Markowsky v. Smith

• Decision Date: 10 February 1977
• Docket Number: No. 611,611
• Citation: 368 A.2d 1028,35 Md.App. 74
• Parties: Nathan MARKOWSKY v. William SMITH.
• Court: Court of Special Appeals of Maryland

Page 74

35 Md.App. 74

368 A.2d 1028

Nathan MARKOWSKY v. William SMITH.

No. 611.

Court of Special Appeals of Maryland.

Feb. 10, 1977.

William S. Barton, Baltimore, with whom were George L. Huber, Jr. and Arnold, Beauchemin & Huber, P.A., Baltimore, on the brief, for appellant.

No appearance for appellee.

Argued before THOMPSON, MOYLAN and POWERS, JJ.

POWERS, Judge.

Appellant here, Nathan Markowsky, was sued in the Superior Court of Baltimore City by William Smith, appellee, for damages alleged to have been sustained by Smith when their two automobiles collided on Washington Boulevard in Baltimore on 21 November 1974.

In a deposition taken while the case was pending, Smith described how the collision occurred. He said that he was driving a taxicab east on Washington Boulevard, when he decided to turn around to head west, to look for a fare. He made a right turn off of Washington Boulevard into 'a large yard for parking trucks', and turned around. He came back out onto Washington Boulevard, intending to make a left turn and head west. He was facing north, with his cab a little over halfway across the center line when Markowsky's car, going east, hit the left side of the cab. He said the damage on his cab was at the front left door and rear side post. ¹

On 2 December 1975 Markowsky filed a motion for summary judgment, supported by appropriate excerpts from Smith's deposition, and a memorandum of points and authorities. He requested a hearing on his motion. Smith filed nothing responsive to or in opposition to the motion for summary judgment. His counsel appeared for argument of the motion, held before Judge Shirley B. Jones on 29 January 1976. Judge Jones granted the motion, and on 2 February 1976 entered judgment for costs in favor of the defendant.

Eighty-four days after the judgment absolute for the defendant had been entered, Smith filed, on 26 April 1976, pursuant to Maryland Rule 625, a motion to set aside the judgment. As the ground of his motion he alleged fraud. He alleged (correctly, this time) that Markowsky was travelling east, but was in a westbound lane; that Markowsky had known that fact since the date of the accident, and had not openly revealed it; and had thus committed a fraud upon the court.

Then, to the utter mystification of this Court, Smith proceeded to allege in his motion that only after the summary judgment was granted did he learn the true facts in the case, which, if known earlier, would have precluded the summary judgment. As if it were not enough for a driver involved in motor vehicle collision to allege that he did not know the true facts for some 15 to 17 months after the collision, Smith filed with his motion an affidavit in which he set out his version of the facts and made oath that he had personal knowledge of those facts. Obviously, personal knowledge could come only from observation at the time.

An answer was filed by Markowsky to the motion to set aside the judgment. A memorandum supporting the answer was filed. The motion was heard before Judge Jones on 1 July 1976. On 6 July she filed this ruling:

'There is no evidence of fraud as plaintiff asserts in his motion to set aside the summary judgment of February 2, 1976. It does, however, appear to this court that a mistake was made in granting the judgment in that there is an issue of material fact in dispute which was not brought to the attention of the court at the hearimg on said motion. Under the circumstances judgment of February 2, 1976 in favor of the defendant is hereby stricken and the case will proceed to trial.'

The docket entry shows the judgment stricken. Markowsky appealed, and argues here that the court erred in striking the judgment.

If the order was not appealable, we lack the power to entertain the issue. It is clear under the authorities, however, that the order is final, and therefore appealable. Code, Courts Art., § 12-301. In Ventresca v. Weaver Brothers, 266 Md. 398, 292 A.2d 656 (1972), the Court of Appeals declined to dismiss an appeal from an order setting aside an enrolled judgment, as not final, and therefore not appealable. The Court said, at 403, 292 A.2d at 659:

'Thus, since the order appealed from vacated an enrolled judgment, appellee's contention is controlled by Mutual Benefit Society of Baltimore, Inc. v. Haywood, 257 Md. 538, 263 A.2d 868 (1970), where, in holding that 'an order striking out a judgment more than thirty days after entry is in the nature of a final order appealable to this Court,' we cited with approval Gay Investment Co. v. Angster, 231 Md. 318, 322, 190 A.2d 95 (1963), and Williams v. Snyder, Adm'r, 221 Md. 262, 267-68, 155 A.2d 904 (1959). Those decisions and other authorities cited in Williams, make it clear that one obtaining an enrolled judgment acquires a substantial right which, if divested by an order setting it aside, confers an immediate right of appeal to this Court. Having obtained an enrollment of their judgment by the expiration of 30 days following the order making the judgment final pursuant to Rule 605 a, the appellants acquired an immediate right of appeal to this Court.'

Maryland Rule 625 a provides, in part, that on a motion filed after the expiration of 30 days after the entry of a judgment, 'the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.' As the Court of Appeals said in Ventresca, supra, 266 Md. at 403-04, 292 A.2d at 659:

'As a result of a host of decisions too numerous to list completely here, it is now axiomatic that the power of the court to revise and control an enrolled judgment is no longer discretionary. * * *.

'From numerous decisions applying Rule 625 a, there have also emerged the requirements that, in addition to proving 'fraud, mistake or irregularity,' one seeking to set aside an enrolled judgment must also establish that he is acting in good faith, with ordinary diligence, and that he has a meritorious defense.'

There was no assertion of irregularity. The lower court rejected the claim of fraud. This leaves mistake as the only ground to be considered. If a mistake was made in granting the judgment, whose mistake was it? The record discloses no mistake by the court in entering the summary judgment, but even if the court had erred, such error is not a mistake under Rule 625 a. In Rhodes Co. v. Blue Ridge Co., 218 Md. 329, 146 A.2d 271 (1958), the Court of Appeals, in reversing an order striking out an enrolled summary judgment, said, at 331, 146 A.2d at 772:

'There is no doubt that after the judgment became enrolled thirty days after its entry, the court was without authority to get it aside unless the court, upon a proper motion, was satisfied that entry of the judgment had been procured by fraud or was entered by mistake or because of some irregularity, of which there was no proof in this instance. Even if we assume, without so holding, that the court was in error in deciding the motion for summary judgment in favor of Rhodes, such error would not constitute such a mistake as is contemplated by the rule.'

Just as it is the obligation of a party to present his facts to the court or jury at a trial, it is equally his obligation to place before the court in summary judgment proceedings, sufficient facts in the required evidentiary form, to raise a genuine dispute of a material fact, or to show that there is no such dispute. What all parties thus submit to the court becomes the body of evidence from which the court determines whether a trial is necessary.

We discussed the summary judgment procedure, under Maryland Rule 610, in Vanhook v. Merchants Mut. Ins. Co., 22 Md.App. 22, 321 A.2d 540 (1974). We commented, at 25, 321 A.2d at 542:

'It has been said repeatedly that the procedure is not a substitute for a trial, but a means by which the court may determine, summarily, whether a trial is necessary.'

We said that there are two questions before the court on motion for summary judgment:

'(a) was there a genuine dispute as to any material fact, and

(b) if not, were the undisputed facts such as to entitle any party to judgment.' 22 Md.App. at 25, 321 A.2d at 542.

In Vanhook,...