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Appeal from the Circuit Court for Montgomery County, Richard E. Jordan, Judge.
Argued by: Edward J. Brown of Ellicott City, MD for Appellant.
Argued by: John R. Garza (Stephen N. Caramenico, Garza, Regan & Associates PC on the brief) all of Rockville, MD for Appellee.
Panel: Woodward, Nazarian, Kenney, James A., III. (Retired, Specially Assigned), JJ.
[216 Md.App. 393] Nazarian, J.
The saga before us in this case began in 2005 with an auto accident, but since has snowballed into litigation about litigation. Azizolah Abrishamian appeals a jury's verdict in the Circuit Court for Montgomery County finding that he breached his contract with appellee Washington Medical Group, P.C. (" WMG" ) to pay bills for medical treatment WMG provided to him after the accident. Mr. Abrishamian opposed WMG's claims by arguing that his treating physician at WMG, Pedro Macedo, M.D., refused to honor an agreement to testify as an expert on his behalf in the post-accident personal injury lawsuit. Mr. Abrishamian interpreted this refusal as relieving him of his obligation to pay WMG's bills, but WMG disagreed and sued to recover the unpaid balance. Mr. Abrishamian counterclaimed for fraud and breach of contract, and after some fairly complicated (but not really complex) pre-trial wrangling, a jury returned a verdict in favor of WMG. Mr. [216 Md.App. 394] Abrishamian challenges a number of the circuit court's procedural and evidentiary decisions, and we affirm.
Mr. Abrishamian suffered a head injury in his auto accident, and his physician referred him to WMG for treatment. At his first visit to WMG, Mr. Abrishamian signed an Authorization and Assignment Agreement (the " A& A" ), in which he agreed to pay WMG's medical bills out of the proceeds of any settlement or judgment he might recover from the lawsuit. Mr. Abrishamian recovered $30,000 in that suit, but never paid any of those proceeds to WMG. Instead, according to WMG, Mr. Abrishamian " filed an interpleader action in the Circuit Court to dispute the amounts owed to his medical providers." (The record does not contain any of the pleadings or other documents from that litigation.)
On January 11, 2010, WMG filed suit in the District Court for Montgomery County to enforce the A& A, seeking to recover unpaid medical bills totaling $11,510.00, plus interest and attorneys' fees. On November 21, 2011, after discovering that it had received payments shortly after the accident from Mr. Abrishamian's Personal Insurance Protection policy (" PIP" ) that it mistakenly had failed to apply to Mr. Abrishamian's account, WMG refiled its complaint and reduced the amount in dispute to $4,810.00. For his part, Mr. Abrishamian contends that WMG harbored an ulterior fraudulent motive for filing its initial
complaint, and characterizes the trial court's (pretty routine) decision to allow WMG to refile the complaint in dramatic terms:
[WMG] knowingly and deliberately made the false representation that I owed [WMG] $11,510.00, which I did not. Not only had [WMG] sued me for this crafted amount they had also sued Mr. Edward J. Brown, a fellow bar member, whose only misfortune was that he was my attorney in a different case. After transferring the above-mentioned case to the Circuit Court . . . [WMG] quickly changed course, confessed to the Circuit Court Judge . . . that the $11,510.00 [216 Md.App. 395] was indeed a false amount and pled for their complaint to be dismissed, which it was. [The trial court] penalized [WMG] by directing [it] to pay all court costs.
After WMG refiled the case in district court, it attempted repeatedly, without success, to serve Mr. Abrishamian and his counsel, Edward Brown. On May 16, 2011, the court entered an order allowing alternative service, and on June 13, 2011, denied Mr. Brown's motion to reconsider that order. The court entered an Affidavit Judgment against Mr. Abrishamian on August 4, 2011, and mailed a Notice of Judgment on August 18, 2011. He claims not to have received either (although he does not argue that the court mailed any documents to the incorrect address). Nevertheless, on September 2, 2011, in a classic failure to communicate, Mr. Abrishamian filed pro se a Motion to Vacate the Affidavit Judgment on the same day that Mr. Brown's office filed a Motion to Vacate the Affidavit Judgment on his behalf (the latter also included a " request for sanctions" ). Both Mr. Abrishamian's Motion and counsel's Motion accused WMG of fraud; Mr. Abrishamian's Motion professed indignation at the notion that anyone might think that Mr. Brown's office represented him.
