Warehime v. Dell

HOLLANDER, Judge. In this case, we must determine whether the circuit court was entitled to dismiss appellants’ complaint against nine defendants/appellees, as a sanction for appellants’ failure to respond to interrogatories propounded by only one defendant/appellee. On December 9, 1992, Marianne and Earl A.J. Warehime, appellants, instituted suit in the Circuit Court for Carroll County against nine members of the Manchester Fire Engine and Hook and Ladder Co. No. 1 (the “Company”), all of whom are appellees. 1 The suit alleged violations of 42 U.S.C. § 1983 and Article 24 of the Maryland Declaration of Rights, stemming from the Company’s decision to remove appellants from their respective positions at the Company. The circuit court dismissed the complaint on August 8, 1997, because appellants failed to respond to interrogatories propounded by Richard Dell, one of nine defendants below.

Appellants timely noted their appeal and present the following issues for our review, which we have rephrased and condensed: I. Did the trial court abuse its discretion when it dismissed the complaint against Richard Dell, as a sanction for appellants’ failure timely to answer Dell’s interrogatories?

II

Even if the trial court properly dismissed the complaint as to Dell, did the court err or abuse its discretion in dismissing the complaint as to the remaining eight defen ³⁶ dants, none of whom had propounded interrogatories to appellants? We conclude that the trial court did not abuse its discretion in dismissing the complaint as to Dell, the one defendant who propounded interrogatories to appellants. Conversely, we are of the view that the court erred in dismissing the complaint as to the remaining eight defendants, who did not propound interrogatories to appellants. Therefore, we shall affirm in part and reverse in part.

Factual Background 2 According to the complaint, Marianne Warehime “ha[d] been a member of the [Company] for eighteen years and ha[d] served as the Secretary of [the] company for eleven years.” 3 Mr. Warehime, an Ambulance Captain, was a twenty-nine year veteran of the Company. During the summer of 1992, the Company sponsored a carnival at the Carroll County fairgrounds. Ms. Warehime “worked” at the carnival in a capacity not disclosed in the record. Appellants alleged that on the evening of June 30, 1992, while Ms. Warehime was working at the carnival, the Company convened an impromptu meeting of the disciplinary committee at the fairgrounds to investigate an alleged “pie-throwing incident” at the carnival involving Ms. Warehime and her daughter, Suzannah.

Although Ms. Warehime denied involvement, the disciplinary committee decided that night to suspend her from the Company for one year and to bar her from holding office for three years. Thereafter, for reasons not entirely clear in the complaint, Mr. Warehime also came under the scrutiny of the disciplinary committee. In the weeks that ³⁷ followed, the Company discussed the “pie-throwing incident” and the Warehimes’ status within the Company at six meetings of the disciplinary committee and the general membership. 4 On the evening of July 27, 1992, after one of the meetings of the disciplinary committee, Mr. Warehime was asked to resign from the Company, but he refused to do so. Consequently, on August 6, 1992, the Company notified Mr. Warehime by certified mail that he had been removed from his position as a member.

Appellants subsequently lodged a twelve-count complaint, which contained six counts on behalf of Ms. Warehime and six counts on behalf of Mr. Warehime. Ms. Warehime sued all nine appellees, individually and in their official capacities, while Mr. Warehime only sued Dell, the president of the Company. Each count sought $50,000.00 in compensatory damages and costs, and six of the counts also requested punitive damages. Appellees answered on January 22, 1993.

Thereafter, appellees instituted a declaratory judgment action in the circuit court on September 21, 1993, against their insurance company, seeking to require their insurance carrier to defend the Warehimes’ suit. At the same time, they moved to stay the Warehimes’ case pending resolution of the declaratory judgment action. The circuit court granted appellees’ motion to stay on October 26, 1993. The record does not disclose when or how the declaratory judgment action was resolved.

Moreover, for reasons not made clear in the record, the stay was not lifted until September 1996. On July 14, 1995 — while the stay was in effect — the Warehimes served interrogatories upon appellees. Presumably because of the stay, appellees did not respond. In any event, appellants never sought an order compelling discovery, nor did ³⁸ they move for sanctions.

The case was otherwise dormant until July 15, 1996, when the court sent the parties a notice of contemplated dismissal pursuant to Maryland Rule 2-507. Appellants responded on August 14, 1996, with a motion to defer dismissal and lift the stay. The Warehimes asserted, inter alia, that they had failed to pursue the case, even though appellees’ motion for declaratory judgment had been resolved, because they were waiting for appellees to file a threatened motion to dismiss. On September 5, 1996, the court granted appellants’ motion and lifted the stay.

