Bijou v. Young-Battle

JAMES A. KENNEY, III, Judge (retired, specially assigned). Described by appellants as a “procedural hot potato,” this appeal directs our focus to the 1998 Committee note to Maryland Rule 2-341 (b) and a post-verdict motion filed in this Court for leave to amend the ad damnum clause to reflect the damages awarded by a jury. Appellee, Adrienne Young-Battle (“Young-Battle”), sued appellants, Leila Bijou and Michael Bijou (“the Bijous”), in the Circuit Court for Prince George’s County, to recover damages for injuries she sus ²⁷² tained during a confrontation with the Bijous’ labrador retriever. A jury awarded Young-Battle damages that exceeded the amount requested in the Complaint.

After entry of the judgment in the amount of the jury award, and the denial of their post-trial motions, the Bijous appealed to this Court. With that appeal pending, Young-Battle filed a motion, in this Court, requesting leave to amend the ad damnum clause of her Complaint to reflect the jury award. This Court, in an unreported opinion, remanded the case to the circuit court to explain the basis for its denial of the post trial motions and to consider whether Young-Battle’s motion to amend was timely. The circuit court found the motion timely, and this appeal followed.

Appellants present the following question for our review: Is a trial court obliged to reduce a verdict which exceeds the amount claimed in the ad damnum clause of the Complaint, when the Plaintiff fails to amend that clause pursuant to Maryland Rule 2-341 (b) prior to the entry of judgment? For the following reasons, we shall affirm the judgment against appellants for $250,000.00, subject to a release of the excess above $250,000.00 being filed in this Court. FACTUAL AND PROCEDURAL BACKGROUND On May 3, 2002, the Bijous’ dog bit Young-Battle’s hand while she was attempting to drive the dog from her property. When the dog had come onto Young-Battle’s property on several prior occasions, she had successfully driven the dog away without incident.

Young-Battle filed a complaint against the Bijous on March 4, 2003, seeking compensatory damages in the amount of $250,000.00, plus interest and costs. The First Appeal The circuit court granted summary judgment in favor of the Bijous on January 28, 2004. Young-Battle filed a motion to alter or amend the judgment, requesting “the [cjourt to provide a basis for [its] decision, including any findings of fact and conclusions of law.” The court denied Young-Battle’s motion, ²⁷³ and Young-Battle appealed to this Court. In an unreported opinion, a panel reversed the grant of summary judgment and remanded the case to the circuit court for further proceedings. 1 The Second Appeal On remand, a jury returned a verdict in favor of Young-Battle in the amount of $504,480.00.

The Verdict Sheet reads as follows: VERDICT SHEET 1. Do you find by a preponderance of the evidence that [the Bijousj were negligent on May 3, 2002 and that their negligence was the proximate cause of the injury to [Young-Battle]? YES 2. Do you find by a preponderance of the evidence that [Young-Battle] was negligent on May 3, 2002 and that her negligence was the proximate cause of the injury to [Young-Battle]?

NO 3. Do you find by a preponderance of the evidence that [Young-Battle] assumed the risk of injury on May 3, 2002? NO 4. What damages, if any, do you award to [ ] Young-Battle for: a) medical expenses $ 27,100 b) Loss of earnings, and earnings incurred in the past $ 27,380 c) Loss of earnings or earning capacity reasonably probable to be expected in the future $311,000 d) Non-economic damages sustained in the past and reasonably probably to be sustained in the future.

All damages which you may find for pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other non-pecuniary injuries are noneconomic damages. $130,000 ²⁷⁴ Total $450,000 2 The Bijous filed a motion for a new trial or in the alternative a remittitur, in which they asserted that the judgment should be remitted to $250,000.00, the amount Young-Battle requested in the ad damnum clause of her Complaint. 3 The circuit court denied the motions, and the Bijous appealed on December 20, 2005. Five months later, on May 22, 2006, Young-Battle filed a motion in this Court for leave to amend her Complaint to conform the ad damnum clause to the damages awarded by the jury. In an unreported opinion, the panel remanded the case to the circuit court for “(1) articulation of its ruling on [the Bijous’] motion for a new trial or remittitur; (2) consideration of whether [Young-Battle’s] motion to amend [was] timely; and (3) modification of the verdict to reflect damages for past medical expenses of $4,168.56.” 4 The panel explained that “the [circuit] court did not articulate a reason for its denial of [the Bijous’] motions,” and; therefore, it was “not possible for [it] to discern an appropriate exercise of discretion.” Bijou II, slip op. at 10. The Court of Appeals denied the Bijous’ petition for certiorari. 5 This Appeal On remand, the circuit court, following a hearing, issued a written opinion explaining that it had denied the motion for a new trial or remittitur because it “did not find the amount of ²⁷⁵ the jury verdict excessive or grossly excessive and the verdict did not shock [its] conscience.” The court reasoned that “[Young-Battle’s] job as a graphics artist involved fine motor movements of the hand which was mangled by this incident,” and “the compensation determined by the jury to be appropriate in this circumstance did not appear to the [c]ourt to be excessive in light of the evidence of permanent impairment in this case.” The circuit court also found that Young-Battle’s motion to amend her Complaint was timely because “[Maryland] Rule 2-341(b), as amended in 1998, permits the filing of a motion to amend a complaint to increase an ad damnum clause to conform to a jury verdict,” and that “[t]here [i]s no requirement that the motion to amend be filed prior to the [c]ourt’s consideration of the Motion for a New Trial or Remittitur.” According to the court: Amendment of pleadings under Rule 2-341 (b) may be made only with leave of court.

