Petition — Eisenbeiss v. Jarrell

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Rs> } Q 7) 9) Office-Supreme Court, U.S.

In The MAY §$

bi8.E D

1983

Supreme Court of the United Stites"

October Term, 1982

VICTOR M. EISENBEISS, JR.,

Petitioner,

VS.

JAMES HUBERT JARRELL, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF APPEALS OF MARYLAND

VAN S. POWERS

THOMAS F. KENNEDY

CHARLES J. GODDARD

Attorneys for Petitioner

4344 Farragut Street

Hyattsville, Maryland 20781

(301) 277-3311

tz * NJ (201) 257-6850eNY (212) 840-9494ePA (215) 563-5587

ters.ime. MA (617) 542-1114*DC (202) 783-7288eUSA (800) 221-0008

A. QUESTIONS PRESENTED FOR REVIEW.

1. WAS PETITIONER DENIED DUE PROCESS

OF LAW, GUARANTEED UNDER THE FOURTEENTH

AMMENDMENT OF THE CONSTITUTION OF THE

UNITED STATES, AND HIS RIGHTS AND PROPERTY

BY WAY OF CERTAIN CAUSES OF ACTION THEREBY

ARBITRARILY AND SUMMARILY EXTINGUISHED

AND TAKEN BY THE CONDUCT OF COURT WHICH,

ACTING AS FINDER OF FACT AND DECISION

MAKER, DENIED PETITIONER AN IMPARTIAL

HEARING AND FOUND AGAINST PETITIONER BASED

UPON THE COURT'S STATED, PRE-EXISTING

BIAS AND PARTIALITY WHICH WAS UNKNOWN

TO PETITIONER UNTIL THE CONCLUSION OF

PROCEEDINGS WHICH TERMINATED HIS RIGHTS?

2. WAS PETITIONER DENIED EQUAL PROQ-

TECTION OF THE LAWS, GUARANTEED UNDER

THE FOURTEENTH AMENDMENT OF THE CONSTITUTION

OF THE UNITED STATES, AND HIS RIGHTS AND

PROPERTY BY WAY OF CERTAIN CAUSES OF ACTION

THEREBY ARBITRARILY AND SUMMARILY EXTINGUISHED

AND TAKEN, BY THE FAILURE OF THE COURT

TO RECUSE ITSELF FROM ACTING AS FINDER

OF FACT AND DECISION MAKER BASED UPON

ITS KNOWN BIAS AND PARTIALITY CONCERNING

CERTAIN WITNESSES?

3. WAS PETITIONER DENIED DUE PROCESS

OF LAW, GUARANTEED UNDER THE FOURTEENTH

AMENDMENT OF THE CONSTITUTION, AND HIS

RIGHTS AND PROPERTY BY WAY OF CERTAIN

CAUSES OF ACTION THEREBY ARBITRARILY AND

SUMMARILY EXTINGUISHED AND TAKEN, WHEN

THE ENFORCEMENT OF AN ALLEGED SETTLEMENT

AGREEMENT ON MOTION BY A PARTY WAS GRANTED

BY THE COURT, DESPITE THE DEMAND OF, AND

PETITIONER'S RIGHT OF TRIAL BY JURY OF

ALL ISSUES OF FACT UNDER ARTICLE 23 OF

MARYLAND'S DECLARATION OF RIGHTS?

4. WAS PETITIONER DENIED EQUAL PRO-

TECTION OF THE LAWS, GUARANTEED UNDER

THE FOURTEENTH AMENDMENT OF THE CONSTITU-

TION, AND HIS RIGHTS AND PROPERTY BY WAY

OF CERTAIN CAUSES OF ACTION THEREBY AR-

BITRARILY AND SUMMARILY EXTINGUISHED AND

TAKEN, WHEN THE COURT, WITHOUT STATUTORY

OR OTHER AUTHORITY OR RULE OF PROCEDURE,

MERGED LAW AND EQUITY AND ENTERED AN ORDER

DISPOSITIVE OF PETITIONER'S RIGHTS AND

PROPERTY UPON A PARTY'S MOTION WHICH NEITHER

CONFORMED WITH NOR WAS AUTHORIZED UNDER

MARYLAND RULES OF PROCEDURE?

B. LIST OF ALL PARTIES TO THE PROCEEDING

VICTOR M. EISENBEISS, UR.

Petitioner, Plaintiff-Appellant

JAMES HUBERT JARRELL

Respondent, Defendant-Appellee

AVIS RENT-A-CAR SYSTEM, INC.

Respondent, Defendant-Appellee

Francis X. Quinn, Esquire

25 Wood Lane

Rockville, Maryland 20850

301 762-3303

Attorney for Appellees/Respondents

William N. Zifchak, Esquire

P.O. Box 550

Upper Marlboro, Maryland 20772

Attorney for Defendants (Below)

Henry E. Weil, Esquire

One Central Plaza, #1009

11300 Rockville Pike

Rockville, Maryland 20852

301 656-0700

Former Attorney for Petitioner

TABLE OF CONTENTS:

QUESTIONS PRESENTED FOR REVIEW....... i

LIST OF ALL PARTIES TO PROCEEDINGS...?i7

D TRE OP COT ERED be tence eee s neer ce iv

BPE OE BUCO ¢ LED onc ce wcvcccwncs vi

(i) Authorities Relied Upon In

Oe ee cece an tceee v1

(ii )Authorities Relied Upon

se ee is

OFFICIAL AND UNOFFICIAL REPORTS

og ae A NESE ISI Ne ee ane 1

JURISDICTION

1. Judgment sought to be reviewed.2

2. Order respecting rehearing..... 2

3. Appeal to the Court of Special

Appeals of Maryland..-.eseeees 2

4. Petition for Writ of Certiorari

to the Court of Appeals of

Maryland -ceeeseeeseeveeerveves 2

5. Allegation of Jurisdiction..... 7

CONSTITUTIONAL PROVISIONS, STATUTES,

GT a oc ea kha ccn es ccceeecc 4

Bimtceee GF THe GCRASE. wc cw wee eae 5

STAGE IN PROCEEDINGS AT WHICH FEDERAL

UG EEUNG MEME FAL SEU, . ove nec cecvccs 13

ARGUMENT FOR THE ALLOWANCE OF THE

cos OS re oe 15

APPENDIX

ce Copy of transcript of the

hearing of December 17, 1981, on

Motion to Enforce Settlement in the

Circuit Court of Prince George's

County, Maryland - opinion, orders,

finding of fact and conclusion of

Tou. S60 begs SE EO SEO covcicccccass

(ti) «a. Copy of Order of the

Court of Special Appeals of

ek I I GN ee

b. Copy of Opinion and Order

of the Court of Special Appeals of

Maryland ror ccccbac Se

(iii) a. Copy of Order of the.

Circuit Court for Prince George's

County dated December 24, 1981, filed

Teams SB FRE gc ac dcwcvesccecec (™

Bb. Cony of transcript of

hearing of February 8, 1982, in the

Circuit Court for Prince George's

County respecting the Order of Court

of December 24, 1981, from which

WOW TE 15 CGGGRE cco ccncccccevcee FM

(iv) Copy of Motions and Points

and Authorities concerning Order of

Court of December 24, 1981, including:

- Motion for Reconsideration ...ecce 4éa

- Motion to Strike Order of Court

ef December 25, 1901 . once ncccccs O68

- Motion to Revise Under Rule

Oe cach tbe we w be ec een tecesesccsccse Fan

- Motion to Stay the Effect of Order

of Court of December 24, 1981... 97a

(v) Text of Constitutional Pro-

visions, Statutes, Ordinances, Rules

and Regulations eeceeereeseeceerecee I03a

(vi) Authorities relied upon below. 12:

Vii

G2. TABLE OF AUTHORITIES:

(i) Authorities Relied Upon In Petition:

Amendment XIV, Section I, Constitu-

CIO8 GT Che UArTtee States. . wn... sex

Amendment IV, Section 18, Constitu-

nee

Amendment 23, Maryland Declaration

OF ice eke ence ccwces

ae roeg vw. Manze, 380 U.S. $45.

Foo vnc dcnvtcncnccccecl®

Boddie v. Connecticut, 401 U.S. 371

Joy Ee 17 sia

Chapman v. California, 386 U.S. 18

(1967)

eeeeeeseoeeweeeeeeeeeeeeeveeee8 22

Cooper v. maren, 306 U.S.1, 16-17

(1996) eeeeoeveeeaeeeeveeeeeeeev eee e 25

Fisher v. Pace, 336 U.S. 155 (1949) 22

Fuentes v. Shevin, 407 U.S. 67,

@eeeneteeeeteeeeeeeeneenee8e 20

oo eee Vv. AE aor U.S. 254,

mis + 70) @ee@eeeeeteoe@e#7reeee#e 20 ‘

Greene v. McElroy, 360 U.S. 474,

~ eeeeeoeeeeeerteeweseene eee 21

Griffin v. Maryland, 378 U.S. 130

a RE ee ee 25

Hagar v. Reclamation District, 111

. ° ’ @eeneenvesvee8e08 18

aS Li. vy. California, 395 U.S.

1 eee ee 22

viii

Mere BL: Vireisia, 381 U.S. 131 (1965)

Merceco ¥, Ceri fornta, 110 U.S. SI6,

RF CE 6 oe wb ee een nee 6uwese

I.C.C. v. Louisville & Nashville R.

BGs, CC! Uies BE, SIF (AFIT?

br teners ¥. Alton, 297 U.S. 337

Oe ic chi ve csknccuces

Johnson v. Mississippi, 403 U.S. 212

(19/1) @#eee

Liseebe ¥. Catiternia., 314 U.S. 219,

636 en kcackawcocues

Marchant v. Pennsylvania Railroad,

“aa

BOS Gee SOO, Oe ESSE) occ wceevees 1G, 19

Mayberry v. Pennsylvania, 400 U.S.

429 8 Ee a Sa ie ne ns

Milton v. Wainwright, 407 U.S. 371

(1972)

Mooney v. Holohan, 294 U.S. 103,

Murchison. In ve, 349 U.S. 133, 136

Oe a ec bec teeeceneeneeebosel

Schneble v. Florida, 405 U.S. 427

Ci OEE IE ee

Screws v. United States, 325 u.S.A.

Ce OO ee ee

suyeer v. Massachusetts, 291 U.S.

ae ¥, Constantin, 287 U.S.

3 3 COE © 6 oc 6k eek boo cncuc. 25

Taylor v. Hayes, 418 U.S. 488 (1974), 23

terry ¥. Adams. 345 U.S. 461, 473

nce ccechcccin 24

Taeey ©. Ghia, 273 U.S. 510 (1927). 9

unaer ¥. sevatice, 376 U.S. 575

(1964)

Uniceo oretes v. Classic. 313 U.S.

ee iccccnceecce

Srrerers, Ex parte, 1060 U.S. 339,

346-34/ Oe Ee on Oe ve oe ckbwecs 25

Ward v. Village of Monroeville, 409

U.9. 9/ (isfc} @eeeeeeeevee eevee ee 23

mest VW. Louisiana, i134 U.S. 2586,

203 (1904) eoeeeeeae eee ere eves eee eee 17

Willner v. Committee on Character,

Bre Une. Ses Gaels CISGS) . oc ccc 20

(ii) Authorities Relied Upon Below

CW MOMOPM IR COT), wc caceccce U238

Constitutional Provisions:

Amendment XIV, Section 1, Constitution

of the United States i, il, 4» 17, 23, 24, 26, 27

Amendment VII, Constitution of the United

oo ee i a eeee#e e*ee3ee#e

Amendment IV, Section 18, Constitution

of hse cig OS Ee

Amendment 23, Maryland Declaration of

ot OE Se nn

Statutes:

Courts and Judicial Proceedings, Section

1-201 (a) @ecerereeeeeeeoeeeeereeeraeererseeeseeseeeseee 4

Maryland Declaratory Judgment Act, Courts

and Judicial Proceedings Article,

Sections 3-401 et seq.; 3-402; 3-403; \

3-406 eoeeeeeeose ee eee eee eeee eee eeereeseeeeeeeee

Rules:

Rule 12, Federal Rules of Civil Procedure ..... 4

Maryland Rules of Procedure

S20, 321, 322, 323, 342°, 346, 406, 420,

422, 527, 532, 535, 552+, 363°. 867, $72,

Sre?. 626, 871. 1671. 1231, Canon of

Judicial Ethics, XIII*, Rules of Judicial

re TT ND Fe cnn icccccoccceccece 4

D. OFFICIAL AND UNOFFICIAL REPORTS OF

OPINIONS

In the Court of Appeals of Maryland,*

Victor M. Eisenbeiss, Jr., Appellant vy.

James Hubert Jarrell, et al., Appellees,

September Term, 1982, Petition Docket

No. 482

*Order denying Petition for Writ of

Certiorari, dated February 3, 1983,

having no written opinion.

In the Court of Special Appeals of

Maryland,** Victor M. Eisenbeiss, Jr.,

Appellant, v. James Hubert eurrel?l, et al.,

Appellees, September Term, 1982 No. 176

**Opinion and Order, affirming judg-

ment, dated November 4, 1982.

In the Circuit Court for Prince George's

County, Maryland,*** Victor M. Eisenbeiss,

Jr., Plaintiff v. James Hubert Jarrell,

et al., Defendants, Law No. 78,192

*** Judgment appealed from dated

December 24, 1981, filed January 4, 1982,

subsequent motions hearing on February 8,

1982.

E. Jurisdiction

1. Petitioner seeks review of the

Order of the Circuit Court for Prince

George's County, Maryland, dated Decem-

ber 24, 1981, filed January 4, 1982, which

granted a Motion to Enforce Settlement and

forever terminated petitioners rights and

causes of action.

2. The Order of Court filed January 4,

1982 was unaltered by subsequent motions

to reconsider, revise, strike and stay

which were, without hearing or argument,

denied on February 8, 1982.

3. The Court of Special Appeals of

Maryland, in No. 176, September Term, 1982,

denied an appeal of the Order of Court on

November 4, 1982 without addressing issues

raised.

4. The Court of Appeals of Maryland,

in Petition Docket No. 482, September Term,

1982, denied petition for writ of

certiorari without opinion on February 3,

1982.

5. The Supreme Court is conferred

jurisdiction to review the final judgment

and Order of the Circuit Court for Prince

George's County, filed January 4, 1982,

by writ of certiorari under provisions

of the United States Code and under Article

III, Section 2 of the Constitution of the

United States which extends the judicial

power "...to all Cases, in Law and Equity,

arising under this Constitution, the Laws

eT the United States, and Treatises made,

or which shall be made under their Author-

TUvins

rs CONSTITUTIONAL PROVISIONS, STATUTES,

ORDINANCES, RULES AND REGULATIONS

Constitutional Provisions:

* Amendment XIV, Section 1, Constitution

of the United States

* Amendment VII, Constitutionof the United

States

* Amendment IV, Section 18, Constitution

of Maryland

* Amendment 23, Maryland Declaration of

Rights

Statutes:

* Courts and Judicial Proceedings, Section

1-201 (a)

* Maryland Declaratory Judgment Act, Courts

and Judicial Proceedings Article,

sections 3-401 et seq.; 3-402; 3-403;

3-406

Rules:

Rule 12, Federal Rules of Civil Procedure

Maryland Rules of Procedure

3205 Gals Jac, 323, 342%, 346, 406, 420,

Rec, Sel, Soe, $35, 5Se*, S63*, S67, 572,

010%, 625, 871, [071. 1231, Canon of

Judicial Ethics, XIII*, Rules of Judicial

Ethics, Rule 13* and 14

* Pertinent text set forth in Appendix (v)

G. STATEMENT OF THE CASE

The petitioner, Victor M. Eisenbeiss,

as plaintiff represented by counsel filed

a declaration, jury trial prayer, and

interrogatories, in the Circuit Court for

Prince George's County, Maryland, on

October 31, 1979. The causes of action

arose from a motor vehicle collision which

occurred on November 4, 1977.

On December 18, 1979, counsel for both

defendants, James H. Jarrell and Avis

Rent-A-Car System, Inc., filed general

issue pleas, a denial of Ownership of the

motor vehicle, and a request for a jury

criat.

Discovery proceeded in the litigation

and in January and February, 1981, pre-

trial and settlement conferences were

conducted, however, the matter was not

settled so jury trial was scheduled for

February 23, 1981. On February 23, 1981,

the case was not reached for trial and the

jury trial was reset for March 1, 1982.

On August 31, 1981, the attorney for

defendants filed a Motion to Enforce

Settlement which came on for hearing in

open court in the Circuit Court for Prince

George's County, Maryland on December its

1981.

At the conclusion of the hearing on

defendants' Motion to Enforce Settlement,

the judge, as trier of fact, compromised

his finding of fact based upon his stated

professional and personal knowledge of

certain witnesses and stated on the record:

"seek Bhink 10°S unfortunate

that plaintiff in this case has

to have it decided by a judge...

that is in an equal standing with

the people that...testify in this

...but what the plaintiff is asking

me to do is to disregard the

testimony of people with whom I

know their reputation in the

community. I have worked with

these people on a professional

basis. These people still

appear before me...and he

Cplaintiff] is asking me not to

accept their testimony, because

it is, in fact, contrary to what

he says the situation is..."

(underline added), (see Appendix

(i)),

As a result of the hearing on the

Motion to Enforce Settlement, the judge

Signed an Order on December 24, 1981,

filed January 4, 1982, which granted

defendants' Motion, and thus, terminated

plaintiff's trial rights forever on the

underlying causes of action, despite

plaintiff's demand for a Jury trial.

In an attempt to point out to the

lower court what was believed to be ob-

vious ervor in receiving defendants'

Motion, hearing defendants' Motion, and

ruling on defendants' Motion with bias

and predisposition, the plaintiff obtained

new counsel who, on January 21, 1982,

filed a Motion for Reconsideration; Motion

to Strike Order of Court of December 24,

1981; Motion to Revise Under Maryland Rule

625; Motion to Stay the Effect of Order |

of Court of December 24, 1981; and Order

of Appeal together with certain affidavits,

related points and authorities proposed

orders and certificates of service and

request for hearing. The defendants filed

opposition to these motions.

All the then pending post-hearing

motions came on for hearing on February 8,

1982, before the same judge and, despite

a request by plaintiff's counsel that an-

other judge consider the matters, after

opening remarks by plaintiff's counsel and

without the taking of any evidence or oral

argument, the judge denied all pending

motions thereby preserving the ruling and

Order of Court which granted the defendants’

Motion to Enforce Settlement.

Subsequently, plaintiff took an

appeal to the Court of Special Appeals of

Maryland (No. 176,September Term, 1982)

based upon the following issues:

1. The enforcement of an alleged

settlement agreement on motion by a party

to a civil suit, when there was no settle-

ment agreement and the non-moving party

affirmatively stated that his attorney

did not have express authority to compro-

mise the claim violated Article 23 of

Maryland's Declaration of Rights which

guarantees that "the right of trial by

jury of all issues of fact in civil pro-

ceedings in the several courts of law in

this State, where the amount in controversy

exceeds the sum of five hundred dollars,

shall be inviolably preserved."

2. The enforcement of an alleged

settlement agreement on motion by a party

to a civil suit, when there was no settle-

ment agreement and the non-moving party

affirmatively stated that his attorney did

not have express authority to compromise

the claim was improper because it did not

conform with the requirements of the

Maryland Rules of Procedure.

3. A Motion to Enforce Settlement is

not an authorized procedure under the

Maryland Rules of Procedure, or under

Maryland statutory or case law.

