Betsuamlak v. Shimhalal

BERHANE BETSUAMLAK v. GHERBREZGHI SHIMHALAL

No. 1409

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

November 9, 2017

Circuit Court for Montgomery County

Civil Case No. 410558

UNREPORTED

Berger, Nazarian, Arthur, JJ.

Opinion by Berger, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This appeal arises from a dispute between Ghebrezghi Shimhalal (Shimhalal) and his ex-brother-in-law, Berhane Betsuamlak. In 2008, Betsuamlak emigrated to the United States. Prior to and during his travel, Shimhalal and his wife (Betsuamlak's sister) transferred thousands of dollars to him to cover Betsuamlak's expenses. Shimhalal claims the money transferred to Betsuamlak was a loan that was to be repaid, and Betsuamlak claims the money was merely a gift from family.

Betsuamlak, as appellant, and Shimhalal, as cross-appellant, ask us to review primarily four issues, which we have rephrased as follows:

1. Whether the circuit court erred by denying Betsuamlak's motion to dismiss based on the statute of limitations.

2. Whether the circuit court erred by allowing a certified business record to remain in evidence, where appellee's counsel failed to send appellant a signed certified copy of the record at least ten days before trial.

3. Whether the circuit court's ruling was supported by sufficient evidence.

4. Whether the circuit court erred in its finding that the putative debt was "marital property" and entering a judgment against Betsuamlak and in favor of Shimhalal for half of the total amount the court found to be owed.

For the reasons explained below, we affirm the circuit court's ruling as to Betsuamlak's liability for money transferred to him by Shimhalal. Nevertheless, we vacate the award of damages and remand with instructions to enter an award of $16,033 in favor of Shimhalal and against Betsuamlak.

FACTS AND PROCEDURAL HISTORY

In 2008, Betsuamlak traveled alongside Shimhalal's sister, from Eritrea, Africa to the United States. The journey was apparently an expensive one as they required the assistance of an escort to travel from Sudan to South America before ultimately arriving in the United States and reuniting with Shimhalal and Yergalem Betsuamlak -- Shimhalal's then-wife and Betsuamlak's sister -- in Virginia. The Shimhalals transferred thousands of dollars to Betsuamlak throughout his travel to the United States. At the same time, Betsuamlak and Shimhalal communicated via email, the record of which was translated into English and entered into evidence in the court below.

On August 4, 2008, Shimhalal wrote to Betsuamlak, "Let me know after you reach an agreement with the guy who will be escorting you about how much money you need for yourself and [Shimhalal's sister]." The exchange of e-mail between Betsuamlak and Shimhalal is pertinent to the dispute between the parties. Between August 4, 2008 and August 31, 2008, Betsuamlak and Shimhalal exchanged the following messages in pertinent part:

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 4, 2008

[W]e have discussed with the guy and he told us like this: " because the time is high season now, the ticket has increased to $4,000." At any rate, he also told us that he would be giving us some discount. Therefore, if you include "show money," as well as the cost from Honduras to Mexico and from Mexico to the border, overall I estimate it to be as much as $7,000. This is for one person. Send from there $14,000 total. We urge you to send us this money. Meanwhile, it is our hope that God will help us to send you the news when we get to America. Now,the traffic is very good. People, who went on Friday morning, arrived in Mexico on Monday. If you send us the money quickly now, we will depart on Friday. I mean, this weekend. So, do not make any spelling mistake when you are sending though:

Fikadu Shimhalal Tikue

Berhane Betsuamlak Andetsion.

Meanwhile, may God help us to pay you back this money after we get there safely. Peace be with you all. Bye.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 5, 2008

Are you now in San Paulo? I just wanted to be sure. You will be receiving money by Western Union.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 5, 2008

You told me that you would depart on Friday, am I right? How is it possible before the arrival of your passport? Clarify it for me.

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 5, 2008

Our passports came on Saturday evening from the South. Since it came through and by the name of Solomon, he received them on Sunday. Therefore, he does not need to give it to us; meaning he starts his work where he is. So for now, what's left is only how to get the money.

