Taylor v. Wahby

Barnes, J., delivered the opinion of the Court. The present case comes before us from certain judgments entered by the Circuit Court for Montgomery County (Shearin, J.), sitting without a jury, after our remand, without affirmance or reversal, pursuant to Maryland Rule 871, of a prior case between the same parties. See Damazo v. Wahby, 259 Md. 627 , 270 A. 2d 814 (1970).* 1 The first Damazo case gives much of the relevant background for the present case. That case involved two separate actions at law by two separate real estate brokers for commissions in connection ¹⁰³ with the sale of two separate apartment properties in Prince George’s County.

One of the properties involved was a high-rise apartment property located on Edwards Way (Edwards Way), owned by Willowbrook Development Company, Inc. (Willowbrook). The other property was a garden-apartment property located on Riggs Road (Riggs Road), owned by Vance Properties, Inc. (Vance). David Damazo (Damazo) was the president and controlling stockholder of both Willowbrook and Vance. Both properties were sold under separate contracts of sale to Coronado-Adelphi, Inc. (Coronado), a corporation controlled by John and Irene Toth (Toth) and Robert L. Taylor (Taylor).

Nimer S. Wahby (Wahby), a real estate broker, contended that he was the procuring cause in the sale of each property. Pie filed an action at law in the Circuit Court for Montgomery County (Law No. 25,447) against Willowbrook, Vance, Damazo, Toth and Taylor, seeking recovery of (1) a real estate commission on both sales and (2) damages — compensatory and punitive — for tortious interference and for conspiracy to interfere with his alleged real estate listing contract. Fliegel Properties Management, Inc. (Fliegel), also a real estate broker, contended that it was the procuring cause of the sale of each property. It also filed an action at law in the Circuit Court for Montgomery County (Law No. 25,778) against Willowbrook, Vance, Damazo and Toth, seeking recovery of (1) a real estate commission on both sales and (2) compensatory and punitive damages for tortious interference and for conspiracy to interfere with his alleged real estate listing contract.

It is to be noted that Taylor was not a party defendant in the Fliegel case. Both law actions were consolidated for trial and were tried together by Judge Shearin without a jury. The trial court found that Wahby was the procuring cause of the sale of Edwards Way and awarded him the following judgments: (1) Against Willowbrook for real estate commissions in the amount of $47,500.00; ¹⁰⁴ (2) Against Damazo for real estate commissions in the amount of $47,500.00 on the theory that Damazo was merely the alter ego of Willow brook; (3) Against Damazo, Toth and Taylor in the amount of $1.00 compensatory damages for tortious interference with the Wahby contract and also $5,000.00 punitive damages; and (4) Against Damazo, Toth and Taylor in the amount of $1.00 compensatory damages for conspiracy to defraud Wahby of a real estate commission. The trial court found that Fliegel was the procuring cause of the sale of Riggs Road and awarded Fliegel the following judgments: (1) Against Vance in the amount of $38,500.00 for real estate commissions; (2) Against Damazo in the amount of $38,500.00 for real estate commissions on the theory that Damazo was. the alter ego of Vance; (3) Against Damazo and Toth for $1.00 compensatory damages and for $5,000.00 punitive damages for tortious interference with the Fliegel contract; and (4) Against Damazo and Toth for $1.00 compensatory damages for conspiracy to defraud Fliegel of a real estate commission.

The defendants in each law action filed appeals to this Court. A cross-appeal was filed and was prosecuted by Fliegel. Wahby filed a cross-appeal, but did not prosecute the appeal, asking in his brief in the first Damazo case that his judgments be affirmed. In the first Damazo case, we concluded that the lower court erred in holding that Damazo was personally liable for real estate commissions payable to Wahby and Fliegel for the sale of properties held by the corporate vendors, Willowbrook and Vance, and that no punitive damages were ¹⁰⁵ allowable.

