Market Tavern, Inc. v. Bowen

MOTZ, Judge. The principal questions raised in this case concern the constitutionality and propriety of a punitive damages award. Because we believe that there was no error in that award or in any of the rulings of the court below, we affirm the judgment of the Circuit Court for Baltimore City (Prevas, J.). I. Facts and Proceedings Below The incident which gave rise to this action occurred on February 8, 1987.

Appellee, Daniel M. Bowen (“Bowen”), then a senior at Lansdowne High School, was driven by some friends, as a delayed birthday present, to Hammer-jacks, a large Baltimore bar owned and operated by appellant, Market Tavern, Inc. Hammerjacks is located in a building that was once a former industrial warehouse; it contains 14 bars with 28 bartenders, who serve at least 10,000 patrons a week in a facility capable of accommodating at least 1,600 people at any one time. Hammerjacks security personnel are expected to exhibit a conspicuous presence so as to deter disturbances among the patrons. Although security employees are not permitted to hit or kick anyone, they are, depending upon the situation, authorized to grab boisterous patrons, to separate those involved in altercations and, if necessary, to eject those patrons from the premises. An ejection may involve security personnel bodily removing someone from the premises— action which they were authorized by Hammerjacks management to perform.

At the time of this incident, there was evidence that security personnel wore distinctive black ⁶²⁸ jackets with gold lettering saying “Hammerjacks Security.” Although there was testimony that these jackets were also worn by others, Louis J. Principio, III, the President of Market Tavern, testified that Hammerjacks did not countenance the wearing of Hammerjacks Security jackets in the bar by anyone other than security personnel. Principio was aware of no occasion when someone other than a Hammerjacks employee wore one inside the premises of the bar. After entering Hammerjacks, Bowen was treated by his friends to a “kamikaze shooter” — a potent concoction of vodka, tequila, and triple sec. Bowen, who was already somewhat inebriated and who had never before consumed hard liquor, became more inebriated after consuming at least three of these drinks.

At that point, Bowen’s friends left for other parts of Hammerjacks. Bowen remained where he was, and found a wall to lean against because by that time he was not certain if he could stand up on his own. Bowen did not remember many details after that, but did recall that he reached out and touched the hair of a passing female patron. “Someone” came up to him after that action and told him not to do it again. Unfortunately, Bowen did do it again.

He was then “knocked on the ground” and “beaten on and kicked on.” He could not see who had beaten him but did see that the two men who carried him out of the bar were dressed in Hammerjacks black and gold security jackets. A highschool classmate of Bowen’s, Deborah Szarko, who had frequented the bar enough times to know the head of Hammerjacks security and several Hammerjacks security personnel by name, was present at\ Hammerjacks that night. She witnessed the confrontation involving Bowen. Szarko identified the individuals who beat and kicked Bowen as Hammerjacks security personnel who were wearing “Hammerjacks Security” jackets.

In fact, Ms. Szarko identified one of them by name as “Ed” or “Eddie.” She also testified that the Hammerjacks general manager and securi ⁶²⁹ ty manager, Thomas Perry, was standing about 10 feet away when the incident occurred. Soon after Bowen was deposited in the parking lot, one of his friends who had arrived at Hammerjacks with him came outside. The friend took Bowen to Saint Agnes Hospital where Bowen remained for several days. He had surgery to repair a broken jaw and was discharged on February 12.

Bowen reported the incident to Baltimore City police on February 11. After questioning Bowen and several witnesses, including Szarko, two police officers went to Hammerjacks on February 12, to inquire about two bouncers named “Sam” and “Ed” who, they had been told, might have been involved in the incident. The police officers testified that a Hammerjacks representative (Thomas Perry and/or Louis Principio) said that Edward Lloyd and Samuel Clemmons, who were employed as security personnel by Hammerjacks, were the "probable two people.” One officer further testified that Perry or Principio “may have said” that Lloyd and Clemmons “were going to be fired”; the other officer testified that Principio said that “if somebody would kick somebody, they would be fired.” Principio, the President of Market Tavern, testified that he knew nothing about the incident and had not told the police that he was going to fire Lloyd or Clemmons. Hammerjacks employment records, however, showed that on the night of the incident, February 8, 1987, Edward Lloyd and Samuel Clemmons worked as security personnel and Thomas Perry worked as security manager.

