Opinion
No. 2621
03-10-2017
JUDY KAY MISKELL v. ALAN ROHRER
UNREPORTED
Woodward, Leahy, Davis, Arrie W., (Senior Judge, Specially Assigned) JJ. Opinion by Davis, J. * This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
The instant case stems from a Complaint and request for waiver of fees filed by Judy Kay Miskell, appellant, pro se, in the Circuit Court for Frederick County on October 14, 2015. Appellant filed a purported medical malpractice lawsuit against Dr. Alan Rohrer, appellee, pro se. The court denied appellant's request for waiver of fees on October 30, 2015 because of the incoherence of appellant's complaint. Appellant filed a Request for Extension to file Amended Complaint on November 17, 2015, which the court granted on December 7, 2015. On December 22, 2015, appellant filed a Motion to Waive Filing Fee Prepayment and an Amended Complaint. The court denied appellant's Motion on December 31, 2015.
Appellee did not file an appellate brief in this appeal. Accordingly, we will proceed based on appellant's brief only.
Appellant filed the instant appeal on January 29, 2016, in which she raises the following questions for our review, which we, in part, rephrase:
1. Did the circuit court violate appellant's First, Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights, under the United States Constitution
(a) by "using a person from the Judiciary" as an arbitrator for an administrative review under the Executive Branch, thereby violating the Separation of Powers Doctrine and
(b) by ignoring that Maryland law "mandates" judicial review, "regardless of any arbitration by the Executive Branch?"
Although our review of trial proceedings is usually based on the "Questions Presented" by appellant, we are mindful that the scope of our review, pursuant to Maryland Rule 8-131, is constrained by what appears on the record in the lower court proceedings. Typically, this involves a determination of whether the trial judge committed error and, assuming the commission of error, whether the error compels reversal of the judgment of the trial court. Because both parties are proceeding pro se, we deem it appropriate to articulate the questions that we conclude are presented by the proceedings at issue:
1. Did the circuit court err in denying appellant's request to waive her pre-paid costs and
2. Do appellant's arguments in her brief explicate issues that are coherent, relevant and justiciable to her claims?
FACTS AND LEGAL PROCEEDINGS
Background
Appellant has initiated several lawsuits against appellee and other individuals, asserting various claims for relief based on appellee's alleged negligence in treating her husband, Jeffrey James Miskell, now deceased. Prior to Mr. Miskell's death on March 10, 2010, he had been under appellee's care for several years. Mr. Miskell died from brain and lung cancer.
Nearly two years later, on March 9, 2012, appellant filed a purported medical malpractice suit in the United States District Court for the District of Maryland, against appellee. On April 18, 2012, appellee moved to dismiss the case due to appellant's failure to exhaust her claim through arbitration procedures, as required by the Maryland Health Care Malpractices Claims Act (HCMCA). On May 3, 2012, appellant voluntarily filed a motion for dismissal, without prejudice, pursuant to Fed. Rules Civ. Proc. Rule 41, which the court granted on May 14, 2012.
Appellant captioned her motion "Rule 41 Withdrawal of Action."
In compliance with the HCMCA's arbitration procedures, appellant filed a medical malpractice claim with the Health Care Alternative Dispute Resolution Office (HCADRO) on July 12, 2012, Case No. 2012-254. This claim was dismissed on September 25, 2012, without prejudice, by the Director of HCADRO for failure to timely file a certificate of a qualified expert, as required by § 3-2A-04(b) of the HCMCA.
On January 14, 2013, appellant filed a motion in the United States District Court for the District of Maryland, captioned "Resubmitting This Case to the Court: Continuity of this Action." The court characterized the motion as an "attempt to reopen the case" and denied appellant's motion on July 23, 2013 because appellant had not sought reconsideration of the dismissal of the case and because the record revealed that she had not complied with the HCMCA's requirements. Appellant did not appeal the July 23rd Order, but, on August 23, 2013, appellant requested reconsideration of the July 23rd Order, pursuant to Fed. Rule. Civ. Proc. Rule 60(b)(6).