We remanded the case to the lower court under Maryland Rule 871, without affirmance or reversal, stating: “It is apparent that the trial court considered Damazo as the chief instrument of harm to the brokers and the one who could be made to be financially responsible in actuality. The judgments Judge Shearin rendered reflect this, and it is obvious that if Judge Shearin had realized (1) that Damazo could not be held personally and directly responsible to pay the brokers their commissions under the contract counts of the declaration, (2) that he could not be held liable at all under the interference count of Wahby’s declaration, (3) that he could not be held liable for punitive damages under the interference and conspiracy counts for lack of evidence of express malice, and (4) that for the same reason the Toths and Taylor could not be held liable for punitive damages under either the interference or conspiracy counts, the judgments he would have rendered properly and permissively could have appropriately reflected the amount of enforceable responsibility he found the evidence to place on Damazo, the Toths and Taylor, respectively, under the various counts. * * * “The remand without affirmance or reversal will vacate all the judgments, except those against Willowbrook and Vance, which will remain undisturbed. The new judgments that will be entered should reflect the collectibility of the judgments against the corporations, perhaps by being entered for the amount of the commissions claimed with credit to be given for any amount recovered on the judgments against the corporations, since only one recovery of the actual damages can be allowed.” Before the mandate issued, Taylor and the other appellants moved for a reargument, stating as one of the grounds for the motion: ¹⁰⁶ “(a) The trial court rendered judgment against the individual defendants (appellants) in the amount of $1.00 compensatory damage for tortiously interfering with the contracts of plaintiff Wahby (appellee). Wahby did not appeal from these judgments.

In remanding the case to the trial court, this Court vacated the $1.00 judgments and directed that new judgments be entered: ‘The new judgments that will be entered should reflect the collectibility of the judgments against the corporations, perhaps by being entered for the amount of the commissions claimed with credit to be given for any amount recovered on the judgments against the corporations, since only one recovery of the actual damages can be allowed.’ “The effect of the Court’s Opinion will be to increase the amount of the Wahby judgment against the individual defendants (appellants) from $1.00 to a judgment of $47,500.00. We respectfully submit that since Wahby did not appeal from the $1.00 judgments awarded in his favor against the individual defendants (appellants), that this Court erred in remanding the case with a suggestion that a new judgment be entered against the individual defendants substantially in excess of the $1.00 judgments rendered in the lower court. A decree may not be reversed for the benefit of one who did not appeal therefrom. Harrison v. Robinette, 167 Md. 73 .” On January 4,1971, we denied the motion for reargument without a hearing and without further comment.

After the remand reached the lower court, Wahby filed a motion for revised judgments against Damazo, Toth and Taylor. He requested the lower court to enter judgments against each of the individual defendants in the amount of $47,500.00, plus (a) expenses of litigation, (b) interest from June 17,1968, and (c) attorneys’ fees. ¹⁰⁷ The appellants opposed Wahby’s motion on two main grounds: (1) that, inasmuch as Wahby had not perfected his cross-appeal from the failure of the lower court to award him a judgment against Taylor in excess of $1.00 or a judgment for counsel fees, court costs and interest, his judgment could not be enlarged by either the trial court upon subsequent remand or this Court and (2) that, even if Wahby had perfected his cross-appeal from the failure of the trial court to award him attorneys’ fees, such fees are not properly allowable in the type of case involved in this litigation. Judge Shearin heard oral argument, but the argument was not transcribed. In. any event, no new evidence was produced after the remand other than a stipulation between the parties that the judgments against Willowbrook and Vance were “uncollectible as to said corporations.” As to Wahby, the trial court then on May 10, 1973, directed the entry of new judgments against Damazo, Toth and Taylor, jointly and severally, in the total amount of $84,040.04, computed as follows: (a) Amount of real estate commission $47,500.00 (b) Interest from July 17, 1968, to May 10,1973, at 6% per annum 13,950.02 (c) Attorneys’ fees of 33-1/3% 20,483.34 (d) Attorneys’fees for appeal 500.00 (e) Expenses of litigation 1,606.68 $84,040.04 Fliegel filed a motion for revised judgments similar to Wahby’s motion.

The lower'court entered judgments against Damazo and Toth, jointly and severally, in the amount of $66,721.37, computed as follows: (a) Amount of real estate commission $38,500.00 (b) Interest from May 31, 1968, to May 10, 1973, at 6% per annum 11,417.07 (c) Attorneys’ fees of 33-1/3% 16,639.02 (d) Costs and expenses incurred 165.28 $66,721.37 ¹⁰⁸ These judgments were entered on the docket on May 11, 1973; and timely appeals were taken to this Court. There are three principal questions presented to us for decision in the present appeal. Was it reversible error for the lower court upon remand: (1) To enter judgments against the appellants on the tort counts in excess of the $1.00 judgments originally entered in favor of Wahby, he not having perfected his appeal from the original judgments in his favor for $1.00? (2) To add interest to the judgments for the real estate brokers’ commissions, the interest being calculated from the date of settlement to the date of judgment?

