Thompson v. Baltimore County

• Decision Date: 06 June 2006
• Docket Number: No. 0281, September Term, 2005.,0281, September Term, 2005.
• Citation: 900 A.2d 275,169 Md. App. 242
• Parties: Stephen E. THOMPSON v. BALTIMORE COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

900 A.2d 275

169 Md. App. 242

Stephen E. THOMPSON v. BALTIMORE COUNTY, Maryland.

No. 0281, September Term, 2005.

Court of Special Appeals of Maryland.

June 6, 2006.

P. Matthew Darby (Jason R. Engel, Albertini & Darby, LLP, on the brief), Baltimore, for appellant.

Michael G. Comeau (John E. Beverungen, Acting County Attorney, on the brief), Towson, for appellee.

ADKINS, KRAUSER and LAWRENCE F. RODOWSKY (Retired, Specially Assigned) JJ.

ADKINS, J.

In this appeal, we must decide the consequences of a failure to file a timely written response to a motion for summary judgment, as required by Md. Rule 2-501 (as amended in 2004) when the filings of the moving party contain a dispute of material fact. After the Workers' Compensation Commission found in favor of appellant Stephen E. Thompson on his claim, Baltimore County appealed to the circuit court for that county. The circuit court granted the County's motion for summary judgment, reasoning that Thompson's failure to file a written response to the County's motion justified that disposition.

Thompson challenges this decision, arguing, first, that the court erred in granting summary judgment based on his failure to file a written response because the County's motion itself demonstrated a dispute of material fact, and second, that he was entitled to rely on the favorable decision of the Workers' Compensation Commission without presenting additional evidence. We agree with both of Thompson's arguments and hold that summary judgment was improper.

FACTS AND JUDICIAL PROCEEDINGS

In March of 2000, Thompson, a Baltimore County firefighter, filed a workers' compensation claim alleging that he suffered from an occupational disease, chronic sinusitis. The County disputed that the condition was causally related to Thompson's employment, and further contended that Thompson's claim was barred under the relevant statute of limitations.¹

At the hearing before the Workers' Compensation Commission, held in January 2002, Thompson testified that he was first informed that his chronic sinusitis was related to his employment in 1999, a date that would render his claim timely under the statute of limitations. The Workers' Compensation Commission found for Thompson, specifically determining that his claim was not time-barred.

The County filed an appeal in the Circuit Court for Baltimore County, requesting a jury trial. See Md.Code, Lab. & Empl. ("LE") § 9-745 (1991, 1999 Repl. Vol.) (outlining workers' compensation appeal procedures). After the discovery and motions deadlines had passed, on December 1, 2004, Thompson took a de bene esse deposition of his treating doctor, Dr. Shikani. At the deposition, Dr. Shikani testified that the first time he discussed with Thompson the possibility of a causal connection to his employment occurred in 1996.

Relying on this testimony, the County immediately filed a motion for summary judgment in the circuit court on December 3, 2004. Thompson failed to file a written response to the County's motion, and the matter was heard on January 4, 2005, the date the trial on the matter was set to occur. At the hearing, Thompson's counsel agreed that he had not filed a written response to the County's motion. He stated, however, that he was prepared to respond to the motion with an "oral affidavit," or testimony given by Thompson.

The court rejected this proposal, declaring that the filing of a written response to a motion for summary judgment was mandatory. Thompson disagreed, arguing that, because a motion for summary judgment is dispositive and therefore requires a hearing, if requested, he was permitted to respond to the motion orally at the hearing.² See Md. Rule 2-311(f)(2005) ("the court may not render a decision that is dispositive of a claim or defense without a hearing if one was requested"). "It would be irrelevant," he maintained, "to have a hearing that's unilateral."

The court rejected this argument as well. It explained that under Rule 2-501, a response to a motion for summary judgment must be in writing.³ The court determined that the rule precluded an oral response by Thompson at the hearing:

There's nothing in the rule that indicates you may present testimony beyond the time within which a response was due in an attempt to oppose the motion for summary judgment and create a dispute as to a material fact.

....

There's nothing in this rule to give you the right to make an oral opposition to the County's motion for summary judgment.

....