On December 13, 2013, the court denied her motion for reconsideration, noting that such motions do not substitute for a timely appeal and that appellant did not establish "extraordinary circumstances" justifying Rule 60(b)(6) relief. As it pertained to the exhaustion requirement under the HCMCA, the court noted that appellant had not sought and received consideration of the requested reconsideration of the Rule 41 dismissal. The result was that her court claim was dismissed allowing her to voluntarily pursue arbitration procedures with the HCADRO. The court reiterated that, once appellant exhausted those arbitration procedures, she could file a new case in court.
Miskell v. Rohrer, Civil No. WDQ-12-0742, 2013 WL 6622923 (D. Md. Dec. 13, 2013).
Appellant notes, in her brief, that she filed a second claim for arbitration with the HCADRO, but she fails to provide the date in her brief or the document in the record. Appellant also notes, without citation to the record, that HCADRO dismissed this second claim, with prejudice, for her failure to comply with statutory procedures outlined by the HCMCA, "in particular: 3-2A-04 Filing of claim; appointment of arbitrators; (emphasize plural) [sic] arbitrators' immunity from suit and 3-2A-05 Arbitration of claim in which (f) Agreement for single arbitrator:1) [sic]."
The Instant Appeal
In her Complaint, filed on October 14, 2015 with the Request for Waiver of Prepaid Costs, appellant states that, "[o]n May 8, 2015, the Clerk for the Fourth Circuit of Appeals (Richmond, Virginia), suggested this Action be filed to this [sic] Circuit Court in Frederick, Maryland." Along with her complaint, appellant requested that the circuit court waive her prepaid costs. As noted, supra, on October 30, 2015, the court denied appellant's request, finding that, although appellant "m[e]t the financial eligibility guidelines of the Maryland Legal Services Corporation" and "[i]s unable by reason of poverty to pay the prepaid costs," appellant's claim "does appear, on its face, to be frivolous" and appellant's "complaint is incomprehensible. If [she is] alleging medical malpractice or other tort, [she] needs to file [an] amended complaint." Pursuant to the court's denial, appellant had ten days from the date of the Order to pay the costs, or the complaint would be considered withdrawn. The instant appeal was filed on January 29, 2016.
STANDARD OF REVIEW
"The grant or denial of the waiver application is vested within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Davis v. Mills, 129 Md. App. 675, 679 (2000) (citing Torbit v. State, 102 Md. App. 530, 536 (1994)). "That is to say, an abuse of discretion occurs when a decision is 'well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.' " Consol. Waste Indus., Inc. v. Standard Equip. Co., 421 Md. 210, 219 (2011) (quoting King v. State, 407 Md. 682, 711 (2009)). "Thus, 'a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling.'" Id. (quoting King, 407 Md. at 711). "Whether there has been an abuse of discretion depends on the particular circumstances of each individual case." Id. (quoting Pantazes v. State, 376 Md. 661, 681 (2003)).
DISCUSSION
I
DENIAL OF APPELLANT'S MOTION TO WAIVE
PREPAYMENT OF FILING FEE
Appellant appeals from the circuit court's denial of her Motion to Waive Filing Fee Prepayment, but as noted, supra, appellant fails to address this issue in her Questions Presented. However, appellant mentions the issue in the section of her brief, captioned "Analysis," in the first subsection, fourth paragraph and posits in the second subsection, first paragraph that "[j]udges must state their reasons if they seek to deny forma pauperis [sic]."
