Castiglione v. Johns Hopkins Hospital

BLOOM, J. In this action for breach of an alleged employment contract, appellant, Rose Castiglione, seeks reversal of a decision of the Circuit Court for Baltimore City granting the motion of her employer, The Johns Hopkins Hospital, appellee, to dismiss the action or, in the alternative, to grant summary judgment. We will affirm the decision of the court below, treated here as a summary judgment in light of the trial court’s consideration of matters outside the pleadings. Facts Appellant, who had been employed by The Johns Hopkins Hospital as a respiratory therapist, was discharged on September 20,1984. Prior to her discharge, appellant attended an evaluation hearing conducted by her employer, but the Hospital did not discuss or review that evaluation with appellant before discharging her.

In November, 1984, appellant filed a “non-bargaining unit appeal” form with appellee pursuant to hospital grievance procedure policies, requesting reinstatement and back pay. Several months later, appellee offered to reinstate appellant to her position but rejected any back pay award. Additionally, the proposed settlement would have reinstated appellant on a “probationary basis.” Appellant rejected the proposed settlement. Proceedings On June 19, 1985, appellant instituted this action for breach of an alleged employment contract.

In her unverified complaint appellant claimed that the failure of her employer to review with her the findings of the last evalúa ³²⁹ tion constituted a violation of procedures set forth for performance appraisals in “The Johns Hopkins Hospital Employee Handbook.” The provisions of the Handbook quoted in appellant’s complaint were as follows: IV—Performance Appraisals Your ... supervisor will review your job performance with you at least once every (12) months. The purpose of employee performance appraisals are to: (1) inform you of your job progress and areas needing improvement, if any (2) determine and record special talents, skills and capabilities that might otherwise go unnoticed or unrecognized (3) provide an opportunity for each employee to discuss problems and interests with his/her supervisor and (4) use as a guide for wage adjustments, promotions, disciplinary actions, reassignments, etc. (Emphasis in complaint.) Appellant alleged that the failure to provide such a review prior to her discharge constituted a violation on the part of appellee of its “unilateral contract and promises made with its employees as set forth in the expressed provisions of its written personnel policy and communicated to its employees,” referring to the above-quoted material. No materials were submitted with appellant’s complaint other than the proposed reinstatement agreement. Instead of answering the complaint, appellee filed a motion to dismiss, or in the alternative, for summary judgment, contending, inter alia, that the performance appraisal policy as quoted in appellant’s complaint did not constitute a binding employment contract with appellee.

In a memorandum in support of the motion, it asserted that “The Johns Hopkins Hospital Employee Handbook” contained an express disclaimer that any provisions of the policy manual constituted a contract. The memorandum quoted the disclaimer in the manual as follows: “Finally, this handbook does not constitute an express or implied contract. The employee may separate from his/her employment at any time; the Hospital reserves the right to do the same.” ³³⁰ Another relevant portion of the manual quoted in appellee’s memorandum follows: “All managerial and administrative functions, responsibilities, and prerogatives entrusted to and conferred upon employers inherently and by law are retained and vested exclusively with [the Defendant Hospital], including but not limited to the right to exercise our judgement to establish and administer policies, practices, and procedures and change them, to direct and discipline our workforce and increase its efficiency, and to take whatever action is necessary in our judgement to operate [the Defendant Hospital].” A copy of appellee’s then current Employee’s Handbook, from which the above quotations were taken, was filed as Exhibit No. 1 with the memorandum in support of appellee’s motion. In light of the quoted passages from the Handbook, appellee argued that there was no legally binding contract of employment under Maryland law. 1 At no time after submission by the appellee of its motion and supporting memorandum did appellant contest the authenticity, materiality, or admissibility of the exhibit filed ³³¹ with the memorandum.

In her response to appellee’s motion, appellant did not question the exhibited document or the existence of the disclaimer language therein, but rather denied that it had legal effectiveness because of the disparity in the bargaining power of the parties. 2 In a reply to appellant’s response, appellee urged that appellant had conceded the existence of the disclaimer and disagreed with appellant’s arguments respecting the legal effect of such a disclaimer. Appellant filed a rebuttal to that reply, without challenging the authenticity of Exhibit No. 1 or the language quoted therefrom. At the hearing on appellee’s motion there was no discussion regarding the existence or non-existence of a disclaimer, nor was there any objection to the authenticity or lack of verification of the exhibited handbook. On November 6, 1985, the trial court granted appellee’s motion, ruling that because of the disclaimer language therein “The Johns Hopkins Hospital Employee Handbook” did not constitute an employment contract.

