. Brown, a fellow bar member, whose only misfortune was that he was my attorney in a different case. After transferring the above-mentioned case to the Circuit Court ... [WMG] quickly changed course, confessed to the Circuit Court Judge ... that the $11,510.00 ³⁹⁵ was indeed a false amount and pled for their complaint to be dismissed, which it was. [The trial court] penalized [WMG] by directing [it] to pay all court costs. After WMG refiled the case in district court, it attempted repeatedly, without success, to serve Mr. Abrishamian and his counsel, Edward Brown.

On May 16, 2011, the court entered an order allowing alternative service, and on June 13, 2011, denied Mr. Brown’s motion to reconsider that order. The court entered an Affidavit Judgment against Mr. Abrishamian on August 4, 2011, and mailed a Notice of Judgment on August 18, 2011. He claims not to have received either (although he does not argue that the court mailed any documents to the incorrect address). Nevertheless, on September 2, 2011, in a classic failure to communicate, 1 Mr. Abrishamian filed pro se a Motion to Vacate the Affidavit Judgment on the same day that Mr. Brown’s office filed a Motion to Vacate the Affidavit Judgment on his behalf (the latter also included a “request for sanctions”).

Both Mr. Abrishamian’s Motion and counsel’s Motion accused WMG of fraud; Mr. Abrishamian’s Motion professed indignation at the notion that anyone might think that Mr. Brown’s office represented him. 2 ³⁹⁶ The court vacated the Affidavit Judgment on November 14, 2011, and on December 12, 2011, Mr. Abrishamian filed a Counterclaim, also in district court. The Counterclaim alleged that WMG, through Dr. Macedo, had received payments from him to testify in the underlying personal injury litigation, but refused to do so. According to the Counterclaim, Dr. Mace-do’s refusal to testify rendered Mr. Abrishamian “unable to present $10,510.00 in medical bills and proof of injury” at trial (impliedly because the refusal came too late for Mr. Abrishamian to find or subpoena another witness to authenticate the bills). Mr. Abrishamian also alleged that Dr. Macedo had offered to tamper with a diagnostic study to make it show results more likely to yield a verdict in his favor at trial.

Perhaps more importantly for our purposes, the Counterclaim also included a demand for a jury trial, which caused the case to be transferred to the Circuit Court for Montgomery County- On January 25, 2012, Mr. Abrishamian filed a Motion for Order of Default (the “Default Motion”) in the circuit court on the ground that WMG had not filed an Answer to the Counterclaim. On January 30, 2012, the court denied what it called “Plaintiffs Motion for Default” (emphasis added), reasoning that Mr. Abrishamian had already filed an Answer (in the “Order Denying Default”). The circuit court apparently mistook the Motion for Default as filed by WMG, and, we suspect, denied the motion based on Mr. Abrishamian’s answer to the original Complaint. We discuss this order in greater detail below. 3 ³⁹⁷ On January 31, 2012, WMG filed an Opposition to the Motion for Default (the “Opposition to Default Motion”) (it presumably had not seen the court’s order denying the Default Motion), along with an Answer to the Counterclaim.

A brief respite of filings followed (and no request from Mr. Abrishamian for a clarification of the Order Denying Default). Then, on February 28, 2012, WMG moved to disqualify Mr. Brown pursuant to Maryland Rule 2-504 and Maryland Lawyer’s Rule of Professional Conduct Rule 3.7 (the “Motion to Disqualify”). WMG argued that the core dispute in the case— whether Dr. Macedo agreed to serve as an expert witness— centered around a conversation between Dr. Macedo and Mr. Brown about whether Dr. Macedo had agreed unequivocally to testify. The court granted the Motion to Disqualify in an Order, dated March 29, 2012 (the “Disqualification Order”), that stated “that Edward J. Brown, Esquire, is DISQUALIFIED as counsel/attorney of record for [Mr. Abrishamian] in the above-captioned case.” Mr. Brown viewed the Order as less than a total bar, however; a month later, on April 30, 2012, WMG moved to strike a notice of deposition (the “Motion to Strike Macedo Deposition”), that Mr. Brown had signed as counsel for Mr. Abrishamian and that purported to note Dr. Macedo’s deposition.

