Bland v. Hammond, 1843, September Term, 2006.
| Decision Date | 06 November 2007 |
| Docket Number | No. 1843, September Term, 2006.,1843, September Term, 2006. |
| Citation | 935 A.2d 457,177 Md. App. 340 |
| Parties | Charlain BLAND v. Joseph HAMMOND, et al. |
| Court | Court of Special Appeals of Maryland |
Chantelle M. Custodio (Paul A. Turkheimer, Meyers, Rodbell & Rosenbaum PA on the brief), Riverdale Park, for appellant.
James M. Brault (Melissa G. Brault, Brault Graham, LLC on the brief), Rockville, for appellee.
Argued before ADKINS, SHARER, WOODWARD, JJ.
In this appeal we are asked to determine whether the unprofessional conduct of an attorney, resulting in the dismissal of his client's tort action, amounted to fraud and, if so, whether the fraud was extrinsic and, thus, a basis for vacating the judgment of dismissal. We shall hold that the conduct of the attorney did not, on the extant facts, rise to the level of extrinsic fraud.
Charlain Bland, appellant, excepts to the denial of her motion to vacate judgment by the Circuit Court for Prince George's County. Bland raises two issues, which we have rephrased as:1
Whether the unprofessional conduct of a litigant's attorney, resulting in dismissal of the litigant's suit, amounts to extrinsic fraud that would justify vacating the judgment.
For the reasons that follow, we shall affirm the judgment of the circuit court.
The genesis of appellant's claim against Joseph Hammond and Sylvia Hammond, appellees, is a rear-end collision that occurred in Prince George's County on June 15, 1998. Bland was injured and incurred more than $25,000 in hospital and other medical expenses.
In July 1998, Bland retained Michael J. Graham, a member of the Maryland bar, to represent her in her tort claim. On June 13, 2001, just two days before the expiration of the statute of limitations, Graham filed a complaint on Bland's behalf in the Circuit Court for Prince George's County. What, if any, effort Graham made on behalf of Bland in the interval between his having been retained, and the filing of the complaint, is not clear from the record.
Thereafter, appellees, through counsel, filed a timely answer to the complaint and, on December 31, 2001, served Graham with interrogatories and a request for production of documents. Bland alleges that Graham did not contact her to obtain information to answer the discovery. Not having received the requested discovery, appellees filed a motion to compel on July 31, 2002. Again, Graham did not discuss the motion with Bland, nor did he respond to the motion.
On August 27, 2002, at a pre-trial/scheduling conference, Graham signed, on behalf of Bland, a consent order agreeing to produce the requested discovery within 30 days. He did not comply with the consent order. Bland did not attend the pre-trial conference and Graham allegedly did not advise her of what occurred at the conference.
Because the discovery was still not forthcoming, appellees filed, on December 9, 2002, a motion for sanctions. Graham responded to the motion for sanctions by requesting an extension of time to provide discovery. The court took no action on the motion for sanctions, but still Graham did not comply. By order of January 9, 2003, the court granted appellees' motion to compel, directing Graham to provide discovery by February 15, 2003. Again, Graham did not provide the discovery, nor did he discuss with Bland the need to do so.
Appellees filed a second motion for sanctions on March 7, 2003. Graham did not respond to the motion, nor did he advise Bland of its filing. Finally, on April 9, 2003, the court dismissed Bland's suit, without prejudice, as a sanction for not providing the requested discovery. Graham did not advise Bland of the dismissal but, on April 15, 2003, sent to Bland, by fax transmission, a draft of answers to interrogatories. Bland asserts that, throughout the period of Graham's representation, her repeated attempts to contact him to discuss her case were unsuccessful.
Ultimately, Bland conducted a personal search of the case file in the circuit court and, in December, 2004, learned that her suit had been dismissed without prejudice. Of course, by that time, limitations on her claims against appellees had expired. She next filed a complaint with the Attorney Grievance Commission, only to learn that Graham had been suspended indefinitely by the Court of Appeals on November 5, 2004.2 It appears from the record that, even after having been suspended, Graham continued to mislead Bland to believe that he was still actively engaged in representing her.
Bland filed a legal malpractice action against Graham in July 2005, asserting claims of breach of contract, breach of fiduciary duty, fraudulent misrepresentation, and fraudulent concealment. Graham filed an answer to the complaint, but did not timely respond to discovery. Judgment by default was entered by the circuit court against Graham on February 22, 2006. Bland has been unsuccessful in her collection efforts and now avers that Graham is uninsured and judgment proof.
