Faith v. Keefer

HOLLANDER, Judge. This appeal arises from a fatal automobile accident that occurred in Washington County on January 17, 1997. Thirty-seven year old Rebecca Faith (“Rebecca” or the “decedent”), a passenger in a vehicle driven by nineteen year old Timothy Lee Keefer (“Keefer”), appellee, was killed when the car collided with a utility pole. On April 15, 1997, a wrongful death and survival action was filed against appellee in the Circuit Court for Washington County by the decedent’s husband, Henry Faith (“Henry”), individually and on behalf of the decedent’s estate and the couple’s daughter, Trida Nicole, and by Steven Rhyme (“Rhyme”), the ex-husband of the decedent, on behalf of, Daniel Rhyme, the son of Rhyme and the decedent.

The plaintiffs below are the appellants here. 1 After the circuit court granted appellee’s Motion for Summary Judgment, appellants timely noted this appeal. They ⁷¹⁴ present two questions for our consideration, which we have rephrased: I. Did the circuit court err in denying appellants’ Motion in Limine, seeking to exclude appellee’s belated answers to interrogatories, filed after Keefer had invoked his privilege under the Fifth Amendment?

II

Did the circuit court err in granting summary judgment in favor of Keefer based on contributory negligence, assumption of the risk, and agency? For the reasons that follow, we shall uphold the trial court’s denial of appellants’ motion in limine, but reverse the award of summary judgment in favor of appellee. Accordingly, we shall remand the matter to the circuit court for further proceedings. Factual Summary 2 Shortly before 1:47 a.m. on January 17, 1997, appellee was driving eastbound on Maryland Route 144 (also known as Western Pike), in a 1989 Ford Mustang GT that was co-owned by Rebecca and her husband, Henry.

Western Pike is a two lane roadway with a posted speed limit of 40 miles per hour. Two yellow road signs were posted on the approach to a curve in the road, warning of the curve and a maximum speed of 80 miles per hour. As Keefer proceeded around the bend of the curve, at or near the intersection of Round Top Road, he lost control of the vehicle. The car collided with a utility pole, causing the pole to snap in half.

Rebecca, the vehicle’s only passenger, suffered a crushed chest when the side of the vehicle collapsed. Kristine Brown was the first person on the scene. 3 She had been heading westbound on Maryland Route 144 when she ⁷¹⁵ saw the Mustang traveling eastbound at an estimated speed of 65 or 70 miles per hour. Moments later, Ms. Brown heard the collision and immediately turned to check on the condition of the people involved in the accident. She promptly called for medical assistance.

Fire and rescue personnel extricated appellee from the vehicle and transported him to Washington County Hospital. Deputy Richard Schleigh of the Washington County Sheriffs Department, who was the first police officer at the scene, testified at his deposition on May 7, 1998, that he was notified of the accident at 1:47 a.m. and arrived at the scene at 2:07 a.m. The deputy stated: When I first arrived I observed a black Mustang. It had damage to the passenger side where it was — had impacted a utility pole.

The driver’s seat was empty, the passenger[’s] seat still had a female occupant in it who was deceased. Deputy Schleigh further testified that there was a prominent odor of alcohol in the car and that “[s]everal Busch Lite 32-ounce beer bottles were found on the passenger side floor.” The deputy did not recall whether the bottles were open, however. He also reported that a blood sample taken from Keefer at the emergency room revealed that his blood alcohol level measured “0.18 grams of alcohol per 100 millimeters of blood,” and that “[d]riving while intoxicated is 0.1” grams of alcohol per 100 millimeters of blood. As to the cause of the accident, the deputy stated: The primary cause of the accident was the high speed causing ... [appellee] to be unable to negotiate the turn of the curve in the road.

Secondary would have been the alcohol concentration. It would have impaired his ability to operate the vehicle properly. At his deposition on May 7, 1998, Dr. Howard Weeks, a medical examiner, explained that neither a blood analysis nor an autopsy was performed on the decedent, because “the ⁷¹⁶ crushing injury [to Rebecca’s] chest wall” was the obvious cause of death. In addition, Dr. Weeks opined that, based on the “severity of [the] crushed chest,” the decedent did not suffer any conscious pain and suffering as a result of the collision; death “occurred instantly upon impact.” As a result of the collision, appellee was criminally charged with homicide by motor vehicle while intoxicated, homicide by motor vehicle while under the influence of alcohol, driving while intoxicated, negligent driving, and driving at an unreasonable speed.

Those charges were pending during much of the discovery phase of the civil suit, and were not resolved until April 1998. On July 21, 1997, appellants’ counsel had written to appellee’s counsel, stating: “Enclosed is a complete set of pleadings filed in the above matter. When you deem it appropriate, please answer the pleadings[.]” In his brief, appellee claims that the “pleadings” included Interrogatories, a Request for Admissions of Fact, and a Request for Production of Documents. On August 7, 1997, appellee filed a Certificate Regarding Discovery, indicating that he served on appellants’ counsel a Response to the Request for Admissions of Fact and Request for Production of Documents.

