Goldman, Skeen & Wadler, P.A. v. Cooper, Beckman & Tuerk, L.L.P.

THIEME, Judge. Appellees/cross-appellants Cooper, Beckman & Tuerk, L.L.P. (CBT) and Levy, Phillips & Konigsberg, R.L.L.P. (LPK) filed a six-count complaint against appellant/cross-ap ³⁵ pellee Goldman, Skeen & Wadler, P.A.

(GSW), as well as Harry Goldman, Jr., pertaining to a series of fee-sharing agreements among the parties. The jury returned a special verdict finding three of four such contracts to remain in effect and concluding that each of the three law firms was liable for breach. The jury awarded CBT and LPK one dollar each and similarly awarded one dollar to GSW. The court entered one judgment on the verdict for the breach of contract claims and a separate judgment declaring the three contracts to remain in effect and awarding a total of $5,691,599.60 to CBT and LPK, a sum “representing [their] contractual share of the total fees.” GSW filed a motion to alter or amend the declaratory judgment, a motion for recusal, and a conditional motion for a new trial on the continuing enforceability of the three contracts.

CBT and LPK then filed a motion for summary judgment, which also requested judgment notwithstanding the verdict. The court amended the declaratory judgment to indicate additionally that CBT and LPK owed $90,367.69 to GSW, even though no party had requested such an amendment. All other motions were denied. This appeal ensued.

On appeal, GSW presents the following questions, which we have recast: 1. Whether the circuit court improperly excluded expert testimony and other evidence on the Maryland Lawyers’ Rules of Professional Conduct and predecessor ethical rules. 2. Whether an Order compelling a law firm to remit to other lawyers seventy-five percent of attorney’s fees obtained in on-going cases improperly compels the firm to breach its ethical obligations to clients. 3. Whether the circuit court erred by permitting appellees to introduce evidence of a prior contract dispute between GSW and another attorney. 4.

Whether the circuit court erred by refusing to instruct the jury on principles of contract termination. ³⁶ 5. Whether the circuit court erred by refusing to instruct the jury on the Statute of Limitations. 6. Whether the circuit court improperly excluded file memoranda of disputed conversations. 7. Whether the trial court’s declaratory judgment awarding money damages violated GSW’s constitutional right to trial by jury or constituted an improper attempt at additur or reformation of a jury verdict. 8.

Whether the trial judge erred by failing to recuse himself from post-trial proceedings. CBT and LPK cross-appeal on one initial issue: “Whether it was error to award GSW a remedy when GSW explicitly disclaimed any interest therein.” Should this court find error in the declaratory judgment’s monetary awards to CBT and LPK, then cross-appellants present two further questions: 1. Did the circuit court err by dismissing cross-appellants’ claims for conversion and punitive damages? 2. Did the circuit court err by denying cross-appellants’ motion for summary judgment and entering the jury’s award of nominal damages?

For reasons set forth below, we will affirm the breach of contract judgment, but we must reverse the declaratory judgment’s monetary awards against GSW and vacate and remand the declaratory judgment in all other respects. FACTS In the mid-1970’s, Mr. Goldman represented several clients who belonged to Local 24 of the International Union of Marine and Shipbuilding Workers of America (IUMSWA) and were employed at the Key Highway Shipyard of Bethlehem Steel in Baltimore City. Mr. Goldman was a partner in Goldman & Skeen, P.A., the predecessor in interest to GSW, but for ease we shall refer to the two firms collectively as GSW. When a study of the Key Highway shipyard workers was conducted in the late 1970’s, it revealed a high rate of asbestos disease.

The result, as it pertains to this case, was that Local 24 ³⁷ retained GSW to pursue what were estimated to be 150 asbestos-related personal injury claims. Mr. Goldman knew, however, that his firm would not be able to handle the complexity and expense of prosecuting all of these cases on its own, so even prior to receiving the offer to represent the Local 24/Key Highway plaintiffs, Mr. Goldman approached another attorney, Gerald H. Cooper, of CBT. The two entered into the first of their fee-sharing agreements, memorialized in a signed document of 18 September 1979. Under the terms of the agreement, the two firms would share equally the work, the expenses, and the fees generated by the Local 24/Key Highway asbestos litigation.

