Kleban v. Eghrari-Sabet

DAVIS, J. On February 17, 2006, at the conclusion of a five-day jury trial in the Circuit Court for Montgomery County, Maryland, the jury returned a verdict for appellants Dennis G. Kleban, M.D. and Dennis G. Kleban, M.D., P.A. (Dr. Kleban) on their breach of contract claim, awarding him $75,000 and found against appellees Jacqueline S. Eghrari-Sabet, M.D. and Jacqueline S. Eghrari-Sabet, M.D., P.C. (Dr. Eghrari) 1 on the ⁶⁴ counterclaim. The circuit court excluded the testimony of appellants’ damages expert.

On March 2, 2006, appellees moved for a judgment notwithstanding the verdict, or in the alternative, a revision of the judgment. On March 9, 2006, appellants moved for a partial new trial as to damages, which the circuit court denied in its order dated August 10, 2006. The circuit court denied appellees’ motion for judgment notwithstanding the verdict, but granted appellees’ motion to revise the jury verdict in an order dated June 1, 2006. The circuit court reduced the jury’s damages award from $75,000 to $1.

The circuit court had entered a judgment in appellants’ favor for $75,000 on February 27, 2006 and subsequently entered a revised judgment, reducing appellants’ damages award to $1 on June 8, 2006. Appellants sought a motion for a partial new trial as to damages because the circuit court granted appellees’ motion to strike the opinion of appellants’ damages expert regarding future lost income and because the circuit court also granted appellees’ motion to strike the remaining portion of the testimony of appellants’ damages expert on grounds that it was not based on a sufficient factual predicate. Appellants appeal from both circuit court orders— the portion of the June 1 Order reducing appellants’ damages award from $75,000 to $1 and the August 10 Order denying appellants a partial new trial as to damages, raising the following questions for our review: 1. Did the [cjircuit [c]ourt rule incorrectly and improperly invade the province of the jury by revising the jury’s award of $75,000 on [appellants’] breach of contract claim to $1? 2.

Did the [c]ircuit [c]ourt abuse its discretion by denying [appellants’] Motion for a Partial New Trial as to Damages, which was necessitated by the [c]ircuit [c]ourt’s erroneous decision to preclude [appellants’] damages expert from testifying? ⁶⁵ FACTS AND LEGAL PROCEEDINGS In 1975, Dr. Kleban, through his corporation, Dennis Kleban, M.D., P.A., founded a medical practice specializing in treating patients with allergies. For almost twenty years, Dr. Kleban maintained a sole practice managing all aspects of his business until March 2005 in Montgomery Village, Maryland. In 1995, Dr. Kleban hired Dr. Eghrari. In January 2001, Dr. Kleban and Dr. Eghrari entered into an agreement (the “Agreement”) which established a joint practice (the Practice) and in which it was agreed, among other things, that Dr. Eghrari would assume management oversight of the practice on behalf of both of them and that Dr. Kleban would continue to treat patients until he chose to retire or died or was declared mentally incompetent.

The Agreement further provided that Dr. Eghrari would (a) acquire the lease to Dr. Kleban’s primary office in Montgomery Village, (b) oversee the daily management and operations of the joint practice for both of them, (c) hire office staff for both of them and (d) oversee payment of all overhead costs, including staff salaries and insurance costs attributable to both of them. The Agreement also provided that, going forward, Dr. Eghrari and Dr. Kleban would receive income in proportion to their respective productivity. The parties would also pay overhead expenses in proportion to their respective incomes. The Agreement also provided for a scenario in the event that either party elected to leave the shared practice.