Subsequently, on November 14, 1997, the circuit court issued a scheduling order requiring completion of all discovery by May 15,1998. Appellee was deposed on February 16, 1998. At the outset of the deposition, Keefer’s lawyer noted that he had advised appellants’ counsel that Keefer intended to invoke his Fifth Amendment privilege because of the criminal charges pending against him. His counsel further noted that, upon the conclusion of the criminal matter, Keefer would be available to answer any questions concerning the collision.

Keefer’s attorney said: I was advised by Mr. Beasley [the attorney representing Keefer in his criminal case] that the criminal trial is scheduled for April of this year, and prior to the criminal trial going forward he was not going to permit Mr. Keefer to answer any questions which might violate his Fifth Amend ⁷¹⁷ ment right of self incrimination because of the pending criminal trial. Last week I spoke to [appellants’ counsel] and advised him that today’s deposition might be very short and fruitless because of Mr. Beasley’s concerns, and asked if we could postpone it. [Appellants’ counsel] ... said that he would prefer to move forward. I note that the scheduling order in this matter indicates that discovery cutoff is not until mid-May. Mr. Beasley has advised me that after Mr. Keefer’s criminal trial in April [1998] he will permit Mr. Keefer to answer any questions that [appellants] may have with regard to the accident of January 17,1997.

I explained this to [appellants’ counsel], and it was his indication that he preferred to go forward with today’s deposition.... Accordingly, Keefer answered only a few questions. He testified that the “last two or three weeks that she was alive,” Rebecca lived in a boarding house in Hancock, Maryland, where he also resided. Keefer also said that he had only known the decedent for “[a] couple of weeks,” and acknowledged that they had been involved in a sexual relationship.

Thereafter, appellee asserted his Fifth Amendment privilege each time he was questioned about the collision. Henry was also deposed on February 16, 1998. He averred that for the two weeks prior to the collision, Rebecca lived at home with him from Monday through Thursday, but on the weekends she resided in an apartment in Hancock, “to get her head straight.” Henry also testified that Rebecca had been treated for a drinking problem “during the summer” before the accident. Apparently, the decedent was required to undergo treatment due to “an alcohol conviction for driving.” According to Keefer, in April 1998 he “pled guilty to homicide by motor vehicle while intoxicated as a result of criminal charges brought against [him] for the accident which gave rise to the lawsuit.” Thereafter, in correspondence dated May 19, 1998, appellee’s counsel reiterated to appellants’ counsel that ⁷¹⁸ Keefer was available for deposition.

The letter stated, in pertinent part: Prior to the start of Mr. Keefer’s deposition, I advised you that [Keefer’s criminal attorney would not permit him to answer certain questions] ... based on the [p]endency of his criminal trial which was scheduled for April of this year. As you know, Mr. Keefer pled guilty in that matter and was sentenced. Pursuant to the agreement placed on the record, Mr. Keefer is now available to answer any questions by way of deposition and I expect to have his signature on the enclosed Answers to Interrogatories in the next several days. * * * I also advised you that I would be preparing a Motion for Summary Judgment. I will probably include, in that Motion, the assumption of risk argument based on the information in Mr. Keefer’s Answers to Interrogatories with respect to Ms. Faith’s purchase of the alcohol that he drank that evening____ Appellants opted not to re-depose Keefer.

In their brief, appellants assert that appellee’s “11th hour offer [to re-depose Keefer] was at [appellants’] expense, and was extremely late in [their] preparation for trial.” Appellee filed his “Answers to Interrogatories” (the “Answers”) on May 19, 1998, four days after the discovery deadline established by the scheduling order. Although the Answers were provided nearly ten months after they had been served, and shortly after the May 15, 1998 discovery deadline, appellants had never moved for sanctions or to compel discovery pursuant to Md. Rule 2-482. In the Answers, appellee recounted the events that led to the collision. He said: I cannot remember everything I had done in the twenty-four hour period before this occurrence.

However, to the best of my recollection, on the evening before this occur ⁷¹⁹ renee [January 15, 1997], I had spent most of the evening drinking beer with Rebecca Faith in her room at the boarding house where we lived. I next saw the decedent, Ms. Faith, the following evening [January 16, 1997] at approximately 9:00 p.m. She picked me up on the street in Hancock, Maryland and we went to the Dead End Liquor Store, where she purchased a pint and a half of whiskey and a twelve pack of beer. We drove around Hancock and finished the whiskey and the beer.

Ms. Faith then drove back to the Dead End Liquor Store where she purchased another half pint of whiskey, which we drank in the bank parking lot in Hancock.... We then drove to Shoenagles [a bar] in Little Orleans, Maryland. While there, we continued to drink whiskey and beer until we left Shoenagles at approximately 1:00 a.m. We were returning to our rooming house in Hancock when the accident occurred.

In addition, Keefer claimed that although Rebecca knew he was under the legal drinking age, she purchased alcohol for him. He also asserted that, despite knowing he was intoxicated, Rebecca insisted that Keefer drive home. Appellee stated: “As [he and the decedent] were leaving Shoenagles [Rebecca] took the keys to her vehicle, threw them on the ground and told [Keefer], ‘You drive, you’re driving me home.’ ” On June 5, 1998, appellee moved for summary judgment. Keefer argued that, under the doctrine of imputed negligence, Rebecca, as the passenger and owner of the vehicle, was presumed to have consented to appellee’s negligent operation of the vehicle.