4. There was error in the lower court

when the trier of facts, sitting at a

Motion to Enforce Settlement Hearing,

ruled, based in part on the trier's prior

knowledge of or contact with witnesses who

testified at the Motion to Enforce Settle-

ment proceeding.

5. The lower court, under Canon 13

of Rule 1231, had a duty or obligation to

recuse itself from ruling on the Motion

to Enforce Settlement, when the lower

court expressed what purported to be

an apparent conflict with Rule 1231,

Canon 13.

6. The trial judge made a finding of

fact which was dispositive of plaintiff's

rights on the underlying tort, and in so

doing the trial judge was bound to follow

Rule 1231, Canon 13 as a trial rule, for

the purposes of receiving evidence (tes-

timony) and making rulings on that evidence.

7. Certain affidavits contained in-

- formation important to the events surround-

ing the Motion to Enforce Settlement Hear-

ing were dispositive or material to the

fact finding process of the lower court

with respect to the ruling by the lower

court on the Motion.

The Court of Special Appeals of

Maryland, on November 4, 1982, denied

the appeal made by plaintiff and rendered

an eleven (11) page opinion which did not

address the issues concerning form of

propriety of such a motion, right to jury

trial and right to a fair and impartial

hearing.

Thereafter, plaintiff petitioned for

awrit of certiorari to the Court of

Appeals of Maryland (Petition Docket No.

482, September Term, 1982) which petition

was denied by the Court of Appeals of

Maryland by Order dated February 3, 1983.

H. STAGE IN PROCEEDINGS AT WHICH FEDERAL

QUESTIONS WERE RAISED

As described within Section G&G.

Statement of the Case, immediately after

the Order of the Circuit Court for Prince

George's County, Maryland was filed on

January 4, 1982, the petitioner obtained

new counsel who, before the Order became

a final Order (on February 4, 1982), filed

on January 21, 1982 a Motion for Reconsid-

eration, Motion to Strike Order of Court,

Motion to Revise, Motion to Stay the Effect

of Order of Court, and Order of Appeal

together with certain affidavits, related

points and authorities and proposed

orders, which raised the issues of the

impropriety of the Motion; the denial of

a fair and impartial hearing; and peti-

tioners right to jury trial on all issues.

These motions of petitioner were summarily

dismissed by the lower court on February 8,

1982, by the same judge despite the request

of petitioner's new counsel that another

judge consider the pending matters, par-

ticularly in view of the allegations and

evidence of partiality on the part of the

judge.

Upon the denial of the motions of

petitioner, appeal was taken to the Court

of Special Appeals as described within

section G. Statement of the Case, at

which point the issues raised at the trial

court level were delineated and argued by

way of exchange of briefs and the limited

oral argument permitted by the Court of

Special Appeals. The Court of Special

Appeals denied the appeal and failed to

address the issues in its written opinion.

raised by petitioner, then appellant, in

appellant's brief and reply brief.

I. ARGUMENT FOR THE ALLOWANCE OF WRIT

In the instant case, petitioner is

pursuing certain rights and causes of

action which accrued to him as a result of

a motor vehicle collision which occurred

in the State of Maryland in 1977.

As plaintiff, he had caused a law-

Suit to be initiated in the Circuit Court

for Prince George's County, Maryland

(Victor M. Eisenbeiss, Jr., v. James

Hubert Jarrell, et al., Law Number 78,192)

under authority of certain laws, rules of

procedure and rules of court, as well as

under certain wiarantess of the Declara-

tion of Rights of Maryland and, of course,

under the rights of protections afforded

him by provisions of the Constitution of

the United States.

Of great significance is the fact

that, from the very commencement of

Proceedings in the Circuit Court, as

plaintiff, he had requested a jury trial

on all issues of fact in the proceedings

(Defendants did so as well.).

In the course of the proceedings,

while awaiting jury trial, a Motion to

Enforce Settlement was made by defendants.

The Motion was not authorized under

Maryland Rules of Procedure, nor any

other rule of court and, in fact, merged

equity and law against the practice and

Procedure adopted and allowed in the

judicial system of Maryland.

As a result of the improper Motion,

and because of the failure of the court to

provide the petitioner with a fair trial

in a fair tribunal (the judge's stated

bias and predisposition), petitioner's

rights and causes of action were summarily

and arbitrarily extinguished and taken

from him against his rights under the

Fourteenth Amendment of the Constitution

of the United States.

What is due process of law depends

upon the circumstances of a case. Due

process varies with subject matter and

necessities of a situation. Due process

of law means following the forms-of law,

which are appropriate to the case and just

to the parties affected. A State "is

free to regulate the procedure of its

courts in accordance with its own concep-

tion of policy and fairness unless in so

doing it offends some principle of justice

so rooted in the traditions and conscience

of our people as to be ranked fundamental."

Snyder v. Massachusetts, 291 U.S. 97,105

(7934); West v. Louisiana, 194 U.S. 258.

263 (1904); Boddie v. Connecticut, 401 U.S.

371 (1S7i)}. Tt mest be pursued in the or-

dinary mode prescribed by law; adapted to

the end to be attained; and, it must give

a party an opportunity to be heard

respecting the justice of the judgment

sought. Hagar v. Reclamation District,

117 U.S. 7Gl., 706 (11664): Hurtado ¥.

California, 170 U.S. $16, 537 (1864).

Where a litigant has the benefit of

a full and fair trial tn state courts,

and his rights are measured, not by laws

or procedures which affect him individually,

but by general provisions of jaw applic-

able to all those in like condition, he

is not deprived of property without due

process of law, even if he can be regarded

as deprived of his property by an adverse

result, provided he be accorded a fair

and impartial determination. Marchant vy.

Pennsylvania Railroad, 153 U.S. 380, 386

(1894).

: An elementary and fundamental require-

ment of due process in any proceeding which

is to be accorded finality is that an

opportunity to be heard be granted, not

just at a meaningful time but, in a mean-

ingful manner. Armstrong v. Manzo, 380

U.S. 545, 552 (1965) the constitutional

right to be heard is a basic aspect of

the duty of government to follow a fair

process of decision making when it acts

to deprive a person of his possessions.

The purpose of this requirement is not only

to ensure abstract fair play to an in-

dividual, but, more particularly, to

protect his use and possession of property

i. arbitrary encroachment -- to minimize

substantively unfair deprivations of

property, especially when the State acts

simply upon the application of and for

the benefit of a private party. Fuentes

v. Shevin, 407 U.S. 67, 80-81 (1972).

The essential ingredient to a mean-

ingful hearing, and as of right, one is

entitled to an impartial decision maker

just as in criminal and quasi-criminal

proceedings. Goldberg v. Kelly, 397

U.S. 254, 271 (1970): In re Murchison.

349 0.5. 133 (1955).

In almost every setting where im-

portant decisions turn on questions of

fact, due process requires an opportunity

to confront and cross-examine adverse

witnesses. Goldberg v. Kelly, 397 U.S.

254, 266-267 (1970); 1.€.C. v. Louisville

& Nashville R. Co., 227 U.S. 88, 93-94

(1913); Willner v. Committee on Character,

373 U.S. 96, 103-104 (1963). Where the

evidence consists of the testimony of

individuals whose memory might be faulty

or who, in fact, might be perjurers or

persons motivated by malice, vindictive-

ness, intolerance, prejudice, jealousy

or money, the individual's right to show

that it is untrue depends upon the un-

fettered rights of confrontation and cross-

examination before an impartial decision

maker. The Supreme Court of the United

States "...has been zealous to protect

these rights from erosion..." in all types

of cases. Green v. McElroy, 360 U.3$.

474, 496-497 (1959).

The provisions of the Bill. of Rights

now applicable to the States contain basic

guarantees of a fair trial. Due process

of law requires that the proceedings shall

be fair. In order to declare a denial of

due process, the Court must find that the absence

of that fairness fatally infected the

trial; that the acts complained of must

be of such a quality as necessarily pre-

vents a fair trial. Lisenba v. California

314 U.S. 219, 236 (1941). There are some

constitutional rights so basic to a fair

trial that their infraction can never be

treated as harmless, Chapman v. California,

386 U.S. 18 (1967); Harrington vy. California

395 U.S. 250 (1969); Schneble v. Florida,

405 U.S. 427 (1972); Milton v. Wainright,

£07 U.S. 371 (1972), as for example the

influence of contemptuous misbehavior in

court upon the impartiality of the pre-

siding judge. Fisher v. Pace, 336 U.S.

155 (1949); Ungar v. Sarafite, 376 U.S.

575 £1968): Rott v.. Virgeinia. 361 U.S. 7137

(1965); Mayberry v. Pennsylvania, 400 U.S.

455 (1971); Johnson v. Mississippi, 403

U.S. 212 (1S71is Tilineis v. Alten, 337

U.S. 337 (1970); Tumey v. Ohio, 273 U.S.

510 (1927); Taylor v. Hayes, 418 U.S.

488 (1974); Ward v. Village of Monroeville,

*O9 U.S. 57 11572).

Bias of prejudice either inherent

in the structure of the trial system or

as imposed by external events will deny

one's right to a fair trial.

"A fair trial in a fair tribunal is

a basic requirement of due process. Fair-

ness of course requires an absence of actual

bias in the trial of cases. But our system

of law has always endeavored to prevent

even the Probability of unfairness."

in re Murchison, 349 U.S. 133, 136 (1965).

The action inhibited by the first

section of the Fourteenth Amendment is

only such action as may fairly be said to

be that of the States. "The vital

requirement is State responsibility,"

Justice Frankfurter once wrote, "that

somewhere, somehow, to some extent, there

be an infusion of conduct by officials,

panoplied with State power, into any

scheme" to deny protected rights. Terry

¥. Adams, 345 U.S. 461, 473 (7953).

A State acts by its legislative, its

executive, or its judicial authorities.

It can act in no other way. The pro-

visions of the Fourteenth Amendment must

mean that no agency of the State, or of

the officers or agents by whom its powers

are exerted, shall deny to any person

within its jurisdiction the equal pro-

tection of the laws. Whoever, by virtue

of public position under a State govern-

ment, deprives another of property, life,

or liberty,without due process of law,

or denies or takes away the equal protection

of the laws, violates the constitutional

inhibition; and as he acts in the name

and for the State, and is clothed with the

State's power, his act is that of the State.

Ex parte Virginia, 100 U.S. 339, 346-

347 (1980); Cooper vy. Aaron, 358 U.S. 1,

16-17 (1958); Sterling v. Constantin, 287

U.S. 378, 393 (1932); Mooney v. Holohan,

794 1.5. 103. 112. TiS (1935): Gritiin vy.

Maryland, 378 U.S. 130 (1964); Screws v.

United States, 325 U.S. 91 (1945).

"Misuse of power, possessed by virtue

of state law and made possible only be-

cause the wrongdoer is clothed with the

authority of state law, is action taken

‘under color of' state law." United

States ¥. Giessic. 313 U.S. 299, 326

(1941).

At no time since defendants' filing

of the Motion to Enforce Settlement, was

petitioner accorded the rights and protec-

tions due him under the Fourteenth

Amendment:

The Motion to Enforce Settlement did

not follow the authorized forms of law

Or procedure in effect in the State of

Maryland at the time it was filed, nor

does it presently;

Petitioner was denied an opportunity

to be heard in a meaningful manner in

a proceeding (though unauthorized) where

the evidence consisted of testimony of

individuals; because, in fact,

The judge in the Circuit Court was

bias and predisposed as to the credibility

of certain witnesses and his stated bias

and predisposition fatally infected the

proceedings; and

The failure of the trial judge to

recuse himself and also to permit a hearing

upon a motion and by a procedure not

authorized in Maryland was, by the action

of the judge, and therefore of the Court

and State of Maryland, the denial to

petitioner of a fair trial in a fair

tribunal; the termination of his rights

and causes of action in court; and,

violative of the due process and equal

protection provisions of the Fourteenth

Amendment to the Constitution of the United

States.

This case presents issues of paramount

importance and going directly to the heart

of the protections and inhibitions

mandated by the Fourteenth Amendment which

was designed to enure to the benefit of

all citizens of the United States, without

exception.

It is most likely that review and

consideration of this case, or of any

case of similar quality and circumstance,

by the Supreme Court would result in a

remand to the original court for re-

consideration and remedial action by way

of a new trial at the very minimum,

because of the obvious, blatant violation

of basic protections assured under the

Constitution of the United States.

Respectfully Submitted,

Pe Ae ne

Vani S. Powers

Thomas F. Kennedy

Charles J. Goddard

Attorneys for Petitioner

4344 Farragut Street

Hyattsville, Maryland

301 277-3311

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 4th

day of May, 1983, a copy of the foregoing

document was mailed postage prepaid to

Francis X. Quinn, Esquire, 25 Wood Lane,

Rockville, Maryland 20850; William N.

Zifchak, Esquire, P.O. Box 550, Upper

Marlboro, Maryland 20772; and Henry E.

Weil, Esquire, One Central Plaza, #1009,

11300 Rockville Pike, Rockville, Maryland

20852.

By . es a a

Es . Powers

APPENDIX (i)

i! TRANSCRIPT OF PROCEEDINGS DATED DECEMBER 17, 1981

‘| IN THE CIRCUIT COURT POR PRINCE GEORGE'S COUNTY, MARYLAND

3 || VICTOR M. EISENBEISS, JR.,

| |

Plaintiff, : |

5] vs. : Law No. 78,192

6 | JAMES HUBERT CARRELL

| and

8 || AVIS RENT-A-CAR SYSTEM, INC., :

9 Defendants. :

0 |

1| TRANSCRIPT OF PROCEEDINGS pee

Courtroom No. 1 | .

County Courthouse

Opper Marlbore, "!aryland

} Thursday, Decesaber 17, 1981

14 ||

}

15 | The above-entitled matter came on for hearing in open

16 court at 11:40 o'clock a. n.

"| BEFORE:

of TEE HONORABLE JACOB S. LEVIN, Associate Judge.

a APPEARANCES: ; |

“| JORN E. BECKMAN, JR., ESQUIRE, appearing on behalf

2 | of the Plaintiff.

| FRANCIS X. QUINN, ESQUIRE and WILLIAM N. ZIPCRAK,

ESQUIRE, appearing on behalf of the Defendants.

| H

I PHYLLIS B. JACOBS

Official Court Reporter

P. 0. Box 401

Upper Marlboro, Marvland 20772

Apx (i) 1

DEFENSE WITNESSES

WEIL

Quinn

Beckman

HENRY E.

By Mr.

RARVEY A. JACOBS

By Mr. Quinn

By Mr. Beckman

WILLIAM N. ZIPCHAK

By Mr. Quinn

By Mr. Beckman

PLAINTIFF'S WITNCSS

VICTOR M. EISENBEISS

By Mr. Beckman

By Mr. Quinn

DEFENSE EXHISIT NOS.

i=3

Letters

CONTENTS

DIRECT CROSS REDIRECT RECRCSS

4 15

13 16

47 23

20 -

24 --

36 _

-o0o-

DIRECT CROSS REDIRECT RECROSS

« wR.

39 --

45 _

-000-

TOx INENTIFPICATION

IN CVIDENCE

ii case for $75,000, and as far as counsel is concerned, the case

3a :

SPRocEEOIUNGS

THE DEPUTY CLERK: Law 72,192, Eisenbeiss versus

Jarrell.

THE COURT: Mr. Beckman, Mr. Quinn, how are you

| gentlemen today? Mr. Zifchak, how are you today, sir?

MR. ZIFCHAK: Fine, Your Honor.

THE COURT: Everybody ready to proceed?

MR. BECKMAN: We are ready, Your Honor.

TEE COURT: Tell me why we are here today, Mr.

Beckman. Oh, it's your motion, Mr. Quinn.

MR. QUINN: This is a motion, Your Honor, to enforce

settlement.

Basically, the position of the defense in this case

is that there was an agreement between counsel to settle this

was settled.

Shortly, I think a day or so, after the actual settle-

}

ment, apparently the client, Mr. Eisenbeiss, indicated he did

not want to settle the case as a result of which the case was

taken out of the assignment and rescheduled for trial.

We then have filed this motion to enforce the settle-

ment that was entered into.

T2E COURT: Is there a trial date on this case?

MR. QUINN: Yes, Your Sonor. 1 believe the trial

date is March 1 of 19282, Your Honor.

Apx (i) 3

TBE COURT: What do you want to tell ne?

MR. QUINN: I would like to call, Your Honor --

THE COURT: (Interposing.) You want to put some

witnesses on?

MR. QUINN: Yes, Your Honor.

THE COURT: Call your first witness.

MR. QUINN: I call Mr. Weil as oy first witness,

Your Honor.

WHEREUPON,

HENRY £. WEIL,

was called as a witness by and on behalf of the Defendants, an¢

havine been first duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. QUIN:

¢ Would you please state your full name.

& Henry E. Weil.

Q An@ what is your occupation?

A I am an attorney.

Q Would you indicate, basically, whom you are associates

with as to the practice of law?

JA Barry Jacobs' firm, which is Belli, Weil & Jacobs.

¢ Where is your firm located?

A 11300 Rockville Pike, Rockville, Maryland.

Mr. Weil, how long have you Seen a4 member of the bar?

Apx (i) 4

Ah Approximately 21 years.

Q And I wonder if you can indicate briefly what has

been your practice?

he Primarily, it's been in the personal injury field

with emphasis on personal injury and a lot of litigation.

That's the bulk of my practice.

Q Would most of your work in the field of personal

injury litigation involve the representation of plaintiffs?

A I would say that's the case.

Q Now, with reference to this particular case which is

pending here, the case of Victor Eisenbeiss versus James

Jarrell and Avis Rent-A-Car Systen, did there come a time when

you represented Mr. Eisenbeiss?

I was retained by Mr. Eisenbeiss on November

LS Yes.

the 8th, 1977.

Q And particularly, what was this in reference to?

A Mr. Eisenbeiss had been in two automobile accidents.

One was on April the 24th, 1977. I did not represent him in

connection with that accident. He had handled that, himself.

Re was subsecuently involved in another accident on

November 4th, 1977, and I was retained to represent him in

connection with the injuries that he sustained, and related

Claims, in the accident which occurred on Novenuber the ¢th,

|1977.

Q And in pursuine this claim, di¢d you eventually file

a lawsuit?

A Yes. A lawsuit was filed in the Circuit Court for

Prince George's County.

¢ And the basic lawsuit that you filed is known as

Law No. 78,192, is that correct?

A That's correct.

Q Now, with reference to this particular case, I wonder

if you could indicate the general nature of the injury anc the

evaluation and settlement discussions that you had in this case

R The. nature of the injury was that Mr. Eisenbeiss had

sustained a fracture of the right femur in the accident which

occurred on April 24, 1977.

He had come under the care of an orthopedic surgeon,

a Dr. Jeffrey Witte.

Dr. Witte had placed a pin in that right hip. zt

was while Mr. Eisenbeiss had the appliance in his right hip that

he was involved in this second accident on November the 4th,

1977.

I had received several reports from Dr. Witte. I

had conferences with Dr. Witte, and Dr. Witte was of the opinion

that there probably was a new fracture through the healing

callous of the right femur as the result of the second acci-

dent. That was essentially Or. Witte's findings.

G Did there come a time when you evaluated this case?

A Yes. That's correct.

Apx (i) 6

7a 7

Q Ane I wonder if you could just indicate what was your

evaluation of the case?

MR. BECKMAN: Objection.

THE COURT: That's overruled. What was your evalua-

tion of the case, Mr. Weil?

THE WITNESS: There was a range that I thought the

case had, and that was from $50,000 up to $175,000. Somewhere

in that range.

