Larche v. Car Wholesalers, Inc.

BLOOM, Judge. Appellant, Timothy Larche, purchased an automobile, a 1982 Pontiac Firebird, from appellee Car Wholesalers, Inc., trading as Parsons Auto Sales, a licensed used car dealer in Baltimore. Claiming that the vehicle had been represented to him as a new car which had been driven 6,325 miles as a “demonstrator” whereas in fact it was a used car that Parsons Auto Sales had acquired from another dealer, ap ³²⁵ pellant filed an action in the Circuit Court for Baltimore City against Car Wholesalers, Inc., and its owner-salesman, appellee Barry Parsons. In its final form, appellant’s complaint (Second Amended Complaint) contained seven counts, asserting causes of action for fraud, breach of warranty, breach of contract, unfair and deceptive trade practice, negligent misrepresentation, civil conspiracy, and violation of Magnuson-Moss Warranty Federal Trade Commission Improvement Act ( 15 U.S.C. § 2310 (d) and (e)).

Punitive damages were claimed on the fraud and conspiracy counts. At the close of the plaintiff’s case, the court granted defendant’s motion for judgment on the civil conspiracy count and motion to strike the claim for punitive damages. Motions for judgment on the other counts were denied and, when renewed at the conclusion of all the evidence, denied again. Assuming that the same damages would be recoverable under each of the remaining counts, the court submitted the case to the jury for a general verdict, without specifying the theory, claim, or count, but instructed the jury on the law applicable to all the causes of action still open.

The jury returned a verdict in favor of appellant in the amount of $8,500 compensatory damages, and judgment was entered accordingly. Appealing from that judgment, appellant asserts that the trial judge erred in refusing to let the jury consider the civil conspiracy claim and the claim for punitive damages. Appellees have moved to dismiss the appeal on the ground that the judgment is not final because part of appellant’s claim under the Magnuson-Moss Act count was for attorney’s fees and other costs, and that aspect of the action has not been resolved. Alternatively, appellees have cross-appealed, asserting that the trial judge erred in not granting their motion for judgment as to the Magnuson-Moss Act count and, in any event, that the verdict sheet form utilized by the trial judge makes it impossible to determine whether the jury found a violation of the Magnuson-Moss Act.

We shall consider these contentions seriatim, but in a somewhat different order. ³²⁶ I We shall deny appellees’ motion to dismiss Mr. Larche’s appeal, even though the claim for attorneys’ fees as part of the asserted cause of action for violation of the Magnuson-Moss Act has not been resolved by the trial court. The Magnuson-Moss Act provides in pertinent part ( 15 U.S.C. § 2310 (d)(2)): If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses (including attorneys’ fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine such an award of attorneys’ fees would be inappropriate. Emphasizing that any award of attorneys’ fees under the Act would be part of the judgment, appellees’ motion is based on Md. Rule 2-602(a) which provides that unless the trial court expressly determines (pursuant to section (b) of the rule) that there is no just reason for delay and directs the entry of a final judgment, an order or decision that adjudicates fewer than all the claims in an action, or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to an action is not a final judgment and does not terminate the action as to any of the claims or any of the parties. Neither this Court nor the Court of Appeals has had the occasion to address this precise issue.

In County Executive of Prince George’s County v. Doe, 300 Md. 445 , 479 A.2d 352 (1984), however, the Court of Appeals dealt with an award of counsel fees in an action under 42 U.S.C. § 1983 , the Civil Rights Act of 1871. The Civil Rights Attorney’s Fees Award Act of 1976, codified as the last sentence in 42 U.S.C. § 1988 , provides that in any action to ³²⁷ enforce a provision of sections 1981, 1982, 1983, 1985, or 1986, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. The Court stated in Doe, 300 Md. at 451 n. 4, 479 A.2d 352 , that under 42 U.S.C. § 1988 , a claim for an attorney’s fee, while an integral part of the remedy under 42 U.S.C. § 1983 , is viewed as being collateral to the § 1983 action. The claim for an attorney’s fee, therefore, may be brought following a final judgment in a § 1983 action.

The Court reaffirmed that statement in Maryland-National Capital Park and Planning Commission v. Crawford, 307 Md. 1, 88-39 , 511 A.2d 1079 (1986). Despite the language of § 2310(d)(2) to the effect that counsel fees may be recovered by a successful consumer litigant “as part of the judgment,” courts have treated such awards as being entirely separate from or collateral to the underlying action to recover damages or obtain other relief for a failure to honor a warranty. See, e.g., Seybold v. Francis P. Dean, Inc., 628 F.Supp. 912 (W.D.Pa.1986), in which a car buyer who failed to plead a claim for attorney’s fees under § 2310(d)(2) of the Act in his suit to revoke acceptance of the vehicle was allowed to petition for counsel fees after recovering a judgment for the purchase price of the car plus damages. See also Saval v. BL Ltd., 710 F.2d 1027 (1988), in which the Fourth Circuit Court of Appeals affirmed a ruling by the United States District Court for the District of Maryland to the effect that counsel fees available in an action brought under the Magnuson-Moss Act were to be considered as part of the costs and thus a claim for counsel fees could not be added to the claim for compensatory damages to bring the case within the jurisdiction of the federal court.

(Section 2810(d)(8)(B) provides that the amount in controversy may not be less than $50,-000 (exclusive of interests and costs) in order for a claim under the Act to be cognizable in a federal court.) A claim for counsel fees as part of a suit under the Magnuson-Moss Act is clearly analogous to a claim for counsel fees in a § 1988 action. In both types of action, an ³²⁸ award of counsel fees is not made by a jury but is entirely within the discretion of the trial judge and, being dependent upon the merits of the claim, ordinarily would not even be considered until after the verdict on the underlying action. We hold, therefore, that a claim for attorneys’ fees under § 2310(d)(2) of the Magnuson-Moss Act is collateral to the principal action so that an appeal will lie from a final judgment on the underlying claim despite the pendency of a decision on the attorneys’ fees claim. II Appellees/cross-appellants contend that the trial court erred in denying their motion for judgment on the seventh count (the Magnuson-Moss Act claim) because there was no evidence of any obligation under any implied or express warranty requiring appellees either to reimburse appellant or take back the automobile.

That contention was never made below; it cannot be made for the first time on appeal. Md.Rule 8-131(a). See Robinson v. State, 66 Md. App. 246, 254-55 , 503 A.2d 725 (1986); Medley v. State, 52 Md.App. 225, 230-31, 448 A.2d 363 (1982). At the close of the plaintiff’s case, appellees moved for judgment on the seventh count, asserting, as their sole ground, that appellees had not been given a reasonable opportunity to repair the problems with the car.

Their motion was denied. They then put on their own case. In doing so, they withdrew their motion. Md. Rule 2-519(c).

At the conclusion of all the evidence, appellees' counsel, after identifying which exhibits