Scully v. Tauber

SALMON, Judge. On May 4, 1999, Dr. Laszlo N. Tauber filed a four-count complaint in the Circuit Court for Montgomery County against his former attorney, Roger T. Scully. Dr. Tauber alleged that he had been injured by Scully’s actions in a case filed in New York City. Alan F. Post, Esq.

(“Post”), filed an answer on behalf of Scully. The circuit court issued a scheduling order on August 9, 1999, which set forth a discovery completion deadline of January 31, 2000. In the latter part of December 1999, Dr. Tauber’s counsel sent Post a notice that he would take Scully’s deposition on January 27, 2000, at 9 a.m. Post received the notice on January 4, 2000.

Three days later, on January 7th, Post met with Stephen Glassman, Esq. (“Glassman”), one of Dr. Tauber’s attorneys. Post told Glassman that he had been diagnosed with a “stromal cell tumor” located in his stomach wall and that Scully’s deposition would have to be rescheduled because he was being admitted to Suburban Hospital on January 17th for an operation to remove the tumor. Post ⁴²⁶ farther advised Glassman that he had no expectation of being able to attend the deposition scheduled for January 27th.

Glassman, on January 26, 2000, sent a two-sentence letter to Post, which read as follows: We intend to go forward with the deposition of your client tomorrow pursuant to our Notice of Deposition, in light of the fact that you have failed to obtain an Order extending the discovery deadline for that deposition. If you fail to appear, we will be moving for sanctions against you and your client. At 9:05 a.m. on January 27th, Glassman called Post’s office and was advised that Post was unavailable for the deposition because he was in the hospital 1 and, as a consequence, neither Post nor Scully would appear at the deposition. On February 2, 2000, counsel for Dr. Tauber filed a motion to extend time to take the deposition of three out-of-state expert witnesses.

Movant asked that the discovery period be extended until March 7, 2000, to take the three depositions. Dr. Tauber’s attorney represented that the requested extension would not “compromise” the scheduled trial date. The motion concerning the three out-of-state experts was granted. No request was made to extend the time to take Scully’s deposition.

On February 8, 2000, counsel for Dr. Tauber filed a motion for immediate sanctions against Scully based on the fact that neither Scully nor his counsel had appeared for the January 27th deposition. Movant asked the court (1) to grant a default judgment against the defendant, (2) to allow plaintiff to “proceed to prove its [sic] damages” and (3) to award Dr. Tauber “costs and reasonable attorney’s fees for the [defendant's failure to appear at the deposition and for the [p]laintiff filing this Motion.” Contrary to Maryland Rule 2 — 311(d), the motion was not supported by an affidavit. 2 Movant nevertheless ⁴²⁷ alleged that in a conversation between Glassman and Post, on January 7, 2000, Post had merely “alluded to his possible need to reschedule the deposition for medical reasons.” According to the allegations in the motion, Glassman told Post that if he wanted to reschedule the deposition he would have to file a motion to extend the discovery deadline and that if he did so Dr. Tauber would not object. After conceding that someone from Post’s office had told a representative from Glassman’s office on the date of the deposition that Post could not attend the deposition because of “medical reasons,” movant nevertheless asserted that it was obvious that Scully “has no inclination to comply with any discovery request or discovery orders and that failing to show up a[t] the deposition is just another example of [defendant's disregard for the discovery process .... ” Significantly, however, movant provided no other examples of Scully’s purported “disregard.” Scully did not respond to the sanctions motions, and on February 29, 2000, the circuit court entered an order granting a judgment by default against him. On March 20, 2000, Scully filed a motion to vacate the default judgment, which was supported by Post’s affidavit.

The affidavit read, in material part, as follows: 3. On or about January 4, 2000, I received by first class mail, a Notice of Deposition of the [defendant on January 27, 2000. Plaintiffs counsel made no attempt to contact me regarding available dates, prior to issuing the notice for January 27. 4. On January 7, 2000[,] I met with Stephen Glassman, one of [pjlaintiffs counsel at the Courts of Appeal Building in Annapolis in connection with a matter in which we were opposing counsel.

At that time, I advised Mr. Glassman that I had been diagnosed with a “stromal cell” tumor arising from the stomach wall, and that the deposition would ⁴²⁸ have to be rescheduled, since I was being admitted to Suburban Hospital on January 17 for a gastric resection for the removal of the tumor, and had no expectation of being able to attend the deposition on January 27. I was released from the hospital on January 28, 2000, and was not able to return to my office until the end of February. 5. On January 26, 2000[,] Mr. Glassman, apparently faxed a letter to my office advising that he would go forward with the Deposition and seek sanctions against [defendant and counsel if there was no appearance. On the morning of the scheduled deposition, Mr. Glassman was advised on the telephone by my office that I was still unable to attend for medical reasons.

I was still a patient at Suburban Hospital on January 27,2000. 6. Plaintiffs counsel never consulted with me prior to sending out the notice setting January 27, or made any attempt to reschedule the deposition after learning of my hospitalization, yet they sought, and received a 35 day extension of discovery in order to take three out of state depositions. Plaintiff filed an opposition to the motion to vacate judgment of default. The opposition, again in violation of Maryland Rule 2-311(d), was not supported by an affidavit but, nevertheless, contained numerous “facts.” Among the “facts” alleged were the following: 2.