On December 17, 1996, more than four years after suit was instituted, the court held a status conference. On the same date, the court entered a scheduling order mandating, inter alia, service of interrogatories and requests for document production by March 15, 1997. All other discovery was to be completed by August 15,1997. Thereafter, on March 13, 1997, Dell propounded the interrogatories to appellants that are at the center of this dispute. 5 Two months later, on May 14, 1997, appellees’ counsel sent a letter to appellants’ counsel requesting a response to the interrogatories.

The letter claimed to be a “good faith at ³⁹ tempt to resolve a discovery dispute, pursuant to Maryland Rule 2-431.” On May 29, 1997, appellee Ralph Dull (not to be confused with appellee Richard Dell), answered appellants’ interrogatories of July 14, 1995. 6 On the same date, by letter to appellants’ attorney, appellees’ counsel again requested answers to Dell’s interrogatories. Counsel also threatened to file a motion for sanctions if the interrogatories were not answered within ten days. Again, no response was forthcoming. On July 17, 1997, more than four months after Dell propounded interrogatories to appellants, a motion for sanctions was filed, pursuant to Maryland Rule 2-433, by “[d]efendants Ralph Dull et al.,” even though the interrogatories at issue had been propounded only by Dell.

Surprisingly, appellants did not respond to the motion for sanctions. As a result, on August 8, 1997, the court had before it an unopposed motion for sanctions that it granted, stating: “Plaintiffs’ Complaint is hereby DISMISSED for failure to respond to discovery.” An entry dated August 14, 1997, in the computerized docket of the circuit court, contains the following notation: ORDER OF THE COURT RECEIVED AUGUST 8, 1997 DISMISSING THE COMPLAINT FOR FAILURE TO RESPOND TO DISCOVERY. COPIES SENT TO ATTORNEYS [names omitted]. On August 25,1997, appellants timely filed a motion to alter or amend judgment, in which they asserted that “Plaintiffs counsel’s office manager” had “suddenly left two months [prior to the motion to alter or amend] and Plaintiff inadvertently failed to file the [answers to] Interrogatories.” Appellants argued, inter alia, that dismissal was too extreme a sanction ⁴⁰ under the circumstances, and that even if dismissal was proper as to Dell, it was not warranted as to those defendants who had not submitted interrogatories.

The court denied appellants’ motion on September 10, 1997. This appeal followed. Discussion I. Preliminarily, appellees assert in the fact section of their brief that appellants’ motion to alter or amend was untimely because it was not filed within 10 days of entry of judgment. The contention has no merit.

As we noted, the court’s order of dismissal was signed and received in the clerk’s office on August 8, 1997, but it was not docketed until August 14, 1997. “Entry of judgment,” which triggered the beginning of the ten-day motions period, occurred on August 14, 1997, when the order was docketed. See Waller v. Maryland Nat’l Bank, 332 Md. 375, 378-79 , 631 A.2d 447 (1993) (the “date of entry” defined in Rule 2-601 “must be determined by reference to the docket entry”); Estep v. Georgetown Leather Design, 320 Md. 277, 287 , 577 A.2d 78 (1990) (concluding that “a final judgment disposing of all claims or parties was not in existence until the judgment ... was entered on the docket....”). On Monday, August 25, 1997, appellants filed their motion to alter or amend. Appellees seemingly overlook that August 24,1997, the tenth day after entry of judgment, was a Sunday.

Maryland Rule l-203(a) provides that in the event the last day of a time period proscribed by the rules falls on a weekend, the period in which to complete the act “runs until the end of the next day that is not a Saturday, Sunday, or holiday----” See Ungar v. Handelsman, 325 Md. 135, 139 , 599 A.2d 1159 (1992) (motion for reconsideration timely when ten day period ended on a Saturday and movant filed the next Monday); Hampton v. Univ. of Maryland at Baltimore, 109 Md.App. 297, 308-09 , 674 A.2d 145 , (stating that six-month probationary period ran until the end of the next Monday when final day fell on a Sunday), cert. denied, 343 Md. 333 , 681 A.2d 68 , and cert. denied, — U.S.-, 117 S.Ct. 592 , 136 L.Ed.2d 521 (1996); ⁴¹ In re Stephen J., 48 Md.App. 736, 738 , 429 A.2d 307 (1981) (thirty day period in which to hold an adjudicatory hearing under former Rule 914 fell on Sunday). Because appellants, in effect, filed their motion within ten days of the docketing of the August 14,1997 order, the appeal period was tolled. B & K Rentals and Sales Co. v. Universal Leaf Tobacco Co., 319 Md. 127, 132 , 571 A.2d 1213 (1990). Thereafter, they noted an appeal within thirty days of the court’s disposition of the revisory motion, so their appeal was timely filed.

