Blundon v. Taylor

BELL, Chief Judge. The issue this case presents involves the validity of “faxing” — transmitting by facsimile — a pleading or paper to the Maryland Health Claims Arbitration Office. The respondent, Shirley Taylor, filed, pursuant to the Health Care Malpractice Claims Act (the “Act”), Maryland Code (1974, 1995 Repl.Vol.), §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings Article, 1 a medical malpractice claim against the ⁴ petitioner, Montague Blundon, III, M.D., in the Health Claims Arbitration Office (the “HCAO”). The panel that heard the claim issued an award in favor of the respondent, and the petitioner sought its modification, transmitting the request both by facsimile, which was timely received and docketed by the HCAO, and by regular mail, which arrived in the office one day late.

The Circuit Court for Montgomery County having dismissed his challenge to the panel’s award, albeit on other grounds, 2 the petitioner noted an appeal to the Court of ⁵ Special Appeals. In an unreported opinion, that court affirmed the trial court’s judgment, but on the basis that the petitioner’s transmission of his request to modify the panel award via facsimile did not constitute a timely filing of that request. We granted the petitioner’s Petition for Certiorari to review that holding. See Blundon v. Taylor, 354 Md. 330 , 731 A.2d 439 (1999).

We shall affirm. I. Judicial review of Health Claims Arbitration awards are controlled by § 3-2A-06. In pertinent part, it provides: “(a) A party may reject an award or the assessment of costs under an award for any reason. A notice of rejection must be filed with the Director and the arbitration panel and served on the other parties or their counsel within 30 days after the award is served upon the rejecting party, or, if a timely application for modification or correction has been filed within 10 days after a disposition of the application by the panel, whichever is greater. “(b) (1) At or before the time specified in subsection (a) of this section for filing and serving a notice of rejection, the party rejecting the award shall file an action in court to nullify the award or the assessment of costs under the award and shall file a copy of the action with the Director.

Failure to file this action timely in court shall constitute a withdrawal of the notice of rejection. Subject to the provisions of subsection (c) of this section, the procedures applicable to the action including the form and necessary allegations in the initial pleading shall be governed by the Maryland Rules. The Director need not be named a party to any action under this section.” Thus, for judicial review to occur, there must be a rejection of the arbitration award, notice of which is timely filed on the Director of the HCAO, the arbitration panel and the other parties or their counsel and a timely filed court action to nullify the award, a copy of which is also filed with the Director. Notice of rejection, like the action to nullify, is ⁶ timely if filed and served within 30 days after service of the award on the party rejecting it or within 10 days after the decision rendered in response to a timely filed application to modify or correct the award.

Section 3-2A-05(h) addresses the procedure for filing applications for modification or correction of an award. It provides, as pertinent, that “[a] party may apply to the arbitration panel to modify or correct an award as to liability, damages, or costs in accordance with § 3-222 of this article.” Section 3-222, of the Arbitration and Award Subtitle of the Courts and Judicial Proceedings Article, in turn, provides in pertinent part: “(a) Application. — A party may apply to the arbitrators to modify or correct an award within 20 days after the delivery of the award to the applicant.” A written copy of the panel’s award in favor of the respondent was served on the petitioner on April 9, 1997. The petitioner then had 20 days, or until April 29th, to seek modification of that award and, foregoing the right to seek modification, 30 days, or until May 9th, to seek judicial review. On the other hand, if, as the petitioner did in this case, modification was sought, the petition for judicial review could be filed within 10 days after the decision on the application.

In this case, the Panel Chair, in an order dated May 14, 1997, and received by the petitioner on May 16, 1997, denied the requested modification. Thus, if his application for modification were to be timely, the petitioner had until May 27, 1997 3 to reject the award and file an action to nullify. On April 28th, the petitioner “faxed” to the HCAO his Request For Modification of Arbitration Award. It was received that same day, and was so stamped by the HCAO.

The petitioner, on the same day, also mailed the same paper to the HCAO, by regular mail. The mailed copy was received in the Health Claims office on April 30, 1997, one day after the ⁷ deadline for filing the request for modification, a matter that is not in dispute.

II

A. Inasmuch as the request for modification that was mailed was received untimely, but the copy that was “faxed” was timely received, the question we must address is the propriety of docketing that copy, whether, in other words, its receipt and docketing were valid. Because “[ejxcept as otherwise provided, the Maryland Rules shall apply to all practice and procedure issues arising under [the Health Claims Arbitration Act],” § 3-2A-02 (d), we seek the answer in Maryland Rule 1-322, which provides: “(a) Generally. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that a judge of that court may accept the filing, in which event the judge shall note on the papers the filing date and forthwith transmit them to the office of the clerk. No filing of a pleading or paper may be made by transmitting it directly to the court by electronic transmission, except pursuant to an electronic filing system approved under Rule 16-307. “(b) Photocopies; Facsimile Copies.

