Dietz v. Moore

Digges, J., delivered the opinion of the Court. Charles Earl Laudenklos died on January 23, 1974, approximately 15 hours after executing his one and only last will and testament. That document, which was submitted to the Orphans’ Court for Baltimore County for probate five days later, was challenged in two caveat proceedings by 32 of his relatives as not being a valid testamentary instrument. With the agreement of the parties, the orphans’ court transmitted eleven issues — including execution, undue influence and mental competency — to the Circuit Court for Baltimore County for determination.

Following a two-month discovery period, the caveatees filed a motion for summary judgment which, after a hearing, was granted as to ten of the issues, leaving only the question of the mental competency of the testator to be decided at trial. After also losing on that issue in a jury trial before Judge Frank E. ³ Cicone, the caveators press the following three issues on appeal: (1) whether summary judgment should have been granted on the issues of execution and undue influence; (2) the propriety of the conduct of the personal representative-caveatee in connection with this matter; and (3) whether the trial court erroneously refused to allow the jury access to certain para-medical evidence. Although appeal was taken to the Court of Special Appeals, we granted certiorari before it considered the case. As we discern no prejudicial error, the rulings of the circuit court will be affirmed.

The circumstances shrouding the last few days of the decedent’s life seem almost perfectly orchestrated to give rise to a will contest. Laudenklos, diagnosed in September of 1973 to be suffering from Hodgkins disease, was hospitalized on January 3, 1974, due to an increasingly deteriorating condition. When his tenuous grip on life began to slip, his pastor, at the urging of some of the caveatees, asked him on January 21 whether he had made a will. After replying in the negative, Laudenklos consented to the summoning of E. Scott Moore, his lawyer and a caveatee.

Moore visited the decedent in the hospital later that same afternoon and, according to Moore’s testimony, he discussed with Laudenklos the disposition of his property and was requested by him to prepare a will. Returning the next morning with a secretary from his office, as Moore and his secretary testified, Moore read Laudenklos a typewritten will that he had prepared and then Moore, at the decedent’s request, in his own handwriting crossed out one legatee and added two other beneficiaries. After that was accomplished, according to these same testifiers, Laudenklos, with Moore and his secretary as the subscribing witnesses and the only persons present, signed the will with his mark, an “X.” Mr. Laudenklos died 15 hours later. There was conflicting testimony regarding the testator’s mental awareness at the time the will was executed, with some persons attesting to his coherence and ability to communicate, and others relating that he was disoriented and bewildered during his final days.

The seven legatees named in the will, each of ⁴ whom was to receive 15% of the estate (except one husband and wife were together bequeathed 15%) were his church, four friends and two cousins, most of whom had visited Laudenklos within days of his death. The caveators, consisting of 32 paternal heirs, collectively receive only 5% of the estate under the will; they would receive 50% had the testator died intestate. The caveators argue that the circuit court should not have granted the caveatees’ motion for summary judgment as to the issues of execution and undue influence because at trial the jury may not have believed the testimony of the subscribing witnesses. Contending that the underlying facts are susceptible of more than one inference, the caveators conclude that the summary judgment invaded the province of the jury.

However, properly granted summary judgments do not usurp any jury function since Maryland Rule 610 d 1 authorizes them only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” As we said in Lynx, Inc. v. Ordnance Products, 273 Md. 1, 7 , 327 A. 2d 502 (1974), “[t]he function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not there is an issue of fact to be tried and if there is none, to cause judgment to be rendered accordingly.” Furthermore, we think it abundantly clear that the court below was correct in granting summary judgment as to the undue influence and execution issues. As Judge Finan aptly expressed the law for this Court in Brown v. Suburban Cadillac, Inc., 260 Md. 251, 255, 257 , 272 A. 2d 42 (1971): “An appellate court, in reviewing a motion for summary judgment, should be concerned primarily with deciding whether or not a factual issue exists, and in this regard, all inferences should be resolved against the party making the motion. Hilton v. Williams, [ 258 Md. 285, 288 , 265 A. 2d 746 (1970)]; Lipscomb v. Hess, [ 255 Md. 109, 118 , 257 A. 2d 178 ⁵ (1969)]; Lawless v. Merrick, [ 227 Md. 65, 70 , 175 A. 2d 27 (1961)]. Be that as it may, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact.

Foreman v. Melrod, 257 Md. 435, 441 , 263 A. 2d 559 (1970); Fishman Const. Co. v. Hansen, 238 Md. 418, 422-23 , 209 A. 2d 605 (1965), and cases cited therein. And, the opposing party must make such a showing by facts which would be admissible in evidence. Maryland Rule 610 b; Foreman v. Melrod, supra; Fishman Construction Co. v. Hansen, supra; Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, 100 , 122 A. 2d 563 (1956). “It is never sufficient to defeat a motion for summary judgment that the opposing party allege in a general way that there is a dispute as to a material fact. . . .” (Footnote omitted; emphasis added.) See Lynx, Inc. v. Ordnance Products, supra, 273 Md. at 7-9 ; Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 40-41 , 300 A. 2d 367 (1973).