It is the trial court’s discretion, in the first instance, which determines whether such leave may be granted. The standard for review of such a request is whether the failure to amend or the amendment itself would prejudice the defendant, which, in the [cjourt’s view, means that the defendant would have been hindered in presenting a defense. After close observation of the trial, and after consideration of the material presented to the [c]ourt following the trial, the [c]ourt believes that [the Bijous] were not prejudiced by the lack of an amended ad damnum clause[] because the defense presented would have been the same no matter what the ad damnum had claimed. DISCUSSION The Bijous assert that the circuit court was required to grant their motion for remittitur because Young-Battle failed to make a motion to amend the ad damnum to conform to the jury verdict before the circuit court entered final judgment.

They argue, citing Harris v. Jaffray, 3 Har. & J. 543 (1815), ²⁷⁶ that “[i]t has long been the law of this State that if a plaintiff recovers a verdict in excess of the damages set forth in a Complaint, a remittitur by the trial court is proper.” They also argue that Rule 2—341(b) does not apply to the appellate courts, and this Court does not have the authority to entertain a motion to amend the ad damnum. Young-Battle argues that neither Rule 2-341(b) nor the Committee note imposes a specific deadline for filing a motion to amend the ad damnum, and, when the judgment was challenged on appeal, she could make a motion to amend the ad damnum at the appellate level. She also argues that the circuit court, on remand, could grant the motion. Because the ad damnum does not inherently limit the power of the court to enter a judgment that exceeds it, Young-Battle contends that failure to amend the ad damnum clause does not require the trial court to grant a remittitur and reduce a verdict that exceeds the ad damnum.

The Court of Appeals considered a post-verdict motion to amend an ad damnum clause in Falcinelli v. Cardascia, 339 Md. 414 , 663 A.2d 1256 (1995). In Falcinelli , plaintiff sued defendant for injuries suffered in an automobile accident, claiming damages of $100,000.00. Id. at 416 , 663 A.2d 1256 . The jury returned a verdict of $205,187.08 for reimbursement of medical expenses, lost wages, and noneconomic damages.

No objection was made to the verdict prior to discharge of the jury. The clerk noted the verdict on the docket and entered judgment on the day that the verdict was returned. Id. at 47, 663 A.2d 1256 . Within ten days of the entry of the verdict, defendant moved for a judgment notwithstanding the verdict, for a new trial, or, in the alternative, for a remittitur.

Id. In support of a remittitur, defendant argued that the verdict was excessive, stating that “[i]t may be that the Plaintiff would agree inasmuch as the figure of $100,000 was penned in her Complaint.” Id. In response to defendant’s motions, plaintiff filed a motion for leave to amend the Complaint, together with a proposed ²⁷⁷ Amended Complaint with an ad damnum of $205,187.08. Id.

Defendant responded that “[tjhere is no allowance for the amending of the ad damnum clause to a Complaint after a trial on the merits by Rule of Court. Nor is such permitted through case law.” Id. at 418 , 663 A.2d 1256 . The circuit court denied the defendant’s motions and granted plaintiff’s motion for leave to amend. Within ten days of this action, defendant moved for reconsideration.

The circuit court denied the motion for reconsideration on May 24 and defendant noted his appeal to this Court on June 22. Id. at 419 , 663 A.2d 1256 . The Court of Appeals granted certiorari before review by this Court. Defendant contended that, when the verdict exceeds the ad damnum, the defendant, on a timely application to the trial court, is entitled, as a matter of law, to a remittitur of damages that exceed the ad damnum.

Plaintiff contended that Maryland Rule 2-341 allowed a post-verdict amendment to the pleadings at the trial court level because the rule specifies no time limit for making amendments. Id. Notably, plaintiff also argued that the only issue before the Court was the denial of defendant’s motion for reconsideration, as the time for noting an appeal from the original denial of his motion for a new trial or remittitur had passed. Id. at 420 , 663 A.2d 1256 .

