Hossainkhail v. Gebrehiwot

• Decision Date: 04 April 2002
• Docket Number: No. 1135,1135
• Citation: 143 Md. App. 716,795 A.2d 816
• Parties: Hammed HOSSAINKHAIL v. Seyoum GEBREHIWOT et al.
• Court: Court of Special Appeals of Maryland

795 A.2d 816

143 Md. App. 716

Hammed HOSSAINKHAIL v. Seyoum GEBREHIWOT et al.

No. 1135, Sept. Term, 2001.

Court of Special Appeals of Maryland.

April 4, 2002.

David A. Greenbaum (Freeman, Wolfe & Greenbaum, P.A. on the brief), Towson, for appellant.

Sheila F. Fleshman (Sasscer, Clagett & Bucher on the brief), Upper Marlboro, for appellees, Seyoum and Betty Gebrehiwot.

Maria K. Patterson (David L. Hendricks & Associates, on the brief), Lanham, for appellee, Nina Kirby.

Argued Before JAMES R. EYLER, SONNER and RAYMOND G. THIEME, Jr. (Ret., specially assigned), JJ. JAMES R. EYLER, Judge.

On April 19, 1999, Hammed Hossainkhail, appellant, filed a complaint in the Circuit Court for Prince George's County against Seyoum Gebrehiwot, Betty Gebrehiwot, and Nina Kirby, appellees.¹ Appellant alleged that he sustained personal injuries as a result of a motor vehicle accident that occurred on May 29, 1996, caused by the negligence of appellees. Specifically, the complaint alleged that Seyoum Gebrehiwot, acting as an agent of Betty Gebrehiwot, caused the accident by negligently striking appellant's vehicle. Kirby then struck Seyoum Gebrehiwot's vehicle, causing it to hit appellant's vehicle a second time.

The following chronology of events is not complete. We have set forth only those matters that are pertinent to the issues before us. According to the docket entries, the circuit court issued summonses for all appellees on April 21, 1999, and reissued summonses for Seyoum and Betty Gebrehiwot on August 26, 1999, October 26, 1999, and February 18, 2000.

On June 7, 2000, Seyoum and Betty Gebrehiwot filed an answer to the complaint.² On that same day, Seyoum and Betty Gebrehiwot propounded interrogatories and a request for production of documents to appellant. On August 8, 2000, Kirby directed interrogatories, a request for the production of documents, and a notice of deposition to appellant. Despite various requests, appellant was never deposed because of his unavailability.

On August 22, 2000, the court filed a scheduling order, mandating that all discovery be completed thirty days prior to the pre-trial conference set for December 15, 2000. In November 2000, with the consent of counsel and because of the unavailability of appellant, the pretrial conference was rescheduled for February 15, 2001.

Appellant failed to respond to appellees' discovery requests. Seyoum and Betty Gebrehiwot notified appellant on three occasions that responses to their requests were overdue. On September 21, 2000, Seyoum and Betty Gebrehiwot filed a motion to compel discovery. On October 20, 2000, appellant's counsel responded and stated that he had been unable to contact appellant.

By order dated October 20, 2000, the court granted the motion to compel and ordered appellant to provide discovery responses to Seyoum and Betty Gebrehiwot within thirty days. Presumably anticipating inaction, Seyoum and Betty Gebrehiwot's counsel notified appellant's counsel, by letter, of their intention to file a motion to dismiss upon noncompliance with the court's order. By letter dated November 22, 2000, counsel for Kirby notified appellant's counsel that their discovery requests were delinquent and requested an explanation.

Appellant failed to respond within thirty days from the date of the court's order compelling discovery. Pursuant to Rules 2-432 and 2-433, on December 13, 2000, Seyoum and Betty Gebrehiwot filed a motion to dismiss appellant's entire case for failure to provide discovery and for violation of the court's order. Again appellant's counsel responded by citing unsuccessful attempts to contact appellant but maintaining that appellant had not abandoned his claim. By order dated January 4, 2001, docketed on January 18, 2001, the court dismissed appellant's case with prejudice. Kirby did not file a motion to compel discovery or a motion to dismiss.

Appellant's counsel, with the assistance of a private investigator, located appellant, apparently sometime prior to January 29, 2001. On that date, appellant filed answers to the written discovery requests by all appellees and a motion for reconsideration of the dismissal order. On February 9, 2000, Seyoum and Betty Gebrehiwot filed an opposition to appellant's motion, asserting that dismissal was proper under Rule 2-433. On February 13, 2001, Kirby also filed an opposition. On June 8, 2001, the court held a hearing and denied appellant's motion for reconsideration. Appellant challenges that ruling on appeal.

Discussion

1.

