Powell v. Breslin

• Decision Date: 18 January 2013
• Docket Number: No. 11,Sept. Term, 2012.,11
• Citation: 430 Md. 52,59 A.3d 531
• Parties: Ronald L. POWELL, et al. v. Jeffrey BRESLIN, et al.
• Court: Maryland Court of Appeals

430 Md. 52
59 A.3d 531

Ronald L. POWELL, et al.
v.
Jeffrey BRESLIN, et al.

No. 11, Sept. Term, 2012.

Court of Appeals of Maryland.

Jan. 18, 2013.

[59 A.3d 533]

David M. Kopstein (Kopstein & Associates, LLC, Seabrook, MD; Jay D. Miller of Miller, Murtha & Psoras, LLC, Lutherville, MD), on brief, for appellants.

Edwin L. Keating, III (E. Philip Franke and Siobhan R. Keenan of Baxter, Baker, Sidle, Conn & Jones, P.A., Baltimore, MD), on brief, for appellees.

Michael J. Winkelman, Esq., McCarthy, Winkelman & Morrow, LLP, Bowie, MD, for amicus curiae brief of Maryland Association for Justice.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

HARRELL, J.

[430 Md. 56]This case has a lot of moving parts. This is the second time it has reached this Court, without reaching the merits of its underlying medical malpractice claims.

I. FACTS AND PROCEDURAL HISTORY

While under the care of Dr. Jeffrey R. Breslin (employed by Drs. Kremen, Breslin & Fraiman, P.A.), Jackie D. Powell, the decedent and father of Ronald L. Powell,¹ was injured allegedly in 2002 while at Good Samaritan Hospital in Baltimore.

[59 A.3d 534]

The asserted cause of the injury and ultimate death in 2004 of Mr. Powell was medical negligence and lack of informed consent in the administration by Dr. Breslin (and others) of epidural anesthesia.

[430 Md. 57]Powell filed on 30 July 2004 a Statement of Claim (commencing what we refer to as Powell I ) with the Maryland Health Care Alternative Dispute Resolution Office (“HCADRO”), together with a Certificate of Qualified Expert and Report (“Certificate”), pursuant to Md.Code (1974, 2006 Repl.Vol.2010 Supp.), Courts and Judicial Proceedings Article (“CJP”) § 3–2A–04(b), ² and served notice of intent to waive arbitration. thE ORIGINAL Statement of Claim named as defendants a Dr. Wolf, Hunt Valley Anesthesia Associates, P.A., and Good Samaritan Hospital. Powell amended his claim twice: once later in 2004 to add two negligence counts against Good Samaritan, and a second time, in 2005, to name Dr. Breslin and his professional association, Drs. Kremen, Breslin & Fraiman, P.A. (Dr. Breslin and the P.A. shall be referred to sometimes as Appellees hereafter), as additional defendants. Along with the second amended claim, Powell filed another Certificate and a supporting report by Dr. Ronald E. Burt, a board certified anesthesiologist. In view of the notice of intention to waive arbitration before the HCADRO, jurisdiction over the second amended claim was transferred to the Circuit Court for Baltimore City on 8 August 2005.

A deposition of Dr. Burt revealed that he was unable to attest to the applicable standard of care for vascular surgeons, such as Dr. Breslin, because he lacked any clinical, academic, or expert experience in vascular surgery. Because Dr. Burt was Appellant's only standard of care expert witness on this point, Appellees moved for summary judgment. After a hearing on the motion, Judge Kaye Allison of the Circuit Court issued a Memorandum Opinion and Order granting summary judgment to Appellees on 24 January 2007.³ After the claims against [430 Md. 58]Dr. Wolf and Hunt Valley Anesthesia Associates, P.A., were resolved through settlement and they were dismissed from the case, Powell appealed the grant of summary judgment in favor of Appellees to the Court of Special Appeals on 27 March 2009. The intermediate appellate court held that, when a Certificate is insufficient as a matter of law under CJP § 3–2A–04(b) because it was signed by an expert who was not qualified to attest to the standard of care required by CJP § 3–2A–02(c), the appropriate remedy is to dismiss the suit against the Defendants, without prejudice. Powell v. Breslin, 195 Md.App. 340, 361, 6 A.3d 360, 372 (2010). We affirmed that judgment in Breslin v. Powell, 421 Md. 266, 298–99, 26 A.3d 878, 898 (2011)⁴ (“ Powell I ”), and

[59 A.3d 535]

directed ultimately the vacation of Judge Allison's grant of summary judgment and issuance by the trial court of an order compliant with our holding. Id. at 299, 26 A.3d at 898. On 28 September 2011, Judge W. Michel Pierson of the Circuit Court, on remand in PowellI, entered an order dismissing the complaint, without prejudice. By that time, however, the statute of limitations had expired on the underlying merits of the substantive claims at the heart of the amended complaint in PowellI.See CJP § 5–109.⁵

