Benway v. Maryland Port Administration

²⁴ DAVIS, J. Linda Benway, appellant, filed a claim with the Workers’ Compensation Commission of Maryland (Commission) seeking death benefits from appellees, the Maryland Port Administration and the Injured Workers’ Insurance Fund, as a result of the death of her husband, Robert L. Benway, Jr. A hearing on appellant’s claim was held on March 6, 2008. The Commission disallowed her claim on March 21, 2008. Appellant, acting pro se, filed a Petition for Judicial Review of the Commission’s decision in the Circuit Court for Baltimore City on April 14, 2008. On April 29, 2008, a Pre-Trial Scheduling Order was issued which required, inter alia, that “[a]ny motion for summary judgment shall be filed no later than 5 months from the date of this order — 09/28/08.” Trial was set for December 2, 2008.

Over a month after the deadline for dispositive motions, on October 31, 2008, appellees filed a Motion for Summary Judgment. Appellant filed a response on November 19, 2008. The court granted summary judgment in appellees’ favor on November 25, 2008. Appellant filed a Motion for Reconsideration on December 1, 2008 and, while the court’s disposition of that Motion was pending, appellant filed a Notice of Appeal.

Ultimately, the circuit court denied appellant’s Motion for Reconsideration. Appellant presents three questions 1 for our review, which we have rephrased and consolidated into the following two questions: I. Did the circuit court err in considering a summary judgment motion filed after the scheduling order deadline? ²⁵ II. Did the circuit court err in granting summary judgment in favor of appellees? For the reasons that follow, we answer both of appellant’s questions in the negative.

Accordingly, we affirm the decision of the Circuit Court for Baltimore City. FACTUAL AND PROCEDURAL BACKGROUND Appellant’s husband, Robert L. Benway, Jr. (Benway), was employed by appellee, the Maryland Port Administration, as a Facility Maintenance Supervisor. As a Facility Maintenance Supervisor, he was responsible for all underground utilities, in addition to general maintenance duties. Benway supervised several employees, including Patrick Woods and Keith Capps.

On the morning of June 26, 2006, Benway, Woods and Capps were at a Maryland Port Administration property located at South Clinton Street (the Property) in Baltimore, Maryland. At some point around 10:00 a.m., while ascending or descending a ladder, Benway’s legs became entangled, causing the ladder to slip and Benway to fall eight to twelve feet. His head struck the cement and he sustained severe injuries. Woods immediately took Benway to Johns Hopkins Bay View Hospital, where he died on July 1, 2006, as a result of his injuries.

On October 26, 2006, appellant filed a death benefits claim with the Workers’ Compensation Commission. She asserted that Benway was killed in a work-related accident when he “fell from a ladder, struck [his] head and died from said injuries.” Appellees contested the claim based, in part, on their assertion that Benway’s death resulted from injuries sustained while he was deviating from his employment. Specifically, appellees claimed that, at the time of his injuries, Benway, with the help of Woods and Capps, was attempting to steal copper wiring from the ceiling of the Property to sell for scrap metal. 2 On March 6, 2008, the Commission held a ²⁶ hearing on the matter. 3 Prior to offering testimony, appellant’s attorney objected to any testimony based on out of court statements that Patrick Woods and Keith Capps made to police regarding the incident, arguing that such statements were inadmissible hearsay. Appellees’ attorney responded that the police reports would be admissible under the public records exception to the hearsay rule, see Rule 8 — 503(b)(8), and that any statements from Woods or Capps in that report would be admissible as statements against interest of an unavailable declarant under Rule 5 — 804(b)(3), as Woods had been subpoenaed but failed to appear and Capps planned to invoke his Fifth Amendment privilege.

The Commissioner sustained the objections, pending whether Capps, in fact, invoked his Fifth Amendment privilege. Thereafter, appellant’s counsel indicated that they had no witnesses to testify and appellees called their first witness. Richard E. Rehberger, on behalf of appellees, was the first witness called. Rehberger was the General Manager of Facility Maintenance for the Maryland Port Administration at the time of Benway’s accident.