II

Appellants claim that their failure to respond to Dell’s interrogatories did not amount to the sort of egregious conduct that justified dismissal of the complaint against Dell. Appellants’ contention is premised on the following arguments: 1) “the trial court failed to consider less extreme sanctions;” 2) appellees, too, were dilatory with regard to discovery; they failed to answer interrogatories for “approximately three years”; 3) appellants did not ignore court orders; and 4) appellants’ conduct did not prejudice appellees. We begin our analysis with a review of the pertinent Maryland discovery rules. Maryland Rule 2-421 provides: Rule 2-421.

Interrogatories to parties (a) Availability; number. Any party may serve at any time written interrogatories directed to any other party. Unless the court orders otherwise, a party may serve one or more sets having a cumulative total of not more than 30 interrogatories to be answered by the same party. Interrogatories, however grouped, combined, or arranged and even though subsidiary or incidental to or dependent upon other interrogatories, shall be counted separately.

(b) Response. The party to whom the interrogatories are directed shall serve a response within 30 days after service of the interrogatories.... Md. Rule 2-432 provides, in pertinent part: ⁴² Rule 2-432. Motions upon failure to provide discovery.

(a) Immediate sanctions for certain failures of discovery. A discovering party may move for sanctions under Rule 2-433(a), without first obtaining an order compelling discovery under section (b) of this Rule, if a party ... fails to serve a response to interrogatories under Rule 2-421.... (b) For order compelling discovery. A discovering party, upon reasonable notice to other parties and all persons affected, may move for an order compelling discovery if (1) there is a failure of discovery as described in section (a) of this Rule, * * * (4) a party fails to answer an interrogatory submitted under Rule 2-421, (d) Time for filing.

A motion for an order compelling discovery or for sanctions shall be filed with reasonable promptness. Maryland Rule 2-433 sets forth the sanctions that the court may impose for discovery violations. It provides, in pertinent part: Rule 2-433. Sanctions (a) For Certain Failures of Discovery.

Upon a motion filed under Rule 2-432(a), the court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including one or more of the following: (1) An order that the matters sought to be discovered, or any other designated facts shall be taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order; (2) An order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; or ⁴³ (3) An order striking out pleadings or parts thereof, or staying further proceeding until the discovery is provided, or dismissing the action or any part thereof, or entering a judgment by default that includes a determination as to liability and all relief sought by the moving party against the falling party if the court is satisfied that it has personal jurisdiction over that party. (b) For Failure to Comply with Order Compelling Discovery. - If a person fails to obey an order compelling discovery,' the court, upon motion of a party and reasonable notice to other parties and all persons affected, may enter such orders in regard to the failure as are just, including one .or more of the orders set forth in section (a) of this Rule. If justice cannot otherwise be achieved, the court may enter an order in compliance with Rule P4 treating the failure to obey the order as a contempt. As Dell’s interrogatories were mailed on March 13, 1997, 7 appellant’s answers were due by Tuesday, April 15, 1997.

See Maryland Rule l-203(c) (providing a party with an additional three days to respond when service is made by mail). Thus, when the motion for sanctions was filed on July 17, 1997, appellants’ answers to interrogatories were more than ninety days late. “Maryland law is well settled that a trial court has broad discretion to fashion a remedy based on a party’s failure to abide by the rules of discovery.” Bartholomee v. Casey, 103 Md.App. 34, 48 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995); see Heineman v. Bright, 124 Md.App. 1, 7 , 720 A.2d 1182 (1998); Beck v. Beck, 112 Md.App. ⁴⁴ 197, 209, 684 A.2d 878 , cert. denied, 345 Md. 456 , 693 A.2d 354 (1997). Indeed, in order to impose sanctions, a court need not find “ ‘wilful or contumacious behavior.’ ” Beck, 112 Md.App. at 210 , 684 A.2d 878 (citation omitted). Rather, in imposing sanctions, a trial court has “considerable latitude.” Miller v. Talbott, 239 Md. 382, 387 , 211 A.2d 741 (1965).

