Powell v. Breslin

HARRELL, J. This case has a lot of moving parts. This is the second time it has reached this Court, without reaching the merits of its underlying medical malpractice claims. I. FACTS AND PROCEDURAL HISTORY While under the care of Dr. Jeffrey R. Breslin (employed by Drs. Kremen, Breslin & Fraiman, P.A.), Jackie D. Powell, the decedent and father of Ronald L. Powell, 1 was injured allegedly in 2002 while at Good Samaritan Hospital in Baltimore.

The asserted cause of the injury and ultimate death in 2004 of Mr. Powell was medical negligence and lack of informed consent in the administration by Dr. Breslin (and others) of epidural anesthesia. ⁵⁷ Powell filed on 30 July 2004 a Statement of Claim (commencing what we refer to as Powell I) with the Maryland Health Care Alternative Dispute Resolution Office (“HCA-DRO”), together with a Certificate of Qualified Expert and Report (“Certificate”), pursuant to Md.Code (1974, 2006 Repl. Vol.2010 Supp.), Courts and Judicial Proceedings Article (“CJP”) § 3-2A-04(b), 2 and served notice of intent to waive arbitration. The original Statement of Claim named as defendants a Dr. Wolf, Hunt Valley Anesthesia Associates, P.A., and Good Samaritan Hospital. Powell amended his claim twice: once later in 2004 to add two negligence counts against Good Samaritan, and a second time, in 2005, to name Dr. Breslin and his professional association, Drs.

Kremen, Breslin & Fraiman, P.A. (Dr. Breslin and the P.A. shall be referred to sometimes as Appellees hereafter), as additional defendants. Along with the second amended claim, Powell filed another Certificate and a supporting report by Dr. Ronald E. Burt, a board certified anesthesiologist. In view of the notice of intention to waive arbitration before the HCADRO, jurisdiction over the second amended claim was transferred to the Circuit Court for Baltimore City on 8 August 2005.

A deposition of Dr. Burt revealed that he was unable to attest to the applicable standard of care for vascular surgeons, such as Dr. Breslin, because he lacked any clinical, academic, or expert experience in vascular surgery. Because Dr. Burt was Appellant’s only standard of care expert witness on this point, Appellees moved for summary judgment. After a hearing on the motion, Judge Kaye Allison of the Circuit Court issued a Memorandum Opinion and Order granting summary judgment to Appellees on 24 January 2007. 3 After the claims ⁵⁸ against Dr. Wolf and Hunt Valley Anesthesia Associates, P.A., were resolved through settlement and they were dismissed from the case, Powell appealed the grant of summary judgment in favor of Appellees to the Court of Special Appeals on 27 March 2009. The intermediate appellate court held that, when a Certificate is insufficient as a matter of law under CJP § 3-2A-04(b) because it was signed by an expert who was not qualified to attest to the standard of care required by CJP § 3-2A-02(c), the appropriate remedy is to dismiss the suit against the Defendants, without prejudice.

Powell v. Breslin, 195 Md.App. 340, 361 , 6 A.3d 360, 372 (2010). We affirmed that judgment in Breslin v. Powell, 421 Md. 266, 298-99 , 26 A.3d 878, 898 (2011) 4 (“Powell I ”), and directed ultimately the vacation of Judge Allison’s grant of summary judgment and issuance by the trial court of an order compliant with our holding. Id. at 299 , 26 A.3d at 898 . On 28 September 2011, Judge W. Michel Pierson of the Circuit Court, on remand in Powell I, entered an order dismissing the complaint, without prejudice.

By that time, however, the statute of limitations had expired on the underlying merits of the substantive claims at the heart of the amended complaint in Powell I. See CJP § 5-109. 5 ⁵⁹ We turn back the clock at this point in this opinion to 2007 to pick up the skein of the relevant events. Perhaps sensing the potential for a limitations problem on the horizon, Powell on 2 February 2007 (barely one week after Judge Allison’s grant of summary judgment in Powell I) filed a second, identical Statement of Claim (which we shall refer to as the inception of “Powell H”) as had been filed initially with the HCADRO in Powell I. Instead of requesting the HCADRO to stay Powell II pending the final outcome of Powell I, Powell filed a Certificate and waived arbitration in Powell II on 27 July 2007. The claim was transferred to the Circuit Court on 27 August 2007. 6 In response to Powell’s complaint in Powell II, Appellees filed on 5 October 2007 in the Circuit Court a Motion for Summary Judgment. Appellees claimed that the doctrine of res judicata, relying on the outstanding and facially viable and effective trial court final adjudication of Powell I (which, at that time, was on appeal), barred the relitigation in Powell II.

