Board of Trustees v. RTKL Associates, Inc.

⁴⁸ ROSALYN B. BELL, Judge. The Board of Trustees of the Baltimore County Community Colleges, Dundalk Community College contends in this appeal that the Circuit Court for Baltimore County erred in revising a jury verdict against RTKL Associates, Inc., an architectural firm, against which the College brought suit because of the partial collapse of the roof of the College’s new physical education complex. Also named as defendants in the College’s suit were Carl H. Gonnsen & Sons, Inc., the general contractor for the project, as well as James H. Carr, Inc., the subcontractor which obtained and inspected the specially designed roof trusses. The action included claims for negligence and breach of warranty.

RTKL filed cross-claims against Gonnsen and Carr for both contribution and indemnity. Contribution claims were based on the Uniform Contribution Among Tort-Feasors Act, Md.Code Ann. Art. 50, § 16 et seq. (1957, 1986 Repl.Vol.). The indemnity claims were based upon the theory of active-passive negligence.

The College dismissed against all defendants except RTKL prior to trial on the basis of a settlement with all but RTKL. The settlement terms with Gonnsen and Carr were embodied in two separate agreements, both entitled "Joint Tort-Feasor Release and Indemnification Agreement.” The respective releases executed by the College stated in pertinent part: “8. The [College] understands and agrees to hold harmless and indemnify [Carr and Gonnsen] from any further liability, damages or financial responsibility of any kind or nature allegedly resulting from or arising out of the project. The [College] further agrees to indemnify and hold [Carr and Gonnsen] harmless from any claim against them by any other party seeking indemnity or contribution with regard to any claim brought by [the College] against such party for injuries, losses or damages allegedly resulting from or arising out of the project.” ⁴⁹ The provisions which pertained to contribution and indemnification differed slightly in form but not substance.

The release executed between the College and Carr provided: “6. It is the intention of the [College] to relieve [Carr] from any liability to make contribution to or to indemnify RTKL in the event that RTKL or Gonnsen are held liable to the [College].” A virtually identical provision appears in the release executed with Gonnsen. Both releases were filed in the record. A jury trial proceeded with the College against RTKL, and RTKL as cross-plaintiff and Gonnsen and Carr as cross-defendants.

The jury returned the following verdict: “VERDICT SHEET 1. As to Count I, Negligence, do you find for the Plaintiff or the Defendant? Plaintiff 2. As to Count II, Breach of Contract, do you find for the Plaintiff or the Defendant?

Plaintiff 3. If you find for the Plaintiff as to Count I or Count II, in what amount do you assess damages? $557,296.00 4. If you find for the Plaintiff, do you find that there was any negligence on the part of CARL GONNESEN [sic] and SON, INC. which caused or contributed to the failure? Yes: X No: _ 5.

If you find for the Plaintiff, do you find that there was any negligence on the part of JAMES H. CARR, INC. which caused or contributed to the failure? YES: X NO: _ 6. As to the cross claims of RTKL ASSOCIATES, INC. for indemnity: a. If you answered ‘Yes’ to Question 4, do you find in favor of the Cross-Plaintiff, RTKL ASSOCIATES, INC. or the Cross-Defendant, CARL GONNESEN [sic] AND SON, INC.?

Cross-Plaintiff If you find for the Cross-Plaintiff, RTKL ASSOCIATES, INC., in what amount do you assess damages? $111,459.00 ⁵⁰ b. If you answered ‘Yes’ to Question 5, do you find in favor of the Cross-Plaintiff, RTKL ASSOCIATES, INC., or the Cross-Defendant, JAMES H. CARR, INC.? Cross-Plaintiff If you find for the Cross-Plaintiff, RTKL ASSOCIATES, INC., in what amount do you assess damages? $167,189.00” 1 The trial court subsequently modified the verdict, entering judgment in favor of the College against RTKL for $185,765.33, exactly one-third (or its pro rata share) of the total verdict. The trial court, however, also entered judgments in favor of RTKL on its cross-claim against Gonnsen and Carr for $185,765.33, each, in effect increasing the verdict amount against Gonnsen and Carr.

The amounts the trial court assessed against Gonnsen and Carr would be borne by the College by operation of the settlement contracts containing the indemnity provision. STANDING Preliminarily, since neither Carr nor Gonnsen has proceeded with this appeal, RTKL has moved to dismiss. RTKL posits that the College (appellant) does not have standing to appeal as it is not directly aggrieved by the trial court’s reduction of the jury’s verdict. RTKL argues that the College received all the relief prayed for and its dissatisfaction stems from its release and indemnification agreements with Carr and Gonnsen.

The College, on the other hand, contends that the reduction of the jury’s verdict when combined with the increase of the judgments against Carr and Gonnsen gives it sufficient standing to appeal because the combined effect wipes out any recovery it might have received. We agree the ⁵¹ College has standing but view the issue from a different perspective. As a general rule, a party may not appeal from a favorable judgment because that party is not considered to be aggrieved. 2 Administrator, Motor Vehicle Administration v. Vogt, 267 Md. 660, 664 , 299 A.2d 1 (1973). A party may, however, appeal from a favorable judgment if the record shows that the party has a personal, pecuniary or property interest in the subject matter of the litigation and that interest will be directly and substantially injured by the trial court’s prejudicial error.

