In Zadnik v. Ambinder, the Appellate Court revisits the Dead Man’s Statute and Choice of Law Issues.
In Zadnik v. Ambinder, ___ Md. App. ___ (2023), the Appellate Court recently reviewed whether a trial court should have recognized a common law marriage from Pennsylvania, so to give the plaintiff standing to bring a wrongful death lawsuit in Maryland. The opinion offers key lessons for appellate and trial practitioners, in choice of law, the dead man’s statute, and preservation.
In the Circuit Court for Baltimore City, the plaintiff Thomas Zadnik filed a wrongful death and medical negligence action against Dr. Richard F. Ambinder, who treated his longtime partner Margaret Conway before she died of colon cancer. As a wrongful death action may be brought by a spouse,[i] Mr. Zadnik claimed that he and Ms. Conway privately exchanged wedding vows in their Pennsylvania home. Dr. Ambinder moved to dismiss for lack of standing, and introduced nearly 200 pages of exhibits to challenge that Mr. Zadnik and Ms. Conway did not share a common law marriage, because they did not hold themselves out as married. These exhibits included affidavits from family members denying knowledge of the marriage, Ms. Conway’s death certificate that identified her marital status as “divorced,” and her obituary that identified Mr. Zadnik as her life partner. Mr. Zadnik opposed the motion, relying upon his own affidavit to describe his unwitnessed marriage ceremony. Following a hearing, the Circuit Court granted summary judgment, reasoning that the plaintiff failed to present sufficient evidence that he and Ms. Conway held themselves out to the public as husband and wife.
On appeal, the Appellate Court explained that Maryland will “recognize[] marriages that are valid where contracted”[ii] including Pennsylvania, where prior to 2005 a common law marriage could be established in one of two ways, by clear and convincing evidence: (1) verba in prasenti (by a verbal exchange of words), or (2) in the absence of vows, then constant cohabitation and reputation in the community as a married couple can create a rebuttable presumption that a marriage exists.[iii] In support of the trial court’s summary judgment, Dr. Ambinder’s brief to the Appellate Court characterized Mr. Zadnik’s testimony of his and Ms. Conway’s private ceremony as “self-serving and uncorroborated hearsay testimony” and argued that it was inadmissible under Pennsylvania’s Dead Man’s Statute.
On the Dead Man’s Statute, the Appellate Court refocused the issue from Pennsylvania to the Maryland counterpart, § 9-116 Cts. & Jud. Proc. Art., Md. Code. While Pennsylvania precedent governs whether Mr. Zadnik and Ms. Conway’s relationship amounted to a common law marriage in that state, it is the law of the forum state (Maryland) that controls the admissibility of evidence and other procedural issues. Section 9-116 precludes “[a] party to a proceeding by or against a personal representative, heir, devisee, or legatee” from testifying as to “any transaction with or statement made by the dead . . . person” in a case that may increase or diminish the estate of the decedent. But a wrongful death action is not an action to increase or diminish an estate. Rather, it is a private action solely for the spouse or other person bringing the claim. As a result, the Dead Man’s Statute was not applicable to the wrongful death action and did “not preclude Mr. Zadnik’s verba in praesenti testimony.”[iv]
In a footnote, the Appellate Court declined to consider Dr. Ambinder’s fall-back argument – that Mr. Zadnik’s testimony was inadmissible hearsay – because the issue was not sufficiently briefed, citing Rule 8-522(f) (“The Court may decline to hear oral argument on any matter not presented in the briefs.”). Dr. Ambinder’s brief did describe Mr. Zadnik’s testimony as “self-serving and uncorroborated hearsay,” but did not go further to explain why he believed the testimony was inadmissible hearsay. Without deciding the hearsay issue, the court observed that the exchange of vows is a verbal act that is “not likely hearsay,” citing Garner v. State, 414 Md. 372 (2010).[v]
Finally, having confirmed that Mr. Zadnik’s own testimony was admissible under Maryland law, the Appellate Court returned to the substantive law governing common law marriage in Pennsylvania, and observed that in several prior Pennsylvania cases, the decedent’s spouse’s own testimony alone was sufficient to establish the marriage’s existence. In the end, the trial court’s error was framing evidence of a Pennsylvania common law marriage to be solely based on a reputation as a married couple, or lack thereof. To the contrary, when Pennsylvania recognizes a common law marriage based upon the parties’ exchange of vows alone, the reputation evidence is irrelevant. Mr. Zadnik’s affidavit, in which he described the exchange of vows with Ms. Conway was sufficient to create a dispute of material fact and avoid summary judgment. The case was reversed and remanded.
[i] Md. Code, Cts & Jud. Proc. § 3-904(a)(1).
[ii] Zadnik, slip op. at 4, quoting Blaw-Knox Constr. Equip. Co. v. Morris, 88 Md. App. 655, 669-71 (1991).
[iii] Id. at 5.
[iv] Id. at 5.
[v] Id. at 5 n.10.
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