Grantham v. Board of County Com'rs for Prince George's County

• Decision Date: 08 October 1968
• Docket Number: No. 305,305
• Citation: 251 Md. 28,246 A.2d 548
• Parties: Vincent DePaul GRANTHAM, Jr., et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY.
• Court: Maryland Court of Appeals

Page 28

251 Md. 28

246 A.2d 548

Vincent DePaul GRANTHAM, Jr., et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY.

No. 305.

Court of Appeals of Maryland.

Oct. 8, 1968.

Thomas P. Smith and William L. Kaplan, Hyattsville (Feissner, Kaplan, Miller & Smith and Karl G. Feissner, Hyattsville, on the brief), for appellants.

Jerrold v. Powers, Upper Marlboro (Martin H. Freeman and Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

SINGLEY, Judge.

This controversy stems from a malpractice action instituted on 12 May 1966 in the Circuit Court for Prince George's County. The plaintiffs were Vincent DePaul Grantham, Jr., in his capacity as administrator of the estates of his deceased wife and a deceased infant daughter, and David I. Redmon, as next friend of Vincent DePaul Grantham, Jr., and of Grantham's son, Vincent DePaul Grantham, III, both of whom were minors. For the purposes of this opinion, the plaintiffs will be referred to collectively as 'Grantham.'

The defendants were two physicians, Dr. Max M. Herzberg and Dr. R. Kennedy Skipton, together with the Board of County Commissioners for Prince George's County (the Board) which operates the Prince George's General Hospital. The defendants were jointly and severally charged with having negligently caused the deaths of Grantham's wife and infant daughter. Other counts of the declaration sounded in breach of contract and of warranty.

The case was tried before a jury which on 14 February 1967 returned verdicts totalling $60,000 against Dr. Skipton and the Board, no negligence having been found as to Dr. Herzberg. On 6 April 1967, the defendants' motion for a new trial was granted. Thereafter, settlement negotiations were entered into between Karl G. Feissner, Esq., who represented Grantham, and Cary M. Euwer, Esq., who represented Dr. Skipton. A figure of $31,802.98 was finally agreed upon, and either Mr. Feissner, or William L. Kaplan, an associate of Mr. Feissner's, prepared a release, in a form intended to come within the provisions of the Uniform Contribution Among Tort-Feasors Act Maryland Code (1957) Art. 50, §§ 16-24 (the Act) and a 'line', or order to dismiss:

'As to Defendant R. Kennedy Skipton only, please enter this matter as dismissed, with prejudice.'

The 'line' was signed by Mr. Feissner, and both the 'line' and the release were delivered to Mr. Euwer on 19 June 1967.

Because of the fact that minors were involved, Mr. Euwer was insistent that the entry of judgments be a condition of the settlement. He testified:

'Mr. Feissner and I agreed on a settlement figure, I believe it was possibly in May, and he prepared a release and an order of dismissal, and then he was very anxious to get the draft. And one day Mr. Kaplan came to my office, and in the meantime I had talked to Mr. Pledger, who was Washington counsel for this insurance company, and also to Mr. Bober, who was the claims agent in Chicago, and because there were infants involved they insisted on a judgment being entered. And Mr. Kaplan came in my office and I showed him the check and I said, 'I can't give it to you until we have an entry of judgment. You give me the figures as to how you want this judgment set up and then I will be able to deliver the check after it is signed by the Court.' And he gave me the figures, and then he told me that Mr. Feissner was going to be down here.'

Thereafter, according to Mr. Kaplan's testimony, a stipulation was prepared by Mr. Kaplan, apportioning the settlement figure among the several plaintiffs:

'I think perhaps we have got a conflict here as to the request for a judgment between Mr. Euwer and myself. I recall Mr. Euwer speaking to me about his company requiring a judgment to be entered because of minors. At this point I believe in my haste to get the check I even offered to prepare a judgment. When I got back to the office and discussed it with Mr. Feissner, our discussion reached the point where we decided we had better not file a judgment, let's do it by stipulation that has the approval of the Court in order to protect the minors under the code. This is the document that was brought to Mr. Euwer's office, this was the document that had the figures and the breakdown of the amounts.'

The stipulation, signed by Mr. Feissner, was delivered to Mr. Euwer.

By 11 July 1967, Mr. Euwer had in his possession the release, the 'line', and the stipulation. Mr. Feissner was to be engaged in the trial of a criminal case on that day, and when Feissner and Euwer were unsuccessful in their efforts to see the court in the morning, Feissner sent Thomas P. Smith, a law clerk in his office, to see Euwer. Smith and Euwer saw the court in chambers later in the day. The court endorsed a form of approval on the stipulation and then signed an order for the entry of judgments in the amounts set out in the stipulation:

'ORDER FOR ENTRY OF JUDGMENT

Upon the aforegoing declaration, plea, and settlement stipulation, it is, by the Circuit Court for Prince George's County, Maryland, this 11th day of July, 1967,

ORDERED that judgments be entered herein in favor of plaintiffs in the total amount of $31,802.98, to be apportioned as follows:

In favor of the infant, Vincent DePaul Grantham, III, in the amount of $18,551.74.