The employment records further indicated that both Lloyd and Clemmons were terminated on February 11, 1987. Principio testified that these terminations had no relation to the incident, although he stated he did not know precisely why these employees were terminated. Perry, Market Tavern’s general manager at the time of the incident, did not testify. Dr. John Mitcherling, an expert in dentistry and oral and maxillofacial surgery who treated Bowen from the time of Bowen’s arrival in the hospital emergency room, testified as ⁶³⁰ to Bowen’s injuries and treatment.

Dr. Mitcherling stated the nature of the fracture indicated that a “very severe blow” had caused Bowen’s injury. Dr. Mitcherling described the surgery to repair Bowen’s jaw, which also necessitated the jaw being wired shut until March 19, 1987, about six weeks after the incident. Bowen then underwent additional surgery to remove the wires, during which time four molars also were removed. Although the jaw healed properly, a wire was deliberately left after surgery which Dr. Mitcherling said is “normally not to be removed.” Dr. Mitcherling testified that Bowen’s teeth remain very sensitive to cold, which would be a permanent condition, and that Bowen was left with a permanent surgical scar on his jaw.

Dr. Mitcherling confirmed the various bills and invoices that accompanied Bowen’s surgery and treatment. He stated these charges were fair and reasonable, and all of Bowen’s medical bills were admitted into evidence without objection. Bowen testified he was unable to resume his regular activities for about three months after the incident. He had enlisted in the Marines and was worried about whether the Marines would still take him.

During the time that Bowen’s jaw was wired shut, he had to carry wire cutters with him at all times to cut the jaw wires should there ever be an incident where he would have to vomit, so that he would not “choke on my own vomit and die.” Bowen stated that even to date his jaw sometimes hurts and his teeth are sensitive to hot and cold liquids. At the conclusion of the plaintiff’s case, Market Tavern moved for dismissal, contending there was insufficient evidence to show that the individuals who assaulted Bowen were Hammerjacks employees, or that they were acting in the scope of their employment. The motion was granted as to the negligence count, but denied as to the sole remaining count, alleging battery. Market Tavern put on no defense; it called no witnesses on its behalf.

It did again move for judgment, which was denied. After deliberation, the jury awarded Bowen $150,655.25 in compensatory damages (including $10,655.25 for past ⁶³¹ medical expenses) and $150,000.00 in punitive damages. Further facts will be set forth within as necessary. On appeal, Market Tavern raises a host of issues.

For the sake of clarity, we have reorganized, consolidated, and simplified those issues as follows: 1. The award of punitive damages was unconstitutional and otherwise improper. 2. Prior to trial, the trial court erred in denying Market Tavern’s motion for continuance, in refusing to permit Market Tavern’s “corporate counsel the right to examine witnesses,” and in denying Market Tavern’s motion in limine. 3. The trial court erred in denying a motion for new trial on the basis of newly discovered evidence. 4.

There was insufficient evidence to prove that any battery was committed by Market Tavern employees or that Market Tavern employees acted within the scope of their employment in committing any battery. 5. There was insufficient evidence to justify the award of compensatory damages.

II

Punitive Damages Market Tavern’s principal challenge is to the constitutionality and legality of the jury’s $150,000 punitive damages award. A. Due Process Market Tavern first asserts that “[t]he jury was given no guidance as to how to determine the amount of punitive damages” and the circuit court’s post-trial review of the award was inadequate. The company claims that these defects require reversal under the standards set forth in Pacific Mut. Life Ins.

