Ungar v. Handelsman, 82

• Decision Date: 01 September 1990
• Docket Number: No. 82,82
• Citation: 599 A.2d 1159,325 Md. 135
• Parties: Ruth R. UNGAR and Norbert T. Ungar v. Jacob C. HANDELSMAN. ,
• Court: Maryland Court of Appeals

Page 135

325 Md. 135

599 A.2d 1159

Ruth R. UNGAR and Norbert T. Ungar v. Jacob C. HANDELSMAN.

No. 82, Sept. Term, 1990.

Court of Appeals of Maryland.

Jan. 7, 1992.

Norbert T. Ungar (Ruth R. Ungar, on brief), Randallstown, for petitioners.

M. Bradley Hallwig (T. Michael Preston, Anderson, Coe & King, on brief), Baltimore, for respondent.

Argued before ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, CHARLES E. ORTH, Jr., Judge of the Court of Appeals, (retired, specially assigned), and MARVIN H. SMITH, Judge of the Court of Appeals (retired, specially assigned), JJ.

McAULIFFE, Judge.

Ruth R. Ungar and her husband, Norbert T. Ungar, lost their medical malpractice claim against Dr. Jacob C. Handelsman when summary judgment was entered against them in the Circuit Court for Baltimore City. They contend that summary judgment should not have been granted, either because the record disclosed contested issues of material facts, or because the trial judge abused his discretion in not continuing the hearing to permit them to obtain counsel and to file any additional documents required to more clearly show the existence of a genuine dispute as to material facts. The respondent, in addition to arguing that summary judgment was properly granted, contends that this appeal was not timely.

I.

On 28 April 1981, Dr. Handelsman surgically removed Mrs. Ungar's thyroid gland. On 6 May 1981, five days after her discharge from the hospital, Mrs. Ungar suffered a major embolic stroke, which caused significant permanent disability. On 26 April 1984, the Ungars filed a claim with the Health Claims Arbitration Office (HCAO) alleging malpractice on the part of Dr. Handelsman and others. The claim was heard in October of 1987 and the arbitration panel found in favor of all defendants. On 14 January 1988, the Ungars filed a notice of rejection and an action to nullify the award in the Circuit Court for Baltimore City, proceeding only against Dr. Handelsman. Dr. Handelsman filed a motion to dismiss the action on the ground that it was not timely filed. Judge Martin Greenfeld held a hearing on the motion and denied it. On 21 October 1988, Dr. Handelsman filed a motion for summary judgment. That motion was heard on 20 March 1989 by Judge Thomas Ward. By order entered 21 March 1989, Judge Ward granted Dr. Handelsman's motion for summary judgment, but only as to the claim of Mrs. Ungar. Mrs. Ungar's timely motion for reconsideration was denied on 21 April 1989. On 3 May 1989, recognizing that the earlier order did not dispose of all claims in the case, counsel for Dr. Handelsman requested that Judge Ward enter an additional order granting summary judgment against Mr. Ungar. Judge Ward entered such an order on 10 May 1989.

On 22 May 1989, petitioners filed a "Motion for Reconsideration" pursuant to Maryland Rule 2-534, asking that the court vacate the judgments entered against both plaintiffs. This motion purportedly was signed by Elana Rhodes Byrd as attorney for the Ungars. Ms. Byrd's appearance had not previously been entered in the case. By order of 28 June 1989, entered sua sponte, Judge Ward declared that the plaintiffs' motion for reconsideration was "a forgery" and directed that it be stricken. On 28 July 1989, the Ungars filed a notice of appeal. The Court of Special Appeals affirmed in an unreported opinion, and we granted certiorari.

II.

We first consider Dr. Handelsman's contention that petitioners' appeal was not timely. A final and appealable order was entered on 10 May 1989, when summary judgment was entered against Mr. Ungar, thereby disposing of the last of the claims in the case. See Maryland Rule 2-602(a); Estep v. Georgetown Leather, 320 Md. 277, 286-87, 577 A.2d 78 (1990). Ordinarily, a notice of appeal must be filed "within 30 days after entry of the judgment or order from which the appeal is taken." Maryland Rule 8-202(a). There is an exception, however, when certain post judgment motions are timely filed. Maryland Rule 8-202(c) provides:

In a civil action, when a timely motion is filed pursuant to Rule 2-532, 2-533, or 2-534, the notice of appeal shall be filed within 30 days after entry of (1) a notice of withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2-532 or 2-534.