Md. Code Ann., Cts. & Jud. Proc. § 7-201(a) requires that, notwithstanding certain exceptions, "no case may be docketed and no writ of attachment, fieri facias, or execution on judgment may be issued unless the plaintiff or appellant pays the required fee." "Maryland law provides a statutory right to a waiver of the prepayment of filing fees for actions in the circuit court in cases of indigency." Torbit, 102 Md. App. at 532-33. Section 7-201(b) provides for a waiver in such cases:
The circuit shall pass an order waiving the payment if:
1. Upon petition for waiver, it is satisfied that the petitioner is unable by reason of his poverty to make the payment; and
2. The petitioner's attorney, if any, certifies that the suit is meritorious.
This Court has held that, when Petitioner elects to proceed pro se, the circuit court must make the determination whether the suit is meritorious. Davis, 129 Md. App. at 680-81 (2000). See also MD. RULE 1-325(e)(3) ("If the court finds that the party is unable by reason of poverty to pay the prepaid cost and that the pleading or paper sought to be filed does not appear, on its face to be frivolous, it shall enter an order waiving prepayment of cost.") (Emphasis supplied).
As it pertains to this determination, we have penned that this requirement "should not be an onerous one." Torbit, 102 Md. App. at 537. "A lengthy statement is not necessary; a brief, one line notation, such as 'affidavit does not show that applicant is indigent,' or 'complaint is patently meritless [or frivolous]' will normally suffice." Id.
The Maryland Legislature has not compelled the circuit court to reduce its explanation for denial of a fee waiver request to writing, pursuant to § 7-201(b) or Rule 1-325(a). In Torbit, this Court, acknowledged that "Maryland's appellate courts ha[d] not addressed the issue . . . whether the court must state the reasoning behind its decision when denying a motion to waive the prepayment of filing fees under Rule 1-325(a)." 102 Md. App. at 534. After reviewing a case in the Seventh Circuit concerning the denial of leave to proceed forma pauperis, and a case in North Dakota concerning a petition for name change, we opined, in dicta, that "we believe that the circuit court should state its findings in writing so that, on appeal, we can determine whether the court's decision amounts to an abuse of its discretion." Id. However, we explicitly held, without mentioning a requirement that the findings be reduced to writing, that "the court's failure to explain its reasons for denying appellant's motion was, itself, an abuse of discretion." Id. We reasoned that
Besecker v. Illinois, 14 F.3d 309 (7th Cir.1994) (per curiam) (holding that, when denying leave to proceed in forma pauperis, "it is incumbent on the district court to provide a sufficient explanation for its ruling to allow meaningful review by the court of appeals").
In the Matter of the Petition for Change of Name of Dennis H.F. Mees, 465 N.W.2d 172 (N.D.1991) (holding that "although not specifically mandated, the language of that [statute] implicitly requires the lower court to make written findings that delineate its reasons for denying the petition").
[t]he circuit court endorsed, 'Denied the 27th day of January, 1994' on the proposed order to determine whether the Circuit Court that appellant had submitted to the court. That is not a sufficient explanation from which we can determine whether the Circuit Court abused his discretion in denying appellant's motion. No specific reason for the decision is stated, and we cannot infer one based on the face of the order or on our review of the record.Id. at 536 (Emphasis supplied). See also Davis, 129 Md. App. at 680 (holding that the trial court's sole statement that "[a] civil action of this nature must be accompanied by the payment of $90.00 court costs before processing" was insufficient because the Court was "unable to discern, within the framework of the statute and rule, the basis for the denial").
In the instant case, after appellant's first Motion for Waiver of Prepayment Fees, the court expressly noted that appellant's claim "does appear, on its face, to be frivolous" and further wrote that appellant's "[c]omplaint is incomprehensible" and that, "if [appellant was] alleging malpractice or other tort, [she] needs to file [an] amended complaint." Appellant then filed a second request for waiver of prepaid fees with an Amended Complaint that referenced an "attached complaint that the circuit court should reference for 'every ground, fact, claim and demand and has been filed in a line of action with the same substance and has never been labeled frivolous by any court except this court.'" This attached complaint, originally filed in 2012 in the United States District Court for the District of Maryland, was the same complaint appellant attached to her first complaint and request for waiver of prepayment fees and was the only substantive basis for appellant's complaints.
Also included in appellant's first complaint, inter alia, were letters to Maryland Governor Larry Hogan, a number of United States Congressmen, print-outs of federal and state statutes and cases, and petitions to impeach two federal judges.