Representations made by counsel for the [defendant in his pleading are inaccurate. Plaintiffs counsel concurs that the parties had a face to face meeting at the Court of Appeals on January 7, 2000. Further, it is agreed that at the time Alan F. Post, ... stated for the first time, that he may be unavailable for the scheduled deposition on January 27, 2000, due to a possible medical issue. At that time, [plaintiffs counsel advised Mr. Post that due to the fact that the discovery deadline was upon the parties, if Mr. Post was unable to proceed with the deposition as scheduled, he should file a motion to extend the discovery deadline.

Defendant’s counsel was ⁴²⁹ advised that [p]laintiff would interpose no objection and would coordinate a new deposition date. 3. Plaintiffs counsel heard nothing further from Mr. Post. No motion for extension of time or motion for protective order was filed by the [defendant. 4. Counsel for the [p]laintiff wrote a letter [the faxed letter of January 26th, apparently] to Mr. Post confirming the deposition date and received no response.

Neither Mr. Post nor his client appeared for the deposition. The court reporter and [p]laintiff s counsel gathered on the morning of the deposition. At that point Mr. Post’s office advised that neither he nor his client would be appearing. A hearing on the motion to vacate was held on May 4, 2000.

The motion was argued by Post on behalf of the defendant and Michael Weiner on behalf of Dr. Tauber. Glassman was not in attendance. In regard to the conversation with Glassman, the motions judge and Post had the following colloquy: THE COURT: Well, when you told Mr. Glassman you were going in the hospital, did he say okay, in that case your client doesn’t have to show up at the deposition? MR.

POST: I think it was more like: Steven, we’re not going to be able to make the deposition; I’m going to be in the hospital; can we reschedule it when I get out. THE COURT: And he said? MR. POST: Yes.

THE COURT: Okay. MR. POST: Or indicated — somehow or other said okay, there’s not much I can do about that. If you’re going to be in the hospital, you can’t be at the deposition, something to that effect.

Don’t remember exact words. THE COURT: Well, it helps — you know, when you say he said something to that effect, I don’t really know what that means. ⁴³⁰ MR. POST: Well, whatever the words were, it was an acknowledgment of the fact that I was not going to be able to be at the motion [sic]. THE COURT: And, therefore, your client— MR.

POST: And, therefore, my client was not going to appear without counsel— THE COURT: — was not expected to be there? MR. POST: — obviously. THE COURT: Okay.

At oral argument, Post also told the motions judge that he spoke to Amy Oberst, “an associate with Mr. Glassman,” sometime during the week that followed his January 7th conversation with Glassman. According to Post, he “confirmed [with Ms. Oberst] that [he] was going in the hospital.” After considering argument from both counsel, the motions judge said that there was “no factual [or] legal basis for me to” vacate the judgment. Accordingly, the motion was denied. On July 5, 2000, after Dr. Tauber presented evidence as to damages, the court entered a judgment in favor of Dr. Tauber against Scully in the amount of $8,853,721.72.

This timely appeal followed. I. QUESTION PRESENTED Did the trial court abuse its discretion in failing to set aside the default judgment under the circumstances of this case?

II

ANALYSIS It is true, as appellee points out in his brief, that “[a] trial court is entrusted with ‘[a] large measure of discretion ... in applying sanctions for failure to comply with the rules relating to discovery” (citing Lynch v. R.E. Tull & Sons, Inc., 251 Md. 260 , 247 A.2d 286 (1968), and Tydings v. Allied Painting and Decorating Co., 13 Md.App. 433, 436 , 283 A.2d 635 (1971)). Similarly, a motions judge is accorded considerable discretion in deciding whether to set aside the grant .of a ⁴³¹ default judgment. Nevertheless, in order to decide whether a judge’s imposition of the ultimate sanction of dismissal is warranted or whether a default judgment should be set aside, an appellate court must first determine whether the trial court exercised its discretion. The exercise of discretion must be clear from the record.

Nelson v. State, 315 Md. 62, 70 , 553 A.2d 667 (1989). When it is not clear that discretion was exercised, reversal is required. Maus v. State, 311 Md. 85, 108 , 532 A.2d 1066 (1987). In this case, determining whether there was an exercise of discretion is made easy.

The motions judge explicitly said, “I am not going to vacate the judgment.... There is no factual [or] legal basis for me to do so.” In our view, however, there was both a legal and a factual basis to vacate the default judgment. The only facts that were appropriately before the court when it denied the motion to set aside the default were: (1) the facts set forth in Post’s affidavit (Md. Rule 2-311(d)) and (2) statements made, upon personal knowledge, by Post in open court. See Surratt v. Prince George’s County, 320 Md. 439, 469 , 578 A.2d 745 (1990) (explaining that statement by a lawyer in open court, based upon personal knowledge, is the “functional equivalent” of an affidavit or testimony under oath).

The motions court had no right to consider any “fact” set forth by appellee in his opposition due to appellee’s failure to comply with Rule 2-311(d). The facts appropriately before the trial judge showed that (1) the defendant had done nothing personally that would justify a default sanction, (2) Post and Scully had an exceptionally meritorious reason why they did not appear at the deposition, and (3) opposing counsel knew full well, prior to the