[216 Md.App. 396] The court vacated the Affidavit Judgment on November 14, 2011, and on December 12, 2011, Mr. Abrishamian filed a Counterclaim, also in district court. The Counterclaim alleged that WMG, through Dr. Macedo, had received payments from him to testify in the underlying personal injury litigation, but refused to do so. According to the Counterclaim, Dr. Macedo's refusal to testify rendered Mr. Abrishamian " unable to present $10,510.00 in medical bills and proof of injury" at trial (impliedly because the refusal came too late for Mr.
Abrishamian to find or subpoena another witness to authenticate the bills). Mr. Abrishamian also alleged that Dr. Macedo had offered to tamper with a diagnostic study to make it show results more likely to yield a verdict in his favor at trial. Perhaps more importantly for our purposes, the Counterclaim also included a demand for a jury trial, which caused the case to be transferred to the Circuit Court for Montgomery County.
On January 25, 2012, Mr. Abrishamian filed a Motion for Order of Default (the " Default Motion" ) in the circuit court on the ground that WMG had not filed an Answer to the Counterclaim. On January 30, 2012, the court denied what it called " Plaintiff's Motion for Default" (emphasis added), reasoning that Mr. Abrishamian had already filed an Answer (in the " Order Denying Default" ). The circuit court apparently mistook the Motion for Default as filed by WMG, and, we suspect, denied the motion based on Mr. Abrishamian's answer to the original Complaint. We discuss this order in greater detail below.
[216 Md.App. 397] On January 31, 2012, WMG filed an Opposition to the Motion for Default (the " Opposition to Default Motion" ) (it presumably had not seen the court's order denying the Default Motion), along with an Answer to the Counterclaim. A brief respite of filings followed (and no request from Mr. Abrishamian for a clarification of the Order Denying Default). Then, on February 28, 2012, WMG moved to disqualify Mr. Brown pursuant to Maryland Rule 2-504 and Maryland Lawyer's Rule of Professional Conduct Rule 3.7 (the " Motion to Disqualify" ). WMG argued that the core dispute in the case--whether Dr. Macedo agreed to serve as an expert witness--centered around a conversation between Dr. Macedo and Mr. Brown about whether Dr. Macedo had agreed unequivocally to testify. The court granted the Motion to Disqualify in an Order, dated March 29, 2012 (the " Disqualification Order" ), that stated " that Edward J. Brown, Esquire, is DISQUALIFIED as counsel/attorney of record for [Mr. Abrishamian] in the above-captioned case." Mr. Brown viewed the Order as less than a total bar, however; a month later, on April 30, 2012, WMG moved to strike a notice of deposition (the " Motion to Strike Macedo Deposition" ), that Mr. Brown had signed as counsel for Mr. Abrishamian and that purported to note Dr. Macedo's deposition.
After receiving the Motion to Strike Macedo Deposition, and at the request of WMG's counsel, the Court called the parties in and held a hearing. The court did not see the ambiguity that Mr. Brown had seen in the Disqualification Order:
THE COURT: What about my order is not clear?
MR. BROWN: Your honor--
THE COURT: You don't have to agree with it, but--
MR. BROWN: Right.
THE COURT: --it says you're out of the case.
MR. BROWN: Well, I don't think it does say that, your honor, and I heard--
THE COURT: Great.
MR. BROWN: Okay.
[216 Md.App. 398] THE COURT: You're out of the case.
MR. BROWN: Well--
THE COURT: Do not do anything else as a lawyer in the case. My order said you are disqualified--
MR. BROWN: Okay.
THE COURT: --from acting as counsel in the case. You act as counsel at your peril. I don't want to pick up the phone.
MR. BROWN: May I just--
THE COURT: Please.
MR. BROWN: Can--
THE COURT: No, you're out. You don't like it, take an appeal--
MR. BROWN: I--
THE COURT: When it's appealable.
MR. BROWN: Okay, but can I just make a quick record, your ...