The "motion for reconsideration" was not filed within ten days of the order of dismissal; thus, the time within which to note an appeal was not extended. Appellant recognizes, therefore, that the propriety of the underlying judgment is not before us. See Md. Rule 8-202. A trial court has revisory power and control over a judgment upon motion of a party filed within thirty days after entry of such judgment. Md. Rule 2-535(a). The issue before us is whether denial of appellant's motion for reconsideration was an abuse of discretion. See Wormwood v. Batching Sys., 124 Md.App. 695, 700-01, 723 A.2d 568 (1999). "We consider the facts and the law solely to review the validity of the conclusion [the hearing judge] reached on the point." New Freedom Corp. v. Brown, 260 Md. 383, 386, 272 A.2d 401 (1971). We will not reverse the judgment of the hearing judge unless there is grave reason for doing so. Northwestern Nat. Ins. Co. v. Samuel R. Rosoff, Ltd., 195 Md. 421, 434, 73 A.2d 461 (1950). Our focus is on whether justice has not been done. Clarke Baridon v. Union Asbestos & Rubber Co., 218 Md. 480, 483, 147 A.2d 221 (1958); Wormwood, 124 Md.App. at 700,723 A.2d 568; B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co., 73 Md.App. 530, 537, 535 A.2d 492 (1988) (citations omitted), rev'd on other grounds, 324 Md. 147, 596 A.2d 640 (1990).

2.

Appellant argues that the circuit court did not exercise discretion as it was required to do, and the ruling is reversible on that basis. We disagree. Discretion signifies choice. See Hart v. Miller, 65 Md.App. 620, 626, 501 A.2d 872 (1985). The court demonstrated its choice, finding:

[I]t's been clear, from the court's review of the file, this is a 1996 accident. [Appellant's counsel] has set forth his contention that liability is not really in dispute. It's obvious, from the court, liability is in dispute. It's also clear, from the court's review of the file and the arguments presented, that [appellant's counsel] was less than successful in attempting to contact and locate [appellant] up through December of last year, and has proffered that his client has had some personal domestic issues, and, as such, basically, put the prosecution of this matter on the "back burner," for want of a better term.

The court, upon consideration of the arguments that have been presented, the court noting that, according to the deadline for discovery, which was up back in November of 2000, and weighing the equities presented, the court, at this time, denies [appellant's] motion for reconsideration of its January order.

"If the judge has discretion, he must use it and the record must show that he used it." Nelson v. State, 315 Md. 62, 70, 553 A.2d 667 (1989). The court specifically found that (1) liability of the parties was in dispute; (2) appellant was at fault for the delay; (3) appellant's excuse was insufficient; and (4) the deadline for discovery expired in November, 2000. The court denied the motion for reconsideration after hearing and considering arguments from all counsel, reviewing the case file, and weighing the equities. C.f. Hart, 65 Md.App. at 627, 501 A.2d 872 (no exercise of discretion when court consistently applies uniform policy). The record clearly illustrates an exercise of judicial discretion.

3.

In the alternative, appellant argues that the court abused its discretion. When a court exercises its discretion by balancing and weighing the rights, interests, and reasons of the parties, the court is not required to discuss each factor considered. The court's exercise of discretion is presumed correct until the attacking party has overcome such a presumption by clear and convincing proof of abuse. Langrall, Muir & Noppinger v. Gladding, 282 Md. 397, 401, 384 A.2d 737 (1978). To overcome this presumption, appellant asserts that: (1) his conduct was not willful or contumacious; (2) he had a valid excuse; and (3) appellees were not prejudiced. Appellant's argument that his behavior was not willful or contumacious is without effect. The power to impose sanctions is not dependent on a finding that the defaulting party acted willfully or contumaciously. See North River Ins. Co. v. Mayor & City Council of Baltimore, 343 Md. 34, 86, 680 A.2d 480 (1996); see also Scully v. Tauber, 138 Md.App. 423, 432-33, 771 A.2d 550 (2001) (and cases cited therein).

Before we reach appellant's second and third arguments, we note that the following factors are used to guide a trial court's decision to impose sanctions: (1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; and (5) whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance. Taliaferro v. State, 295 Md. 376, 390-91, 456 A.2d 29 (1983). See Warehime v. Dell, 124 Md. App. 31, 45, 720 A.2d 1196 (1998); Heineman v. Bright, 124 Md.App. 1, 8-11, 720 A.2d 1182 (1998). The factors often overlap and do not lend themselves to a compartmental analysis. Taliaferro, 295 Md. at 391, 456 A.2d 29.

In light of the nature of the discovery violation, the timing of the disclosure, and the reason for delay, the circuit court did not abuse its discretion in finding appellant's excuse insufficient. Maryland Rules 2-421 (Interrogatories) and 2-422 (Discovery of...