After a hearing on 26 November 2007, Judge Pierson held the summary judgment motion sub cuña, until 21 March 2008, at which time he granted Appellees’ Motion for Summary Judgment, noting that a relitigation of one claim is barred by a final judgment on the merits of the same claim, “regardless of whether the prior decision was legally correct.” 7 The Clerk of the Circuit Court, however, failed to mail copies to the parties of Judge Pierson’s order granting sum ⁶⁰ mary judgment in Powell II. 8 Therefore, pursuant to the Court’s revisory power over a judgment under Md. Rule 2-535(b), 9 Judge Evelyn Omega Cannon vacated Judge Pierson’s 21 March 2008 order and granted summary judgment anew on 3 November 2008 for the same reasons underlying Judge Pierson’s order. Powell appealed the final judgment in Powell II on 10 December 2008, which resulted in concurrent appeals pending before the Court of Special Appeals: Ronald L. Powell, et al. v. Jeffrey Breslin, et al., 195 Md.App. 340 , 6 A.3d 360 (2010) (Powell I), and Ronald L. Powell, et al v. Jeffrey Breslin, et al., No. 2316, September Term, 2008 (Powell II). 10 Although granted an extension of time to file an Appellant’s brief in Powell II, Powell did not do so. On 7 July 2009, Powell dismissed his appeal in Powell II. Almost three years after Judge Cannon’s entry of final judgment in Powell II, and more than two years after Powell dismissed voluntarily his appeal in that case, Powell filed on 12 October 2011 in the Circuit Court in Powell II a Motion to Reopen Case and Vacate Judgment.

He requested that the Circuit Court vacate Judge Cannon’s grant of summary judgment, pursuant to Md. Rule 2-535, based on the hindsight that her reliance on the preclusive effect of Judge Allison’s decision in Powell I was faulty because Judge Allison’s decision was found on appeal to be erroneous. Appellees opposed that Motion, arguing that Powell failed to satisfy the requirements of Md. Rule 2-535 to prove fraud, mistake or irregularity to ⁶¹ justify reopening the enrolled final judgment in Powell II. Judge Cannon denied the Motion on 17 November 2011. Powell appealed to the Court of Special Appeals.

On 1 March 2012, while the matter was pending still in the intermediate appellate court, Powell filed a Petition for Writ of Certiorari with this Court. That petition posed two questions for our review: 1. Should a case that has been dismissed solely because of the preclusive effect of an earlier judgment in another case be reopened if the earlier judgment is vacated? 2. If a civil case that should have been dismissed without prejudice is erroneously dismissed with prejudice and the error is not corrected until after the limitations period has expired, does the plaintiff have any recourse?

We granted Powell’s petition and issued a writ of certiorari on 20 April 2012, Powell v. Breslin, 425 Md. 396 , 41 A.3d 571 (2012), before the intermediate appellate court decided the appeal. 11 In his petition for writ of certiorari, Powell maintained that, unless we order the trial court to reopen Powell II on essentially a novel equitable basis, or interpret Maryland Rule 2-535(b) to conclude that there was fraud, mistake or irregularity in Judge Cannon’s refusal to reopen Powell II, Appellant will lose the opportunity obtained by prevailing in Powell I. We hold, first, that Judge Cannon did not err as a matter of law in granting summary judgment on 12 November 2008 ⁶² because, at the time Judge Cannon entered final judgment in Powell II, the doctrine of res judicata barred the maintenance of the litigation of Powell II based on Judge Allison’s as-yet-then-unreversed 24 January 2007 grant of summary judgment in Powell I. We are unmoved sufficiently to deviate from the appropriate application of res judicata principles here, where Powell failed to seek available alternative procedural means to preserve his underlying claims before Powell I and Powell II became final judgments. Second, in the absence of clear and convincing evidence that fraud, mistake or irregularity occurred in the proceedings leading to Judge Cannon’s denial of Powell’s revisory motion, we hold that there are no grounds to vacate Judge Cannon’s ruling under Maryland Rule 2-535(b). We hold, therefore, that Judge Cannon did not abuse her discretion in denying Powell’s Motion to Reopen Case and Vacate Judgment.

