Reed v. Baltimore Life Insurance

DAVIS, Judge. The events giving rise to this appeal began when appellant Kevin Reed brought suit in the Circuit Court for Montgomery County against his former employer, Baltimore Life Insurance Company (BLIC), appellee. 1 Appellant’s complaint included allegations of defamation, intentional infliction of emotional distress, and tortious interference with business relations. BLIC filed a counterclaim against appellant for breach of contract, breach of fiduciary duty, and fraud. Unfortunately, before we are able to address the essence of this appeal, we ⁵⁴² must sort out the myriad of procedure and discovery disputes raised by the parties.

Prior to trial, appellees filed a motion for sanctions against appellant’s counsel, alleging that interrogatories and document requests were not timely answered. Appellant’s counsel opposed the motion and filed a cross-motion for sanctions, arguing that he declined to provide discovery because BLIC failed to answer its “first” set of interrogatories. 2 In an attempt to keep the proceedings from stalling, the court did not sanction either party but found that appellant did not respond to appellees’ discovery requests while appellees had responded timely. From June 22 to June 26, 1998, the court (Kavanaugh, J.) conducted a five-day jury trial. At the close of appellant’s evidence, the court granted judgment to Griffin on all claims against him and to BLIC on the claim of intentional infliction of emotional distress.

The remaining claims were submitted to the jury, which found in favor of BLIC on the defamation and interference with business relations charges. With respect to the counterclaims, the jury concluded that appellant committed fraud against BLIC, awarding it $2,298 in economic damages. Furthermore, the jury awarded BLIC $2,400 in noneconomic damages as a result of its determination that appellant breached his fiduciary and contractual duties to BLIC. The court entered final judgment on July 2, 1998.

Appellees filed a supplemental motion for sanctions against appellant’s counsel on July 10, 1998, renewing their claims of discovery violations. In addition, appellees requested sanctions for the alleged bad faith of appellant in continually asserting that BLIC did not provide discovery, pursuing un ⁵⁴³ substantiated claims against Griffin, and pursuing the intentional infliction of emotional distress claim against BLIC. Appellees sought costs and attorney fees related to the preparation of pleadings with respect to the aforementioned allegations. Appellant filed a response to the motion on July 24, 1998, and the court later set January 20, 1999, as the date for a hearing on the motion. 3 Meanwhile, on the same day appellant responded to appellees’ motion for sanctions, he timely filed a notice of appeal.

On December 16, 1998, however, this Court dismissed the appeal because the record did not include a trial transcript. When thirty days passed, we issued a mandate on January 15, 1999, disposing of the action. Four days later, appellant filed a motion for reconsideration. In a February 16, 1999 order, we granted the motion, recalling our previous mandate, reinstating the appeal without prejudice, and instructing appellant to file his brief by March 31,1999.

On March 5, 1999, appellant ordered from the Montgomery County Technical Services Office the trial transcript, which was ready for pick-up on the afternoon of Friday, March 12, 1999. Appellant sent a messenger to obtain the transcript, but claims that the messenger was unable to return until after business hours. As a result, appellant did not receive the transcript until Monday, March 15, 1999. On Wednesday, March 17, 1999, appellant sent the transcript for copying, which required three days.

Appellant picked up the transcript on Tuesday, March 23,1999, and was ready to deliver it, along with the proposed record extract, on Wednesday, March 24,1999, when it was discovered that pages were missing from the copies. The subsequent reorganization of the transcripts consumed more than two additional days. Because the transcripts and extract were not in final form until the evening of ⁵⁴⁴ Friday, March 26,1999, they were not able to be sent to BLIC until Monday, March 29,1999. Although appellant claims that the transcripts and extract were mailed, the accompanying letter signed by appellant’s counsel refers only to the extract.

Appellant, meanwhile, filed a motion to extend the time for filing his brief. This Court granted the motion and ordered the filing of the brief by April 5, 1999. Pursuant to the order, on April 5, 1999, appellant filed his brief, presenting for our review five questions, which we restate as follows: I. Did the trial court err by denying appellant’s motion for recusal?

II

Did the trial court err by denying appellant’s motion to disqualify one of appellees’ attorneys?