The agreement covered all asbestos litigation, other “toxic tort work, such as lead poisoning,” and all work that would derive from such representation, with certain specific exceptions. Within a few months, the first of many disputes arose between the two parties. CBT believed that the representation called for still more resources than the two parties could provide and demanded that additional counsel be brought in. GSW initially opposed such a move, but eventually both GSW and CBT signed a second fee-sharing agreement with Mr. Stanley J. Levy of Kreindler & Kreindler.

(The latter firm is the predecessor to the LPK firm, and for ease we will refer to them collectively as LPK.) Under this second agreement, dated 18 April 1980, LPK would handle “the major burden” of the Local 24/Key Highway asbestos representation and advance most of the costs in return for fifty percent of all fees generated therefrom. CBT and GSW would share equally the other half of the fees. The agreement also allocated among the parties responsibility for certain specific tasks and expenses, but it was silent as to any derivative representation. Over a year later, another pair of fee-sharing agreements was executed.

One of these agreements was memorialized in a document dated 4 November 1981 and signed by only GSW and CBT. The agreement pertained to their joint representation of a different set of asbestos litigation clients who were members of Local 33 of the IUMSWA, employed at Bethle ³⁸ hem Steel’s Sparrows Point Shipyard. We refer to this agreement as “Local 33/Sparrows Point.” GSW and CBT agreed to share equally the fees derived from the representation “after payment of the net fee of other litigation counsel.” The fourth and final fee-sharing agreement is memorialized in a document dated 5 November 1981 and signed by GSW, CBT, and one Bernard G. Link, Esq. Mr. Link was general counsel to union Local 31 from the Maryland Shipbuilding and Drydock Company.

The agreement called for joint representation of Local 31 members in asbestos litigation, with LPK acting as lead counsel in return for fifty percent of the fees. Mr. Link would receive twenty-five percent of all fees, and CBT and GSW would collectively receive the remaining twenty-five percent, as local counsel. Mr. Goldman’s relations with the other parties were strained from the outset. Mr. Goldman complained that CBT was violating the agreements by deducting overhead expenses from GSW’s portion of fees and by faffing to disclose fees generated from “spin-off’ representation arising out of the Local 24/Key Highway cases.

LPK and CBT considered Goldman difficult to deal with and derelict in his participation in this litigation. They tended to adopt the strategy of ignoring his frequent complaints, moving ahead with the litigation, and sending Mr. Goldman bills and checks according to their understanding of the agreements. As this case is primarily concerned with the Local 33/Spar-rows Point agreement, we note some further facts brought out at trial regarding this agreement. Mr. Goldman drafted the two-paragraph letter memorializing the agreement.

According to him, this fee-sharing agreement never concerned LPK at all but left CBT and GSW free to associate with whatever “other litigation counsel” they saw fit to bring in. In fact, Mr. Goldman claimed that he specifically excluded LPK from the agreement because he was so dissatisfied with its performance in the Local 24/Key Highway cases. LPK and CBT apparently believed that LPK was, at the very least, the intended third-party beneficiary of the agreement. At some point ³⁹ during the late 1980’s, GSW made some demands of CBT for reimbursement of expenses in Local 33/Sparrows Point representation.

CBT refused to pay, allegedly because GSW already owed them an even greater sum arising from expenses in cases covered by other agreements. In April of 1989, Mr. Goldman met with Carl E. Tuerk, Jr., of CBT in a hotel dining room to discuss their disputes. According to Mr. Goldman, the meeting ended with an agreement to terminate the Local 33/Sparrows Point agreement, but according to Mr. Tuerk and CBT, it was merely another opportunity for Mr. Goldman to “blow off steam,” and it did not result in a modification or termination of the Local 33/Sparrows Point Agreement. After that time, GSW associated with other counsel to pursue the Local 33/Sparrows Point claims.