BY MR. QUINN:

Qa Now, did there come a time when there were settle-

ment conferences with reference to this case we are talking

about that occurred in this case?

A Yes. There were presettlenent conferences.

Q And do you recall the first settlement conference

that was held?

A The first settlement conference was a conference with

Judge Blackwell.

Qo I wonder if you could indicate what occurred at that

settlement conference.

A Yes. We had made a demand, I be eve, at the time

£ that presettlement conference in the am unt of $200,000 in

settlement of Mr. Eisenbeiss' claims. There had been an offer

of $37,500.

The case was not settled as a result of that settle-

ment conference with Judge Blackwell. Subsecuently, there was

Ane (1) 7

a second settlement conference with Judge Woods.

Q And that was before Judge Woods?

A The second settlecent conference was before Judge

Qo Do you recall the date that that took place?

A The second settlement conference was on February 6,

1981.

Q I wonder if you could relate what happened at that

settlement conference.

A Well, the demand was, I believe, $100,000. The

settlement, the offer remained at $37,500 with some indication

that the carrier might increase its offer to between SC and

$60,000, but there was never & firm offer.

The only offer that had ever been made up until the

time and through the time of that second conference was

$37,500.

Q Was the case settled at the second conference?

Ah It was not settled at the second conference.

0 Could you relate what happened after that second

conference?

Lh Following the conference with Judce Woods, Mr.

Eisenbeiss and I met here in the corridor of the courthouse,

and we discussed the future prosecution of that case. © It was

ischeduled for trial on Pebruary 23, 1981, just two weeks or so

away.

Apx (i) 8

9a ,

I was in the process of subpoenaing the witnesses |

for trial. At that time, Mr. Eisenbeiss indicated that he |

would accept $75,000 in settlement of his claims. I then veined

with Mr. Eisenbeiss to Mr. Zifchak's office, which is just

down the street from the courthouse, and I did that, because I

was getting reacy to leave on a vacation that had been

arranged for February the 13th.

So I wanted to make sure that either the case was

Settled before I left on vacation, or that I would have all of

my witnesses ready for trial. So we went to Mr. Zifchak's

office. Mr. Eisenbeiss sat out in the waiting room, the

reception area, and I had a meeting with Mr. Zifchak. I told

Mr. cifchak that my client -- and I laid it right on the line --

I said we would take $75,000, which I had authority for from

Mr. DCisenbeiss, rather than ask for 05 or $95,090. YI told

Mr. Zifchak I needed an answer rather soon, because I was

scheduled to leave on my vacation.

Mr. Zifchak made a telephone call in my presence to

his principal. I was not able to communicate with his princi-

pal, and so we left Mr. Zifchak's office with the understanding

that if he could obtain authority for the $75,000, that he

would let me know as soon as he could.

Q And basically, the offer to settle for $75,000 was

;Outstandine at that point in time?

A Yes, it was.

Apx (i) 9

10a

Q Now, could you indicate what happened after that?

AK Yes. The following week, I think I spoke with Mr.

Zifchak once or twice to inquire as to whether or not he had

jany response from his principal. He indicatec that he kad not.

I told him that I was getting ready to leave on

vacation on the 13th of February, anc that if he had, if he

obtained the authority for settlement to simply call my office

and let us know.

I left town on the 13th of February, and during the

time that I was away, Mr. Zifchak did call and accepted our

settlement demand, and communicated that to my partner, Harvey

Jacobs.

Q And I wonder if you could indicate -- you went away

on vacation. What was your next association with the case?

LS While I was away on vacation, I received a telephone

call from my partner, Harvey Jacobs, advising me that the offer

of settlement had been accepteé by Mr. Zifchak’s principal, and

I subsequently asked my secretary to release all of the witnessé

from the subpoenas.

Q You had, apparently, subpoenaed several witnesses

and lined them up for trial?

A That's correct.

0 Now, did you then, immediately before the trial date,

return to this area?

XR Yes. I returned on the 22nd of February, which was

Apx (i) 10

lla ll

the Eunday prior to the Monéay morning that the tria) was to

start, and that's when I returned.

0 Did you have any discussion with mr. Eisenbeiss on

that particular day?

A Yes. I spoke with Mr. Eisenbeiss that evening, and r|

told him, confirmed that the company, the principal, mr. |

Zifchak's principal, had accepted the settlement offer of

$75,000. At that time, Mr. Eisenbeiss indicated that he had

changed his mind; that he was not happy with the $75,000, and

that he wanted to have his day in court.

I told Mr. Eisenbeiss that, to my mind, the case was

settled, and that presented a problem. I suggested that he

eee ee

meet me in court the following morning, which was the 23rd of

February, and he did that.

Qa I assume you communicated with mr. Zifchak on the

22nd of February, that Sunday?

h I don't know whether I svoke with Mr. Zifchak that

Sunday or not. I know I saw him that morning, Monday on the

23rd.

¢ On February 23rd, can you tell us what happened?

A On February 23, we met in the courthouse. Mr. Zifcha

Mr. Eisenbeiss and I. Mr. Eisenbeiss reaffirmed the fact that

he did not want to follow through with the settlement; that he

was not happy with it, and we then had a cor.ference with Judge

Levin in chambers to try to determine what could be done, if |

Apx (i) 11 |

|Honor, and we explained the situation to him. The Judge then

done.

{

12a

anything.

Q Let me ask you this: De you recall what occurred in

chambers before Judge Levin at that tine?

A Ido. Pirst, Mr. Zifchak and I talked with His

indicated that he would talk with Mr. Eisenbeiss.

Mr. Eisenbeiss appeared in chambers with Mr. Zifchak,

I, and Jucdce Levin, and indicated that he had changed his mind.

He didn't wish to pursue the settlement.

The Judge then asked Mr. Zifchak what it was that he

wanted to settle the case, and Mr. Fisenbeiss indicated that he!

felt that his case should be settled somewhere in the neighbor-

hood of a million dollars, but that he would take $200,050

to settle the case.

His Honor, as I recall, indicated that there was

nothing further that he could do, other than to pull the case

out of the assignment and reschedule it for trial, and that was

The new trial date of March lst, 1982, was scheduled.

Q Was that, basically, the end of your reoresentation

or your involvement with Mr. Eisenbeiss, as far as

ment offer?

A Mr. Eisenbeiss then indicated that he no longer

this ne

wanted me to represent him; that he would talk to another

counsel, and he subsecuently talked to other counsel. I then

withdrew, ultimately withdrew my appearance by filing a line

Apx (1) 12

13a 13 |

} liwhereby Mr. Beckman and his firm entered their appearance on

2 liMr. Eisenbeiss' behalf.

MR. QOINN: That's all I have.

4 | CROSS-EXAMINATION

3 BY MR. BECKMAN:

6 Q Mr. Weil, just a couple of things. The second settle-

7 ment conference, which you say was before Judge Woods on the

8 ||} 6th of February, the carrier did, at that time, did they not,

10 //$60,000 as of that day, is that correct?

9|}say that they would, in fact, provide you with a firm offer of |

il A There was an indication by Mr. Zifchak that the offer!

12 imight be made. My recollection is that it was not a firm

13 | offer, however, but that they micht be inclined to gO up to

1 | 50 or $60,000.

| |

15 Q Now, you then left for vacation on the 13th of |

16 || February?

uf A Yes.

18 | Q You, at some point in time, before going on vacation,

| ae hac an office conference, did vou not, with Mr. Eisenbeiss|

20 | |

to prepare him for trial?

21 || |

A That's correct.

ay ¢ At that time, had you had any further word concern- |

= | the possibility of the defense in this matter coming up

*4 | with another offer?

od, A I met with Mr. Eisenbeiss, either the day that I left!

the office, or the day pricr to my leaving the office,

l4a aA

by whic

time the settlement offer of $75,000 had not yet been acted

upon by Mr. Zifchak’s principal.

So, at that particuler .: +, at the time of that

office conference, in other words, there was no settlement and

you all were preparing for trial, is that correct?

That's correct.

Now, you have also testified, then, this morning -<-

(Interposing.) Let me correct that. When I say,

“preparing for trial," we had already prepared fairly well fer.

trial, but it was .a further conference. ;

G As most of us have to go over it?

A Right.

Q Now, with recard to what transpired then, while you

were on vacation concerning conferences between Mr. Zifchak and

other persons in your firn, you have no personal knowledge of

what those transactions actually were, is that correct?

That's correct.

You also indicated, I believe, in your testimony, that

you had received a telenhone call while you were on vacation,

is that correct, from your secretary or someone?

Yes. From Mr. Jacobs.

Were you out of the country?

I was out of the country.

But you received a teleshone call, overseas call

Apx (i) 14

| 15

i 1Sa

1 —— this matter from someone in your office?

2 | A That's correct. Yes, I did.

| Q The 20th, you were not in the country at that time,

‘| ware you, sir, the 20th of February?

| A I was out of the country from February 14 to

° || February the 21st.

’ Q So then any conferences that may have been had

8 concerning the actual final settlement in this matter for

9 $75,000, you had no actual part in, is that correct, between

10|' me. tifchak or a member of your firm? You had no conference

11 | on that date with Mr. Zifchak?

= RK On which date?

” @ Om the 20th?

- | A No, I had no conference with Mr. Zifchak on the 20th.

sd MR. BECKMAN: That's all I have.

6s REDIRECT EXAMINATION

- BY MR. QUINN:

”s Q Mr. Weil, as far as any further dtounbetons. as far

" as settlement of this case, once you had left, what had to be

20 |

‘ecer or what was there remaining to be done, as far as this

21 |

| offer of settlement was concerned?

2 A It would have to be accepted by Mr. Zifchak's princi-

23 | pal.

24 Q And, basically, was that really what you were waitins

25 for, vour firs was waiting for, the response from Mr. Zifehak?

Aex (4) 15

16a

A That's correct.

Q And at this office conference that you had, that

counsel referred to with Mr. Eisenbeiss, do you recall whether

there was any discussion at that time with reference to the

settlement offer?

A Well, we knew that the settlement offer of $75,000

had been made to Mr. Zifchak. I told Mr. Eisenbeiss at the

time of our conference; that is, the day that I left or the

day before, whenever that conference was, that it had not yet

been acted upon, but that if it was, he would be notified.

CG And one final question. As far as this figure of

$75,000, can you state, in your judgment, your opinion, as to

how you felt about it, whether or not it was a good offer of

settlement?

MR. BECKMAN: Objection.

THE COURT: That's overruled.

THE WITNESS: I thought it was, in view of all of

the circumstances surrounding the case.

MR. QUINN: That's all I have. Thank you.

THE COURT: Do you have anything?

RECROSS-EXAMINATION

BY MR. BECKMAN:

Q Mr. Weil, concerninc the $75,000, you have indicated,

I believe in your prior testimony, that some point in time Mr.

Eisendeiss had indicated that if he were able to get $75,000,

Apx (i) 16

| 17a 17

you would settle the case, is that correct?

A That's correct. He said that he authorized me to

jaccept $75,000 in settlement.

{

| Q Mr. Weil, isn't it a fact that it was more alona the

lines of if he had a firm offer of 75 he would consider accept-|

ing that?

A That's not true.

MR. BECKMAN: Nothing further, Your Honor.

THE COURT: What. did you say, that's not true?

THE WITNESS: Yes. That's correct. |

THE COURT: Thank you very much, Mr. Weil. |

THE WITNESS: Thank you. |

(Witness aanet.4

THRE COURT: Call your next witness.

MR. QCINN: Mr. Jacobs.

WHEREUPON,

HARVEY A. JACOBS,

was called as a witness by and on behalf of the Defendants, and;

having been first duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. QUINN:

Q Please state your full name.

A Harvey A. Jacobs.

¢ And, Mr. Jacobs, you are encaced in the practice of

Apx (i) 17

18a

law, is that correct?

x Yes, I am.

Q For how long have you been engaged in the practice of)

law?

a Almost 30 years.

Q Now, are you a partner of Mr. teil?

Yes, I an.

tal

Q And how long have you and he been partners?

A Since October of ‘69.

Q As to your practice, Mr. Jacobs, could you just

briefly indicate what it consists of, or what it basically

involves.

az Our prime practice is in the litigation field,

although we do have a general practice.

Q Over the years, you have been involved in substantial

personal injury litigation?

>. Considerably. That's the main part of our practice.

Q Now, also, with reference to that, you have repre-

sentec the plaintiffs over the years?

KR Yes, I have.

Q And as far as personal injury litigation, you probably

represent more plaintiffs than, say, defendants, is that cor-

rect?

Ly The first eight vears I rerresentedc insurance

companies. After that, I represented plaintiffs solely.

Apx (i) 18

19a 19

Q Now, Mr. Jacobs, with reference to this case of

Victor Eisenbeiss that we are talking about here today, I

wonder if you could indicate to me when you became involved in

the settlement of the case in any way.

A I became involved in February of this year.

Q And could you tell us, particularly, what happened

or what occurred in February of this year as to your involve-

ment in this case?

LS Yes. I received a call from Mr. tifchak stating that

he had accepted our offer to settle the case for $75,000.

that point in time, what did you do at that |

Q Now, at

point?

A I called Mr. Eisenbeiss and informed him that they

had accepted our settlement of $75,000.

Q And you did that because Mr. Weil was out of the

country, is that correct?

h That's correct.

Q And I presume that you were, in effect, expecting 4

call from Mr. 2Zifchak?

AR That's correct.

G And as far as you can recollect, was that the only

@iscussion you had with Mr. Zifchak up to that point in time?

A Up to that point int

I had.

| io After receiving the call about the $25,000, what dic

Aox (i) 19

ime, that was the only conference

}

20a

you do then?

LS I notified Mr. Eisenbeiss that they had accepted our

offer of $75,00C.

Q And what was his response?

A Be said he was please¢, but he wanted the right to

change his mind.

Q What did you say to him?

A I told him that it was a final settlement; that there

was no way that he could change his mind, but he insisted that

he wanted the right to change his mind.

Q And did you then contact Mr. Weil?

LS Yes. In view of that, I contacted Mr. Weil and told

him that the company had accepted our offer to settle the case

for $75,000, but that Victor wanted the right to change his

mind.

Q And what happened at that point? Was that the end

of the discussion? 2

A That's the end of when I was in on it. Mr. Weil

took over from that point.

Q And anything that happened from that point on was

then between Mr. Weil, Mr. Eisenbeiss and Mr. Zifchak?

A That's correct.

MR. QUINN: I don't have anything further.

CROSS-EXAMINATION

BY MR. BECKMAN:

Apx (1) 20

2la 21

Q Mr. Jacobs, you indicated you became involved in

this particular case on behalf of the firm, I assume, in

February.

Was this phone call from Mr. Zifchak on a particular |

Gay in February really the first involvement you have ever had

in this case?

A Other than knowing that it was in the case, and

knowing peripherally what it was about.

Q Knowing the case was in your office?

A And I knew we had made an offer of settlement through

Mr. Weil, and he had settled the case for $75,000, and Victor

had authorized it.

Q How long had you known that?

A I am sure I knew it from the time they made the

offer to settle.

Q Do you recollect the date that you received the call

from Mr. Zifchak?

Le I think it was around the 20th.

Q Do you remember approximately what time of day it was?

BR I would really just be quessing. I don't remember

what time of day.

9 How many conversations did you have with Mr.

Apx (i) 21

Q How many conversations did you have with Mr. Zifchak

| that cay?

A I believe I only had the one. |

papoeer) He

22a a

h I may have had two.

ro It is a fact, I believe, then, Mr. Jacobs, that you

called Mr. Eisenbeiss after hearing from Mr. Zifchak?

A That's correct.

Q And is it not a fact that during that first conver-

sation, you indicated to him that you really didn't have a

firm $75,000, but that they were definitely thinking about it;

something of that nature?

A No. I told him that they made me an offer -- when I

said, “Made me an offer,” they accepted our offer of $75,000.

ret What was the second conversation Mr. Eisenbeiss was

involved in?

A I think he called me back and insisted that he wanted

the right to change his mind.

¢ tually, I think you said he said he wanted the

right to change his mind when you talked to him the first tine,

is that correct?

h That's correct.

Q So he never expressly accepted the $75,000 offer

during that conversation?

oe I didn't need his acceptance.

¢ You didn't need his acceptance?

A I so informed him of that, that as far as I knew, we

had made them an offer of $75,000. They had accepted, and once:

that's done, it's all over. There is no way that he could have

Aux (1) 22

23a 23 |

a right to chance his mind. j

Q But you had not been involved in the initial dealings

of this? |

A That's correct.

Q So the only knowledge you had that there had been

any conversation with Mr. Eisenbeiss concerning his accepting

$75,000, was something you had been told by somebody elsa, is

that correct?

A That's correct.

ie So when you spoke with him and said, “We have $75,000,

he immediately, at that time, told you that he wanted the right

to change his mind?

AR That's correct.

Q And he also said that during the second conversation

A I believe he did. There were two conversations.

MR. BECKMAN: I have nothing further.

REDIRECT EXAMINATION

BY MR. QUINN:

Q When you spoke to him the first time, and he made

reference of a right to change his mind, but before that, what

did he say? Did he indicate to you that he was happy with the

settlement?

A He Said he was pleasec, but he wanted the right to

chance his mind.

MR. QUINN: That's all I have. Thank you.

Apx (i) 23

24a ”

MR. BECKHAN: Wothing further, Your Honor.

THE COURT: Thank you very much.

(Witness excused.)

MR. QUINN: Mr. Zifchak.

THE COURT: Before you get to Mr. Zifchak, I have to

take a jury verdict, so have a seat.

(Whereupon, there was had a short break after which

the following proceedings took place:)

WHEREUPON,

WILLIAM N. ZIFCHAK,

was called as a witness by and on behalf of the Defendants, and,

having been first duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. QUINN:

Q Would you please state your full name.

A William N. Zifchak.

Q What is your occupation?

3 I am an attorney.

Q Bow long have you been an attorney?

R Approximately 11 years.

Q And I want you to just indicate, basically, what is

your practice?

A Litication. Primarily insurance company defense

| work.

Apx (i) 24

| cy

| N

Company?

advice.

reference

you might

that?

| behalf of

discovery

rouchly 9

the record

25a

And cefense of personal injury litisation?

Mr. Zifchak, in reference to this case of Victcr

| Eisenbeiss versus James Jarrell and Avis Rent-A-Car Svsten,

this matter was referred to you by Liberty Mutual Insurance

No. Actually it was referred by an independent

adjustment company called Schooley & Comoany in Baltimore for

At the time, they were self-insured. Liberty cane

You then defended this case?

Yes. That's correct.

Now, I wonder if you could just indicate, with

to the case, itself, as to the defense of it, and

say the sectletent posture of it. Can you give us

Yes. Initially, the claims being presented, on

Mr. Eisenbeiss, were many and broad ranging, and his

progressed, including the takinc of medical deposi-

ds of hospitalizations. It became clear to me that

0 percent of the specials being claimed, in fact that

| tions, the obtaining of records from prior physicians, obtaining

| are on the pre-trial statement, were totally unrelated to any

injuries

which any physician causally related.

MR. BECKMAN: Objection. Move to strike the testimony.

into the case too after for the defense a cousle of months later.

{

| In ¢iscussing it, partly in accuiescence tc theiz desires, ¢

26a

I don't see whether this has anything to do with whether or not

this gentlesan authorized settlement or not.

TRE COURT: It really doesn't, but I will give it

whatever weight I deem it.