III

Did the trial court err by denying appellant’s motion for a mistrial?

IV

Did the trial court err by allowing a witness to testify in violation of the sequestration rule? V. Did the trial court err by submitting the fraud count from appellees’ counterclaim to the jury? On April 8, 1999, presumably upon receiving appellant’s brief, appellees complained to the Clerk of this Court that they had not yet received a trial transcript from appellant. Also on that day, appellant filed a motion to supplement the record with the trial transcript, because the record filed following the original notice of appeal did not contain the trial transcripts.

On April 9, 1999, appellees received the transcript and filed a motion to dismiss the appeal, asserting that appellant’s failure to adhere to appellate filing procedures had prejudiced them. 4 We denied appellees’ April 9, 1999 motion to dismiss the appeal and granted appellant’s motion to supplement the record. On May 5, 1999, appellees filed their ⁵⁴⁵ brief, which included essentially a restatement of their earlier motion to dismiss the appeal. For the reasons set forth herein we affirm the circuit court’s judgment. FACTS From March 1995 to July 6,1996, BLIC employed appellant as a life insurance sales agent in the company’s Baltimore district office.

BLIC issues principally three types of policies: term insurance, whole life, and universal life. Early in 1996, BLIC learned that many of the universal life policies, which provide a flexible combination of term insurance and savings, were lapsing, causing customers to lose their coverage. As a pro-active attempt to solve the problems, BLIC initiated, in May 1996, a program to survey its customers. After initiating the program, BLIC learned that approximately thirty percent of the universal life policies written by the company’s Baltimore district office contained abnormal sales problems.

Consequently, BLIC conducted a more detailed investigation led by Tom Stallings, a quality service officer. The investigation discovered two forgeries in paperwork submitted by appellant. In addition, a policyholder complained to the company about the manner in which appellant had handled his account. After Stallings met with Damian Salve, regional vice president and superior to the Baltimore district manager, and Gary Ray, vice president of sales, they determined that there was sufficient proof of violations to justify terminating appellant’s employment.

They subsequently consulted with Mark Ewing, senior vice president of administration, who authorized the dismissal. As a result, appellant was dismissed on July 5,1996. After further investigation of its Baltimore office, BLIC learned of numerous misrepresentations, forgeries, and fraudulent practices involving accounts serviced by appellant. Appellee Griffin worked under Stallings during the investigation and testified at trial that appellant engaged in improper practices by increasing the face value of universal life policies while informing clients that the premium would not need to be ⁵⁴⁶ increased.

Thus, the cash value of the policy would be depleted until no cash was left, causing the policy to lapse and end the client’s coverage. Second, appellant encouraged policyholders who were “riders” on another’s insurance policy to convert the coverage into their own policies. Appellant then would withdraw money from the primary holder’s policy because the additional premium was no longer necessary. As a result of these sales practices, appellant earned additional commissions and bonuses from BLIC.

On May 1, 1997, appellant filed suit in the circuit court, bringing the aforementioned claims against BLIC. The discovery disputes, trial, and this appeal ensued. MOTION TO DISMISS Before turning to the merits of appellant’s appeal, we shall address appellees’ motion to dismiss the appeal. In support of their motion, appellees assert that their ability to prepare a brief was prejudiced by appellant’s failure to provide them with a copy of the trial transcript until April 9, 1999. 5 While we do not condone appellant’s tardiness in ordering the transcript nearly three weeks after the appeal was reinstated, we fail to perceive the prejudice asserted by appellees.

Appellees obtained the trial transcripts on April 9, 1999, the day after they received appellant’s brief. Appellant’s brief and record extract were filed in the Clerk’s Office of this Court on April 15, 1999 and the transcript was received on May 21,1999. Pursuant to Maryland Rule 8-502, appellees had within thirty days after April 5, 1999, when appellant’s brief was filed, to file their own brief. Appellees, therefore, ⁵⁴⁷ were not prejudiced because they still had twenty-seven days to file a brief once they finally received the trial transcripts.