In favor of the infant, Vincent DePaul Grantham, Jr., in the amount of $10,600.99.

And in favor of the Estate of Doris Grantham, in the amount of $2,650.25.

/s/ Roscoe H. Parker

Judge'

This order, prepared by Mr. Euwer, had not been seen by Mr. Smith. In an affidavit which he later filed in the case, Mr. Feissner said:

'* * * While your affiant has no independent recollection of ever having seen or approved the 'ORDER FOR ENTRY OF JUDGMENT', signed by the Court and filed on July 11, 1967, and therefore can neither admit nor deny whether such event actually occurred, he feels that in view of the extensive research he had conducted during the preparation of the release referred to above, and his knowledge that a judgment satisfied and paid by one joint tort feasor would release others from liability, if he had seen such an order prior to its submission to the Court, he would not have consented to its form or substance.'

The stipulation and the judgments were filed on 11 July, and the settlement check was delivered by Mr. Euwer to Mr. Feissner, who was still engaged in the trial of the criminal case.

On the following day, 12 July, Mr. Euwer filed the 'line' or order of dismissal, which had been sent him by Mr. Feissner. As filed, the 'line' read:

'As to Defendant R. Kennedy Skipton only, please enter this matter as dismissed, with prejudice, and the judgment paid and satisfied.' (Italics added.)

Mr. Feissner denies that he consented to, or had knowledge of, the addition of the italicized phrase.

On 14 August 1967, the Board filed a plea puis darrein continuance and a motion for summary judgment on the ground that the satisfaction of the judgments against Skipton resulted in a release of the Board. When this motion was granted, Grantham moved to vacate the judgments, and his motion was denied. From the granting of the motion for summary judgment and the denial of the motion to vacate, this appeal was taken.

The Denial of the Motion to Vacate

Prior to argument of the case in this Court, Skipton filed a timely motion to dismiss Grantham's appeal from the denial of the motion to vacate the judgments, which after hearing was granted by us on 6 December 1967. On the same day, we denied the Board's motion to dismiss the appeal from the order denying the motion to vacate. In his appeal, Grantham maintains that the lower court was in error when it refused to vacate the judgments. We regard the reasons which led us to dismiss the appeal as to Skipton as being equally applicable to the Board.

Since we did not state our reasons then, we will give them now. The judgments were entered on 11 July 1967, and Grantham's motion to vacate was filed on 31 August. Maryland Rule 625 a provides that after 30 days have elapsed from the entry of a judgment the court's revisory power and control may be exercised '* * * only in case of fraud, mistake or irregularity.' Grantham does not allege fraud, but relies on the contention that the judgments were entered in consequence of a unilateral mistake, and involved an element of surprise amounting to irregularity. In support of this contention, he relies on Pinkston v. Swift, 231 Md. 346, 190 A.2d 533 (1963).

'* * * As a general rule an enrolled decree may not be reopened or set aside except upon a bill of review for error apparent on the face of the decree or for newly discovered evidence, or upon an original bill for fraud. However, if a case has not been heard on its merits, an enrolled decree may be set aside on a petition filed in the original proceeding where there is a showing that the decree was entered by surprise or mistake, or where the circumstances are such as to satisfy the court in the exercise of a sound discretion that the enrolled decree should be set aside.' Pinkston v. Swift, 231 Md. 346 at 351, 190 A.2d 533 at 536, citing Cramer v. Wildwood Development Co., 227 Md. 102, 107, 175 A.2d 750 (1961); Kennard v. McKamer Realty Co., 224 Md. 490, 496, 168 A.2d 369 (1961); Pugh v. Waclawski, 211 Md. 346, 351, 127 A.2d 376 (1956).

See also, Bell v. Shifflett, 249 Md. 104, 238 A.2d 533 (1968); Gray v. Gray, 245 Md. 713, 228 A.2d 441 (1967); Murray v. Fishman Constr. Co., 241 Md. 538, 217 A.2d 357 (1966); Tasea Investment Corp. v. Dele, 222 Md. 474, 160 A.2d 920 (1960).

Judge Horney, in the opinion which he filed for this Court in Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475, 240 A.2d 239 (1968) summarized the burden which the moving party must meet:

'As was pointed out in Tasea Investment Corp. v. Dale, 222 Md. 474, 160 A.2d 920 (1960) and in Marray v. Fishman Construction Co., 241...