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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
that adequately lay the proper foundation for the document's admission into evidence. Authenticity and relevancy of the document must be shown. Attaching documents to a motion for summary judgment without the necessary affidavit is no more acceptable than standing up in open court and attempting to offer the same documents into evidence without a witness or a stipulation." P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary 332 (2d ed. 1992) (citation omitted). See also Vanhook v. Merchants Mut. Ins. Co., 22 Md. App. 22, 26-27, 321 A.2d 540, 542-43 (1974) (listing " ome of the ways" to place facts before the court on summary judgment to be affidavits, depositions, answers to interrogatories, admissions of fact, stipulations or concessions and, under some circumstances, pleadings). The unsworn statement of a witness is not, as Respondents contend, an unlisted, but appropriate, form of placing evidence before the court over objection.
Respondents also argue that no affidavit from Williams is required because the summary judgment rule states that " he motion shall be supported by affidavit if filed before the day on which the adverse party's initial pleading or motion is filed." Md. Rule 2-501(a). Respondents conclude that, inasmuch as this action was at issue when their summary judgment motion was filed, no affidavit from Williams was required. The purpose of the "affidavit" requirement at that early stage is to place facts before the court where, otherwise, there would be no record. It does not follow, however, from the affirmative statement of the requirement in Rule 2-501(a) that an affidavit is never required, under general summary judgment practice, in stages of the action that fall outside of the period described in the sentence quoted from Rule 2-501(a).
The next reason assigned by Respondents for considering Williams's unsworn statement is that it was attached to Respondents' answers to interrogatories. From a procedural standpoint, Respondents' answers to interrogatories were not part of the record in the circuit court. See Rule 2-401(d)(2) (discovery material ordinarily is not to be filed with the court). The fact that Respondents have included the answers to interrogatories as an appendix to their brief in this Court does not render the answers part of the official record. From a substantive standpoint Respondents' argument also fails because a party cannot convert hearsay material into evidence admissible at trial by the simple expedient of furnishing the hearsay material to the adversary in discovery.
Finally, Respondents say that the Petitioner waived objection to considering Williams's statement on summary judgment because the document's "essential contents were made part of the record in the depositions of" Swift and Farmer without objection at those depositions. The defect in Williams's statement, for use on summary judgment, is the lack of an affidavit. This defect is unrelated to use of the statement to examine other potential witnesses on deposition. Further, Petitioner was relieved of any requirement to object at deposition by Rule 2-415(g) ("An objection to the competency of a witness or to the competency, relevancy, or materiality of testimony is not waived by failure to make it before or during a deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time."). At the Swift and Farmer discovery depositions, Respondents could not cure the hearsay character of the factual material in Williams's statement, in that form, by examining the deponents who had no personal knowledge of that factual matter.
We hold that the Williams statement was not part of the record properly considered on summ
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