Appellees also contend that appellant’s appeal should be dismissed because he failed to comply with Rule 8-501 regarding the filing of a record extract. According to appellees, appellant failed both to include a large portion of relevant material from the record and to consult with counsel in determining the contents of the extract. Again, although we do not condone appellant’s procedural violations, prejudice to appellees is absent. Initially, we observe that portions of the transcripts omitted by appellant have been included in appellees’ appendix, pursuant to Rule 8-501(e).

Furthermore, although appellant did not consult with appellees regarding the contents of the proposed record extract until March 29, 1999, appellees were able to submit a complete appendix. Our conclusion that the appeal should not be dismissed is bolstered by Maryland Rule 8-501(m) (1999), which provides that, “[ojrdinarily, an appeal will not be dismissed for failure to file a record extract in compliance with this Rule.” Under the same subsection, this Court is given the authority to direct appellant to file a proper record extract. Such an exercise would be a waste of time and resources now that both parties have filed the transcript portions that they believe support their arguments. Although we deny the motion to dismiss because of the absence of prejudice, we shall assess the costs associated with the creation of appellees’ appendix to appellant, which assessment is not based on which party ultimately prevails in this appeal.

See Standard Am. Homes, Inc. v. Pasadena Bldg. Co., 218 Md. 619, 623 , 147 A.2d 729 (1959). Before turning to the first issue presented, we would be remiss if we did not pause, at this juncture, and comment upon the manner in which counsel have failed to cooperate in preparing and submitting the required record extract and briefs in this Court.

Unfortunately, the acrimony which characterized the interaction of counsel during the discovery proceedings and at trial has persisted on appeal. As chronicled, supra, although we in no way seek to dissuade counsel from employing all legal procedures available, appellees sought to ⁵⁴⁸ have appeal dismissed and shorten time to three days for appellant to respond. Appellees had complained to the Clerk of this Court that, on April 8, 1999, when they received appellant’s brief, they had not yet received a trial transcript from appellant. Notwithstanding receipt of the transcript the following day, appellees insisted that dismissal was warranted because they had been prejudiced by appellant’s failure to adhere to appellate procedures.

Although appellees’ counsel quite properly cites the violations of appellate procedures by appellant’s counsel, the procedural violations are a by-product of the personal animus between counsel, resulting in a refusal on the part of both attorneys to communicate with each other regarding what is relevant and necessary to include in the record extract to permit us to review properly the issues presented in this appeal. Maryland Rule 8-501(d),(e), and (f) provides: (d) Designation by parties. Whenever possible, the parties shall agree on the parts of the record to be included in the record extract. In agreeing on or designating parts of the record for inclusion in the record extract, the parties shall have regard for the fact that the entire record is always available to the appellate court for reference and examination and shall not engage in unnecessary designation.

If the parties are unable to agree: (1) Within 15 days after the filing of the record in the appellate court, the appellant shall serve on the appellee a statement of those parts of the record that the appellant proposes to include in the record extract. (2) Within ten days thereafter, the appellee shall serve on the appellant a statement of any additional parts of the record that the appellee desires to be included in the record extract. (3) Within five days thereafter, the appellant shall serve on the appellee a statement of any additional parts of the record that the appellant proposes to include in view of the parts of the record designated by the appellee. (4) If the appellant determines that a part of the record designated by the appellee is not material to the questions ⁵⁴⁹ presented, the appellant may demand from appellee advance payment of the estimated cost of reproducing that part.

Unless the appellee pays for or secures that cost within five days after receiving the appellant’s demand, the appellant may omit that part from the record extract but shall state in the record extract the reason for the omission. (e) Appendix in appellee’s brief. If the record extract does not contain a part of the record that the appellee believes is material, the appellee may reproduce that part of the record as an appendix to the appellee’s brief together with a statement of the reasons for the additional part. The cost of producing the appendix may be withheld or divided under section (b) of Rule 8-607.

(f) Appendix in appellant’s reply brief. The appellant may include as an appendix to a reply brief any additional part of the record that the appellant believes is material in view of the appellee’s brief or appendix. The appendix to the appellant’s reply brief shall be prefaced by a statement of the reasons for the additional part. The cost of producing the appendix may be withheld or divided under section (b) of Rule 8-607.