On April 19, 2004, Dr. Eghrari “terminat[ed][the] practice relationship” effective October 31, 2004 and subsequently Dr. Kleban discontinued his practice as of March 17, 2005 and began to practice again in August 2005. The parties’ relationship deteriorated and, as a result, Dr. Kleban filed a complaint in the Circuit Court for Montgomery County on November 9, 2004 for, among other things, breach of the 2001 Agreement. The circuit court issued a scheduling order dated the same day, indicating that appellants’ experts should be identified and notification filed by April 8, 2005; the ⁶⁶ court amended that date to June 1, 2005 by order on March 24, 2005. 2 On June 1, 2005, in accordance with the amended scheduling order, appellants designated Charlotte L. Kohler (Kohler) as a testifying expert and stated that she would render the following opinion regarding the damages appellants incurred from appellees’ breach of the 2001 Agreement: Ms. Kohler will opine in this case as to the following: (i) the value of services that [appellees] Jacqueline S. Eghrari-Sabet, M.D. and her professional corporation, Jacqueline S. Eghrari-Sabet, M.D., P.C. (collectively, “Dr. Eghrari”) were to provide to Dr. Kleban pursuant to the January 1, 2001 agreement between the parties; (ii) the income and proper expenses of the practice, and, thus, the amount of compensation that was properly due to Dr. Kleban pursuant to the Agreement during the years 2001 through 2004; and (iii) the value of the income that [appellees] diverted from [appellants] to a junior doctor and ancillary medical personnel.

Ms. Kohler expects to present a reconciliation of the practice’s books as compared to the compensation that was actually paid to [appellants] and that which was actually due to [appellants] under the Agreement. On September 2, 2005, appellees served interrogatories on appellants who answered on October 6, 2005 in the following manner as to interrogatory number twenty-four: INTERROGATORY NO. 24: Identify all experts whom you expect to call as expert witnesses at trial, and state the subject matter(s) on which such experts are expected to testify, the substance of the findings and opinions to which the experts are expected to testify, and the summary of the grounds for each opinion. ⁶⁷ Attach to your Answers copies of all written reports made by such experts. RESPONSE TO INTERROGATORY NO. 24: In addition to the foregoing objections, Dr. Kleban objects to Interrogatory No. 24 as unduly burdensome and duplicative to the extent it seeks information already provided to Dr. Eghrari. Subject to and without waiving the foregoing objections, Dr. Kleban refers to [appellants’] Expert Disclosure previously filed and served.

On December 7, 2005, Kohler produced an eighty — page expert report and exhibits, detailing the entire scope of appellants’ damages to which Kohler intended to testify at trial. On December 14, 2005, appellees’ counsel deposed Kohler. Following the deposition, on December 23, 2005, appellees filed a Motion to Strike appellants’ expert alleging that appellants failed to timely designate any expert on the matter of future lost wages. On February 10, 2006, appellees moved to strike the portion of Kohler’s intended expert testimony relating to future lost income analysis.

On February 13, 2006, the jury trial, which lasted five days, commenced. After jury selection, the trial court heard arguments on the parties’ motions in limine. The trial court granted part of appellees’ motions to strike Kohler’s testimony, finding that the court would not “exclude [Kohler] in her entirety, but she may not testify to those matters that were essentially in the supplement, which the [c]ourt finds to be above and beyond what the put [sic] the defendant, or [appellants] put the [appellees] on notice that they would testify to.” In ruling on the motion to strike, the court reasoned: The issue here is a simple one. It is not an evidentiary question; it’s a procedural question whether in fact you designate an expert and notify the other side what that expert witness is going to testify to, the other side has a right to rely upon that. ⁶⁸ What the [appellees] are saying, but we didn’t know that she was going to testify about future damages, lost wages out into the future.

Had we known that, we would have done some other things with our expert. The answer is not whether or not there was evidence by the answers to interrogatories or in deposition that this was an issue that was out there. Clearly the doctor himself will testify in this case, I’m virtually assured of that, and he can certainly testify to what his losses are, what his losses will be. That could have been an alternative in this case, and there may not have been a necessity for an expert.

And so whether [appellees] made that as a trial strategy or not is really not before this Court. They were not required to be prepared for any and everything that an expert might possibly say after it had been made very clear to what the expert would say. Now, they’re not asking that the expert be excluded in her entirety, and she will not be, but just that she will not be permitted to testify regarding that portion of her opinion that involves future wages. Counsel says they subpoenaed documents that she had, and that once a subpoena was issued that it was improper to destroy those documents.