Appellee also claimed that, because Rebecca gave him the keys to the vehicle and asked him to drive home, he was acting as her agent. Therefore, under the doctrine of respondeat superior, he contended that appellee’s negligence was imputed to the decedent, thereby barring appellants’ recovery. Additionally, Keefer asserted that appellants’ claims failed based on the doctrines of contributory negligence and assumption of risk. Keefer’s position was predicated on his contention that Rebecca had asked him to drive “with full knowledge that he was not old enough to drink, but had been ⁷²⁰ drinking with her, alcohol which she had purchased for him for several hours prior to her giving him the keys.” On June 23, 1998, appellants filed a “Motion in Limine to Preclude Testimony of the Defendant as to the Occurrence.” In their motion, appellants noted that at Keefer’s deposition on February 16, 1998, Keefer “invoked his Fifth Amendment privilege on several occasions each of which was in response to questions about events taking place on the day of the accident.” Although appellants acknowledged that Keefer had an absolute right to invoke the privilege in response to their questions, they argued that, by doing so, Keefer was “preclude[d] ... from testifying on that particular subject matter in any future proceeding....” Appellants also opposed appellee’s summary judgment motion.

They argued, inter alia, that appellee “launched a three prong attack against [their] right to a trial ... based upon facts that can not be put into evidence by [appellee] as he can not now ‘testify’ as to any of the facts, particularly as now set forth in his late responses to discovery.” In opposing appellants’ motion in limine, Keefer argued that he had not thwarted the discovery process by invoking his Fifth Amendment privilege. He claimed that, at his deposition, appellants knew that he intended to invoke his Fifth Amendment privilege because of the criminal charges then pending against him. Moreover, Keefer noted that his counsel had suggested postponement of the deposition until after the criminal trial, which was then scheduled for April 1998, but appellants chose to proceed. Additionally, Keefer claimed that, following the criminal proceedings, he offered to resume his deposition.

Following a hearing on July 6,1998, the circuit court denied appellants’ motion in limine and granted summary judgment in favor of appellee. As to the motion in limine, the trial court stated: While at the time of the deposition, criminal charges were pending, the court took the plea in the criminal charges in this case in April of this year, uh, discovery apparently ⁷²¹ ended in mid-May, so there was time to take another deposition and that’s been, apparently, admitted by counsel here that there was discussions concerning depositions. [Appellants], however, elected not to take advantage of that opportunity because [they] felt, uh, under the law, that ... once he’s invoked his Fifth Amendment rights he cannot come forth and testify later. So, apparently there was repeated offers to have another deposition taken, but for reasons stated, [appellants] did not exercise ... [their] right to do so. Now, as 1 indicated at the beginning of the deposition transcript, itself, it appears that a discussion did take place indicative of Keefer’s desire to invoke the Fifth Amendment at that time, but to be deposed after the plea bargain, which apparently took place in April.

I, you know, I think since [appellants were] aware of this situation, and knew the situation [they were] given the opportunity to depose [appellee] again, uh, even though [they] desired to take the initial deposition knowing that the Fifth Amendment privilege was gonna be invoked, and I assume that was for trial tactic purposes, the point is [they have] not done so. This is moot anyway because even though it’s after discovery guidelines, deadline, [appellee] did file answers to interrogatories which were attached to the motion for summary judgment. And, of course, in those answers, it discussed the incident and events leading up to it, including the intoxication and the deceased’s actions in allegedly getting [appellee] to operate the motor vehicle when the unfortunate accident occurred. Even though the answers to the interrogatories were filed after the discovery deadline, you know, absent any showing of prejudice to [appellants] because of lateness, 1 feel [appellee] could testify about the [content] of the interrogatories.

With respect to summary judgment, the court said: We have an unfortunate situation. It’s obvious to the court that the decedent was, at [the time of the collision], estranged from her family, was living in a boarding house where [appellee] also resided. Without getting into the relationship between the decedent and [Keefer], it is uncontradicted that on the day in question ... copious amounts of ⁷²² alcohol were consumed during the afternoon and evening hours, and that the alcohol was provided by the ... decedent. ... And as contained in the answers to interrogatories, which have ... not been disputed, and as I said, credibility of the witnesses is not before me at this time, ... the two individuals then went to [a bar in] Little Orleans---- And unfortunately ... additional alcohol was consumed---- The car is owned by the decedent. [Keefer] has the car keys, this court can reasonably infer were given to him by the decedent, and was instructed to drive home.

Unfortunately, this tragic accident occurs on the way home. Concerning whether or not there could be, at the time of trial, introduction of ... whether or not [Keefer] was intoxicated at the time, I think it can reasonably be inferred that people that drink during the afternoon and drink all night, that there’s certainly a problem with their ability to operate a motor vehicle. But also I think there’s an indication in here that [there would be] testimony concerning a high rate of speed.... [T]he burden of proof, at least for the judgment purposes, or motion purposes, has been met under the agency theory and, also, contributory negligence and assumption of risk. We shall include additional facts in our discussion.