As we noted, supra, appellees complain that appellant failed to discuss what should be included in the record extract and then failed to include large portions of relevant material from the record extract. Although the discovery rules (Rules 2-432 and 2-433), the rule proscribing proceeding in bad faith (Rule 1-341), and the Rules of Professional Conduct (Rule 3.4) require compliance with a code of conduct as to specific kinds of obstructive actions, no rule specifically requires collegiality and simple civility. We believe adherence to such fundamental precepts would have obviated the need to litigate many of the issues collateral to the merits of the underlying cause of action. DISCUSSION I Appellant first argues that the trial judge erred by denying his motion for recusal.

Appellant, citing numerous alleged ⁵⁵⁰ instances of judicial bias during the trial, contends the judge was biased against him and expressly favored appellees’ counsel. The proceedings in the case sub judice, when viewed in their entirety, lead us to a stark conclusion, viz: although appellant presents, for our review, a pentad of reasons why he believes the judgments of the circuit court should be reversed, virtually all, in one way or another, are advanced under the umbrella thesis that the court’s decisions were colored by partiality to opposing counsel. We recognize appellant’s unconditional right to present to us his challenges to the conduct of the lower court proceedings. Stripped of the assertion that the lower court was not impartial, however, the underlying claims of error which go to the merits of appellant’s lawsuit are almost inconsequential in relation to the complaint lodged at trial and on appeal against the conduct of the trial by the judge.

We believe it to be critical to make clear, as we observed in Braxton v. Faber, 91 Md.App. 391 , 405 n. 6, 604 A.2d 543 (1992), “[0]n this appeal, assuming the sufficiency of the record, our inquiry is limited to what impact, if any, the trial judge’s alleged conduct had on the appellant’s ability to obtain a fair trial. We are not here otherwise concerned with adjudication of judicial misconduct.” Our point, in Braxton , was that our review was confined to whether the record persuaded us that the appellant there was denied the right to a fair trial by the judge’s conduct of that trial and any adjudication as to judicial misbehavior would be reserved for another day in another forum, where the trial court could fully expostulate its position. Braxton involved allegations of judicial bias in which the trial court was alleged to have harbored racial animus against plaintiffs counsel and where, as in the instant case, appellant suggested that the trial judge made facial expressions, gestures, and body language that could be construed as impatience or intolerance directed at Braxton’s counsel. Significantly, in Braxton , there was no motion for recusal, and the appellant in that case expressly declined on several occasions to accept the lower court’s invitation to move for a mistrial.

Appellant’s counsel had stated to the court, ⁵⁵¹ ... it was my observation that from time to time you did roll your eyes and look at the ceiling and moan and groan, and rushed us along with respect to the time, and, Your Honor, even if you were to look through the transcript, I do not believe that defense counsel has been rushed along or anything like that, I do not believe that defense counsel has been given a hard time, and I just want the record to reflect that. I am not accusing you of any bias per se. Braxton, 91 Md.App. at 401-02 , 604 A.2d 543 . In response to the court’s query, “Are you asking for a mistrial or what are you trying to do — ,” counsel responded that she did not want a mistrial, but was “merely trying to represent” her client.

Id. at 402 , 604 A.2d 543 . We held that that was insufficient to require the trial judge to take some action to remedy the partiality alleged by counsel. In Surratt v. Prince George’s County, 320 Md. 439 , 578 A.2d 745 (1990), the Court of Appeals, unlike the circumstances in Braxton , was required to decide whether a recusal motion should have been granted. Judge William H. Adkins, speaking for the Court, observed that a recusal motion, to avoid the possible withholding of the motion as a weapon to use only in the event of an unfavorable ruling, should be filed as soon as the basis for it becomes known.

The Court then concluded that all of the prerequisites for raising the issue of recusal had been met in Surratt because the allegations had been stated on the record by a lawyer competent to testify about the facts in the presence of opposing counsel and the trial judge who was the subject of the charges. Id. at 468 , 578 A.2d 745 . Although we are satisfied that appellant, in the case at hand, has done all that is necessary to raise the issue of recusal, we do not believe the facts of this case remotely implicate a legitimate question of judicial bias. Counsel frames the first issue as one of judicial bias; however, a review of the proceedings discloses that this is more a case about the conduct of the lawyers involved.