Pattison v. Corby, 226 Md. 97, 101 , 172 A.2d 490 (1961); Preston v. Poe, 116 Md. 1, 6 , 81 A. 178 (1911); see Houchin Sales Co. v. Angert, 11 F.2d 115, 118-19 (8th Cir.1926); Tiger v. American Legion Post No. 43, 125 N.J.Super. 361 , 311 A.2d 179, 183 (1973). This exception has been applied where a defendant was allowed to appeal from a judgment in favor of a co-defendant where that judgment affected the defendant’s statutory right of contribution. E.H. Koester Bakery Co. v. Poller & Baltimore Transit Co., 187 Md. 324, 326-27 , 50 A.2d 234 (1947). Similarly, in First Union Savings & Loan, Inc. v. Bottom, 232 Md. 292, 296 , 193 A.2d 49 (1963), the Court of Appeals upheld the right of a corporation with a direct interest in the suit to appeal, even though a conservator had been appointed to manage the corporation’s affairs. 3 In the instant case, it is clear from the record that the College had a substantial pecuniary interest in the disposition of the suit.

In fact, under the verdict as entered ⁵² by the trial court, the College would pay out, to Carr and Gonnsen, twice the amount of the judgment against RTKL. Copies of the joint tort-feasor releases executed between the College and Carr and Gonnsen were filed with the trial court. Those release agreements indicate the net effect of a reduction and reformation of the jury’s verdict on the College’s pecuniary interests. Those releases form a part of the record before us.

The College has established a substantial pecuniary interest in the subject matter of the litigation. In addition, the College has shown the injurious effect that the trial court’s judgment would have on this interest. For these reasons, we find that the College has standing to appeal the disposition of the cross-claim. REVISION OF A JURY VERDICT The College contends that the trial court’s revision was erroneous because it effectively deprived it of any recovery and transformed what the jury clearly meant as a contribution verdict into a verdict for indemnity.

We agree with certain reservations and explain after setting forth the relevant legal principles. A trial court is vested with a very limited power to correct a jury verdict which is defective in form, but which in substance clearly and definitively expresses the jury’s intention. Traylor v. Grafton, 273 Md. 649, 683 , 332 A.2d 651 (1975). 4 The trial court can correct, remold, or reform such a verdict so as to express the jury’s clear and “definitely manifested” intention. Polkes & Goldberg Ins., Inc. v. General Ins.

Co. of America, 60 Md.App. 162, 167 , 481 A.2d 808 (1984), cert. denied, 302 Md. 288 , 487 A.2d 292 (1985). In fact, this power of revision has sometimes been expressed as a duty. For example, in Sun Cab Co. v. ⁵³ Walston, 15 Md.App. 113, 161-62 , 289 A.2d 804 (1972), affirmed in part and reversed in part, 267 Md. 559 , 298 A.2d 391 (1973), we stated that it was “the duty of the court to work the verdicts into form and make them serve” if the jury’s intention is “manifest and beyond doubt” but the verdict is defective in form. In Montgomery Ward & Co. v. Keulemans, 275 Md. 441, 446-47 , 340 A.2d 705 (1975), the Court remanded for the trial court to reform a malicious prosecution damage award to include $350 that had been mistakenly assessed by the jury as a part of its verdict for false arrest damages.

The Court in Montgomery Ward specifically rejected the contention that the verdict could only be corrected by the jury, or by the court in the jury’s presence. The Court pointed out, however, that the contention would be true only “if the verdict were fatally defective, as, for example, would be a verdict which fails to assess damages.” Montgomery Ward, 275 Md. at 447 , 340 A.2d 705 . The College presents us with no Maryland case, nor have we located one independently, which presents a factual scenario similar to the instant verdict. We are convinced, however, that the trial court’s reformation reflected neither what the jury intended nor what the instructions mandated. —Relative Negligence— We begin our explanation with some relevant calculations based on the verdict: a) Total verdict in College’s favor against RTKL: $557,296 b) Half of this verdict: 278,648 c) Combined jury verdict on RTKL’s cross-claim against Carr 111,459 and Gonnsen: 167,189 278,648 d) 30% of total verdict, which is also the amount RTKL recovered on cross-claim against Carr 167,189 e) 20% of total verdict, which is also the amount RTKL recovered on cross-claim against Gonnsen: 111,459 ⁵⁴ Under the jury verdict the effect would have been to award the College $557,296.

Ignoring the settlement agreement and assuming all parties were solvent, the responsibility for payment of the award would have been distributed: RTKL $278,648 Carr 167,189 Gonnsen 111,459 $557,296 A closer look at the verdict reveals the following. The jury intended that the College recover damages for RTKL’s negligence/breach of warranty. 5 Its findings in queries # 4 and # 5 show that it found negligence attributable to Gonnsen and Carr which contributed to the harm caused. The jury then proceeded to square Gonnsen’s and Carr’s negligence by the awards to RTKL. What the jury apparently intended was to apportion the negligence between the defendants — RTKL responsible for 50 percent, Carr for 30 percent and Gonnsen for 20 percent.

The doctrine of comparative or relative negligence has never been adopted in Maryland, either as to contributory negligence of a plaintiff as opposed to negligence of the defendant or as to the degree of negligence among two or more defendants. See Lahocki v. Contee Sand & Gravel Co., 41 Md.App. 579, 614-16 , 398 A.2d 490 (1979), rev’d on other grounds, 286 Md. 714 , 410 A.2d 1039 (1980). The awards found in Question 3 and 6(a) and (b) of the verdict sheet indicate awards in mathematical proportion. A proportionate breakdown of this nature makes it clear that the jury wished to share the loss among the parties.

CONTRIBUTION — INDEMNITY In Greyhound Lines, Inc. v. Cobb County, Georgia, 681 F.2d 1327 , 1332 n. 7 (11th Cir.1982), the Court of Appeals ⁵⁵ elucidated the difference between contribution and indemnity: “The distinction between contribution and indemnity is that the former refers to apportioning damages between joint tortfeasors by requiring each to pay his proportionate share, while indemnity implies a shifting of the entire loss from the party who paid