Pride Mark Realty, Inc. v. Mullins

Lowe, J., delivered the opinion of the Court. Despite opinions expressed to the contrary, most appellate courts try to meet, rather than to avoid, the issues raised upon appeal. Perhaps on too many occasions, particularly when the questions are intriguing, we have succumbed to the siren’s song, and treated issues raised here but improperly preserved below. The issue here discussed is of that nature, enticingly interesting but improperly preserved.

Though initially tempted, we, like Odysseus, have lashed ourselves to the foremast to avoid the consequences of succumbing to appellant’s seductive song. A jury of the Circuit Court for Prince George’s County returned a verdict against appellant, a realty corporation, in the amount of $17,355.00 for having negligently procured the sale of a property without having verified that the seller was the sole owner. The crux of the issue before the jury was whether appellant owed appellees, the buyers, a duty and, if so, whether that duty was violated. At the close of the plaintiffs’ (appellees’) case, defendant (appellant) moved for a directed verdict because: “There is no testimony showing the duty owed by the defendant to the plaintiff.” Judge James F. Couch, Jr., who was presiding, did not agree.

He said: “That is a matter of law and I found it. I am sorry but — are you aware of it? ⁴⁹⁹ MR. BROWN: No. MR. FERRUSI: A statute.

THE COURT: There is a statute involved and a code of ethics which establishes by the statute a standard of care which spells out that the licensee, a real estate man, is required to acquaint himself with all the facts. MR. BROWN: All of the facts that I am aware of. THE COURT: That makes a question for the jury.

That does establish the standard of care.” 1 At the close of its own case, appellant renewed its “previous motion,” presumably for the same reason as when it first moved for a directed verdict. The motion was denied as to the negligence count (although, because of a lack of evidence, the judge did not permit a deceit count to go to the jury). Appellant’s single issue on appeal relates to the instruction Judge Couch subsequently gave to the jury: “Did the Trial Court Err When, in Its Instructions to the Jury, It Set, as a Matter of Law, as the Standard of Care for a Real Estate Broker, the Provisions of Article 56, Section 224 of the Annotated Code of Maryland and the Code of Ethics of the Real Estate Commission?” After instructing on general legal principles, Judge Couch ⁵⁰⁰ narrowed the question to be decided by discussing with the jury the definition of negligence. He explained that: “Broadly it is defined as doing something by a person which a reasonably prudent person, under the similar or like circumstances that the defendant was in, would not have done; or, conversely, doing something by a defendant which a reasonably prudent person with the same circumstances would not have done under those same or similar circumstances.” He then set forth his interpretation of the standards of a reasonably prudent person in appellant’s role: “And that may sound like so many words to you, and you may decide, ‘How am I going to decide whether somebody is negligent or not other than trying to guess what a reasonably prudent person would have done?’ In most cases, and this is no exception, there is some help in the sense that it has been provided by the legislature that the standard of care in the operation of business by a real estate agent or a broker has been fairly well set out before you.

The Court says to you as a matter of law that it is required of one who does operate a real estate business, his own business or as a licensee, normally holding a real, estate license, that that person must disclose or ascertain and disclose to any person with whom the licensee is dealing any material fact, data or information concerning or relating to the property with which such licensee is using, which such licensee, either knew or should have known. That establishes the standard of care against which a real estate agent or real estate broker is measurable. It is further provided that the licensee should make a reasonable effort to ascertain all of the material facts concerning every property for which ⁵⁰¹ he accepts an agency so that he may fulfill his obligations to avoid error, exaggeration, misrepresentation or concealment of material fact.” At the conclusion of his instructions, the judge asked counsel: “Very well, gentlemen. Are there any exceptions?” To which appellant replied: “No exceptions, Your Honor.” One could hardly envision a clearer failure to comply with Md. Rule 554 d, which states in pertinent part: “If a party has an objection to any portion of any instruction given, ... he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, ... to which he objects and the ground of his objection. . . .” Appellees declined in their brief to meet the substantive question raised by appellant.

They not only asked that we “dismiss the appeal” but questioned our right to consider it. They pointed out that § e of Md. Rule 554 says: “Upon appeal a party in assigning error in the instructions, shall be restricted to (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct distinctly objected to before the jury retired and (2) the grounds of objection distinctly stated at the time, and no other errors or assignments of error in the instructions shall be considered by the appellate court.” (Emphasis added). Failure to Object Appellant did not reply by brief to appellees’ procedural contention that the appeal should be dismissed. At argument, however, appellant contended that the trial judge ⁵⁰² was fully aware of the principles of law advocated by counsel for the defendant before the instructions were given as a result of the motions for directed verdict.

Therefore, the motions for directed verdict provided a “substantial compliance with the requirements” of Md. Rule 554 d and with e as well. It cited Merritt v. Darden, 227 Md. 589 for that contention and argued that, as in Merritt , “. . . inasmuch as . . . the trial judge was fully aware of the principles of law advocated by counsel for the defendant before the instructions were given, . . . [the motion for a directed verdict] was [in] substantial compliance with the requirements of the rule, and that what was done was sufficient to preserve the right of the defendant to a review by this Court under Rule 554 e.” Id. at 597-598 . Furthermore, appellant pointed to our own opinion in Kowalewski v. Carter, 11 Md. App. 182 where “we [were] not persuaded to dismiss the contention on what we believe[d] in the circumstances [t]here to be a fine distinction.” Id. at 192 . We note that, in both cases cited by appellant, when the trial judge called for exceptions at the conclusion of the charge, some affirmative exception was taken.