In August 1989, Mr. Goldman notified CBT of some settlements that had been obtained in Local 33/Sparrows Point cases and informed CBT that he would hold a portion of the funds in escrow pending the resolution of their financial disputes. No response was made with regard to these funds, and Mr. Goldman eventually withdrew them. By 1994, several more Local 33/Sparrows Point cases had settled for considerable sums, and CBT contacted GSW regarding its share, at which point Mr. Goldman asserted that CBT no longer had any right to any such funds. The instant suit ensued eighteen months later.

At trial, the jury returned a special verdict indicating the following. The first Local 24/Key Highway agreement between just CBT and GSW was no longer in effect and neither party had breached the agreement. The second Local 24/Key Highway agreement remained in effect and both CBT and LPK had breached that agreement and were liable to GSW for one dollar in damages. The Local 33/Sparrows Point agreement also remained in effect, and GSW had breached that agreement.

GSW was liable to CBT for one dollar in damages and liable to LPK for one dollar in damages. The final Local 31 agreement remained in effect, but neither party had breached it. The court entered two final judgments in the case. In a Final Judgment on Breach of Contract Claims, the ⁴⁰ court entered judgment on the verdicts, including the three damages awards.

In a contemporaneous Final Judgment and Order Granting Declaratory Relief, the court declared the status of the four agreements in accord "with the jury’s verdict. The court also ordered GSW to remit $1,830,942.07 to CBT and to remit $3,861,657.53 to LPK, these sums “representing [CBT’s and LPK’s] contractual share of legal fees received by” GSW to the date of the jury verdict. Further facts will be set forth where necessary for particular discussions. DISCUSSION MLRPC Rule 1.5(e) and Post v. Bregman We first take up appellant GSW’s claim that the lower court erred by excluding from the trial all matters pertaining to the Maryland Lawyers’ Rules of Professional Conduct (MLRPC) and earlier ethical rules.

Appellant requests we order a new trial limited to the issue of whether the contracts remain in effect. (GSW does not request and has never requested any relief from the breach of contract judgment below.) Prior to trial, GSW gave notice of its intent to call an expert witness in legal ethics to testify on the ethical rules governing fee-sharing agreements, including MLRPC Rule 1.5(e) and the predecessor rule in effect at the time the agreements were made. GSW also sought to have clients testify to factual matters relevant to these ethical rules, to introduce the text of Rule 1.5(e) and its predecessor, and to instruct the jury thereon. The court sustained objections to all such evidence and denied the requested instruction.

This Court took up the issue of the effect of MLRPC Rule 1.5(e) on a suit for breaching a fee-sharing agreement in Post v. Bregman, 112 Md.App. 738 , 686 A.2d 665 (1996), decided just three weeks before trial in this case. We ruled that Rule 1.5(e) does not constitute a judicial precedent and that it cannot be read into a fee-sharing contract. Relying on our decision, the circuit court granted a motion in limine preventing GSW from presenting any evidence or defense based on that ethical rule. ⁴¹ On 15 January 1998, however, the Court of Appeals reversed this Court on that very point. Post v. Bregman, 349 Md. 142 , 707 A.2d 806 (1998).

The Court began its analysis by noting that the question of whether ethical rules are enforceable outside of disciplinary proceedings stems from the larger question of whether such rules constitute public policy. Id. at 161-62 , 707 A.2d at 815 . Unlike some states’ rules which are promulgated by a local bar association, Maryland’s rules of legal ethics are adopted by the Court of Appeals “in the exercise of its inherent Constitutional authority to regulate the practice of law.” Id. at 163 , 707 A.2d at 816 . The Court also pointed out that these rules thoroughly regulate “virtually every aspect of the practice of law.” Id. “Unquestionably, so thorough a regulation of an occupation and professional calling, the integrity of which is vital to nearly every other institution and endeavor of our society, constitutes an expression of public policy having the force of law.” Id.