Issues The issues raised on appeal are as follows: 1. Did the lower court err in granting summary judgment on the basis of an unverified exhibit without accompanying affidavit? Alternatively, whether there was any other suitable basis for entry of summary judgment? 2. Whether an appellant for the first time on appeal may raise questions as to the competence, materiality, or admissibility of an unverified exhibit in contesting a grant of summary judgment? ³³² 3.

Whether appellee was entitled to a summary judgment as a matter of law under Staggs v. Blue Cross of Maryland? I Rule 2-322(b) provides that where, on a motion to dismiss, the court considers matters outside the pleadings, the motion shall be treated as one for summary judgment. Rule 2-322(b), Md.Code Ann., Maryland Rules (1986). Since the court below based its decision on the unverified exhibit attached to the memorandum supporting appellee’s motion, we shall treat the decision as a grant of summary judgment.

A grant of summary judgment is appropriate only where a two-fold test is met. The movant for summary judgment must clearly demonstrate the absence of any genuine issue of material fact and must also demonstrate that he is entitled to judgment as a matter of law. Rule 2-501(d), Md.Code Ann., Maryland Rules (1986). See also Metropolitan Mortgage Fund, Inc. v. Basiliko, 44 Md.App. 158, 162 , 407 A.2d 773 (1979); Dietz v. Moore, 277 Md. 1, 4 , 351 A.2d 428 (1976); Vanhook v. Merchants Mutual Insurance Co., 22 Md.App. 22, 26 , 321 A.2d 540 (1974).

The court, in ruling on a motion for summary judgment, must consider “the pleadings, depositions, answers to interrogatories, admissions and affidavits” submitted by the parties. Rule 2-501(e), Md.Code Ann., Md. Rules (1986). At a hearing on a motion for summary judgment, the function of the judge is “much the same as that he performs at the close of all the evidence in a jury trial when motions for directed verdict ... require him to determine whether an issue requires resolution by a jury, or is to be decided by the court as a matter of law.” 22 Md.App. at 25-26 , 321 A.2d 540 (quoting Knisley v. Keller, 11 Md.App. 269, 272-73 , 273 A.2d 624 (1971)). In determining whether a factual dispute exists, all inferences are to be drawn in the light most favorable to the nonmoving party.

DiGrazia ³³³ v. County Executive for Montgomery, 288 Md. 437, 445 , 418 A.2d 1191 (1980); Berkey v. Delia, 287 Md. 302, 306 , 413 A.2d 170 (1980). Appellant’s complaint is that the document on which the trial court relied in granting summary judgment, appellee’s Exhibit No. 1, was not authenticated. Appellant urges there was nothing under oath by way of affidavit, deposition, interrogatory answer, or otherwise to verify that the exhibited manual was a true and accurate copy of the actual document applicable to appellant. In Vanhook v. Merchants Mutual Insurance Co., supra, this Court specified several bases for granting summary judgment.

The party moving for summary judgment may place before the trial court the facts necessary to a determination for summary judgment (1) by affidavit, (2) by deposition, (3) by answers to interrogatories, (4) by admissions of facts, (5) by stipulation or concession, or (6) by pleadings. Vanhook, 22 Md.App. at 26-27 , 321 A.2d 540 ; Washington Homes v. Interstate Land Development Co., Inc., 281 Md. 712, 717 , 382 A.2d 555 (1978); Digrazia, supra, 288 Md. at 455 , 418 A.2d 1191 (1977). Pleadings alone may serve as the basis for providing the necessary factual prerequisites only where the “[ajllegations and the response, or lack of response ... establish facts as admitted or deemed to be admitted, for the purpose of the case.” 3 22 Md.App. at 26-27 , 321 A.2d 540 . ³³⁴ It is clear that there were no affidavits in the matter at hand, no depositions or interrogatories, and no admissions of fact as contemplated in Vanhook . The “admissions” of fact referred to in that case related to written requests for admissions of facts and the genuineness of documents served upon a party.

Id. (referencing former Rule 421, now Rule 2-424, Md.Code Ann., Md. Rules (1986)). Nevertheless, the pleadings in the case sub judice do provide the factual prerequisites for a summary judgment. Ordinarily, the facts alleged in pleadings are not, by that means alone, before the court as facts for the purposes of summary judgment disposition.

