Cole v. Sullivan

WENNER, Judge. The genesis of this appeal is an acrimonious dispute over the disposition of a decedent’s estate. Appellants, Henry Cole, Jr. and his wife, Joanne, appeal from the judgment of the Circuit Court for Baltimore County entered in favor of appellees, David A. Sullivan and his wife, Heidi, after a jury awarded the Sullivans damages of $2,822,457. 1 On appeal, we have been presented with four questions which we have reordered and phrased as follows: (1) Should the false imprisonment counts have been submitted to the jury? ⁸³ (2) Did the trial court commit reversible error by introducing testimony of the Coles’ financial worth prior to finding the Coles liable? (3) Did the trial court err by admitting into evidence the taped recording of a message from the Coles’ son?

(4) Does Maryland’s cap on non-economic damages apply to intentional torts? For the reasons set forth herein, we shall affirm the judgment of the circuit court. 2 Facts Mrs. Sullivan’s father died on 26 April 1992. Within hours of his death, the Coles 3 entered the decedent’s home. When the Sullivans inquired what the Coles were doing, the Coles responded “we are in charge now” and ordered the Sullivans off the premises.

Following the decedent’s funeral, Mr. Cole informed the Sullivans that he had changed the locks on the decedent’s home and said, “I’m controlling it (the house) now.” Upon being asked what was motivating his actions, Mr. Cole again ordered the Sullivans off the premises. Predictably, things got worse. The Coles repeatedly phoned the Sullivans, inquiring about the receipt of mail for the decedent’s estate. When Mr. Sullivan asked Mrs. Cole to stop the telephone calls, Mr. Cole responded on an extension line, “Fuck you, you are a dead man.” The Sullivans reported the abusive telephone calls to the Maryland State Police.

They also reported a religious statue at their home had been vandalized. On 12 May 1992, the decedent’s will was admitted to probate, and Mrs. Sullivan was qualified as Personal Representative. A short time later, Mr. Cole blocked the decedent’s ⁸⁴ driveway with a truckload of stone, timber, and severed deer heads. In addition, Mr. Cole continued the phone calls, repeatedly threatening to kill the Sullivans.

On a chance meeting with Mr. Sullivan’s mother, Mr. Cole said: Listen bitch, that mother fucking son is nothing but a piece of shit. That’s all he is and I’m going to make that other fucking son of a bitch pay. I’m going to bury him. Do you hear that, bitch?

I’m going to bury him. You take that piece of trash bitch and get the fuck out of here. I’m going to bury you all. You better get yourself a good lawyer.

Mr. Cole was eventually arrested for misusing the telephone, released on bail, and ordered to have no further contact with the Sullivans. Unphased, Mr. Cole phoned Mrs. Sullivan at her place of work on three occasions, again threatening her with death. On 20 May 1992, Mr. Sullivan confronted Mr. Cole at his place of work and asked him to stop the abusive phone calls. Mr. Cole responded, “You are a dead man,” and then struck Mr. Sullivan.

A tussle ensued, during which Mr. Sullivan struck Mr. Cole “two or three times.” Mr. Cole then ran to his car shouting “your wife’s a whore, your wife’s a whore.” Once at his car, Mr. Cole dialed 911 on his car phone, reporting that Mr. Sullivan had a weapon. Despite the arrival of the police, Mr. Cole threatened “to blow [Mr. Sullivan’s] fucking brains out.” After the police found no weapons, Mr. Cole was arrested. Upon being released from custody, Mr. Cole swore out a warrant, charging Mr. Sullivan with assault with intent to murder and various handgun violations. Mr. Sullivan was then arrested, but released on bail.

Unsatisfied, Mr. Cole again swore out a warrant, charging Mr. Sullivan with misusing the telephone and assault and ⁸⁵ battery. Consequently, Mr. Sullivan’s bail was revoked. 4 Mr. Cole also threatened to kill Mr. Sullivan’s mother. After a jury acquitted Mr. Sullivan of all charges, Mr. Cole phoned Mrs. Sullivan at her place of work, again threatening to kill her. We shall add such other facts as may be necessary for our discussion of the issues presented.

I. The Coles first contend that the false imprisonment counts should not have been submitted to the jury. Although this may be true, we agree with the Sullivans that this issue has not been preserved for our review. In excepting to the trial judge’s false imprisonment instructions, the Coles said [t]he next one would be Plaintiffs proposed jury instruction number fifteen as to the third paragraph where the court instructed the jury false imprisonment does not occur when the information leading to arrest is given in good faith. That is from the Allen versus Bethlehem, Steel Corporation case.

It is my feeling that that only tells half of the story. I also wanted the following part put in, or the law enforcement officer after making an independent investigation concludes that an arrest should be made. So, that was the exception that I would take with reference to that proposed jury instruction. The trial judge responded [wjith regard to the law enforcement officer language after investigation concludes arrest warrant should be issued, there is no evidence whatsoever that the police did that in this case and therefore I think I would be instructing them on something that is not an issue.

The Coles argue that, since Mr. Sullivan was arrested by a police officer executing a facially valid arrest warrant, the jury ⁸⁶ should, not have been allowed to consider the false imprisonment counts. Montgomery Ward v. Wilson, 339 Md. 701 , 664 A.2d 916 (1995) (“tort of false imprisonment does not lie ... where the arrest is made by a police officer executing a facially valid arrest warrant.”). We find nothing indicating that the trial judge had been made aware of the Coles’ position as to Mr. Sullivan’s having been arrested by a police officer executing a facially valid warrant. Md. Rule 2-520(e) provides that “[n]o party may assign as error the giving ... [of] an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. ” (Emphasis added).

