Hossainkhail v. Gebrehiwot

JAMES R. EYLER, Judge. On April 19, 1999, Hammed Hossainkhail, appellant, filed a complaint in the Circuit Court for Prince George’s County against Seyoum Gebrehiwot, Betty Gebrehiwot, and Nina Kirby, appellees. 1 Appellant alleged that he sustained personal injuries as a result of a motor vehicle accident that occurred on May 29, 1996, caused by the negligence of appellees. Specifically, the complaint alleged that Seyoum Gebrehiwot, acting as an agent of Betty Gebrehiwot, caused the accident by negligently striking appellant’s vehicle. Kirby then struck ⁷²² Seyoum Gebrehiwot’s vehicle, causing it to hit appellant’s vehicle a second time.

The following chronology of events is not complete. We have set forth only those matters that are pertinent to the issues before us. According to the docket entries, the circuit court issued summonses for all appellees on April 21, 1999, and reissued summonses for Seyoum and Betty Gebrehiwot on August 26, 1999, October 26, 1999, and February 18, 2000. On June 7, 2000, Seyoum and Betty Gebrehiwot filed an answer to the complaint. 2 On that same day, Seyoum and Betty Gebrehiwot propounded interrogatories and a request for production of documents to appellant.

On August 8, 2000, Kirby directed interrogatories, a request for the production of documents, and a notice of deposition to appellant. Despite various requests, appellant was never deposed because of his unavailability. On August 22, 2000, the court filed a scheduling order, mandating that all discovery be completed thirty days prior to the pre-trial conference set for December 15, 2000. In November 2000, with the consent of counsel and because of the unavailability of appellant, the pretrial conference was rescheduled for February 15, 2001.

Appellant failed to respond to appellees’ discovery requests. Seyoum and Betty Gebrehiwot notified appellant on three occasions that responses to their requests were overdue. On September 21, 2000, Seyoum and Betty Gebrehiwot filed a motion to compel discovery. On October 20, 2000, appellant’s counsel responded and stated that he. had been unable to contact appellant.

By order dated October 20, 2000, the court granted the motion to compel and ordered appellant to provide discovery responses to Seyoum and Betty Gebrehiwot within thirty days. Presumably anticipating inaction, Seyoum and Betty Gebrehi-wot’s counsel notified appellant’s counsel, by letter, of their ⁷²³ intention to file a motion to dismiss upon noncompliance with the court’s order. By letter dated November 22, 2000, counsel for Kirby notified appellant’s counsel that their discovery requests were delinquent and requested an explanation. Appellant failed to respond within thirty days from the date of the court’s order compelling discovery.

Pursuant to Rules 2-432 and 2-433, on December 13, 2000, Seyoum and Betty Gebrehiwot filed a motion to dismiss appellant’s entire case for failure to provide discovery and for violation of the court’s order. Again appellant’s counsel responded by citing unsuccessful attempts to contact appellant but maintaining that appellant had not abandoned his claim. By order dated January 4, 2001, docketed on January 18, 2001, the court dismissed appellant’s case with prejudice. Kirby did not file a motion to compel discovery or a motion to dismiss.

Appellant’s counsel, with the assistance of a private investigator, located appellant, apparently sometime prior to January 29, 2001. On that date, appellant filed answers to the written discovery requests by all appellees and a motion for reconsideration of the dismissal order. On February 9, 2000, Seyoum and Betty Gebrehiwot filed an opposition to appellant’s motion, asserting that dismissal was proper under Rule 2-433. On February 13, 2001, Kirby also filed an opposition.

On June 8, 2001, the court held a hearing and denied appellant’s motion for reconsideration. Appellant challenges that ruling on appeal. Discussion 1. The “motion for reconsideration” was not filed within ten days of the order of dismissal; thus, the time within which to note an appeal was not extended.

Appellant recognizes, therefore, that the propriety of the underlying judgment is not before us. See Md. Rule 8-202. A trial court has revisory power and control over a judgment upon motion of a party filed within thirty days after entry of such judgment. Md. Rule 2-585(a).

The issue before us is whether denial of ⁷²⁴ appellant’s motion for reconsideration was an abuse of discretion. See Wormwood v. Batching Sys., 124 Md.App. 695, 700-01 , 723 A.2d 568 (1999). “We consider the facts and the law solely to review the validity of the conclusion [the hearing judge] reached on the point.” New Freedom Corp. v. Brown, 260 Md. 383, 386 , 272 A.2d 401 (1971). We will not reverse the judgment of the hearing judge unless there is grave reason for doing so. Northwestern Nat.

Ins. Co. v. Samuel R. Rosoff, Ltd., 195 Md. 421, 434 , 73 A.2d 461 (1950). Our focus is on whether justice has not been done. Clarke Baridon v. Union Asbestos & Rubber Co., 218 Md. 480, 483 , 147 A.2d 221 (1958); Wormwood, 124 Md.App. at 700 , 723 A.2d 568 ; B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co., 73 Md.App. 530, 537 , 535 A.2d 492 (1988) (citations omitted), rev’d on other grounds, 324 Md. 147 , 596 A.2d 640 (1990). 2.

Appellant argues that the circuit court did not exercise discretion as it was required to do, and the ruling is reversible on that basis. We disagree. Discretion signifies choice. See Hart v. Miller, 65 Md.App. 620, 626 , 501 A.2d 872 (1985).