After receiving the Motion to Strike Macedo Deposition, and at the request of WMG’s counsel, the circuit court judge (not the one who ultimately presided at trial) called the parties in and held a hearing. The judge did not see the ambiguity that Mr. Brown had seen in his Disqualification Order: THE COURT: What about my order is not clear? MR. BROWN: Your honor— THE COURT: You don’t have to agree with it, but— MR.

BROWN: Right. THE COURT:—it says you’re out of the case. MR. BROWN: Well, I don’t think it does say that, your honor, and I heard— THE COURT: Great.

MR. BROWN: Okay. ³⁹⁸ THE COURT: You’re out of the case. MR. BROWN: Well— THE COURT: Do not do anything else as a lawyer in the case.

My order said you are disqualified— MR. BROWN: Okay. THE COURT:—from acting as counsel in the case. You act as counsel at your peril.

I don’t want to pick up the phone. MR. BROWN: May I just— THE COURT: Please. MR.

BROWN: Can— THE COURT: No, you’re out. You don’t like it, take an appeal— MR. BROWN: I— THE COURT: When it’s appealable. MR.

BROWN: Okay, but can I just make a quick record, your honor, because— THE COURT: No. I’m going to actually deny you that. I signed the order. It says what it says. It is not vague.

It is not ambiguous. Close the record. You can—the record will reflect, I’m denying the right to argue ad nauseam and going over the same thing. If you act as a lawyer in the case again, I will seek guidance from the administrative judge.

I don’t want to do that. Thank you. You’re done. MR.

BROWN: May I cite one case? THE COURT: No. The docket entry characterizes the court’s ruling as a “partial” grant of the Motion to Strike Macedo Deposition, and the record contains no other reference to the remaining requests in that motion. On May 7, 2012, Mr. Abrishamian moved to reconsider what he referred to as the “May 3, 2012 Order” (the “Motion for Reconsideration”). But that “order,” which issued from the bench, simply clarified the scope of the Disqualification Order that the court issued on March 29, 2012.

Mr. Abrishamian argued in the Motion for Reconsideration that the scope of the Court’s ruling improperly barred Mr. Brown from serving as counsel in the entire case in the circuit ³⁹⁹ court, when he believed it should have only barred him from serving as counsel at trial. The court denied the Motion for Reconsideration on June 5, 2012. Over the next several months, the parties filed various motions to quash, motions for postponement, and motions for attorneys’ fees. And perhaps not surprisingly, efforts at alternative dispute resolution met with no success.

Prior to trial, WMG moved in limine to exclude any testimony by Mr. Abrishamian regarding his allegation in the Counterclaim that Dr. Macedo offered to “enhance” a brain imaging study. The court granted the motion “without prejudice,” leaving open the possibility that Mr. Abrishamian could seek to introduce the testimony if the issue came up again once trial was underway. The court reasoned that even if it were true, the claim alleged a “prior bad act” that Maryland Rule 5-404 would exclude. The court also found that the substance of the conversation was not relevant: It strikes me that it is a prior bad act, wrongful conduct that did not actually induce your client to act.

And it strikes me—again, it’s been in a vacuum, because we’re not in the midst of the trial. This is partly why I’m saying you can raise it at an appropriate time outside the jury, with notice to us at the bench. That strikes me that the prejudicial impact of that would be significant and heavily outweigh any probative value, since I don’t find that it has probative value. (Emphasis added.) Mr. Abrishamian filed several other pre-trial motions as well, including a motion asking the court to take judicial notice, under Maryland Rule 5-201, of a number of “facts” that we list here, as he phrased them: 1) Dr. Wells’ bills were admitted in the tort trial after Dr. Wells appeared, and laid the required foundation via his testimony; 2) Dr. Ammerman’s bills were admitted in the tort trial after Dr. Ammerman appeared via video, and laid the required foundation via his testimony. ⁴⁰⁰ 3) Dr. Dombrowski’s bills were admitted in the tort trial after Dr. Dombrowski laid the required foundation via his testimony; 4) Defendants WMG and [Dr.] Macedo [actually Plaintiff/Counter-Defendants] maintained their first lawsuit against [Mr. Abrishamian] for more than four months after receipt of actual notice that the allege [sic] amount sought was false.