A photocopy or facsimile copy of a pleading or paper, once filed with the court, shall be treated as an original for all court purposes. The attorney or party filing the copy shall retain the original from which the filed copy was made for production to the court upon the request of the court or any party.” The inquiry is one involving the interpretation of the rule. “To interpret rules of procedure, we use the same canons and principles of construction used to interpret statutes.” State ex rel. Lennon v. Strazzella, 331 Md. 270, 274 , 627 A.2d 1055, 1057 (1993). See Jones v. Hubbard, 356 Md. 513, 526 , 740 A.2d 1004, 1011 (1999) (“the canons of statutory construction ... are also generally applicable in respect to rule construction”); State v. Bell, 351 Md. 709, 717 , 720 A.2d ⁸ 311, 315 (1998); State v. Harrell, 348 Md. 69, 79 , 702 A.2d 723, 728 (1997) (“In construing a rule, we apply principles of interpretation similar to those used to construe a statute.”); In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012, 1016 (1994) (“We have repeatedly stated that the canons and principles we follow in construing statutes apply equally to an interpretation of our rules.”); State v. Montgomery, 334 Md. 20, 24 , 637 A.2d 1193, 1195 (1994) (“The canons and rules of construction that guide the interpretation of statutes apply equally when interpreting rules of procedure.”).

See also Hartless v. State, 327 Md. 558, 563 , 611 A.2d 581, 583 (1992); State v. Romulus, 315 Md. 526, 533 , 555 A.2d 494, 496 (1989); O’Donnell v. McGann, 310 Md. 342, 350 , 529 A.2d 372, 376 (1987); In re Leslie M., 305 Md. 477, 481 , 505 A.2d 504, 507 (1986); Pappas v. Pappas, 287 Md. 455, 465 , 413 A.2d 549, 553 (1980). We stated some of the applicable canons and rules of construction in Strazzella, 331 Md. at 274-75 , 627 A.2d at 1057 : “In our effort to discern the meaning of a rule, we look first to the words of the rule. When the words are clear and unambiguous, ordinarily we need not go any further.... Only when the language of the rule is ambiguous is it necessary that we look elsewhere to ascertain legislative intent....

We are also to give effect to the entire rule, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used---- Finally, we seek to give the rule a reasonable interpretation, not one that is illogical or incompatible with common sense.... ” (Citations omitted). See also Mayor and City Council of Baltimore v. Chase, 360 Md. 121, 128 , 756 A.2d 987, 991 (2000); Chesapeake and Potomac Tel. Co. of Maryland v. Director of Finance for Mayor and City Council of Baltimore, 343 Md. 567, 578-79 , 683 A.2d 512, 517-18 (1996). B. Applying these rules, the petitioner reaches a different interpretation of Rule 1-322 than does the Court of Special ⁹ Appeals.

According to the petitioner, giving “meaning to all relevant provisions [of the rule] results in a finding that, though the mere transmission by facsimile is not filing, where a paper received by HCAO through facsimile is docketed, it should thereafter be treated as an original document properly filed.” He reasons: “The plain words of Rule l-322(a) provide only that the ‘filing’ may not be made by ‘transmitting it directly to the court by electronic transmission.’ The ordinary meaning of such a provision would lead to the result that the transmission itself is not filing and that the risk of transmission remains with the sender. Thus, unlike service by mail, which Rule 1-321 provides is complete upon mailing, filing is not completed until the clerk of the court or a judge receives the document. If a facsimile transmission suffers some technical fatality; the clerk does not have a facsimile machine; the machine is out of paper; or even if the clerk simply does not pick up the document and docket it, filing is not accomplished. However, the words of the same Rule go on to provide for the filing and docketing of facsimile copies as originals, which leads to the conclusion that, though the transmission itself is not ‘filing,’ once received and docketed, such papers are to be treated as originals ‘for all court purposes.’ Rule l-322(b).” The petitioner also finds significance in the exception — for “an electronic filing system approved under Rule 16-307” — to the direct electronic transmission prohibition in section (a) of the rule.