He testified that Benway was a Facility Maintenance Supervisor, whose direct supervisor was Joseph Nickoles. Woods was under the supervision of Ben-way, he explained, and Capps was under the supervision of Woods. Rehberger stated that he was made aware of the fall shortly after it occurred and that it transpired on Administration property. He further testified, however, that the Property was in “inactive” status at the time of Benway’s injuries and there was no reason for Benway to be there.

Appellant’s counsel declined to cross-examine Rehberger. Appellees then called Joseph Nickoles, Assistant General Manager of Facility Maintenance, to the stand. He likewise ²⁷ testified that, at the time of Benway’s injuries, he was Ben-way’s supervisor and the property where Benway was injured was on inactive status. He stated that there was no work order, nor any work scheduled, which would require Benway to be at the Property with Woods and Capps.

He said that he was unaware of any legitimate business reason for them to be there. Again, appellant’s counsel declined to cross — examine the witness. Appellees called Keith Capps to testify next. Capps was present at the hearing with his own attorney, who advised him to assert his Fifth Amendment privilege.

Appellees argued that, because Capps had already pleaded guilty to crimes relating to the incident, he could not invoke this privilege. Capps’ attorney explained that, due to appellant’s insinuations to the police and newspapers of other wrongdoing by Capps, arising out of Benway’s fall, he advised his client not to answer any questions regarding the incident. As a result, when appellees’ attorney asked Capps any questions, he responded, “I respectfully reserve [sic] to answer to the ground that it may tend to incriminate me.” Having found that Capps’ assertion of his Fifth Amendment privilege rendered him unavailable as a witness, see Rule 5-804(a)(1), the court permitted appellees to call to the stand to testily regarding Capps’ statements to police Nicholas A. Mize, a former detective for the Maryland Transportation Authority Police Department who investigated Benway’s accident. Detective Mize testified that he was assigned to investigate Benway’s death and, in the course of that investigation, he spoke to both Woods and Capps on several occasions.

Appellant objected on the grounds of hearsay and the commissioner overruled his objection with respect to Capps’ statements. Mize recounted that, in his interviews with Woods and Capps, he attempted “to determine the exact cause, manner or circumstances surrounding the death of Mr. Robert Benway.” He related that, at a certain point during his investigation, he suspected that Woods and Capps were involved in the theft of ²⁸ property from the facility. He stated that Capps initially told him that he and Woods stopped at Royal Farms for a Gatorade and a coffee on the morning of June 26, 2008, then proceeded to the Property to scavenge for parts in the valve house to be used for a compressor at a site that is currently active. Capps told Mize that, while he was attempting to remove the parts, Benway stopped by to check on their progress.

Capps continued, recalling to Mize that, as Benway was descending the ladder after a brief conversation with Capps, he fell and struck his head on the cement floor. Mize explained that, after his initial interview, he questioned Capps again, this time after reading him Miranda rights. During the second interview, Capps’ version of the events was identical to the initial interview. The third time they spoke, however, Capps related a very different story.

Mize testified that, during the third interview, he once again advised Capps of his Miranda rights. Confronted with pictures of copper wires in the ceiling which had been cut, Capps told Mize that he, Woods and Benway were attempting to take the copper wiring from the Property to sell as scrap metal for extra money. Mize recalled that Capps described how they placed a ladder into the conduit box and how Benway stood atop the ladder, cut the wires and attempted to pull them free. At some point, Benway’s legs became entangled in the ladder, it fell and Benway’s head struck the floor.

When Woods took Benway to the hospital, Capps told Mize, he remained behind to stage the scene as if they were scavenging for parts by moving a ladder to the valve house and partly dissembling a compressor unit. Mize testified that Capps told him he initially lied because they were “trying to protect Benway’s good name.” The Commissioner did not allow appellees’ counsel to question Mize with regard to Woods’ statements because Woods was not an unavailable witness. Once again, appellant did not undertake any cross-examination. On March 21, 2008, the Commission issued a brief decision, which we will provide in its entirety: ²⁹ Hearing was held in the above claim at Abingdon, Maryland on March 6, 2008, on the following issues: 1.

Did the employee sustain an accidental personal injury arising out of and in the course of employments? 2. Is the disability of the employee the result of accidental personal injury arising out of and in the course of employment? The Commission finds on the first issue that the claimant did not sustain an accidental injury arising out of and in the course of employment as alleged to have occurred on June 26, 2006. Deceased was engaged in activity deviating from his employment responsibilities which led to his tragic fall and subsequent death.

