Tavakoli-Nouri v. Mitchell

WILNER, Chief Judge. Appellant appeals an order of the Circuit Court for Prince George’s County dismissing his complaint because he failed (1) to appear at a settlement conference, and (2) to answer interrogatories. Essentially, appellant contends that the court abused its discretion in dismissing his case. We agree that it did, and we shall therefore reverse.

On December 2,1993, through an attorney, Walter Pennington, appellant filed suit against appellee for injuries sustained as the result of an automobile accident occurring on Septem ⁷⁰⁶ ber 19,1993. He claimed that appellee negligently struck him as he was crossing the street. In February, 1994, appellee answered and filed interrogatories. On February 18, 1994, the court entered an order scheduling a pre-trial settlement conference for June 17, 1994.

We are informed by appellant—although some of this information is not in the record—that following the accident he was hospitalized for five months, first at the Washington Hospital Center, then at Fox Chase Nursing Home, later at Schwab Rehabilitation Hospital in Chicago, and finally at Ravenswood Hospital in Chicago. Appellant asserts that he was discharged from Ravenswood on February 24, 1994, and promptly returned to his native country of Iran for further treatment. Whether, and when, he notified his attorney of this move is in dispute. It appears that, during this period, disagreements arose between appellant and Mr. Pennington, leading Pennington, on April 11, 1994, to move to withdraw his appearance.

In his motion, Mr. Pennington asserted that, in a conversation with appellant on February 22, appellant had indicated a desire to pursue the matter himself, that he did not want Pennington to continue his representation, and that he would be sending a confirmatory letter. The attorney stated further that he had not yet received such a letter but that he had written to appellant, informing him that the motion would be filed. In his certificate of service, Mr. Pennington stated that a copy of the motion was sent to appellant at Ravenswood Hospital. The motion to withdraw was not granted until June 2,1994, at which time the clerk sent a notice to employ new counsel.

That notice was sent to appellant at Fox Chase Nursing Home. A copy of the order striking Pennington’s appearance was sent to appellant at Ravenswood Hospital. Appellant contends that, having been discharged from Ravenswood on February 24, and Fox Chase long before then, he never received the motion or, indeed, any other papers filed in the case, including the order withdrawing Pennington’s appearance, the notice to employ new counsel, or the interroga ⁷⁰⁷ tories earlier propounded by appellee. He claims that, upon his return to Iran, he was hospitalized for heart failure.

During March, counsel for appellee wrote twice to Mr. Pennington in an effort to obtain a response to his interrogatories. On May 13, he filed for sanctions. On June 6, 1994, the court, through Judge McCullough, ordered that appellant respond to all discovery within 30 days—i.e., by July 6—and directed that, if he failed to respond by that date, the complaint would be dismissed. The order was actually filed and docketed on June 9; a copy was mailed to Mr. Pennington, whose appearance had already been stricken, but not to appellant.

We are informed by appellant that, on June 14, 1994, he called Mr. Pennington from Iran and, for the first time, learned (1) that Pennington had withdrawn his appearance, and (2) that a settlement conference was scheduled on June 17—three days hence. He contends that he immediately called the court and eventually spoke to the judge’s law clerk, who instructed him to “fax” a motion for extension of time and gave appellant the court’s “fax” number. Appellant promptly did just that; he “faxed” to the judge a motion for extension of time. He averred that he had just learned of Pennington’s withdrawal, that he had been severely injured in the accident, and that he was recuperating from a heart condition.

He asked the court to “maintain his complaint” and for an extension of 60 days, or such time as the court found sufficient, to allow him to return to the United States and obtain another lawyer. The court rejected those requests. In a Memorandum dated June 17 but filed June 21, 1994, the court stated: “Settlement Conference held this date in Chambers. Plaintiff did not appear.

Although he has requested an extension by facsimile, he does not support it with an affidavit as required by the Maryland Rules nor does he show any reasonable probability that he will be able to be present