Phillips v. Venker

• Decision Date: 30 May 1989
• Docket Number: S,No. 105,105
• Citation: 316 Md. 212,557 A.2d 1338
• Parties: Goldie May PHILLIPS, et vir v. Dorothy M. VENKER, et al. ept. Term 1987.
• Court: Maryland Court of Appeals

Page 212

316 Md. 212

557 A.2d 1338

Goldie May PHILLIPS, et vir v. Dorothy M. VENKER, et al.

No. 105, Sept. Term 1987.

Court of Appeals of Maryland.

May 30, 1989.

Bruce A. Kent, Arbutus, for appellants.

Donna L. Jacobs (Benjamin R. Goertemiller and Semmes, Bowen & Semmes, on the brief), Baltimore, for appellees.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and CHARLES E. ORTH, Jr. Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.

McAULIFFE, Judge.

The plaintiffs in a personal injury action contend they were denied due process of law in connection with a telephone conference hearing of a motion for summary judgment. Interestingly, their complaint is not that the hearing was conducted by telephone, but rather that they were not given adequate notice of the hearing.

I.

Goldie May Phillips suffered personal injury when the automobile in which she was riding collided with a parked car. Phillips and her husband (the plaintiffs) sued Dorothy M. Venker, the driver, claiming that Venker's negligence caused or contributed to the occurrence of the accident. Venker ultimately moved for summary judgment, largely relying upon the depositions of the injured plaintiff and of an impartial witness to support her contention that the accident was caused solely by the negligence of a third person. ¹ Venker also filed a request for hearing pursuant to Maryland Rule 2-311(f), together with a comprehensive memorandum of points and authorities in support of her motion. The plaintiffs filed a timely response in opposition to the motion, together with their memorandum of points and authorities. On or about 19 February 1987 the parties were notified in writing that the motion would be heard in Room 420 of the Circuit Court for Baltimore City at 2:00 p.m. on 12 March 1987. On 27 February counsel for the plaintiffs requested a continuance of the hearing, advising the court that he would be out of the state on 12 March.

On 9 March, plaintiffs' counsel called the court to determine whether any action had been taken on his request for a continuance. We do not know with whom counsel spoke, but we may infer that his inquiry was promptly referred to Judge Marvin Steinberg, to whom the matter had apparently been assigned for the purpose of hearing the motion for summary judgment. Judge Steinberg's office arranged for an immediate telephone conference between counsel for each party and the judge, ostensibly to discuss the request for a continuance. The telephone conference was not recorded, but the parties have stipulated to the following facts:

On March 9, 1987, in response to the [plaintiffs'] counsel's attempts to determine whether the hearing would be postponed, Circuit Court Judge Marvin Steinberg arranged a conference call with Benjamin R. Goertemiller, counsel for the [defendant], and Bruce A. Kent, counsel for the [plaintiffs], to discuss the status of the hearing and the pending motion.

Judge Steinberg expressed reluctance to postpone the March 12, 1987 hearing and inquired as to the issues to be argued. Counsel for the [plaintiffs] stated that he did not have his file in hand, had not reviewed it for argument and had two clients in his office at the time. After counsel secured his file, a hearing on the merits in which counsel argued both the facts and the law ensued. The entire hearing lasted at least twenty (20) to twenty-five (25) minutes.

At its conclusion, Judge Steinberg granted the [defendant's] motion and asked counsel for the [defendant] to prepare an order in accordance with his ruling.

The order was duly signed and filed, and plaintiffs appealed. We granted certiorari before consideration by the Court of Special Appeals, and we now reverse and remand for hearing after proper notice.

II.

The threshold question in this appeal is whether plaintiffs have preserved the issue of adequate notice for appellate review. The defendant argues that because plaintiffs did not expressly object to the holding of the hearing prior to its regularly scheduled time, that issue has been waived. Maryland Rule 3-517(c), dealing with the proper method of making objections, provides:

For purposes of review by the trial court or on appeal of any ... ruling or order [other than a ruling on the admission of evidence], it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court. The grounds for the objection need not be stated unless these rules expressly provide otherwise or the court so directs. If a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection at that time does not constitute a waiver of the objection.

We are somewhat hampered by the absence of a record of the proceedings, but from the stipulation of the parties and from what we were told at oral argument, we conclude that the protestations of plaintiffs' attorney satisfied the requirement of a timely objection. Although it would have been preferable for the attorney to employ the time-honored expression of "I object," thus removing any question about preservation, we believe that given the unusual circumstances of this case, his statements were sufficient to convey his objection. We are mindful of the fact that the conference call initiated by the judge came as a surprise to counsel. He received the call while with other clients, apparently believing a brief discussion concerning the requested continuance would ensue. When the judge unexpectedly announced that he was turning to a discussion of the merits of the motion for summary judgment, plaintiffs' attorney protested. He said, understandably we think, that he was not prepared to argue the motion then and there. He had not reviewed his file, did not have his file before him, and was engaged with other clients. Under the circumstances, we treat those statements as an adequate objection. When the trial judge replied by insisting that the attorney obtain his file, he effectively overruled the objection. The question of adequate notice was preserved.

III.

In considering plaintiffs' claim of lack of adequate notice, we first examine their entitlement to a hearing. Plaintiffs clearly had a property interest at stake and, unless they waived their right in some manner, they would ordinarily have a right to a hearing before being deprived of that property interest. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). Rule 2-311(f), as it pertains to a motion of this kind, provides:

A party desiring a hearing on a motion ... shall so request in the motion or response under the heading "Request for Hearing." Except when a rule expressly provides for a hearing, the court shall determine in each case whether a hearing will be held, but it may not render a decision that is dispositive of a claim or defense without a hearing if one was requested as provided in this section.

The decision on this motion was "dispositive of a claim," thus satisfying one prong of the requirement for a hearing. The question that remains is whether the fact that the request for a hearing was made by the defendant and not by the plaintiffs is of any consequence. We hold that it is not. Literally read, the rule might appear to afford a right of hearing only to the party filing the request. But where, as here, one party has filed the request that triggers the requirement for a hearing in certain circumstances, it would make little sense to require the remaining parties to file redundant requests. The common sense interpretation of the rule, which we understand to be widely followed in practice, is explained by P. Niemeyer and L. Richards, Maryland Rules Commentary (1984), at page 33 of the 1988 supplement:

Under section (f) of this rule, if the motion is one for which a hearing must be granted and the moving party demands a hearing, the court may not thereafter rule on the motion without a hearing, even if no response is filed. The motions rule does not recognize the concept of a default in response to a motion. Rather, the court must consider the merits of the motion before it. The responding party may elect to file no response and rely on the hearing demanded by the moving party. The parties may stipulate, however, to a withdrawal of the request for hearing.

We conclude that plaintiffs did not waive their right to a hearing in this matter.

We turn to the question of the type of hearing to which plaintiffs were entitled. In some instances, even a temporary deprivation of a property interest followed by a right to a full hearing has been held to violate due process unless a pretermination hearing is provided. Goldberg v. Kelly, 397 U.S. 254, 266-71, 90 S.Ct. 1011, 1019-22, 25 L.Ed.2d 287 (1970). In other circumstances, a "paper hearing," i.e. the right to be "heard" through the filing of documents and written arguments, may suffice. Mathews v. Eldridge, supra; Wilkens v. Rogers, 581 F.2d 399, 405 (4th Cir.1978); Sarelas v. Porikos, 320 F.2d 827, 828 (7th Cir.1963). As the Supreme Court has said, " '[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). Rather, it is "flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In Mathews, supra, the Court said that identification of the specific dictates of due process generally requires consideration of three distinct factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of...