Well, we don’t really have to reach that issue, since the Court will not permit the testimony that goes beyond what she was originally designated to testify to. Thus, as a result of the court’s ruling, Kohler would not be permitted to testify about appellants’ future lost wages, but she would be permitted to testify as to her opinions regarding the other types of damages that appellees suffered. Appellants objected to the circuit court’s ruling and thereafter presented opening statements and, from that point forward, Kohler was in the courtroom for all of appellants’ case-in-chief. During the second day of the trial, on February 14, 2006, Dr. Kleban testified about the nature of damages that he had ⁶⁹ suffered.

He described the significant decline in his income, the sharp decrease in the number of new patients he was scheduled to treat starting in January 2003 and his inability to recoup his lost income after being forced from the Practice in March 2005. In addition, during his direct testimony, Dr. Kleban introduced into evidence documents cataloging his concerns about the Practice’s escalating overhead costs and about his decreased income. Evidence relating to the nature and extent of appellants’ damages also was introduced during the direct examinations of other witnesses, including Emmick, who testified that he helped appellees force appellants from the Practice and that he understood that removing Dr. Kleban from the Practice would cause Dr. Kleban to lose significant income. At the end of the day on February 14, the parties stipulated to admission of Kohler’s curriculum vitae.

The next day, February 15, Dr. Heidi Isenberg-Feig, appellees’ former employee and appellants’ current employer, offered direct testimony that, beginning in 2003, all or almost all of the Practice’s new patients were diverted to her and away from appellants and Kohler testified for approximately thirty minutes about her professional endeavors and qualifications. The next morning, on February 16, appellees moved to strike Kohler’s testimony, contending that Kohler’s proffered opinion, the scope of which was presented in her expert report and during her deposition, was speculative and not based on the facts at issue in the case. After testimony of Kohler outside of the jury, the trial court refused to permit her to testify, finding that there “was not a sufficient factual basis” for her opinion. In excluding the witness’s testimony, the court ruled: Well, in Wallach v. Board of Education, which is at 99 Md.App. 386 , 637 A.2d 859 , the Court had a similar dilemma before it with respect to an expert witness____ But the Court said that in that situation, it “lacked a factual foundation required for an opinion to be admissible.” The opinion was based on mere conjecture or speculation. ⁷⁰ And in this case we don’t have any hypothetical questions.

We have no sufficient factual foundation regarding the basis upon which this expert made her determinations. Now, we haven’t heard from the [appellee], but we’ve heard extensive testimony from Dr. Kleban. It isn’t anything complicated. I mean he’s testified that he brought in a young doctor, that he wound down his practice, that in fact they agreed to sell the practice, that he was going to stay on and that he was going to, as I said, cut back on his practice but he was still going to have the benefit of the office, the staff, personnel, and practice there.

And for business reasons essentially became, even though these were not his words, the Court reasonably infers, an employee of the practice, not an employee of Dr. Eghrari but an employee of the practice. And slowly but surely, the Court infers that he has testified that he was gradually pushed out. He began to notice that the expenses were increasing and his income was going down as the expenses increased. Eventually the case ended up in a lawsuit, or in several lawsuits.

There isn’t anything complicated about that. There’s nothing that needs an expert witness. [APPELLANT’S COUNSEL]: Ms. Kohler had other opinions as well. Are you excluding Ms. Kohler in all respects? THE COURT: I don’t find that there is a sufficient factual basis for expert testimony in this case.

Aside from that, the purpose of an expert witness is to help a jury understand certain things. There’s nothing complicated in this case in terms of what occurred between the [appellants] and the [appellees]. On February 17, at the close of appellants’ case, appellees moved for judgment on appellants’ contract claim, arguing that appellants failed to present legally sufficient evidence of ⁷¹ Dr. Kleban’s damages. The court denied that motion and explained that there was sufficient evidence to take the case to the jury.

The trial court found: Having considered and reviewed [the court’s] notes and the evidence in this case, the [c]ourt will deny the motion and the case will go to the jury. The [appellant] may not have met his requirements of proving his damages to the extent that the [appellant] is asking for them but the jury could very well given the facts in this case, this [c]ourt finds a jury could find in favor of the [appellant] and award the [appellant] nominal damages. It’s not, the evidence doesn’t have to be that the [appellant] has proven up the damages for which they are praying. And there is, in fact, a jury instruction on nominal damages and so the motion is denied.