The court demonstrated its choice, finding: [I]t’s been clear, from the court’s review of the file, this is a 1996 accident. [Appellant’s counsel] has set forth his contention that liability is not really in dispute. It’s obvious, from the court, liability is in dispute. It’s also clear, from the court’s review of the file and the arguments presented, that [appellant’s counsel] was less than successful in attempting to contact and locate [appellant] up through December of last year, and has proffered that his client has had some personal domestic issues, and, as such, basically, put the prosecution of this matter on the “back burner,” for want of a better term. The court, upon consideration of the arguments that have been presented, the court noting that, according to the deadline for discovery, which was up back in November of 2000, and weighing the equities presented, the court, at this ⁷²⁵ time, denies [appellant’s] motion for reconsideration of its January order. “If the judge has discretion, he must use it and the record must show that he used it.” Nelson v. State, 315 Md. 62, 70 , 553 A.2d 667 (1989).

The court specifically found that (1) liability of the parties was in dispute; (2) appellant was at fault for the delay; (3) appellant’s excuse was insufficient; and (4) the deadline for discovery expired in November, 2000. The court denied the motion for reconsideration after hearing and considering arguments from all counsel, reviewing the case file, and weighing the equities. C.f. Hart, 65 Md.App. at 627 , 501 A.2d 872 (no exercise of discretion when court consistently applies uniform policy).

The record clearly illustrates an exercise of judicial discretion. 3. In the alternative, appellant argues that the court abused its discretion. When a court exercises its discretion by balancing and weighing the rights, interests, and reasons of the parties, the court is not required to discuss each factor considered. The court’s exercise of discretion is presumed correct until the attacking party has overcome such a presumption by clear and convincing proof of abuse.

Langrall, Muir & Noppinger v. Gladding, 282 Md. 397, 401 , 384 A.2d 737 (1978). To overcome this presumption, appellant asserts that: (1) his conduct was not willful or contumacious; (2) he had a valid excuse; and (3) appellees were not prejudiced. Appellant’s argument that his behavior was not willful or contumacious is without effect. The power to impose sanctions is not dependent on a finding that the defaulting party acted willfully or contumaciously.

See North River Ins. Co. v. Mayor & City Council of Baltimore, 343 Md. 34, 86 , 680 A.2d 480 (1996); see also Scully v. Tauber, 138 Md.App. 423, 432-33 , 771 A.2d 550 (2001) (and cases cited therein). Before we reach appellant’s second and third arguments, we note that the following factors are used to guide a trial court’s decision to impose sanctions: (1) whether the ⁷²⁶ disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; and (5) whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance. Taliaferro v. State, 295 Md. 376, 390-91 , 456 A.2d 29 (1988).

See Warehime v. Dell, 124 Md.App. 31, 45 , 720 A.2d 1196 (1998); Heineman v. Bright, 124 Md.App. 1, 8-11 , 720 A.2d 1182 (1998). The factors often overlap and do not lend themselves to a compartmental analysis. Taliaferro, 295 Md. at 391 , 456 A.2d 29 . In light of the nature of the discovery violation, the timing of the disclosure, and the reason for delay, the circuit court did not abuse its discretion in finding appellant’s excuse insufficient.

Maryland Rules 2-421 (Interrogatories) and 2-422 (Discovery of Documents) impose a thirty day deadline from the date of receipt of discovery requests to respond. Appellant was served with discovery requests on June 7 and August 8, 2000, yielding deadlines in July and September, 2000. Compliance was not achieved until January 29, 2001. The delay was in direct violation of the rules governing discovery, and with respect to Seyoum and Betty Gebrehiwot, the court’s express order compelling discovery.

Appellant’s disregard of discovery deadlines was a substantial violation. Appellant had a duty to move the case forward. See Shelton v. Kirson, 119 Md.App. 325, 332 , 705 A.2d 25 (1998). Appellant shirked this duty and offered no good cause for his dilatory conduct.

Appellant summarily attributed his absence to personal problems but made no showing why he could not and did not keep in touch with counsel when he obviously knew he had a case pending. The court may grant little weight to appellant’s unsupported explanation for the delay. See Lone v. Montgomery County, 85 Md.App. 477, 486 , 584 A.2d 142 (1991). This excuse was found to be insufficient.

Appellant contends that appellees were not prejudiced, asserting that appellees had copies of medical bills, records, and police reports prior to the filing of the case, that discovery was completed on January 29, 2001, and that liabili ⁷²⁷ ty was not really in dispute. Appellant misconstrues appel-lees’ position and misses the point. 3 The fact that appellees obtained some relevant bills, records, and reports informally, independent of their discovery requests, does not diminish the need for discovery. “The purpose of discovery is to ‘eliminate, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to the litigation.’ ” Warehime, 124 Md. App. at 48 , 720 A.2d 1196 (quoting Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13 , 174 A.2d 768 (1961)). Without discovery from appellant, appellees did not know whether their information was complete or accurate. Clearly, appellant’s failure of discovery could have impinged on the outcome of the trial.

Appellant’s response to written discovery requests on January 29, 2001, in the discretionary view of the circuit court, was too little too late. 4 See North American Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986) (“Last minute tender of documents does not cure the prejudice to opponents.... ”); Warehime, 124 Md.App. at 49 , 720 A.2d 1196 (absence of a set trial date does not equate with a lack or prejudice, nor does it necessarily justify an extension of the discovery period). Appellant was put on notice of the failure of discovery throughout the course of litigation — several letters were sent to appellant’s counsel, a motion to compel was filed, an order compelling discovery was issued, and a motion to dismiss was filed. There was sufficient opportunity to comply with discovery prior to the order of dismissal. Appellant relies on Hart v. Miller, 65 Md.App. 620 , 501 A.2d 872 (1985), which is distinguishable from the facts before us.

In Hart , the plaintiff complied with discovery after a motion to dismiss had been filed but before the trial court heard arguments on the matter. Hart, 65 Md.App. at 622-23 , 501 A.2d 872 . Here, appellant did not comply with discovery