Co. v. Haslip, — U.S.—, 111 S.Ct. 1032 , 113 L.Ed.2d 1 (1991), and Alexander v. Evander, 88 Md.App. 672 , 596 A.2d 687 (1991). In determining whether a punitive damages award violated the Due Process Clause, the Supreme Court in Haslip ⁶³² focused on three aspects of the award: 1) the instructions given to guide the jury in determining whether and how much to award, 2) judicial oversight or review of the award, and 3) the amount of the award. Haslip, supra, 111 S.Ct. at 1044-46 . The Court found the instructions before it, which set forth the purpose of punitive damages, identified the damages as punishment for civil wrongdoing, and explained that their imposition was not compulsory, satisfied due process because they placed “reasonable constraints” on the jury’s discretion. 1 The Haslip Court further held that a state procedure which required a trial court to state on the record “the reasons for interfering with a jury verdict, or refusing to do so,” satisfied due process because it ensured “meaningful and adequate review” of a jury award of punitive damages.

Id. at 1044 . Similarly, the Court concluded that state appellate review, which must consider specific factors, satisfied due process because it “makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Id. at 1054 . Finally, the Haslip Court upheld the actual amount of the ⁶³³ award, $840,000, which was in excess of four times the amount of compensatory damages, concluding that “the award here did not lack objective criteria.” Id. at 1046 . In Alexander v. Evander, 88 Md.App. 672 , 596 A.2d 687 (1991), Chief Judge Wilner, writing for this court, considered Maryland law on punitive damages in light of the guidelines set forth in Haslip .

First, Chief Judge Wilner outlined a list of principles, articulated by the Court of Appeals over the years “that are similar to and serve the same purpose” as the standards set forth in Haslip. Id. at 715, 596 A.2d 687 . He stated that punitive damages in Maryland: (1) may be imposed only where there is “outrageous conduct”; (2) may be awarded only upon a showing of “actual malice” on the part of the defendant, i.e., “the performance of an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff” or, in certain kinds of cases, subject to further refinement by the Court of Appeals, “implied malice,” i.e., “conduct of an extraordinary nature characterized by a wanton or reckless disregard for the rights of others”; (3) “are to punish the wrongdoer, to teach him not to repeat his wrongful conduct, and to deter others from engaging in the same conduct”; (4) “must relate to the degree of culpability exhibited by a particular defendant and that party’s ability to pay”; (5) “represent a civil fine, and as such, should be imposed on an individual basis”; and (6) may be awarded only upon proof of actual loss and thus may not be awarded unless there is also an award of compensatory damages. Id. at 715-16 , 596 A.2d 687 (emphasis in original) (citations omitted).

Taken together, Judge Wilner said, these principles “reasonably accommodate [the defendant’s] interest in rational decision-making and [the State’s] interest in mean ⁶³⁴ ingful individualized assessment of appropriate deterrence and retribution.” Id. at 716 , 596 A.2d 687 (quoting Haslip, supra, 111 S.Ct. at 1044 ). In Alexander , because the trial court gave none of these instructions, or any other instructions with regard to the assessment of punitive damages against Alexander & Alexander, we reversed. In the case at hand, the trial judge gave the following instructions to the jury on punitive damages: If you award plaintiff damages to compensate him for the actual injury he suffered, then you’re allowed, but you’re not required, to go one step further and award punitive damages against the defendant, but only if you find that the defendant’s employees acted the way they did because of malice or intent to cause injury or damage or loss. And the purpose of that is to deter others from action in a similar manner in the future.

Now, actual malice, in the legal sense, exists if the conduct complained of was performed in such a way and under such circumstances as to show that it was without legal justification or excuse and it also was influenced or motivated by hatred or spite or was performed in order to intentionally or deliberate[ly] injure or cause damage or loss to another person. Implied malice or implied intent exists under the law where the law considers that malice exists if, in light of the risks and dangers which were known or should have been known to exist at the time, the conduct complained of was performed in such a way and under such circumstances as to show that it was so reckless or outrageous as to indicate a disregard for the rights or safety of others or conscious indifference for the consequences. It is not necessary to show that such conduct was influenced or motivated by hatred or spite, or was performed in order to intentionally or deliberately injure or cause damage or loss to another person. These instructions do not set forth all the principles articulated in Alexander .

