Legal Opinions - Maryland Court of Special Appeals: November 19,

Daily Record, The (Baltimore), Nov 19, 2007

Civil Procedure

Level of fraud needed to vacate judgment

BOTTOM LINE: The unprofessional conduct of an attorney, resulting in the dismissal of his client's tort action, amounted to fraud; however, the fraud was not extrinsic and, thus, was not a basis for vacating the judgment of dismissal.

CASE: Bland v. Hammond, No. 1843, Sept. Term, 2006 (filed Nov. 6, 2007) (Judges Adkins, SHARER & Woodward).

FACTS: The genesis of Charlain Bland's claim against Joseph and Sylvia Hammond is a rear-end collision that occurred in June 1998. Bland was injured and incurred more than $25,000 in hospital and other medical expenses.

In July 1998, Bland retained Michael J. Graham, a member of the Maryland bar, to represent her in her tort claim. On June 13, 2001, just two days before the expiration of the statute of limitations, Graham filed a complaint on Bland's behalf in the circuit court.

Thereafter, the Hammonds, through counsel, filed a timely answer to the complaint and, on December 31, 2001, served Graham with interrogatories and a request for production of documents. Not having received the requested discovery, the Hammonds filed a motion to compel on July 31, 2002. Graham did not discuss the motion with Bland, nor did he respond to the motion.

In August 2002, at a pre-trial/scheduling conference, Graham signed, on behalf of Bland, a consent order agreeing to produce the requested discovery within 30 days. He did not comply with the consent order. Bland did not attend the pre-trial conference and Graham allegedly did not advise her of what occurred at the conference.

Because the discovery was still not forthcoming, the Hammonds filed, in December 2002, a motion for sanctions. Graham responded to the motion for sanctions by requesting an extension of time to provide discovery. By order of January 9, 2003, the court granted the Hammonds' motion to compel, directing Graham to provide discovery by February 15, 2003. Again, Graham did not provide the discovery, nor did he discuss with Bland the need to do so.

The Hammonds filed a second motion for sanctions in March 2003. Graham did not respond to the motion, nor did he advise Bland of its filing. Finally, on April 9, 2003, the court dismissed Bland's suit, with prejudice, as a sanction for not providing the requested discovery.

Ultimately, Bland conducted a personal search of the case file in the circuit court and, in December, 2004, learned that her suit had been dismissed with prejudice. By that time, limitations on her claims against the Hammonds had expired. She next filed a complaint with the Attorney Grievance Commission, only to learn that Graham had been suspended indefinitely by the Court of Appeals on November 5, 2004.

Bland filed a legal malpractice action against Graham in July 2005, asserting claims of breach of contract, breach of fiduciary duty, fraudulent misrepresentation, and fraudulent concealment. Graham filed an answer to the complaint, but did not timely respond to discovery. Judgment by default was entered by the circuit court against Graham on February 22, 2006.

Bland filed her motion to vacate on February 23, 2006, contending that Graham's conduct in dealing with her case constituted extrinsic fraud that entitled her to set aside the April 2003 judgment, pursuant to CJ [section]6-408 and Rule 2-535(b). The Hammonds filed a timely opposition to the motion to vacate. The circuit court denied Bland's motion to vacate. The Court of Special Appeals affirmed.

LAW: The issue brings into play the revisory power of the trial court, the authority for which is found in the parallel provisions of CJ [section]6-408 and Rule 2-535, which establish a 30 day revisory window. After the 30 day revisory period has passed, a circuit court can vacate or revise an enrolled judgment only upon a showing of fraud, mistake, irregularity, or the failure of the court to perform a duty required by statute or rule. Rule 2-353(b).

The purpose of the rule is to ensure the finality of judgments. See Das v. Das, 133 Md. A pp. 1, 17-18 (2000). The Maryland cases are legion that recognize the principle that there must be a definite and foreseeable end to litigation, and that ordinarily judgments should not be vacated after the passage of the 30-day review period. Fleisher v. Fleisher Co., 60 Md. App. 565, 568 (1984).

Nonetheless, the court also recognizes that in exceptional cases, judgments may be vacated or revised when specific criteria are met. Id. The rules of finality apply to all final judgments, including those entered by default. See Das, 133 Md. App. at 17-18

The terms "fraud," "mistake," and "irregularity," as applied in Rule 2-535 and its predecessor, Rule 625(a), have been thoroughly defined by the opinions of this court and the Court of Appeals. "Fraud," "mistake," and "irregularity" are to be "narrowly defined and strictly applied." See Autobahn Motors, Inc. v. Baltimore, 321 Md. 558, 562 (1991).

Bland asserted that Graham's conduct went beyond mere negligence or legal malpractice and rose to the level of fraud. That Graham did not inform Bland of the court rulings, including the fact that the case had been dismissed as a result of his malpractice, may constitute a breach of counsel's duties owed to a client and violation of the Rules of Professional Conduct; however, it does not amount to the type of fraud sufficient to set aside a judgment.