The Court concluded, “MLRPC constitutes a statement of public policy by the only entity in this State having Constitutional authority to make such a statement, and it has the force of law.” Id. at 164 , 707 A.2d at 816 . As for the crucial question of whether such rules could be raised as a defense to an action on a contract, the Court first noted multiple instances in which the appellate courts of Maryland have given at least some effect to various ethical rules outside of the disciplinary context. The rules have been referred to in determining whether an attorney is a fiduciary for certain liability purposes, Advance Fin. Co. v. Trustees of the Clients’Sec. Trust Fund, 337 Md. 195 , 652 A.2d 660 (1995), whether a Public Defender must release client information under the Public Information Act, Harris v. Baltimore Sun, 330 Md. 595 , 625 A.2d 941 (1993), whether the goodwill of a legal practice may constitute marital property, Prahinski v. Prahinski, 321 Md. 227 , 582 A.2d 784 (1990), whether an attorney should be disqualified, Harris v. David S. Harris, P.A., 310 Md. 310 , 529 A.2d 356 (1987), and whether an attorney harbored criminal intent in receiving stolen goods from a client.

Cardin v. State, 73 Md.App. 200 , 533 A.2d 928 ⁴² (1987). The Court also noted with approval cases in which the analogous ethical rule of five other states had been applied to alter the effect of an attorneys’ fee-sharing agreement. The Court held: MLRPC 1.5(e) does constitute a supervening statement of public policy to which fee-sharing agreements by lawyers are subject, and [ ] the enforcement of Rule 1.5(e) is not limited to disciplinary proceedings. It may extend to holding fee-sharing agreements in clear and flagrant violation of Rule 1.5(e) unenforceable....

We highlight the word “may” for a reason. Although a fee-sharing agreement in violation of Rule 1.5(e) may be held unenforceable, the Rule is not a per se defense, rendering invalid or unenforceable otherwise valid fee-sharing agreements because of rule violations that are merely technical, incidental, or insubstantial or when it would be manifestly unfair and inequitable not to enforce the agreement. Id. at 168, 707 A.2d at 818-819 . The Court concluded with words of guidance and a remand: When presented with a defense resting on Rule 1.5(e), the court must look to all of the circumstances — whether the rule was, in fact, violated, and if violated (1) the nature of the alleged violation, (2) how the violation came about, (3) the extent to which the parties acted in good faith, (4) whether the lawyer raising the defense is at least equally culpable as the lawyer against whom the defense is raised and whether the defense is being raised simply to escape an otherwise valid contractual obligation, (5) whether the violation has some particular public importance, such that there is a public interest in not enforcing the agreement, (6) whether the client, in particular, would be harmed by enforcing the agreement, and, in that regard, if the agreement is found to be so violative of the Rule as to be unenforceable, whether all or any part of the disputed amount should be returned to the client on the ground that, to that extent, the fee is unreasonable, and (7) any other relevant considerations.

We view a violation of Rule 1.5(e), whether regarded as an external defense or as incorporated into the ⁴³ contract itself as being in the nature of an equitable defense, and principles of equity ought to be applied. As we indicated, having declared Rule 1.5(e) inapplicable, the circuit court never considered these matters. It must now do so. Id. at 169-170 , 707 A.2d at 819 (footnote omitted).

The applicability of Post to the instant case is rendered somewhat more attenuated by the fact that appellant does not here challenge the breach of contract judgment against him but only the declaratory judgment. Post only explicitly concerns use of MLRPC Rule 1.5(e) as an equitable defense to a breach of contract suit. The reasoning of Post, nevertheless, appears equally applicable to an action for a declaratory judgment on the continuing enforceability of a contract. An equitable defense in a contract suit does not render the contract void but merely unenforceable at law.

Creamer v. Helferstay, 294 Md. 107, 113-15 , 448 A.2d 332, 335-36 (1982). This is precisely the point at issue in an action seeking a declaration that a contract remains enforceable. We find that the Post defense may be available to GSW here. Post clearly contemplates, however, that a defense based on the MLRPC may not be available in every circumstance.