Vanhook, supra, 22 Md.App. at 27 , 321 A.2d 540 . But, where, as in the instant case, one party in its pleadings concedes the existence of the only facts material 4 to a resolution of the summary ³³⁵ judgment motion, the concessions in these pleadings may serve as the basis for a finding of a lack of a genuine dispute as to the facts. See P. Niemeyer & L. Richards, Maryland Rules Commentary Rule 2-501, at p. 252 (1984). Despite the repeated reference by appellee, in its memorandum in support of summary judgment, to the existence and language of the disclaimer contained in “The Johns Hopkins Hospital Employee Handbook,” appellant, in her response and rebuttal to the motion, did not contest the existence of appellee’s disclaimer of any express or implied contract.

Our answer to the first issue raised by appellant is that concessions in pleadings may serve as a basis for summary judgment even in the absence of affidavits, depositions, or other sworn testimony. Even assuming the trial court erred in basing its summary judgment entry on an unverified exhibit, the pleading admissions of record establish there was a suitable basis for a grant of summary judgment by the court below. It is well-established that even where a trial judge has based an entry of summary judgment on an erroneous ground, an appellate court may affirm the iudement on any ground supported by the ³³⁶ record. See 6 Moore’s Federal Practice II 56.27, at p. 56-1561 (1985 & 1986 Supp.) and cases cited therein. 5 It may be additionally noted that party admissions in pleadings, admissible under an exception to the rule against hearsay, are considered to be substantive evidence of the facts admitted.

See Aetna Casualty & Surety Co. v. Kuhl, 296 Md. 446, 455 , 463 A.2d 822 (1983); Burkowske v. Church Hospital Corp., 50 Md.App. 515, 519 , 439 A.2d 40 (1982); 29 Am.Jur.2d Evidence § 687 (1964 & 1986 Supp.). II Even if we had not answered the first issue as we did, we would reach the same ultimate conclusion because our answer to the second issue is that an appellant may not raise for the first time on appeal a question as to the competency, materiality or admissibility of an unverified document relied on by the court in granting summary judgment. • It is well-established that objections to the form or admissibility of evidence submitted in support of a motion for summary judgment cannot be raised for the first time on appeal. Wyand v. Patterson Agency, Inc., 266 Md. 456, 460-61 , 295 A.2d 773 (1972); Fishman Construction Co. v. Hansen, 238 Md. 418, 429 , 209 A.2d 605 (1964); Guerassio v. American Bankers Corp., 236 Md. 500, 504-05 , 204 A.2d 568 (1964); Tellez v. Canton Railroad Co., 212 Md. 423, 430 , 129 A.2d 809 (1957). Only objections relating to the “substantive deficiency of the affidavit in setting forth the facts necessary for a prima facie case” or defense may be initially raised on appeal.

Wyand, supra, 266 Md. at 461 , 295 A.2d 773 . See also, Mercier v. O’Neill Associates, Inc., 249 Md. 286 , 287 n. 1, 239 A.2d 564 (1968). Here, appellant seeks to attack only the form of the document, i.e., the lack of an affidavit or other verification ³³⁷ of the document’s authenticity, not the sufficiency of its contents. The document, otherwise inadmissible for its lack of testimonial assurance of authenticity, was accepted and considered by the court in the absence of an objection thereto, and it contained the facts necessary to entitle appellee to summary judgment as a matter of law.

Had an objection or motion to strike been made, appellee would have had the opportunity to submit proper authentication. Appellant will not now be heard on appeal to object for the first time to the admission of the exhibit and its consideration by the court. See P. Niemeyer & L. Richards, Maryland Rules Commentary, Rule 2-501, at 252 (1984). See also Rule 2-517(a), Md. Rules, Md.Code Ann. (1986); Davis v. Sears, Roebuck & Co., 708 F.2d 862, 864 (1st Cir.1983); Noblett v. General Elec.

Credit Corp., 400 F.2d 442, 445 , cert. denied, 393 U.S. 935 , 89 S.Ct. 295 , 21 L.Ed.2d 271 (10th Cir.1968); Auto Drive-Away Company of Hialeah, Inc. v. I.C.C., 360 F.2d 446 (5th Cir.1966); 10A