Williams v. Williams

Moore, J., delivered the opinion of the Court. ⁶⁸⁶ The issue for decision on this appeal is whether the Chancellor erred in dismissing with prejudice a wife’s bill of complaint in a matrimonial cause, pursuant to Md. Rule 422, because of her failure to depose. Upon the facts of record, we find an abuse of discretion and, therefore, we reverse the decree from which the appeal was taken. I On July 22, 1975, Geraldine Williams, plaintiff-appellant, filed a bill of complaint for a divorce a vinculo matrimonii against John F. Williams, then a resident of Burke, Virginia, in the Circuit Court for Anne Arundel County on grounds of desertion and abandonment and adultery. On October 31, 1975, the court passed a pretrial order 1 setting a trial date for November 24, 1975, and containing, inter alia, the following provision: "Discovery under the Maryland Rules will not be permitted after November 15, 1975.

All discovery shall have been completed by that date.” The order also noted that the husband’s answer to the bill of complaint conceded that he had abandoned his wife, and that she was a fit and proper person to receive custody of the children. 2 On November 24 counsel for the husband moved to dismiss the wife’s bill under the provisions of Md. Rule 422 ⁶⁸⁷ b.3. 3 on the grounds that he had been unable to secure her deposition concerning certain property issues relative to the divorce notwithstanding the fact that it had been scheduled three times. The record reveals, however, that the first scheduled date, August 29, 1975, was postponed by agreement at the request of her attorney. The second date, October 7, 1975, was continued at the request of the husband’s attorney. The third date, November 10, 1975, was preceded by a settlement conference on November 7 — attended by Geraldine but not John — and it appeared that the negotiations were meeting with some success.

At all events, both counsel agreed to continue Geraldine’s deposition until November 17, 1975, and, under date of November 12, 1975, John’s counsel wrote to the trial judge, stating in part: “Additionally after a meeting with Mr. Lipman, we have agreed to postpone the plaintiff’s deposition until November 17, 1975. Your pre-trial limits discovery to November 15, 1975. If it will be required, I would appreciate your amending your order to accommodate this date inasmuch as the original deposition date was. scheduled for November 10th but the November 17th date appears to be more convenient for all parties. If there are any problems with any of the matters set forth above, I would appreciate your letting me know.” At about that juncture, Geraldine notified her attorney that she desired representation by other counsel.

Her ⁶⁸⁸ counsel advised John’s of this development and that her new counsel would undoubtedly desire to be heard as to the time and place of her deposition. On November 17, John’s counsel moved to continue the trial, referring to Geraldine’s decision to engage another attorney and that he wished to take her deposition before trial. Geraldine’s lawyer, who was in fact never replaced, did not appear in court on November 21, the date of the hearing on the motion for continuance, but notified the court that he did not oppose the motion. There is no transcript of the November 21 proceeding. 4 However, the motion to dismiss, filed on November 24, included the following assertions: “4.

That on November 21, 1975 the Honorable Judge W. Harvey Beardmore instructed the defendant to file this Motion to Dismiss [pursuant to Rule 422]. “5. That although defendant would prefer to continue this matter for a reasonable length of time, with instructions to the plaintiff to appear at a deposition scheduled for a day certain, defendant hereby complies with the request of the court and files this Motion to Dismiss.” It was also represented in the motion that the husband had been caused to expend $150 in counsel fees and compensation in that amount was requested. Geraldine, her original counsel and her witnesses were present in court on November 24, 1975, the trial date specified in the pretrial order — and the date on which the motion to dismiss was filed. (Geraldine’s counsel did not receive a copy of the motion until he appeared in the courtroom.) A partial transcript of the proceedings on November 24,1975, appended to appellant’s reply brief, is as follows: “COURT: Well, I’m willing to consider this, I’m willing to refer it to the Master if both parties ⁶⁸⁹ consent to it.

Otherwise I’m inclined to dismiss it with prejudice. MR. LIPMAN [Geraldine’s counsel]: Well, frankly, Your Honor, I think the Master could probably handle it. I hope that the other side will agree.

COURT: What’s your position, Mr. Hoffman? MR. HOFFMAN [John’s counsel]: If the court please, I would prefer the court to hear this matter; and I don’t think I can accede to that. COURT: All right then.

The court has considered this matter and bears in mind that its pretrial order bore a cutoff date for discovery of November 15, 1975. Previous dates — and there were no exceptions for that. It explicitly stated so in the pretrial order, notwithstanding the parties agreed to a deposition of the Plaintiff on November 17th and the court can’t understand why, but apparently it was because Plaintiff was contemplating new counsel. Well, if that’s the case, then the genesis for this problem arises from the Plaintiff’s standpoint not from the Defendant’s standpoint.