The jury returned a verdict for appellants and judgment was entered on March 1, 2006. On March 2, 2006, appellees filed a motion for judgment notwithstanding the verdict, or in the alternative, to revise the judgment and, on March 9, 2006, appellants filed a motion for a new trial. The circuit court heard arguments on appellees’ motion on May 31, 2006 and, in an Order dated June 1, 2006, denied the motion for judgment notwithstanding the verdict, but granted the motion to revise the judgment, reducing appellants’ damages award from $75,000 to $1 pursuant to Maryland Rule 2-535. The court ruled: In all, [appellees] claims that [appellants] failed to show that any of the numbers presented to the jury had any relation to the purported loss that he suffered as a result of any breach by [appellees].

Further, and very instructive for the Court, the [appellees] conceded during the motion hearing that it is accepted for purposes of this motion that (1) there was a contract between [appellants] and [appellees]; (2) that the jury found that [appellees] breached the contract; (3) that there was some evidence before the jury that [appellants] made a certain amount of income prior to his departure from the ⁷² practice with the [appellees] and (4) that [appellants’] income has dropped, perhaps precipitously so, since his departure from Eghrari P.C. What the [appellees] does not concede, and what [appellees] urges this Court to recognize as [appellants’] failure to present during trial, is any notion that the jury was provided with any evidence of why [appellants’] income dropped following [appellees’] breach of the contract or, stated another way, that the losses allegedly suffered by [appellants] were attributable to [appellees’] breach of the contract. See Kirby v. Chrysler Corp., 554 F.Supp. 743, 753 (D.Md.1982). With respect to the revision of the verdict, [appellants] correctly sets forth the standard for such motions and states that it in order to revise a jury’s verdict, the Court must first determine whether the verdict was defective and then must ascertain what the jury manifestly and beyond a doubt intended and consider whether the verdict accords with this manifest intent. See 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). [Appellants] argues that [appellees] have failed to meet this burden because it is not alleged in the [appellees’] motion that the jury’s verdict does not accord with its apparent intent. “A motion for judgment notwithstanding the verdict need not be filed if the court reserved ruling on a motion for judgment under Rule 2-519 made at the conclusion of all the evidence. The reservation automatically converts the losing party’s motion for judgment into a motion for judgment notwithstanding the verdict.” See Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 448 (3rd Ed.2003). Coupled with the fact that a motion for judgment notwithstanding the verdict may be filed only if the moving party also made a motion for judgment under Rule 2-519, Rule 2-532 clearly contemplates and logically must be in place for those parties whose motions for directed verdict ⁷³ were in fact denied by the trial court. Otherwise, if the moving party prevailed or the Rule 2-519 motion or the ruling on the Rule 2-532 motion was reserved by the court, there would be no need to have a separate provision coveting motions for judgment notwithstanding the verdict.

The trial judge further opined that, when he denied appellees’ Motion for Directed Verdict, damages had not been proven by appellants, although he believed that appellees had breached the contract. The Court had intended that the breach of contract claim go to the jury for “what could possibly be nominal damages.” The court based its decision to revise the verdict on its finding of liability and the appellees’ concessions that there have been a breach of contract and a precipitous drop in income subsequent to appellees’ departure from the business. In conclusion, as noted, the court announced, “[appellees’] Motion for Judgment Notwithstanding the Verdict is DENIED and [appellees’] Motion to Revise the Judgment is GRANTED and the Judgment is hereby REDUCED to $1.00 compensatory damages in [appellants’] favor, reflecting nominal damages awarded in the event compensatory damages are not adequately proven despite a finding of liability. See Asibem Associates, Limited v. Rill, 264 Md. 272, 276 , 286 A.2d 160 (1972).

