HARRELL, J.
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.
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,
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),
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.
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 Powell I) 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.
The Clerk of the Circuit Court, however, failed to mail copies to the parties of Judge Pierson's order granting summary judgment in Powell II.
Powell appealed the final judgment in Powell II 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).
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 Powell I 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 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:
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.
We hold, first, that Judge Cannon did not err as a matter of law in granting summary judgment on 12 November 2008 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 Powell II 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.
There are two standards of appellate review relevant to our consideration of this case. As regards Powell's challenge to Judge Cannon's denial of his Md. Rule 2-535(b) motion, abuse of discretion is the benchmark. Das v. Das, 133 Md.App. 1, 15, 754 A.2d 441, 449 (2000). Abuse of discretion occurs "where no reasonable person would take the view adopted by the [trial] court," or when the court acts "without reference to any guiding rules or principles." North v. North, 102 Md.App. 1, 13-14, 648 A.2d 1025, 1031 (1994). We will find an abuse of discretion when the ruling is "clearly against the logic and effect of facts and inferences before the court[,]" when the decision is "clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result[,]" when the ruling is "violative of fact and logic[,]" or when it constitutes an "untenable judicial act that defies reason and works an injustice." Id. (internal quotation marks omitted).
As for our review of Judge Cannon's grant of summary judgment, where there is no genuine dispute of material fact, we consider "whether the trial court was legally correct." Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533, 836 A.2d 655, 669 (2003) (quoting Goodwich v. Sinai Hosp. of Balt., Inc., 343 Md. 185, 204, 680 A.2d 1067, 1076 (1996)).
We consider first the grounds on which Judge Cannon granted Appellees' Motion for Summary Judgment in Powell II, in order to determine whether Appellees were entitled to summary judgment as a matter of law in 2008 — at a time when the shelf-life of Judge Allison's grant of summary judgment in Powell I was valid, but prior to reversal of that judgment. See Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 71, 782 A.2d 807, 833 (2001). Appellees assert that they were entitled to judgment as a matter of law because Judge Allison's order in Powell I barred the relitigation of Appellant's identical claims in Powell II. We hold that the doctrine of res judicata, as explicated in our precedents, supports Judge Cannon's judgment.
Res judicata is an affirmative defense that precludes the same parties from relitigating any suit based upon the same
In Maryland, the doctrine of res judicata precludes the relitigation of a suit if (1) the parties in the present litigation are the same or in privity with the parties to the earlier action; (2) the claim in the current action is identical to the one determined in the prior adjudication; and (3) there was a final judgment on the merits in the previous action. Colandrea v. Wilde Lake Cmty. Ass'n, Inc., 361 Md. 371, 389, 761 A.2d 899, 908 (2000); Cicala v. Disability Review Bd., 288 Md. 254, 263, 418 A.2d 205, 211 (1980); Cook v. State, 281 Md. 665, 668, 381 A.2d 671, 673 (1978). The overarching purpose of the res judicata doctrine is judicial economy. Colandrea, 361 Md. at 391, 761 A.2d at 909 (noting that the res judicata doctrine is applied to "avoid the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions").
The same parties and the same claims are raised in Powell I and Powell II. Id. at 389, 761 A.2d at 908. Judge Allison's grant of summary judgment in Powell I was a final judgment on the merits at the time that it was entered
There is another reason why the grant of summary judgment in Powell II, based on the grounds of res judicata, was warranted. At the time that Judge Pierson conducted a hearing on Appellees' motion for summary judgment in Powell II, Powell was continuing to litigate concurrently an identical claim in Powell I, as he had filed a Motion to Alter or Amend Judgment Nunc Pro Tunc on 29 October 2007 in Powell I, which yet had to be decided by Judge Allison (she denied it ultimately on 11 March 2008). Prior to filing the October 2007 motion seeking retrospective relief, Powell had filed also a Motion for Reconsideration of the grant of summary judgment in Powell I, which had been denied also by Judge Allison. Such a multiplicity of litigation epitomizes the very hazards that the doctrine of res judicata seeks to avoid: the costs of time, the waste of judicial resources, and the increased possibility of inconsistent judicial decisions and action. See Colandrea, 361 Md. at 387, 761 A.2d at 907. Judicial economy helps draw the necessary line. Otherwise, as Judge Pierson reiterated aptly during the November 2007 hearing on Appellees' motion for summary judgment, "a litigant could file endless motions for reconsideration until the cows come home." Judge Cannon, therefore, granted properly Appellees' Motion for Summary Judgment on 3 November 2008, and we decline to disturb that ruling.