Discussion I. The Motion in Limine In their challenge to the trial court’s denial of their motion in limine, appellants maintain that once Keefer invoked his Fifth Amendment privilege at the deposition, he was forever precluded from testifying about the events of January 17, 1997. Appellants also claim that the Answers should have been excluded because they were not filed within the time provided by the May 15,1998, discovery deadline or within the time provided by Md. Rule 2-421. 4 We shall address these arguments seriatim. ⁷²³ Appellants maintain that the Answers should have been excluded because Keefer used his Fifth Amendment privilege as a shield to hinder appellants’ preparation for trial and then as a sword to obtain judgment in his favor. To support their contention, appellants rely on Kramer v. Levitt, 79 Md.App. 575 , 558 A.2d 760 , cert. denied, 317 Md. 510 , 564 A.2d 1182 (1989). There, Levitt and Kramer entered into a business arrangement, in which Levitt agreed to lend money to certain borrowers, and Kramer and his partner would act as loan brokers, collecting monthly payments, deducting their fee, and remitting the balance to Levitt.

Kramer, 79 Md.App. at 577 , 558 A.2d 760 . The loans were secured by deeds of trust in which either or both of the brokers were named as trustees. Id. In September 1983, the brokers advised Levitt that they had misappropriated certain funds because of an unexpected reversal of fortune.

Id. Thereafter, Levitt discovered that all of the borrowers had repaid their loans and all of the repaid monies had been misappropriated by the brokers. Id. Levitt filed suit against both Kramer and his partner, but the latter failed to plead and a default judgment was entered against him.

Id. at 578 , 558 A.2d 760 . During the discovery phase, Kramer objected to Levitt’s request for admissions, interrogatories, and document requests, on the ground that a response would “violate his constitutional rights, including those under the Self-Incrimination Clause of the Fifth Amendment to the Constitution of the United States and Article 22 of the Maryland Declaration of Rights.” 5 Id. at ⁷²⁴ 579, 558 A.2d 760 (footnote omitted). Levitt moved to compel discovery, but the court denied the motion. Id.

At trial, Levitt moved in limine, seeking to prevent Kramer from calling any witnesses to testify about the transactions that Kramer refused to discuss in the discovery requests. Id. at 582 , 558 A.2d 760 . After the trial court granted the motion, Kramer appealed. In upholding the trial court, we noted that “the Fifth Amendment privilege against self-incrimination has long been held to be properly asserted by parties or witnesses in civil proceedings,” id., and that it “applies not only at trial, but at the discovery stage as well.” Id.

At the time of discovery, Kramer was “not under indictment or faced with a criminal prosecution or disciplinary action, [but] he could reasonably fear that the information gained from his admissions might furnish a basis for such charges.” Id. at 583 , 558 A.2d 760 (footnotes omitted). Nevertheless, we recognized that “ ‘if a party is free to shield himself with the privilege during discovery, while having the full benefit of his testimony at trial, the whole process of discovery could be seriously hampered.’ ” Id. at 587 , 558 A.2d 760 (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2018 Supp. at 63 (1970,1988 Supp.)(footnote omitted)). Moreover, we recognized that “when a defendant in a civil action pleads his privilege against self-incrimination in response to discovery requests, he is prohibited from testifying at trial on matters pertaining to those requests.” Id. at 588, 558 A.2d 760 (citations omitted). Accordingly, we concluded that although a party may assert his privilege, he may not “use this privilege as a means to hide witnesses [or other relevant evidence] until trial.” Id. at 589, 558 A.2d 760 (emphasis added).

Nevertheless, Kramer did not countenance, as appellants urge, that whenever a party invokes his Fifth Amendment privilege, he or she is forever precluded from giving testimony in any form about the previously undisclosed matter. The ⁷²⁵ concern in Kramer was about someone who had invoked the privilege, thereby thwarting discovery of relevant facts, and who then sought to rely on those undisclosed facts at trial. Those concerns are not present here. Unlike the defendant in Kramer , appellee did not assert his privilege in order to conceal facts until trial.

Instead, he sought a relatively brief delay in discovery, until resolution of his pending criminal charges. Keefer advised appellants of his intent to assert the privilege for a limited period of time, and offered to resume his deposition when the criminal charges were resolved. Once the criminal charges were resolved, which was in advance of trial, appellee furnished the Answers. Significantly, appellants do not complain that, during the period when appellee relied on his Fifth Amendment privilege, important evidence or discovery opportunities were forever lost.

Several of the cases that appellants cite in their brief support our view that appellee’s invocation at his deposition of his Fifth Amendment right did not strip the court of its discretion to consider the content of his Answers in connection with the summary judgment motion. For example, in Federal Trade Comm’n v. Sharp, 782 F.Supp. 1445 (D.Nev.1991), the court permitted the defendant to submit an affidavit in response to the FTC’s motion for summary judgment, although the defendant had previously invoked his Fifth Amendment privilege and refused to answer deposition questions relating to his knowledge of alleged misrepresentations. The court found that the defendant’s use of the privilege was not “ ‘strategic’ ”, id. at 1452 , because, at the time of the deposition, the defendant was under indictment. Id.