An order shall issue.” The memorandum opinion ended by stating that the following order would issue: ORDER UPON CONSIDERATION of [appellees’] Motion for Judgment Notwithstanding the Verdict or, in the alternative, Motion to Revise the Judgment, filed herein at DE#301, [appellants’] response thereto, filed herein at DE# 313, and [appellees’] Response thereto, filed herein at DE#315, and upon consideration of the May 31, 2006 hearing on [appellees’] motion, it is this 1st day June, 2006, by the Circuit Court for Montgomery County, Maryland, ⁷⁴ ORDERED that [appellees’] Motion for Judgment Notwithstanding the Verdict is hereby DENIED and [appellees’] Motion to Revise the Judgment is hereby GRANTED; and it is further ORDERED that the judgment in this case is hereby MODIFIED to reflect an award in [appellants’] favor of $1.00 in nominal damages. On July 12, 2006, the circuit court heard arguments on appellants’ motion for a new trial and ruled as follows: THE COURT: An examination of Ms. Kohler’s opinions leads to the inescapable conclusion that her testimony lacked the necessary factual predicate to raise it above the level of mere speculation and conjecture: Q. Okay. And you came up with your own formulation for how the percentages should have worked between these doctors, right? A: Yes, I did.

Q. Okay. And in fact you applied two different percentages, right? One for overhead and a different formula for their percentage generally. A. Yes, I did.

Q: The contract, you know that’s in evidence, right? A: I sure do. Q: That talks about a formula that’s based on billing, right? A: Yes.

Q: Okay. And you didn’t do that in your formula. A: I did in part. Q: In part, but in part you didn’t, right?

A: In part, because— Q: I don’t need the explanation, I just, in part you did not follow the formula set forth in the contract, right? A: In part. ⁷⁵ Q. Okay. So just to be clear, and then I think I may be done, the work you did was apply your practice experience in this field, and your accounting background, and essentially try to look yourself at the year 2001, 2004, and determine what, how overhead should have been allocated, and look at the checks that came in, the Virginia Commerce Bank, and figure out from that, based on your assessment of how it should have been done, how much Dr. Kleban owed. And then you compared that to what you saw on his tax return he was paid, and that’s how you came up with the difference.

A: That’s correct. Q: And you didn’t look at how it in fact was allocated at all. A: I couldn’t. Q: Okay.

But you didn’t. A: I couldn’t. I didn’t say I didn’t. I said I couldn’t.

Q: And because you couldn’t, you did not. A: That is correct. Q: Your report is not based on anything actual about the allocation, is that a fair statement. A: It’s a fair statement.

Q: And what you looked at as the basis, as your starting point to figure out the income, was all the money that went into Dr. Eghrari’s P.C. bank account at Virginia Commerce Bank, right. A: That was one of my starting point [sic], sure. Q: Okay. So you included anything that was in that bank account.

A: No. We were able to segregate some things out that appeared, because of the information provided, not to be patient receipts. Q: Okay. Are you confident that the only thing you included was patient receipts? ⁷⁶ A: I can’t swear— Q: Or do you not know? A: —it’s 100 percent.

It’s very close. Q: Okay. Do you know that Dr. Eghrari, for example, gets paid by drug companies to conduct studies? A: No. Q: Okay.

Do you know that Dr. Eghrari speaks and receives honoraria for speaking at a CNE program? A: No. Q: Okay. So you didn’t break out any of that in Virginia Commerce Bank money, did you? A: Didn’t have the information.

The Court puts forth this unusually lengthy portion of the trial transcript because this section fully demonstrates how tenuous a connection Ms. Kohler’s testimony had to the facts of this case. In a breach of contract action, Ms. Kohler ignored the contract while determining how costs and profits should have been allocated, matters covered by the contract. When calculating damages, based on a formula of her own creation — which had no relevance to this matter — Ms. Kohler opined based on an incomplete, and ultimately incorrect, factual predicate. [ Appellant] also complains about this Court’s ruling which struck Ms. Kohler [sic] specific testimony regarding lost future income. As discussed, supra, Ms. Kohler’s testimony, in its entirety, was rightfully excluded at trial for lack of an adequate factual basis, rendering this question moot.