II

STANDARDS OF REVIEW There are two standards of appellate review relevant to our consideration of this case. As regards Powell’s challenge to Judge Cannon’s denial of his Md. Rule 2-535(b) motion, abuse of discretion is the benchmark. Das v. Das, 133 Md.App. 1, 15 , 754 A.2d 441, 449 (2000). Abuse of discretion occurs “where no reasonable person would take the view adopted by the [trial] court,” or when the court acts “without reference to any guiding rules or principles.” North v. North, 102 Md.App. 1, 13-14 , 648 A.2d 1025, 1031 (1994).

We will find an abuse of discretion when the ruling is “clearly against the logic and effect of facts and inferences before the court[,]” when the decision is “clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result[,]” when the ruling is “violative of fact and logic[,]” or when it constitutes an “untenable judicial act that defies reason and works an injustice.” Id. (internal quotation marks omitted). As for our review of Judge Cannon’s grant of summary judgment, where there is no genuine dispute of material fact, we consider “whether the trial court was legally correct.” ⁶³ Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533 , 836 A.2d 655, 669 (2003) (quoting Goodwich v. Sinai Hosp. of Balt, Inc., 343 Md. 185, 204 , 680 A.2d 1067, 1076 (1996)).

III

DISCUSSION 1. The Doctrine of Res Judicata Precludes the Litigation of Powell II We consider first the grounds on which Judge Cannon granted Appellees’ Motion for Summary Judgment in Powell II, in order to determine whether Appellees were entitled to summary judgment as a matter of law in 2008 — at a time when the shelf-life of Judge Allison’s grant of summary judgment in Powell I was valid, but prior to reversal of that judgment. See Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 71 , 782 A.2d, 807, 833 (2001). Appellees assert that they were entitled to judgment as a matter of law because Judge Allison’s order in Powell I barred the relitigation of Appellant’s identical claims in Powell II.

We hold that the doctrine of res judicata, as explicated in our precedents, supports Judge Cannon’s judgment. Res judicata is an affirmative defense that precludes the same parties from relitigating any suit based upon the same cause of action because the second suit involves a judgment that “is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.” See Alvey v. Alvey, 225 Md. 386, 390 , 171 A.2d 92, 94 (1961); see also Mackall v. Zayre Corp., 293 Md. 221, 228 , 443 A.2d 98, 102 (1982) (stating that “if a proceeding between parties involves the same cause of action as a previous proceeding between the same parties, the principle of res judicata applies and all matters actually litigated or that could have been litigated are conclusive in the subsequent proceeding”). In Maryland, the doctrine of res judicata precludes the relitigation of a suit if (1) the parties in the present litigation are the same or in privity with the parties to the ⁶⁴ earlier action; (2) the claim in the current action is identical to the one determined in the prior adjudication; and (3) there was a final judgment on the merits in the previous action. Colandrea v. Wilde Lake Cmty.

Ass’n, Inc., 361 Md. 371, 389 , 761 A.2d 899, 908 (2000); Cicala v. Disability Review Bd., 288 Md. 254, 263 , 418 A.2d 205, 211 (1980); Cook v. State, 281 Md. 665, 668 , 381 A.2d 671, 673 (1978). The overarching purpose of the res judicata doctrine is judicial economy. Colandrea, 361 Md. at 391 , 761 A.2d at 909 (noting that the res judicata doctrine is applied to “avoid the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions”). The same parties and the same claims are raised in Powell I and Powell II.