Between the Circuit Court's 2007 summary judgment adjudication in Powell I and the reversal of that judgment on appeal in 2010-11, Powell commenced Powell II by filing a second Statement of Claim with HCADRO and the complaint with the Circuit Court, apparently in an effort to forestall the expiration of his substantive claims on the merits due to operation of the applicable statute of limitations. Powell, however, did not seek any of several available procedural opportunities to preserve his claims regarding Judge Pierson's/Judge Cannon's rulings in Powell II, and thus did not forestall a conclusive judgment in Powell II, while pursuing the appeal in Powell I. Commentators have noted for practitioners the same or similar conundrum as Appellant faced in this case, and recommended several tactical strategies to protect claims from the statute of limitations running while pursuing reversal of a potentially erroneous dispositive trial court ruling:
18 A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4433, (2d ed.1987) (emphasis added).
For example, in Converge Services v. Curran, 383 Md. 462, 479-80, 860 A.2d 871, 881 (2004), we identified recourse to a stay as a useful tool where, as was the case during the November 2007 Motion for Summary Judgment hearing in Powell II, a judicial remedy is sought in one forum while a related and parallel administrative or judicial action is pending in the same or another forum. We noted in Converge that the trial court may "stay its consideration of the invoked judicial remedy and await the result of the administrative proceedings before addressing the appropriateness of the relief sought in the litigation." Id. at 480, 850 A.2d at 881. See Md. Reclamation Assocs., 382 Md. at 367, 855 A.2d at 362 (ordering a stay of a judicial proceeding until administrative remedies were exhausted); Arroyo v. Bd. of Educ., 381 Md. 646, 660, 851 A.2d 576, 584-85 (2004) ("[T]here is no prohibition against filing an independent judicial action while primary administrative proceedings are under way, but, that there is a prohibition against deciding, i.e., adjudicating, the issue in the independent judicial case until a final administrative determination is made."); Md.-Nat'l Capital Park & Planning Comm'n v. Crawford, 307 Md. 1, 18, 511 A.2d 1079, 1087-88 (1986) (observing that a trial court may order a stay when two separate remedies, such as administrative and judicial ones, are available).
In the present case, there were at least two strategic opportunities to move to stay the Powell II proceedings. First, when Powell filed the Statement of Claim in the HCADRO on 2 February 2007 (barely one week after Judge Allison's grant of summary judgment in Powell I), he could have sought a stay of further proceedings in Powell II, pending final appellate review in Powell I of Judge
A second opportunity to move to stay the Powell II proceedings presented itself after the transfer by the HCADRO of Powell II to the Circuit Court in August 2007. A request to stay all proceedings in the trial court, until appellate review was exhausted in Powell I, would have averted, if granted, the finality conundrum. We note that, during oral argument before Judge Pierson on 26 November 2007 on the summary judgment motion in Powell II, Appellant's trial counsel asked Judge Pierson to stay consideration of the pending motion until Judge Allison held a hearing and ruled on Powell's pending Motion to Alter or Amend Judgment Nunc Pro Tunc in Powell I. Powell argued that, after Judge Allison ruled, Judge Pierson could act on the summary judgment motion before him, with full knowledge of how and why Judge Allison ruled. Although Judge Pierson did not act explicitly on this limited request for stay, he held the matter before him sub curia until Judge Allison issued her ruling. Powell did not request, however, Judge Pierson to stay generally all proceedings pending the outcome of the appeal of Powell I. Doing so might have preserved Powell's claims in Powell II before the limitations period expired on his substantive claims. See Curran, 383 Md. at 480, 860 A.2d at 881; Crawford, 307 Md. at 18, 511 A.2d at 1087-88; Stillman, 291 Md. at 402, 435 A.2d at 753.