Even if Ms. Kohler had an adequate factual basis for her opinions regarding lost future income, a possibility which this Court finds wholly unlikely, [appellant’s] failure to timely disclose this opinion on his expert designation of Ms. Kohler was a substantive violation of the Maryland Rules and this Court’s Scheduling Order for this matter which prejudiced the appellees. ⁷⁷ In an order dated August 10, 2006, the court denied the motion. On June 30, 2006, appellants filed a notice of appeal from the circuit court’s June 1 order revising the judgment and reducing the award and, on September 5, 2006, appellants filed a subsequent appeal from the circuit court’s August 10 Order denying appellants’ motion for a new trial. With the second notice of appeal, appellants included a request that both appeals be joined and treated as a consolidated appeal. Thus, appellants appeal from the circuit court’s Orders of July 12, 2006 and August 10, 2006.

Additional facts will be provided as warranted. LEGAL ANALYSIS I REVISION OF JUDGMENT Appellants contend that the trial court’s order revising the judgment and reducing appellants’ damages award to $1 from a jury award of $75,000 constituted legal error. Although a trial court has some discretion to revise a jury verdict, that discretion is not boundless and if the trial court’s actions are “clearly arbitrary or [have] no sound basis in law or in reason,” revisory actions are subject to review. Wormwood v. Batching Systems, Inc., 124 Md.App. 695, 700 , 723 A.2d 568 (1999).

We will not reverse unless there is grave reason to do so. Id. We explained in Wormwood that “[t]he real question is whether justice has not been done, and our review of the exercise of a court’s discretion will be guided by that concept.” Id. Appellees counter that appellants failed to present any evidence to link the breach of the 2001 Agreement with losses purportedly suffered and, thus, the trial court acted well within its broad discretion in revising the damages awarded to appellants. “The amount of damages recoverable for breach of contract is that which will place the injured party in the monetary position he would have occupied if the contract had ⁷⁸ been properly performed.” Hall v. Lovell Regency Homes Ltd. P’ship, 121 Md.App. 1, 12 , 708 A.2d 344 (1998).

Thus, according to appellees, appellants failed to prove compensatory damages to a reasonable certainty and may not recover damages that are based on speculation or conjecture. Asibem Assocs., Ltd. v. Rill, 264 Md. 272, 276 , 286 A.2d 160 (1972) (stating that failure to prove compensatory damages entitles a plaintiff to nominal damages only). The trial court stated that “while there was some evidence of diminution of profits by [appellees] and some tangential evidence involving tax returns that purportedly showed the same, it was the [appellants’] burden to show by a preponderance of the evidence that it was the [appellees’] breach that in fact caused those consequential damages.” In regard to how appellants should have proceeded, the court found that [appellants] were “mandated to go a little farther in connecting the dots to prove damages and cannot simply assert that various documents ‘speak for themselves.’ ” Appellants contend that a trial court may not substitute its own judgment for that of the jury. The trial court can correct, remold or reform a verdict so as to express the jury’s clear and definitely manifested intention, but in revising the damages, cannot substitute its intentions for that of the jury.

According to appellants, the jury considered and rejected their prerogative to award appellants nominal damages and, instead, awarded appellants $75,000 in damages. Thus, the jury clearly manifested its intention not to award nominal damages. The trial court’s revision, they claim, expressly countermanded the jury’s intention. The trial court’s order stated that, pursuant to Maryland Rule 2-535, it found that the jury verdict was unreasonable in light of appellants’ proof of damages and the order therefore granted appellees’ motion to revise the judgment.

Preliminarily, we pause to clarify what we are tasked to review on this appeal. Appellants have appealed from the order of the circuit court denying their motion for a new trial entered on August 10, 2006. They have also appealed from the court’s ⁷⁹ order dated June 1, 2006, in which the court denied appellee’s motion for judgment notwithstanding the verdict, but granted their motion to revise the jury award, reducing it from $75,000 to the nominal award of $1.00, pursuant to Maryland Rule 2-535. Thus, in a determination of the propriety of the court’s rulings, we must engage in an analysis of the proper bases for the grant or denial of a motion requesting that the court exercise its revisory power, a motion for new trial and a motion for judgment notwithstanding the verdict. i.