His unfortunate, wilful misconduct was the sole cause of this accident. Therefore, the second issue is not applicable, and the Commission will disallow the claim filed herein. It is, therefore, this 21st day of March, 2008, by the Workers’ Compensation Commission ORDERED that the claim filed in the above case by above-named claimant, against the above-named employer and the above-named insurer, be and the same, is hereby disallowed. Thereafter, on April 14, 2008, appellant filed a Petition for Judicial Review in the Circuit Court for Baltimore City and requested a jury trial.

On April 28, 2008, appellees filed a Response to Petition, indicating their intention to participate. The very next day, the circuit court issued a Pre-Trial Scheduling Order to all parties of record, which stated, inter alia, “Any motion for summary judgment shall be filed no later than five months from the date of this order-09/28/08.” A trial date of December 2, 2008 was scheduled. Appellees designated their expert witnesses on October 22, 2008. Then, over a month after the deadline set forth in the Scheduling Order, appellees filed a Motion for Summary Judgment on October 31, 2008.

Appellees averred that there was no genuine dispute as to any of the material facts. They contended that the uncontradicted testimony from witnesses to the accident was that Benway was engaged in acts that ³⁰ were not part of his employment at the time of the alleged incident, was not in an authorized location and was guilty of willful misconduct and deviation from employment. Additionally, testimony from “investigative authorities established, without contradiction, that [Benway], along with others, was performing an illegal and/or prohibited and unauthorized act at the time of the alleged accident.” The Motion for Summary Judgment incorporated by reference the testimony from the Workers’ Compensation Commission hearing. On November 19, 2008, appellant filed a Declaration in Opposition to the Motion for Summary Judgment.

The Declaration, which was in the form of an affidavit, stated that appellant “oppose[s] [appellees’] Motion for Summary Judgment because I disagree with [appellees’] claim as to how the accident occurred.” Appellant argued that “[y]ou can’t go by sworn testimony when all testimonial statements are all conflicting.” She contended that Benway was at work at 9:45 a.m., he had permission to be at the Property to check on his employees and there was no evidence that he was guilty of willful misconduct. Finally, she asserted that, “[y]ou can’t believe any testimony sworn or unsworn from [appellees’] witnesses and I believe I can prove that their statements are false.” On November 25, 2008, the circuit court, “[u]pon consideration of Employer and Insurer’s Motion for Summary Judgment and Appellant’s response thereto, good cause haying been shown for the relief prayed,” granted summary judgment in favor of appellees. Appellant filed a Motion for Reconsideration on December 1, 2008. In that motion, she argued that the deadline to file a motion for summary judgment, according to the Scheduling Order was September 28, 2008.

She pointed out that appellees filed their Motion for Summary Judgment on October 31, 2008. 4 She asked that the court reconsider her Declaration in Opposition, stating “[m]y Declaration and [appellees’] Motion for Summary Judgment were filed the ³¹ same day and therefore you did not get the chance to review it.” 5 While the court’s decision on this Motion was pending, appellant filed a Notice of Appeal to this Court on December 8, 2008. Subsequently, the circuit court denied her Motion for Reconsideration. Additional facts will be provided infra as warranted. LEGAL ANALYSIS I Appellant’s initial assignment of error is that the circuit court should not have permitted appellees to file a motion for summary judgment after the deadline set forth in the court’s Scheduling Order.

As indicated above, the Scheduling Order required all motions for summary judgment to be filed by September 28, 2008; however, appellees filed their motion on October 31, 2008. Appellant’s argument regarding this issue, in its entirety, is: Section 2-504 (a) Scheduling Order; Pre-Trial Conference of Maryland Annotated Code sets forth the deadline for filing a Summary Judgment motion. A Summary Judgment motion must be filed no later than 5 months from the date of [sic] order. Appellee [sic] filed the Summary Judgment motion late.

Appellant’s argument is problematic in at least two significant respects. First, appellant’s argument misstates the law. Md. Rule 2-504(a) 6 does not set forth a deadline for filing a summary judgment motion and does not mandate that a summary judgment motion be filed no later than five months from the date that the scheduling order was issued. Rule 2- ³² 504(a) merely provides that a court, unless otherwise ordered by the County Administrative Judge, “shall enter a scheduling order in every civil action.” It was the circuit court’s Scheduling Order, issued pursuant to Rule 2-504, which set forth those deadlines.

