Berkson v. Berryman

ROBERT M. BELL, Judge. On this appeal we are required to determine whether the Circuit Court for Washington County abused its discretion when it denied a Motion to Vacate Default Judgment filed by appellant, Jacob B. Berkson. A second issue was presented following the submission of briefs when John D. Berryman, appellee, filed a motion to strike Berkson’s reply brief. For the reasons to be set forth hereinafter, we will strike Berkson’s reply brief and, because we find no abuse of discretion, affirm the trial court’s judgment.

The events giving rise to this appeal began when Berry-man filed suit against Berkson, his former wife, Susan ¹³⁷ Carol Elgin (formerly Susan E. Berryman), (Elgin), Berk-son’s former law partner 1 and Berkson and Berryman, a Maryland partnership. At issue was Berryman’s entitlement to damages in connection with services allegedly rendered by him to Berkson, Elgin and the partnership as a medical consultant/expert in connection with a medical malpractice case. Discovery against Berkson was initiated on September 30, 1983 when Berryman filed Plaintiff’s Request for Production and Copying of Documents. That request encompassed the following: 1.

All documents, including without limitation, time records, time sheets, diaries, notes, memoranda, medical records, letters, correspondence, reports, bills, statements and invoices, audio and video tapes, films, transcriptions and pleadings, prepared, composed, used, reviewed or issued by Plaintiff, John D. Berryman or any person or entity acting on his behalf in connection with services performed by Plaintiff with regard to the medical malpractice case of Matthew Cool as further referenced in the Declaration filed in this matter. 2. All documents, including without limitation, time records, time sheets, diaries, notes, memoranda, medical records, letters, correspondence, reports, bills, statements and invoices, audio and video tapes, films, transcriptions and pleadings, prepared by medical experts consulted by Dr. John D. Berryman with regard to the case of Matthew Cool and all attendant proceedings. Berkson’s response, filed on November 2, 1983, included a Motion for Protective Order and resisted discovery of the documents on the grounds that they were privileged and their production would breach the attorney/client relationship. He further asserted that “defendant does not know of any documents, etc. prepared, composed, used, reviewed, or issued by plaintiff in said case.” Hearing was scheduled ¹³⁸ on the motion for protective order for January 20, 1984.

Prior to that date, however, a Motion to Compel Production was filed by Berryman, on December 29, 1983. Following the hearing on January 20, 1984, the trial court granted Berryman’s motion for production of documents. Its decision was incorporated into an order dated January 23, 1984, which order expressly excluded from its coverage privileged documents or communications and required that discovery be made not later than fifteen days from the date of the order. Armed with that order, Berryman’s attorney and Berkson’s attorney met in Berkson’s attorney’s office on January 31, 1984 at which time some discovery was effected.

Not being satisfied with the extent of that discovery, Berryman filed on February 6, 1984 a Motion for Imposition of Sanctions, to which Berkson responded on February 20, 1984. Subsequently, on May 10, 1984, following correspondence with Berkson’s attorney relative to discovery, Berry-man filed a Motion for Default Judgment. In that motion, Berryman set forth the various categories of documents to which his original motion for production was directed. Berkson’s response was filed on May 25, 1984, just prior to the hearing.

On January 6, 1984, the assignment clerk forwarded to counsel for Berkson and Berryman notices of the April 2, 1984 trial date. Thereafter, on February 8, 1984, citing the raging discovery controversy and specifically his motion for imposition of sanctions, Berryman filed a motion to continue the trial date, which motion was denied by the Administrative Judge who specifically noted that hearing on the motion for imposition of sanctions was scheduled for March 2, 1984. The March 2 hearing was continued at the request of Berkson filed on February 24, 1984. Subsequently, therefore, Berryman filed a second request for continuance, again citing the discovery controversy and Berkson’s continuance of the March 2 hearing.

This request was granted by the Administrative Judge on March 7, 1984. His order ¹³⁹ rescheduled the trial date to July 11, 1984, prohibited further continuances except for extraordinary cause and set May 25, 1984 as the date on which pending motions would be heard. At the May 25, 1984 hearing two witnesses, Linda Susan Rohrer, a former secretary of the law firm of Berkson and Berryman, and Elgin, testified as to the existence of the documents sought by Berryman. At the conclusion of the hearing, following extensive argument by counsel, the trial court granted Berryman’s motion for default judgment and awarded counsel fees.

That ruling was incorporated into an Order dated June 4, 1984. The trial court found that the documents sought by Berryman did exist and that they had not been produced or the failure to produce them had not been satisfactorily explained. Of particular importance in this regard were tapes and transcripts of sessions between Berkson, Elgin and Berryman in which Berryman instructed Berkson and Elgin with respect to the medical aspects of the Matthew Cool case. As to these tapes and transcripts, the court said: Then the next couple items are the tapes of these transcripts of a day long session and that seems to go right to the heart of that case.

Clearly they exist and Mr. Oneglia was led to believe that they did not exist because the exhibit that has been introduced in evidence, the paragraph in his letter, says as much and this court certainly accepts the fact that he in good faith reported in that letter 2 the information that he had received from his client. Those things are relevant and not superficial in any sense of the word in the litigation that’s to be tried in July, and they have not been produced and there has been no explanation as to why they have not been produced. ¹⁴⁰ The trial court expressed concern about Berkson’s noncompliance with its order and with the prejudice which such non-compliance had on Berryman’s pending litigation: Here there has been a serious breach of this court order. There has been a serious handicap that the plaintiff has experienced and continues to experience, and we are right down now to within weeks of the trial date. Berkson moved to vacate the default judgment on July 5, 1984.