[430 Md. 59]We turn back the clock at this point in this opinion to 2007 to pick up the skein of the relevant events. Perhaps sensing the potential for a limitations problem on the horizon, Powell on 2 February 2007 (barely one week after Judge Allison's grant of summary judgment in PowellI) filed a second, identical Statement of Claim (which we shall refer to as the inception of “ Powell II”) as had been filed initially with the HCADRO in Powell I. Instead of requesting the HCADRO to stay Powell II pending the final outcome of Powell I, Powell filed a Certificate and waived arbitration in Powell II on 27 July 2007. The claim was transferred to the Circuit Court on 27 August 2007.⁶ In response to Powell's complaint in Powell II, Appellees filed on 5 October 2007 in the Circuit Court a Motion for Summary Judgment. Appellees claimed that the doctrine of res judicata, relying on the outstanding and facially viable and effective trial court final adjudication of PowellI (which, at that time, was on appeal), barred the relitigation in Powell II. After a hearing on 26 November 2007, Judge Pierson held the summary judgment motion sub curia until 21 March 2008, at which time he granted Appellees' Motion for Summary Judgment, noting that a relitigation of one claim is barred by a final judgment on the merits of the same claim, “regardless of whether the prior decision was legally correct.” ⁷

The Clerk of the Circuit Court, however, failed to mail copies to the parties of Judge Pierson's order granting summary[430 Md. 60]judgment in Powell II. ⁸ Therefore, pursuant to the Court's revisory power over a judgment under Md. Rule 2–535(b),⁹ Judge

[59 A.3d 536]

Evelyn Omega Cannon vacated Judge Pierson's 21 March 2008 order and granted summary judgment anew on 3 November 2008 for the same reasons underlying Judge Pierson's order.

Powell appealed the final judgment in PowellII on 10 December 2008, which resulted in concurrent appeals pending before the Court of Special Appeals: Ronald L. Powell, et al. v. Jeffrey Breslin, et al., 195 Md.App. 340, 6 A.3d 360 (2010) (Powell I ), and Ronald L. Powell, et al v. Jeffrey Breslin, et al., No. 2316, September Term, 2008 ( Powell II).¹⁰ Although granted an extension of time to file an Appellant's brief in Powell II, Powell did not do so. On 7 July 2009, Powell dismissed his appeal in Powell II.

Almost three years after Judge Cannon's entry of final judgment in Powell II, and more than two years after Powell dismissed voluntarily his appeal in that case, Powell filed on 12 October 2011 in the Circuit Court in Powell II a Motion to Reopen Case and Vacate Judgment. He requested that the Circuit Court vacate Judge Cannon's grant of summary judgment, pursuant to Md. Rule 2–535, based on the hindsight that her reliance on the preclusive effect of Judge Allison's decision in PowellI was faulty because Judge Allison's decision was found on appeal to be erroneous. Appellees opposed that Motion, arguing that Powell failed to satisfy the requirements of Md. Rule 2–535 to prove fraud, mistake or irregularity to [430 Md. 61]justify reopening the enrolled final judgment in Powell II. Judge Cannon denied the Motion on 17 November 2011.

Powell appealed to the Court of Special Appeals. On 1 March 2012, while the matter was pending still in the intermediate appellate court, Powell filed a Petition for Writ of Certiorari with this Court. That petition posed two questions for our review:

1. Should a case that has been dismissed solely because of the preclusive effect of an earlier judgment in another case be reopened if the earlier judgment is vacated?

2. If a civil case that should have been dismissed without prejudice is erroneously dismissed with prejudice and the error is not corrected until after the limitations period has expired, does the plaintiff have any recourse?

We granted Powell's petition and issued a writ of certiorari on 20 April 2012, Powell v. Breslin, 425 Md. 396, 41 A.3d 571 (2012), before the intermediate appellate court decided the appeal.¹¹ In his petition for writ of certiorari, Powell maintained that, unless we order the trial court to reopen Powell II on essentially a novel equitable basis, or interpret Maryland Rule 2–535(b) to conclude that there was fraud, mistake or irregularity in Judge

[59 A.3d 537]

Cannon's refusal to reopen Powell II, Appellant will lose the opportunity obtained by prevailing in Powell I.

We hold, first, that Judge Cannon did not err as a matter of law in granting summary judgment on 12 November 2008 [430 Md. 62]because, at the time Judge Cannon entered final judgment in Powell II, the doctrine of res judicata barred the maintenance of the litigation of Powell II based on Judge Allison's as-yet-then-unreversed 24 January 2007 grant of summary judgment in Powell I. We are unmoved sufficiently to deviate from the appropriate application of res judicata principles here, where Powell failed to seek available alternative procedural means to preserve his underlying claims before Powell I and PowellII became final judgments. Second, in the absence of clear and convincing evidence that fraud, mistake or irregularity occurred in the proceedings leading to Judge Cannon's denial of Powell's revisory motion, we hold that there are no grounds to vacate Judge Cannon's ruling under Maryland Rule 2–535(b). We hold, therefore, that Judge Cannon did not abuse her discretion in denying Powell's Motion to Reopen Case and Vacate Judgment.

II. STANDARDS OF REVIEW

There are two standards of appellate review relevant to our...