Our review of the trial court’s resolution of a discovery dispute is quite narrow; appellate courts are reluctant to second-guess the decision of a trial judge to impose sanctions for a failure of discovery. Accordingly, we may not reverse unless we find an abuse of discretion. In Mason v. Wolfing, 265 Md. 234, 236 , 288 A.2d 880 (1972), the Court said: “Even when the ultimate penalty of dismissing the case or entering a default judgment is invoked, it cannot be disturbed on appeal without a clear showing that [the trial judge’s] discretion was abused.” See Berkson v. Berryman, 63 Md.App. 134, 142 , 492 A.2d 338 , cert. denied 304 Md. 296 , 498 A.2d 1183 (1985). In analyzing the propriety of the court’s decision to dismiss the case against Dell because of the discovery violation, we have considered several cases involving discovery violations.

Our starting point is our recent decision in Heineman v. Bright. In Heineman , the estate of G. Wendel Héineman (“the Estate”) sued Mr. Heineman’s second wife and widow, Jacklyn Kay Heineman, and her daughter, Toy Michelle Evans, to recover a set of bearer bonds that Ms. Heineman claimed her deceased husband had given to her as a gift. Following Mr. Heineman’s death, Ms. Heineman moved the bonds from a safe deposit box titled in Mr. Heineman’s name to an account she held jointly with Ms. Evans.. As a result, the Estate sued to recover the bonds.

During the course of discovery, the Estate propounded interrogatories solely to Ms. Heineman, which she never answered. After the close of discovery, Ms. Heineman sought to utilize two fact witnesses whose names had been sought in the interrogatories. At that point, the Estate moved to bar the witnesses from testifying at trial, ⁴⁵ because Ms. Heineman earlier failed to identify the witnesses in answers to interrogatories. The court granted the motion, excluding both witnesses.

Because the imposition of sanctions deprived Ms. Heineman of all of her relevant witnesses, the court then granted summary judgment against both defendants. We determined that a trial court must exercise its discretion in imposing sanctions in light of the factors established in Taliaferro v. State, 295 Md. 376, 390-91 , 456 A.2d 29 , cert. denied, 461 U.S. 948 , 103 S.Ct. 2114 , 77 L.Ed.2d 1307 (1983); see also Shelton v. Kirson, 119 Md.App. 325, 331 , 705 A.2d 25 (stating that “the Taliaferro guidelines apply in civil cases as surely as they do in criminal cases”), cert. denied, 349 Md. 236 , 707 A.2d 1329 (1998); Eagle-Picher Indus., Inc. v. Balbos, 84 Md.App. 10, 28-34 , 578 A.2d 228 , rev’d in part on other grounds, 326 Md. 179 , 604 A.2d 445 (1992). Admittedly, the sanction of exclusion of a witness’s testimony, as in Heineman , is not the same as the sanction of dismissal of a case. But in Heineman , the exclusion of the witnesses was tantamount to a dismissal; without the witnesses whose testimony was crucial to appellants’ case, dismissal was warranted.

What the Taliaferro Court said in the context of the exclusion of a witness’s testimony is worth repeating here: Under the approach taken by most courts, whether the exclusion of ... testimony is an abuse of discretion turns on the facts of the particular case. Principal among the relevant factors which recur in the opinions are whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance. Frequently these factors overlap. Taliaferro, 295 Md. 376 at 390-91 , 456 A.2d 29 .

Lone v. Montgomery County, 85 Md.App. 477 , 584 A.2d 142 (1991), also provides guidance to us as we assess the court’s ⁴⁶ imposition of the sanction of dismissal as to Dell. In Lone , Montgomery County sought to enforce a zoning ordinance against several nonconforming landowners who had unsuccessfully challenged the ordinance in federal court. The County filed a complaint for injunctive relief against one of the nonconforming landowners, along with interrogatories. When the landowner did not respond to the County’s interrogatories, the County filed a motion for sanctions under Rule 2-438.

After the landowner did not respond, the court entered a default judgment and granted the relief requested by the County. Belatedly, the landowner answered the interrogatories and filed a motion to set aside the default judgment, which the court denied. On appeal, we observed that the trial judge, “[a]s he is allowed to do ... assigned little weight to the appellant’s unsupported explanation for the failure to file timely” answers to interrogatories. Id. at 486 , 584 A.2d 142 .

Accordingly, we held that the court did not abuse its discretion. Id. at 487 , 584 A.2d 142 . Rubin v. Gray, 35 Md.App. 399 , 370 A.2d 600 (1977), is also noteworthy. There, interpreting Maryland Rule 422, a predecessor to Maryland Rule 2-433, we upheld a dismissal for failure to answer interrogatories.