The Plaintiff has known since the date of the pretrial order, which was October 31, 1975 that this matter was set explictly for November 24, 1975 at ten a.m. and counsel were informed at that time that the court was going to hold to that schedule. Now the court’s schedule has been disrupted by the failure of this case to go forward, to be prepared at the time, and the court has instructed counsel for the Defendant to invoke Rule 422 of the Maryland Rules. It finds that the Plaintiff did not appear at the deposition as scheduled, and, therefore, the court is going to dismiss the action with prejudice.” 5 (Emphasis added.) ⁶⁹⁰ Appellee’s counsel had submitted an Order of Dismissal with the motion. The Chancellor signed that Order and added the words “with prejudice” by interlineation, so that the Order read, “[T]he above referenced action is dismissed with prejudice. . ..” Payment of $150 counsel fees by Geraldine was also ordered.

On this appeal, Geraldine assails the Chancellor’s Order of Dismissal on five separate grounds.- While we find it unnecessary to discuss each of them, we agree with her pervasive thesis that the Order appealed from was improper and must be reversed. II First, we observe that the husband’s motion to dismiss incorrectly cited Md. Rule 422 b.3. as its authority. Rule 422 b. is entitled “Failure to Comply With Order for Discovery.” Here, no discovery order had been entered. 6 See Evans v. Howard, 256 Md. 155 , 259 A. 2d 528 (1969). The applicable rule was Rule 422 c., bearing the title, “Failure of Party to Attend or Serve Answers to Interrogatories or Respond to Request for Inspection.” Rule 422 c.1. is designated “Motion — Grounds for — Order” and provides in pertinent part: “If a party ... fails to appear before the officer who is to take his deposition, after being served with a proper notice, . . . the court in which the action is pending on motion may make such orders in regard to failure as are just, and among others it may take any action authorized under subsections 1. [Matter Taken as Established], 2. [Prohibiting Claims, Defenses or Evidence] and 3. [Striking Pleadings — Stay — Dismissal — Judgment by Default] of Section b. of this Rule.” 7 ⁶⁹¹ It is well settled that the application of such sanctions as are provided in Rule 422 is within the sound discretion of the trial court.

Evans v. Howard, supra; Tydings v. Allied Painting & Decorating Co., 13 Md. App. 433 , 283 A. 2d 635 (1971). As stated by Judge Digges for the Court of Appeals in Mason v. Wolfing, 265 Md. 234, 236 , 288 A. 2d 880 (1972): “In this State, a trial judge has a large measure of discretion in applying sanctions for failure to adhere to the discovery rules. 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 this discretion was abused.” As for the circumstances where the “ultimate penalty” may properly be imposed, Chief Judge Hammond observed in Lynch v. R. E. Tull & Sons, Inc., 251 Md. 260, 261 , 247 A. 2d 286 (1968): “There have been suggestions that this ultimate sanction usually will be invoked only where the failure is wilful or contumacious [citing cases], but the power of the court to act is not thus limited and there may be other occasions when this gra/vest sanction can properly be invoked.” (Emphasis added.) Examination of leading Maryland cases involving discovery, where an action was dismissed or a default judgment or decree pro confesso was entered, reveals that in each instance the party against whom this “gravest sanction” was imposed had been guilty of conduct markedly different from that present here. For example: In Pfeiffer v. State Farm Mutual Automobile Insurance Co., 247 Md. 56 , 230 A. 2d 87 (1967), a suit for damages resulting from the insurer’s denial of coverage under an automobile liability insurance policy, plaintiff repeatedly answered defendant’s interrogatories tardily and in an insufficient and evasive manner.

Defendant’s exceptions to the ⁶⁹² answers were twice sustained. The trial court informed plaintiff that his cause would be dismissed if he did not submit adequate answers within fifteen days. When he did not do so, a non pros was entered in favor of the defendants, with costs, including a counsel fee of $50. On appeal, the Court of Appeals held that the sanctions were properly imposed, sua sponte, but affirmed in part and reversed in part, finding the non pros proper as to three counts of the declaration but improper as to two other counts and remanded the case for a limited trial.

In the leading case of Guerriero v. Friendly Finance Corp., 230 Md. 217 , 186 A. 2d 881 (1962), the corporate plaintiff, the holder of a judgment, sought relief in equity to have certain transactions set aside as fraudulent. In July, 1960, it filed interrogatories. After more than six months passed and no answers were made it moved on February 16, 1961 for a decree pro confesso which was entered five days later. In Miller v. Talbott, 239 Md. 382 , 211 A. 2d 741 (1965), after defendant did not answer plaintiffs interrogatories in a suit for specific performance, plaintiff moved for a decree pro confesso.

The Chancellor ordered defendant to show cause why the decree should not issue. When the defendant did not do so, the decree issued. As stated there by Judge Barnes: “Under the circumstances here, when 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 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 ⁶⁹³ applicable test — that no abuse of discretion was shown in entering the decree pro confesso.. ..” 239 Md. at 388 . The Court of Appeals nevertheless reversed and remanded, holding that the subsequent refusal