Elmore v. Reese

Smith, J., delivered the opinion of the Court. This case grows out of a contract for sale of a home. Appellants Oscar M. Elmore and wife (the Elmores) entered into a contract on August 8, 1967, to purchase a home in Bowie, Maryland, from appellees Gunther Reese and wife (the Reeses). On August 23 permission was granted the Elmores to take possession of the home on August 26 at a daily rental charge of $5.50 per day “from the day of occupancy until the date full and final settlement [was] made by them.” Disagreements arose and settlement did not take place.

The Reeses then sued the Elmores for specific performance. The home was sold to other purchasers and the case was transferred to the law side of the docket. Maryland Rule 515. The Reeses then filed a declaration in law claiming damages.

A counterclaim was filed by the Elmores. After trial before the court without a jury judgment was entered in favor of the Reeses against the Elmores on the original suit and the counterclaim. The Elmores seek reversal claiming (1) that they were denied their constitutional right to a jury trial, (2) that they could not present their case properly because parts of the equity record were missing, (3) that dismissal of an action brought by the Reeses against the Elmores in the People’s Court of Prince George’s County was res judicata, (4) that there was a violation of the attorney-client relationship because the original counsel for Reese in this case was the attorney involved in the settlement proceedings, and (5) that they are not responsible in damages because there, was no delivery to them of an FHA certificate of reasonable value as required by the contract of sale. We shall affirm.

We shall set forth additional facts as we proceed with this opinion. (i) The declaration in the law action was filed by the ⁴⁹³ Reeses on March 26, 1969. It became at issue with the filing on June 16, 1969, of the pleas on behalf of the Elmores. On the same day the declaration in the counterclaim of the Elmores was filed.

That became at issue on July 30, 1969. It was not until December 4, 1969, that the Elmores filed a demand for a jury trial. The request was denied. The statement of points and authorities filed by the Reeses said the jury demand did not comply with Seventh Circuit Rule 547 a 2.

That rule required that a demand for a jury trial on behalf of a defendant be made at or before the first filing of a plea on the merits, but not after the time for filing a plea to the merits. Maryland Rule 343 was added February 10, 1969. Our order adopting it and other rules provided for them to “take effect on April 1, 1969, and [to] apply to all proceedings thereafter commenced and, so far as [might] be practicable, to all proceedings then pending.” (Emphasis added.) Rule 343 c states: “A defendant, including a third party, shall make such election [for jury trial] at or before the time for filing his first responsive pleading to the merits, which places the case at issue as to him.” Quite obviously, it was “practicable” for this rule to apply to the Elmores as defendants and counter-plaintiffs. On the issue of constitutionality of such a rule Judge Singley said for the Court in Bettum v. Mont.

Fed. S. & L. Ass’n, 262 Md. 360 , 277 A. 2d 600 (1971): “We have held that the right to a jury trial may be subjected to reasonable regulation and that a local rule of court requiring that an affirmative written election for a jury trial be made at the time of the filing of the first pleading does not offend the constitutional guarantee, Houston v. Lloyd's Consumer Acceptance Corp., 241 Md. 10 , 215 A. 2d 192 (1965), a limitation which has been made applicable to all courts by ⁴⁹⁴ Rule 343, which became effective before Bettum brought suit. Segal v. American Casualty Co. of Reading, Pennsylvania, 250 F. Supp. 936 (D. Md. 1966).” Id. at 366. See also, in addition to Houston v. Lloyd’s, 241 Md. 10 , 215 A. 2d 192 (1965), cited by Judge Singley, Md. Community Dev. Inc. v. S.R.C., 261 Md. 205, 211-13 , 274 A. 2d 641 (1971), and Chappell Chemical Co. v. Sulphur Mines Co., 172 U. S. 474 , 19 S. Ct. 268 , 43 L. Ed. 520 (1899).

In the latter case the Supreme Court affirmed a decision of our predecessors in 85 Md. 684 (unreported), 36 A. 7l2 (1896), upholding a rule in the law courts of Baltimore City which even at that time restricted the right to a jury trial unless requested within a specified time. In Lloyd’s Judge McWilliams observed for the Court: “[I]t is generally acknowledged that [the right to a jury trial] can, for all practical purposes, become meaningless to the individual and burdensome to the state unless the exercise of it is regulated to some extent.” Id. at 14 . Accordingly, this contention of the Elmores is without merit. There is a collateral matter which we must consider.