In Alexander , however, we did not hold that due process required that a jury be given ⁶³⁵ instructions on each and every one of the stated principles. Rather, we simply held that each principle would be a “proper subject for jury instruction.” Alexander, supra, 88 Md.App. at 716 , 596 A.2d 687 . Furthermore, although Market Tavern objected at trial to the “whole concept of punitive damages,” it did not request different instructions or suggest that the instructions given were standardless or violated due process. In contrast to the situation in Alexander iHaslip “had not been decided, or even argued” when the case was tried, Alexander, supra, 88 Md.App. at 705-09 , 596 A.2d 687 ), here Haslip had been decided prior to the time of trial.

Indeed, Market Tavern cited Haslip at trial and in a post-trial motion — not in support of a constitutional challenge, but only for the proposition that an employer may not be held vicariously liable for punitive damages for the intentional torts of an employee. Thus, it well may be that Market Tavern has not preserved any objections to the jury instructions. See Alexander, supra, 88 Md.App. at 708 , 596 A.2d 687 . See also Robertson Oil Co., Inc. v. Phillips Petroleum Co., 930 F.2d 1342, 1347 (8th Cir.1991) (where plaintiffs requested jury instruction “did not elaborate any further on the standard for setting the amount of punitive damages,” plaintiff waived its right to complain about alleged defect).

In any event, particularly in light of Market Tavern’s failure to request any instruction on the additional standards set forth by Judge Wilner in Alexander (but established in prior case law), the instructions at issue here were not so “standardless” as to offend the due process clause. 2 ⁶³⁶ The instructions given were quoted practically verbatim from Maryland Pattern Jury Instructions 10:6 (1991) (which should be revised in light of the careful compendium set forth in Alexander) and were substantially similar to those upheld by the Supreme Court in Haslip. See supra, note 1. The only deviation from the Maryland pattern jury instructions, and the Haslip instructions, in the instructions at issue here, is the failure to mention that one of the purposes of such an award is to punish a wrongdoer. “Punitive damages,” however, denotes, by definition, damages for the purpose of punishment. Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67 , 101 S.Ct. 2748, 2759-60 , 69 L.Ed.2d 616 (1981) (Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tort feasor). 3 The instructions informed the jury that the imposition of punitive damages was not mandatory, as well as apprised the jury of the severity of conduct required to support an award of punitive damages and the nature and purpose of such an award.

Thus, the jury instructions on punitive damages, although not perfect, were certainly not standardless, and thus conform to the due process requirements set forth in Haslip . 4 ⁶³⁷ Nor was the circuit court’s review of the verdict inadequate. Judge Wilner stated that the trial court, in reviewing a punitive award, should be guided by the same principles as the jury, and consider “whether the award, by reason of its amount, fails to serve its proper purpose.” Alexander, supra, 88 Md.App. at 717 , 596 A.2d 687 . In considering Market Tavern’s motion for a new trial, the trial court touched upon many of the standards outlined in Alexander . For example, the court had a substantial discussion with counsel for both sides on the requirement of malice, during which the court opined that the evidence presented to the jury established that there were “the kinds of gross negligence in the operation of Market Tavern by its various agents such that the trier of fact was able to draw the inference that there was malice.” Furthermore, the trial court undertook a thorough discussion of the propriety of imposing vicarious liability for punitive dam ⁶³⁸ ages, concluding that “the jury, as the trier of fact, could rationally draw the inference from the facts that they had before them that ... the principal or managerial agent ... authorized the doing and the manner of the act by standing idly by when it occurred ... or ratified or approved the act again by not actively calling the police when it occurred.” In considering the amount of the punitive award in relation to the fault of the parties, and the effect of the conduct involved, the court declined to grant the requested substantial remittitur, 5 stating: As to the $140,000 noneconomic damages and the $150,-000 punitive damages, I think there was sufficient evidence in the record for the jury to draw the inferences that they [sic] drew with respect to the plaintiff meeting the standard of the preponderance of the evidence in proving those damages.

We are, in fact, talking about a broken jaw at the time when a person was waiting for admittance into the Marine Corps and its psychological and physical effects, and 1 think that there was a causal relationship between what is in evidence and the two amounts that the jury awarded; and, therefore, I will deny both remittitur and a new trial with respect to the damages. The trial court here, like the trial court in Haslip , stated on the record its reasons for upholding the jury award of punitive damages. We are satisfied that it undertook a “meaningful and adequate review,” Haslip, supra, 111 S.Ct. at 1024 , of the jury’s award of punitive damages and of whether the award “serves its proper purpose,” Alexander, supra, 88 Md.App. at 717 , 596 A.2d 687 . Thus, the post-trial review complied with due process standards.