The several factors set forth for use in determining whether the defense is available call upon a court to exercise its equitable discretion. On the one hand, the Court of Appeals admitted that “it would indeed be anomalous to allow a lawyer to invoke the court’s aid in enforcing an unethical agreement when that very enforcement, or perhaps even the existence of the agreement sought to be enforced, would render the lawyer subject to discipline.” Post, 349 Md. at 168 , 707 A.2d at 818 (paraphrasing Scolinos v. Kolts, 37 Cal.App.4th 635, 640 , 44 Cal. Rptr.2d 31 (1995)). On the other hand, the Court also noted in a footnote the view of the Delaware Supreme Court: “As a matter of public policy, this Court will not allow a Delaware lawyer to be rewarded for violating Delaware Lawyers’ Rule of Conduct 1.5(e) by using it to avoid a contractual obligation.” Id. at 169 n. 6, 707 A.2d at 819 n. 6 (quoting Potter v. Pierce, ⁴⁴ 688 A.2d 894, 897 (Del.1996)).

We believe these contrary characterizations of the proper role of the courts in settling attorneys’ fee-splitting disputes are best interpreted as opposite ends of an equitable spectrum, with room for gradation in between. According to Post, the lower court in this case possesses the discretion to place limitations on GSW’s use of MLRPC Rule 1.5(e) as a defense in the declaratory judgment action and may even bar such a defense entirely if the equities call for such a limitation. The lower court ruled in limine that MLRPC Rule 1.5(e) did not apply to the contracts at issue and precluded GSW from pursuing any line of defense based on that rule. The record extract indicates that the circuit judge based his ruling on pure legal grounds, with strong reliance on our own, superceded Post opinion.

The lower court excluded the evidence without ever taking into consideration any of the factors subsequently outlined by the Court of Appeals. Since our opinion in Post is reversed and since the lower court has yet to examine the appropriate factors, its decision to exclude the evidence was in error. Of course, to warrant a reversal, the lower court’s rulings on the evidence and the jury instructions must not only be erroneous, but also prejudicial. Wilhelm v. State Traffic Safety Comm’n, 230 Md. 91, 102 , 185 A.2d 715, 720 (1962) (jury instructions); Rotwein v. Bogart, 227 Md. 434, 437 , 177 A.2d 258, 260 (1962) (evidence).

Appellant was clearly prejudiced by the lower court’s failure to consider whether to allow his defense based on MLRPC Rule 1.5(e), but we cannot find that appellant was prejudiced by the trial until the lower court determines whether appellant may present this defense. We will therefore vacate the declaratory judgment and remand for the trial court to balance the equities and rule on whether the defense should be allowed. If the court determines that appellant should have been allowed to present any material aspect of this defense, then it should order a new trial limited to the issue of the continuing enforceability of the contracts. ⁴⁵ Since, however, the lower court could choose to exercise the furthest breadth of its discretion and foreclose completely GSW’s proffered defense, we will address the remainder of the issues presented. The second claim of error asserted is that the trial court’s declaratory judgment violates MLRPC Rule 1.5(e) by forcing appellant to share fees with attorneys who did not earn their share and without the consent of the clients.

In most respects, this argument is a minor variation on the one we have just addressed. The instant declaratory judgment will stand or fall on remand according to whether the defense based on the MLRPC is allowed. That is not to say, however, that any MLRPC rule can trump an otherwise valid court order, as appellant’s argument insinuates. The MLRPC governs lawyers, not courts.

If a court, in the exercise of its equitable discretion, orders an attorney to abide by a contractual obligation that violates the MLRPC, the order is valid and the ethical matter rests among the attorney, the client, and the disciplinary authority. 1 Appellant asserts that the instant declaratory judgment violates ethical duties to clients and cites to the law that declaratory judgments “may not prejudice the rights of any person not a party to the proceeding.” Md.Code Ann., Cts. & Jud. Proc. § 3 — 405(a)(2) (1995). Even if the clients’ rights are prejudiced by a declaration regarding a fee-sharing agreement, the prejudice is attributable to the agreement and not the declaration of the respective legal rights of the attorneys. Appellant’s claims of trial error Appellant GSW alleges the court erroneously admitted evidence of prior fee disputes involving appellant and other attorneys and asks .that we grant a new trial on the issue of the continuing enforceability of the contracts.