(3) To add attorneys’ fees and expenses of litigation to the judgments for the real estate brokers’ commissions? (1) In retrospect, it would have been wiser if we had expressly excluded from our statement in regard to the vacation of judgments upon the remand of the first Damazo case under Rule 871 the Wahby judgments for $1.00 in regard to which he did not perfect an appeal to us and indeed requested in his brief that the judgments be affirmed. At that time, when the posture of these judgments was brought to our attention by the motion for reargument which indicated that there might well be some confusion in regard to them — again in retrospect — we might well have indicated by a short per curiam opinion that the Wahby judgments for $1.00 each in regard to which no appeal was perfected were not vacated and thus we could have avoided the error which resulted in the lower court in regard to these judgments. We are comforted by the thought, however, that in view of the lower court’s errors in regard to the allowance of attorneys’ fees, interest and the expenses of litigation, the present case would have reached us in any event so that no harm or prejudice has resulted from the possible ambiguity in the first Damazo case in regard to the Wahby $1.00 judgments. ¹⁰⁹ We meant, when we referred to “all the judgments” in our opinion in the first Damazo case, only those judgments which were before us on appeal were included in those words and that the $1.00 judgments against the appellants — in regard to which no appeal was perfected by Wahby — were not included.

This Court in the first Damazo case passed upon certain questions raised by the appellants in regard to the tort judgments. Thus, although the $1.00 judgments were considered by us, they were not subject to change or consideration by us for Wahby’s benefit since he did not cross-appeal. We stated in Walston v. Sun Cab Co., Inc., 267 Md. 559, 564 , 298 A. 2d 391, 394 (1973): “We have concluded that the appellants’ motion to strike should be granted, so that we will not consider the questions decided adversely to Sun Cab by the Court of Special Appeals, they not being the subject of any cross-petition for certiorari filed by Sun Cab. “We have held many times that an appellee who does not file a cross-appeal cannot urge before us matters not within or related to the issues raised by an appellant. Even if a judgment or decree is prejudicial to an appellee, such prejudice will be disregarded by this Court if there was no cross-appeal filed by the appellee.

Moreover, such appellee cannot obtain any affirmative relief by way of reversal, amendment or modification of the judgment or decree under review in this Court. See e.g.. Temple Hill Baptist Church v. Dodson, 259 Md. 515, 521 , 270 A.2d 802, 806 (1970); Glen Alden Corp. v. Duvall, 240 Md. 405, 421 , 215 A.2d 155, 167 (1965) and prior Maryland cases cited in that opinion. See also Fennell v. G.A.C. Finance Corp., 242 Md. 209, 229 , 218 A.2d 492, 502-503 (1966). “The question presented here is whether the same rule in regard to appeals as of right applies to cases coming to this Court by way of the exercise of its discretion in granting writs of certiorari to lower ¹¹⁰ courts, principally the Court of Special Appeals.

We have concluded that the same rule does apply.” This Court has consistently followed the rule that a judgment or decree from which no appeal has been taken may not be reversed for the benefit of one who did not appeal even though in regard to him the judgment or decree was both erroneous and injurious. Judge Collins aptly stated for the Court in Fitch v. Double “U” Sales Corp., 212 Md. 324, 329-30 , 129 A. 2d 93, 96 (1957), reviewing the prior cases in this Court: “The appellee did not cross appeal. In Sprecher v. Sprecher, 206 Md. 108 , 110 A.2d 509 , the lower court by decree set aside a deed, but also impressed an equitable lien on the property for sums expended by the appellant in improvements to the property and required the appellee to pay the costs. It was there held that, as the appellee had not appealed from the part of the decree impressing the lien and requiring the appellee to pay the costs, the question was not before this Court.

See also Lynch v. Kamanitz, 148 Md. 381 , 129 A. 362 ; Syfer v. Fidelity Trust Co., 184 Md. 391, 397 , 41 A.2d 293 ; Nowell v. Larrimore, 205 Md. 613, 623 , 109 A.2d 747 . It was said by Judge Offutt in Harrison v. Robinette, 167 Md. 73, 83 , 173 A. 60 : * * a decree may not be reversed for the benefit of one who did not appeal therefrom, even though as to him it was both erroneous and injurious. Frederick County v. Page, 163 Md. 631 , 164 A. 182 ; Gordon v.