# Petition — Eisenbeiss v. Jarrell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1025%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 820 ## Text 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? ij 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? ie 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 iv 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 V 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 (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, 22 18 20 22 22 “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 22 22 25 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. 22 25 17 ix 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 1 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 10 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 11 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. 12 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. 13 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 14 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. 15 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 16 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 17 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. 18 371 (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. 19 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 20 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 21 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 22 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 23 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 24 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 oo 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). 26 | 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 27 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. 28 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 29 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, : | | j | i 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. i 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 t . 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 } ' ~ 20 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 3 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 | t2 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? t 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 ~ > i] wo | cy | N Po Company? AL advice. Q A Q reference you might that? AR | behalf of discovery rouchly 9 the record 25a And cefense of personal injury litisation? Mr. Zifchak, in reference to this case of Victcr a] | 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. oe 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 | j ' | | tions, the obtaining of records from prior physicians, obtaining t | i] | 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. | | 7 If | i | | | { | | i | ' ' | In ¢iscussing it, partly in accuiescence tc theiz desires, ¢ 26 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, to | | | 1 | \ | | i} | | j i 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 14 ~ 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 e | 2 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 23 | 29a 2 Weil told ~ I have a very clear memory of this. Mr. 2 | 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 I I told him what you said, and he said that we got a deal.* | | { | i { 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 2 6 10 11 | | | | | 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 32 | 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 | i 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. f “ 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 1 - the canpany by letter two days later, and in that report [ ts 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 j 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 mm \ 33a * HI ; “| Settlement. I thought it was an extraordinary settlement 33 : 2 | offer. oe 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 $75,000, or continue the effort to renege on | the agreement. i i | I wrote, I think, both Mr. Thomas and Mr. Weil, at | a8 | least once, saying that I an bolding off on filing the motion | " pending that definitive statement, but don't take my silence ae - THE COURT: (Interposing.) Do you have a copy of | 7 the letter, Mr. Zifchak? | THE WITNESS: Yes, Your Scnor. | 20 MR. BECKMAN: Excuse me. This is a letter to the | 2) | carrier? = THE COURT: No. ‘This is a letter to Mr. Thomas and | 3 Mr. Weil that I am interested in. Se has answered a cuestion 24 F for me that's been in the back of sv mind. a | Rave you seen this? Ape (1) 33 ; 4 J ee Pa aiee-4 to Mr. Thomas. Give it all to Mr. Seckzan. After somebody is through with