Although appellant submitted a document titled "Amended Complaint," in actuality, appellant made no amendment to the claims or their legal support, for which she sought redress from the circuit court. Appellant failed to substantially amend her complaint; consequently, she provided the circuit court with essentially the same documents to review.
The purpose of the circuit court's explanation for its denial of a request for waiver of prepayment of fees is to provide the reviewing court with the ability to review its action for abuse of discretion. Torbit, supra. Unlike Torbit, in the case sub judice, we can clearly read the written explanation from the first denial and infer an explanation from the second denial upon our review of the record. Patently, because of appellant's failure to substantively amend the complaint, the circuit court was left with no choice but to conclude that the same documents and submissions were without merit and as incomprehensible as before. Based on our review of the record, we do not find the circuit court's actions as "well removed from any center mark imagined" or "beyond the fringe" of what we would deem "minimally acceptable." Consol. Waste Indus., Inc., 421 Md. at 219. Accordingly, we hold that the circuit court's denial of appellant's request a waiver of prepaid filing fees does not constitute an abuse of the court's discretion.
"Even when a trial court is found to have abused its discretion, 'it has long been the settled policy of this [C]ourt not to reverse for harmless error.'" Id. (quoting Brown v. Daniel Realty Co., 409 Md. 565, 613 (2009)). "[T]he burden is on the appellant in all cases to show prejudice as well as error." Crane v. Dunn, 382 Md. 83, 91 (2004) (citing Rippon v. Mercantile Safe Deposit Co., 213 Md. 215, 222 (1957)) "Prejudice will be found if a showing is made that the error was likely to have affected the verdict below. 'It is not the possibility, but the probability, of prejudice which is the object of the appellate inquiry.'" Id. (quoting State Deposit Ins. Fund Corp. v. Billman, 321 Md. 3, 17 (1990)). "Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice." Id. at 92 (citing Hance v. State Roads Comm., 221 Md. 164, 176 (1959)).
In the instant case, we are not persuaded that the lack of express explanation by the circuit court for denial of the second waiver for prepaid fees constituted an abuse of discretion. This is especially the case when the written and inferred explanation provided on the record, was clear to the reviewing court. However, any attributable error is harmless and we discern nothing from the record that warrants reversal. Moreover, appellant has not offered any basis for a finding that the circuit court's explanation was "manifestly wrong" or "substantially injurious." Id.
II.
APPELLANT'S SUBMISSION TO THIS COURT
Appellant has failed to comply with numerous subsections of Md. Rule 8-504, which govern the contents of appellate briefs. Furthermore, that which has been submitted in appellant's brief is largely incoherent, irrelevant and nonjusticiable. Consequently, our review will exclude the collateral issues presented by appellant. We explain.
Amended by enacted legislation 2016 MARYLAND COURT ORDER 0002 (C.O. 0002). The enacted legislation will take effect April 1, 2017. Accordingly, appellant's appeal is governed by the previous version of the Rule.
Md. Rule 8-504(c) provides, in pertinent part, that, "[f]or noncompliance with this Rule, the appellate court may dismiss the appeal or make any other appropriate order with respect to the case . . . ." However, this Court has recognized that "dismissing an appeal on the basis of an appellant's violations of the rules of appellate procedure is considered a 'drastic corrective' measure." Rollins v. Capital Plaza Assocs., L.P., 181 Md. App. 188, 202 (2008) (quoting Brown v. Fraley, 222 Md. 480, 483 (1960)). "We also are mindful that reaching a decision on the merits of a case 'is always a preferred alternative.'" Id. (quoting Joseph v. Bozzuto Mgmt. Co., 173 Md. App. 305, 348 (2007)). Therefore, we "will not ordinarily dismiss an appeal 'in the absence of prejudice to appellee or a deliberate violation of the rule.'" Id. at 202-03 (quoting Joseph, 173 Md. App at 348). However, "substantial violation of the appellate rules of procedure that have clearly caused needless difficulty . . . [i]n combination . . . represent a complete disregard of the rules of appellate practice," id. at 203, and may warrant dismissal of the appeal.
