Cam's Broadloom Rugs, Inc. v. Buck

BISHOP, Judge. This civil action arose out of a motor vehicle accident. Appellee Kenneth Buck and his wife, Kimberly, filed a complaint in which they alleged that appellant Cam’s Broadloom Rugs, Inc. was liable under the doctrine of respondeat superior for personal injuries and loss of consortium due to the negligence of Warren Ray, Jr., a driver for appellant. A jury found in favor of appellant on the claim for loss of consortium and for appellee on the claim for personal injuries due to Warren Ray, Jr.’s negligence and awarded damages in the amount of $3,868.

Appellee filed a Motion for New Trial in which he contended, inter alia, that the improper closing arguments of appellant’s counsel resulted in a damage award that was too low. The court agreed and ordered a new trial on damages only. Appellant immediately appealed. We dismissed the appeal based on the lack of a final judgment.

Md.Rules 2-602, 8-602. The Court of Appeals denied appellant’s petition for certiorari. On retrial, the jury awarded appfellee damages in the amount of $87,000. Appellant’s post-trial motions were denied and this appeal was filed.

Issue Presented Appellant presents ten issues in his appeal; however, because we find that the court abused its discretion in granting the motion for new trial, we will address only the following issue: Whether the court abused its discretion when it granted appellee’s motion for new trial based upon several allegedly improper remarks by appellant’s counsel in his closing argument to which appellee did not object, did not move to strike and did not request an instruction by the court. ⁵⁶⁵ FACTS At the conclusion of a heated trial, counsel for appellant gave a closing argument, the transcript of which filled approximately eighteen pages. The jury awarded appellee damages in the amount of $3,868 and appellee moved for a new trial, alleging, in part, that appellant’s closing argument was improper and resulted in an unreasonably low damage award. After briefs were filed and argument held, the court concluded that the following four remarks were improper: [ 1 ] I told you in the very beginning that there would be two basic questions that you would be deciding; one would be liability, and the other would be damages. Let’s talk a little bit about the liability.

Hopefully none of you have been involved in a lawsuit and I hope none of you ever will be sued, but, ladies and gentlemen, if you are sued you would want the person or people that are suing you to prove their case and prove every single aspect of the case; not simply to come in and say, well, somebody ran a red light and we have got three witnesses and look at all of these damages and give them thóusands and thousands of dollars and then just simply sit down. I don’t think that you would want that to occur. * * * * SjC * [ 2 ] The Plaintiff admitted that he had been drinking. How could the man say he hadn’t been drinking. I’ll tell you why.

Because Lewis is trying to cover up for Buck and every single one of them are trying to cover up for Buck. It is a typical whiplash case and they have a chance to sue somebody. They are suing the company and not Warren Ray, because they have a chance to make the bucks on the case. You know, whether it stops — it doesn’t stop with the judge, or the courts, or the lawyers; it stops with you.

MR. BLONDELL: Objection. ⁵⁶⁶ THE COURT: Yes, sustained. Go onto the next point. * $ * * $ * [ 3 ] Well, it doesn’t end there. Mr. Blondell’s [counsel for appellee] office turns loose his team of doctors which he maintains are eminently qualified.

Dr. Reischer (Phonetic), ladies and gentlemen, is an internist and the more Kenneth Buck goes to see Dr. Reischer the more the bill goes up. And we have a lawsuit going on. Is this the first time you have heard of a whiplash case? Of course not.

Kenneth Buck is suing Cam’s Broadloom, and do you think Kenneth Buck is going to go in there and say hey, Doc, my neck doesn’t hurt? Of course it hurts. He is going to run the bills up and he runs them up to almost nine thousand dollars. * # * * * * [ 4 ] Ladies and gentlemen, I think this one diagram sums up the whole case and I think this is the kicker right here. I hope you all can see this.

This is the physical therapy bill, and those bills are in evidence. I think it is about four or five pages. It says at the top Latofsky, Braeger (Phonetic) and something like that. That is part of Blondell’s team.

The court found the first remark to be an improper reference to the golden rule; 1 the second remark to be an impermissible appeal to the emotions of the jurors, as payers of insurance premiums, to stop inflated personal injury claims; and the third and fourth remarks as improper allegations that appellee’s counsel and the doctors they had examine appellee were in “a conspiracy to improperly inflate the medical bills and to improperly exaggerate the nature and extent of [appellee’s] injuries.” The court noted that the amount of the damage award was less than the evidence of the medical and special damages and concluded ⁵⁶⁷ “that the improper remarks by counsel caused or substantially contributed to a verdict that was unreasonably low.” The court ordered a new trial only on the damages to be awarded appellee for his personal injury claim. Discussion The trial court may grant a new trial pursuant to Md.Rule 2-533, 2 “where there is a fair probability that to ⁵⁶⁸ fail to do so would deny a party the right to a fair trial,” Thodos v. Bland, 75 Md.App. 700, 708, 542 A.2d 1307 (1988) (citing Wernsing v. General Motors Corp., 298 Md. 406, 419 , 470 A.2d 802 (1984)), or where it is necessary “to prevent a miscarriage of justice.” Niemeyer and Richards, Maryland Rules Commentary 320 (1984). The grant or denial of a motion for a new trial is a matter within the sound discretion of the trial court, and the exercise of the court’s discretion will not be set aside on appeal unless the court clearly abused its discretion under circumstances that are “extraordinary or compelling” or where a substantial right is denied. Thodos, 75 Md.App. at 706-7, 542 A.2d 1307 (and cases cited therein).