This affords the trial judge “an opportunity to amend or supplement his charge if he deems an amendment necessary.” Sergeant Co. v. Pickett, 283 Md. 284, 288 , 388 A.2d 543 (1978). We conclude that the trial judge was not afforded an opportunity to consider Wilson’ s, supra, impact on his charge. In sum, the Coles failed to preserve the issue for bur review by failing to state distinctly the matter to which they objected and the grounds for the objection. Thus, the issue is not properly before us.

See also, Edmonds v. Murphy, 83 Md. App. 133, 177-178 , 573 A.2d 853 (1990).

II

The Coles next contend that evidence of their financial worth should not have been admitted prior to a finding of liability. The Sullivans counter that, because this issue was not raised at trial, it cannot be raised on appeal. We agree. Nonetheless, the Coles believe the Sullivans had the burden of establishing a prima facie case for punitive damages 5 before inquiring into the Coles’ financial worth.

As we have said, this issue having been neither raised in nor decided by the trial ⁸⁷ court, it may not be raised on appeal. Maryland Rule 8-131(a); Dav is v. DiPino, 337 Md. 642, 647 , 655 A.2d 401 (1995). Although the Coles assert that their failure to comply with the discovery rules was because of the Sullivans wrongfully inquiring into their financial worth, the record reveals that the Coles failed to comply with the discovery rules in any fashion, and did not respond to the Sullivans’ Motion for Sanctions. In fact, the Coles only responded when faced with a Show Cause Order.

According to the Coles, the trial court erred in “drastically limiting] their evidentiary response to the request for punitive damages.” We remind the Coles that “the application of sanctions under the discovery rules is within the sound discretion of the trial judge,” Broadwater v. Arch, 267 Md. 329, 336 , 297 A.2d 671 (1972), and that Rule 2-433 provides that “[u]pon a motion filed under 2-432(a), the court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including ... prohibiting that party from introducing designated matters in evidence.” There was no error or abuse of discretion. The Coles also contend that the trial court erred in admitting evidence of their financial worth prior to their being found liable for compensatory damages. This issue has also not been preserved for our review. During the trial, the following colloquy ensued between a witness and counsel for the Coles: QUESTION: Did Mr. Cole offer an explanation to you why he believed David Sullivan was calling his family and making threats?

ANSWER: Yes. Mr. Cole told me he felt that David Sullivan is also trying to cause trouble because the Cole family is worth 15 to 20 million dollars and he is trying to get a law suit against them. There was no objection. Rule 2-517 requires an objection to be made at “the time evidence is offered or as ⁸⁸ soon thereafter as the grounds for objection become apparent.

Otherwise, the objection is waived.” Although, at a bench conference, counsel for the Coles expressed some concern about the admission of such evidence, “[i]f the trial judge admits the questionable evidence, the party who made the motion [to exclude] ordinarily must object at the time the evidence is actually offered to preserve his objection for appellate review.” 6 Turgut v. Levine, 79 Md.App. 279 , 556 A.2d 720 (1989). While we agree with the Coles that “[i]n any action for punitive damages ..., evidence of the defendant’s financial means is not admissible until there has been a finding of liability and that punitive damages are supportable under the facts[,]” they failed to note, a timely objection. 7 III. The Coles penultimately contend that the trial court erred in admitting the tape of a message left by their son on the Sullivans’ answering machine. 8 The Coles believe its admis ⁸⁹ sion to have been either untimely, or irrelevant. Conversely, the Sullivans contend that the Coles failed to preserve that issue by neglecting to note a timely objection, or, in the alternative, that any error in admitting the evidence was harmless error, in view of the overwhelming evidence against the Coles.

We agree with the Sullivans. When the tape was offered, counsel for the Coles noted an objection, which was overruled after a lengthy bench conference. After counsel returned to the trial tables, the tape was presented and counsel for the Coles failed to renew the objection. Consequently, the Coles’ objection was not preserved for our review.

See, Prout v. State, 311 Md. 348 , 535 A.2d 445 (1988). Although a trial court has wide discretion in admitting or denying the admission of evidence, Ellsworth v. Sherne Lingerie, Inc., 60 Md.App. 104 , 481 A.2d 250 , rev’d on other grounds, 303 Md. 581 , 495 A.2d 348 (1985), we believe the tape was irrelevant, and hence inadmissible. Rule 5-402. The tape simply reveals that the Coles’ son is, like his father, disposed to use foul, offensive language and to make threats of violence.

In view of the overwhelming evidence against the Coles, however, even had the objection been preserved, its admission constituted harmless error. Beahm v. Shortall, 279 Md. 321, 330-31 , 368 A.2d 1005 (1977).

IV

The Sullivans’ award of $2,822,457, included non-economic damages of $1,050,000. The Coles believe that Md. Code ⁹⁰ (1974, 1989 RepLVol.) § ll-108(b) of the Cts. & Jud. Proc. Article requires that this award be reduced to $350,000.

CJ § ll-108(b) provides: Limitation of $350,000 Established.—(1) In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for