THE WITNESS: The bottom analysis was that I felt

that my evaluation of the case was ‘hat we had a 10 to 15 |

percert chance of win outright on the liability issue, and the

adverse jury verdict rance was from 15,000 to $30,900, which ig

a very broad range, I admit. |

BY MK. QUINN: |

Q Now, with reference to the settlement discussions |

that you had with Mr. Weil, I wonder if you could relate those |

settlement discussions. |

A Initially advised they were offered $37,500, before

I had the case. ‘That's at a time when I believe the cemanc

was $75,000, or possibly a little bit iess than that. I never

increased that offer, and didn't recomend any increase es of

the first pre-trial settlement conference sefore Judge

Blackwell, at which point the demand stood at $200,000, ané

the offer was $37,500.

At the same time, the carrier, apparently, hac more

concern about the case than I di4, and they were looking for | 5;

an offer that might settle the case, that wouls be reasonable. |

aod

felt that I could recommend what I felt the exposure was,

27a

somewhere in the range of 59,000 to $60,000. The carrier

asked me if I felt that would settle the case, andr said

frankly I didn't think it would. They said, “What do you think

might settle it?* And I said, “Seventy-five once would have,

and I think that probably would settle it," so at that point q |

advisec Mr. Weil that I was prepared to recommend 50 to 60, and

I think that was during the conference, itsel , because that's |

the reason why the second pre-trial settlement conference was

scheduled, and that came out before Judge woods.

Q And can you relate what happened at the settlement

conference before Judge Woods?

Le All right. At that point, I still didn't have any |

specific authority from the company. ‘what had happened was

}

the claims supervisor, with whom I had been dealing, had gone

to the home office. The file was being handled by someone new, |

who we just didn't have the same quick comzunication that I had!

enjoyed before. It was after the February 6th pre-trial in

front of Judge Woods, in which I saw for the first time a

meanincful change in the plaintiff's settlement position, the

Gemand was now $100,900, that I went to my cffice and I

Teceived a phone call from my receptionist, and Mr. Weil was

there with Mr. Zisenbeiss. He asked if he could talk to me.

We sat for about a half nour, and the conference was

way Mr. Weil testifi to. He told me that

28a

bottom bone to settle the case is $75,000. He saic that

authority is from Mr. Eisenbeiss.

What did I think about the chances of setting it.

I told him that akihueeh I had no authority, based on the

earlier conferences with Mrs. Neal of Liberty, my impression

was that she would go for $75,000, and would try to get thrat |

from home office. I told him I thought there was a good

chance.

THE COURT: How did you know Mr. Eisenbeiss was

there?

THE WITNESS: Well, Mr. Weil told me he was there,

and after the conference, I went downstairs with Mr. Weil anc |

saw Mr. Cisenbeiss laying asleep on the bench in my waiting |

room.

THE COURT: All right. Go ahead.

THE WITNESS: I tried to contact Mr. Slocum of

Liberty while Mr. Weil was there, and I couldn't get through

to him. Physically, I couldn't get through. The feeder lines

interrupt, and occasionally you just can't get a phone call.

We had a discussion that Mr. Weil would be leaving

on vacation, and it would be nice if we could have a definitive

answer before he did.

I had several follow-us conversations with Mr.

Slocum, but he just wasn't communicating, being able to get

the authority from the home office.

—

Aox (i) 26

| 29a 2

Weil told

I have a very clear memory of this. Mr.

| me that because he was going on vacation, he was all set to

3|\ go to trial, that if I did get the 75,000 to settle the case,

*/) rt should call sr. Jacobs, and he would reach Mr. Weil.

On February 20, I received word from Liberty that I

had the $55,900. For some reason I was at home. I couldn't

reach Mr. Jacobs, so I went home early and I called hin at home; --

at the office. I was at home and said, “Harvey, we got the

$75,000. We are settled.* And he said, "Fine. Just let ne

“There is really no need to call hin.)

call Henry.* And I said,

We are settled,“ and he said, "Bill, I am just covering this

19 i

*“ | to take the advice, and I just want to talk to Renry.* I said,

| “Pine. Call me back.”

Mr. Jacobs did call me back. There was a second

*I reached Harvey at the beach. I

told him what you said, and he said that we got a deal.* |

{

35 | conversation, and he said,

said, “We do have a deal."

The following morning I called off all of the

if |

19 | witnesses whom I had subpoenaed, and as far as I was concerned,

| '

| the case was settled.

- BY MR. QUINN:

= | Q When ¢id you next have anything to do with the case,

3 or any conversation with either Mr. Weil or Mr. Jacobs?

24 | x On Sunday, I think it was late afterncer, Mr. weil

ar 4 4 2

“| called me, raached me at home and said, "Bill, we have a

| witnesses off and I am not ready to go to trial.* He said,

30a ”

probles.° I said, "What is it?” And he saic, “Victcr says

that he has chanced his mind and wants to go to trial.”

I said, “Hell, Henry, he can't. Besices, I called all my

“Well, I called mine off too. We have a settlement." He said,

“What should we do?" I said, “Well, we have to go to court

temorrow and see what happens.”

Q And you did come down to court the next day?

A We were on, “to be assigned,” with no judge specially

THE COURT: That's where they usually end up around

here, “Judge pendinag.*

THE WITNESS: We found Judge Levin, in lieu of,

"Judge pending,” and explained to him that we had a problex,

and because we weren't sure what to do, we asked if the Court

would listen to what the problem was.

BY MR. QUINN:

Q Then, were you involved in the conversation that

Mr. Weil related as to what occurred?

A Yes, I was.

Q And what is your recollection?

A The Court had asked Mr. Weil -- first the Court

wanted to know if there was any ¢ispute between Mr. Weil and

I as to whether or not there was a settlement, and we said no,

as far as we are >oth concerned it was a vali¢ binding

Apx (i) 30

| 31a

+] settlement.

2} The Court asked Mr. Weil if it was a matter of fee

| or something, anc Mr. Weil said no. The Court then -— - don't |

4 | know if Mr. Weil suggested that the Judce might want to talk ta

Mr. Eisenbeiss, I think Mr. Zisenbeiss expressed an interest

in speaking with the Judge. In any case, the Judge agreed to

7] speak.with him, and Mr. Zisenbeiss came in, introductions were

8 || made, and as I recall it, Mr. Bisenbeiss said that he had

9) authorized Mr. Weil to accept, but now he didn't feel it was |

10 | enough, because of stresses that he had been under, and he

11) didn't specify what the stresses were, and no one asked.

12 | THE COURT: Would you repeat what you just said?

13 | THE WITNESS: You asked Mr. Weil, I think you asked

| his, if he had authorized Mr. Weil to settle for $75,009.

18 | THE COURT: You said Mr. Weil. Do you mean Mr.

“ Eisenbeiss?

a THE WITNESS: Mr. Eisenbeiss had authorized Mr.

” Weil. |

| TSE COURT: This is what Mr. Eisenbeiss said?

- ! THE WITNESS: You asked whether or not -- ;

2 | TEE COURT: (Interposing.) I asked him? |

= | THE WITNESS: I believe you did.

23 | TNE court: All right. Go ahead.

24 TRE WITNESS: And he said that he had, dut that now

he didn't feel it was enough, because of certain stresses.

Apx {1) 31

| 32 j

" 32a

| I know he said stresses, because I report it to

the canpany by letter two days later, and in that report [

quoted the word, “stress.” I remember hiz saying it. Ce

—

didn't say what they were, and no one asked.

The Court asked, in response to that, “Well, what

do you want?* And Mr. Eisenbeiss saic, “I want a million

7! dollars, but I would ask” -- the Court said, "What would you

8 || take to settle here and now?" And Mr. Eisenbeiss thought for

9 @ second and said, “Two hundred and seventy-five thousand

10 | dollars,* at which point everyone bid one another @ good day.

The Court said, “There is nothing I could do about

12) it,* and advised Mr. Weil and I to go downstairs to the

Assicnment Office; that he would take the case out of assign-

ment, and give it a new date. That was done.

18 BY MR. QUINN:

16 3 That, basically, was the end of your discussion,

17 || or as far as the settlement of this case was concerned?

18 A Well, not entirely. I advised Mr. Weil, after that,

| after checking with the company, that we did intend to proceed »

with a motion to enforce the settlement.

}

I was told by Mr. Weil, I think, that maybe we

jointly suggested this, to hold off on taking any action for

a little bit, with the expectation that Mr. Eisenbeiss would,

Sas.”

% in my view, come to his senses, and accept -- you can object

if vou want, but I will give you ty charecterization of the

Aow (‘) 32

33a

* HI ;

“| Settlement. I thought it was an extraordinary settlement

2 | offer.

The next thing that happened was I had a call from

. i Baltimore, a Mr. Clarence Thomas who called and said he wes

. | asked by Mr. Eisenbeiss to evaluate the case fron top to bettos,

' : and the discussion I had with hin, pending his advice, perhaps

I would be better not filing any motions, and this continued

for a period of several months.

° THE COURT: What continued? |

30 THE WITNESS: Where I was waiting for a definitive

4) | answer from someone as to whether or not Mr. Eisenbeiss invendal

2 to accept the $75,000, or continue the effort to renege on |

the agreement.

i | I wrote, I think, both Mr. Thomas and Mr. Weil, at |

a8 | least once, saying that I an bolding off on filing the motion |

" pending that definitive statement, but don't take my silence ae

- THE COURT: (Interposing.) Do you have a copy of |

7 the letter, Mr. Zifchak? |

THE WITNESS: Yes, Your Scnor. |

20 MR. BECKMAN: Excuse me. This is a letter to the |

2) | carrier?

= THE COURT: No. ‘This is a letter to Mr. Thomas and |

3 Mr. Weil that I am interested in. Se has answered a cuestion

24 F for me that's been in the back of sv mind.

a |

Rave you seen this?

Ape (1) 33

;

Pa aiee-4

to Mr. Thomas.

Give it all to Mr. Seckzan. After somebody is through with it,

give it to the Clerk.

another one.

honor, in which I say that I have been advised —

give to Mr. Seckman.

which is Mr. Zifchak's letter of April ird, 19$:.

| fLeation.

34a 34 |

MR. BECKMAN: Wo.

THE COURT: Give this to his.

TEE WITNESS: There is another correspondence. |

THE COCRT: Subsecuent to the letter? |

THE WITNESS: Yes. This is a letter of May @, 1981,

{ME COURT: Do you have any other correspondence?

MR. OUINN: Your Sonor, Mr. tifchak's letter --

THE COURT: (Interposinsg.) Evidently we have }

TSE WITNESS: This is e letter to the carrier, Your

THE COURT: (Interposing.) Give it to Mr. Quinn to

THE WITNESS: Yes, Your Honor.

MR. QUINN: Mark this as Defendants’ Exhibit No. 1,

THE DEPUTY CLERK: Defendants’ 1 marked for identi-

(Whereupon, Sefendants' Exhibit

No. 1 was marked for identifica- |

tics.) /

MR. QCUINW: Defendants’ Exhibit 2 is “r. tifchex's

Letter of May @, 1981, to “xr. Thomas.

Aon i} 34

4 35a a

THE DEPCTY CLERK: DSefendants’ 2 sarked.

(Whereupon, Defendants’ Exhibit —

No. 2 was marked for identifica- —

3 . tion.)

‘ THE DEPUTY CLERK: Defendants' Exhibit No. 2.

5 MR.OUINN: Defendants’ Exhibit No. 3 is Mr. Zifchak's

6 letter of May 20, 1981 to Mr. Wood at Liberty Mutual.

(Whereupon, Defendants’ Exhibit

No. 3 was marked for identifica-

8 tion.)

9 THE COURT: Mr. Beckman, have you seen these documents?

10 MR. BECKMAN: I have, Your Honor.

11 THE COURT: Do you have any objection? i

12 MR. BECKMAN: I do, Your Honor. |

33 THE COURT: What is the basis of your objection?

l“ MR. BECKMAN: Relevance. We have a couple of —

15 | to an attorney who is not even in the case up in Ellicott

16) City. We have one to the carrier, after the fact, none of

17 | then having to do with anything concerning whether or not he

i* | cave express authority to his then attorney, Mr. Jacobs, and/or

Mr. Weil to settle the case for $75,300.

ad THE COURT: All right. One, two and three are

33) admitted.

= TWE WITWESS: I have a telephone mento of a conversa-

23 tion I had with Mr. Weil on June 12, where he called se to ask

+) me what I intended to dc, and I told him that I was going to

| file suit.

B 8

f 36a 36

The reason for the nonfiling of suit between the

l2th of June and the time it was filed was purely a function |

of my trial calendar, and I just didn't cet around to doing ie

Sut I was supposed to have done it by June 12.

BY MR. QUINN:

° You are talking about the filing of the suit or

filing of this motion?

A Filing of the scticn.

o And isn't it also correct, at some point in time you

had a discussion with Mr. Sakayan?

A Yes. I became sware that Mr. Sakayan -~-

THE COURT: (Interposing.) You got a call from |

somebody else? |

TEE WITNESS: I became aware, Your Sonor, in the i

legal community, that Mr. Zisenbeiss was, apparently, seeing }

le number of attorneys throughout this period of time, one of |

‘| thes was Mr. Sakayan. With sy knowledge of that in the back of!

| @My mind, caused me to hold off, because I felt that sooner or —

: i

later someone was going to convince him to take the $75,000,

and I wouldn't have to go with the 4ual expense to sy carrier

of proceeding with the motion and retaining cutside counsel.

MR. QUINN: I don’t have anything further.

TBE COURT: Mr. Beckmas.

CROSS- EXAMINATION

BY MR. SECKMAN:

”

37a 37

6 Mr. Zifchak, I have two Suestions, really.

In your dealings with this case and with the attor-

neys involved, and with »r. Elsenbeiss Personally, did mr.

Eisenbeiss ever Girectly indicate to you, at any sarticular

Sime, either in court here or over there in your office or any

thing, that he would accept $75,000 as settlerent of this case

MR. QUINN: I object to the Guestion.

TSE COORT: Just a minute. What is that?

MR. QUINN: I object to the question.

THE COURT: It's overruled.

THE WITNESS: Yes. In fact, I would Say yes. The

office conversation that I had with Mz. Weil, in which he

told me that he had authority of $75,000, and i+ was eglong the

lines of not $74,900, but $75,000, 2 said I will Geal with it

in that fashion, and I won't mickel dime you. 2ither r will

get it or I won't.

When we went downstairs and he nudged Mr. Eisenbeiss

to get him up, Henry said to Victor that he couldn’: get --

Mr. Zifchak couldn't get through to anybody, but he will lec

as know as soon as he can.

I felt sorry for Victor, and r said something like,

“Take care of yoursel’,* or something like that. “It will work

out.*

he So yes, “r. Eisenbeiss was there. Ze was.

BY MR. SECKMAN:

Aox (1) 37

4 33

' 38a

iy 3 Me was there in the office? |

2 A He was there physically when =. Weil said to his

2) that he is going to vet back to os and let us know as soon as

4) he can. So I put the two tocether, an¢ the statement of

s |) guthorization, and I woul¢e interpret that, and I assumed that

* | we. Eisenbeiss — that it related ¢irectly to the $75,000 otter

of settlement.

s 9 ‘That's an interpretation. in other words, he ¢idn't

9 say to you, “Mr. Zifchak, T will take $75,000 if you give it

10] to me*?

i a No. Se didn't say those words.

33 ° Were you ever a party to a conference between

13 | wr. Weil and this gentlezan, oF “Fr. Jacobs and Mr. Cisenbeiss

14! ynere you specifically heard hin tell then, “I expressly

145) guthorize you to accept $75,000 to settie ny case"?

sad A 0s No. TBat’s not « conversation 7 would be privy to.

i wn. BECKMAN: That's all I have.

- sur COURT: ‘Thank you very ‘uch, Mr. tifchak.

” (Witness excused.)

o cut COURT: Call your next witness, Mr. Quinn. |

” “. QOINN: That is sy presentation. |

TSE COURT: Call your first witness.

3 | mR. BECKMAN: Your Honor, ve would call Mr. Zisenbdeiss

24 | to the stance.

3 | WREAEUPON,

{

39a ”

VICTOR ™. EISENBEISS, IR.,

Plaintiff herein, was callec as a witness by and on his own

behalf, and, having been first duly sworn, was examined and

testified as follows:

OIRECT EXAMINATION

BY MR. BECKMAN: |

Sir, would you state your full name, please. |

Victor M. Eisenbeiss.

What is your current resident address, please?

308 Philadelphia Avenue, Takoca Park, Maryland.

THE COURT: Where?

TUE WITNESS: Philadelphia Avenue, Takoma Park,

Maryland. Three © eight.

BY MR. BECKMAN:

What is your age, “ir. Eisenbeiss?

A Twenty-nine.

Q And are you currently exployed?

No.

Now, to get right down to the case at hand, Mr.

Cisenbeiss, you heard testimony that you were apparently

injured in an actomobile accident in February of 1977, is that

correct?

A No. It was April 24, 1977.

G November cf 1977.

A November 4th of ‘77 was the second cone.

Aox (i) 39

40a

3 My mistake. I should have had the other yellow pad. |

And that you subsetuently retained Mr. Weil and his

firm to represent you in this case, is that correct?

A Yes.

oy Now, there has also been testimony that as the case

prosressed, or really getting closer on to the trial of the

matter, that there were two settlement conferences held in this

case in the court here; that the first one was held before

Judge Blackwell of this court.

Did you attend that settlenent conference?

2 No. I was in the hospital.

Q So you have no knowledge of your own, then, what

| went on at that particular settlement conference at all?

A Other than the copy that I received from Mr. Weil.

G To the best of your recollection, what was the

demand that you were making, or advising Mr. Weil to make on

your behalf at that particular time?

LS If I can remexmber what the copy said, it was

$200,900.

6 And do you recollect, of vour own personal knowledge

| and recollection, what was transmitted to you as the carrier's

current offer, as of the first settlement conference before

Judce Blackwell?

A The copy said $37,500.

3 And, now, there has also been teStizony that there

i 41

4la

2 was, in fact, a second Settlement conference heard on or about

? ll the 6th of February of this year, heard in front of Judce

;

H H

> | Hoods of this court. Did you attend that settlement conference?

‘| _ ton. to.

. Q And could you relate to the Court what your recollec-:

® | tion is of what transpired at that conference?

‘

A I stayec out in the secretary's lobby while Mr.

5 | Weil and Mr. Zifchak went to the Judge's chambers. I waited

9 || there for maybe an hour or so. At that time, they case out

< and Mr. Weil said that the insurance company would offer

n | $60,900, and that was a firms offer; that they wouldn't go any

12 higher than that, and that they were not negotiating any

18 | surther. No higher offers. 4

4 Q And this conference took place where, then, in |

1S | Judge Woods’ chambers, or outside of his chambers?

a A This took place in the hall outside the chamters.

ay 6 Now, did you subsequently travel up the street to

i Mr. Z2ifchak's office that day?

A Yes. Mr. Weil said that Mr. tifchak wouldn't

* | negotiate any more, any further, and I said, “Well, Mr. Weil,

21 |

. maybe we should go and try to open up negotiations again, since!

|; refused the $65,000, and time is closing in on the court

_— anZ I would like to have necotiations coened us, and

3é |

| continued te be opened us until the trial date.*

eo Sc, I talked to Mr. Weil, and we decided that we

] Aox (i) 41

42a 42

should go over to Mr. Zifc ak's office to reestablish contact,

reestablish negotiations.

At that time, I 2ld Mr. Weil that $60,000, <I can't

accept that, because ay medical bills and my personal debts

and everything -- I just couldn't accept that.

Q Now, when you got over to Mr. Zifchak's office, can

you relate to the Court what you recall happened then?

