Tretick v. Layman, 699

• Decision Date: 01 September 1992
• Docket Number: No. 699,699
• Citation: 619 A.2d 201,95 Md.App. 62
• Parties: Bernard A. TRETICK v. Kevin LAYMAN. ,
• Court: Court of Special Appeals of Maryland

Page 62

95 Md.App. 62

619 A.2d 201

Bernard A. TRETICK v. Kevin LAYMAN.

No. 699, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Jan. 29, 1993.

Bernard A. Tretick, Spotsylvania, pro se.

Thomas Patrick Ryan (McCarthy, Wilson & Ethridge, on the brief), Rockville, for appellee.

Argued before BISHOP, ALPERT and CATHELL, JJ.

CATHELL, Judge.

Appellant, Bernard A. Tretick (Tretick), appeals the trial court's granting of a defendant's motion for judgment at the close of Tretick's case. Tretick appeared pro se below and represents himself before us.

Tretick presents the following questions:

(1) Did the trial court err in not awarding damages in the full amount of the suit due to gross violations of the direction of the Trial Date Notice on the part of Defendant?

(2) Did the trial court and the Attorney for Defendant violate the common law rights of a Plaintiff Pro Se?

(3) Did the trial court err in not issuing a bench warrant for Montgomery County Police Officer M. Jackson for failing to show when called as a witness, in answer to a properly issued subpoena and a proper return from the Montgomery County Sheriff's Department, duly logged by the Clerk of the Court as Docket numbers 40 and 43[?]

(4) Did the trial court err in not taking Judicial Notice of medical reports and invoices that were authenticated by the doctors that wrote the reports and issued the invoices for medical services rendered as a direct result of the subject accident?

(5) Did the trial court err in allowing Attorney for Defendant to violate a long list of the Maryland Rules in his methods used pre-trial and during the trial?

(6) Did the trial court err in not allowing the case to go to the jury?

Appellee, Kevin Layman (Layman), has filed a motion to dismiss. Although the motion is appropriate and we could grant it, we decline to do so, preferring to address the arguments made in his brief. We shall also take this opportunity to address the nature of the system in which civil and criminal grievances are resolved. We note, however, that many, if not all, of the arguments raised in appellant's brief have not been presented and/or preserved for appellate review either by reason of not being raised below or not properly supported in the extract presented here. We shall not address the facts except as necessary to our resolution of the issues.

We shall first address what may be appellant's primary complaint. He contends that because he is a pro se litigant, the trial judge and/or appellee's counsel somehow took improper advantage of him. In what he titled a "Foreword" to his brief, he complained:

Foreword

When, in the course of practicing law, and administering law, the tactics used subvert the very thing we are here to uphold, then it becomes time for the people to rebel and once again take charge of their own destiny, less [sic] they succumb to the tyranny that once before placed their lives into a miserable state.

When, by their subtle and direct comments, three Judges of our courts makes [sic] it clear to a Plaintiff Pro Se, appearing in court in proper person under the protection of the common law of the United States of America, that, because that Plaintiff is not a practicing attorney, all shall be done to prevent his success in that court. Then, and because of that attitude, the rights of Americans have once again been compromised[.]

And, when, in spite of the Maryland Rules, which are law, a practicing attorney resorts to intimidating tactics, and more than bruises those rules in the face of one who is not familiar with those rules, and, the judge of the court upholds such tactics, then that attorney should be forced to step down from his practice, in the interest of fairness, in the interest of justice, and in the interest of the common law of America.

We discern from appellant's brief that he objects first to the form of an adversarial proceeding; second to the comments of the trial judge when appellant was informed that the rules would be applicable to him; and third to the pretrial and trial tactics of appellee's counsel. We shall later discuss the propriety of the trial court's advice to a pro se litigant and the applicability of the rules to all parties before the court. Before doing so, however, we observe that we find in the extract no indication that appellant has preserved the matters he raises for our review. The extract does not contain the necessary portions of the transcript showing where objections or requests for rulings were made, the rulings or findings of the trial judge on those matters if objections were made and/or any reasons given by the court, or its treatment of any such issues which may have been brought to its attention. ¹

The appellant in Webb v. Oxley, 226 Md. 339, 342, 173 A.2d 358 (1961), cert. denied, 369 U.S. 803, 82 S.Ct. 642, 7 L.Ed.2d 550 (1962), like appellant here, represented himself at trial and on appeal. The issues raised there included:

(2) that the trial court erroneously sustained objections to appellants' attempt to prove negligence ... by asking appellee if he had ever read certain legal textbooks; (3) that the trial court erred by demonstrating prejudicial bias (a) in refusing to allow testimony by Mr. Webb concerning "the various sources that refused assistance in the location of lawyers qualified to serve as counsel or expert witness or other aid in this case"; (b) in asking Mr. Webb, in the manner of "stern cross-examination", certain questions ... and in ignoring the contention of the Webbs ...; (c) in excluding a certain exhibit which appellant sought to introduce....