See Exhibit A. [Exhibit A is the 15-page Answers to Interrogatories that WMG filed in discovery.] 5) That, at the time of the institution of the first lawsuit, had the amount which [WMG and Dr. Macedo] ultimately admitted was at issue been the amount sought, the case would have been a small claims action, could' not have been moved to the Circuit Court for Montgomery County, and no discovery could have occurred. 6) The Law Office of Edward J. Brown did not institute the tort lawsuit, as sworn in Defendant’s Affidavit. 7) In WMG’s s[sic] Answer to Interrogatory No. 3 in District Court, its representative, A. Bocian, admits that it was only possible that she, WMG’s secretary, spoke to Defendant Brown (“I spoke to Brown’s office and possibly Brown himself.”). See Plaintiffs Answer to Interrogatory No. 3, Ex.A. Bocian in her Motion for Summary Judgment Affidavit (Circuit Court 1), testifies under penalties of perjury that she spoke to Defendant Brown—not a “only possible” [sic] anymore, but now an unconditional, unequivocal, unqualified assertion that she herself spoke to attorney Brown. 8) a) Defendant [actually Plaintiff] WMG, in Answer to Interrogatories, swore under penalties of perjury that it was only AFTER Brown signed the A & A that the 11/10/2009 conversation with Dr. Macedo could, and did, go forward. See WMG’s Answer to Interrogatory No.3, Ex.A. b) It is undisputed that the date of the call was November 10, 2009. c) Ms. Bocian in WMG’s Affidavit in support of its Motion for Summary Judgment swore that Brown signed the A & A on November 11, 2009. See Exhibit B. ⁴⁰¹ 9) In the same Affidavit, Ms. Boeian swore that Brown was the person under whose “advisement (sic) that Abrishamian decided to pursue legal action against the third party tortfeasor”.

See Affidavit of Plaintiffs representative Boeian at paragraph 7, Ex. B. The Court docket discloses that the actions was instituted [sic] by completely unrelated counsel on May 29, 2008 (long before Brown’s involvement over a year later—the Md. Judiciary Website identifies the date of Brown’s appearance as June 26, 2009). 10) The applicable confidentiality provisions of Federal law (HIPPA) [sic]. In denying the motion, the court noted that Mr. Abrishamian had not offered the documents from other cases themselves, but had asked the court to endorse his descriptions, and the court “declin[ed] to take judicial notice of something that’s no longer in the court record.” At the same time, WMG told the court that it would seek attorneys’ fees and prejudgment interest from the court if it prevailed, not from the jury. The case was tried to a jury on February 11-12, 2013.

The jury returned a verdict in favor of WMG for $2,900.00. On April 18, 2013, the court granted WMG’s petition for attorneys’ fees in the amount of $965.70, and interest in the amount of $2,262.00. Mr. Abrishamian filed a timely notice of appeal.

II

DISCUSSION Mr. Abrishamian’s list of appellate issues includes nearly every pre-trial decision the circuit court made. 4 At the ⁴⁰² threshold, he argues that the Clerk of the Circuit Court erred in failing to enter a default and that that error alone entitles him to victory. From there, he challenges the circuit court’s decision to disqualify his counsel (who, with our permission, briefed and argued the appeal), a variety of evidentiary rulings, and the court’s decisions regarding interest and attorneys’ fees. After sifting through the rhetoric and overstated allegations of fraud, we find no errors. A. The Circuit Court Did Not “Err in Failing To Enter An Order Of Default Against WMG.” Maryland Rule 2-613 provides that “[i]f the time for pleading has expired and as provided by these rules, the court, on written request of the plaintiff, shall enter an order of default.” Md. Rule 2—613(b).

