Tretick v. Layman

CATHELL, Judge. Appellant, Bernard A. Tretick (Tretick), appeals the trial court’s granting of a defendant’s motion for judgment at the close of Tretick’s case. Tretick appeared pro se below and represents himself before us. Tretick presents the following questions: (1) Did the trial court err in not awarding damages in the full amount of the suit due to gross violations of the direction of the Trial Date Notice on the part of Defendant? ⁶⁴ (2) Did the trial court and the Attorney for Defendant violate the common law rights of a Plaintiff Pro Se?

(3) Did the trial court err in not issuing a bench warrant for Montgomery County Police Officer M. Jackson for failing to show when called as a witness, in answer to a properly issued subpoena and a proper return from the Montgomery County Sheriffs Department, duly logged by the Clerk of the Court as Docket numbers 40 and 43[?] (4) Did the trial court err in not taking Judicial Notice of medical reports and invoices that were authenticated by the doctors that wrote the reports and issued the invoices for medical services rendered as a direct result of the subject accident? (5) Did the trial court err in allowing Attorney for Defendant to violate a long list of the Maryland Rules in his methods used pre-trial and during the trial? (6) Did the trial court err in not allowing the case to go to the jury? Appellee, Kevin Layman (Layman), has filed a motion to dismiss.

Although the motion is appropriate and we could grant it, we decline to do so, preferring to address the arguments made in his brief. We shall also take this opportunity to address the nature of the system in which civil and criminal grievances are resolved. We note, however, that many, if not all, of the arguments raised in appellant’s brief have not been presented and/or preserved for appellate review either by reason of not being raised below or not properly supported in the extract presented here. We shall not address the facts except as necessary to our resolution of the issues.

We shall first address what may be appellant’s primary complaint. He contends that because he is a pro se litigant, the trial judge and/or appellee’s counsel somehow took improper advantage of him. In what he titled a “Foreword” to his brief, he complained: ⁶⁵ Foreword When, in the course of practicing law, and administering law, the tactics used subvert the very thing we are here to uphold, then it becomes time for the people to rebel and once again take charge of their own destiny, less [sic] they succumb to the tyranny that once before placed their lives into a miserable state. When, by their subtle and direct comments, three Judges of our courts makes [sic] it clear to a Plaintiff Pro Se, appearing in court in proper person under the protection of the common law of the United States of America, that, because that Plaintiff is not a practicing attorney, all shall be done to prevent his success in that court.

Then, and because of that attitude, the rights of Americans have once again been compromised[.] And, when, in spite of the Maryland Rules, which are law, a practicing attorney resorts to intimidating tactics, and more than bruises those rules in the face of one who is not familiar with those rules, and, the judge of the court upholds such tactics, then that attorney should be forced to step down from his practice, in the interest of fairness, in the interest of justice, and in the interest of the common law of America. - We discern from appellant’s brief that he objects first to the form of an adversarial proceeding; second to the comments of the trial judge when appellant was informed that the rules would be applicable to him; and third to the pretrial and trial tactics of appellee’s counsel. We shall later discuss the propriety of the trial court’s advice to a pro se litigant and the applicability of the rules to all parties before the court. Before doing so, however, we observe that we find in the extract no indication that appellant has preserved the matters he raises for our review. The extract does not contain the necessary portions of the transcript showing where objections or requests for rulings were made, the rulings or findings of the trial judge on those matters if objections were made and/or any reasons ⁶⁶ given by the court, or its treatment of any such issues which may have been brought to its attention. 1 The appellant in Webb v. Oxley, 226 Md. 339, 342 , 173 A.2d 358 (1961), cert, denied, 369 U.S. 803 , 82 S.Ct. 642 , 7 L.Ed.2d 550 (1962), like appellant here, represented himself at trial and on appeal.

The issues raised there included: (2) that the trial court erroneously sustained objections to appellants’ attempt to prove negligence ... by asking appellee if he had ever read certain legal textbooks; (3) that the trial court erred by demonstrating prejudicial bias (a) in refusing to allow testimony by Mr. Webb concerning “the various sources that refused assistance in the location of lawyers qualified to serve as counsel or expert witness or other aid in this case”; (b) in asking Mr. Webb, in the manner of “stern cross-examination”, certain questions ... and in ignoring the contention of the Webbs ...; (c) in excluding a certain exhibit which appellant sought to introduce____ Id. at 343, 173 A.2d 358 . The Court noted that the third argument described was indefinite and failed to refer to the appropriate portions of the record “as indicating bias or error on the part of the trial court.” Id. Therefore, what specific rulings were “being challenged must largely be a matter of speculation.” Id. at 345 , 173 A.2d 358 . The Court noted further: Under the circumstances, a great deal of guidance on the part of the trial judge was necessitated by the lack of skill of appellants in presenting their own case, in order that the issues could be fairly delineated and considerable immaterial and irrelevant material excluded____ If any of the judge’s remarks and questions were prejudicial (which is not apparent), the failure of appellants to object ⁶⁷ to the questions or move for a mistrial constituted a waiver, and this matter cannot be reviewed on appeal.