As the indictment was later dismissed, the court reasoned that “it was not surprising that [the defendant did] not feel the same compulsion to assert his [F]ifth [A]mendment privilege at this time.” Id. Moreover, the court found that the FTC was not prejudiced when the defendant invoked his Fifth Amendment privilege, because the FTC was able to obtain relevant information elsewhere. See also Federal Trade Comm’n v. Kitco of Nevada, Inc., 612 F.Supp. 1282, 1290 (D.Minn.1985) (permitting testimony of a ⁷²⁶ defendant who previously refused to answer deposition questions based on his Fifth Amendment privilege). The case of In re John Edmond, 934 F.2d 1304 (4 th Cir.1991), on which appellants rely, is distinguishable from the facts attendant here.

In that case, the bankruptcy court refused to allow use of an affidavit offered by the defendant after he refused to submit to a deposition. The controversy arose when the Consumer Protection Division, Office of the Attorney General for the State of Maryland, (the “Division”) brought an administrative action against the defendant. After the hearing officer determined that the defendant violated certain provisions of the Consumer Protection Act, the defendant filed for bankruptcy, and the Division filed an action in the bankruptcy court to forestall discharge. Thereafter, the defendant moved for summary judgment, offering his own affidavit in support of the motion.

The Division objected, contending that the defendant had invoked “his Fifth Amendment privilege throughout discovery frustrating the mounting of a solid defense to the summary judgment motion.” Id. at 1306 . The Fourth Circuit concluded that the defendant’s refusal to consent to a deposition justified the bankruptcy court’s decision to strike the affidavit. Id. at 1309 . It reasoned: By selectively asserting the Fifth Amendment privilege ... the defendant attempted to insure that his unquestioned, unverified affidavit would be the only version.

But the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions while discarding it for the limited purpose of making statements to support a summary judgment motion. Id. at 1308 . In marked contrast to the defendant in In re John Edmond, Keefer offered to resume his deposition. By refusing to do so, appellants insured that the Answers were the only account of the collision.

They may not be heard to complain about a situation they helped to create. ⁷²⁷ The case of Securities & Exch. Comm’n v. Zimmerman, 854 F.Supp. 896, 898 (N.D.Ga.1993), is also inapposite. There, the defendant invoked his Fifth Amendment privilege against self-incrimination with respect to the SEC’s discovery. The SEC moved to compel the defendant to waive his privilege, or, alternatively, to exclude the defendant’s use of the information he withheld.

Id. at 898 . The defendant, who had not been indicted, argued that “depending on the outcome of the criminal investigation, he may waive his privilege and testify.” Id. at 898-99 . The defendant also suggested that if he decided to testify, he would “make himself available for deposition and [would] respond to discovery requests to which he had previously asserted his Fifth Amendment privilege.” Id. at 899 . The court recognized that “The Fifth Amendment privilege cannot be invoked to oppose discovery and then tossed aside to support a party’s assertions [after discovery is over].” Id. at 899 (citing McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir.), cert. denied, 459 U.S. 943 , 103 S.Ct. 255 , 74 L.Ed.2d 199 (1982) and In re Edmond, 934 F.2d at 1308 ).

It observed that the defendant “waited until after the SEC ... filed a motion for summary judgment to make his decision as to whether to stay silent or not.” Id. Because discovery had been completed, the court concluded, that the defendant had chosen silence. Consequently, it held that the defendant could not use “any evidence which he ... withheld by his invocation of his testimonial privilege in this matter.” Id. Unlike in this case, the defendant in Zimmerman had not yet been indicted when discovery ensued.

Thus, there was no way to know how long the defendant there would remain silent, or even if he would ever waive the privilege. Conversely, in the case sub judice, appellee made it clear at his deposition in February 1998 that he intended to rely on his privilege only during the pendency of the criminal charges. Moreover, any delay would have been brief, as the criminal trial was set for April 1998. In sum, we are not persuaded that the discovery process was “ ‘seriously hampered.’ ” Kramer, 79 Md.App. at 587 , 558 ⁷²⁸ A.2d 760 (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2018 Supp. at 63 (1970, 1988 Supp.)(footnote omitted)).

Therefore, we are satisfied that the trial court did not err or abuse its discretion in denying the motion in limine. We turn to consider appellants’ second contention with respect to the motion in limine. We begin our analysis of the timeliness issue with a review of the applicable discovery rules. Maryland Rule 2-401 provides, in pertinent part: (b) Sequence and timing of discovery. ...

The court may at any time order that discovery be completed by a specified date or time, which shall be a reasonable time after the action is at issue. ^ $ (d) Discovery material. (2) Not to be filed with the court. Except as otherwise provided in these rules or by order of the court, discovery material shall not be filed with the court. Instead, the party generating the discovery material shall serve the discovery material on all other parties and shall file with the court a notice stating (A) the type of discovery material served, (B) the date and manner of service, and (C) the party or person served____ Md. Rule 2-421(b) states: Response.