A Yes.

lobby there while Mr. Weil went up to Mr. Zifchak's office.

I waited there for a while, and there was nothing I could do

but just wait ‘urther.

I came down with a very, very bad headache, very

bad headache, and I laid down on the couch, and, I guess, it

was about an hour, an hour and a half -- I can't remember

exactly, but it seemed like a long time. Mr. Weil came down

and said that Mr. Zifchak was not authorized to settle for

any higher than $60,000, and that he would have to call his

fasurance carrier to see whether they would offer anything

further than that.

When we left through the door, ‘tr. Wail said that

Mr. Zifchak is very hard-nosed about it, and we vould just have

I waited in the lobby there, in the secretary's

SE RS Se

to go te court, and that's my own thoughts on the matter, just

to continue the court anyway, since I refuse¢ the $60,990, and |

just wait until the date of trial.

0 Following the 6th, when you were here in court with

i 43a 43

i Judge Woods, and then went up and talked with wr. Zifchax, or

| your attorney talked to Mr. Zifchak, did you see your attorney

> | hen following that crior to trial again?

’ | a Yes, I did. I saw him on February the 12th.

| Q Where did you see him? |

. A I saw Mr. Weil in his office. My mother attended. |

7 | She went with me.

s At that time, the conversation just ended up with |

9 || we were just going to continue to go to court and proceedings

10 | were just going along, and he advised me what would be happen- |

Nl ing and everything when we did go to court.

i . |

12 | 0 Now, were there any further discussions between you

anc Mr. Weil on that date; that is, the l3th, concerning

14) settlement ef the case?

A No. There was no mention of any offer of settlement

| OF offer of any settletent being made at that tine.

mT Q Up to this point in time, had anyone, either Mr.

1 oe

“|| Weil or Mr. Zifchak or anyone else involved in the case, trans-

mitted to you the fact or the possibility that the defense in

= chis case micht offer $75,000 to settle the case?

A No. No mention of those figures.

od 9 Up until that point, we are dealing with the 13th

23) o¢ February, hac you ever expressly authorized sr. weil to

4 accept the figure of $75,000 i

A No.

l¢

| OM the 20th of February?

dua 44

Q. How, on the 20th of February, testimony hes been

sat apparentiy Mr. Zifchak contacted the law firm, and Mr.

Weil was on vacation. Did you receive 2 call from Mr. Jacobs |

A. Yes. It was 4:39 in the afterncon. Mr. Jacobs told

me that he had received a firm offer of $60,000 from the

insurance company. At that time, I refused the offer. I had

already known that they were going to offer $60,000 as of the

6th of February.

During that conference, he tried to convince me o4

saying if the insurance company offered $75,000, would you

accept, anc he tried to get a commitment fror me, and I said

mo, I will not make a decision until an offer has been made.

Zea minutes of five, 20 minutes later, Mr. Jacobs

called se back at my mother's place and told me that they had

already settled this, the case, for $75,000, and I said, *fow

can that be? I didn't authorize you to settle for $75,000.

Purther, you are not sy attorney.*

I said -- I asked him where is Mr. Weil, and he

said that he was out of the country, and I said, “Well, I

want to talk to Mr. Weil.*

So, om February the 22nd, I met with Mr. Weil. Re

called me at my home at 16:00 o'clock in the morning. -I met

at his office at 12:90 o'clock.

Aox (i) 44

4Sa we

1] ze Was a very heated discussion. He got very emotional about

re Ze said he had already made a commitment for $75,000 to

uae, the case. I said, “I did not authorize you to settle

4) for $75,000." I said, *The offer hadn't even been made. sow

+] can I make « decision wpon such an offer?* |

° = said, "You did not come to me personally and say |

that.°

. 6 = Mell, Mr. Eisenbeiss, did you, at any tine during |

° the handling of this matter, right up to really, the 23rd,

ad which is the trial Gate, ever expressly authorize either mr.

a Weil or Mr. Jacobs to settle this matter on your behal! for

#2 | $75,000?

"i i:

i | MR. BECKMAN: ‘That's all I have, Your Sonor.

9 TRE COURT: mr. Quinn. |

" CROSS-EXAMINATION

a BY MR. QUINN:

a 3 Mz. Eisenbeiss, what you are saying is that you i

| Rever hac any discussion at all with Mz. Weil about the $75,0007

20 | oe

And you are saying that you never authorized him to

2 | settle for $75,0007

i A I did not authorize hin to settle for $75,000.

H re} And he never discussed it, you are saying?

2s | A t did not even know the ficure. rt wasn't even

Apx (i) 4§

i mentioned to me until February the 29th.

46a 46

Q So you are saying Mr. Weil never had any discussion

at any time with you about a figure of $75,000, is that

correct?

LS Repeat the question.

G My question to you, Mr. Zisenbeiss, is did you ever

have any discussion at any time with Mr. Weil as to a figure

of $75,000 to settle this case?

LS No.

. Never occurred?

A Not before February the 20th did I know of the

figure of $75,000.

ie What you are saying is the first time the mention of

$75,000 was made, was made by Mr. Jacobs?

A Right.

o Do you recall when you were over in Mr. Zifchak's

office and you indicated you didn't feel good, so you went to

sleep there in that couch, is that correct?

A Right.

Q De you recall when you did that, at some point in

time Mr. Weil came down and, I guess, he either woke you up or

said something to you, is that correct?

A Yes.

¢ Was Mr. Zifchak with his at that time?

A Yes.

Aoxw (4) 46

<a sett ten

| 47a "

1) HR. QUINN: The Court's indulcence. If the Court

2| would indulge me for a moment.

| I have nothing further, Your Zonor.

dt MPR. BECKMAN: Nothing further, Your Foner.

‘ que court: mr. Eisenbeiss, thank you very much.

THE WITNESS: Thank you. |

: (Witness excused.)

8 MR. BECKMAN: We have nething further, Your Sonor.

9 THE COORT: What do you gentleser want to tell re?

10 MR. QUINN: Your Honor, in support of this moticn tor

1] | settlement, I think the question is whether or not the authority

12 | existed at the time to --

13 THE COURT: (Interposing.) Let me ask you in that

&, is that it*s ea

14 regard this: What you are sayinc, in eff

15 | question of fact or a question of law?

16 MR. QUINN: Well, I would think that there could be

7 | a factual question involved here.

a TRE COURT: All right.

- MR. QUINN: And I think, as a matter of fact, there

20 || are two cases that have beer decided in this area, one of then

22 | is Clark vs. Elza, and the other one is Finkaid vs. Cessna. |

| I will nand these to the Court.

3 But really, I think that under the facts of this i

+ case, what it will stand for, what these cases stand for is

3s certainly this is a prover way to proceed. That the Court can

Aox (4) 47

(enforce a settlesent, and that basically if there ves authority,

| it's overwhelning.

Mii cicis Saatt ao

«3

48a

if counsel had authority to settle this case, then that is @

valid acreement. It can be enforced by the Court.

With reference to this case, Your MNonor, I would

submit that what you have here, really, is the question of

whether, basically, “r. Weil had the authority to settle this

case. Whether he hed the authority from his client, and the

only way that can be determined is by consicering Mr. Weil,

his testimony, his very detailed testimony as to his handling

of the case, the settlement discussions he had, the conferences’

he had with Mr. Zifchak. The conference, you aight say, what

went om over in the office when he came down and talked to his

client, and even Mr. Zifchak was a part of that conference,

and although he didn't directly hear that, but the question vasi,

“We will hear from them.” A reasonable followup, you night

say, or conclusion Mr. Zifchak drew from the conference that h

heard the question is really uncontradicted as to what cee

before the Court in chambers. It's uncontradicte?, really,

and I think that's really what we have had throughout the whole

thing.

It’s basically that we are getting down to a situa-

tion of him saying that the $75,000, he never acthorized it,

and yet the whole web of the case points to that, and I think

THE COURT: Well, let's assume I agree with you, what

‘

Aow (i) 48

Tee

49a

@o I do, order the deoosit to be put in the recistry of court

and sark the case closed, or what do I do?

MR. QUINN: I think under the decisions of this

case, I think the Court can orcer that basically the case is

settled, and therefore directing that a line be filed and

release is accepted.

If he does not accept that, I assume the soney will

have to be ¢aposited.

THE COCRT: “Mr. Beckman, what do you think I ought

to do in this case, sir?

MR. BECKMAN: Well, obviously, Your Honor, I think

you ought to do something else. I agree wholeheartedly with

Mr. Quinn that the Court certainly does have the authority here,

te enforce or to order an enforcement of the settle vent agree-

pest.

However, I believe they also have the authority to

deny the motion to enforce the settlement agreement.

THE COURT: I don't have that problem. I was just

concerned with the mechanics. That's all.

MR. QUINN: In Cessna vs. Kinkaid, Your Honor, or

Kinkaid vs. Cessna, which I really believe, Your Honor, is 4

case wholly dispositive in this particular instance --

THE COCORT: (Interposing.) *hat's the citaticn of

Kinkaid?

MR. BECKMAN: It's 49 Md. Apo. 18.

Apx (i) 49

SS ST,

draft thet apparently had been transmitted, that the plaintif? |

RN lS Si aS sete

50a

THE Court: Give it to me. Everybody has got copies,

so < will assume that I will keep this.

MR. QUINN: This is the other case that I cited.

THE COCRT: Go shead.

MR. BECKMAN: Your Honor, very briefly, as you are

reading down there, I think I can perhaps direct the Court to

the Clark vs. Elza case, which is the previous case. There

was no question that the initial plaintiff’ in the auto accident

case had authorized his attorney, his agent, to settle that

case for the sws of $9,590. Totally uncontradicted.

The plaintif! testified that he gave the attorney

that suthority. The attorney knew he hac that authority. zt |

was then, only some days after the carrier had cut a check or

in that particular case went to another physician who somehow

or another diagnosed that he had more problezms as a result of

that accident than the original doctors had seen, anc at that

particular point, he realised that if he was going to have a

lot more sedical expense, he ought not to settle.

Then he came in and indicated that he was not going

to settle.

We don't have that situation bere. The testimony has

been from Mr. Eisenbeiss that he never cave express authority |

to his attorney to settle this case for $75,600.

TED COURT: Let's get to the crux of this matter.

Apx (1) $0

| of the Plaintif’, himself, that he gave his authority.

Sia $2

You say this is a cuestion of law or question of fact?

MR. BECIMAN: Well, obviously, Your Sonor, you are

going to have to listen to the facts and apply the law we ere

) arguing right now.

THD COCRT: I apply the facts to the law thes.

Now, let's aswume I don’t believe that he didn't give --

that he did give Mr. Weil authority. What does that do to the

}

legal principle that we have just talked about? Doesn’+ this

Satter really boil down to whether of sot I choose to believe

“Mr. Eisenbeiss, or I do not choose to believe Mr. Eisenbeiss?

MR. SICTMAN: Your Honor, I think it boils down, really.

ip light of the situation in the Clark vs. Elza case. where

there was absolutely no doubt in anybody's mind, there could

be so doubt in anybody's mind because of the testinony

The problem that I intended to come across to the

Court — I am not sure if you have the A.24 or the Md. App.

Up there, but the Court discusses this and indicates, “With

Fespect to the question of the attorney's authority to settle

@ claim, we begin our analysis with a recognition of the

general rule that there is a prima facie Presucption that an

attorney has authority to bind his client by his actions

relating to the conduct of litigation.” There are some cases

quctec. However, the Court then goes on. “In Marylanc, however,

it is also well establishe? that an actorneyr has ne isplied

Apx (1) $1

oT)

‘

{

Clark case, because the plaintift saic,

S2a

1) authority to compromise his client's clain.” Cases cited.

fxpress authority is resuires.”

There is no question of express authority in the

"Yes, =< gave his, and

| I changed ay sind afterwards.*

In this case, the plaintif! does not say that. Re

indicates that he never, in fact, gave the express authority.

THE COURT: I anderstand thet, and my questics to

you is assume I don't believe that, is that dispositive of

this case?

MR. SECKMAN: It would certainly appear to be,

Your fonor. There heave been two appeals taken from the exact, —

more or less, factual situations. The appellate courts have

treated it as a final order, regardless of which way it went,

and it went one way in one and the other way in the other.

Either side, I would soggest. would be fully able to take an

appeal from the Court's decision in this particular motion.

THE COURT: ‘Tell se why I should not enforce this

agreement? And your sole ground is that he didn’t acthorize

Mr. Weil to settle this case for $75,000?

“R. BECKMAN: Your Yonor, we refer you again to

Kinkaid. If there was no express authority, then there could

be no way the Court could force the agreement. As 4 scatter

not even present here in the country, whenever the settlement

Apx (i) $2

£ fact, Tour “loner, going back to the defendant, Mr. ‘eil was

i 53a

That was Mr. Jacobs’ own testimony.

THE COURT: That's not the crux of this case.

ia MR. SECAMAN: I understand that.

‘ THE COURT: The crux of this case is whether or not

— authorized -- the fact that he is out of the country doesn't

* | make any difference. He can be in Timbuktu.

MR. BECKMAN: I understand that, Your Honor. I was

. getting to the next point, which was Mr. Jacobs’ testimony.

° Mr. Jacobs did net understand the case that well, had)

| not been in the case, but it's my recollection of the testi-

uu j Bony that when he transzitted this to him by Mr. Jacobs own

32 | testinzony, and assumine -- and of course the client denies this,

os | ™r. Eisenbeiss denies that he sai¢ yes, I will accept it, but

od | assumine he said what Mr. Jacobs said he did, “=I am happy,

38 but I want the right to change my mind,* that was no express

” authority, Your Honor, in any way, shape or form, as I

* | that by Mr. Jecobs’ testimony alone.

ie | 2xpress authority is, “Yes, you have sy authority to

9 | settle the case.” There was obviously « qualification, even

4 |

| assutine Mr. Jacobs’ testimony is correct.

21 } THE COORT: I don't think Mr. Jacobs’ testizony has

2 ' anything to do with the legal issues. iil it has to do is go

)

23 te the burden of proof necessary in this case.

ay |} MR.” BECKMAN: Which, of course, is on the sovins

| party, Your Sonor. That's why I brought it up.

| Apx (1) $3

Sha

TES COURT: I understand that. Go ahead.

4 MR. BECKMAN: That's all I have.

THE COURT: Anythine else you want to tell me, Mr.

Cuinan?

MR. QUINN: I would just point out conferences,

reference to Kinkaid and Cessna, that in that case, Your flonor,

‘

what the attorney said was that he misconstrued what he heard

from his client, and he basically admitted, the attorney

admitted in that case that he never had authorization from his

client tc settle the case. That's clearly set out, and that

| was the whole basis for the ruling in that case.

But that is not what the situation is here, because |

| Mr. Weil has testified that he haé the authority to settle this

case, and proceeded on that express authority. Gased on that,

it's the basis for asking the Court to enforce this settlement

egreement. Thank you.

THE COURT: Madam Clerk, this is a motion to enforce

@ settlement acreezent which, in my judgment, is -— I don’t

know whether it's a legal problen or an equitable probles or

| a combination of both, because what the parties are asking me

to do is to order somebody to live up to a particular contract

| that they surportedly entered into.

I really don't think it makes any ¢ifference whether

it is lecal or equitable, because, in my judgment, based on the

| lew as I understand it to be, it involves a pure question of

eS.

Apx (1) 54

| don't think it would make any difference if it

5Sa

agency and the relationshic that exists between the attorney

and his client in regards to the acency that was forthcomiag,

and I accept the fact that before a case can be settled in our

state, that there cust be excress authority obtained from the

client for that particular figure, or whatever the case may be,

in order to properly adjudicate that matter or properly settle.

it.

In this case, there has been croffered to me testi-

mony that extends for a period of sonths and months eubooquens |

;

to the particular acts that they are complained of in this

Situation, and based on the totality of the evidence that has

been presentec to me, I am convinced, by a preponderance of

the evidence, anc I am also convinced by the fact—and I think e

it’s unfortunate that plaintiff in this case has to have it

t Gecicec by = Ju3ge or somebody that is in an equal standing ’

with the people that were forced to testify in this, and I ‘

it were some other |

| Judge, but what the plaintiff is asking me to 4o is to dis-

regard the testimony of people with whom I know their reputation

in the comsunity. I have worked with these pecple on a pro-

| fessional basis. These people still appear before me on the

| comtrary to what he says the situation is, as i

matters of law and whatever the case may be, and he is asking

) me not te accept their testimony, because it is, in fact,

t exists.

As a <rier of the fact, I don't choose to do that.

Apx (1) 55

i 56a

1) That's my prerocative, and I choose in this case, and I find

‘>

i as a fact, that Mr. Weil had the authority, and that the amount

of $75,000 was conveye? to the plaintiff‘ who knew full well

* |) the extent of the negotiations, and knew full well of every

$ | step that was being done in this case.

| I further find, as a fact, that this conference

| between the plaintiff and Mr. Jacobs, the $60,000 figure, never

} i

| enterec into that conference. What was conveyed by Mr. Jacobs,

9} subsequently, was the figure of $75,000, and I choose to dis- |

10 | believe everything that the plaintiff has testified to today,

which is my srerogative, and I believe in total the testimony

Mr. Weil, the testimony of “r. Jacobs, and the testimony

12 || of ‘

13 | of Mr. Zifchak.

14 | Accordingly, the motion by the defendants to enforce |

; f

| the settlement is granted, and I think you need an order,

16 || gentleman. Give me an order.

(Whereupon, the above-entitle¢ matter was

concluded.)

Apx (i) 56

57a

APPENDIX (i141) a.

én

In the

fICTOR M. EISENBEISS, JR

Court of Appeals

of Maryland

Petition Docket No. {22

September Term, 196 2

JAMES SUBERT JARRELL! t al 7 -

” Annie SL Gs No. .76, September Term, 19 32

Court of Special Appesis)

92165

Law No. See

ORDER

Upen consiceration of the petition for a writ of certiorari to the Court of

——

anc the answer filed therets,

Special Appeals in the above entitied case, it is

ORDERED, by the Court of Appesis of Maryland, that the sevition be. and

t is Neredy, Genied as there has been no showing that review by certiorari is desirable

ana nm the public interest

a/ Jobert ©. Mreaky

Chief Judge

58a

APPENDIX (ii) b.

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 176

September Term, 1992

VICTOR M. EISENBEISS, JR.

JAMES HUBERT JARRELL, ET AL.

Wilner

Garrity

Adkins,

59a

-.-

On November 4, 1977, appellant E:senbeiss was

involved in a motor vehicle collision with a truck

appellee Jarrell and owned by apsellee Avis. On October 31,

1379, he sued Jarrell and Avis in the Circuit Coure for

George's County to recover for the iniuries suffered bv h

the accident.

In his Oeclaration, apoellant asked for damages

$1,000,000. After the customary pretrial discovery, as a trial

)

‘

gate was growing nigh, the matter was set in for settlemen

ferences before the court. The first such conference, before

Judge Slackwell, was held on January 3, 1981. At that conference,

appellant reduced his demand so $200,900 and arsellees offered

$37,300. Judge Slackweil evaluated che case at $100,900. Trial

cnen set for February 23, but, as Judge Slackwell acted in a court

memorandum “[nlegotiations are continuing and a follow-up settle-

ment conference is set for February 6, 1981....”"

The parties met again. on February §, before Judse Weods.

At that conference, according to che court's memorandum cof it,

“(tlhe demand was lowered to $100,000. The offer has nct seen

snereased from $37,800.00, but indications are shat they would

offer $$0,900.00 to $60,900.90. If is unacceptable to Plaaneif?.