Noting the factors that the rule requires to be considered in determining whether the Court of Appeals should approve a plan submitted pursuant to Rule 16-307, 4 the ¹⁰ failure of Rule 16-307 to refer to facsimile transmissions, which always will have a paper component, and the fact that Rule 1 — 322(b), by its terms, anticipates “the appropriate use of facsimile technology in the transmission of pleadings,” he submits that, as used in Rule l-322(a), “electronic transmission” refers to “direct electronic transmission, from computer to computer, without paper pleadings.” The petitioner contends that “[t]he only way to give a reasonable meaning to all of Rule 1-322 and to Rule 16-307 is to read Rule l-322(a) as meaning, with respect to facsimiles, that the mere transmission by facsimile is not proper filing, but where a facsimile copy of a pleading is received and docketed by the clerk, the pleading has been properly filed pursuant to Rule l-322(b).” C. The Court of Special Appeals reached the opposite construction. Relying on the definition of “facsimile” in the Webster’s II, New Riverside University Dictionary (1994) 5 and the treatment accorded Rule 1-322 in the treatise by Paul V. Niemeyer & Linda M. Shuett, entitled Maryland Rules Com ¹¹ mentary (2d ed.1992), 6 it rejected the petitioner’s argument and declined to construe the words “electronic transmission” as limited to the transmission of a document by computer. The court concluded: “To be sure, a transmission by facsimile is one kind of electronic transmission. But if the Court of Appeals meant only to prohibit electronic filings by computer, it surely would have said so.

Moreover, contrary to appellant’s argument, HCAO’s placing of a date stamp on the facsimile did not transform it into a valid filing under the rules.” D. We agree with the Court of Special Appeals. In fact, we believe that Rule 1-322 is so clear and unambiguous in this regard that it does not require construction. Section (a) requires that, to be filed, pleadings and papers must be actually delivered, either in person or by mail, to the clerk or a judge of the court in which they are sought to be filed. That this is so is made clear by the provision that the filing of pleadings or papers is accomplished by filing them with the clerk or a judge of the court and the prohibition, excepting only electronic filing systems pursuant to Rule 16-307, against directly transmitting such pleadings and papers by electronic transmission.

The petitioner’s interpretation of the rale requires either that we read out of the rule the prohibition against filing by direct electronic transmission or that a second exception be engrafted onto that prohibition, one for those transmis ¹² sions, which, though electronic and direct, require a paper component. As we have stated, we are required to read the rule so as to give effect and meaning to all of it, thus avoiding an interpretation that renders any part of the rule nugatory or meaningless. Moreover, we are not permitted in the guise of interpreting a rule to add words so as to give it a meaning not otherwise intended. Nor is there any inconsistency between the provisions of sections (a) and (b) of the rule.

Section (a) deals with how pleadings and papers are filed. Section (b), on the other hand, addresses the treatment to be accorded certain papers once they are filed with the court. Thus, while a facsimile copy of a pleading or paper may not be filed under l-322(a) directly with the clerk, ie., “faxed” directly to the court, once it has been filed, by being actually delivered to the clerk, it is, under section (b), treated as an original for all court purposes. So read, the rule is construed so that all parts of the rule have meaning.

E. The history of the adoption of the provisions at issue as amendments to Rule 1-322 by this Court confirms this interpretation. See Mayor and City Council of Baltimore v. Chase, 360 Md. at 131 , 756 A.2d at 993 . The Standing Committee on Rules of Practice and Procedure (the “Rules Committee”) first considered the issue of filing pleadings by facsimile transmission in January 1989. At its January 13/14, 1989 meeting, the Committee considered correspondence from an attorney seeking to have District Court postponements permitted by “fax.” After a general discussion in which it was recognized that the facsimile technology would become more prevalent and that a position would have to taken at some time, it was decided not to endorse “fax” pleading in the District Court or otherwise.

Appendix II to the minutes contained an extensive memorandum, with exhibits, from Elizabeth Conklyn, Esq., to the Rules Reporter, concerning “The Use of FAX in filing court documents.” The Committee invited the Litigation Section of the Maryland State Bar ¹³ Association to address some of the issues raised by the memorandum, including the signature requirement. The Committee considered the issue again in March of 1990. Among the issues discussed during that meeting were whether a rule was necessary and problems raised by “faxing pleadings, such as the quality of the paper used by fax machines, the amount of time required to ‘fax’ documents and its effect on the work of the clerks’ offices.” Appendix II to the minutes consisted of, in addition to a memorandum from the Reporter, updating the Committee and attaching the local Rule of the Maryland Federal District Court, which prohibits pleading by “fax”, a number of news and legal journal articles on the subject as well as several articles, i.e., New York’s New Fax Law: An Invitation to Litigation, 53 Albany Law Review 143 (1988), and George F. Carpinello, A Cautious Approach to Service by Fax, 53 Albany Law Review 153 (1988), outlining the pitfalls of allowing the direct facsimile filing of pleadings. Facsimile pleadings once again were on the agenda of the Rule’s Committee’s May 18/19, 1990 meeting, this time as an information item.

