Luppino v. Gray

BELL, Judge. We granted certiorari to consider whether, in light of Article TV, section 8(a) of the Maryland Constitution, the failure of the parties to a civil action to elect a jury trial pursuant to Maryland Rule 2-325, thus waiving their right to that mode of trial, results in a constitutionally guaranteed court trial. 1 In ¹⁹⁷ an unreported opinion, a divided panel of the Court of Special Appeals held that it does not. We granted the petition for writ of certiorari filed by Rocco Luppino, the petitioner. We shall affirm.

I This case had its genesis when the petitioner sold his home to the respondents, Steven J. Gray and Mary Soraci, his wife. When the respondents subsequently discovered extensive “old termite damage, rotting wood, evidence of earlier repairs and other adverse conditions,” they sued the petitioner for fraud, intentional concealment, and negligent misrepresentation. 2 Neither the respondents, as plaintiffs, nor the petitioner, as defendant, elected a jury trial pursuant to Maryland Rule 2-325. 3 More than two years after they filed their initial complaint, the respondents amended it to add four additional counts. Along with the filing of the amended complaint, the respondents filed a demand for jury trial. Motions to dismiss or to strike the amended complaint and a motion to strike jury trial demand were filed by the defendants. 4 The court granted the ¹⁹⁸ motions to strike the amended complaint as to three of the four counts, but denied them as to amended count 6, which alleged intentional omission.

The court also denied the motion to strike jury trial demand, thus, permitting the case to proceed before a jury. The jury found against the petitioner and in favor of the respondents on all counts submitted to it, including count 6, and awarded the respondents both compensatory and punitive damages. The petitioner’s Motion For A Judgment N.O.V. Or Remittitur Or New Trial was denied. He then appealed to the Court of Special Appeals, which affirmed the judgment of the Circuit Court for Prince George’s County.

The intermediate appellate court agreed with the petitioner that the trial court erred in permitting the case to proceed as a jury trial. It agreed with the respondents, on the other hand, that the error was harmless, holding that the appellant, having shown no prejudice, was not entitled to reversal of the judgment. As to the former, the court reasoned that count 6 was merely the restatement of a claim for fraud already set forth in two other counts of the complaint; it did not add a new substantive issue. Nevertheless, the court was of the view that, error having been shown, the petitioner failed to prove any injury that he suffered as a result.

As to that, the court observed: He did not complain that the belated election for a jury trial presented any difficulty in being prepared for trial or any other hardship or complexity. Indeed, the only concern he expressed was that a jury trial would take longer than a court trial and might conflict with another scheduled trial. There is no claim that such a conflict did occur or that, if it did, the resulting postponement of the other case prejudiced the defendant in this one. Slip op. at 6.

It was in this context that the Court of Special Appeals raised, and ultimately decided, the issues, which are at the heart of this appeal. ¹⁹⁹ Because the petitioner did not establish prejudice as a factual matter, the intermediate court recognized that he could prevail only if allowance of a jury trial violated a right of constitutional dimension that the petitioner enjoyed. Addressing that issue, it concluded that the belated election of a jury trial did not deprive the appellant of a constitutional right to a non-jury trial because the failure to elect a jury trial pursuant to Maryland Rule 2-325(b), being merely procedural, does not confer any constitutional right on any party. But the court did not hold that there is no constitutional right to a court trial. On the contrary, it suggested that there is such a right when it stated that erroneously allowing a plaintiff belatedly to elect a jury trial “cannot deprive the defendant of any constitutional right because the constitutional right to a non-jury trial exists only if all parties desire a non-jury trial.” Slip op. at 8 (some emphasis added).

The dissenting judge agreed with the majority’s conclusion that there is a constitutional right to a court trial. Indeed, it is upon the majority’s statement of when it exists that he constructs an argument equating the parties’ waiver of a jury trial, ie. their failure to demand a jury trial pursuant to Rule 2-325(b), with the requirement of Article IV, section 8(a) 5 of the Maryland Constitution that the parties “submit the case to the court for determination without the aid of a jury.” Thus, according to the dissenting judge, whose argument the petitioner adopts, the waiver of a jury trial is the same as affirmatively agreeing to a court trial: I would hold, and I think it would be entirely consistent with the Maryland Rules, that once the right to a jury trial has been waived, the parties are submitting their case to be tried by the court. That right, while subservient to the constitutional right to a jury trial prior to a waiver, becomes ²⁰⁰ cognizable upon the waiver of a jury trial made pursuant to Maryland Rule 2-325. Slip op. at 8 (Cathell, J. dissenting).