The party to whom the interrogatories are directed shall serve a response within 30 days after service of the interrogatories or within 15 days after the date on which that party’s initial pleading or motion is required, whichever is later.... Md. Rule 2-432 provides, in relevant part: (a) Immediate sanctions for certain failures of discovery. A discovering party may move for sanctions under Rule 2- ⁷²⁹ 433(a), without first obtaining an order compelling discovery under section (b) of this Rule, if a party ... fails to serve a response to interrogatories under Rule 2-421.... (b) For order compelling discovery.

A discovering party, upon reasonable notice to other parties and all persons affected, may move for an order compelling discovery if (1) there is a failure of discovery as described in section (a) of this Rule, ❖ * * (4) a party fails to answer an interrogatory submitted under Rule 2-421, (d) Time for filing. A motion for an order compelling discovery or for sanctions shall be filed with reasonable promptness. Maryland Rule 2-433 provides, inter alia: (a) For certain failures of discovery. Upon a motion filed under Rule 2-432(a), the court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including one or more of the following: (2) An order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters into evidence; or (3) An order striking out pleadings or parts thereof, or staying further proceedings until the discovery is provided— (b) For failure to comply with order compelling discovery.

If a person fails to obey an order compelling discovery, the court, upon a motion of a party and reasonable notice to other parties and all persons affected, may enter such ⁷³⁰ orders in regard to the failure as are just, including one or more of the orders set forth in section (a) of this Rule____ Md. Rule 2-504(b)(l)(D) states: (b) Contents of scheduling order. (1) Required. A scheduling order shall contain: (D) a date by which all discovery must be completed; The docket entries indicate that appellants never filed a Certificate of Discovery reflecting their request for discovery materials, as required by Md. Rule 2-401(d). Nevertheless, appellee concedes that he received interrogatories from appellants on July 21, 1997.

Therefore, pursuant to Md. Rule 2-421(b), appellee should have responded to the interrogatories thirty days after service. As we noted, appellant’s counsel initially told appellee to respond “when you deem it appropriate ____” Appellee provided his Answers on May 19, 1998, which was about ten months after the responses were due, and four days after the discovery deadline set forth in the scheduling order. Keefer maintains that he could not respond to the interrogatories until after resolution of the criminal charges, because the Answers “would have served as incriminating evidence.... ” Appellee did not apply for a protective order under Md. Rule 2-403. Nevertheless, if appellants were unhappy with the delay in receipt of the Answers, they took no steps to obtain them.

Notwithstanding appellee’s failure to respond to the interrogatories within the time prescribed by Md. Rule 2-421(b), appellants never moved for sanctions or to compel discovery under Md. Rule 2-432(a), (b). Moreover, in their motion in limine, appellants never complained about the untimeliness of the Answers, nor did they rely upon the untimeliness as a ground to bar use of the Answers. Rather, appellants argued only that the Answers should have been excluded because they concerned matters to which Keefer, at his deposition, had invoked his Fifth Amend ⁷³¹ ment privilege. Instead, appellants first raised the untimeliness issue in their response to appellee’s summary judgment motion.

There, they referred to the lateness issue as a “collateral fact.” Specifically, they stated: Interestingly enough is the collateral fact that the Defendant [Keefer] has now also exposed himself to additional criminal charges by filing late Answers to discovery that constitute a judicial admission to previously uncharged crimes (all discovery was due before May 15, 1998, and was obviously intentionally withheld until after the criminal trial). Similarly, at the motions hearing, appellants’ counsel essentially mentioned the untimeliness of the Answers as an aside. The following exchange is relevant: [APPELLANTS’ COUNSEL]: Accordingly, any evidence that ... [Keefer] would want to present at the time of trial would be precluded. He had ample opportunity to present it at the time of the deposition, the fact that he chose to plead the Fifth is his problem ... and not ours.

Plus we’re well beyond the discovery deadline in this case. ... THE COURT: Well the problem I’ve got ... is the fact that, okay we’re beyond discovery deadline, but the answers to interrogatories were, in fact, filed. [APPELLANTS’ COUNSEL]: I understand that, your Honor, but I think the discovery deadline, that not only even object [sic] to them if they’re filed after the discovery deadline, I’m gonna have to object to them and have them stricken out in the particular instance. As I understand it ... those discovery deadlines are basically written in stone. If they’re not filed within that time, uh, they don’t count.

I don’t have to take any action at all. But I don’t know that that’s really relevant anyway .... (Emphasis added). Thereafter, appellants’ counsel continued with his Fifth Amendment argument.