it, give it to the Clerk. another one. honor, in which I say that I have been advised — give to Mr. Seckman. which is Mr. Zifchak's letter of April ird, 19$:. | 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 i +) me what I intended to dc, and I told him that I was going to 1 | file suit. B 8 es 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: a ° 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! j i | @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: Be ° ~ ~ ke o~ ” 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. i BY MR. SECKMAN: Aox (1) 37 4 33 ' 38a iy 3 Me was there in the office? | i 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, 4 { 10 13 a 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? - © PF © 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? 2 A Twenty-nine. Q And are you currently exployed? oa + 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 40 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? t ‘| _ ton. to. i . Q And could you relate to the Court what your recollec-: ® | tion is of what transpired at that conference? a ‘ 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 | 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 i 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 i f = 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 © were to be offerez by aryone? 4 accept the figure of $75,000 i A No. me 2 10 13 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 j 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? 4 a 2s | A t did not even know the ficure. rt wasn't even Apx (i) 4§ 18 19 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 is a Oe 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 4 — 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 "i 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. a | Apx (1) $3 54 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, i reference to Kinkaid and Cessna, that in that case, Your flonor, j ‘ 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 i i! | 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 ta | 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 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 te * |) 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, i 9} subsequently, was the figure of $75,000, and I choose to dis- | an 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 i | the settlement is granted, and I think you need an order, | 16 || gentleman. Give me an order. i (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 V. « 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 a : ) ‘ 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 [$73,200] in return for which [appellant] would execute a general release and [the case} would be marked as settled and dismissed with prejudice"; 2) Om or about February 20, 1981, appellees, through counsel, "met the settlement demand and agreed =o pay to plain- tift the sum of (375,000]" and that appellanc, “through i counsel, confirmed that the case was settled"; (3) Trial of the case was scheduled for February 23, 1981, but "[flollowing the acreement sf che parties, all parties, cnrough their respective counsel, released all witnesses who nad (4) Om or about February 22, appellant's counsel advised appellees' counsel that “[appellant) desired to proceed ye to trial notwithstanding the settlement of the case which nad been 1 wae reached scwo days before. Counsel for all Darties were in agree- ment that a valid settlement had been effected and the case would “ not proceed to trial": 3) Om February 23, counsel and appellant net with Juége Jacop S$. Levin £ 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. 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' 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 © ” Eve “ . ty o C ba 3 clovesfoiw ‘my a” 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 4 3 a ov a Oo ra) . ™ © «4 . ® "” b wo te vw ie c ft Da] v a wn to ™ wo oO Oo] ” mn" Oo © ue © al vu n ~ Oo ”" uy - #8 cu a ” 0. a n aa] w ” oO. Q oO » . y 4 Co) ees | ee = 8 4 8 Se “ " wv uv 4 ” a et aw 4 vu c @ 3 n m » > w v oO oO ov GS oO a on 2] Oo ” v Ww | ™ > ” = & red ” 24 w" wn Aue it) &. 2 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 ' ~ 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) i } i } | H i | i | j ' ' | 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 | i 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 ei 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 3 t. 