In fact, the Court of Appeals in Carlile v. Two Guys, 264 Md. 475, 477-78 , 287 A.2d 31 (1972), found the grant of a new trial practically unreviewable: There is probably no principle of law that rests on more decisions of this Court than the concept that a trial judge’s granting or refusing a new trial — fully, partially, conditionally, or otherwise — is not reviewable on appeal except under the most extraordinary or compelling circumstances. This is true even though the trial judge’s ⁵⁶⁹ decision is based on mistake or erroneous conclusions of law or fact. Our adherence to this rule is unwavering____ In fact, this Court, in its long history, has never found such circumstances to exist____the only exceptions to this statement (if they can be termed exceptions) are: when the action of the trial court was in effect a refusal to even entertain or consider a motion for a new trial; or when the trial court, in dealing with such a motion, exceeded its jurisdiction. (Citations omitted).

Despite the language of Carlile , the Court of Appeals in Wernsing v. General Motors Corp., 298 Md. 406 , 470 A.2d 802 (1984), affirmed our reversal of the trial court’s denial of a motion for new trial finding the denial to be an abuse of discretion. Id. at 420 , 470 A.2d 802 . In the case sub judice, the court granted a new trial on damages. The second jury returned a damage award in the amount of $87,000, an almost twenty-three fold increase in appellant’s damage liability.

This increase is sufficient to demonstrate that the circumstances in the instant case are compelling and, thus, reviewable. We now must determine whether the court clearly abused its discretion. The court granted a new trial, on damages because it concluded that the foregoing remarks by appellant’s counsel during closing argument were improper and resulted in an unreasonably low award of damages. Appellant contends that the court abused its discretion because appellee made only one objection and never requested the court to strike any of the remarks or instruct the jury to disregard them.

While we do not find any Maryland cases where the issue of whether a trial court’s grant of a new trial should be reversed because the court based its ruling on errors to which there were no objections at trial, 3 there are Maryland cases in which the trial court’s refusal to grant a new trial *? was affirmed because the moving party failed to object to the errors set forth in his motion for new trial. In Brinand v. Denzik, 226 Md. 287 , 173 A.2d 203 (1961), the appellant moved for a new trial after the jury verdict sheet contained notes that reflected remarks made by appellee’s counsel during closing argument that appellant contended were improper. The Court of Appeals found that appellant objected but did not request an instruction to the jury to disregard the remarks. 4 The Court of Appeals found that the trial court did not abuse its discretion when it denied appellant’s motion. Even if we assume, without deciding, that the disputed remarks of appellee’s counsel were improper, and that the jury were influenced by them, we find a compelling reason why the appellant is not entitled to the relief sought.

The record discloses that the appellant did not ask the trial court to declare a mistrial when the remarks were made, and did not then or at any time before the jury retired request the court to instruct the jury to disregard them. This being so, she has waived her right to object to the verdict. She has preserved no ground for ⁵⁷¹ appeal, and therefore this appeal raises no questions of law. Clearly, if the appellant desired to protect herself against the possibility that the questionable remarks might influence the minds of the jurors, she had only to request the court to give a further instruction to the jury, fully and clearly advising them that the argument was not based on the evidence, and that therefore they could not base the verdict, or any part of it, on that argument.

If such instruction had been requested and denied, the matter would have been preserved for review on appeal. Maryland Rules 554 d and e. As this Court stated in Fox v. Balto. Transit Co., 194 Md. 403, 409 , 71 A.2d 470 (1950), “ * * * a simple way to preserve a real point of law on appeal is to state it precisely in a prayer or requested instruction.

The court need not in terms grant the requested instruction, but ‘if the matter is not fairly covered by instructions actually given’ the point can be preserved by objection to failure to give the requested instruction.” See also Smith v. Barnhart, 225 Md. 391, 394-395 , 170 A.2d 766 (1961); Rephann v. Armstrong, 217 Md. 90, 93 , 141 A.2d 525 (1958). [AJppellant had the opportunity to protect herself from any possible prejudicial effects of the allegedly improper remarks of counsel for appellee, but failed to do so. In the absence of any further action by appellant, there was no duty upon the trial court to make further reference to the matter. Id. at 291-93, 173 A.2d 203 . Counsel’s remarks did not deprive the appellant of any substantial right, and the Court of Appeals affirmed the trial court’s denial of appellant’s motion for new trial.