II The first Constitution was adopted in Maryland in 1776. That Constitution did not contain a provision dealing explicitly with the right to jury trial in civil cases. 6 Neither did it include, either in the Declaration of Rights or in the Constitution proper, any reference to a court trial. The first reference to jury trial in civil proceedings came in the Constitution of 1851 with the inclusion of section 4 in Article X. It provided: The trial by jury of all issues of fact in civil proceedings, in the several courts of law in this State, where the amount in controversy exceeds the sum of five dollars, shall be inviolably preserved. That provision was continued, unchanged, but as section 5 of Article XII, in the Constitution of 1864.

With slight modification, it was continued in the 1867 Constitution, as Article XV, Miscellaneous, section 6. As modified, the provision stated, as it still does: The right of trial by jury of all issues of fact in civil proceedings in the several Courts of Law in this State, ²⁰¹ where the amount in controversy exceeds five dollars [ 7 ], shall be inviolably preserved. By Ch. 681, Acts of 1977, the Legislature proposed the amendment of the Constitution by transferring Article XV, Miscellaneous, sections 5 and 6, to the Declaration of Rights as Article 23. The voters ratified the amendment November 7, 1978.

We have held that the reference, in the precursor to Article 23, to jury trial, to which the citizens of Maryland are entitled, is to “the historical trial by jury, as it existed when the Constitution of the State was first adopted.” Houston v. Lloyd’s Consumer Acceptance Carp., 241 Md. 10, 20 , 215 A.2d 192, 198 (1965), quoting Knee v. Baltimore City Passenger Ry. Co., 87 Md. 623, 624 , 40 A. 890, 891 (1898). Thus, the citizens of Maryland have been guaranteed, since 1776, the right to trial by jury. Moreover, a provision comparable to Article 23 has been in each Constitution, including the Constitution presently in effect, since 1851.

Accordingly, it is accurate to say that it is well-settled that Maryland guarantees its civil litigants a right to trial by jury. A court trial was referred to in a constitutional provision for the first time in the Constitution of 1864, with the addition of Article IV, section 8. Unlike Article 23, or its precursors, whose phraseology clearly reflects that trial by jury is a right, that provision then, as section 8(a) does now, provided that “[t]he parties to any cause may submit the cause to the court for determination without the aid of a jury.” We have never construed Article IV, section 8(a) as conferring on an individual civil litigant a right to a court trial. In point of fact, we have held just the opposite, see Maryland Community Developers, Inc. v. State Roads Commission of Maryland, 261 Md. 205, 214 , 274 A.2d 641, 646 , appeal dis ²⁰² missed, 404 U.S. 803 , 92 S.Ct. 62 , 30 L.Ed.2d 35 (1971); Accord Knee, 87 Md. at 624 , 40 A. at 891 , a view that is consistent with that of the commentators.

See also Charles A. Rees, State Constitutional Law for Maryland Lawyers: Individuals Civil Rights, 7 U.Balt.L.Rev. 309-10 (1964). The purpose of inserting that provision in the Constitution was to ensure that when the parties mutually elect that mode of trial, they could have it; hence, the only constitutional right to a court trial belongs, as the Court of Special Appeals recognized, to all the parties to the civil proceeding and only if they mutually so elect. In each of the cases in which this Court has considered the application of what is now section 8(a), the focus was on the procedural requirement that the parties consent to a court trial, rather than on the entitlement of any one of them, as a matter of absolute right, to that mode of trial. See Tinges v. Moale, 25 Md. 480, 484 (1866) (“The provision of the Constitution authorizing the parties to a suit at law to submit facts for the trial and determination of the court, without the aid of a jury, cannot be regarded as restricting the jurisdiction of the court, or as conferring upon it a special jurisdiction.