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 rI \AVIS RENT oA CAR SYSTEM, INC. . | JAN 2) t@2 } ; Defendants FOR ORINSE GEORGES COUNTE, Adin ' ! | | ‘ { ! i Calti. OF TREDINSUE SCURE i] | 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 ' { i ‘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 | j 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/ ij | 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 4 ‘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 HT | 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 y, | 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; i 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 i 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 | ij | 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 o- “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 ! i | 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 fo 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 i 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 il 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 1. Francis x, Quinn, Esquire 25 WOO? Lane Rockville, Maryland 20850; . John E, Beckman, Jr., Esquire 4. prepaid tors Henry Weil, Esquire Harvey Jacobs, Esquire One Central Plaza, No. 10 11300 Rockville Pike Rockville, Maryland 20852 ‘ i | | } ' $s j | ’ 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 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 v. JAMES HUBERT JARRELL . ANO : JAM 22 IDE? AVIS RENT A CAR SYSTEM, INC. : eee ne Defendants : OSM PRINCE SCF 2S COUNTY te | i 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 . “Owers Apx(iv) 23 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 have revisory power and contro) over such judgment. After the expiration of sucn period the court shall have revisory power and contro! over such judgment, only in case of fraud, mistake or irregularity. > 2. While this rule does not specifically speak of the trial court’s power | to stay the effect of juagment, that power is implicit and well recognized. Motions under Rule 625 a. are directed to the sound discretion of the court. Cromweli_v. Ripley, 11 Md. App. 173, 273 A.2d 218 (1971), Eshelman Motors Corp. | v. Scheftel, 231 Md. 300, 189 A.2¢ 818 (1962); and Eastcate Assocs. v. Aoper, 34 Md. App. 384, 367 A.2q 82 (1977). Moreover, that discretion should be - exercised liberally lest technicality triumon over justice. Weaver v. Realty Growth Investors, 38 Md. App. 78, 379 A.2d 193 (1977). Althougn a motion filed under Rule 625 a. does not automatically stay tne time for appeal, for example, Tiller v. Elfenbein, 205 Md. 14, 106 A.2d 42 (1954), tne power of the court to enter such an order was recognized in Apx(iv) 24 a 100a ais Hardy v. Metts, 282 Md. 1, 381 A.2d 683 (1978). Also see Hanley v. Stulman, {i> 216 Md. 461, 141 A.2d 167 (1958). oo) | Respectfully Submitted, { a x ‘ Ca © cantor Yan S. Powers Attorney for Plaintiff 4344 Farragut Street Hyattsville, Maryland 20781 277-3311 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 Stay | Effect was mailed postage prepaid to: | { 1. Francis X. Quinn, Esquire 4. Henry Weil, Esquire 25 Wood Lane Harvey Jacobs, Esquire’ | Rockville, Maryland 20850; One Central Plaza, No. 10S WwW. 11300 Rockville Pike | 2. Jonn E. Beckman, Jr., Esquire Rockville, Maryland 20850 | 7676 New Hampshire Avenue j Langley Park, Maryland 20783; 3. William N. Zifchak, Esquire } P.O. Box 550 yg | Upper Marlboro, Maryland 20772; and LE, ee Yan S. rowers Apx(iv) 25 10la ORDER Gh (Filed February 4, 1982) IN THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND IY VICTOR M. EISENBEISS, JR. Plaintiff v. Law No. 78,192 JAMES HUBERT JARRELL ss - FIRED) AVIS RENT A CAR SYSTEM, INC. s - Defendants FER 4 iK2 CLERK OF THE C:NCUIT COURT sin5E FOR PRINCE GECAGE'S COUNTY, MQ! Upon consideration of Plaintiff's Motion To Stay The Effect (ec Y adings. (i) Denial of Incorporation. A denial of the incorporation of the corporation alleged in the pleadings. (j) Denial of Execution of Written Instrument. A denial of the execution of any written instrument alleged in the pleadings. (k) Arbitration and Award. That the original cause of action had been merged by arbitration into an award. (1) Denial of Consideration. A denial of the consideration for a contract under seal. (m) Denial of Ownership of Motor Vehicle. A denial of the Ownership of any Apx(v) 10 l1l3a motor vehicle alleged in the pleadings. (amended Sept. 15, 1961). 