Id. at 346 , 173 A.2d 358 . The court also declined to rule on the sufficiency of the evidence because that also had not been preserved due to the appellant’s failure to make a motion for a directed verdict. In McMillian v. State, 65 Md.App. 21 , 499 A.2d 192 (1985), the appellant questioned twelve instances of trial court conduct that he alleged had improperly influenced the jury. We noted that the appellant had not objected at trial to ten of the incidents and stated: “Appellant’s failure to object at trial constitutes a ‘waiver estopping him from obtaining a review of the point or question on appeal.’ ” Id. at 26 , 499 A.2d 192 (citations omitted).

See also Brill v. State, 144 Md. 68, 74 , 124 A. 414 (1923) (“There was no exception taken to the remarks of the trial judge ... it cannot be considered by us on this appeal.”) In Bugg v. Trustees of Cokesbury Baptist Church, 252 Md. 59, 60 , 248 A.2d 879 (1969), Bugg, representing himself on appeal, alleged that the trial judge should have disqualified himself because he had found Bugg to be in contempt of court in another trial. He also claimed error because the trial court had limited some testimony. Id. The Court held that the issues had not been preserved because no objections had been made below, opining: “Since Bugg failed to move for a directed verdict or to raise at trial any of the objections now being raised, there is nothing for us to review.” Id. at 61 , 248 A.2d 879 .

In Lustine v. State Roads Commission, 221 Md. 322, 326 , 157 A.2d 456 (1960), the Court opined: “The appellants ... attempted] ... to show ... prejudicial error ... to what they claim were improper and harmful remarks made by counsel ... but there was no objection ... hence, this question is not properly before us.” Similarly, in the automobile negligence case of Little v. Duncan, 14 Md.App. 8, 14 , 284 A.2d 641 (1971), the appellant claimed as error certain alleged improprieties of counsel. We refused to determine the issue in view of the fact that no motion for ⁶⁸ mistrial had been made. Id. Thus, it is clear that the rules of presentation of appellate issues applies generally.

We shall now address their specific application to pro se parties. The rules of procedure apply primarily to parties, and, for the most part, to attorneys in their representative capacity. The rules explained to appellant below are not additional rules applicable only to pro se parties. 2 They are not additional burdens imposed on laymen; they apply to laymen and lawyers alike. Lawyers generally are more familiar with the rules and are therefore better able to function in our rule-constrained adversarial system of justice.

This is not due to a different set of rules, but is a reflection of their education, training and experience. The principle of applying the rules equally to pro se litigants is so accepted that it is almost self-evident. Perhaps because it is so evident, there has been but minimal comment on the obligations of a pro se party in the appellate cases of this State. The few cases include Lewis v. Germantown Insurance Co., 251 Md. 535, 537 , 248 A.2d 468 (1968) (emphasis added), where Judge McWilliams, for the Court, opined that “we find ourselves becoming somewhat less considerate of the plight of litigants whose obligation to know and comply with the Rules, at least in theory, is no less than that of the attorneys they retain to represent them." There are many rules of procedure, many rules of evidence, and many exceptions to the rules of evidence. 3 There are rules relating to the burdens of proof, persuasion, and production.

There are numerous causes of action with a myriad of elements of the respective causes. There are ⁶⁹ almost as many defenses to those causes. There are rules of conduct and many other rules. In Nature and the Sources of the Law, 84 (2d Ed. 1921), the commentator commented briefly that: The Law of the State or of any organized body of men [and women] is composed of the rules which the courts, that is, the judicial organs of that body, lay down for the determination of legal rights and duties.

There have evolved in our system comprehensive sets of rules designed to regulate the conduct of the adversarial procedure utilized in our system’s search for truth. While these sets of rules have removed the resolution of civil conflict from trial by combat, it remains, at best, an adversarial contest. For the most part, the rules are demand oriented. The opposing party must raise a violation of a rule in order for it to be rectified.

In many instances, rules are not invoked because of trial tactics, i.e., because one unobjected-to admission may open the door to an admission favorable to the opposing side. Only the parties can anticipate where matters will lead. Generally, the parties dictate the flow, and regulation only takes place when the court is called upon to act or rule. The trial judge’s main procedural function is to guarantee a “fair trial.” This function is carried out primarily by applying the rules upon request.