Id. at 293 , 173 A.2d 203 . Similarly, in Miller Building Supply v. Rosen, 305 Md. 341, 355-56 , 503 A.2d 1344 (1986), the Court of Appeals held that the trial court did not abuse its discretion when it denied a motion for new trial based on an allegedly erroneous jury instruction to which the movant did not object at trial. Finally, in Banegura v. Taylor, 312 Md. 609, 625 , 541 A.2d 969 (1988), ⁵⁷² the Court of Appeals reviewed the propriety of a trial court’s denial of a motion for new trial on the ground that, inter alia, the verdict was excessive. The Court of Appeals observed that the first opportunity to object to an excessive verdict is through a motion for new trial, but it is not the first opportunity to object to most other errors that occur during a trial and stated that for these other alleged errors the moving party’s “failure to object to rulings, instructions, and arguments during the course of the trial may be taken as a waiver of error, precluding the assertion of those issues in a motion for new trial____” 5 The Court of Appeals, because it could not determine from the record whether the trial court exercised its discretion and considered the claim of excessiveness of the verdict when it denied the motion, remanded the case for consideration of that issue.

Id. To affirm the exercise of the trial court’s discretion in granting a motion for new trial is a far simpler task than to find that the court abused its discretion. Nevertheless, there are limits even to this exercise of discretion, and the policy reasons that support the affirmation of the trial court’s decision are also applicable to the reversal of the same decision. Because the policy reasons are not discussed in Brinand, Miller or Banegura , we shall examine the reasons behind the requirement that a party must preserve issues for appellate review as analogous and persuasive authority that, except for issues such as those to which we refer in footnote 5, supra, there must be some timely objection to preserve the issue raised in a motion for new trial. ⁵⁷³ The prerequisite for an issue to be reviewed on appeal is a timely objection.

Md.Rule 2-517; Brazerol v. Hudson, 262 Md. 269, 275-76 , 277 A.2d 585 (1971); Fireman’s Fund Ins. Co. v. Bragg, 76 Md.App. 709, 719-20 , 548 A.2d 151 (1988); Curry v. State, 54 Md.App. 250, 256 , 458 A.2d 474 (1983) (An objection to an improper remark during closing argument is timely if made at the conclusion of the argument and not at the exact moment the remark was made). A formal objection is not required, but the party must make known to the court the action he desires the court to take. Fowler v. Benton, 229 Md. 571, 575 , 185 A.2d 344 (1962), cert. denied, 375 U.S. 845 , 84 S.Ct. 98 , 11 L.Ed.2d 72 (1963).

The basis for the objection need not be given, however, if counsel volunteers his grounds at the time of the objection or is requested to state his grounds by the court, he is bound on appeal to the grounds expressed. Md.Rule 2-517(a); Klein v. Weiss, 284 Md. 36, 55 , 395 A.2d 126 (1978); Great Coastal Express, Inc. v. Schuefer, 34 Md.App. 706, 724 , 369 A.2d 118 , cert. denied, 280 Md. 730 (1977). Further, in either a civil or criminal case, when an objection to a closing argument is sustained, the objecting party must request specific relief, such as a motion for mistrial, to strike or for a further cautionary instruction, otherwise there is nothing for the appellate court to review. Hairston v. State, 68 Md.App. 230, 236 , 511 A.2d 73 (1986).

This procedure provides for a fair and orderly trial without subjecting the litigants to the expense and inconvenience of an appeal and possible new trial, unless the trial court was given the opportunity to correct any errors in the proceeding. See Clayman v. Prince George’s County, 266 Md. 409, 416 , 292 A.2d 689 (1972); Seargent Co. v. Pickett, 283 Md. 284, 288 , 388 A.2d 543 (1978); Medley v. State, 52 Md.App. 225, 231-32 , 448 A.2d 363 , cert. denied, 294 Md. 544 (1982). A litigant is subject to the hardships of a new trial whether it is granted by an appellate court or the trial court. Moreover, to review, on appeal or in a post-trial motion, an issue to which there is no objection when one could have been made invites abuse. ⁵⁷⁴ [W]hen [the Court of Appeals] or the Court of Special Appeals take[s] up as a result of direct appeal such matters which could have been raised and corrected at trial and were not raised at trial, we make possible an abuse of the judicial process by unscrupulous trial attorneys.

I do not mean to imply that the trial attorney here was unscrupulous. I point out, however, that an attorney. might very well sit quietly by when an obvious error of this kind arises saying to himself that if the jury in its wisdom does not