There is no added jurisdiction of a limited or restricted character to the general jurisdiction of the court, but a mere authorized change, in certain cases optional with the parties, in the mode of trying facts, already a part of its general jurisdiction.”); Gambrill v. Parker, 31 Md. 1, 6 (1869) (recognizing that cases submitted to the court for determination without the aid of a jury may be tried at any term of court, as in other cases not requiring a jury but that in “cases where a jury trial is demanded, and to which the party has a right, and there is no agreement to submit the case to the court, such case, of course, must be disposed of at a jury term.”); Cross v. Kent, 32 Md. 581, 584 (1870) (an attorney may agree on behalf of his client, a lunatic, to submit the case to the court for determination without the aid of a jury pursuant to Constitution Article IV, section 8); Desche v. Gies, 56 Md. 135, 137 (1881) (a court may not try a case and enter judgment thereof where parties have not consented or agreed to that mode of trial, as autho ²⁰³ rized by the Article IV, section 8); Lanahan v. Heaver, 77 Md. 605, 609 , 26 A. 866, 866 (1893) (construing the predecessor to section 8(a) plainly to mean “that the parties to a civil cause must agree [to a court trial] before the aid of a jury can be dispensed with,” acknowledging that “it has never been suggested that either party in a civil case can, without the consent of the other, avoid a jury trial,” and recognizing that the consideration supporting the agreement to proceed non-jury is that “[e]ach party promised or agreed with the other that he would relinquish his constitutional right to a jury trial....”); Houston v. Wilcox, 121 Md. 91, 100 , 88 A. 32, 35 (1913) (acknowledging the jurisdiction of the court to conduct a non-jury trial when the parties so consent or agree as authorized by the Constitution). That the framers of the 1864 Constitution did not perceive of that portion of section 8 that permits the parties to agree to a court trial as conferring on an individual civil litigant a constitutional right to a court trial is reflected in the debate surrounding its adoption. See The Debates of the Constitutional Convention of the State of Maryland, Vol. III at 1394 (1864).

As originally proposed, what was to become section 8(a) was part of a provision relating to the “trial of causes,” which provided: Sec. 9. The legislature shall provide for the trial of causes in case of the disqualification of all of the judges of the circuit, but the parties to any cause may, by consent, appoint a proper person to try said cause, and may try any cause before the court without the intervention of a jury. An objection was made that the proposed provision “seems to be a sort of invasion of the right of trial by jury, by allowing parties by consent to take a case before the judge and try it on the facts as well as upon the law, without a jury” and that it imposes that additional duty on the judge. Id. at 1394.

Responding, a proponent of the provision asserted: Persons familiar with the practice of courts, will readily recollect a great many cases where facts are perfectly simple, dependent upon the testimony of one witness, or two ²⁰⁴ at the best. Hours might be occupied before a jury, while the matter would be disposed of before the court in a few minutes. The putting labor on a judge is a consideration, I think, hardly to be regarded as worth estimating in such cases. It is only where both the parties desire it, that they are to have this privilege.

And if it was an onerous case to the judge, I think the principle of common delicacy would lead them to forebear exercising this privilege. I know that has been the practice. I know that the judge of the court has repeatedly urged counsel not to submit cases of a very serious criminal character, to his decision, when they expressed a desire to do so. And as gentlemen would always do, they have courteously acceded to the judge’s request, and have gone before a jury.

Now, where there is a very simple case, where much time may be saved, and where both parties desire it, why forbid parties from exercising their options? I confess, that I can see no objection to the section. Id. at 1394-95. 8 Another speaker proposed to make the provision “less ambiguous” by amending the last two clauses by substituting, ²⁰⁵ “or,” for “and.” Having that clause read “but the parties to any cause may, by consent, appoint a proper person to try said case, or may try any cause before the court without the intervention of a jury,” he explained, “would carry the idea of consent into the latter clause more clearly than it now does; and I suppose this is the intention.” Id. at 1395. The amendment was adopted.

When the matter was next taken up, however, the same speaker proposed yet another amendment, i.e.: The General Assembly shall provide for the trial of causes in case of the disqualification of all of the judges of the circuit to hear and determine the same, but in case of such disqualification, the parties thereto may by consent appoint a person to try the same; and the parties to any cause may submit the same to the court for determination without the aid of a jury. Id. at 1402-03. By way of explanation, he said: That permits parties to submit their causes to the court without the intervention of a jury, and also provide for the case of the disqualification of the judge, and it does not mix up the two subjects which were intended to be included in this section. The amendment was adopted.

It appears that section 8(a) was adopted to provide a mechanism by which the parties to a cause could avoid trying that cause before a jury. By agreeing to proceed without the aid of a jury, the parties are given the right to override the court’s power to require a jury trial. Because the right is a collective one,