Appellants now suggest that, although they never pursued any remedy under the discovery rules, the court erred in failing to exclude the Answers as a sanction for appellee’s ⁷³² untimeliness. Although the trial court recognized that the Answers were untimely, it determined that appellants were not prejudiced. We are satisfied that the court neither erred nor abused its discretion by declining to bar appellee’s use of the Answers. “Maryland law is well settled that a trial court has broad discretion to fashion a remedy based on a party’s failure to abide by the rules of discovery.” Bartholomee v. Casey, 103 Md.App. 34, 48 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995); see Md. Rule 2-433(a); Broadwater v. Arch, 267 Md. 329, 336 , 297 A.2d 671 (1972)(recognizing that a court can impose sanctions “sua sponte within the framework of the discovery rules”); Warehime v. Dell, 124 Md.App. 31, 43 , 720 A.2d 1196 (1998); Heineman v. Bright, 124 Md. App. 1, 7 , 720 A.2d 1182 (1998); Beck v. Beck, 112 Md.App. 197, 209 , 684 A.2d 878 , cert. denied, 344 Md. 717 , 690 A.2d 523 (1996), and cert. denied, 345 Md. 456 , 693 A.2d 354 (1997). In exercising its discretion, the trial court should consider several factors, including whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the desirability of a continuance....

Taliaferro v. State, 295 Md. 376, 390-91 , 456 A.2d 29 , cert. denied, 461 U.S. 948 , 103 S.Ct. 2114 , 77 L.Ed.2d 1307 (1983); see also Warehime, 124 Md.App. at 45 , 720 A.2d 1196 ; Shelton v. Kirson, 119 Md.App. 325, 331 , 705 A.2d 25 , cert. denied, 349 Md. 236 , 707 A.2d 1329 (1998). The purpose of Md. Rule 2-504, which pertains to a scheduling order, is “two fold: to maximize judicial efficiency and minimize judicial inefficiency.” Naughton v. Bankier, 114 Md.App. 641, 653 , 691 A.2d 712 (1997). In Naughton, 114 Md.App. at 653 , 691 A.2d 712 , we explained: Though such [scheduling] orders are generally not unyieldingly rigid as extraordinary circumstances which warrant modification do occur, they serve to light the way down the ⁷³³ corridors which pending cases will proceed. Indeed, while absolute compliance with scheduling orders is not always feasible from a practical standpoint, we think it quite reasonable for Maryland courts to demand at least substantial compliance, or, at the barest minimum, a good faith and earnest effort toward compliance.

When a trial court permits a party to deviate from a scheduling order without a showing of good cause, such action by the trial court would be “on its face, prejudicial and fundamentally unfair to opposing parties, and would further contravene the very aims supporting the inception of Rule 2-504 by decreasing the value of scheduling orders to the paper upon which they are printed.” Id. at 654 , 691 A.2d 712 . Here, there was evidence of good cause, and no evidence of contumacious behavior on the part of appellee. To the contrary, appellants’ correspondence of July 21, 1997, effectively invited appellee to respond at his convenience. Further, through counsel, appellee made clear that he had to wait until after disposition of his criminal case before furnishing certain discovery.

Appellee’s counsel offered to resume Keefer’s deposition as soon as the criminal case was over, but appellants declined to do so. Indeed, even at the summary judgment hearing, appellee’s counsel stated: Your Honor, I’m ready to go forward based on the evidence that’s on the record, but if ... [appellants’ counsel] wants the opportunity to depose ... [Keefer] I’m ... [willing] to postpone summary judgment in order to give him every opportunity to cross examine this man on what went on that evening [January 17,1997]. Appellants’ counsel reiterated his refusal to re-depose Keefer. In our view, appellants’ objection to the untimeliness of the Answers was too little, too late.

Their complaints lack merit.

II

Motion for Summary Judgment A. Standard of Review Pursuant to Md. Rule 2-501 (e), summary judgment is appropriate only if there is no dispute of material fact and the party in whose favor judgment is entered is entitled to judg ⁷³⁴ ment as a matter of law. See Murphy v. Merzbacher, 346 Md. 525, 531 , 697 A.2d 861 (1996); Bowen v. Smith, 342 Md. 449, 454 , 677 A.2d 81 (1996); Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 68 , 642 A.2d 180 (1993); McGraw v. Loyola Ford, Inc., 124 Md.App. 560, 572 , 723 A.2d 502 , cert. denied, 353 Md. 473 , 727 A.2d 382 (1999). A material fact is one that will alter the outcome of the case, depending upon the factfinder’s resolution of the dispute. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); McGraw, 124 Md.App. at 573 , 723 A.2d 502 .

To generate a material factual dispute, the evidence adduced by the non-moving party must be more than “mere general allegations which do not show facts in detail and with precision.” Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993); see Goodwich v. Sinai Hosp., 343 Md. 185, 207 , 680 A.2d 1067 (1996). In determining whether there is a genuine factual dispute, the trial court must view the facts in the light most favorable to the non-moving party and construe all inferences reasonably drawn therefrom in favor of that party. See Beatty, 330 Md. at 739 , 625 A.2d 1005 ; McGraw, 124 Md.App. at 573 , 723 A.2d 502 ; Himelfarb v. Hartford Fire Ins. Co., 123 Md.App. 456, 462 , 718 A.2d 693 (1998), cert. granted, 352 Md. 398 , 722 A.2d 885 (1999).