2. Action ex Delicto. The following matters of defense must be specially pleaded in an action ex delicto: (a) Limitations. That the plaintiff's action is barred by the statute of limitations (except in an action of ejectment). (b) Pleas Puis Darrein Continuance. Any defense on the merits arising after suit brought. (c) Denial of Partnership. A denial of the partnership of the parties alleged in these pleadings. (d) Denial of Incorporation. A denial of the incorporation of a corporation alleged in the pleadings. (e) Denial of Execution of Written Instrument. Apx(v) 11 l14a A denial of the execution of any written instrument alleged in the plead- ings. (f) Denial of Ownership of Motor Vehicle. A denial of the ownership of any motor vehicle alleged in the pleadings. (g) Justification, Excuse, Discharge- Trespass. All matters of justification, excuse or discharge where the action is for tres- pass to real or personal property or to the person. (h) Truth-Libel-Slander Truth by way of justification in an action for libel or slander. (i) Property in Defendant or Third Person. That the property in the goods sought to be recovered is in the defendant or a third party. Apx(v) 12 115a Rule 552a, Maryland Rules of Procedure a. Motion for - Grounds to be Stated. In an action tried by a jury any party may move, at the close of the evidence offered by an opponent or at the close of all of the evidence, for a directed verdict in his favor on any or alt of the issues. Such motion shall state the grounds therefore. An objection on behalf of the adverse party to such motion shall be entered as of course. Rule 563a, Maryland Rules of Procedure. a. Motion 1. When to be Filed - 3 Days. Where a motion for a directed verdict made by a party at the close of all the evidence is denied then (1) within three days after the reception of a verdict, Such party may move to have the verdict and anu judamant .artaeetctbhinereun- sei Apx(v) 13 116a aside and to have judgment entered in accordance with his motion for a directed verdict, or (2) if a verdict was not re- turned, such party, within three days after the jury has been discharged, may move for a judgment 16 acturdence with his motion for a directed verdict. Rule 610a, Maryland Rules of Procedure. @. Motion for. 1. When and by Whom Made. In an action, a party asserting a Claim, whether an original claim, counter- Claim, cross-claim, or third-party claim, Or a party against whom a claim is as- serted, may at any time make a motion for a summary judgment in his favor as to all or any part of the claim on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. Apx(v) 14 117a 2. Effect on Time for Pleading. A motion for summary judgment does not affect the time for pleading unless the court orders otherwise. 3. Use of Affidavits. The motion must be supported by affi- davit when filed with the pleading assert- ing the claim or before the adverse party has filed his initial pleading to it; otherwise the motion may be made with or without supporting affidavits. Unless the court shall otherwise order for good cause shown, where the motion is required to be supported by affidavit and the opposing party desires to controvert any statement of fact therein, he must file an affidavit or deposition in support of his answer to the motion. Such affi- davit or deposition shall be filed before or at the time of filing his initial Apx(v) 15 118a pleading unless the time for filing is extended pursuant to section a of Rule 309. The failure to file such opposing affidavit or deposition shall constitute an admission for purposes of the motions of all statements of fact in the affidavit of the moving party, but shall not consti- tute an admission that such motion or affidavit is legally sufficient. In all other cases the adverse party may file an opposing affidavit at or before the time of the hearing. 4. In Lieu of Hearing on Bill and Answer. Cases formerly heard on bill and answer may be heard under this Rule. Rule 1231, Canon of Judicial Ethics Aili. Kinship or Influence - 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 Apx(v) 16 i —s—s—sssCCCiCsS 119a 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 influ- ence of any party or other person. He Should not testify voluntarily as a character witness. Rule 1231, Canon of Judicial Ethics AZIFI Inconsistent Obligations - A judge should not accept inconsistent duties; nor incur obligations, pecuniary or other- wise, which will in any way interfere Or appear to interfere with his devotion to the expeditious and proper administra- tten of his official functions. Rule 1231, Rules of Judicial Ethics, Rute 13. A judge under the Canons and Rules shall mean a judge of the Court of Appeals, of the Court of Special Appeals, of the Circuit Court for the Counties, Apx(v) 17 120a of the Supreme Bench of Baltimore City, of the District Court, of the Orphans' Courts and all other judges elected or subject to election, and those appointed if the full term of the particular office is for not less than four years. Rule 1231, Rules of Judicial Ethics, Rule 14 a. These Canons and Rules apply to each judge of the