Each case turned not on whether the exception was taken, but on whether the grounds therefor were sufficiently specified to conform to the rule. Merritt, 227 Md. at 597 ; Kowalewski, 11 Md. App. at 192 . In Kowalewski , no formal ground was stated when the exception was taken. In Merritt “ . . . counsel for the defendant, in excepting to the instructions, stated that he relied on the objections he had made when the charge to the jury was discussed at the preinstruction conference.” Id. at 595 .

In the instant case, no exception at all was taken. To the contrary, appellant expressly stated that it had none. The Court of Appeals has stated most emphatically that it: “ . . . will only concern [itself] on appeal with the exceptions to the charge filed by the objecting party at the conclusion of the charge itself.” (Emphasis added). Greenbelt Coop.

Pub. Ass’n v. Bresler, 253 Md. 324, 365 , citing Jones v. Federal Paper Bd. Co., 252 Md. 475, 490 . ⁵⁰³ Therefore, in order to be in “substantial compliance” with Rule 554, some exception must be made following the instructions. Furthermore, the Court of Appeals has used language preclusive of the appellate court’s right to review instructions challenged on appeal but not objected to below: In Levine v. Rendler, 272 Md. 1 , 13 and in S & S Bldg.

Corp. v. Fidelity Storage, 270 Md. 184, 189 , the Court said “the point is not before us for review.” In Barwood, Inc. v. Georgi, 253 Md. 29, 31 , the Court said that because of a failure to except, Rule 554 e “precludes our consideration of their complaint.” In Jones v. Federal Paper Bd. Co., 252 Md. 475, 490 , as in Hill v. Coleman, 218 Md. 1, 2 , the Court held that “there is nothing before us for review on these issues. . . .” In Goldman v. Johnson Motor Lines, 192 Md. 24 , 30 the Court held that, because of the failure to comply with the rule, it was “unable to pass upon that question on appeal.” Finally, in Barone v. Winebrenner, 189 Md. 142 , 146 and in Smith v. Carr, 189 Md. 338, 341 , the Court found that in the absence of an objection it is “prevented on appeal from considering errors in the instructions given in [the] case.” These cases seem to indicate that we are proscribed from reviewing a lower court’s instructions to the jury unless objection is made after they are given. The strictness of these rulings requiring exact adherence to Rule 554 e would seemingly leave no room for lingering doubts about the absoluteness of the application of the rule. We founder, however, upon an exception to the strict application of this rule which we find in an earlier case, State v. Wooleyham Transport Co., 192 Md. 686 .

There, no objection was made following the instructions. However, the trial judge in Wooleyhan had certified to the Court of Appeals that the ⁵⁰⁴ particular objection was made to him and was overruled in chambers after he agreed to use the objectionable prayer as part of his instructions — but before the instructions were given. Reasoning that the purpose of the rule had been satisfied, the Court of Appeals decided to consider the question raised on appeal: 2 “The purpose of requiring the objection to any part of the charge to be presented to the trial judge before the jury retires is to give the trial judge an opportunity to amend or supplement his charge if he deems an amendment necessary. Fisher v. Baltimore Transit Co., 184 Md. 399, 402 , 41 A. 2d 297 .

In the case before us the trial judge certified that the particular objection was made to him before he granted the prayer and delivered the charge to the jury, which he overruled. He specifically had the benefit of that objection before the jury retired. The only thing out of order in this case was the failure to have the stenographer in chambers to take down the objection. This was later formally done at the suggestion and with the approval of the trial judge.

Rule 6, Sub-section (c) and (d), supra, did not contemplate the dismissal of an appeal under the circumstances in this case. The trial judge passed on the question, after objection, before the jury retired and the question is before us here.” (Emphasis added). State v. Wooleyhan Transport Co., 192 Md. at 689-690. The Issue on Appeal.

In the case at bar, appellant contends, as was contended in Wooleyhan, that the issue inherent in the instruction to ⁵⁰⁵ which appellant failed to object (ie., whether the statutory standard could be used in a negligence case) was already before the judge, satisfying the requirement that the judge have the benefit of the objection in time to correct any error in his instructions. Although the trial judge did not certify to this as was done in Wooleyhan, the issue was before him on the motions for directed verdict as is reflected in the record transcript. 3 Thus, at first blush, Wooleyhan seems to provide us with an analogous means to consider the issue raised on appeal based upon the theory of substantial compliance with the Rule. ⁵⁰⁶ Stare Decisis " ‘The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life,’ White v. King, 244 Md. 348, 354 , 223 A. 2d 763 (1966).” Hearst Corp. v. St. Dep’t of A. & T., 269 Md. 625, 643-644 . Reliance upon such circumstantially restricted authority as Wooleyhan is an uncertain practice at best, but especially here since that case has been undermined by subsequent decisions of the Court of Appeals. Within six years of the Wooleyhan holding that an objection in chambers (before instructions and not of record) sufficed to permit the issue to be considered on appeal, the Court in Ritterpusch v. Lithographic Plate, 208 Md. 592, 602 , rejected a similar argument and stated that: “Clearly, the controlling objection and the one to which appellate review is restricted, is that made after the charge has been delivered.” (Emphasis added). “Precise Rubrics” Seeking guidance in determining which direction to follow, we are reminded that the Court of Appeals over the past decade and a half has increasingly inclined toward compelling strict compliance with its rules.

In Brown v. Fraley, 222 Md. 480, 483 , the measured restraint used by Chief Judge Bruñe in discussing the importance of adherence to the Rules should have pointed the direction to the observant and