Finally, we do not believe that the amount of the $150,000 punitive award violates due process standards. ⁶³⁹ Unlike the awards in both Haslip and Alexander 6 the award here was in one-to-one proportion to the compensatory award, and relatively modest as compared with some punitive damage awards rendered in Maryland cases. See cases discussed in Alexander, supra, 88 Md.App. at 720 , 596 A.2d 687 . Furthermore, while the conduct involved in both Haslip and Alexander “did not endanger the public health or safety ... [and] was not life-threatening to anyone,” id. at 721 , 596 A.2d 687 , the conduct involved in the case at bar was dangerous to the public safety and might well have been life-threatening. In sum, we find that the procedure employed to determine the propriety and amount of the award is constitutional and the award is “reasonable in [its] amount and rational in light of [its] purpose to punish what has occurred and to deter its repetition.” Haslip, supra, 111 S.Ct. at 1045 .

B. Vicarious Liability The Court of Appeals in Embrey v. Holly, 293 Md. 128 , 442 A.2d 966 (1982), held that an employer may be held vicariously liable for punitive damages for the wilful torts of an employee committed in the scope of employment even where the employer does not authorize, participate in, or ratify the employee’s conduct. Id. at 136-37 , 442 A.2d 966 . Market Tavern claims, however, that this decision is “not dispositive of the present case” for two reasons. First, Market Tavern cites Haslip for the proposition that when an employer “did not benefit from the assault,” and was not “at fault independently,” an award of punitive ⁶⁴⁰ damages against it is not proper.

The short answer is that Haslip does not stand for this proposition. Rather, the Supreme Court in Haslip , in response to an insurance company’s claim that its salesman was not acting as its agent when he defrauded customers, noted that “the insurer derived economic benefit from those life insurance sales,” therefore, the company “cannot plausibly claim that” its salesman was not acting as its agent when he defrauded respondents. Haslip, supra, 111 S.Ct at 1041 . Thus, benefit to the employer was evidence of an employer-employee relationship, not a prerequisite to finding such a relationship, or to an award of punitive damages.

Indeed, the Haslip court upheld Alabama’s common law practice of imposing punitive damages on a corporation when its agent commits intentional fraud, stating, “Imposing liability without independent fault deters fraud more than a less stringent rule.” Id. Moreover, even if benefit to the employer was required for an award of punitive damages on the basis of vicarious liability, such benefit is present in this case. Market Tavern benefitted from its security personnel’s work keeping Hammerjacks safe for patrons. See Wilson Amusement Co. v. Spangler, 143 Md. 98 , 121 A. 851 (1923) (doorkeeper for movie theater who forcibly ejected and then assaulted drunken customer who sought entrance acted in furtherance of his master’s service within his duty to eject “undesirables”).

Second, Market Tavern suggests that because no offending employee of the company was “identified, in the complaint or otherwise, or joined, as a defendant, nor was he deposed, nor did he testify,” vicarious punitive damages cannot be imposed on Market Tavern. The company does not cite any case in Maryland, or elsewhere, which so holds. In fact, courts in other jurisdictions have held an employee is not a necessary party to a suit against an employer on the theory of vicarious liability. See, e.g., Rieser v. District of Columbia, 563 F.2d 462 , 469 n. 39 (D.C.Cir.1977) (compensatory damages awarded; punitive damages denied because of lack of evidence that higher government officers ⁶⁴¹ ratified or participated in misfeasance of employee); O’Donnell v. K-Mart Corp., 100 A.D.2d 488 , 474 N.Y.S.2d 344, 346 (1984) (punitive damages awarded); McFadden v. Turner, 159 N.J.Super. 360 , 388 A.2d 244, 245 (1978) (compensatory damages awarded); Hartford Accident and Indem.

Co. v. Transport Indem. Co., 242 Cal.App.2d 90 , 51 Cal.Rptr. 168, 170 (1966) (declaratory judgment action). See also, Master and Servant, 57 C.J.S.2d § 613. This holding is entirely consistent with Maryland law.