Among the meeting materials was a memorandum concerning the acceptance of facsimile pleadings, from Julia M. Freit, Esq., counsel to the circuit court clerks, which provoked discussion and concern. Responding to inquiries from some of the Clerk’s offices with fax machines with respect to whether “counsel may transmit a pleading or paper directly to the Court’s or Clerk’s fax machine for filing,” the memorandum concluded that the Clerks “should request an administrative order from your Court on point” because, “[ajbsent such an order, you do not have authority to refuse to accept for filing a facsimile copy of a pleading or paper brought into your office for filing. At the same time, there is no authority for attorneys to use the Court’s or the Clerk’s fax machine for the purpose of filing papers.” Memorandum from Julia M. Freit to All Circuit Court Clerks, April 16,1990, appendix I, Rules Committee Minutes, May %, 1990. Concern was expressed about the advice to seek administrative orders due to its tendency to create a kind of local ¹⁴ rule, under which some courts would accept facsimile pleadings and others would not.

Another concern was the memorandum’s suggestion that facsimile pleadings are permitted in the absence of an order to the contrary, causing sentiment in the Rules Committee to make an affirmative statement on the subject. A subcommittee was appointed to which the matter was referred for presentation at the June meeting. At its June 16/17, 1990 meeting, the Rules Committee proposed to amend Rule 1-322 to address three issues: whether pleadings can be transmitted directly by facsimile to the courthouse for filing; whether the clerk may accept for filing a facsimile copy of a pleading that is delivered to the courthouse; and whether the facsimile copy must contain an original signature. The minutes of that meeting reflect the amendments it adopted: “No pleading or paper may be transmitted directly to the court by electronic transmission.

A photocopy or facsimile copy of a pleading or paper, once filed with the court, shall be treated as an original for all court purposes. The attorney or party filing the copy shall retain the original document for production to the court upon the request of the court or any party.” [7] Apparently as a result of review by the Style Sub-Committee of the Rules Committee, by the time the Rule was submitted to the Court of Appeals on October 31, 1990, as a part of the Rules Committee’s One Hundred Thirteenth Report, it had been changed substantially, although not substantively and was in the form in which it was ultimately adopted. Rather than a single section, the Rule was divided into two sections, with the prohibition for the direct electronic transmission of pleadings and papers being placed in section (a) and the ¹⁵ provision as to how to treat photocopies and facsimile copies being placed in a separate section (b). The Reporter’s Note to the Rule stated, with respect to the first question the rule addressed, whether a pleading or paper may be transmitted directly to the court’s or clerk’s fax machine: “As to the first question, the Committee’s view is that filing directly by fax or other electronic transmission should not be permitted.

This is also the view of the Administrative Judges of the District Court. To articulate this policy a new second sentence is proposed for Rule 1-322. The language is the same as that used in Rule 102 d 1 of the local rules for the United States District Court, except that the words “Unless otherwise ordered by the court,” are omitted. As a practical matter, this is the only approach that makes sense now — the individual circuit courts do not have facsimile machines and the District Court clerks’ offices would be overwhelmed by the volume of transmissions if the rule were otherwise.” The second and third questions, whether the clerk may accept a facsimile copy of a pleading or paper that is personally delivered or mailed to the clerk’s office and whether a facsimile copy must bear an original signature, were also addressed by the Reporter’s Note: “As to the second and third questions, the Committee is aware that lawyers are using facsimile or other electronic technology to save time, as in the following scenario, Attorney A, in Baltimore City, has to file a pleading by 4:30 p.m. in La Plata.

The attorney ‘faxes’ or otherwise electronically transmits the pleading to Attorney B in La Plata, who walks it over to the courthouse for timely filing. Necessarily, if the original paper in Baltimore City is signed by Attorney A, the facsimile copy will not bear an original signature. Furthermore, the facsimile may be on a type of paper less durable than ordinary bond or ‘xerox’ paper. “The Committee considered but rejected the notion that any paper filed must bear an original signature. Case law suggests a photocopied signature would suffice to meet the requirement of Rule 1-311 that every pleading or paper be ¹⁶ ‘signed.’ See Cherry v. Brothers, 306 Md. 84 , 507 A.2d 613 (1986) and State v. Romulus, 315 Md. 526 , 555 A.2d 494 [(1989)].

There is no reason to treat a signature copied by facsimile transmission differently from a photocopied signature.” On March 22, 1991, the Court of Appeals adopted the amendments to Rule 1-322, with minor changes, not here relevant, 8