Second, appellant fails to cite any legal authority in support of her proposition. Appellant does not direct us to any case, statute or rule which provides that a court cannot entertain such a motion past the date stated in the scheduling order. It is well settled that it “is not our function to seek out the law in support of a party’s appellate contentions.” Diallo v. State, 186 Md.App. 22, 33 , 972 A.2d 917 (2009); Higginbotham v. Pub. Serv.

Comm’n of Maryland, 171 Md.App. 254, 268 , 909 A.2d 1087 (2006); Collins v. Collins, 144 Md.App. 395, 438 , 798 A.2d 1155 (2002); Judd Fire Prot., Inc. v. Davidson, 138 Md.App. 654, 670 , 773 A.2d 573 (2001); Sodergren v. Johns Hopkins Univ. Applied Physics Lab., 138 Md.App. 686, 707 , 773 A.2d 592 (2001); Kline v. Knight, 135 Md.App. 732 (2000); Anderson v. Litzenberg, 115 Md.App. 549, 578 , 694 A.2d 150 (1997); see also Oroian v. Allstate Ins. Co., 62 Md.App. 654, 658 , 490 A.2d 1321 (1985), von Lusch v. State, 31 Md.App. 271, 282 , 356 A.2d 277 (1976), rev’d on other grounds, 279 Md. 255 , 368 A.2d 468 (1977). Accordingly, we are not obliged to consider appellant’s arguments.

Nonetheless, in the exercise of our discretion, we shall consider this issue. Appellees counter by asserting that neither Rule 2-501, regarding motions for summary judgment, nor Rule 2-311, regarding motions generally, “provides any deadline for the filing of such a motion.” Appellees argue that a “Motion for Summary Judgment may be made by any party at any time that it appears there is not [sic] genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” In support of this proposition, appellees cite several older cases, namely, Myers v. Montgomery Ward & Co., 253 Md. 282 , 252 A.2d 855 (1969), Placido v. Citizens Bank & Trust Co., 38 Md.App. 33 , 379 A.2d 773 (1977) and Baker, Watts & Co. v. Miles & Stockbridge, 95 Md.App. 145 , 620 A.2d 356 (1993). ³³ Appellees fail to note that these cases were decided prior to the adoption of Rule 2-504, which requires that a scheduling order set forth a deadline for the filing of all dispositive motions. Rule 2 — 504(b)(1)(E). Additionally, these cases were decided under the predecessor to Rule 2-501, ie., Rule 610 a, which expressly stated that a motion for summary judgment could be filed “at any time.” Thus, the ability to file a motion for summary judgment at any time, when those cases were decided, was allowed specifically by Rule.

By contrast, the current version of Rule 2-501, under which this case was decided, does not contain the phrase, “file at any time,” due to amendments to the Rule in 2004. Thus, cases decided under the previous language are not authority that a party presently may file a motion for summary judgment at any time. We must determine, then, whether the current version of Rule 2-501 continues to permit a party to file a motion for summary judgment at any time. The language of Rules 2-501 and 2-504, considered in conjunction with the minutes of the Court of Appeals Standing Committee on Rules and Procedure (the Rules Committee) discussing the amendments, would suggest that such a motion must be filed in accordance with the Scheduling Order.

As we shall discuss, however, notwithstanding the language and history of the amendments, the Court of Appeals’ addition of a Committee Note following its adoption of the amended version of Rule 2-501 and its decision in Rodriguez v. Clarke, 400 Md. 39 , 926 A.2d 736 (2007), provide that appellees were entitled to file their motion for summary judgment at any time. Rule 2-501 currently states, in pertinent part, (a) Motion. — Any party may make a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law. The motion shall be supported by affidavit if it is (1) filed before the day on which the adverse party’s initial pleading or motion is filed or (2) based on facts not contained in the record. ³⁴ It omits the phrase “at any time,” suggesting that a party cannot file a motion for summary judgment at any time, but instead can file a motion for summary judgment after the deadline only with good cause. See, e.g., Faith v. Keefer, 127 Md.App. 706, 733 , 736 A.2d 422 (1999).