Furthermore, if the evidence and the inferences therefrom are susceptible of more than one conclusion, the choice between those conclusions should not be made as a matter of law, but should be submitted to the trier of fact. See Goodwich, 343 Md. at 207 , 680 A.2d 1067 . In the absence of a dispute as to material fact, the reviewing court must decide “whether the [trial] court reached the correct legal result.” Chicago Title Ins. Co. v. Lumbermen’s Mut.

Cas. Co., 120 Md.App. 538, 547 , 707 A.2d 913 (1998); see Goodwich, 343 Md. at 204 , 680 A.2d 1067 ; Rosenblatt, 335 Md. at 69 , 642 A.2d 180 ; Beatty, 330 Md. at 737 , 625 A.2d 1005 ; Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990). Our review of a grant of summary judgment is generally limited to “the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); see Gross v. Sussex Inc., 332 Md. 247 , ⁷³⁵ 254 n. 3, 630 A.2d 1156 (1993); Hoffman v. United Iron & Metal Co., Inc., 108 Md.App. 117, 132 , 671 A.2d 55 (1996). Appellants contend that the court erred when it ruled, as a matter of law, that the decedent was contributorily negligent, or had assumed the risk, or that an agency relationship had been created between the decedent and Keefer that barred appellants’ claims.

Appellants also attack the court’s reliance on the content of the Answers in granting summary judgment. In this regard, appellants contend that the oath supporting Keefer’s Answers was defective under Md. Rules 1-304 and 2-501(c), and that the Answers violated the dead man’s statute, codified at Md.Code (1998 Repl.Vol.), § 9-116 of the Courts and Judicial Proceedings Article (“C.J.”). Appellants insist that, without the Answers, which should not have been considered, the evidence was insufficient to support summary judgment in favor of appellee. B. The Answers to Interrogatories Appellants acknowledge that there are several ways a party may “place before the court facts which ... show that [it] is entitled as a matter of law to the ruling [it] seeks,” Vanhook v. Merchants Mut.

Ins. Co., 22 Md.App. 22, 26 , 321 A.2d 540 (1974), including by affidavit, deposition, answers to interrogatories, and admissions of fact. Id. at 26-27 , 321 A.2d 540 . Relying on Md. Rules 1-304 and 2-501(c), 6 however, they contend that the oath supporting Keefer’s Answers was defec ⁷³⁶ tive, because appellee stated that the information was provided only to the “best of [appellee’s] knowledge, information, and belief.” Appellants also complain that certain statements in the Answers violated C.J. § 9-116, 7 which states: A party to a proceeding by or against a personal representative heir, devisee, distributee or legatee as such in which a judgment or decree may be rendered for or against them, ... may not testify concerning any transaction "with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.

Accordingly, in considering appellee’s summary judgment motion, appellants maintain that the court should have disregarded the content of the Answers. ⁷³⁷ Although appellants had ample opportunity to complain below that the form of oath of the Answers was defective, and that the dead man’s statute barred appellee’s reliance on the Answers, neither of these arguments was raised in the motion in limine, in appellants’ opposition to the motion for summary judgment, or during oral argument at the motions hearing. Instead, appellants focused on their contention that the Answers should be excluded because of appellee’s earlier reliance on his Fifth Amendment privilege. As these contentions have been raised for the first time on appeal, they are not preserved for appellate review, and we decline to consider them. See Md. Rule 8-131(a).

See also Gittin v. Haught-Bingham, 123 Md.App. 44, 48 , 716 A.2d 1063 (1998); Duckworth v. District Court of Maryland, 119 Md.App. 73, 75 , 703 A.2d 1350 (1998); Cole v. Sullivan, 110 Md.App. 79, 89 , 676 A.2d 85 (1996); Beeman v. Department of Health & Mental Hygiene, 107 Md.App. 122, 159 , 666 A.2d 1314 (1995). In reaching the conclusion that these claims are not preserved, we are guided by Guerassio v. American Bankers Corp., 236 Md. 500 , 204 A.2d 568 (1964). There, the appellants sought to overturn the trial court’s decision to grant summary judgment in favor of the appellee. To support their cause, the appellants argued, for the first time on appeal, that the affidavit in support of the appellee’s motion was defective.

Id. at 504-05 , 204 A.2d 568 . The Court of Appeals declined to consider that contention. It stated: [Ajppellants were required to raise whatever issues they desired to interpose to the motion at or before the time of hearing in the trial court by affidavit or deposition____ At any rate this question can not now be raised.... [AJppella/nts may not overturn a summary judgment by raising here an issue that was not plainly disclosed as a genuine issue in the trial court. Id. at 505 , 204 A.2d 568 (internal citations omitted)(emphasis added).

See also Fishman Const. Co. v. Hansen, 238 Md. 418, 424 , 209 A.2d 605 (1965)(holding that appellant’s challenge to ⁷³⁸ the form of the supporting affidavit could not be presented for the first time on appeal). What we said in Gittin v. Haught-Bingham, supra, 123 Md.App. at 51, 716 A.2d 1063 , mirrors our position here: Whatever limited discretion an appellate court may have to consider unpreserved issues pursuant to Md. Rule 8-131(a) such discretion should be exercised only