We are in San Paulo, near the area where Samuel was staying. In fact, it has now been ten days since we got to San Paulo. For now, stay well for the rest of the week. Write me if you need any other information.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 6, 2008

In regards to the matter that you informed me, please accept the following message:

1. Refer to the following reference numbers to get the money from Western Union in your name:

217-721-6092 $2,950 (U.S. Dollar)

015-715-1201 $2,950 (U.S. Dollar)

[ . . . ]

In addition, we will send you the remaining amount tomorrow. However, call me when you receive this.

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 6, 2008

[]It is okay. I will tell you when I receive the money. So, good luck. I will call you soon. Bye for now.[]

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 6, 2008

How are you doing? Hope you are doing well. We just received all the money you sent; so do the same for the rest justlike the previous one. We are done on Friday. So, take care and be well.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 7, 2008

Today, we will be sending $1,000 for you and $1,000 for [Shimhalal's sister]. You will be receiving it today sometime between 1:00 PM and 2:00 PM of your time zone. I will be calling you. So, stay around.

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 7, 2008

They have already given us the money. We are just done for now. The appointment is for Friday and we will call you when we are ready to depart. Meantime, have a peaceful rest of the week.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 8, 2008

Good luck!

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 10, 2008

[W]e are doing just fine. Nevertheless, we still did not depart. Now he told us for Tuesday. In any case, the flight is on every Friday and Saturday. For now, it looks like we will bedeparting the following Friday. In the meantime, if there is anything new, I will call you.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 11, 2008

Let us know when you are ready to depart.

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 16, 2008

We have now safely reached Honduras. Right now, meaning Saturday at noontime, we will also be departing for Guatemala. Therefore, if I have the time I will call you while I am in Guatemala; otherwise, I will call you from Mexico.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 18, 2008

Have a nice trip!

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 25, 2008

The telephone number of our hotel, Algarcas Hotel, is 626881. You will need to add the area code yourself.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 26, 2008So, let me know if you are planning to stay at this hotel so that I may call you. Also, include your room number.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 28, 2008

Okay, good. A guy who goes by the name of Yonas has given me $500. On the other hand, regarding the other $500 Philemon informs me that another girl will give me from where he is. However, as of now, I have not received it yet. How much did you give the girl? Let me know when you get into your hotel.

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 28, 2008

So, I just gave $500 to the girl and $500 to the guy. We gave them a total of $1,000. So you will get back the $1,000. For anything else, leave it up to us. We will start out without making any payment. For if we pay beforehand, it is possible they may abandon us along the way. We will not be paying, here. For now, I will let you know our hotel number.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 28, 2008

Good, okay! As I informed you, the guy who is called Philemon has still not given me the money. Therefore, you need to tell the guy/girl to give it to me. Be well!

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 28, 2008

Okay, I will tell him. The address we are in is in Ray Hotel . . . . We are in room number 401.

From: Ghebrezghi Shimhalal

To: Berhane Betsuamlak

Date: August 28, 2008

The form that I am sending you is an Asylum Application for you and [Shimhalal's sister]. Just print it out and I will call you to let you know how to complete it.

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 30, 2008

I have already printed out the form. In addition, we have moved to another hotel to Nuevo Leon.

From: Berhane Betsuamlak

To: Ghebrezghi Shimhalal

Date: August 30, 2008

We have "already" acquainted ourselves with the form. Now, we will be contacting the smuggler.[¹] [ . . . ] Meanwhile, our address is in Nuevo Hotel and the telephone number is . . .

A bench trial was held on August 3, 2016, during which Shimhalal, Betsuamlak, and Yergalem Betsuamlak testified regarding the existence of a loan agreement. According to Shimhalal's testimony, he or his wife, Yergalem, transferred various sums of money to Betsuamlak prior to his departure for South America and then via Western Union while Betsuamlak and Shimhalal's sister traveled through Brazil, Mexico, and Texas. Shimhalal...