Defendant responded that the date of final judgment was the date the circuit court granted plaintiffs motion to amend the ad damnum clause, as it was the amendment that authorized the additional $105,187.08. Id. at 421 , 663 A.2d 1256 . To resolve this issue, the Court considered “whether the ad damnum clause, as a matter of substantive law, so limits the extent of a jury’s verdict that a judgment, entered by the clerk pursuant to a rule regulating only procedure, is ineffective as to any excess in the judgment over the ad damnum.” Id. at 422 , 663 A.2d 1256 . In discussing the limitation on the jury’s verdict imposed by the ad damnum clause, the Court reviewed relevant case law: The rule that damages assessed may not exceed damages claimed is quite old.

In the earliest decision in this Court, ²⁷⁸ Harris v. Jaffray, 3 H. & J. at 546 , counsel for the defendant cited, inter alia, Cheveley v. Morris, 2 W.Blk.Rep. 1300, 96 Eng.Rep. 762 (Exchq.Ch.1779), and Wray v. Lister, 2 Stra. 1110, 93 Eng.Rep. 1064 (K.B.1739). Both cases apply the rule, but neither states its underlying reason. Both cases refer to decisions in Yelverton’s Reports of cases decided in King’s Bench during the reign of James I. Theoretically a verdict in excess of the amount “laid in the declaration” and the amount claimed might be brought into conformity by raising the ad damnum as well as by reducing the verdict. But, from 1785 through at least June 30, 1984, when former Rule 320 was replaced by Rule 2-341, post-verdict amendments were not part of Maryland practice.

Section IV of Chapter 80 of the Acts of 1785, which otherwise conferred full power and authority on the courts of law to allow amendments, limited the exercise of the power to permit amendments to those sought to be made before verdict. Id. at 424-26, 663 A.2d 1256 . The Court concluded that, “[i]n any event, the historical fact that a remittitur has been considered appropriate as to the excess of a verdict over the ad damnum does not demonstrate any substantive invalidity in a judgment that includes that excess.” Id. at 426 , 663 A.2d 1256 . Citing Sullivan v. Jordan, 310 Mass. 12 , 36 N.E.2d 387 (1941), the Court explained: The issue [in Sullivan ] was whether a garnishment action against the automobile liability insurer of the judgment debtor had been brought within the governing one year period of limitations.

Id. at 14 , 36 N.E.2d 387 . The insurer contended that the period began on the expiration of the time for appeal following a finding assessing damages against the insured in the underlying motor tort case. Id. The plaintiff contended that the limitations period began to run when the plaintiff filed a waiver of the excess of the damages over the ad damnum and the clerk entered a judgment in the amount of the ad damnum.

Id. Conclud ²⁷⁹ ing that the earlier date triggered limitations, the court gave the following analysis: 279 “There is no suggestion that the assessment of damages was due to accident or mistake or that a judgment following that finding was not the judgment that the court intended to render. Such a judgment was erroneous in that it did not conform to the amount claimed in the writ, but the defect resulted from an error committed by the court while acting within its jurisdiction, rather than from a finding that the court was without power to make. Accordingly, it has been held that a judgment in excess of the ad damnum is not void but voidable.

The defect could have easily been corrected by an amendment to the writ, increasing the ad damnum. No such step was taken. A judgment which at the most is only voidable stands until it is modified, vacated or set aside in direct proceedings brought in some one of the various methods provided by law to accomplish the purpose.” Id. at 426-27, 36 N.E.2d 387 (quoting Sullivan, 36 N.E.2d at 389 ). The Court determined that “the ad damnum does not inherently limit the power of the jury to render a verdict and does not inherently limit the power of the court to enter a judgment.” Id. at 427, 36 N.E.2d 387 .

The Falcinelli Court then addressed the evolution of case law and rules leading to the present day Rule 8—604(c)(2). Id. The statutory predecessor to Rule 8-604(c)(2), Chapter 161 of the Acts of 1811, was “a response to Harris v. Jaffray,” in which the Harris Court explained: In the trial court the plaintiff, after verdict and before judgment, could release the excess. Id. at 546-47 .