Whether right or wrong, an untrained, inexperienced litigant is generally at a great disadvantage. If he represents himself, he must proceed, for the most part, unaided by the court. The court, in our adversarial system, cannot substantially help either party; to lend aid would subvert a necessary part of our adversarial system designed to guarantee just trials, which require the impartiality of the referee — the trial judge. We have said in criminal cases that when a defendant notifies the court that he wishes to represent himself, the court, in order to comply with the Sixth Amendment, “must ... inform the defendant of the benefits of counsel and the ⁷⁰ dangers of proceeding without counsel____” Smith v. State, 71 Md.App. 165, 170 , 524 A.2d 117 (1987) (emphasis added).

While the Sixth Amendment provision is directed to the rights of criminal defendants and our mandate requires that they be advised, we see no error, abuse, bias, or prejudice when a trial judge in a civil case attempts to discern the skill and abilities of a pro se party and his knowledge of the procedural and evidentiary rules that bind all parties whether or not represented by counsel. Furthermore, we do not perceive disrespect or bias when the trial court attempts to inform the pro se party of the problems that he will face during the trial. All parties face those problems, but normally with legal assistance. Additionally, it is not error for a trial judge to inform a pro se party that the court will not be able to compensate for the pro se party’s lack of expertise or aid him in the prosecution of his case.

When he does all of the above, he is performing his appropriate function of informing the party of the law. Thus, we hold that it is not error for a trial judge to apprise a pro se litigant of the nature of civil adversarial proceedings and of the difficulties inherent in trial practice and procedure as done by the judge in the case at bar. Nor is it error for a trial court to inform a litigant that the trial court will not be able to aid either party in the presentation of his case. While a trial court is not required to give this advice, in our view, the giving of such advice should be encouraged.

The trial court must at all times retain its impartiality. It may, however, and in most cases should, make extra efforts to ensure that inappropriate barriers are not placed in the path of pro se litigants by counsel for opposing parties. Nevertheless, any such failure by the court, absent preservation by proper objection, will, in all probability, not constitute reversible error. In the case sub judice, Judge Ryan’s conduct, as far as we can discern, was completely appropriate.

Questions and Argument The questions as posed by appellant are at least minimally understandable. When we look, however, to the ⁷¹ arguments presented in support of the questions that we are asked to resolve, it is impossible to decipher which argument relates to which question. Our task is especially difficult because most of the arguments made have no legally cognizable relation to any legal issue presented. We shall hereafter attempt to address appellant’s arguments, titling them as he has.

We shall first discuss the general requirements regulating the presentation of issues for appellate review and the general standards for trial court preservation of questions for appellate review. Requirements on Appeal Maryland Rule 8-501, among other requirements, provides that a record extract shall be filed in every civil case. Subsection (c) of this rule requires the extract to “contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal.” Subsection (d) provides that, if the parties are unable to agree on the parts of the record to be included in the record extract, appellant must serve on appellee a statement of all parts of the record he proposes to include. Appellee is then permitted to notify appellant of those additional parts of the record he deems necessary to be included.

Md.Rule 8-501(d)(2). Appellant can then notify appellee of additional inclusions. Md.Rule 8-501(d)(3). A record extract is required to have a table of contents that makes reference to the first page in the record extract of the respective examination of witnesses and each pleading, exhibit, or other document reproduced, identifying each document by a descriptive phrase.

Md.Rule 8-501(h). The record extract is required to contain “verbatim” parts of the record. Md.Rule 8-501(i). Maryland Rule 8-504(a)(2) regarding the contents of a brief, requires “[a] brief statement of the case, indicating the nature of the case, the course of the proceedings, and the disposition in the lower court____” Subsection (4) requires “[a] clear concise statement of the facts material to a determination of the questions presented.... ” Md.Rule 8- ⁷² 504(a)(4) (emphasis added).

Subsection (5) requires “[argument in support of the party’s position.” Md.Rule 8-504(a)(5). The rules in respect to the required nature and form of extracts and briefs provide that in the event of non-compliance with the rules, the appellate court “may dismiss the appeal.” Md.Rules 8-501(Z) and 8-504(c). The appellate courts have frequently stated that the requirements of Maryland Rule 8-501(c) which dictate what must be included in an extract are mandatory. In State Highway Administration v. Transamerica Insurance Co., 278 Md. 690, 701-02 , 367 A.2d 509 (1976), the Court of Appeals opined: There is nothing in the joint record extract or appendix to show that the breach of contract point was presented at the trial.....