In his motion, he alleged that the sanction imposed was too harsh under the circumstances and that he had a meritorious defense, i.e., a release given by Berryman to Elgin as a part of their divorce settlement. At the conclusion of the hearing on the motion to vacate, held on July 11, 1984, the trial court found that Berkson did not have a meritorious defense and that the default judgment was an appropriate sanction. It, therefore, refused to vacate the judgment. Reply Brief In his initial brief, Berkson raised one issue, whether the trial court abused its discretion in granting the default judgment and in later denying his motion to vacate that judgment.

He presented two arguments: he had a meritorious defense to the action and the sanction imposed was too harsh. In his reply brief, Berkson sought to argue additional issues, specifically, estoppel, equitable estoppel, judicial misconduct, and breach of a fiduciary’s duty to disclose. None of these issues were raised in the initial brief. We confronted this issue in Federal Land Bank of Baltimore, Inc. v. Escham, 43 Md.App. 446 , 406 A.2d 928 (1979).

We there held that an appellant’s reply brief must be limited to the points and issues raised in appellee’s brief. We pointed out that all issues and points which appellant wished to raise on appeal had to be presented and argued in his initial brief. Failure to do so warrants the granting of a motion to strike not only the reply brief but the arguments ¹⁴¹ made therein as well. Therefore, we will strike the reply brief and we will not consider the arguments contained therein.

Id., Jacober v. High Hill Realty, Inc., 22 Md.App. 115 , 321 A.2d 838 (1974). See Langworthy v. State, 284 Md. 588 , 399 A.2d 578 (1979). Default Judgment 3 We note from the outset that Berkson’s motion to vacate default judgment was timely filed. Although it was filed on the thirty-first day after the entry of the judgment, the thirtieth day was a legal holiday.

Maryland Rule 1-203(a), former Maryland Rule 8a, Weaver v. Realty Growth Investors, 38 Md.App. 78 , 379 A.2d 193 (1977). Berkson urges that we find that the trial court abused its discretion when it imposed the ultimate sanction for his violation of the trial court’s discovery order when there were less stringent sanctions available. Contending that the “real dispute centered on Mr. Berkson’s failure to produce two transcripts of sessions where Dr. Berryman allegedly instructed Miss Elgin and Mr. Berkson regarding the standard of care and other medical matters”, he suggests that the appropriate remedy “would have been to take the fact of the existence of the transcriptions as established ... and to let the jury decide the issue of liability”. Berry-man responds by arguing that Berkson’s failure to comply with the discovery order imposed “a serious handicap” on his ability to prepare his case and therefore “warranted the imposition of this ‘gravest of sanctions.’ ” A judgment by default may be entered, under certain circumstances, for a failure of discovery.

Md.Rule 2-433(a)(3). That sanction, among others, is also available in ¹⁴² the case of a party who does not comply with an order compelling discovery. Md.Rule 2-433(b). The decision whether to grant a motion for default judgment for failure to comply with discovery is within the sound discretion of the trial judge and will not be disturbed on appeal in the absence of an abuse of discretion.

Klein v. Weiss, 284 Md. 36 , 395 A.2d 126 (1978); Lynch v. R.E. Tull & Sons, Inc., 251 Md. 260 , 247 A.2d 286 (1968); Williams v. Williams, 32 Md.App. 685 , 363 A.2d 598 (1976); Womble v. Miller, 25 Md.App. 656 , 336 A.2d 138 (1975); Tydings v. Allied Painting & Dec. Co., 13 Md.App. 433 , 283 A.2d 635 (1971). In Lynch v. R.E. Tull & Sons, Inc., supra, where a default judgment was entered for failure of a litigant to answer interrogatories, the Court of Appeals, in affirming the judgment of the trial court, said: There have been suggestions that this ultimate sanction usually will be invoked only where the failure is wilful or contumacious, ... but the power of the court to act is not thus limited and there may be other occasions when this gravest sanction can properly be invoked. (Citations omitted) Id. [251 Md.] at 261, 247 A.2d 286 . There, the trial court’s reasons for granting the motion were not clearly set forth in the record.

Declining to find an abuse of the trial court’s discretion in the absence of a transcript of the hearing, the court speculated: “the reasons for Lynch’s failure to answer the interrogatories ... could well have been a deliberate, if not wilful, attempt to hinder or prevent effective presentation of Tull’s defenses and counterclaims, or to stall in revealing his own weak claim or defense”. Id. at page 262, 247 A.2d 286 . Similarly in Tydings v. Allied Painting & Dec. Co., supra, we found no abuse of discretion when the trial court dismissed a workmen’s compensation appeal for failure of the appellant to answer interrogatories and denied appellant’s request for reconsideration of that order where coun ¹⁴³ sel for appellee advised appellant that it was necessary to have the interrogatories in time for a scheduled trial date which would not likely be postponed. To like effect is Rubin v. Gray, 35 Md.App. 399 , 370 A.2d 600 (1977), in which we found that the trial court’s dismissal of appellant’s action for failure to answer interrogatories for nearly thirteen months