Prior to dismissing the suit, the court offered the plaintiffs an opportunity to “justify or excuse the failure to comply” which, in our estimation, “decrie[d] an abuse of discretion.... ” Id. at 400 , 370 A.2d 600 . In reaching our decision, we also considered that the plaintiff “ignored repeated written requests to [answer the discovery]; violated agreements to comply within extended deadlines; failed, upon order of court, to show cause why judgment non prosequitur should not be entered; and, after dismissal, was unable to convince the court to reconsider____” Id. The Court of Appeals reached a similar conclusion in Miller v. Talbott, supra, 239 Md. 382 , 211 A.2d 741 . In that case, defendants in a contract case failed to answer five interrogatories, prompting the propounding party to move for a decree pro confesso.

The interrogatories were requested on January 11, 1964; the motion for a decree pro confesso was made March 17, 1964. The trial court gave the non-responsive ⁴⁷ party until April 3 to show cause why the decree should not be entered. After the party failed to answer, the trial court entered the decree and set a hearing to determine the appropriate relief for the prevailing parties. On appeal, the Court affirmed the right of the trial court to enter the decree, stating: Under the circumstances here, where defendants or counsel for the defendants had every opportunity to answer the five interrogatories propounded to them; where the court granted an additional period of time in which to show cause why the motion for a decree pro confesso should not be granted, rather than summarily entering such a decree, — we can only conclude — assuming abuse of discretion to be the applicable test — that no abuse of discretion was shown in entering [the decree].

Miller, 239 Md. at 388 , 211 A.2d 741 . We are also guided by the recent case of Shelton v. Kirson, supra, 119 Md.App. 325 , 705 A.2d 25 . Shelton involved a discovery violation in connection with time limits established by a scheduling order. There, the plaintiff in a lead paint case named an expert almost a year after the expiration of the discovery deadline, and sought an extension from the trial court of the discovery period, in order to accommodate the new witness.

The circuit court barred the use of both the expert’s report and the expert. Absent an expert, the court granted summary judgment in favor of the defendant. On appeal, we recognized a plaintiffs duty to move his own case forward, and upheld the decision of the trial court to exclude the expert who was procured after the date established in the scheduling order. Writing for this Court, Judge Moylan said: Appellant’s counsel knew from the outset of the litigation that an inspection of the premises was necessary for the successful pursuit of the appellant’s claim.

There was no reasonable excuse for the appellant’s protracted inaction in this case. ⁴⁸ * * * “For a trial court to permit a party to deviate so from a scheduling order without a showing of good cause is, on its face, prejudicial and fundamentally unfair to opposing parties, and would further contravene the very aims [of the rule] by decreasing the value of scheduling orders to the paper upon which they are printed.” Shelton, 119 Md.App. at 332-33 , 705 A.2d 25 (quoting Naughton v. Bankier, 114 Md.App. 641, 654 , 691 A.2d 712 (1997)). The reasoning of the cases cited above leads us to conclude that the trial court did not abuse its discretion in dismissing appellants’ complaint as to Dell. We explain. We observe, first, that appellants’ failure to answer interrogatories was a substantial, not a technical, discovery violation.

This case had seemingly languished for almost five years, and is altogether unlike Hart v. Miller, 65 Md.App. 620 , 501 A.2d 872 , cert. denied, 305 Md. 621 , 505 A.2d 1342 (1985). There, we determined that the trial court abused its discretion when it dismissed a case for failure of discovery, because “[w]hat remained to be done [in discovery] was trivial in comparison to what had already been undertaken.” Id. at 628 , 501 A.2d 872 . But in this case, it was not as if appellants had diligently complied with numerous or burdensome discovery requests, so that one oversight should have been overlooked. To the contrary, virtually no discovery had been undertaken by the parties, and Dell made several efforts to procure answers to his interrogatories.

Furthermore, contrary to appellants’ assertion, the trial court was not required to conclude that appellants’ failure to answer the interrogatories did not prejudice Dell in his defense of the lawsuit. The purpose of discovery is to “eliminate, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to the litigation.” Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13 , 174 A.2d 768 (1961). Interrogatories are often the most expeditious and least expensive way for a litigant to ascertain the witnesses and ⁴⁹ documents that will be important in an impending trial. See Paul V. Neimeyer & Linda M. Shuett, Maryland Rules Commentary 298 (2nd ed.1992).

At the time appellees moved for sanctions, the close of discovery was less than one month away. By the time it became apparent that the Warehimes were not going to