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.
I. FACTS AND PROCEDURAL HISTORY
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,
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.
The Clerk of the Circuit Court, however, failed to mail copies to the parties of Judge Pierson’s order granting sum
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
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:
1. Should a case that has been dismissed solely because of the preclusive effect of an earlier judgment in another case be reopened if the earlier judgment is vacated?
2. If a civil case that should have been dismissed without prejudice is erroneously dismissed with prejudice and the error is not corrected until after the limitations period has expired, does the plaintiff have any recourse?
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
II. STANDARDS OF REVIEW
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.”
III. DISCUSSION
1. The Doctrine of Res Judicata Precludes the Litigation of Powell II
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 cause of action because the second suit involves a judgment that “is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.” See Alvey v. Alvey, 225 Md. 386, 390, 171 A.2d 92, 94 (1961); see also Mackall v. Zayre Corp., 293 Md. 221, 228, 443 A.2d 98, 102 (1982) (stating that “if a proceeding between parties involves the same cause of action as a previous proceeding between the same parties, the principle of res judicata applies and all matters actually litigated or that could have been litigated are conclusive in the subsequent proceeding”).
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
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
2. Other Available Means to Preserve Powell’s Substantive Claims Were Not Employed
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:
Substantial difficulties result from the rule that a final trial-court judgment operates as res judicata while an appeal is pending. The major problem is that a second judgment based upon the preclusive effects of the first judgment should not stand if the first judgment is reversed. In some cases, ... the second judgment has become conclusive even though it rested solely on a judgment that was later reversed. This result should always be avoided, whether by delaying further proceedings in the second action pending conclusion of the appeal in the first action, by a protective appeal in the second action that is held open pending determination of the appeal in the first action, or by direct action to vacate the second judgment.
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
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 HCA-DRO 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 Allison’s grant of summary judgment. Merely filing a second Statement of Claim in the HCADRO is insufficient to toll the statute of limitations. See CJP § 5-109(d). Hence, the statute of limitations on Powell’s substantive claims was tolled on 2 February 2007, the date that he filed Powell II, but began ticking away once Judge Pierson granted final judgment in March 2008, and appears to have expired before we issued our opinion in Powell I.
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
3. Md. Rule 2-535 Does Not Provide Relief to Powell
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
§ 6-408. Revisory power of court over judgment
For a period of 30 days after the entry of a judgment, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment. After the expiration of that period the court has revisory power and control over the judgment only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rule.
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
Third, we do not believe there is any relevant evidence of procedural uncured irregularity in this case. We have defined “irregularity,” for the purposes of Md. Rule 2 — 535(b), as a failure to follow required procedure or process. Early v. Early, 338 Md. 639, 653, 659 A.2d 1334, 1341 (1995). Although the procedural history of this litigation is tortured, the summary judgment entered in Powell I, despite being afforded preclusive effect before being found erroneous, is not an “irregularity” within the meaning of the Rule. Rather, the only example of procedural irregularity in this record was in the Circuit Court clerk’s failure to mail to all parties copies of Judge Pierson’s order granting summary judgment in Powell II. As a result of this irregularity, Powell was not able to file an appeal until Judge Cannon cured the irregularity, pursuant to Md. Rule 2-535, by vacating Judge Pierson’s order and entering her order to like effect. There is no other evidence of irregularity in this case. As Powell failed to allege or demonstrate by clear and convincing evidence that Md. Rule 2-535(b) applies to his benefit in this case, we hold that no relief under that Rule is available.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED; COSTS TO BE PAID BY APPELLANTS.
. Jackie D. Powell will be referred to as "Mr. Powell” throughout this opinion. Ronald L. Powell was joined in initiating this litigation by Mr. Powell’s other children, Brian Powell and Lisa L. Powell. For simplicity, we shall refer to them collectively, but in the singular, as "Powell” or Appellant, depending on context.
. Maryland requires a certificate of a qualified expert to be filed with a medical malpractice claim. CJP § 3-2A-04(b). We shall use “Certificate” here for the sake of simplicity.
. Judge Allison found that the Certificate was insufficient because Dr. Burt was not qualified to attest to the ability of a vascular surgeon to detect an epidural hematoma and, therefore, was not qualified to attest to the standard of care of a vascular surgeon, or the alleged breach thereof.
. Of note in our opinion, we said that "dismissing the case without prejudice allows for protection of a plaintiff’s rights in a medical malpractice case by providing the opportunity to re-file (assuming the limitations period has not expired)....” 421 Md. at 299, 26 A.3d at 898. The seemingly harsh result in the present incarnation of the case reinforces the adage that one may win a battle, but yet lose the war.
. CJP § 5-109 tolls the running of the period in which to bring a claim under CJP § 3-2A-01 (within five years of the time the injury was committed, or within three years of the time the injury was discovered). At the time our decision in Powell I was filed on 16 August 2011, approximately nine years had passed since the injury to Mr. Powell, and seven and one-half years had elapsed since his death, although there had been some tolling periods during this time.
. Powell moved in Powell II to consolidate Powell I and Powell II, despite Judge Allison's grant of summary judgment in favor of the Appellees (Dr. Breslin and his employer) in Powell I in January 2007. We could find no indication in the record that the Circuit Court ruled expressly on Powell's motion to consolidate Powell I and Powell II as those cases stood then. In the absence of a ruling on consolidation, the two cases proceeded on separate tracks. Subsequent events pushed the motion into obscurity.
. Made aware at the 26 November 2007 hearing that Powell had filed on 29 October 2007 with Judge Allison in Powell I a motion asking her to alter or amend her judgment nunc pro tunc, Judge Pierson, it appears, delayed ruling on the summary judgment motion before him until Judge Allison ruled on the revisory motion before her. She denied it on 11 March 2008.
. The Court Clerk also failed to enter a judgment on the docket, as required by Md. Rule 2-601(a).
. Md. Rule 2-535(b) provides, in relevant part:
Rule 2-535. Revisory power
(b) Fraud, mistake, irregularity. On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.
. Appellant had appealed Powell I to the Court of Special Appeals on 27 March 2009, requesting review of Judge Allison's grant of summary judgment, which lead ultimately to our 2011 decision in Powell I.
. Should the procedural posture of the case not be complicated enough at this point, in January 2012, Powell filed a third Statement of Claim, HCA No.2012-037 ("Powell III"), identical to the ones in Powell I and Powell II, in the HCADRO. As of 23 March 2012, that Statement of Claim was stayed in the HCADRO, pending final disposition in the present case before this Court.
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.
. In his order granting Appellees’ Motion for Summary Judgment, Judge Pierson noted that there was no dispute that the adjudication in Powell I was a final judgment on the merits, "whether or not it should have been.”
. Md. Rule 2-632(a) provides:
Rule 2-632. Stay of enforcement
(a) Stay of interlocutory order. On motion of a party the court may stay the operation or enforcement of an interlocutory order on whatever conditions the court considers proper for the security of the adverse party. The motion shall be accompanied by the moving party's written statement of intention to seek review of the order on appeal from the judgment entered in the action.
. We note that no party to the underlying suit disputes that the statute of limitations for Powell’s substantive claims expired before the filing on 16 August 2011 of our opinion in Powell I.
. Md. Rule 8-425 provides:
Rule 8-425. Injunction pending appeal
(a) Generally. During the pendency of an appeal, the Court of Special Appeals or the Court of Appeals may issue (1) an order staying, suspending, modifying, or restoring an order entered by the lower court or (2) an injunction, even if injunctive relief was sought and denied in the lower court.