In the instant case, appellant has violated numerous rules of appellate practice as prescribed by the Maryland Rules. Contrary to the requirements of Maryland Rule 8-504(a)(4), the Statement of the Case and Statement of the Facts, appellant has failed to cite the relevant facts in the record or record extract which support her argument. The Statement of Facts is comprised of approximately four pages of facts and argument, citing only four times to the record.
There is no Standard of Review, which is a violation of Section 8-504(a)(5). Despite referencing, in her section setting forth the Analysis, it is requisite that there be "[a] Standard of Review [which] must rest on the facts [upon] which this [C]ourt must predicate a decision[.]" Appellant fails to set forth the pertinent standard for our review, i.e., abuse of discretion.
Appellant's Statement of Relief Sought violates 8-504(a)(7) because it inappropriately requests this Court to remand the case to the circuit court in order to facilitate appellant's removal of her case to a different venue in a state other than Maryland. In the Conclusion, appellant specifically requests that we remand the case to the Circuit Court for Frederick County, "at which time appellant will seek a change of venue." Appellant further explains: "NOTE [sic]: This change of venue was suggested by one of the physicians that will testify before a Jury—in the physician's opinion; [sic] he would feel safe testifying out of the State of Maryland." However, appellant's retort is that she will not "go to that extreme so long as we hold to supporting [the] (3) three separate branches of government the insurgents are attempting to reduce to two (2) branches." Appellant concludes that, "[w]ithout that trinity, we are weakening our ability to support our Justice System because the adversaries to the Constitution know that— 'a three-fold cord is not quickly broken,' the Preacher, Ecclesiastes, Chapter 4, Verses 7-13."
We note that the citation for appellant's exact quote is Ecclesiastes 4:12. The version of the Bible which contained the quote used by appellant has not been provided. --------
Md. Rule 8-604(d)(1) governs the appellate court's jurisdiction for remanding an action and provides that,
[i]f the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court.
The rationale for the remand of an action from the appellate court to the lower court is not to re-litigate anew; rather, the purpose is to address any legal errors. A request for relief sought that entails remanding the case in order that it may then be transferred out of state is wholly inappropriate on appeal. It was incumbent upon appellant to address a potential change of venue during the circuit court proceedings, rather than after the issue was decided by the court and then appealed to this Court, notwithstanding the fact that a change of venue is within the purview of the defendant. Appellant's request for relief cannot be a conditioned on appellant's statement of what cause of action that the appellant will pursue depending upon the decision of this Court. It must be a clear, precise request for relief from a cognizable harm.
The Record Extract violates 8-501(a) by failing to designate the sections of the Record Extract, specifically the segments of the record that are reasonably necessary for determination of the issues presented. Finally, we note deficiencies with the record itself, e.g. missing decisions from the HCADRO, which constitute violations of Rule 8-413.
Significantly, the Analysis violates Rule 8-504(a)(6) by failing to provide argument and analysis in support of each issue raised on appeal. Md. Rule 8-504(a)(5) provides that an appellate brief must contain an argument supporting the party's position. Appellant provides no headings or captions to indicate that her Analysis corresponds to the questions presented. It is also not possible to discern, from reading the Analysis, that the substance of appellant's argument supports any of the Questions Presented for our review. Much of the argument in each subsection is incoherent. The following are instances of appellant's flawed propositions and irrelevant theories:
• Subsection I, Paragraph One states that arbitration in Maryland is unconstitutional and violates the State and Federal Constitutions.
• Subsection I, Paragraph Two asserts that the right to a jury trial is a constitutional mandate, citing cases from the State of Oklahoma in support, with the statement that "this is appellant's position in this appeal."
• Subsection I, Paragraph Three provides a "note" concerning appellant's federal case.