MARYLAND RULE 2-535 3 Maryland Rule 2-535 provides: Rule 2-535. REVISORY POWER (a) Generally. — On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534. As indicated, swpra, in an action tried before the court, the limitation on the court’s revisory power is prescribed by “any action that it could have taken under Rule 2-534,” Motion to Alter or Amend a Judgment — Court Decision, which provides: In an action decided by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. A motion to alter or amend a judgment may be joined with a motion for new trial. ⁸⁰ Further explicating the revisory power of the court, noted commentators have observed: On a motion to revise a judgment entered on the verdict of a jury [under 2-535], 4 the court’s power to revise the judgment is no greater than the power it had to grant a judgment notwithstanding the verdict or new trial under Rules 2-532 and 2-533.

Any other result would invade the ⁸¹ fact finding province of the jury. The trial court otherwise has broad discretion to revise the judgment to ensure that “technicality does not triumph over justice.” Haskell v. Carey, 294 Md. 550, 558 , 451 A.2d 658, 663 (1982). On a motion to revise a judgment entered on the decision of the court, the court may take the same action it could have taken on a motion to alter or amend under Rule 2-534. Because the court made the decision upon which the judgment was entered, it may change its mind entirely, modify the judgment or strike the judgment and receive additional evidence.

Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 448 (3rd Ed.2003), p. 460. The above passage from the treatise of Niemeyer & Schuett provides a luminous explication of the relations and distinctions between Maryland Rules 2-535, 2-534, 2-532 and 2-533. In the appeal currently under review, we are tasked to determine the scope of the trial judge’s authority to, in essence, substitute his judgment for the verdict rendered by the jury. The soundness of the rationale expressed by Niemeyer and Schuett for drawing a distinction between the more expansive authority to revise a judgment under Rule 2-534, in contrast to Rule 2-535, is beyond cavil, because, in such case, the court, in the first instance, made the decision upon which the judgment was entered and any change made — whether the entry of an entirely different judgment, modification of its judgment or the striking of the judgment and receipt of additional evidence — it in no way implicates invasion of the fact finding province of the jury.

The excerpt from Maryland Rules Commentary, supra, postulates further that the court’s power to revise a judgment can be no greater than the power it has to grant a judgment notwithstanding the verdict or new trial under Rules 2-532 and 2-533 without invading the fact finding province of the jury. Because the explication of Rules 2-535, 2-532 and 2-533 is expressed in terms of the interplay between these rules, an ⁸² examination of the authority of the court to alter the jury’s ultimate determination, pursuant to these rules, is instructive. ii. Rule 2-533, Motion for New Trial, provides, in pertinent part: a) Time for Filing. Any party may file a motion for new trial within ten days after entry of judgment.

A party whose verdict has been set aside on a motion for judgment notwithstanding the verdict or a party whose judgment has been amended on a motion to amend the judgment may file a motion for new trial within ten days after entry of the judgment notwithstanding the verdict or the amended judgment. (b) Grounds. All grounds advanced in support of the motion shall be filed in writing within the time prescribed for the filing of the motion, and no other grounds shall thereafter be assigned without leave of court. (c) Disposition.

The court may set aside all or part of any judgment entered and grant a new trial to all or any of the parties and on all of the issues, or some of the issues if the issues are fairly severable. If a partial new trial is granted, the judge may direct the entry of judgment as to the remaining parties or issues or stay the entry of judgment until after the new trial. When a motion for new trial is joined with a motion for judgment notwithstanding the verdict and the motion for judgment notwithstanding the verdict is granted, the court at the same time shall decide whether to grant that party’s motion for new trial if the judgment is thereafter reversed on appeal. “It is fundamental that the grant or refusal of a new trial is within the sound discretion of the trial court and is not reversible on appeal, at least when the trial court fairly exercised its discretion, and except for the most compelling reasons.” Mack Trucks, Inc. v. Webber, 29 Md.App. 256, 270 , 347 A.2d 865 (1975). “The breadth of a trial judge’s discretion ⁸³ to grant or deny a new trial is not fixed and immutable; rather, it will expand or contract depending on the nature of the factors being considered.” Butkiewicz v. State, 127 Md. App. 412, 422 , 732 A.2d 994 (1999)(citing Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 58-59 , 612 A.2d 1294 (1992)). See also Md. Coal & Realty Co. v. Eckhart, 25 Md.App. 605, 617 , 337 A.2d 150 (1975); Angell v. Just, 22 Md.App. 43, 56 , 321 A.2d 830 (1974); Wash., Balt. & Annap.