The Rule then requires the Clerk to issue a notice of default to the defendant, who may file a motion within thirty days asking the court to vacate the order. Md. Rule 2-613(c). The motion to vacate must “state the reasons for the failure to plead and the legal and factual basis for the defense to the claim.” Md. Rule 2-613(d). Importantly, and in light of the overarching preference that ⁴⁰³ judgments reflect the merits of a dispute rather than procedural “gotcha” victories, the court must vacate the default if it “finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitable to excuse the failure to plead.” Md. Rule 2-613(e).

Mr. Abrishamian contends that the circuit court was required to enter an order of default against WMG on his Counterclaim (there is no issue of default regarding WMG’s claims against him, so nothing in this section relates at all to the jury verdict or ensuing judgment) thirty days after he filed the Default Motion. He is right on that discrete point. From there, though, he contends that judgment in his favor would have followed inexorably from an order of default. That leap in logic encounters insurmountable hurdles.

Had the Clerk entered an order of default, the next step would not have been a judgment on the Counterclaim, but notice to WMG and a thirty-day opportunity to file a motion to vacate the entry of default. And it seems to follow, based on the actual progression of events, that WMG would have filed such a motion, made the arguments it raised (successfully) in the Opposition to Default Motion, and that Mr. Abrishamian would have opposed such a motion with the arguments it made in the Default Motion. Put another way, it is clear that WMG would not have conceded the merits of the Counterclaim (because it fought them), and the circuit court in fact considered and decided the same issues and arguments an order of default would have placed before it, even if somewhat later in the life of the case. Faced with the same questions, albeit on an inverted posture, we are comfortable that the circuit court would have vacated an order of default under Rule 2-613(c), just as it declined to impose a default later, and that the Clerk’s ministerial error did not prejudice Mr. Abrishamian.

Although Mr. Abrishamian argues that we must review the Order Denying Default de novo, we are persuaded that the more appropriate standard is the one we apply when default has been entered and the circuit court is asked to vacate it. Under those circumstances, the court has broad discretion, which “ ‘must be exercised liberally, lest technicali ⁴⁰⁴ ty triumph over justice.’ ” Holly Hall Publ’ns, Inc. v. Cnty. Banking & Trust Co., 147 Md.App. 251, 262 , 807 A.2d 1201 (2002) (quoting Royal Ins. Co. of America v. Miles & Stockbridge, P.C., 133 F.Supp.2d 747, 768 (D.Md.2001)).

We reviewed the standard in detail in Holly Hall, where the trial court refused to vacate an entry of default. Although the trial court in that case entered default against a defendant in an original claim and not a counterclaim, the circumstances otherwise were similar—the complaint related to previously filed actions, counsel for the parties had a tense working relationship, and the parties already were litigating a separate but related action. Id. at 254, 807 A.2d 1201 . Counsel had an answer prepared, but, as he explained in a motion to strike the order of default, he held the answer while the parties discussed the possibility of settlement, then mistakenly failed to file it when the parties broke off those discussions.

Id. at 255-56 , 807 A.2d 1201 . The court declined to grant the defendant’s motion to strike the entry of default, a decision the defendant appealed. We discussed both facets of Rule 2-613(e) in Holly Hall. First, we addressed the requirement that a party show a “substantial and sufficient basis for a controversy as to the merits,” and explained that “[a] conelusory statement that merely tracks the language of the rule is insufficient.” Holly Hall, 147 Md.App. at 260 , 807 A.2d 1201 .

Second, we examined in depth the Rule’s requirement that the court consider whether “it is equitable to excuse the failure to plead,” noting at the outset the “broad general discretion” of the trial court and the purpose of the rule in Maryland, which is “not punitive in nature.” Id. at 261-62 , 807 A.2d 1201 . We emphasized that the goal of the rule is “to ensure that justice is done[, which] requires consideration of all relevant circumstances in any given case.” Id. at 265 , 807 A.2d 1201 . We noted further that “[technicality, while important, should not be elevated to an exalted status.” Id. at 266 , 807 A.2d 1201 . And we ultimately held that the trial court abused its discretion when it denied the motion to vacate, because the defendant had demonstrated the “basis for an actual controversy,” ⁴⁰⁵ id. at 260 , 807 A.2d 1201 , and counsel’s failure to file the answer came not from any ill-will or contumacious behavior, but from inadvertence.