• Subsection I, Paragraph Four reiterates appellant's position that arbitration is unconstitutional, adding that, in federal court, a three-judge-panel is required and that there is "an allegation of Graft and Corruption on the part of certain personnel
in not only the District Court, but in Richmond, Virginia"—which we infer is a reference to the Fourth Circuit Court of Appeals. Here, appellant also adds that the Circuit Court for Frederick County wrongly denied her request to waive "pre-paid costs."
• Subsection I, Paragraph Five states that the Maryland Code requires judicial review and that appellant demanded a jury on February 1, 2012 in a federal action.
• Subsection I, Paragraph Six concludes that jurisdiction has been "unbroken" from March 9, 2012, that a motion will be made to "transfer" a federal case to "the State Judicial [sic] by Federal Statute" and that "on this issue: jury demand is now made to this court."
• Subsection II, Paragraph One states that a judge must state his or her reasons in denying a forma pauperis, citing Steffler v. United States, 319 U.S. 38 (1943).
• Subsection II, Paragraph Two, appellant states that she "does not feel arrogant or disrespectful" by stating that court(s), HCADRO, attorneys and arbitrators should do "their job."
• Subsection II, Paragraph Three states that "[n]ew case decisions, previously not considered, may be considered when Jurisdiction [sic] by refusing to hear an issue and refusing to allow any Review (because the Appellant is indigent) is unlawful. No judge has heard this case." (Second emphasis supplied).
We can discern no coherent argument in support of the issues as appellant presents them for our review in her brief. Accordingly, this failure directly violates Rule 8-504(a)(5) and prevents our review of the merits of appellant's requested issues.
We are also mindful that appellant is pro se, but also that
[t]he rules of procedure apply primarily to parties, and, for the most part, to attorneys in their representative capacity. The rules . . . are not additional rules applicable only to pro se parties. They are not additional burdens imposed on laymen; they apply to laymen and lawyers alike. Lawyers generally are more familiar with the rules and are therefore better able to function in our rule-constrained adversarial system of justice. This is not due to a different set of rules, but is a reflection of their education, training and experience. The principle of applying the rules equally to pro se litigants is so accepted that it is almost self-evident.Tretick v. Layman, 95 Md. App. 62, 68 (1993). "[T]he Maryland Rules 'are not guides to the practice of law but precise rubrics established to promote the orderly and efficient administration of justice and . . . are to be read and followed.'" Rollins, 181 Md. App. at 197.
As Rollins, supra, articulates, the failure to comply with the Maryland Rules causes "needless difficulty" and creates "additional time and expense" separate from reviewing the merits of the appeal itself. Id. at 203. Additionally, these violations create difficulty for "this Court in determining what documents are or are not in the record and where supporting facts are located in the record." Id. As noted, the combination of the violations of the Maryland Rules, in the case, sub judice, rendered appellant's brief and record extract "so far removed from the boundaries of the rules and acceptable appellate practice that they are an affront to the process." Id.
In sum, appellant's numerous violations of the Maryland Rules and failure to frame justiciable legal issues could support a dismissal for her appeal. We cannot ignore the Rule violations and the impediment to a review on the merits of appellant's stated issues. "[I]t is not this Court's responsibility to attempt to fashion coherent legal theories to support appellant's sweeping claims." Elecs. Store, Inc. v. Cellco P'ship, 127 Md. App. 385, 405 (1999). Accordingly, we constrain our review to our earlier Analysis. See supra, Discussion Part I.
CONCLUSION
Appellant's innumerable procedural and substantive violations of the Maryland Rules impede our ability to review the issues undergirding appellant's stated legal claims. Therefore, the only cognizable issue that would be appropriate for our review is whether the Circuit Court for Frederick County abused its discretion when it denied appellant's Motion to Waive Prepayment of Filing Fees. Based on the foregoing, we hold that the court did not abuse its discretion.
EPILOGUE
We note that throughout her brief, appellant asserts that she was denied access to the courts and to judicial review. However, Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06A provides that a party may waive arbitration with HCADRO and proceed with filing a claim in federal or state court. Appellant's failure to do so cannot be imputed to the Circuit Court for Frederick County, or anyone else, as barring her access to the judicial system.
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.