In Maryland, a plaintiff is required to join another party as a defendant in an action only in certain specific circumstances; otherwise, joinder is permissive. 7 None of these specific circumstances are present here. Nor does Maryland law require a plaintiff to identify the employee by name in the complaint. “A pleading shall contain only such statements of fact as may be necessary to show the pleader’s entitlement to relief or ground of defense.” Md. Rule 2-303(b). A complaining party must “allege the cause of action with reasonable certainty, clearness and accuracy so as to apprise the defendant of the nature of the claim brought against him.” Campbell v. Welsh, 54 Md.App. 614, 631 , 460 A.2d 76 (1983). A third person suing an employer for injuries sustained has the burden of pleading and proving the requisite facts to establish vicarious liability.

The necessary facts include that an employer/employee relationship existed between defendant and the person who allegedly caused the injury, that the tort was committed while the employee was acting within the scope of employment or under express or implied authorization from the employer, and that the employee’s tort caused the injury. Globe Indemnity Co. v. Victill Corp. 208 Md. 573, 584 , 119 A.2d ⁶⁴² 423 (1955); M.L.E., Employment, Work and Labor § 125 at 370 (1962). Bowen alleged sufficient facts in the complaint to show his entitlement to relief and to notify Market Tavern of the nature of his claims against it; Bowen was not required to identify a specific employee by name. Similarly, Bowen was not required to depose that employee, or anybody else.

Discovery and trial strategy are purely discretionary with counsel. See Md. Rule 2-401. Market Tavern, of course, had every right to depose the employee, or join him as a defendant. The company chose not to do so.

Similarly, Bowen was not required to call the employee as a witness at trial; again, of course, Market Tavern could have subpoenaed the employee as its own witness. Finally, even if specific identification of the employee involved was a requirement to establish vicarious liability for punitive damages on the part of the employer, that requirement was met here. Deborah Szarko, at trial, identified Edward Lloyd as the employee involved. She testified that Bowen was “kicked in the face and punched” by “Eddie and another Hammerjacks security guard,” and that after “a code was called” over the intercom system, “four people, two including Eddie and the other guy that was there, and then two other guys, got Danny off the floor and carried him out to the exit door.” Market Tavern presented no evidence that directly contradicts this testimony, although counsel for Market Tavern attempted to impeach Szarko’s testimony with a prior inconsistent statement upon cross examination.

Szarko, given the opportunity to explain the apparent inconsistency, had a plausible explanation. It is up to the jury to judge the credibility of witnesses. Aravanis v. Eisenberg, 237 Md. 242, 262 , 206 A.2d 148 (1965); Montgomery County v. Voorhees, 86 Md.App. 294, 304 , 586 A.2d 769 (1991); Cluster v. Cole, 21 Md.App. 242, 250 , 319 A.2d 320 (1974). The jury here gave credence to Szarko’s identification of Lloyd.

We decline to second ⁶⁴³ guess the trier of fact. 8 III. Pre-trial Issues The trial court was called upon to make several pre-trial rulings. Market Tavern argues that it erred in three of these rulings, i.e., in denying Market Tavern’s motion for a continuance, in refusing to permit Market Tavern’s corporate counsel “the right to examine witnesses,” and in denying Market Tavern’s motion in limine. A. Continuance On April 2, 1991, two weeks before trial, Market Tavern moved for a postponement because it had been unable to contact several “essential witnesses,” including former Hammerjacks manager Thomas Perry, and former security employees Edward Lloyd and Samuel Clemmons.

The trial court denied the motion. A trial court may continue a trial on motion of any party or on its own initiative. Md.Rule 2-508(a). One of the grounds for granting a postponement is the absence of a necessary witness; however, a motion for a continuance on this ground must be supported by an affidavit containing certain information.