The rule indicates that the case has to be decided based upon the pleadings, the affidavits, the depositions. There can be an admission or concession by the parties at the time of the hearing but I see nothing permitting oral testimony.

Undeterred, Thompson contended that, regardless of whether he responded, the County's motion alone was still insufficient to support summary judgment. As the moving party, he urged, the County was required to show that there was no material dispute of fact, and that it was entitled to judgment as a matter of law. See Md. Rule 2-501(a). He maintained that the County's motion, by its own terms, "creates a dispute of material fact." The motion and attached Commission testimony, he explained, documented Thompson's claim that he learned about the causal relationship in 1999.

The court, however, appeared not to credit this latter argument. Without commenting on whether the motion and attachments raised a dispute of fact, the court simply concluded that Thompson's failure to file a written response was dispositive:

Well, I'm satisfied ... from my reading of the annotations, that you should have raised your alleged dispute by way of affidavit or sworn testimony under oath by deposition in a written motion or a written response to the County's motion for summary judgment. That was not done. No case has been cited to me, nor can I find any case which permits the Court to hear testimony at a hearing on an unopposed motion for summary judgment. And I say unopposed in that no written response was filed in accordance with the rules.

So for those reasons, I grant the County's motion for summary judgment.⁴

DISCUSSION

It is his last argument that Thompson advances in his timely appeal. Thompson does not argue here that he should have been allowed to introduce new affidavit, deposition, or oral testimony at the summary judgment hearing. He contends merely that the County did not meet its burden to demonstrate that it was entitled to summary judgment.

Thompson asserts that his failure to file a written response to the County's motion did not automatically warrant the grant of summary judgment against him, but rather, that he "should have been afforded the opportunity to argue that a genuine dispute as to a material fact existed rather than being precluded from making such an argument[.]" "[E]ven without the benefit of a written response and argument[,]" he maintains, "the [c]ircuit [c]ourt had all of the evidence it needed to deny [the County's] motion." The dispute of material fact, he says, is contained in the County's motion and included in the transcript of his testimony before the Workers' Compensation Commission, which was attached to the motion.⁵

The County, on the other hand, claims that Thompson's failure to respond in writing "in itself is dispositive" because Rule 2-501(b) requires a written response. It contends that "the failure of a non-moving party to properly contradict facts contained in a movant's affidavit or deposition in support of a summary judgment motion constitutes an admission of the truth of all such statements."⁶

The critical question in deciding the propriety of summary judgment is whether there is a dispute of material fact. It is the movant's burden to prove that no such dispute exists, regardless of any opposition. See Montgomery v. Remsburg, 147 Md.App. 564, 585-86, 810 A.2d 14 (2002), rev'd on other grounds, Remsburg v. Montgomery, 376 Md. 568, 831 A.2d 18 (2003) (explaining that even if the opponent of summary judgment "did not proffer an affidavit or any other admissible evidence in defense of that motion, that failure alone does not justify the grant of summary judgment" because the moving party bears the burden of establishing that there is no dispute of material fact). For the reasons stated below, we agree with Thompson that the County did not meet this burden.

I. Requirement That Response Be In Writing

Maryland Rule 2-501, governing summary judgment, was amended in December of 2003. The changes became effective July 1, 2004. The County's motion for summary judgment was filed December 3, 2004, and the hearing on the motion was held January 4, 2005. Thus, because the motion was filed after the amendments took effect, it was controlled by the amended version of Rule 2-501.

The former version of Rule 2-501 did not require a written response to a motion for summary judgment:

(a) Motion. Any party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law. The motion shall be supported by affidavit if filed before the day on which the adverse party's initial pleading or motion is filed.

(b) Response. The response to a motion for summary judgment shall identify with particularity the material facts that are disputed. When a motion for summary judgment is supported by an affidavit or other statement under oath, an opposing party who desires to controvert any fact contained in it may not rest solely upon allegations contained in the pleadings, but shall support the response by an affidavit or other written statement under oath.

The present Rule 2-501 became effective July 1, 2004, and was in effect at the time of the motions hearing below. It states, in pertinent part:⁷

(a) Motion. Any party may make a motion for summary judgment on all or part of an action on the ground that there...