Bland filed her motion to vacate on February 23, 2006, contending that Graham's conduct in dealing with her case constituted extrinsic fraud that entitled her to set aside the April, 2003 judgment, pursuant to Md.Code, Cts. & Jud. Proc. § 6-408 and Md. Rule 2-535(b). Appellees filed a timely opposition to the motion to vacate. The circuit court, after considering the parties' memoranda, supplemental memoranda, and argument in open court, filed a memorandum and order of court on September 26, 2006, denying appellant's motion to vacate. This timely appeal followed.
We review the denial of a motion to vacate an enrolled judgment under an abuse of discretion standard. Das v. Das, 133 Md.App. 1, 15, 754 A.2d 441 (2000). Abuse of discretion occurs
"where no reasonable person would take the view adopted by the [trial] court," or when the court acts "without reference to any guiding rules or principles." It has also been said to exist when the ruling under consideration "appears to have been made on untenable grounds," when the ruling is "clearly against the logic and effect of facts and inferences before the court," when the ruling is "clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result," when the ruling is "violative of fact and logic," or when it constitutes an "untenable judicial act that defies reason and works an injustice."
Id. at 15, 754 A.2d 441. In particular, fraud, which appellant alleges, must be proven by clear and convincing evidence. Id. at 17, 754 A.2d 441.
The circuit court in the case sub judice found that appellant We agree, and hold that the conduct of appellant's attorney does not fall within the definition of extrinsic fraud as contemplated by established Maryland law.
The issue before us brings into play the revisory power of the trial court, the authority for which is found in the parallel provisions of Maryland Code, Courts and Judicial Proceedings, § 6-408 and Md. Rule 2-535 that establish a 30 day revisory window.3 After the 30 day revisory period has passed, a circuit court can vacate or revise an enrolled judgment only upon a showing of fraud, mistake, irregularity, or the failure of the court to perform a duty required by statute or rule. Md. Rule 2-353(b). The purpose of the rule is to ensure the finality of judgments. See Das, supra, 133 Md.App. at 17-18, 754 A.2d 441. The Maryland cases are legion that recognize the principle that there must be a definite and foreseeable end to litigation, and that ordinarily judgments should not be vacated after the passage of the 30-day review period. Fleisher v. Fleisher Co., 60 Md.App. 565, 568, 483 A.2d 1312 (1984). Nonetheless, we also recognize that in exceptional cases, judgments may be vacated or revised when specific criteria are met. Id. The rules of finality apply to all final judgments, including those entered by default. See Das, supra, 133 Md.App. at 17-18, 754 A.2d 441, (citing Maggin v. Stevens, 266 Md. 14, 16, 291 A.2d 440 (1972)).
The terms "fraud," "mistake," and "irregularity," as applied in Md. Rule 2-535 and its predecessor, Md. Rule 625(a), have been thoroughly defined by the opinions of this Court and the Court of Appeals. "Fraud," "mistake," and "irregularity" are to be "narrowly defined and strictly applied." See Autobahn Motors, Inc. v. Baltimore, 321 Md. 558, 562, 583 A.2d 731 (1991) (citing Andresen v. Andresen, 317 Md. 380, 389, 564 A.2d 399 (1989)) (quoting Platt v. Platt, 302 Md. 9, 485 A.2d 250 (1984)).
Appellant asserts that Graham's conduct went beyond mere negligence or legal malpractice and rose to the level of fraud. Appellees respond that Graham's handling-or non-handling-of Bland's case was nothing more than traditional legal negligence, and not a fraud upon either Bland or the court. Appellees argues that
[a]ppellant's attempt to dress up her attorney's malpractice by calling it "fraud" lacks substance. The case was dismissed because of Graham's failures to comply with court orders-not because a fraud was perpetrated on her or the court. That Graham did not inform Appellant of the court rulings, including the fact that the case had been dismissed as a result of his malpractice, may constitute a breach of counsel's duties owed to a client and violation of the Rules of Professional Conduct; however, it does not amount to the type of fraud sufficient to set aside a judgment.
An attorney is held to the Rules of Professional Conduct, including Rule 1. 1, which requires that In turn, Rule 1.4,...
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