The Elmores in their brief said: “As soon as the case became a Law case, the Elmores demanded a jury trial which was denied without a hearing by Judge McCullough on December 11, 1969 (E. 24). A jury demand was subsequently repeated and again denied (E. 17).” The reference to page E24 of the record extract has to do with the denial of the request for a jury trial. On page E25 appears a jury demand which they show as having been filed on December 4, 1969, a showing that is consistent with the docket entries and with the original in the record. The document appearing on page E17 is ⁴⁹⁵ styled “PETITION OF OSCAR M. ELMORE RENEWING DEMAND FOR JURY TRIAL” and shows that it was filed on June 30, 1970, which is consistent with the docket entries and the original appearing in the court record.

The Reeses in their brief sáid: “Seventh Circuit Rule 547 a 2 required an election for jury trial to be made before the time allowed by law or rules of court for a plea to the merits to be filed. This was not done, and Appellants’ statement that ‘as soon as the case became a law case, the Elmores demanded a jury trial’ is false.” The Elmores have taken umbrage at use of the word “false.” They have moved that “the offensive accusation with the word ‘false’ be deleted and expunged from the briefs filed.” Since neither the docket entries nor the papers on file in the record show a demand for a jury trial by the Elmores prior to December 4, 1969, the motion will be denied. (ii) Following denial of the Elmores’ tardily filed request for a jury trial, Mr. Elmore addressed a letter to the Clerk of the Circuit Court for Prince George’s County expressing his inability to understand the ruling. He then said: “I am convinced that there is prejudice against me in this case and am of the opinion that I cannot get a fair trial in this county.

I am, therefore, demanding a change of venue.” Since this was sworn to, it was treated as a suggestion for removal under Rule 542 and the case was removed to Calvert County. Several times during the trial there counsel for the Elmores claimed part of the equity record was missing. It is difficult to fathom from the Elmores’ brief just what prejudice they believe accrued to them. However, the docket entries reflect that on ⁴⁹⁶ February 2, 1970, counsel were notified by the office of the Clerk of the Circuit Court for Prince George’s County that they might inspect the record prior to its being transmitted to Calvert County.

One may infer that either counsel for the Elmores did not avail himself of that privilege or that he then found nothing missing which he believed should be there. Moreover, in the process of the trial when counsel said he was “very handicapped as [sic] a failure to have this Equity file [t]here,” the trial judge replied, “It is here, it has been here all the time.” Counsel protested that it was not complete and Judge Taylor offered counsel an opportunity to go through the file. Judge Taylor pointed out that the complete equity file was there. We have examined the complete equity file and find no merit in this claim of the Elmores.

(iii) The contentions relative to res judicata center around the refusal of the trial judge to admit into evidence a copy of an order in the People’s Court of Prince George’s County dismissing “with prejudice” an action brought by the Reeses against the Elmores. Two reasons were given by the trial judge, the fact that it was not a court of record, as indeed it was not, and the fact that it was not under seal. The doctrine of res judicata was fully explored for the Court by Chief Judge Hammond in Pat Perusse Realty v. Lingo, 249 Md. 33 , 238 A. 2d 100 (1968). For the purpose of this opinion we need go no further than to say that in a case such as this where the only evidence proffered to the trial court was that an action had been dismissed “with prejudice” without a presentation to that court of anything from which the issues involved could be gleaned, such evidence could not be the basis of a determination that the doctrine of res judicata was - applicable, since, quoting Perusse, there would be no showing “that facts or questions which were in issue in a previous action and were therein determined by a court which had jurisdiction of the parties and the ⁴⁹⁷ subject matter [were] conclusively settled by a final judgment in the first case . „ .

(iv) The contract in this ease contained a provision by which the Elmores “authorize [d] the [realtor] to order the examination of title and the preparation of all necessary conveyancing papers.” Pursuant to that authorization the attorney was retained who ultimately brought the action on behalf of the Reeses against the Elmores, not the present counsel for the Reeses. It is the contention of the Elmores that the Reeses “were guilty of violation of privileged communication; without the knowledge that [the attorney] learned about his client at the settlement proceedings, he and [present counsel for the Reeses] could not have been aware of the existing contract upon which they filed