This interpretation is supported by the minutes of the Rules Committee meetings following the Court of Appeals’ decisions in Pittman v. Atlantic Realty Co., 359 Md. 513 , 754 A.2d 1030 (2000) and Beyer v. Morgan State Univ., 369 Md. 335 , 800 A.2d 707 (2002), which dealt with procedural issues surrounding the grant of a motion for summary judgment. These cases were the impetus for the Rules Committee’s decision to undertake amendments to these Rules in order to clarify their operation. A brief survey of Court of Appeals’ decisions in Pittman and Beyer is informative for our discussion. In Pittman , in response to defendants’ motions for summary judgment, the plaintiff submitted an affidavit which contradicted her deposition testimony and provided her expert with a sufficient basis with which he could state, via affidavit, that the premises were a substantial factor in his son’s injuries. 359 Md. at 523-25 , 754 A.2d 1030 .

This affidavit was filed after the deadline for motions for summary judgment set forth in the court’s scheduling order. Id. at 523 , 754 A.2d 1030 . The circuit court struck the affidavits as contradictory to the depositions of the mother and expert. Id. at 524-25 , 754 A.2d 1030 .

The court then entered summary judgment in favor of the defendants. Id. We affirmed the grant of summary judgment and, in so doing, adopted the sham affidavit rule. Id. at 525-26 , 754 A.2d 1030 .

The Court of Appeals reversed and, prior to holding that the sham affidavit rule was inconsistent with Maryland law, addressed the defendants’ contention that the plaintiff could not file affidavits to be included with her opposition to the motion for summary judgment that violated the scheduling order deadlines. Id. at 533-34 , 754 A.2d 1030 . The Court stated: ³⁵ Before addressing the sham affidavit issue, we address Respondents’ argument that Petitioners violated the scheduling order and its discovery cutoff by altering their position from that stated in discovery when they were faced with a motion for summary judgment. Here, as provided under Maryland Rule 2-504, the scheduling order fixed “a date by which all dispositive motions must be filed,” Rule 2-504(b)(1)(E), and that date was after the date “by which all discovery must be completed.” Rule 2-504(b)(l)(D).

Rule 2-504’s sequencing contemplates that the facts will be developed during discovery and that, based on that discovery record, the court will be able to determine whether a trial is necessary if a party seeks summary judgment. The summary judgment rule, however, expressly authorizes the filing of an affidavit in opposition to a motion for summary judgment. Rule 2-501(b). Rule 2-504 does not, and the scheduling order in this case could not, deprive Petitioners of that right under Rule 2-501(b).

Consequently, if an affidavit in opposition to a motion for summary judgment may be stricken on the ground that its factual content contradicts the affiant’s deposition testimony, a court’s authorization to do so seemingly must be found under Rule 2-501. Id. (footnote omitted). Two years later, in Beyer v. Morgan State Univ., 369 Md. 335 , 800 A.2d 707 (2002), the defendant filed an oral motion for summary judgment on the day of a hearing of an appeal from the Orphans’ Court which had allowed the plaintiff, Beyer, to make payments to an attorney from her late sister’s trust, over the objection of Morgan State, a co-beneficiary.

Id. at 345-46 , 800 A.2d 707 . The circuit court granted defendant’s motion, noting “motions for summary judgment can be filed at any time in a proceeding, and it can even be done orally.” Id. Beyer appealed to this Court. See Beyer v. Morgan State Univ., 139 Md.App. 609 , 779 A.2d 388 (2001).

We concluded that there was no genuine dispute of material facts, id. at 636-39 , 779 A.2d 388 , but held that the circuit court failed to make appropriate evidentiary findings as to whether Beyer’s pay ³⁶ ments were extraordinary expenses which could be paid from the estate. Id. at 641 , 779 A.2d 388 . We affirmed, in a part, and reversed, in part, and remanded for reconsideration of the legitimacy of expenses approved by the Orphans’ Court. Id. at 641 , 779 A.2d 388 .

The Court of Appeals granted certiorari, and among the issues presented, Beyer urged the Court of Appeals to hold that Morgan State “failed to make a motion for summary judgment that was appropriate, because the motion was made orally rather than through a