Revisory Motion: Johnson v. Sullivan
The Baltimore Medical Malpractice Lawyer Blog examines recent Maryland appellate opinions in medical malpractice cases. In this post, I discuss the plaintiffs’ unsuccessful attempt to undo a discovery sanction thorough a revisory motion and appeal. The case is the November 19, 2024, Appellate Court’s unreported opinion in Johnson v. Sullivan, No. 2120.
Factual Background on Revisory Motion for Discovery Sanction
The plaintiffs filed this medical malpractice case in the Circuit Court for Baltimore City, alleging that the defendants’ negligence resulted in the death of their family member. However, a crucial point in this case was when, during discovery, the plaintiffs failed to respond to discovery requests. This failure, as the court later ruled, had significant implications. The defendants moved to compel responses, and the court granted the unopposed motion. The plaintiffs still did not respond, leading to the defendants moving for sanctions. The court entered an order precluding the plaintiffs from introducing evidence to support their claims. The plaintiffs sought revision of this order but were unsuccessful. (Op. at 1).
The hospital then moved for summary judgment. Several months later, the plaintiffs filed a second amended complaint with no new causes of action. The circuit court granted the defense motion. (Id. at 3).
Fifteen days after summary judgment for the hospital, the plaintiffs filed a motion asking the court to use its revisory power under Rule 2-535(b) and (d). The plaintiffs asked the court to allow the second amended complaint to proceed, arguing that its filing precluded summary judgment. The court denied the motion. (Id.).
The plaintiffs then motioned to alter or amend the judgment under Rule 2-534. This motion was made 102 days after the hospital summary judgment. The court denied this motion, and the plaintiffs appealed 17 days later. The denial of this motion meant that the original judgment, which favored the hospital, remained unchanged, further diminishing the plaintiffs’ chances of a successful outcome.
Appellate Court on Revisory Motion for Discovery Sanction
The Appellate Court noted that an appeal from the denial of a revisory motion is not an appeal from the judgment itself. (Id. at 7). Suppose the party files the revisory motion within 30 days. In that case, the circuit court has broad power to revise the judgment under Rule 2-535(a). Suppose the party files the motion after 30 days. In that case, the court may only revise the judgment if there is a clear and convincing showing of fraud, mistake, or irregularity, or failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rule under subsection (b). The party moving to set aside the judgment must act with ordinary diligence, in good faith, and has a meritorious defense or cause of action.” (Id. at 8-9).
The plaintiffs filed their motion more than 30 days after the entry of summary judgment against the hospital. (Id. at 9). They argued that there was a procedural irregularity. They had to show that there was a failure to follow the required procedure or process. (Id. at 9-10.)
The court rejected the argument that the plaintiffs’ second amended complaint precluded the summary judgment ruling. The circuit court had previously ruled as a discovery sanction that the plaintiffs could not support their claims. This sanction concerned claims, not the version of the complaint. The plaintiffs could not resurrect the right to put on evidence by filing another amended complaint. As a result, summary judgment was proper for the hospital even after filing the second amended complaint. (Id. at 11).
No Procedural Irregularity
The Appellate Court found no procedural irregularity. The court held a hearing on the motion for summary judgment, as requested, and properly entered summary judgment. (Id. at 12-13).
The court also held that the hospital’s failure to file an answer to the second amended complaint was not a procedural irregularity. Rule 2-341(a) does not require a party to file an answer to an amended complaint. The old one governs if the defense does not file a new answer. In addition, a party cannot create a procedural irregularity; only the court can. The court’s interpretation of Rule 2-341 (a) and its clarification that only the court can create a procedural irregularity are important for understanding the legal process in this case.
Last, the Appellate Court rejected the plaintiffs’ claims that the circuit court’s failure to hold a hearing on the revisory motion deprived the plaintiffs of due process. Revisory motions are not dispositive motions that require a hearing. (Id. at 15-16).
The court concluded that the circuit court did not abuse its discretion in denying the plaintiffs’ second revisory motion.
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec
Johnson v. Sullivan started poorly for the plaintiffs and would not improve. Failing to respond to discovery and a motion to compel resulted in a court order that effectively ended the case.
Despite the plaintiffs’ efforts, including filing untimely revisory motions that sought relief not available under the rules, the outcome of the case remained unchanged. The appeal from the denial of the revisory motion had virtually no chance of success, further highlighting the futility of the plaintiffs’ actions in altering the course of the case.
We do not know why the plaintiffs did not respond to the discovery and the motion to compel. But that is where the plaintiffs lost this case. Their failure to comply with these procedural requirements significantly weakened their position, and everything that followed had little chance of changing the outcome.
Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.