Id. at 267 , 807 A.2d 1201 . We added too that the motion to vacate came right after entry of the Order, so “there was no continuing pattern of neglect,” nor any suggestion of harm to the appellee. Id. In this case, we recognize that the Opposition to Default Motion didn’t address whether WMG had a meritorious defense.

But technically it didn’t have to, because it wasn’t styled as a Rule 2-613 motion in the first place—WMG wasn’t aware that the court had issued the Order Denying Default, so it opposed the Default Motion generally rather than addressing the specific requirements under Rule 2-613(c). But as we look back at the circuit court record, the answer to the question of whether WMG had a meritorious defense is obvious—WMG prevailed at trial when the court granted its motion to dismiss. 5 As to the second prong of the Holly Hall analysis, WMG’s explanation for failing to answer tracks the argument that succeeded in Holly Hall . WMG’s original attorney had left his law firm in August 2011, when Mr. Abrishamian filed the Counterclaim, and through inadvertence (or at worst, benign neglect), the answer to the Counterclaim slipped through the cracks. But WMG opposed the Default Motion within six days of filing (even though it had already been denied), within two months after Mr. Abrishamian filed the Counterclaim, and filed its Answer the same day.

Finally, we disagree that Mr. Abrishamian suffered any harm from the court’s denial of the Default Motion. We see no connection between the Clerk’s error in not entering an ⁴⁰⁶ order of default on the counterclaim and the disqualification of his counsel, which arose (as we discuss in greater detail below) because counsel testified as part of Mr. Abrishamian’s defenses to WMG’s claims (and thus beyond the scope of the potential default). Rather than pressing for an order of default well before trial, Mr. Abrishamian proceeded with discovery and the remainder of the litigation, effectively acting as if the court had denied the Default Motion. We decline to reward Mr. Abrishamian’s decision to wait until the morning of trial to demand a default, a litigation tactic that would subvert the recognized goal of “ ‘conforming] to principles of justice and right’ ” that we espoused in Holly Hall, 147 Md.App. at 265 , 807 A.2d 1201 (quoting Black’s Law Dictionary 558 (7th ed. 1999)).

B. The Circuit Court Properly Disqualified Counsel. Mr. Abrishamian next challenges the trial court’s decision to disqualify Mr. Brown as his counsel. He argues first that the court erred in failing to convene a hearing on the question, and contends that if it had, the court surely would have agreed with his position that Mr. Brown should continue as his counsel. Second, he claims that the scope of disqualification was too broad and that the court should have permitted Mr. Brown to continue representing him in non-trial matters.

WMG counters that the circuit court properly disqualified Mr. Brown because his role as fact witness mandated his absence from the trial table—and from all other aspects of the case, including discovery—under Maryland Rules of Professional Conduct, Rule 3.7(a). Under these circumstances, we agree with WMG. The governing ethical rule precludes lawyers from serving both as counsel and a witness in a case, save for three narrow circumstances: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or ⁴⁰⁷ (3) disqualification of the lawyer would work substantial hardship on the client. Md. Rule 16-812, Rules of Prof.

Conduct, Rule 3.7(a). Mr. Brown argues that State v. Goldsberry, 419 Md. 100 , 18 A.3d 836 (2011), required the circuit court to hold “an evidentiary hearing ... if the Court was even contemplating granting the Motion [to Disqualify].” We disagree. First, Goldsberry is a criminal case that turns on a Sixth Amendment deprivation that obviously is not at issue here. See id. at 132 , 18 A.3d 836 (the trial court’s “failure to develop a factual record ... denied Goldsberry his Sixth Amendment right to counsel of his choice.”).

Mr. Abrishamian enjoys no such constitutional right to counsel, and he suffered no