Trial was still scheduled for Fedruary 23, Sut. on February 23,

1981, 1% was taken out of the assicnment and rescheduled for

March 1, 2382, continuance cf over one vear.

- b é ie .

he first recorded explanation for this unusual event

came on August 31, 1991, when apoeilees filed in she sroceedias a

Apx(ii) bo. 1

60a

"Motion To Enforce Settlement.” Appellees averred in their motion

counsel, had presented to the defendants, ehrough their counsel,

a demand of settlement in the amount of [$73,200] in return for

which [appellant] would execute a general release and [the case}

would be marked as settled and dismissed with prejudice";

2) Om or about February 20, 1981, appellees, through

counsel, "met the settlement demand and agreed =o pay to plain-

tift the sum of (375,000]" and that appellanc, “through i

counsel, confirmed that the case was settled";

(3) Trial of the case was scheduled for February 23,

1981, but "[flollowing the acreement sf che parties, all parties,

cnrough their respective counsel, released all witnesses who nad

(4) Om or about February 22, appellant's counsel

advised appellees' counsel that “[appellant) desired to proceed

to trial notwithstanding the settlement of the case which nad been

1 wae

reached scwo days before. Counsel for all Darties were in agree-

ment that a valid settlement had been effected and the case would

“

not proceed to trial":

3) Om February 23, counsel and appellant net with

Juége Jacop S$. Levin <9 apprise she court of the recen: events.

"In the course of that chambers conference, counsel for all partie

again reconiirmed the fact and terms of the acreed settlemenc, Sut

waDpellant’ aporised counsel and the Cours: that te nad chanced his

Apx(ii) b.2

mind, and that the [$75,000] settlement, which he had srevisusiv

authorized and had net, srior so acceptance, seen wisndrawn, was

no longer enouch." (Emphasis susclied); and

(6) Appellees tendered a draf=: for $75,900 and a

proposed release but appellant refused to accept the draft,

cute the release, and dismiss che case.

Upon these averments, appellees asked che court to

order appellant to endorse the draft and to execute the release

and the dismissal tendered to hin.

Appellant, through new counsel, answered the motic

on September 14, 1981. His defense was “that ne never authorized

his attorneys... to settle the above referenced matter for the sum

of $75,900.90 and that the Plaintiff herein never agreed to the

sum of $75,000.00 as full and final settlement of his claim against

the Defendants herein as alleced in their Motion to Enforce Settle-

ment." Appellant made no cbjection in his answer to the procedural

device of a motion to enforce the alleced settlement agreement, as

opposed to a separate acticn for specific performance. Nor, at

che hearing held on the motion was such a defense raised. Indeed,

at one point, in response to a question from the court”about the

“mechanics” of the matter, appellant's counsel conceded: ‘“T

acree wholenearcedly with [appellees' sccunsel! shat she Court

certainly does have the authority here to enforce or to orcer an

enforcement of the settlement acreement."

The court conducted an evidentiary nearing on the

motion on December 17, 1981. Appellant's former counsel (Mr.

Asxtii) 6. 3

62a

Neil) and aprellees' counsel Soth cestified and confirmed that

a settlement agreement had been reached as alleged

and shat appellant had simply changed his mind after

ment had been made and the witnesses released. Mr. Weil stated

unequivocally that he nad received authority from his client to

make the demand of $75,200.+ Acpellees' counsel, in testifying

about what occurred at the conference sefore Judge Levin, stated

“as I recall it, [appellant] said that he had authorized Mr. Neil

to accept, but now he didn't feel it was enough....”

Upon this testimony, the court found as fact that

counsel had the requisite authority to settle

$75,000 and that an agreement had been reached to settle ‘fcr

hat amount. Accordingly, on December 24, 1381, is issued an

order directing appellant to accept the $75,200 and execute a

7§,000 with

release, failing which appellees could deposit the §

the court clerk and have the case dismissed with precudice.

Appellant responded to the order on January 2:2, 1

with (1) an order of apreal, (2) a motion for reconsideration,

3) a motion to strike the December 24 order, (4) a Motion co

5) a motion co stay she effect of she order,

and (6) a motion to set the order aside. A

mn all the motions. Notwithstanding the extant order of appeal,

l.Counsel averred Ais authority at

mony On recross examination, he stated:

“OC Mr. Weil, concerning she $78,200, vou have indicaced,

tT believe in your pricr testimony, that some solnt in time

(appellant! had indicated that if he we able to get $75,200,

= >

vou would settle che case, is that cor

A That’s correct He said

of che December 24 order until “the matter for reconsideration

Such a Rearing, om ail the

pendine motions, was held on February 8, 1982, at which time

the court denied all the motions. No further order was entered,

however, revoking the January 22 stay of she December 24 order,

or otherwise reinstating that December order, and

order of apveal was filed.

In this appeal taken, we suppose, from che magically

reinstated December 24 order, apcellant comolains:

. The enforcement of an alleged settle-

sreement in the amount of $75,000.90 on

on Sy a party to a civil suit, when there

was no written settlement agreement and th

nonemoving party al(ff]irmatively states that

his attorney did not have express authority

to compromise the claim for $75,000.00, vio-

lates Article 23 of Maryland's Declaration

of Rights which guarantees that ‘the right

of trial by jury of all issues of fact in

civil sroceedings in the several courts of

law in this State, where the amount in. .contro-

versvy exceeds the sum of Five Hundred Dollars,

shall 5e inviolably preserved.'

J * *

II. The enforcement of an alleged settle-

ment in the amount of $75,900.90 on motion bv

a party to a civil suit, when there was n

written settlement agreement and the non-movin

party affirmatively states that his attorney did

not have express oa e sy to compromise th

Glaim for _$75,000. , &8 improver because it

does not conform with the requirements of th

Maryland cies of Procedure.

* * *

Ili. There was an error in the lower cours

wuen the trier of facts. sitcinge at & motion to

enforce settlement nearing, rule cased in

part on the eri ells Srieor <nowledce sf or

contact with attorney, mhapracencningll who test. fied

at the motion to Dirces setct nt oroceeding

Apx(ii) b. §

64a

TV. The affidavits of Beatrice E. Eisenbeiss

and Victor M. Eisenbeiss, Jr. each of January

20, 1982, — ning information important to

the events su rrounding tne motion to enforce

settlement hearing on December 17, 1981, are

dispositive or material to the fact findings

process of the lower court, with ressect to

the ruling by the lower court on the motion tc

enforce settlement.

V. The lower court, under Canon 13 og Rul

1231, had a duty or obligation to recuse itsel

from ruling on the motion to enforce s lle pone

when the lower court expressed what purported to

be an apparent conflicse with Rule 1232, Canon 13.

VI. A motion to enforce settlement i

authorized procedure under the Maryland Rules of

Procedure, or Maryland statutory or case 1

Vit. The trial judce made a finding of face

which was dispositive of plaintiff's rishkts cn

the underlying tort, and in that the trial

judge did so, the trial judge was bound to

follow Rule 1231 Canon 13 as a trial cule

for the purpeses of receiving evidence est

mony) and making rulings on that evidence."

Sefore addressing chese various issues, we need to

pause and consider a matter that appears to nave been cverlocked

by the parties -- namely, the prosriety of she court's January

order staying the effect cf she December 24 order and the conse-

quent validity of all proceedings in the circuit court occurring

thereafter. The srecise question is whether the court nad any

jurisdiction ¢ nter the stay after an apseal to this Court had

Two Basic, and intermeshing, soriacisles are involved

mere: ? A « ” ee ee Bee eR Re = an ?

1ere: L party has thirsty says in which to note an apreal

from a final judgment; and once such an appeal is nected, as a

general rule the trial court's jurisdiction over the matter is

Apx(ii) b. 6

65a

- -

the apseal is resolved; and (2) pur-

md Rule 628, a trral court has broad revisory

power over its judgments for a period of thirsty days. <t is

“*- aid

neommon for acer:eved litigants to ¢o what appelian

here: i.e., to seek both forms of relief by noting an appea- to

us and requesting a striking or revision of the ju

In Tiller v. Elfenbein, 205 Md. 14 (1954), she Cours

of Apoeals recognized that the concurrent pursui ef both remeciali

forms would necessarily create a gray area in terms

court's continuing authority, and i

in order to reconcile the conflict: 4)

does not preclude she appellant from also seeking revision of

the judgment in accordance with Maryland Rule 625; (2) nor cces

the filing of a motion for such revision extend tne time for

ng an appeal or preclude the mover from timely noting an

azpeal. However, (3) “unless the apseal is dismissecd when che

motion comes on for nearing, the appellant must elect setween

mis motion and his appeal. If the aspeal is dismissec S5efore

for hearing as though no appeal

It was implicit from Tiller shat, if che assea. was ict

the scheduted hearing on che motion, cre crial

2.That, indeed, is what cecurred in Tiller, anc snus che

*. ” . . - % - -~ _ 7 *. _- *.

trial court was 7eld so nave rac she jurisdiction to consider

and act upon che motion for revision.

Rontit}) &. 7?

o tre

acxks au

cldings

“*

court

66a

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seuuncuw } A . ' 2 ££ & 4 F s 4 H00 «a +

"200 # Vv . 0 4 oo 5 al ro} 4 a m4 (het ba atom

BM Ort ont @r . p oa of ® “4 . > a @ v w o VoUuwvmM-etvug

+ age Ort «+ > ba 4 =] wv @ rT) Vv -r ™ "0. a] 30.

” : Reader o ' « vu a be re] o Oo Caf Gvoon.

ss 0 G vu "y Cu uu “0 vu vo . . od senntog

s@evownn. a > 3? @ 4 A Oo wn Oo co) >: J v | o@

OL at ta FH Qa -+ ” i P xs + | gc Ss: 8% £ tet wn SOO G45 G

Yt eae Bw eal cg & & 6 wo Pove data

"” b wo te vw ie c ft Da] v a wn

to ™ wo oO Oo] ” mn"

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aa] w ” oO. Q oO » . y 4

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m + 44a

Once the appeal was noted, however, the

its authority to stay or suspend the operation or effect

judgement. This is clear from what the Court of Appeals sa

Bullock v. Directer, 231 Md. 629, 633 (1963), and again in

vw. Catterton, 267 Mad. 268, 282 (1972) :

"An appeal to this Court from a 7:isi srius

court does not necessarily stay all furtnhe

proceedings in the trial court, nor does it

Strip said court of all power over <hne pro-

ceeding in which the appeal has been taxen.

The trial court may act with reference ‘so

matters not relating to the sub<ect matter

of, or affecting, the proceeding: maxe such

orders anc cecrees as may Se necessary for

the protection and preservation of she sub-

ject matter of the appeal: and it may do any-

thing that may be necessary for che sresenta-

tion of the case in this Court, or in further-

ance of the appeal. 3S3ut, when an aspeal is

taken, it does affect tne overation or execu-

eion of tne order, ‘udement or decrse ‘ror

Which tne appeal is taxen, anc anv atters

empraced therein. after the appeal has been

serfected, shis Court is vested witt tne

exclusive sower and jurisdiction over tn

sub°ect matter of tne orceceecinss, anc sne

@UtnoFrity anc contro: of tne cower

With relerence tneretS are 3usvence

‘Empnasis supeliec.

Suspending or staying che “effect” sf a final 3:

after an appeai Sas seen scoted certainly affeccs “the subj

matcer of che proceedings.” Such an order, if valid, woul

effect of divesting this Cours s

# surisdiction te entertain che apreal

Rather than serving 29 srstec= anc sreserve the sus tect

snat kind of order only frustrates the asvea

2$ clearly not authorized to do.

Accordingly, we conclude that she

to issue the order of January 22, and that s

anullity. From this it follows that, as th

ary 21 remained extant, the trial court had

upon the spate of motions seeking revision °o

This brings jTuestions ra

the rhetoric

Excising

complaining about

settlement acreement,

motion to recuse himself, findin

None of the complaints has merit.

wow

"S =

5 inal

’ , and relate, a

Questions

she propriety of using a motion such as that

to enforce an alleced settlement agreement.

them is

1] to make it f

he w not be heard

Maryland Rule 1085; ef. Clark v. El

at appellant never made such a complain

therefore

neted on Janu-

no jurisdiction to act

£ the December 24 judgme

ised dy apsellant.

agocellant is

to enforce the alleced

judge hearing

g¢s made Sy the

least to

part,

filed appellees

The simple answer to

lo inad

or the

za,

‘

Cessna, 49 Md.Apo.

Eastern Environ.

21,

accorney,

ctAat a settlemen:

and

Apx(ii) b. 10

69a

-_-

testimony of the

The

wever:

olan!

at chey are

sav

e Levin,

* Ae

~eey

++@@$

decided apce

and

heard

who

Not

noamsge.cl.

ecuse nh:

£9

PO |

Rule }]

and

‘

api

tever

eason wha

we see

pellant,

t+ 7

’

Sie

70a

APPENDIX (iii) a.

ORDER DATED DECEMBER 24, 1981 GRANTING |

THE MOTION OF DEFENDANTS TO ENFORCE SETTLEMENT

(Filed January 4, 1982)

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND

VICTOR M. EISENBEISS, JR.

Plaintilé

vs. : Law No. 78,192

JAMES HUBERT JARRELL :

a ' FILED

AVIS RENT A CAR SYSTEM, INC. : -

Defendants : JAN 4 1:32

_GSEhY OF Tat 21° 5:7 COURT

QROER POR PRINCE SEONCSS COWsITY, MO,

°.

It is this | day of December, 1981,

ORDERED, that the Motion of defendants To Enforce wena

ment is GRANTED, and it is further

ORDERED,

1) That plaintiff‘, Victor M. Eisenbeiss, Jr., endorse |

and negotiate a Seventy-Five Thousand ($75,000.00) Dollar settler)

ment craft tendered to him, throuch his counsel, and |

2) That Victor M. Eisenbeiss, Jr.. emecute 2a ceneral |

release in favor of James Hubert Jarrell and Avis Rent-A-Car |

System, Inc., which release will be tendered to Mr. rssentesss(ou)

through Ais counse, |

3) That Victor M. Eisenbeiss, Jr., through his counsel,

execute and file with the Court a Line marking Law Number 78,192

as Settled anc Dismissed With Prejudice, and it is

FURTHER SRDERFD, that in the event that plaintiff, Victor

M. Eisenbeiss, Jr. fails to perfdrm all of the forecoing acts

(iS) dave }

set out above in paracrarhs 1, 2 and 3 within fifteen

of the date of this Order, then defendants shall file the sum

of Seventy-Five Thousand ($75,000.00) Dollars with the Clerk of

she Court in settlement of this case,and upon receipt of same, the

case is to be entered as “Settlec and Dismissed With Prejudice”. |

JACOB S. LEVIN, Jucge

Cireuace Court for Priace

George's County, Marvland

71a

APPENDIX (iii) b.

TRANSCRIPT OF PROCEEDINGS DATED FEBRUARY 8, 1982

IN THE CIRCUIT COURT FUR PRINCE

EISENPEISS, JR., :

PLAINTIFF

VICTOR MM.

“Sua

JAMES HUPERT JARRELL

AND :

AVIS FENT-a=-CAR. INC... :

DEFENDANTS :

ALL. FENCING

GEQRGE'S COUNTY. MARYLAND

LAW 78.!192

MOT TONS A

TOUNTY COURTHOUSE

COURTROOM NO. |

UPPER MGRLEOR SO, MD 2ar7TTs

FEPRUARY §. 1582

FEFORE THE HONORABLE JACOP §. LEVIN. a€2ocl]are JUDGE

APPEARANCES:

VAN S. POWERS. ES@UIRE

ON BEKNALF OF THE PLAINTIFF

HENRY WEIL. ESSUIRE ”

PONA@LD &. CANTER. ESQUIFE

WILLIAM N. ZIF CHAR. ESWU] RE

OL EERALFE OF THE DEFENDSNTES

PEPOETED Py

EWSENE 4. HAYDEN. JR

FEICLSAL COURT REPORTER

4 Fox 9#@)

JPRER MAPLEORG. MOD O77:

72a

THE CLERK: LAW 78,192, EISENRBEISS, JR. <VS- JAFRELL.

MR. POWERS: GOOD MORNING, YOUR HONOR,

THE COURT: ALL RIGHT. DID You CALL THE CASE?

THE CLERK: YES, YOUR HONOR,

THE COURT: TELL ME WHY WE ARE HERE. MR. POWERS.

MR. POWERS: YOUR HONOR. AS THE COURT KNOWS, IN THIS

CASE. IT WAS A HEARING ON DECEMBER 17. 198] ON A MOTION TO

ENFORCE & SETTLEMENT, FILED BY AVIS AND JARRELL. THE DEFENDANTS

IN THE CASE. ON DECEMBER 24. 1981 A COURT ORDER WAS PASSED IN

WHICH THE COURT GRANTED THE MOTION TO ENFORCE SETTLEMENT. AFTER

DECEMPEF 24, 1981 THE MOTHER OF THE PLAINTIFF INDICATED THAT

SOME INFORMATION HAD PECOME == COME INTO HER ATTENTION THAT

SEEMED TO INDICATE THAT THE COURT SHOULD NOT HAVE RULED THE WAY

IT DIC ON DECEMBER 24. 1981.

AFTER THAT DATE, AND BASED ON THAT INFORMATION, THE

PLAINTIFF HAS FILED «4 NUMPER OF MOTIONS Ta ATTEMPT To SEEK Th

HAVE 4 REHEARING ON THE MATTER. OF at THE VERY LEAST To Have

THE DECEMEER 24. 1981 ORDER STRICKEN.

THE PLAINTIFF IS PREPARED. IF THE COURT 8 50

INCLINED TO HEAR TESTIMONY ON THIS ISSUE. To PRESENT TESTIMONY,

HOWEVER, THE TESTIMONY THAT WOULD BE PRESENTED rs SET FORTH IN

THE SFFICAVIT THAT If SUPPORTED By QNE OF THE MOTIONS FILED 2'

THE PLAINTIFF.

NOW. JUDGE REA SIGNED THE moTION To Stay THE

Apx(iii) b. 2

73a

PROCEEDINGS. OR THE EFFECT OF THE DETEMPEF 24. 1991 ORDER. AND

IT WOULD APPEAR TO THE PLAINTIFF. YOUR HONOR, THAT IF THE COURT

WOULD BE INCLINED TO DO SO, THAT ANOTHER MEMPBER OF THE COURT

SHOULD HEAR THE PENDING MOTIONS.

THE COURT: ANYTHING ELSE YOU WANT To SAY?

MR. POWERS: NO. SIR.

THE COURT: ALL RIGHT. ALL THE MOTIONS IN THAT CASE

ARE DENIED. TO RECONSIDER ANY OTHER THING IN HERE THAT YOU

FILED. MOTION TO STRIKE ORDER. MOTION FOR RECONSIDERATION AND

MITION TO REVISE ORDER. THEY ARE ALL DENIED.

ANYTHING FURTHER”

MR. FOWERE: NOT BASED GN THAT RULING. YOUR HONOR,

THE COURT: ALL RIGHT. AND ONE OTHER. FURTHES THING.

FOR THE RECORD, MR. POWERS, THE AFFIDAVIT OR WHATEVER WAS FILED

ON BEHALF OF THE PLAINTIFF, [€ & FIGMENT OF HER IMAGINATION,

AND LASTLY. IN SEVEN YEARS I HAVE NEVER FEEN ACCUSED OF ACTING

IMPROFERLY AND I DEEPLY RESENT IT.

ALWAYS * PLEASURE To SEE you GENTLEMEN.