Md.Rule 2-508(c). 9 Market Tavern ⁶⁴⁴ filed no affidavit with its motion, nor did it set forth required information elsewhere, e.g., that it had exercised “reasonable diligence” to locate the witness or that the witness could be located within “a reasonable time.” Moreover, the case had been pending for over three years when Market Tavern requested the continuance, and Market Tavern had been aware of the trial date for three months. The ruling on a motion for continuance rests in the sound discretion of the court and will not be disturbed on appeal unless there is an abuse of that discretion. Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 28 , 320 A.2d 266 (1974); Brooks v. Bast, 242 Md. 350, 354 , 219 A.2d 84 (1966); Thanos v. Mitchell, 220 Md. 389, 392 , 152 A.2d 833 (1959); In re McNeil, 21 Md.App. 484, 499 , 320 A.2d 57 (1974). See also Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 454 , 149 A. 565 , appeal dismissed, 282 U.S. 801 , 51 S.Ct. 40 , 75 L.Ed. 720 (1930).

It is clear that the trial court here did not abuse its discretion in denying Market Tavern’s request for a continuance. See Dart Drug Corp. v. Hechinger Co., 272 Md. 15 , 320 A.2d 266 (1969) (no abuse of discretion when an “eleventh hour” request for a continuance is denied in a case which has been pending for 26 months); Nickerson v. State, 22 Md.App. 660 , 325 A.2d 149 (1974) (no abuse of discretion where no accompanying affidavits in support of motion for continuance). B. Refusal to Permit Corporate Counsel to Examine Witnesses Market Tavern claims that the trial court’s decision not to allow its corporate counsel “the right to examine ⁶⁴⁵ witnesses” to protect its interests was clear error which deprived Market Tavern of effective representation. Less than two weeks before trial, counsel hired by Market Tavern’s insurance company entered their appearances on behalf of the corporation.

Counsel for Market Tavern, who had represented both the corporation and Principio, its president, from the inception of the suit, struck his appearance as counsel for the corporation and remained in the case as counsel for Principio only. Immediately prior to trial, on April 15, the parties entered into a stipulation dismissing Principio as a defendant in the case. This left the corporation as the sole defendant. Corporate counsel for Market Tavern then requested that he “be permitted to intervene as an additional counsel with adverse interest to [the insurer] so that [he] would, as well as [counsel for the insurer], be permitted to participate to the extent of making an opening statement, dealing with each witness, [and] making a closing statement.” Corporate counsel argued that he should be permitted to “intervene to protect the corporate interests on those matters that are not covered [under the insurance policy, i.e., the battery count].” The insurer did not oppose the motion, but Bowen did, arguing that the intervention rule was not applicable here because Principio, the only party still represented by corporate counsel, was no longer a party to the suit.

What corporate counsel was actually requesting, Bowen asserted, is that he be recognized as co-counsel for Market Tavern, along with counsel for the insurer. Bowen had no objection to corporate counsel being named co-counsel as long as there would be no “multiple examination of witnesses on behalf of the one party.” The trial court resolved the dispute as follows: I understand. I think there’s a niche in between that you’ve all missed. Basically, if Market Tavern is covered by [the] insurance company with respect to one count, and it’s not covered by the insurance policy with respect to another count, and there’s no rule regulating the entry of counsel into the case — because I’ve just looked, and ⁶⁴⁶ there’s not — then essentially what you are ... is co-counsel with [counsel for insurer]. [Plaintiff’s counsel’s] point, however, is well taken, that there can’t be sort of a duplication of effort; that your [sic] co-counsel, that basically what you’ve got to do is internally divide among yourselves the labor, so that if there’s points where there’s not an insurance policy, then you ought to be the lead counsel with respect to those points and examine the witnesses that are offering facts concerning those points, and that where there are witnesses that are concerning themselves with the particular count where there is insurance, then [counsel for insurer] would be the lead counsel.

The only place where I see where there would be a possible duplication of effort might be in closing argument. The trial court then asked counsel for Bowen if he would object to counsel for insurer and corporate counsel dividing the closing argument with respect to the two counts. Bowen did not object. Corporate counsel, however, declined the court’s offer to name him as co-counsel, stating “No, Your Honor.

Unless I can participate fully, [counsel for insurer and I] discussed it, and we think that creates an impossible situation; it makes a conflict between us going on throughout the course of the trial, which we think is worse than the other