Hadid v. Alexander

Liss, J., delivered the opinion of the Court. On August 23, 1978, appellant, Mohamed Anwar Hadid, was arrested in the District of Columbia, on a-warrant issued in Montgomery County, Maryland, on a charge of false pretense (bad check). Appellant contacted appellee, Harry Toussaint Alexander, an attorney admitted to practice in the District of Columbia, who agreed to represent him. The next day appellant, with appellee as counsel, appeared before a Superior Court judge in the District and was released.

On September 20, 1978, a Montgomery County magistrate released the appellant on an unsecured $10,000.00 bond. As a result of subsequent events appellant and his wife initiated an action in the Circuit Court for Montgomery County, in August, 1980, against Alexander, alleging legal malpractice, deceit, intentional infliction of emotional distress, and injury to appellant’s marital relationship, arising out of the appellee’s representation of the appellant in the criminal proceedings. ³⁴⁶ Both appellant and appellee, after the suit was filed, began a series of legal moves which culminated in the case being set for trial. The trial, originally scheduled in the District Court on the criminal charge, for November 20, 1978, was twice postponed at appellant’s request. At the time the second request for continuance was granted the presiding judge noted "no more continuances.” Appellant at trial of the legal malpractice suit testified that in April of 1979 he telephoned Alexander to confirm the trial date of April 23, 1979.

Alexander advised him he was ill and that he would secure a continuance. Appellant contended Alexander did not inform him the continuance might be denied nor did Alexander suggest he hold himself in readiness in case the continuance was denied. The records of the District Court indicate that on April 20, 1979 Alexander moved for a continuance based upon his own (Alexander’s) illness. In any case, appellant did not appear and a bench warrant was issued for his arrest.

The testimony was in sharp conflict as to whether appellant was notified to appear, his reasons for failing to appear, and whether appellant was ever advised of the issuance of a bench warrant. Eventually, appellant was arrested at his home on the bench warrant. He was taken to the District of Columbia Jail, booked, fingerprinted and incarcerated. Appellant employed local counsel in Montgomery County and the criminal charge in the District Court was resolved in favor of appellant.

It was after the disposition of the criminal charge that this suit for legal malpractice was filed. Trial of the case resulted in four days of hotly disputed testimony and, at the conclusion of appellant’s case in chief, directed verdicts were granted on the counts alleging deceit and intentional infliction of emotional distress. At the conclusion of all the testimony the case was submitted to the jury and it returned a verdict in favor of the appellee. It is from these judgments and numerous rulings on the evidence that the appellant has filed this appeal.

The issues to be determined by this appeal are: I. Whether admission into evidence of documents and witness testimony, where the ³⁴⁷ proffering party failed to produce those documents or supply information regarding that witness during discovery procedures, constituted reversible error by the trial court.

II

Whether the trial judge committed reversible error when he refused to hear a motion to strike counterclaim, prior to the start of the trial.

III

Whether the lower court committed reversible error when it refused to allow an expert witness to answer hypothetical questions.

IV

Whether the trial judge committed reversible error when he accepted into evidence a transcript of a District Court proceeding which was not authenticated and was not certified to be a true test copy. V. Whether the trial judge committed reversible error when he admitted into evidence a court jacket of a case from the District Court for Montgomery County, Maryland.

VI

Whether the trial judge committed reversible error when he gave an instruction on contributory negligence.

VII

Whether the lower court committed reversible error by denying appellant’s motion for summary judgment on the counterclaim.

VIII

Whether the lower court committed reversible error when it denied appellant’s motion for release of security for costs. I. Although appellant has presented this question in his brief in three parts, we concluded they should be considered together, as they are all controlled by the basic issue, i.e., what sanctions should have been imposed by the lower court because of appellee’s failure to comply with discovery requests. ³⁴⁸ On May 18, 1982, appellant filed a Notice of Deposition notifying Alexander to appear for a deposition and produce, inter alia, "Any and all documents in your possession relating to the case of State of Maryland v. Hadid, District Court No. 320466-78 ... memoranda or notes of any telephone calls between you and any other person referring to or relating in any way to State of Maryland v. Hadid. . . Any and all documents which you intend to use at trial in the above cause.” Alexander failed to appear. An order compelling discovery, pursuant to Rule 422, Maryland Rules of Procedure, was issued, requiring Alexander to produce "... all the documents designated in the Notice of Taking Deposition. ...” Alexander again failed to appear.