- ' - - «

b - ra BE

I Was

MR. WEIL? 1 HAD FILED. I TROUGRT

SCHEDULED THIS MORNING. A MOTION To INTERVENE IN THE PENDING

OF TRE

LITIGATION. APPARENTLY MR. POWERS WAS FILED. ON BEHALF

FLAINTIFF. aN APFERL TO THE COURT oF SPECIAL APPEALS

SIMULTANEGUS WITH THE FILING SF THESE mations

THE COURT: I DON’T KNOW HOW THIS GOT HERE NCE &

- cm: eu, Thy TRIE

Apx(iii) b. 3

¢C

Poe:

BEYOND

PELIEVE. I

WHAT DID YOU WANT

MRF.

MY MOTION

PROCEEDINGS,

TIME. ASA

BECAUSE WE

UFERSEDEAS

”

THE

IN T

WITH,

ATTORNEYS

CONTRACT

CEFENDANTS.

NOW,

Bond.

ANC He

PELIEVE ANYTHING

THIS PON

OPERATION

IN THIS

Jha

W ANYTHING ELSE WAS TO PE HEARD,

PELIEF. OF COURSE. ANYTHING IN THIS CASE !

CAN HAPPEN, 4S IT HAS HAPPENED.

ME TO RULE ON. MR. WEIL?

WEIL: I WANTED THE COURT TO CONSIDER THE MOTION,

AND THE MOTION OF MY FIRM TO INTERVENE IN THESE

PENDING ANY APPEAL. AND I WOULD ALSO, AT THIS

THE COURT TO SET A SUPERSEDEAS BOND IN THIS CASE

HAVE & VERY SUBSTANTIAL STAKE IN THESE PROCEEDINGS

THE PLAINTIFF WANTS TO APPEAL. I THINK &4

AND IF

POND WOULD BE APPROPRIATE IF HE W4aNTS THE COURT TO

OF YOUR ORDER OF DECEMBER 17.

CC I DON’T KNOW WHY A SUPERSEDEAS BOND [S

WIRT :

CASE. MR. WEIL. ALL I DID WAS DEPOSIT THE

REGISTRY OF THE COURT AND SAY THAT THEIR CASE IS

AUTHORIZED HIS

THAT IN MY JUDGMENT THE PLAINTIFF HAD

THIS CASE AND ACCORDINGLY THERE WAS 4

INTO BETWEEN THE

QaND THE MONEY IS IN THE REGISTRY

ME WHY THEY

TELL.

E NON@= INTEREST

THE MONEY WILL SIT

Apx(iii) b.

ME TO MODIFY

THAT.

THE

MR.

WEIL’S CUSTODY.

THE

COURT:

COURT

ORDER TO

I WOULD ASF

75a

MARE IT INTEREST PEARING? I

THE COURT TO

ALL RIGHT. you ALL FILED THE MONEY

Nee YOUR Riots a

YOUR HONOR. THE CHEC! wae PEEN IN MR.

mR, WEIL'S CUSTODY acer If IN THE

wonmeee “eas <— wor -

IN AN INTERES? PESRING S&CCOUNT

les w- ec

ANYTHING ELSE” ALWAYS = PLEASURE TO SEE

Apx( iii)

76a

APPENDIX (iv)

MOTION FOR RECONSIDERATION (eee

(Filed January 21, 1982) (6?

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND -

VICTOR M. EISENBEISS, JR. : —~

(Fil

Plaintiff : : ae

v. Law No. 78,192

JAMES HUBERT JARRELL

we : oes he ce ee

AVIS RENT A CAR SYSTEM, INC. ar € ha ce:

; !

Defendants : JAN 23 1532

CLZAK OF THEO Duct CoURT

MOTION FOR RECONSIDERATIONOR aaince Gecnces ODL 2cTY, Me

Plaintiff Victor M. Efsenbeiss, Jr., by and through his counsel, and pur-

suant to appropriate Maryland Rules of Procedure, moves the Court to recon- |

in these proceedings

x |

sider the Order cf December 24, 1981, filed January 4, 1982,

and for reason states as follows:

1. Pursuant to Order of Court of December 24, 1981, filed January 4,

1982, {nm these proceedings the plaintiff was ordered to endorse and negotiate

a settlement draft tendered to his former counsel; to execute a general] release

in favor of the defendants; and further, to execute and file with the Court a

Line marking Law Number 78,192 as Settled and Dismissed with Prejudice;

2. Plaintiff has retained new counsel in these proceedings and asserts

}

several and various, legal and equitable claims and defenses which are sub-

stantial and which ought to be heard by the Court in the interests of justice;,:

3. It is of extreme importance ot Victor M. Eisenbeiss, Jr. to have

reconsideration of this order due to the fact that his injuries are so severe

and substantial, and that his underlying tort action is his only remeay to correct

Nis substantial damages and losses;

4. The plaintiff has contended throughout that he never authorized a

settlement of the underlying tort action in these proceedings at the amount

of seventy-five thousand dollars ($75,000.90);

Apx(iv) 1

Thee

3 77a

5, That plaintiff was not aware of, and did not have the benefit of all

procedural and substantive rights due him before the hearing of December 17,

1981, in that the issue of whether a settlement (contract) had ee

ILM

o |

could be tried in a manner as other contract actions could be tried; a

6. The above captioned matter originally was a tort action and was commenced

on the Law side of the Court under the above captioned Law Number, however,

the Court on December 17, 1981, and again on Decemoer 24, 1981, acted as a

Court of Equity in ruling on the Motion of defendant to Enforce Settlement,

granting specific, equitable relief;

1. Tre Court on December 17, 1981, and on December 24, 1981, sitting as;

a Court of Equity, ruled improperly and without legal support or justification

so as to deprive the plaintiff of legal rights and remedies on the underlying

tort action;

8. The Court should not have granted Equitable relief on Oecember 24. 1981

to the defendants in the Law action, without a Bill of Complaint or Petition

in an Equity matter at least having been commenced by the defendants on :

the issue of settlement (contract) which is a separate, distinct matter from !

plaintiff's underlying tort action,

9. Plaintiff has newly discovered evidence, with respect to the menrktatity

of the trier of facts on the Motion of Defendant to Enforce Settlement, which |

evidence was not available to plaintiff counsel at the time of the hearing on |

defendants’ motion which was had on December 17, 1981;

10. Plaintiff has certain other evicence with respect to the dias and

partiality of the trier of facts on the Motion of Defendant to Enforce

Settlement, which evidence was discovered in the course of the hearing on

said motion which was had on Decemoer 17, 1981;

Apx(iv) 2

ats

1]. Plaintiff has submitted this information tO counsel and saig infor-

mation is the subject of pleadings, documents, and affigavits filed in these

proceedings in support of this and other motions;

12. The reconsideration of the Order of Oecemoer 24, 1981, would not,

wise

Sora)

in any way, be prejudicial tO, OF other/prejudice, the rights of the defen

particularly with respect to the rights and liabilities existing within the

underlying tort action;

13. Plaintiff submits that oral argument on this motion i$ appropriate

and that his assertions and evidence would likely cause the Court to et |

its Order of December 17, 1981, and subsequently vacate said Order. |

WHEREFORE, plaintiff, Victor M. Eisenbeiss, Jr., having set forth the |

above in support of the Motion for Reconsideration the Order of Court of Cecember

24, 1981, filed January 4, 1982, respectfully requests the Court to:

1. Reconsider the Order of Court of Decemoer 24, 1981, filed January 4, 4

1982, in these proceedings; and,

2. Rescind and vacate saig Order of Court; or in the alternative,

3. Order that additional argument and testimony be permitted relative

to Motion of defendants to Enforce Settlement; and,

4. Order that a hearing on this MOtION, as well as any other Motions

filed by the plaintif? addressing these issues, be had in open Court.

Respectfully Submitte

nr — Powers

Attorney for Plainti¢¢

4344 Farragut Streer

Hyattsville, Maryland 2078]

77-3311

Apx(iv) 3

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 21st day of January, 1982, a copy of the

foregoing Motion for Reconsideration was mailed postage prepaid to: S,

1. Francis X. Quinn, Esquire 4. Henry Weil, Esquire a

25 Wood Lane Harvey Jacobs, Esquire

Rockville, Maryland 20850; One Central Piaza, No. 10 S.W.

11300 Rockville Pike

2. Jonn —. Beckman, Jr., Esquire Rockville, Maryland 20852.

7676 New Hampshire Avenue

Langley Park, Maryland 20783;

3. William N. Zifchak, Esquire

P.O. Box 550

Upper Marlboro, Maryland 20772; and

: ——

ce (ee

Yan S. Powers

Apx(iv) 4

80a

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

FOR RECONSIDERATION (Filed January 21, 1982) ea

| (o)

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND -

VICTOR M. EISENBEISS, UR.

Plaintiff

Law No. 78,192

v. : |

: |

—<« £ TT b pred

ee .-

JAMES HUBERT JARRELL :

t 3 we how

AND

AVIS RENT A CAR SYSTEM, INC. JAM 23 iF2

Citas of THES. UIT CCue,r

Defendants a

EQ CRINGE SEO AGES COUTITY, Me

FOR RECONSIDERATION

1. Rule 625 a., Maryland Rules of Procedure.

For a period of thirty days the entry of a judgment,

or thereafter pursuant to motion filed within such period,

the court shall have revisory power and control Over such

Jucgment. After the expiration of such periog the court j

shall nave revisory power and contro] Over such judgment, 3

only in case of fraud, mistake or irregularity.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION |

2. Within the thirty Gay period stated in the rule, there is no need

to demonstrate fraud, mistake or irregularity, rather, the motion is directed

to the sound discretion of the trial court. Esheiman Motors Coro. v. Scheftel,,

281 Md. 300, 189 A.2¢ 818 (1962). The trial court should exercise that sound

discretion if the movant shows reasonable indication of meritorious defense

or other equitable circumstances to Justify striking the judgment. Abarms v. |

pea ln IM

Gay Inv. Co., 253 Md. 121, 251 A.2¢ 876 (1969) ano Cromwell v. Ripley, 11 Md. |

App. 173, 273 A.2a 218 (1971).

In this case, serious issues concerning the settlement authority of olain-

tiff's attorneys and the method of resolution of the dispute surrounding the

allecec settlement of plaintif#'s claim Mave Seen raised. For example, see

Chertkoff v. Harry C. Weiskittel Co., 251 Ma. $44, 248 A.2¢ 373 (1968).

3. Maryland Rules of Procedure 122] deals with Canons and Rules of

Judicial Ethics and the Preamble in the text of Ruie 1231 states. "The Canons

and Rules of Judicial Ethics, as herein set forth, are adopted as rules of this

Apx(iv) 5

8la

Court governing the conduct of all Judges referred to in Rule 13 of the

Rules of Judicial denies." Rule 13 in the text describes Circuit Courts

of the Counties as being Courts encompassed by Rule 1231. The 198) suopTemend

\ By

of Rule 1231 contains Rule 14 a. which also indicates that the Circuit Courts

for tne Counties were designed to come within Rule 1231. Rule 1231 uncer

Canon Number 13 tified Kinship or Influence, the Canon states as follows,

"A Judge should not act in a controversy in which a near relative is party,

witness, or lawyer; he should not suffer his conduct to justify the impression

that any person can improperly influence him or unduly enjoy his favor, or

_ that he is affected by the kinship, rank, position, or influence of any

party or other persén. He should not testify voluntarily as a character

witness." Unoer Caron 22 titled Social Relations within Rule 123] it is

Stated, “It is not recessary to the prover performance of judicial duty that

a Judge should live in retirement or seclusion; it is desirable that, so,far

as reasonable attention to the completion of his work will permit, he continue

to mingle in social intercourse, and that he should not discontinue his in- |

terest in or appearance at meetings of members of the bar. He should, however, |

iInpending or prospective litigation before him de particularly careful to

avoid such action as may reasonably tend to awaken the suspicion that his

social or business réjations or friendships constitute an element in influencing

his judicial conduct,* |

Since this prearoie to Rule 1231 in the text clearly states that Rule 1231.

containing the Canons and Rules of Judicial Ethics are adopted as "Rules of

this Court", the Canons and Rules contained within Rule 123] act, in effect,

as rules governing the trial of cases and other proceedings in the Circuit

Courts of the Counties, and in this case, Rule 123] and the Canons and Rules

thereunder govern the conauct of tne motion heard on Decemper 17, 198).

If, factuaily, the statement referred to in the supoorting Afficavit of

Beatrice £. Eisenoeiss was made by the trier of the facts (trial Juege) on the

Apx(iv) 6

82a

Motion to Enforce Settlement heard on December 17, 1981, then Canon 13 and/or

Canon 32 concerning Social Relations were violated. If the rules of the

conduct of the trial under Rule 123] were not followed, then the trial of >

' ~

the proceedings or hearing of the motion on Cecember 17, 198] resulted in

a decision which should be reversed, in that the Court's decision resulting

from the hearing of December 17, 1981, had the effect of ceoriving Victor M.

Eisenbeiss, Jr., from a trial on the underlying tort for which the above action |

wes originally brought.

In this regard see 65 Op. Att'y Gen. (May 8, 1980) which indicated that

"The Canons of Judicial Ethics do not have the same operative or legal status

as do the rule of judicial ethics, in governing the activities of Judges."

Victor M. Eisenbdeiss, Jr. contends oniy that Rule 1231 and the Canons

and Rules thereunder act as do other rules of procedure in Maryland to govern

the trials of cases and hearings of motions (which in this case the December 17

1981 proceeding was a hearing of a motion) and as such Rule 123] mandates

that the trier of the fact on a particular motion (in this case a trial Judge)

}

be completely free of any influence or impression of bias in order to accurately

receive testimony in evidence and make factual findings and apply law in a

particular proceeding.

. |

The trial Court's finding in this situation deprived Victor M. Eisenbeiss,:

Jr. of his right to have a full trial by jury on the underlying tort action

wnicnh was the original cause of action followed by the Motion to Enforce

Settlement in this proceeding.

Uncer section 347 A describing this conduct of the Court or of counsel,

a party may use the principals discussed in Poe's Pleading and Practice, 6th

Ec., to support the proposition that the trier of facts should be imoartial

and if impartiality is not exercised then a new trial or hearing snould be

granted. At page 676 of Poe's Pleading and Practice, 6th Ec., section 347 A

it 18 stated, “Still there are cases upon record where the Juage, upon having

nis attention feariessly, yet respectfully, called to the breach of judicial

Apx(iv) 7

83a

ode

propriety complained of, has manfully acknowledged nis fault, anc atonec for

it by granting a new trial." At page 677 the inquiry follows, “The point of

inquiry will always be this: did the objectionable conduct of the Court really |

influence the jury in the finding of their verdict? [f it did, or if iy wB

fairly and reasonably calculated to influence them, then a verdict thus Sregent

about should not be allowed to stand. All this seems plain enougn, so far

as concerns the statement of the doctrine. The difficuity is in determining

whether the facts bring the particular case within its fair application, and

perhaps the nearest approach we can make to any definite statement is, that |

if the alleged misconduct had a reasonable tendency to interfere with a fair

decision of the case on its merits, then a new trial should be ordered, anc |

the determination of this question must be left in each case to the just and

enligntened discrimination of the Court." Further, it is stated, at pace 677,

"If misconduct includes an impropriety, as in effect it would, there have

been some adjudications dy the Court as to what does or does not constitute

an improper remark or improper conduct on the part of the Court or counsel

which should now de ~eviewed."

At page 677 at the second full paragraph it is stated, “Imoroorieties

by tne Court. A trial Judge, because of his high anc authoritative position,

should be exceedingly careful in any remarks made by "im curcng the progress

of a trial, either in passing upon evidence or ruling ucon prayers; ne snouid

carefully refrain, either directly or indirectly, from giving expression to an

opinion upon the existence or not of any fact which snould be left to the

finding of the jury; yet it has frequently been said that a Judge may at any

time during the trial modify his instructions or revoke them altogether, if

convinced of error in a previous ruling."

It appears that, after reviewing the authorities in this area, a trial

Court, in this case, should not have sat in judament of the Motion to Enforce

Settlement, if, in fact, tne statement as ailegec dy Beatrice &. Eisenbeiss

Apx(iv) 8

. 84a

wez made before the Motion to Enforce Settlement began. The propositions

coscerning conduct of the trial before a jury should hold, im substance,

for proceedings on motions, especially when the outcomeof those motions are

fivally determinative or adjudicative of substantial rights of the party. iy

Remarks of counse] are customarily monitored by the Court so as not to

aliow improper influence upon the trier of the facts. At page 682 of Poe's

Pleading and Practice, 6th Ed., Section 347 A, third full paragraoh, it is

Stzted, “Generally an improper comment, when it constitutes an impropriety, |

may be corrected by a cautionary warning of the Court and an instruction to

the jury that it should decide the case on the evidence and not the remarks

of counsel, or someother cautionary instruction to the end that the jury |

will be instructed that the remark is to be disregarded." [t appears that

to de part

the trier of the facts must de impartial in order to allow fairness

of the proceeding as wel] as part of the result or decision of the trier of

the facts.

In Elmer v. State at 239 Md. 1, 209 A.2a 776 (1965) the modes of pre-

serving the question of allegedly improper remarks of the trial Judge for

Apvellate consideration and tne Appellate Court's ruling were stated. So

this indicates there is a process for at least remarxs of the trial Court during

—— -M—- --

trials. The same application or principals should be available when a motion

determinative of the final outcome of the proceedings is the issue. This

is tne case before the Court at this time.

Respectfully on

oh Fea

we rf ee aed 4 —

Tan ae hea

Attorney for Plaintiff

4344 Farragut Street

Hyattsville, Marylane 20781

77-331)

Apx(iv) 9

CERTIFICATE OF SERVICE

T HEREBY CERTIFY that on this 21st day of January, 1982, a copy of the

foregoing Memoranaum of Points and Authorities in Suoport of Motion For

Reconsideration was mailed postage precaia to:

1. Francis X. Quinn, Esquire 4. Henry Weil, Esquire —

25 Wood Lane Harvey Jacobs, Esquire >}

Rockville, Maryland 20850; One Central Plaza, No. ies

11300 Rockville Pike

2. John €. Beckman, Esquire Rockville, Maryland 20882.

7676 New Hampshire Avenue

Langley Park, Maryland 20783;

3. William N. Zifchak, Esquire

P.Q. Box $50

Upper Marlboro, Maryland 20772; and : —

i OT il |

ad.

Yan S. Powers

Apx(iv) 10

86a

MOTION TO STRIKE ORDER OF COURT OF ae

sg 24, 1981 (Filed January 21, |

1982

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARY 2)

‘VICTOR M. EISENBEISS, JR.

i Plaintiff :

| ~vs- = Law No. 78,192 ANY

| JAMES HUBERT JARRELL : - . =a

i : a ll

\AVIS RENT oA CAR SYSTEM, INC. . |

JAN 2) t@2

}

;

Defendants

FOR ORINSE GEORGES COUNTE, Adin

! |

‘

{

i Calti. OF TREDINSUE SCURE

MOTION TO STRIKE ORDER OF COURT OF DECEMBER 24, 1981

The plaintiff in these proceedings Victor M. Eisenbeiss, Jr. by and through

nis attorney, moves to strike an Order of the Prince George's County Circuit

|Court dated December 24, 1981 and states as follows the reasons for the Motion

\to Strike Order of Court of December 24, 1981:

1. On December 17, 1981 a hearing on a Motion to Enforce Settlement was

inetd before Judge Levin in courtroom one ‘n Prince George's County Circuit

‘court;

: 2. On December 24, 1981 an Order of Court was signed by Judge Levin order-:

ing a settlement, in effect,of tne underlying tort case which was captioned

las stated above;

| 3. The plaintiff has caused a Motion to Revise Order of Court dated

‘Decemper 24, 1981 under Maryland Rule 625 to be filed in these proceedings,

: 4. The plaintiff has contended througnout that he never authorized a

isettlement of the underlying tort action in tnese proceedings at the amount of

{

‘seventy-five thousand dollars ($75,000.00);

! 5. The plaintiff cia not have tne benefit of all of his procedural and

‘substantive rights before the hearing on December 17, 1981, in tnat the

‘issue of whether a settlement (contract) had occurred, could be tried in a

‘manner as other contract actions could be tried.