Court of Appeals, the Court of Special Appeals, the Circuit Courts for the Counties, the Supreme Bench of Baltimore City, the District Court and Orphans' Courts, who has not resigned, retired, or been removed from office. b. These Canons and Rules apply to each judge of one of those courts who has resigned or retired, if he is subject to and approved for recall for temporary service under ‘Article IV, Section 3A of the Constitution, except that: Apx(v) 18 l2la (i) Canon XXIV (Business Promotions and Solicitations for Charity), Canon XXV (Personal Investments and Relations) - the first two paragraphs, Canon XXVI (Executorships and Trusteeships), Canon XXIX (Candidacy for Office), Canon XxX (Private Law Practice) - the last para- ereph, Rutes 4, 6, &, 9 and 10 do not apply to any such former judge, and (ii) Canon XXIII (Inconsistent Obliga- tions), Canon XXVII (Partisan Politics), and Rule 3, except for its last clause, do apply to any such former judge, but only during a period during which he has been designated for temporary service. c. Rule 8 applies to any judge of a court named in section a of this Rule, who has resigned or retired in any cal- endar year, with respect to the portion of that calendar year prior to his re- Apx(v) 19 122a signation or retirement. Apx(v) 20 123a APPENDIX (vi) Authorities Relied Upon Below Cases: Agnew v. Bank of Gettysburg, 2 H&G. 478 (1828) Attorney General v. Johnson, 282 Md. 274, 385 A.2d 57 (137G) Q00. dism. 99 S.CT. G0, S29 U.3. 805, $8 lL. Ed. 24 $7 Beahm v. Shortall, 279 Md. 321, 368 A.2d /7) Bettum v. Montgomery Federal Savings and Loan Ass'n, 262 Md. 360, 277 A.2d 600 (19717) Brock v Sorrell, 15 Md. App. 1, 288 A.2d 640 (1972) Cherthof v. Weiskittel, 251 Md. 544, 248 A.2d 373 (1968) Clark v. Elza, 286 Md. 208, 406 A.2d 922 (1979) Conklin v. Schillinger, 255 Md. 50, 257 A.2d 187 (1969) DiGrazia v. County Executive, 43 Md. App 580, 406 A.2d, 660 979), rev'd on other grounds, 288 Md. 437 A.2d 119] (1980) Fertitta v. Herdon, 175 Md. 560. 3 A.2é ) Forest Hill Permanent Bldg. Ass'n of Harford County v. Fisher, Md. 666, 118 2) Apx(vi’ 1 l24a Funger v. Mayor of Somerset, 244 Md. 141, 223 A.2d 168 (1966) Grain Dealers Mutual Insurance Co. v. Buseirn, <4) Md. 58, 2i5 A.2d 467 (1965) Holloway v. Chrysler Credit Corp., 251 Md. 65, 246 A.2d 265 (1968) Hoover v. Williamson, 236 Md. 250, 203 A.2d 861 (1964) Houston v. Lloyd's Consumer Acceptance Corp. 241 Md. 210, 215 A.2d 192 (1965) Impala Platinum, Ltd. v. Impala Sales (U.o.m.i. Ihe. 263 BG. 256, 309 A.2d 887 (1978) Kagel v. Tatten, 59 Md. 447 (1883) Kinkaid v. Cessna, 49 Md. App. 18, 430 A.2d 88 (1981) Knee v. Baltimore City Pass. Ry. Co., 87 Md. 623, 40 A. 890 (1898) Krick v. Dougherty, 266 Md. 97, 291 A.2d 648 (1972) Mass Transit Administration v. Miller, 271 Md. 250, 315 A.2d 772 (1974) McCullough v. Franklin Coal Co., 21 Md. 256 (1863) Merchant's Mtg. Co. v. Lubow, 275 Md. 208, 339 A.od 664 (1975) Apx(vi) 2 125a Metropolitan Mtg. Fund, Inc. v. Basiliko, 288 Md. 25, 415 A.2d 582 (1980) Miller v. Michalek, 13 Md. App. 16, 281 Rica tl? Utsit) Montgomery Ward & Co., v. McFarland, 21 Md. App. 501, 319 A.2d 824 (1974) Peck v. Baltimore County, 286 Md. 386, 410 A.2@ f (t$/3) Pullman v. Ray, 201 Md. 268, 94 A.2d 266 (1953) Robinson v. Heil, 128 Md. 645, 98 A. 195 (1916) Stockton v. Fry, 4 Gill 406 (1846) Thompson v. Giordano, 16 Md. App. 264 295 A.2d 881 (1972) Vanhook v. Merchant's Mut. Ins. Co., 22 ma. ABD. 22, get A.2e@ S40 (1974) Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2@ G25 (Sid) Wheaton Lumber Co. v. Metz, 229 Md. 78, 181 A.2d 667 (1962) Constitutional Provisions: Amendment VII, Constitution of the United States Apx(vi) 3 126a Article IV, Section 18, Constitution of Maryland Article 23, Maryland Declaration of Rights Statutes: Courts and Judicial Proceedings, Section 1-210(a), Annotated Code of Maryland Courts and Judicial Proceedings, Section 3-401 et seq., Annotated Code of Maryland Rules: Rule 12, Federal Rules of Civil Procedure Maryland Rules of Procedure meus Jets Jee, Jes, 342, 346, 408, 420, Nee, Set, Soe, S35, S32, 563, SET, S72. Gig, G25, B71, 107%, 1231. Canon of Judictal Ethics, XIII and XXIII. Rules of Judicial Ethics, Rule 13 and 14. Texts and Treatises: 47 Am. Jur. 2d 628 Jury Section 3 96 Am. Jur. 2d Motions, Rules, and Orders, Section 5 Black's Law Dictionary CUS Accord and Satisfaction, Sections 47-49 CJS Compromise and Settlement Section 54 Apx(vi) 4 127a CUS Juries, Section 9 MLE Compromise and Settlement Section 2 MLE Juries, Section 34 Poe-Pleading (6th ed), Section 621 Poe-Practice (6th ed), Section 347 A Apx(vi) 5 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1025%3A1. Public record. Not legal advice.