Id., at 343, 173 A.2d 358.

The Court noted that the third argument described was indefinite and failed to refer to the appropriate portions of the record "as indicating bias or error on the part of the trial court." Id. Therefore, what specific rulings were "being challenged must largely be a matter of speculation." Id. at 345, 173 A.2d 358. The Court noted further:

Under the circumstances, a great deal of guidance on the part of the trial judge was necessitated by the lack of skill of appellants in presenting their own case, in order that the issues could be fairly delineated and considerable immaterial and irrelevant material excluded.... If any of the judge's remarks and questions were prejudicial (which is not apparent), the failure of appellants to object to the questions or move for a mistrial constituted a waiver, and this matter cannot be reviewed on appeal.

Id. at 346, 173 A.2d 358. The court also declined to rule on the sufficiency of the evidence because that also had not been preserved due to the appellant's failure to make a motion for a directed verdict.

In McMillian v. State, 65 Md.App. 21, 499 A.2d 192 (1985), the appellant questioned twelve instances of trial court conduct that he alleged had improperly influenced the jury. We noted that the appellant had not objected at trial to ten of the incidents and stated: "Appellant's failure to object at trial constitutes a 'waiver estopping him from obtaining a review of the point or question on appeal.' " Id. at 26, 499 A.2d 192 (citations omitted). See also Brill v. State, 144 Md. 68, 74, 124 A. 414 (1923) ("There was no exception taken to the remarks of the trial judge ... it cannot be considered by us on this appeal.")

In Bugg v. Trustees of Cokesbury Baptist Church, 252 Md. 59, 60, 248 A.2d 879 (1969), Bugg, representing himself on appeal, alleged that the trial judge should have disqualified himself because he had found Bugg to be in contempt of court in another trial. He also claimed error because the trial court had limited some testimony. Id. The Court held that the issues had not been preserved because no objections had been made below, opining: "Since Bugg failed to move for a directed verdict or to raise at trial any of the objections now being raised, there is nothing for us to review." Id. at 61, 248 A.2d 879.

In Lustine v. State Roads Commission, 221 Md. 322, 326, 157 A.2d 456 (1960), the Court opined: "The appellants ... attempt[ed] ... to show ... prejudicial error ... to what they claim were improper and harmful remarks made by counsel ... but there was no objection ... hence, this question is not properly before us." Similarly, in the automobile negligence case of Little v. Duncan, 14 Md.App. 8, 14, 284 A.2d 641 (1971), the appellant claimed as error certain alleged improprieties of counsel. We refused to determine the issue in view of the fact that no motion for mistrial had been made. Id. Thus, it is clear that the rules of presentation of appellate issues applies generally. We shall now address their specific application to pro se parties.

The rules of procedure apply primarily to parties, and, for the most part, to attorneys in their representative capacity. The rules explained to appellant below are not additional rules applicable only to pro se parties. ² They are not additional burdens imposed on laymen; they apply to laymen and lawyers alike. Lawyers generally are more familiar with the rules and are therefore better able to function in our rule-constrained adversarial system of justice. This is not due to a different set of rules, but is a reflection of their education, training and experience.

The principle of applying the rules equally to pro se litigants is so accepted that it is almost self-evident. Perhaps because it is so evident, there has been but minimal comment on the obligations of a pro se party in the appellate cases of this State. The few cases include Lewis v. Germantown Insurance Co., 251 Md. 535, 537, 248 A.2d 468 (1968) (emphasis added), where Judge McWilliams, for the Court, opined that "we find ourselves becoming somewhat less considerate of the plight of litigants whose obligation to know and comply with the Rules, at least in theory, is no less than that of the attorneys they retain to represent them."

There are many rules of procedure, many rules of evidence, and many...