The requirements of Maryland Rule 828bl [the predecessor rule to 8-501(c) ] that “[t]he printed extract shall contain such parts of the record as may be reasonably necessary for the determination of the question presented by the appeal ...,” are mandatory. The point is not properly before us, and we do not consider it. Maryland Rule 885. [Citations omitted.] See also Hunt v. State, 312 Md. 494, 508 , 540 A.2d 1125 (1988) (holding that the Court was unable to determine matters not in the record). The Court of Appeals in A.S. Abell Co. v. Skeen, 265 Md. 53, 58 , 288 A.2d 596 (1972), was concerned about appellant’s inclusion of only its trial motion for summary judgment when it had omitted other necessary pleadings.

The court opined in reference to the omissions from the extract that: “To deny this Court the information it needs to properly determine the question is to effectively prevent us from reviewing the propriety of the trial court’s decision.” Id. at 58 , 288 A.2d 596 . It then cited the language of the predecessor rule relating to the necessity to include all necessary parts of the record in the extract, and then concluded: “We have called attention to this rule on many occasions and ⁷³ have made it abundantly plain that compliance with it is ‘a mandatory requirement.’ ” Id. at 59 , 288 A.2d 596 . In McBurnie v. McBurnie, 214 Md. 210, 211 , 134 A.2d 78 (1957), no extract was provided. The Court stated “[t]here being no agreed statement of facts and printed extract, there is, of course, no testimony, no judgment, no opinion and no pleadings for our consideration.” Id. at 214 , 134 A.2d 78 .

Similarly, in Eldwick Homes Ass’n v. Pitt, 36 Md.App. 211, 212 , 373 A.2d 957 , cert, denied, 281 Md. 736 (1977), we stated that “the record extract is absolutely devoid of the evidence, oral or physical, presented to the zoning board____ [W]e are not required to ferret out from the record those materials which counsel should have printed in the abstract [extract].” See also Yousef v. Trustbank Sav., F.S.B., 81 Md.App. 527 , 534 n. 6, 568 A.2d 1134 (1990); Rogers v. Baker, 77 Md.App. 199, 207 , 549 A.2d 1153 (1988) (“It is the obligation of appellant to provide an extract containing all parts of the record material to our consideration.”) Preservation at Trial In order for an appellate court to address a ruling or treatment of an issue at trial, it must be preserved for our review. The Court stated in Basiliko v. Royal National Bank, 263 Md. 545, 548-49 , 284 A.2d 227 (1971): Under Maryland Rule 885 [a predecessor to Md.Rule 8-131] we do “not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court.” Basiliko has failed to print in the record extract anything showing that this point was presented to the lower court. The requirements of Rule 828 [now Md.Rule 8-501(c) ] are mandatory. This point, therefore, is not before us. [Emphasis added.] The process of appellate review of alleged trial court error was succinctly explained in Braun v. Ford Motor Co., 32 Md.App. 545, 548 , 363 A.2d 562 , cert, denied, 278 Md. 716 (1976), where we opined: ⁷⁴ In trial courts, it is the function of the judge to preside over the trial, to direct the course of the proceedings, and to make all rulings on legal questions raised before him at any stage of the case.

In a jury trial, the fact-finding function is, of course, committed exclusively to the jury, but it remains the duty of the judge to insure that as to all parties concerned the trial is fair, and conducted according to established procedure, to the end that equal justice is afforded to all. Recognizing that judges, being human, may err, the system provides a right of appeal, so that any party who feels he has suffered an injustice flowing from an error by a trial judge, may have the question reconsidered by other judges. We know of no principle or practice under which a judgment of a trial court may be reversed or modified on appeal except for prejudicial error committed by the trial judge. It is a misuse of language to label as error any act or failure to act by a party, an attorney, ... or by anyone else other than the judge.

In other words, error in a trial court may be committed only by a judge, and only when he rules, or, in rare instances, fails to rule, on a question raised before him in the course of a trial, or in pre-trial or post-trial proceedings. Appellate courts look only to the rulings made by a trial judge, or to his failure to act when action was required, to find reversible error. [Emphasis added.] In our recent case of Austin v. State, 90 Md.App. 254, 264-65 , 600 A.2d 1142 (1992), we cited Braun, 32 Md.App. at 548-49 , 363 A.2d 562 , where Judge Moylan stated: The requirement [of timely objection] ... is not an arbitrary one.....At the most basic level, it recognizes that appellate courts do not range forth, like knights errant, seeking flaws in trials. Their quest is far more modest. They monitor a trial for the limited purpose of seeing if the trial judge committed error.

See also DeLuca v. State, 78 Md.App. 395, 398 , 553 A.2d 730 , cert, denied, 316 Md. 549 , 560 A.2d 1118 (1989); Robin ⁷⁵ son v. State, 66 Md.App. 246, 251 , 503 A.2d 725 , cert, denied, 306 Md. 289 , 508 A.2d 489 (1986). In construing Rule 1085, the predecessor to Rule 8-131, the