On innumerable occasions we have spoken of the trial court’s prerogative to assess the credibility of the witnesses; however, in the present appeal, the trial court had to be more concerned about the ⁵⁵² credibility of the attorneys involved than any witnesses called to testify. 6 In addition to being called upon to determine the credibility of the attorneys, the trial judge found herself accused of personally testifying because she had indicated that she saw appellees’ counsel deliver certain documents, of being biased because of adverse rulings, of considering matters outside of the record in noting that another case against appellees had been dismissed because counsel had not appeared, and of threatening to refer appellant’s counsel to the Attorney Grievance Commission because of his conduct in the instant trial. Although a per se rule precluding a litigant from relying on evidentiary rulings as a basis for a claim of judicial bias would have a chilling effect, we believe that, at least in this case, appellant’s accusations of judicial bias are analogous to participating in an athletic contest “under protest” or filing a formal complaint against the umpire because one is unhappy with what the umpire perceives to be the appropriate ball or strike call or against a referee because of an adverse foul call. Unless there is palpable and demonstrable indicia of judicial bias, evidentiary calls and actions taken by the trial judge in the conduct of a trial are more appropriately reviewed in the context of whether the judge’s rulings comport with applicable law, rather than by divining a motive speculatively attributed to the trial judge by counsel. It is settled law that a motion for recusal may not ordinarily be predicated upon the judge’s rulings in the case at hand or a related case.

Boyd v. State, 321 Md. 69 , 581 A.2d 1 (1990), citing United States v. Partin, 601 F.2d 1000, 1011 (9th Cir.1979), cert. denied, 446 U.S. 964 , 100 S.Ct. 2939 , 64 L.Ed.2d 822 (1980). Lest there be any doubt that we favor — indeed believe an adversary system demands no less — zealous advocacy, we reiterate unequivocally that it is an advocate’s duty to use ⁵⁵³ legal procedure for the fullest benefit of the client’s cause, but it is also a duty not to abuse legal procedure. See Maryland Rules of Professional Conduct, Comment to Rule 3.1. As we observed in Tibbs v. State, 72 Md.App. 239, 260 , 528 A.2d 510 (1987): More recently in Little v. Duncan, 14 Md.App. 8 , 284 A.2d 641 (1971), we said: “Zeal in advocacy is commendable, but zeal, even in advocacy, without bounds may be contemptuous and disruptive.” We recognize that a trial is not an afternoon tea or other polite social event.

On the other hand, it is not trial by combat. The courts, over the years, have laid out carefully delineated boundaries in which the adversaries are free to fight. Contests are, however, confined to the area within the boundaries and governed by specific rules. It is counsel’s duty to abide by the rules and remain within the boundaries.

Thus, we do not suggest, in any sense, that counsel’s representation should be characterized by timidity or lack of assertiveness. Turning to the specific contentions raised by appellant, when bias, prejudice, or impartiality is alleged, a judge’s decision regarding recusal will not be overturned absent a showing of abuse of discretion. See Surratt, 320 Md. at 465 , 578 A.2d 745 . The Court of Appeals, in delineating who shoulders the burden of proof, declared: With respect to a claim of actual prejudice made under these circumstances, it has been said that “[a] judge is presumed to be impartial,” United States v. Sidener, 876 F.2d 1334, 1336 (7th Cir.1989); that “[a] judge is presumed not to confuse the evidence in one case with that in another,” Dove v. Peyton, 343 F.2d 210, 214 (4th Cir.1965); and, that “judges are men [and women] of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence,” State v. Babb, 258 Md. 547, 550 , ⁵⁵⁴ 267 A.2d 190 (1970).

As Blackstone put it, “the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.” 3 W. Blackstone, Commentaries of Laws of England 361 (1st ed. 1769). Thus, where an allegation of actual bias or prejudice is made, the burden is upon the [party alleging bias] to make that showing from the record. Carey v. State, [] 43 Md.App. [246,] [] 248-49, 405 A.2d [293,] [] 296 [(1979); cert. denied, 445 U.S. 967 , 100 S.Ct. 1660 , 64 L.Ed.2d 244 (1980) ]. Boyd, 321 Md. at 80-81 , 581 A.2d 1 (emphasis added).