Appellant ar ⁴⁶ gues that the evidence was not relevant to any issue at trial and that it permitted the jury to make the forbidden inference that GSW acted in accordance with its character as a “serial contract breacher.” Assuming for the moment that the evidence was erroneously admitted, however, we cannot find any prejudice to appellant under the circumstances. Evidence indicating the likelihood of appellant’s breach would be prejudicial as to the breach of contract claim, but appellant does not attack the breach of contract judgment. Appellant attacks the declaration of the continuing enforceability of the fee-sharing agreements, and the issue of breach is not directly relevant thereto. Even under the theory that a material breach may be the catalyst of termination, any inference that appellant breached could only support its position as to the continuing enforceability of the contracts.

Since appellant has shown no prejudice, its claim fails. Appellant next claims that the court erred in refusing to instruct the jury on the subject of contract termination, and he requests we reverse the declaratory judgment and remand for retrial limited to the continuing enforceability of the contracts. The trial court did instruct the jury on some aspects of the formation and termination of contracts. The proffered jury instructions provided: If the parties did not agree on the duration of their contract, the contract runs for a reasonable time.

A contract may not exist in perpetuity in the absence of an express provision. A contract of unspecified duration may be terminated by either party at any time, with or without the consent of the other party. Appellant claims that such instructions are proper because none of the contracts at issue had any express termination date. We agree that it is error to refuse a legally correct instruction that is supported by the evidence.

Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651, 655 (1979). As for the first instruction, it is a correct statement of the law. In the ⁴⁷ absence of a specific provision, a reasonable duration will be implied. Evergreen Amusement Corp. v. Milstead, 206 Md. 610, 617 , 112 A.2d 901, 904 (1955).

The instruction is unwarranted, however, because there is no evidence suggesting that the duration of the contracts had already run. In determining the reasonable duration of a contract, reference should always be made to the subject matter of the contract. Pumphrey v. Pelton, 250 Md. 662, 665 , 245 A.2d 301, 303 (1968). The subject matter of each of the three contracts is a limited and discrete set of asbestos-related personal injury claims.

The implied duration, therefore, must at least be the duration of that set of claims. The evidence was overwhelming at trial that claims subject to the agreements were still on-going, and GSW has pointed to no evidence to the contrary. 2 The first instruction was therefore unwarranted. The second proffered instruction is also inapplicable here, because the rule it states only applies where the parties have actually agreed upon indefinitely continuous performance. See Kiley v. First Nat’l Bank, 102 Md.App. 317, 335 , 649 A.2d 1145, 1153 (1994).

Such is not the case here. Whether by operation of the Statute of Limitations or by way of final appellate review, the asbestos claims governing the duration of the agreements will terminate some day. While none of the parties may have been able to guess the exact date on which the contracts would end, that does not mean the parties intended the contracts to be of indefinite duration. In support of its argument that the contracts are “of unspecified duration,” GSW has pointed to the fact that the contracts contain no express termination date.

This argument ignores, however, the principle stated in GSW’s first proffered jury instruction: the absence of a termination provision gives rise to an implied reasonable duration, not perpetual duration. There was no error in refusing the instructions. ⁴⁸ Appellant GSW next claims that the lower court erred by refusing to allow a defense based on the Statute of Limitations and requests a retrial limited to the continuing enforceability of the contracts. In support of this claim of error, appellant argues that both CBT and LPK were at least on inquiry notice of their contract claims against GSW well over three years prior to the initiation of suit. We pause to make clear the nature of the argument.

Appellant does not argue that the breach of contract judgment should be vacated, nor is appellant arguing that the declaratory judgment action is itself time-barred. Appellant is not here attacking the monetary awards contained in the declaratory judgment. The argument is that it was prejudicial error to preclude GSW from raising the Statute of Limitations as a defense to the declaration of the continuing enforceability of the contracts. This is not a viable defense.

The defense of limitations, when successful, renders an existing contractual debt or duty unenforceable at law; it does not extinguish that duty or rescind that contract. Jenkins v. Karlton, 329 Md. 510, 531 , 620 A.2d 894, 904 (1993); Frank v. Wareheim, 179 Md. 59, 65 , 16 A.2d 851, 853 (1940). In this case, where the contracts were all continuing in nature, a declaration that the contracts remain enforceable is completely independent of any question of whether a claim on a prior existing contractual duty is time-barred. All of the prior existing duties were the subject of the breach of contract claims.