The next apparent opportunity that Powell had to forestall a preclusive judgment in Powell II, and thereby preserve his substantive claims, was during the time that the Powell I and Powell II appeals were pending concurrently before the Court of Special Appeals. At that time, several tactical options were available. One might have been to request the Court of Special Appeals to "provide a judicial remedy in advance of final action in the... proceeding[,]" such as asking the intermediate appellate court to address how to prevent the expiration of the limitations period should Judge Allison's ruling be found ultimately to be erroneous. Curran, 383 Md. at 480-81, 860 A.2d at 882. An alternative remedy to seek might have been for the intermediate appellate court to issue an order "staying, suspending, or modifying" Judge Allison's or Judge Cannon's orders in Powell I and II, respectively, pursuant to Md. Rule 8-425.
Finally, we consider whether, pursuant to Md. Rule 2-535(b), Powell demonstrated fraud, mistake, or irregularity in the proceedings below sufficient to overturn the final judgment in Powell II. Powell argues that, because ultimate appellate action in Powell I found Judge Allison's grant of summary judgment improper, Judge Pierson's/Judge Cannon's rulings in Powell II must be vacated and contends that Md. Rule 2-535(b) permits such relief. We disagree.
Maryland Rule 2-535(b) requires a showing, by clear and convincing evidence, that a proceeding was infected with fraud, mistake, or an irregularity. Tandra S. v. Tyrone W., 336 Md. 303, 314, 648 A.2d 439, 444 (1994). The touchstones for applying Md. Rule 2-535 are further illuminated by CJP § 6-408, which provides:
The overarching aim of Md. Rule 2-535(b), therefore, is the preservation of the finality of judgments, unless specific conditions are met. Apart from reciting to us the language of Md. Rule 2-535(b), however, Powell does not point to any precedent, let alone evidence in this record, that entitles him to relief according to that Rule. Although Powell does not suggest specifically that either fraud, mistake, or irregularity existed in the proceedings below, we conclude, from our review of the record, that there is no evidence of either of those three conditions, so as to justify relief under Md. Rule 2-535(b).
First, no fraud was present in any proceeding below. Under Md. Rule 2-535(b), fraud is defined as an event that is "collateral to the issues tried in the case where the judgment is rendered[,]" such as "whether the fraud prevented the actual dispute from being submitted to the fact finder at all." Hresko v. Hresko, 83 Md.App. 228, 232, 574 A.2d 24, 27 (1990). We conclude that no form of extrinsic fraud is to be found here.
Second, there is no evidence of procedural mistake. We have interpreted "mistake" narrowly to include jurisdictional error, such as when judgment "has been entered in the absence of valid service of process; hence, the court never obtains personal jurisdiction over a party." Tandra S., 336 Md. at 317, 648 A.2d at 445; Hamilos v. Hamilos, 297 Md. 99, 107, 465 A.2d 445, 449-50 (1983). The lower courts had jurisdiction patently over the parties and the subject matter of this action. Powell does not contend otherwise.
On 5 February 2007, Powell filed a Motion to Reconsider, asserting that the proper remedy for disqualification of a Certificate was dismissal, without prejudice, and not the grant of summary judgment. The court denied reconsideration on 10 August 2007.
As a means for trying to keep the head of a reader of this opinion from spinning off his or her body while trying to comprehend the relatively complex history of this litigation as recited narratively here, we constructed a critical time line of events (attached as an appendix to this opinion) that portrays in a visually linear and comparative format the relative chronology of the material events in the oft-times parallel litigation of Powell I and Powell II.