The standard in reviewing such a claim is objective: “whether a reasonable member of the public knowing all the circumstances would be led to the conclusion that the judge’s impartiality might reasonably be questioned.” Surratt, 320 Md. at 465 , 578 A.2d 745 . In order to obtain review of the trial judge’s conduct, the record must contain the following elements: (1) facts are set forth in reasonable detail sufficient to show the purported bias of the trial judge; (2) the facts in support of the claim must be made in the presence of opposing counsel and the judge who is the subject of the charges; (3) counsel must not be ambivalent in setting forth his or her position regarding the charges; and (4) the relief sought must be stated with particularity and clarity. Braxton, 91 Md.App. at 408-09 , 604 A.2d 543 . Absent each of these elements, we will not review a party’s assertion of prejudice.

In the case sub judice, the detail and specificity of two of the allegations of bias are insufficient to establish the requisite elements. First is the assertion that the judge’s expressions plainly demonstrated her disfavor of appellant’s counsel to the jury. We have opined that “trial judges, even when under the severe time constraints occasioned by overcrowded dockets, should take great pains to avoid facial expressions, gestures, and body language which could be ⁵⁵⁵ construed as impatience or intolerance directed to either side.” Braxton, 91 Md.App. at 405 n. 6, 604 A.2d 543 . Such expressions should be avoided because even unintended manifestations of bias could improperly influence a jury.

See id. In the instant case, however, we are unable to discern from the record the alleged expressions made by the trial judge. Appellant merely refers to his motion for recusal as evidence of the judge’s improper body language. In the absence of specific references or proof offered on the record before the court and appellees’ counsel, such bald allegations of bias are insufficient to support review.

Furthermore, the record is insufficient to establish that the judge prevented counsel from probing areas into which appellees’ counsel was allowed to inquire. Again, appellant’s counsel presents this allegation without citation to the record where this contention was raised or proof that the partiality was displayed. Counsel refers us to his motion for recusal, which merely sets forth the allegation of prejudice without identifying facts demonstrating the trial judge’s refusal to allow equal inquiries from both parties. Absent specific facts from the record, this contention is not sufficient for review.

Regarding the additional allegations of bias, we need not embark upon an analysis of the factors because appellant’s counsel clearly set forth his position in the presence of the judge and appellees’ counsel, both on the record and through the pleadings. Furthermore, unlike the aforementioned assertions, appellant’s counsel presents us with sufficient facts to show the alleged bias for us to review the contention of bias. Hence, we shall examine the issues raised by appellant’s counsel to determine whether a reasonable member of the community reasonably would have questioned the judge’s impartiality given the circumstances. 7 ⁵⁵⁶ The Maryland Rules are instructive regarding recusal: C. RECUSAL. (1) A judge should not participate in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; ...

Md. Rule 16-813 (1999). We observe, however, that Maryland adheres to a strong presumption that a trial judge is impartial, thereby requiring a party requesting recusal to prove that the judge has a bias or prejudice derived from an extrajudicial— personal — source. See Jefferson-El v. State, 330 Md. 99, 107 , 622 A.2d 737 (1993). Bald allegations and adverse rulings are not sufficient to overcome the presumption of impartiality.

See Fearnow v. Chesapeake & Potomac Telephone Co., 104 Md.App. 1, 55 , 655 A.2d 1 (1995), aff'd in part and rev’d in part on other grounds, 342 Md. 363 , 676 A.2d 65 (1996). Appellant first alleges that the court threatened to report appellant’s counsel to the Attorney Grievance Commission. Prior to and during trial, both parties claimed that the other had refused to provide discovery. The following exchange occurred on the first day of trial: [APPELLANT’S COUNSEL]: The only discovery that was served on them up until that time, Your Honor, was interrogatories.

That is the only discovery they had. Twelve letters later, how ever many letters later, now they are coming in and saying, “We never got them.” I submit, Your Honor, they wrote me recently