In this case, although the caveatees presented sufficient grounds for summary judgment as to the issues of execution and undue influence, the caveators utterly failed to establish that there was a “genuine dispute as to a material fact” as to either issue. With respect to execution, the caveators did not depose or obtain admissions from the two subscribing witnesses, and presented no affidavits nor any other admissible evidence indicating that the decedent did not sign the “X” on the will. This Court has held that “when a person signs his mark to an instrument with the intention of executing it as his will, the mark of itself constitutes a signature sufficient to comply with the statute.” Van Meter v. Van Meter, 183 Md. 614, 619 , 39 A. 2d 752 (1944). Similarly, the caveators presented nothing which would be ⁶ admissible at trial with regard to the issue of undue influence; the affidavits they rely on with regard to this issue go, in reality, only to the issue of competency, which was submitted to the jury.

We need only pause momentarily to consider the caveators’ second contention. They assert that remand for a new trial is required because there exists “at least an appearance of impropriety” on the part of the personal representative-caveatee, E. Scott Moore, which results from his appearing in many capacities in this litigation. 1 Though this contention is set forth in the caveators’ brief, the issue was, nevertheless, neither raised in nor decided by the trial court; so under Rule 885 we are not privileged to consider it. Gillen v. Maryland Nat’l Bank, 274 Md. 96, 106 , 333 A. 2d 329 (1975); Brawner v. Hooper, 151 Md. 579, 594 , 135 A. 420 (1926) (holding that conduct of counsel cannot be questioned for the first time on appeal). The final facet of the caveators’ appeal relates to use of progress notes made by several nurses on the two days immediately preceding the testator’s death and which allegedly bear on the competency issue.

The caveators urge that the three nurses testifying on the matter were erroneously prevented from utilizing their notes in aid of their testimony and from making known to the jury their recorded observations. Similarly, the caveators challenge the trial court’s alleged refusal to allow their expert medical witness, Dr. Solomon Snyder, to use these notes in formulating his opinion. After first setting out some additional facts and a synopsis of the applicable law, we will consider these evidentiary issues with respect to each of the four witnesses. A review of the trial proceedings discloses that during the ⁷ direct examination of the decedent’s attending physician, Dr. Sheldon Kravitz, called at the outset of the trial by the caveatees due to the witness’ schedule, counsel for all parties stipulated to the admission of the decedent’s hospital record.

This record, in its entirety, was then received into evidence without objection. Included in it — in addition to test results, X-ray data and physicians’ progress notes — were the nurses’ para-medical notes at issue here. The key notations made by the nurses are as follows: (1) Gloria Kruba, at 2:80 p.m. on January 21, stated that Mr. Laudenklos “Appears confused, disoriented. Does not give correct responses related to questions (2) Ruth Anna Shattuck, at 8:30 that same night, noted that the patient “Appears to be disoriented this evening”; and (3) Michael Sturm, at 1:30 p.m. the following afternoon, recorded that the testator “appears disoriented at times.” As we have held in numerous cases, hospital records are not inadmissible as hearsay in Maryland because they fall within the statutory business record exception now codified in Code, Courts and Judicial Proceedings Article, § 10-101 (1974).

See, e.g., Dunn v. State, 226 Md. 463 , 174 A. 2d 185 (1961); Beth. Shipyard v. Scherpenisse, 187 Md. 375 , 50 A. 2d 256 (1946). However, even though a particular hospital record is not barred from evidence as hearsay, it may be that some or all of its contents are open to objection on other grounds. Old v. Cooney Detective Agency, 215 Md. 517, 524 , 138 A. 2d 889 (1958).

Thus, charts kept by nurses in the regular course of their profession are within the hearsay exception, Snyder v. Cearfoss, 190 Md. 151, 159 , 57 A. 2d 786 (1948), but not everything contained in them is necessarily competent evidence. West v. Fidelity-Balto. Bank, 219 Md. 258, 265 , 147 A. 2d 859 (1959). In West , for example, the Court refused to allow four nurses who had attended the testator to testify regarding their entries concerning his mental condition because they had not been shown to be competent to express an opinion as to his lack of capacity to execute a valid deed or contract.

Id. at 264-65 . The Court’s premise, which we have since reaffirmed, was that one who is neither a subscribing witness nor an attending physician ⁸ is not competent to express an opinion as to testamentary capacity without there being established sufficient facts on which to base the opinion. Id.; see, e.g., Williams v. Moran, Etc., 248 Md. 279, 286-87 , 236 A. 2d 274 (1967); Ingalls v. Trustees, 244 Md. 243, 257-58 , 223 A. 2d 778 (1966); Giardina v. Wannen, 228 Md. 116, 123-24 , 179 A. 2d 357 (1962). Had the para-medical progress notes been objected to, in whole or in part, therefore, the trial court would have been required to determine how much, if any, of the notes constituted competent evidence.

However, the circuit court was not required to decide that issue, nor are we, as counsel for all parties agreed unconditionally to the admission of the entire hospital record. As Judge Hammond stated for the Court in a similar context in Old v. Cooney Detective Agency, supra, 215 Md. at 525 -26: “We need not decide whether the hospital records would have been admissible over objection, for they came in without objection. ... If, for the argument, it be assumed that the evidence in the records was