In the trial court, if an excess judgment were rendered on the verdict, the plaintiff could tender a remittitur during the same term of court, and the trial court could “enter a judgment for the amount of the damages charged in the declaration.” Id. at 547 . “But if a judgment is entered upon the verdict, no release, or other act of the plaintiff, can give validity to that judgment, but on an appeal or writ of error, it must be reversed... . ” Id. ²⁸⁰ Falcinelli, 339 Md. at 427-28 , 663 A.2d 1256 (quoting Harris, 3 H. & J. at 546-47 ). Responding to Harris , the General Assembly enacted Chapter 161, Section 3, of the Acts of 1811, which provided an option to a plaintiff at the appellate level to save a trial judgment that exceeded the ad damnum from being reversed on appeal: [N]o judgment in any case shall be reversed in the court of appeals, because the verdict was rendered and the judgment entered in the court below for a greater sum than the amount of damages laid in the declaration; but the plaintiff below, or his legal representative in the court of appeals, shall be permitted, on motion in that court, in every such case to amend the transcript of the record of proceedings, by entering a release upon the record, of the damages exceeding those laid in the declaration, and the court of appeals shall proceed upon such amended transcript, in the same manner, and give the same judgment in the case as if the said release had been entered upon the record before judgment in the court below. Id. (emphasis added).

The Falcinelli Court determined that “the assumed defect [a jury verdict in excess of the ad damnum ] is procedural only and that did not prevent the judgment from being a final, appealable judgment in the full amount of the verdict.” Id. at 429-430 , 663 A.2d 1256 . Therefore, appellate review was limited to whether the trial court had abused its discretion in denying the motion for reconsideration: That judgment, particularly by denying [appellant’s] request for remittitur and by granting leave to amend, rejected [appellant’s] legal contention that the judgment on the verdict could not stand in an amount exceeding the ad damnum. Instead of noting an appeal from the final judgment and seeking direct appellate review of what we assume was an error of law by the trial court, [appellant] resubmitted the same arguments to the trial court in sup- ■ port of the motion for reconsideration. Thus the appeal ²⁸¹ here is from the denial of the motion for reconsideration, and review is limited to whether the trial court abused its discretion in denying the motion.

Id. at 430 , 663 A.2d 1256 (emphasis added). Therefore, there was no “direct appellate review” of whether judgment on a verdict in excess of the ad damnum could stand and the effect of any assumed “error of law” committed by the circuit court in not remitting the judgment in excess of the ad damnum. The Falcinelli Court, because it did not need to reach the issue, “assume[d], arguendo, that Rule 2-341 does not provide for the grant of leave to amend after a verdict has been returned.” Id. at 429 , 663 A.2d 1256 . After the decision in Falcinelli , Judge Lawrence F. Rodowsky, who authored the opinion, wrote to the Court of Appeals Standing Committee on Rules of Practice and Procedure (the “Rules Committee”) asking the Committee to consider whether ad damnum clauses may be amended post-verdict.

Rules Committee, minutes, p. 36 (May 16, 1997). At a meeting on May 16, 1997, the Rules Committee considered the issue. [Member Albert] Brault explained that the case of Falcinelli v. Curdascia, ... raised the question of whether an ad damnum clause may be amended after a jury verdict.... The ad damnum clauses have been eliminated in medical malpractice cases to avoid undue publicity and a possible effect on jury awards. Traditionally, Maryland courts have limited recovery to what was requested in the ad damnum clause.

This puts the defense on notice as to what is at risk. The ad, damnum clause triggers whether personal monies are at risk beyond the limits of any insurance. The federal policy is that the ad damnum clause can be amended to conform to the evidence. The judge has the discretion to amend the clauses upon request.

Mr. Brault said that since the Falcinelli case, the Court of Appeals has decided Scott v. Jenkins, 345 Md. 21 , 690 A.2d 1000 (1997). The Court of Appeals reversed the Court of Special Appeals, holding that the ad damnum clause is ²⁸² binding as to both compensatory and punitive damages.... Mr. Brault commented that to be consistent with the Scott case, either the Rules should provide that the ad damnum clause is binding for all purposes, or it should be eliminated totally. The Vice Chair[, Linda Schuett,] pointed out that Judge Rodowsky took no position on this issue in the letter he wrote.

She also told the Committee that the federal policy is to allow amendments after a verdict. Mr. Brault added that the federal rule has been interpreted to allow amendments to conform to the evidence. [Member H. Thomas] Howell observed that one could plead the requisite facts and ask for an appropriate amount. He questioned whether a specific monetary amount is needed in the ad damnum clause. The Chair[, Judge Joseph Murphy,] inquired about medical malpractice cases.

Mr. Brault responded that those are different, because of the enormous damage' amounts which have been alleged. [Member] Judge John McAuliffe expressed the view that there should be ad damnum clauses, which should not be amended after the trial. The Chair commented that it may be difficult for the plaintiff attorney to put in an appropriate monetary amount of damages early on in the case. Mr. Brault suggested that the ad damnum clause could be amended liberally up to 15 days before trial. Mr. Howell pointed out that the Scott case is clear that punitive damages need to be stated with particularity.