The court then ordered him to appear for the deposition and produce the designated documents on June 21, 1982, two days prior to trial. At the deposition, in response to a request for notes of any telephone calls relating to appellant’s criminal case, Alexander replied that he would provide all documents by five o’clock that afternoon and that "if I have that, it’s in the papers I will send you.” When asked for all of the documents he intended to use at trial, Alexander replied that he would supply them by five o’clock and that, in any event, they were listed in his pretrial statement. Alexander did produce certain documents, but did not produce any memoranda or notes of telephone calls allegedly made to Mr. Alexander’s office referring to appellant’s criminal case. When asked if there were any other documents he might use at trial, he answered, "I think I’ve [exhausted] it.” When trial began on June 23, 1982, Alexander never notified appellant or his counsel that any documents had been found which fell within the scope of the deposition document request, and did not include any memorandum of a telephone call in his list of pretrial exhibits.

At trial, Alexander offered into evidence a memorandum of a telephone call allegedly made by appellant’s brother and received by Mr. Alexander’s office which stated that appel ³⁴⁹ lant could not appear for the April 23, 1979 trial because he was ill. Despite objection by appellant’s counsel, the trial judge permitted the alleged memorandum of the phone call from appellant’s brother to be read into evidence. The introduction of the memorandum was prejudicial to appellant since the impression given by the information in the alleged telephone message was that appellant failed to appear at trial for his own personal reasons, rather than because he had been notified that Alexander would seek a continuance due to Alexander’s illness. That the jury was troubled by this conflict is evidenced by the fact that it returned its verdict in favor of Alexander after it requested a clarifying instruction on contributory negligence.

At the deposition, Alexander testified that all of his witnesses were listed "in the pretrial submission. If there are any additions or substitutions, I will present them.” Agnes Alexander, daughter of the appellee, was not listed in appellee’s pre-trial statement, nor was any notice given of appellee’s intention to call her as a witness. At trial Alexander called his daughter as a witness in his behalf and over objection she was permitted to testify by the trial judge. Except for the parties to the suit, Ms. Alexander was the only witness called to testify on behalf of the appellee.

We are not impressed with appellee’s contention that she was an "impeachment” witness whose identity could not have been determined prior to trial. Appellee elicited from his daughter extensive testimony which was highly prejudicial to appellant’s case. Appellee’s conduct throughout the deposition proceedings was calculated to deny appellant a fair opportunity to prepare his case and avoid the surprises deposition procedures are supposed to prevent. When appellee finally appeared for deposition on June 21, 1982, two days before trial, he was requested to produce all documents he proposed to introduce at trial.

He produced a limited number of documents and stated under oath that these were all the documents he intended to introduce. In spite of this affidavit, on the final day of trial after all parties ³⁵⁰ had rested, Alexander submitted for introduction into evidence a letter allegedly written by the Medical Records Librarian of George Washington University Hospital which indicated there was no record of the appellant ever having been admitted to the hospital as a patient. Appellant had testified that the original trial date in the District Court of Montgomery County had been continued because of a medical problem for which he received treatment at the hospital. In spite of appellee’s failure to comply with the deposition rules and the basic rules of evidence the trial court permitted the admission of the letter and it was read to the jury.

It is clear to us that the trial court was in error in admitting the document into evidence. It is a well established rule of law that no documentary evidence other than business records may be allowed into evidence unless the document is properly authenticated. Schutz v. Breeback, 228 Md. 179 (1962). Unless it is a self-authenticating document, some witness must appear and testify as to what the document is.