Elec. R.R. Co. v. Kimmey, 141 Md. 243 , 118 A. 648 (1922); 58 Am.Jur.2d, New Trial § 168; J. Poe, 2 Pleading and Practice at Law, (Tiffany ed.), § 338 at 323. The foregoing denotes the trial judge’s virtually unfettered discretion in the decision whether to grant a motion for new trial. We surmise that, although a trial court may exercise no more authority in revising a jury verdict than it may exercise in the grant or denial of a motion for new trial, broader discretion is recognized in the case of the latter because, unless the court can articulate an absolute failure of proof to support the jury verdict, the court’s action may well encroach upon the fact finding province of the jury.

While the court’s power to revise a jury verdict is no more than its authority to grant a new trial, given that the authority to grant a new trial is virtually boundless, the result is that Rule 2-533 delineates the outer limits of the court’s authority, which is not inconsistent with the more restrictive view of the court’s revisory power under Rule 2-535. Substitution of the court’s judgment may well result in invading the fact finding province of the jury under Rule 2-535. The grant of a new trial presents no such result. iii. Maryland Rule 2-532, Motion for Judgment Notwithstanding the Verdict, provides: (a) When Permitted.

In a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion. ⁸⁴ (c) Joinder With Motion for New Trial. A motion for judgment notwithstanding the verdict may be joined with a motion for a new trial. (e) Disposition. If a verdict has been returned, the court may deny the motion, or it may grant the motion, set aside any judgment entered on the verdict, and direct the entry of a new judgment.

If a verdict has not been returned, the court may grant the motion and direct the entry of judgment or order a new trial. If a party’s motion for judgment notwithstanding the verdict is granted, the court at the same time shall decide whether to grant that party’s motion for new trial, if any, should the judgment thereafter be reversed on appeal. (f) Effect of Reversal on Appeal. (1) When Judgment Notwithstanding the Verdict Granted.

If a motion for judgment notwithstanding the verdict is granted and the appellate court reverses, it may (A) enter judgment on the original verdict, (B) remand the case for a new trial in accordance with a conditional order of the trial court, or (C) itself order a new trial. If the trial court has conditionally denied a motion for new trial, the appellee may assert error in that denial and, if the judgment notwithstanding the verdict is reversed, subsequent proceedings shall be in accordance with the order of the appellate court. (2) When Judgment Notwithstanding the Verdict Denied. If a motion for judgment notwithstanding the verdict has been denied and the appellate court reverses, it may (A) enter judgment as if the motion had been granted or (B) itself order a new trial.

If the motion for judgment notwithstanding the verdict has been denied, the prevailing party may, as appellee, assert grounds entitling that party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion. If the appellate court reverses the judgment, nothing in this Rule precludes it from determining that the appellee is entitled to a new ⁸⁵ trial or from directing the trial court to determine whether a new trial should be granted. In A.S. Abell Co. v. Skeen, 265 Md. 53, 59 , 288 A.2d 596 (1972) (abrogated on other grounds by Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51 , 612 A.2d 1294 (1992)), the Court of Appeals declared that, with respect to former Rule 563, dealing with the procedures involved in making a motion for a judgment n. o. v., the “Rule shall not apply to cases tried before the court without a jury. It is quite clear, not only from this rule but also from out decisions, that a motion n. o. v. has no place in a non-jury trial.” See also Md. Lumber Co. v. Legum, 197 Md. 483, 485 , 80 A.2d 34 (1951) (decided under predecessor rule); Harris v. Kirshner, 194 Md. 139, 147 , 70 A.2d 47 (1949).

The effect of the grant of judgment notwithstanding the verdict is similar to a Rule 2-535 action because it operates to supplant the jury’s verdict, unlike the grant of a motion for new trial, in which the movant gets a second chance to present his/her case before a new jury, with the prospect of securing a jury verdict, unaffected by judicial alteration. For that reason, the guideposts are more definitive, delimiting the circumstances in which we will uphold a court’s revision of the jury verdict. The bedrock principle justifying the grant of a judgment n.o.v. is when the evidence, at the close of the case, taken in