Id. at 389, 761 A.2d at 908 . Judge Allison’s grant of summary judgment in Powell I was a final judgment on the merits at the time that it was entered 12 and, therefore, was conclusive as to the matters decided in that case, as well as to “all matters which with propriety could have been litigated in the first suit.” See Alvey, 225 Md. at 390 , 171 A.2d at 94 . Hence, Appellees were entitled to summary judgment as a matter of law in Powell II at the times Judge Pierson and Judge Cannon granted summary judgment because the claims raised in that case were disposed of by the Circuit Court’s then-valid adjudication of Powell I. See Fledderman v. Fledderman, 112 Md. 226, 239 , 76 A. 85 (1910). This conclusion is consistent with our precedents applying the doctrine of res judicata.

As Judge Pierson observed during the motion hearing over which he presided, even if a ruling in an original suit was found later to be in error, “[t]he mere fact that the prior ruling is wrong does not deprive it of res judicata effect.” See Garrett Park v. Montgomery Cty. Council, 257 Md. 250, 256-58 , 262 A.2d 568, 571-72 (1970) (res ⁶⁵ judicata applied based on the decision of an administrative agency even if that decision was based on erroneous testimony or mistake); Fertitta v. Brown, 252 Md. 594, 599-600 , 251 A.2d 212, 214-15 (1969) (res judicata barred appellant’s declaratory relief because the trial court’s adjudication was a binding final judgment on the merits, whether or not the trial judge’s reasons for denying relief were “sound”); Lusby v. Baltimore Transit Co., 199 Md. 283, 285 , 86 A.2d 407, 408 (1952) (res judicata applies even to an erroneous ruling, as long as the doctrine’s requirements are met); Gonsalves v. Bingel, 194 Md.App. 695, 719 , 5 A.3d 768, 783 (2010) (holding that res judicata applies even when a trial court’s denial of leave to amend was erroneous); Reed v. Allen, 286 U.S. 191, 198-99 , 52 S.Ct. 532 , 76 L.Ed. 1054 (1932) (where the U.S. Supreme Court declined to disturb a final judgment that was based on the res judicata effect of a decision subsequently reversed on appeal because of the potential risks to finality of judgments). There is another reason why the grant of summary judgment in Powell II, based on the grounds of res judicata, was warranted. At the time that Judge Pierson conducted a hearing on Appellees’ motion for summary judgment in Powell II, Powell was continuing to litigate concurrently an identical claim in Powell I, as he had filed a Motion to Alter or Amend Judgment Nunc Pro Tunc on 29 October 2007 in Powell I, which yet had to be decided by Judge Allison (she denied it ultimately on 11 March 2008).

Prior to filing the October 2007 motion seeking retrospective relief, Powell had filed also a Motion for Reconsideration of the grant of summary judgment in Powell I, which had been denied also by Judge Allison. Such a multiplicity of litigation epitomizes the very hazards that the doctrine of res judicata seeks to avoid: the costs of time, the waste of judicial resources, and the increased possibility of inconsistent judicial decisions and action. See Colandrea, 361 Md. at 387 , 761 A.2d at 907 . Judicial economy helps draw the necessary line.

Otherwise, as Judge Pierson reiterated aptly during the November 2007 hearing on Appellees’ motion for summary judgment, “a litigant could file endless ⁶⁶ motions for reconsideration until the cows come home.” Judge Cannon, therefore, granted properly Appellees’ Motion for Summary Judgment on 3 November 2008, and we decline to disturb that ruling. 2. Other Available Means to Preserve Powell’s Substantive Claims Were Not Employed Between the Circuit Court’s 2007 summary judgment adjudication in Powell I and the reversal of that judgment on appeal in 2010-11, Powell commenced Powell II by filing a second Statement of Claim with HCADRO and the complaint with the Circuit Court, apparently in an effort to forestall the expiration of his substantive claims on the merits due to operation of the applicable statute of limitations. Powell, however, did not seek any of several available procedural opportunities to preserve his claims regarding Judge Pierson’s/Judge Cannon’s rulings in Powell II, and thus did not forestall a conclusive judgment in Powell II, while pursuing the appeal in Powell I. Commentators have noted for practitioners the same or similar conundrum as Appellant faced in this case, and recommended several tactical strategies to protect