The declaratory judgment did not pertain to any of these existing duties but only to those future duties that may arise under the on-going “enforceable” contracts. As such, the declaratory judgment does not pertain to any remedy or recovery at all and cannot be time-barred here since it pertains only to future-arising duties. Appellant’s argument seems to treat the limitations defense as if it were the equivalent of one party’s acquiescence to another party’s recission, a theory never raised here or below. The claim fails. 3 ⁴⁹ Appellant GSW’s last assertion of trial error is that the court erred by refusing to admit two “critical file memoranda” written by Mr. Goldman and again requests only a new trial on the continuing enforceability of the contracts.

The first of these two memoranda contains Mr. Goldman’s notes concerning a disputed phone conversation allegedly occurring in December of 1987. Mr. Goldman alleged that he informed Mr. Levy of LPK during that phone conversation that LPK had no interest in the Local 33/Sparrows Point agreement. Mr. Levy denied that such a phone conversation ever occurred. Other testimony established that Mr. Levy called Mr. Tuerk of CBT on that same day to request a copy of that same agreement.

Appellant alleges the memorandum of this disputed phone call should have been admitted under Maryland Rule 5-802.1 as a past recollection recorded and as a consistent statement offered to rebut an implied charge of fabrication. The second file memorandum concerns similar circumstances and allegations regarding a phone conversation of 30 March 1988. The record reflects that the first memorandum was offered for admission, a hearsay objection was made, and appellant argued only the past recollection recorded exception. The judge sustained the exception and then refused to allow Mr. Goldman to read the memorandum to the jury, but he did allow the memorandum to be used to refresh Mr. Goldman’s recollection.

The second memorandum was never offered into evidence at all, and appellant never requested that it be read to the jury. It was merely used for recollection refreshment purposes without objection. Appellant claims the judge should have admitted the two documents into evidence and ⁵⁰ that he should have at least allowed Mr. Goldman to read the memoranda to the jury. Appellant has not made clear just how the information in the memoranda is at all relevant to the issue of the continuing enforceability of the Local 33/Sparrows Point contract, given our prior rulings on the Statute of Limitations and contract termination.

Nevertheless, assuming some relevance, the claim fails on its merits. Maryland Rule 5-802.1 provides, in pertinent part: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (b) A statement that is consistent with the declarant’s testimony, if the statement is offered to rebut an' express or implied charge against the declarant of fabrication, or improper influence or motive; (e) A statement that is in the form of a memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, if the statement was made or adopted by the witness when the matter was fresh in the witness’s memory and reflects that knowledge correctly. If admitted, the statement may be read into evidence but the memorandum or record may not itself be received as an exhibit unless offered by an adverse party. These two provisions are not rules of automatic admissibility; they are only exceptions to the hearsay bar.

For failing to bring to the lower court’s attention the Rule 5-802.1(b) hearsay exception for prior consistent statements, GSW has waived any appellate reliance thereon. As for Rule 5 — 802.1(e), the argument that the documents should have been admitted into evidence fails because they were offered by appellant and not by the adverse party as ⁵¹ required under the rule. As for the ruling that Mr. Goldman could use the memoranda to refresh his recollection but not read them to the jury, we find no prejudice to GSW therefrom. Mr. Goldman was permitted to use the two documents to refresh his recollection as he testified regarding each alleged phone conversation.

We have compared the two memoranda with the relevant portions of the trial transcript, and we find that Mr. Goldman fully and completely related to the jury the substance of all pertinent statements contained in the memoranda. Moreover, the transcript reveals that Mr. Goldman used the memoranda for far more than merely refreshing his recollection, as opposing counsel and the court comment multiple times that he was improperly reading both memoranda to the jury. Having found no prejudice from the ruling, we reject this claim of error. Appellant’s right to a jury trial Appellant asks us to reverse the monetary awards contained in the declaratory judgment for violating appellant’s right to a trial by a jury.

At trial, the jury found that GSW had breached the Local 33/Sparrows Point fee-sharing agreement and awarded one dollar in damages to CBT and another dollar to LPK. The court entered a final judgment on this verdict. In a separate final order, the judge declared the respective rights of the parties