The Ungars' motion for reconsideration, filed pursuant to Rule 2-534, was timely. ¹ Thus, their appeal on 28 July, filed within 30 days of Judge Ward's disposition of the motion on 28 June, would appear to have been timely filed. Dr. Handelsman argues, however, that Judge Ward's disposition of the motion was in accordance with Maryland Rule 1-311(c), which provides:

If a pleading or paper is not signed as required (except inadvertent omission to sign, if promptly corrected) or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading had not been filed.

Thus, says the defendant, if the action is treated as having "proceed[ed] as if the motion had never been filed," the time for taking an appeal was never tolled, and the appeal was not timely. In a similar vein, he argues that if the pleading was a forgery, it should in any event be treated as a nullity, and the result is the same.

The short answer to this question is that the trial judge erred in entering his order striking the motion for reconsideration; consequently, his order must be vacated, leaving the motion intact and the appeal timely. The trial judge's error was in acting upon information brought to his attention from an undisclosed source, without first having disclosed that information to the parties and permitting a reasonable opportunity for investigation and response. The memorandum order filed by the judge recited the following:

Subsequent to the filing of the Motion For Reconsideration, this Court was presented with information that someone had forged the signature of Elana R. Byrd to the Motion as attorney for the Plaintiffs. Ms. Byrd does not now, nor has she ever, represented these Plaintiffs. The signature on the Motion is a forgery, and the Motion itself appears to be an attempt to perpetuate a fraud on this Court.

In light of this information, IT IS, this 28th day of June, 1989, ORDERED that Plaintiffs' Motion For Reconsideration is STRICKEN.

The trial judge did not identify the source of the information upon which he acted. ² Nor did he bring this information to the attention of the parties or require that it be presented as evidence. The parties, and most particularly the Ungars, were not afforded notice of this serious allegation, nor were they given any opportunity to investigate the allegation or to file a response. Thus, the allegation has never been tested for accuracy, the surrounding circumstances have never been explained, and the parties have been deprived of any opportunity to present evidence or arguments. We conclude that the trial judge failed to afford the parties the procedural due process that was required under the circumstances. See Talley v. Talley, 317 Md. 428, 434-35, 564 A.2d 777 (1989); Phillips v. Venker, 316 Md. 212, 217-22, 557 A.2d 1338 (1989). Cf. Gardner v. Florida, 430 U.S. 349, 358-62, 97 S.Ct. 1197, 1204-07, 51 L.Ed.2d 393 (1977); Driver v. State, 201 Md. 25, 32, 92 A.2d 570 (1952); Wiseman v. State, 72 Md.App. 605, 609-10, 531 A.2d 1311 (1987); Smith v. State, 64 Md.App. 625, 633-35, 498 A.2d 284 (1985).

III.

Because our disposition does not preclude appropriate consideration of the allegation of forgery if further action is taken to properly place the matter in issue, we comment on this question for the guidance of the trial court. Maryland Rule 1-311 provides, in pertinent part:

(a) Requirement.--Every pleading and paper of a party represented by an attorney shall be signed by at least one attorney who has been admitted to practice law in this State and who complies with Rule 1-312. Every pleading and paper of a party who is not represented by an attorney shall be signed by the party. Every pleading or paper filed shall contain the address and telephone number of the person by whom it is signed.

* * * * * *

(c) Sanctions.--If a pleading or paper is not signed as required (except inadvertent omission to sign, if promptly corrected) or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading had not been filed. For a wilful violation of this Rule, an attorney is subject to appropriate disciplinary action.

The sanction of striking a pleading or paper not properly signed and treating it as though it had not been filed was derived from Fed.R.Civ.P. 11. The federal rule was amended in 1983, and that sanction was modified. In 2A Moore's Federal Practice § 11.01 at 11-6 (2d ed. 1984), the authors offered this comment concerning the amendment:

The provision in the original rule for striking pleadings and motions as sham and false has been deleted. The passage has rarely been utilized, and decisions thereunder have tended to confuse the issue of attorney honesty with the merits of the action.

Although Maryland retains the option as originally written, it is well to bear in mind that its utilization may have serious consequences, and that the sanction selected for a violation of a rule should be consistent with "the totality of the circumstances and the purpose of the rule." Maryland Rule 1-201(a).

If it should develop that Ms. Byrd's name was placed on the motion without her knowledge or consent, and that the forgery was procured or knowingly acquiesced in by the Ungars, it may be appropriate to strike the motion and to treat it as if it had not been filed. On the other hand, if someone else filed the motion on behalf of the Ungars, but without the Ungars being aware that the signature of the attorney was unauthorized, the imposition of such a sanction would be inappropriate, because under the circumstances of ...