Apx(iv) 11 A

6. The plaintiff has requested the Prince George's County Circuit Court

|to entertain a Motion pursuant to Maryland Rule 625 to Revise tne Order of Court

| of Oecember 24, 1981 to the extent that alternatives would be available to the |

Be to insure that the plaintiff as well as other parties received the benef

| NY

of all procedural and substantive rights, as in other contract actions, in wNese/

| proceedings;

7. After tne December 17, 1981 hearing on the Motion to Enforce Settlement,

the plaintiff elected to obtain additional legal opinion concerning his rights

‘and remedies in these matters;

il j

8. The plaintif* was unaware, prior to consultation with his present

j counsel, of certain procedural and substantive rights that he had concerning |

‘ contract actions and was unaware that a settlement issue is tantamount to a

contract issue; the plaintiff has been informed by his present counsel that if

a settlement (contract) issue was before the Court, then the plaintiff had the

| right to a trial by Court or jury on the issue of whether a contract existed,

which would give rise to a settlement of the proceedings; in addition, plaintiff

became aware of the importance and impact of certain matters, more fully des-

cribed in the Motion to Revise pursuant to Maryland Rule 625, with those issues |

f having a determinative effect on the trier of facts at the December 17, 1981

| Motion to Enforce Settlement hearing;

}

| 9. The plaintiff nas elected to alternatively request relief from tne

December 24, 1981 Order of Prince George's County Circuit Court, which, in

4 effect, terminates the plaintiff's rignts, claims, and contentions on the under-

i lying tort matter which is the subject of the above-captioned proceeding pend-

i ing in the Prince George's County Circuit Court;

10. The Court on December 17, 1981 and again on December 24, 1981, acted,

‘as a Court of Equity in ruling on tne Motion to Enforce Settlement,

ll. The above-captioned matter originally was a tort action and was com-

menced on the Law side of the Court under the above-captioned Law numoer;, the

Apx(iv) 12

a“

' Court, on December 24, 1981 sitting as a Court of Equity, granting Equitable

| relief, in the form of a Court Order granting the Motion to Enforce Settlement,

| Ordered the specific performance of certain described activities (as set out

| in the Court Order of December 24, 1981) of the plaintiff; aaaiti onally, the

| Court Order of December 24, 1981 ordered that, absent performace by the plaintiff

i by a stated number of days after the Order of December 24, 1981, certain Cops

| tingent activities should occur, that would, in effect, nave a result of tem

| “~

| inating forever the plaintiff's rights concerning the underlying tort action;

12. The Court on December 24, 1981 sitting as a Court of Equity ruled

‘improperly and without legal support or justification so as to deprive the |

| plaintit? of legal rights and remedies on the underlying tort action;

13. The Court on December 24, 1981 sitting as a Court of Equity and decree-

efendants i

| Ing specific performance actually granted Equitable relief to the q

_ 1m the Law action as captioned above;

14. The Court should not have granted Equitable relief on December 24, 3

i 1981 to the defendant in the Law action, without a B11) of Complaint or Pett tion

qin an Equity matter as least having been commenced by the defendant on the issue

j of settlement (contract);

15. In addition, plaintif? has advised the Court of the evidence now

| available with respect to the impartiality of the trier of the facts on the

| Motion to Enforce Settlement and this imformation is the subject of pleadings,

| documents, and affidavits filed in these proceedings in support of Motion to |

}

| Revise under Rule 625 and Motion for Reconsideration filed in these matters.

WHEREFORE, the plaintiff having set forth the above in support of the

i motion to Strike Order of Court of December 24, 1981 the plaintif¢ eecanectinde

| request the Court to:

] Orcer a hearing on this Motion as well as any other Motions filed by

“this plaintiff addressing these issues;

2. Strike the Order of Court dated December 24, 1981;

3. Grant an Order allowing the plaintiff to pursue contract remedies, if

Apx(iv) 13

89a

wany, at Law or in Equity, on the original causes of action filed in the above-

| captioned proceedings;

4. Grant costs in favor of plaintiff in these matters.

{

| ( WN

Respectfully submitted, FIL

{ a

te ote

Van S. Powers

Attorney for Plaintiff, Victor M.

. Kenneay

i ged for Plainttff, r ~t :

i M. Eisenbeiss, Jr. isenbdeiss, Jr.

‘ 4344 Farragut Street 4344 Farragut Street

| Hyattsville, Maryland 20781 Hyattsville, Maryland 20781

i 301-277-3311 301-277-3311

! |

| CERTIFICATE OF SERVICE

| I HEREBY CERTIFY that a copy of the foregoing Motion to Strike Order of

| Court of December 24, 1981, was mailed postage prepaid, to Francis X. Quinn,

| eomstve at 25 wood Lane, Rockville, Maryland 20850, Karl Feissner, Esquire, at

| 7676 New Hamoshire Avenue, Suite 406, Langley Park, Maryland 20783, John €.

| Beckman, Jr. at 7676 New Hampshire Avenue, Suite 406, Langley Park, Maryland

j 20783, William N. Zifcnak, Esquire, at P.0. Box 550, Upper Marlboro, Maryland

20722, Henry £. Weil, Esquire and Harvey Jacods, Esquire, at One Central Plaza, |

" Rockville, Maryland 20852, this 2is:day of January, 1982. |

! ae it

be Vee Ming Caan

Yan S. Powers

Thomas r. Kenneay

Apx(iv) 14

90a

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

TO STRIKE ORDER OF COURT OF DECEMBER 24, 1981 (Filed

January 21, 1982)

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND

VICTOR M. EISENBEISS, JR.

Plaintiff

Vv.

JAMES HUBERT JARRELL

AND

AVIS RENT A CAR SYSTEM, INC.

Defendants

MEMORANOUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE

Law No. 78,192

. od 4

Q a —

AN 22 Te

ss secur CUS aT

Fm iindneis ed bIaES COUNTY, Me

ORDER OF COURT OF DECEMBER 24, 1981

1. Rule 625 a., Maryland Rules of Procedure. -

For a period of thirty days after the entry of a judgment,

or thereafter pursuant to motion filed within such period, the

court shall have revisory power and contro] over such judgment.

After the expiration of such period the court shall have re-

visory power and control over such judgment, only in case of

fraud, mistake or irregularity.

2. "Rule 1 of subdivision VI, Part Two of the Rules of Practice

and Procedure provides:

“For a periof of thirty (30) days after

the entry of any judgment, order or decree, final in its nature,

or thereafter pursuant to motion filed within such period, tne

Court shall have the same revisory power and control over such

judgment, order or decree as it had during the term at which

it was entered under the practice heretofore existing.

rrr

Both before and after the adoption of this rule, we-have held

that the court's action on a timely motion to strike, before

a judgment is enrolled, is discretionary ana not appealable.

Corbin v. Jones, 199 Md. $27, 86 A.2a 911; 588. Moreover,

it has been held that the trial court, within the term, may

reconsider its action on a motion to strike.” (under! ine

added).

Tiller v. Elfenbein, 205 Md. 14, 106 A.2d 42 (1954) at 106 A.2d

44.

— Respectfully Submitted,

Cos

ri a i

fv sts * 2? * UC kt

Yan S. Powers

Attorney for Plaintiff

4344 Farragut Street

Hyattsville, Maryland 20781

277-3311

. 9la

«2s

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 21st day of January, 1982, a copy of the

foregoing Memorandum of Points and Authorities in Support of Motion to

Strike Order of Court of December 24, 1981 was mailed postage

Francis x, Quinn, Esquire

25 WOO? Lane

Rockville, Maryland 20850;

. John E, Beckman, Jr., Esquire

prepaid tors

Henry Weil, Esquire

Harvey Jacobs, Esquire

One Central Plaza, No. 10

11300 Rockville Pike

Rockville, Maryland 20852

‘

}

’

7676 New Hampshire Avenue

Langley Park, Maryland 20783;

P.O. Box $50

Upper Marlboro, Maryland 20772;

3. William wy. Zifchak, Esquire

and |

}

POE aie do

“Van S. Powers

a ee

]

Apx(iv) 16

92a

MOTION TO REVISE UNDER RULE 625

(Filed ey 21, 1962) . wien

G5)

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND -

VICTOR M. EISENBEISS, JR. :

Plaintiff :

v. Law No. 78,192 Sun

JAMES HUBERT JARRELL Nee |

ANO. cee Se

AVIS RENT A CAR SYSTEM, INC. -_ 3 i a |

JAN 21 Ere

rem FS POCUAS

Defendants :

rea CITY, dem

ad a

CWA Finctemee wee.

MOTION TO REVISE UNDER RULE 625

The plaintiff, Victor M. Eisenbeiss, Jr., by and through his counsel

Yan S. Powers and Thomas F. Kennedy, move this Honorable Court to revise,

pursuant to Maryland Rule 625, an Order of Court cated December 24, 1981,

among other things, granting defendants’ Motion to Enforce Settlement, and for

reasons states the following: :

1, On December 17, 198! before Jucge Jacob $. Levin a hearing was heic

on a Motion to Enforce Settlement and Answer to Motion to Enforce Settlement;

2. The Motion to Enforce Settlement was granted on December 17, 1981;

3. An Order was signed December 24, 1981 requiring Victor M, Eisendeiss,

Jr. tO endorse and negotiate a settlement draft, execute a general release, and!

execute and file, through his counsel, a Line marking Law Number 78, 192

as Settled and Dismissed with Prejudice;

4. The Decemper 24, 1981 Order required the defendants to file funds with

tne Clerk of the Court in settlement of the case, if Victor M. Eisenbdeiss, Jr.

failed to perform acts set out in the Order;

S. Victor M. Eisenbeiss, Jr. has caused to be filec a Motion for Recon-

sideration, with SuDDOrTINg documents and/or dieacings and Proposes Order, a

Motion to Revise Unaer Rule 25, with Suovorting documents and/or pieacines,

Apx(iv) 17

93a

“an

and Prsposed Order, and a Motion to Stay Effect of Orcer of December 24, 1981,

with supporting documents and/or pleadings, and Proposed Orcer, and a Motion

to Strike the Order of Court of Decembe; 24, 1981, with supporting documents); +}

and/or pleadings and Proposed Order; re

S. The December 24, 198] Order shouid be revised so as to not require Vietor

M, Eisendeiss, Jr. to do those acts Stated under the Order ang so as to |

deny the relief as requested by the defendants and $O as to allow Victor M. |

Eisenbeiss, Jr. to have a trial on the underlying causes of action which were

originally filed in the above captioned case;

7. The December 24, 198) Order acted to deprive Victor Mm. Eisendeiss, Jr.

of his rights to have a jury trial on his claims for Gamages for substantial

injuries resulting from a collision November 4, 1977:

8. Victor Mm. Eisenbdeiss, Jr. contends he has never agreed to accept

575,000.00 in settlement of his claims;

9. Victor M, Eisenbeiss, Jr. wants a jury trial on his claims in the above

captioned case;

10. Victor Mm. Eisenbeiss, Jr. was not given a fair and impartial hearing

on the issue of enforced settlement on December 17, 1981, from which the

Order of Decemper 24, 1981 resulted.

WHEREFORE, Victor M. Eisenbeiss, Jr. respectfully requests the Court to

hear these matters aS expeditiously as possibie.

Respectfully Submitted,

‘ - |

oo ee. .

Yan S. Bowers

Attorney for Plainti¢¢

4344 Farragut Street

Hyattsville, Maryland 20781

277-3311

Apx(iv) 18

CERTIFICATE OF SER

~~.

I HEREBY CERTIFY

that on this 21st day of January, 1982 a copy of the

foregoing Motion to Revise Under Rule 625 was mailed postage prepaid to:

1. Francis X. Quinn, Esquire

25 wood Lane

Rockville, Maryland 20850;

2. Jonn —. Seckman, fsquire

7676 New Hamoshire Avenue

Langley Parx, Maryland 20783,

Apx(iv) 19

3. William N. Zifcnak, Esquire

P.O. Box 550

Upper Marlboro, Maryland 20772,

and

4. Henry weil, Esquire fer a1

Harvey Jacobs, Esquire \ é

One Centra) Plaza, No. 10S w.

11300 Rockville Pike

Rockville, Maryland 20852.

Pe,

BO ee Pe Oe

Van S$. Powers 7”

95a

MEMORANDUM OF POINTS AND AUTHORITIES IN neiay

SUPPORT OF MOTION TO HAVE UNDER RULE 625

(Filed January 21, 1982) %)

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND

VICTOR M, EISENBEISS, UR.

Plaintiff

vy. Law No. 78,192

JAMES HUBERT JARRELL ; er ae

AND * 3 a ee a we

AVIS RENT A CAR SYSTEM, INC. wet oh ip /

Defendants

- + FIM? SouRE

* eS SCORSESE COMES, aay ,

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION a ae

TO REVISE UNDER RULE $25 |

1. Rule 625 a., Maryland Rules of Procedure.

For a period of thirdy days after the entry of a judgment, or there- |

after pursuant to motion filed within such period, the court shall have re- |

viSOry power and contro! over such judgment. After the expiration of such

period the court shall have revisory power and control over such Judgment, only!

in case of fraud, mistake or irregularity.

2. The power of the trial court to revise a judgment within the thirty

day statutory period is beyond question. In fact, the rule merely restates

in substance the rule at common law. Eliason v. Commissioner of Personnel, 230!

Md. 56, 185 A.2¢ 3590 (1962) and Mayer v. Gyro Transp. Sys., 263 Md. 518,

283 A.20 608 (1971). Moreover, under Cramer v. Wildwood Develooment Comoany,

227 Md. 102, 175 A.24 750 (1961), “the timely filing of a motion has the effect |

of extending the time within which the court may exercise its revisory power”

Id. at 175 A.2d 753. Also see Brilley v. Pinkston, 215 Md. 417, 136 A.2¢

$63 (1958).

Respectfully Submitted,

}

. VA

Pe a A retia

an 3. -owers

Attorney for Plaint:f¢

4344 Farragut Street

myattsville, Maryland 2078)

277-3311

‘>

Apaliv) 20

“de

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 21st day of January, 1982, a copy of the |

foregoing Memorandum of Points and Authorities in Support of Motion to Revise

Uncer Rule 625 was mailed postage prepaid to:

1. Francis X. Quinn, Esquire 4. Henry Weil, Esquire (Ficus) |

25 Wood Lane Harvey Jacobs, Esquire Ue

Rockville, Maryland 20850; One Central Plaza, No. 10S W

11300 Rockville Pike

2. John &. Beckman, Jr., Esquire Rockville, Maryland 20850

7676 New Hampshire Avenue

Langley Park, Maryland 20783;

3. William N. Zifchak, Esquire

P.O. Box 550 hg

Upper Marlboro, Maryland 20772; and

it rp de |

Van S. Powers

Apx(iv) 21

97a

MOTION TO STAY THE EFFECT OF evga Coun aa

OF DECEMBER 24, 1982 (January 21, 1982) |

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND -

VICTOR M. EISENBEISS, UR. : i) a

Plaintiff

JAMES HUBERT JARRELL .

ANO : JAM 22 IDE?

AVIS RENT A CAR SYSTEM, INC. : eee ne

Defendants : OSM PRINCE SCF 2S COUNTY te |

MOTION TO STAY THE EFFECT OF ORDER OF COURT OF DECEMBER 24, 198)

Plaintiff, Victor M. Eisenoeiss, Ur., by and through his attorney and

Pursuant to appropriate Maryland Rules of Procedure, Reredy moves the Court

to Stay the effect of the Order of Court of December 24, 1981, filed January 4,,

1982, in these proceedings, and for reason states as follows:

1. Pursuant to Order of Court of December 24, 1981; filec January 4)

1982, im these proceedings, the plaintiff was orcered to endorse and negotiate

a settlement draft tendered to his former counsel; to execute a general release

in favor of the defendants; ana further, to execute and file with the Court a

Line marking Law Number 78,192 as Settled and Dismissed With Prejudice.

2. Plaintiff mas retained new counsel in these proceedings and asserts

several and various, legal ang equitable claims and defenses which are substantia!

anc which ought to be heard by tne Court in the interests of justice.

3. Plaintiff, by ang througn his counsel, has filed motions in these

proceedings relative to said claims and defenses.

4. If the effect of tne Order of December 24, 1981, is not stayed pending

nearing on said other motions filed in this case, then the running of the

statute of limitations is not tollec in this matter.

Apx(iv) 22 a

. 98a

<2.

6. It is of the utmost importance to Victor M. Eisenbeiss, Jr. to have

consideration of these matters, due to the fact that his injuries are so F lth Ut

severe and substantial that his underlying tort action is his only remedy \ 9

to correct his substantial damages and losses. |

7. Defendants would not be prejudiced as a result of the granting of |

this motion to stay the effect of the Order of December 24, 1981, pending hearts

of other motions filed in these proceedings.

8. The interests of substantial justice would best be served by granting

plaintiff's motion to stay the effect of the Order of December 24, 1981,

pending hearing of other motions filed in these proceedings.

WHEREFORE, Victor M. Eisenbeiss, Jr. respectfully requests the Court to

Stay the Effect of the Order of December 24, 1981, and further, Victor M.

' Eisendeiss, Jr. respectfully requests 2 Searing on this matter as soon as is

practical.

ed — a

Van S. Powers

Attorney for Plaintiff

4344 Farragut Street

Hyattsville, Maryland 2078)

277-331)

}

Respectfully Submitted, |

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 21st day of January, 1982, a copy of che

foregoing Motion to Stay The Effect of Order of Court of December 24, 198)

was mailea postage prepaid to:

1. Francis X. Quinn, Esquire 3. William N. Zifchak, Esquire

25 Wood Lane P.Q0. Box 550

Rockville, Maryland 20850; Upper Marlboro, Maryland 20772;

and ,

2. Jonn €. Beckman, Esquire

7676 New Hamosnire Avenue 4. Henry Weil, Esquire

Langley Parx, Maryland 20783 Harvey Jacobs. Esquire

Qne Central Plaza, No. 10S Ww.

11300 Rockville Pike

Rockville, Maryland 20852

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99a

MEMORANOUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

TO STAY EFFECT OF ORDER OF DECEMBER 24, 7T142

1981 (Filed January 21, 1982) OY

IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND

VICTOR M. EISENBEISS, UR.

Plaintiff : (3)

v. Law No. 78,192 we

JAMES HUBERT JARRELL ie at ee

AND

AVIS RENT A CAR SYSTEM, INC.

JAN 3: EDP

Defendants : ¢ Cot. 2 Saat See

FOR Arid S25 sdS COUNTY, bade

MEMORANOUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STAY EFFECT

OF ORDER OF DECEMBER 24, 1981

1. Rule 625 a., Marytand Rules of Procedure.

For a period of thirty days after the entry of a Judgment,

or thereafter pursuant to motion filed within such period, |

the court snall

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