Bienkowski v. Brooks

• Decision Date: 11 April 2005
• Docket Number: No. 34,34
• Parties: Mieczyslaw BIENKOWSKI v. Jonathan Paul BROOKS.
• Court: Maryland Court of Appeals

873 A.2d 1122

386 Md. 516

Mieczyslaw BIENKOWSKI v. Jonathan Paul BROOKS.

No. 34, September Term, 2003.

Court of Appeals of Maryland.

April 11, 2005.

Reconsideration Denied June 7, 2005.

Daniel M. Clements (John E. Raine, III, Salsbury, Clements, Bekman, Marder & Adkins, LLC, Baltimore, Clay M. Barnes, John E. Raine, III, Towson, on brief), for petitioner.

Ronald A. Baradel (Council, Baradel, Kosmerl & Nolan, P.A., Annapolis, Nichael J. Budow, Budow and Noble, P.C., Betheda, on brief), Michael J. Budow (Richard E. Schimel, Budow and Noble, P.C., Bethesda, on brief), for respondent.

Bruce M. Bender, Van Grack, Axelson, Williamowsky, Bender & Fishman, P.C., Rockville, amicus curiae.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, BATTAGLIA, JOHN C. ELDRIDGE (retired, specially assigned) and LAWRENCE R. RODOWSKY, (retired, specially assigned), JJ.

ELDRIDGE, J.

Article IV, § 22, of the Maryland Constitution grants, with some exceptions, a right of appeal from a decision by a circuit court to a three-judge "court in banc."¹ The court "in banc is established and functions `as a separate appellate tribunal,'" and the "purpose of the constitutional provision authorizing an in banc appeal was to provide a substitute or alternate for an appeal to the Court of Appeals," Board v. Haberlin, 320 Md. 399, 406, 578 A.2d 215, 218-219 (1990). "The decision of the court en banc is conclusive, final and non-appealable by the party who sought the en banc review.... As to that party, a reservation of points or questions by the Court en banc is a substitute for an appeal to the Court of Appeals." Buck v. Folkers, 269 Md. 185, 186-187, 304 A.2d 826, 827 (1973). On the other hand, the appellee in the court in banc is not precluded from seeking review of the court in banc's decision by "the Court of Appeals [as] may be allowed by Law."

The principal issue in this case is whether Article IV, § 22, of the Maryland Constitution precludes the Court of Special Appeals from exercising jurisdiction over an "appeal" from a court in banc taken by the party who was an appellee in the court in banc. While this Court in dicta has indicated that the Court of Special Appeals is authorized to exercise jurisdiction over the merits of such appeals, or has proceeded on the assumption that the Court of Special Appeals may exercise such jurisdiction, the constitutional question has never previously been a disputed issue resolved by a holding of this Court.² We shall today hold that the Court of Special Appeals is not authorized to exercise jurisdiction over the merits of such appeals. We shall also hold that an unsuccessful appellee in the court in banc is usually entitled to seek further appellate review by filing in the Court of Appeals a petition for a writ of certiorari.

I.

Since the issues in this tort action concern appellate procedure and trial procedure, the underlying facts may be set forth briefly.

Early in the morning of June 3, 1997, during a rain storm and while it was still dark, Kazimera Bienkowski and her husband, Mieczyslaw Bienkowski, were walking along the side of a road in Anne Arundel County en route to a light rail station. They intended to travel by train to their place of employment in Baltimore City. While walking along the side of the road, Mrs. Bienkowski was struck and killed by a motor vehicle operated by Jonathan Paul Brooks.

Mr. Bienkowski subsequently filed in the Circuit Court for Anne Arundel County a three-count complaint against Mr. Brooks, alleging that the sole cause of the accident was Brooks's negligent driving. Count one of the complaint alleged that Mr. Bienkow-ski suffered injuries, lost wages, and incurred medical bills resulting from the accident. Count two was a survival action by Mr. Bienkowski as personal representative of the decedent's estate, and count three was a wrongful death action in which Mr. Bienkowski sought economic and non-economic damages caused by his wife's death.

Following an extensive trial before Judge Robert Heller and a jury, the case was submitted to the jury on various issues. The jury returned a verdict for the plaintiff in the total amount of $26,744.47. The jury's verdict sheet, in pertinent part, stated as follows:

"VERDICT SHEET

"1. Do you find that the defendant, Jonathan Brooks, was negligent?

X YES ____ NO

(If your answer to this question was "Yes", please answer the next question. If your answer to this question was "No", then answer no further questions, but sign this form at the end.)

"2. Do you find that defendant Jonathan Brooks' negligence caused the accident?

X YES ____ NO

(If your answer to this question was "Yes", please answer the next question. If your answer to this question was "No", then answer no further questions, but sign this form at the end.)

"3. Do you find that Kazimiera Bienkowski was guilty of any negligence that caused or contributed to the accident?

____ YES X NO

(If your answer to this question was "Yes", then answer no further questions, but sign this form at the end. If your answer to this question was "No", please answer the next question.)

"4. A) What damages, if any, do you award Plaintiff, Mieczyslaw Bienkowski, individually, as a result of the accident for:

1) His past medical expenses? $ 250.47 ________ 2) His past lost wages? $ 840.00 ________ 3) His non-economic damages?³ $ 0.00 ________ Total of Damages $ 1,090.47 ________

B) What damages, if any, do you award the estate of Kazimiera Bienkowski as a result of the accident for:

1) Her medical expenses? $ 54.00 ________ 2) Her funeral expenses? $ 5,000.00 ________ 3) Her past non-economic damages? $ 0.00 ________ Total of Damages $ 5,054.00 ________

C) What damages, if any, do you award Mieczyslaw Bienkowski as a result of the death of his wife, Kazimiera Bienkowski for:

1) Loss of Mrs. Bienkowski's earnings during their joint lives? $ 20,600.00 _________ 2) Replacement value of Mrs Bienkowski's house-hold services during their joint lives? $ 0.00 _________ 3) Non-economic damages?⁴ $ 0.00 _________ Total of damages? $ 20,600.00 _________

* * *

Thereafter, the plaintiff Bienkowski filed a motion for a new trial limited to the amount of damages. The plaintiff contended that the award of damages was inadequate and that the jury disregarded evidence related to damages. Specifically, the plaintiff complained of the jury's failure to award Mr. Bienkowski any non-economic damages for the death of his wife and failure to award any non-economic damages for Mr. Bienkowski's "serious and permanent injuries." The motion pointed out that "[e]ven Defendant's economist agreed at trial" that the "Plaintiff's loss of the value of household services alone [was] worth at least $96,437.00." (Emphasis in original).

Judge Heller, in an order and memorandum opinion, denied the motion for a new trial limited to damages. After setting forth the facts of the case, the procedural history, and the parties' arguments, Judge Heller's opinion continued as follows (footnotes omitted):

"The Court is mindful that it must consider the core question of whether justice has been served by the jury's verdict. The Court is mindful of its responsibilities to prevent a miscarriage of justice due to an improper verdict. The Court is likewise mindful that it should not casually overturn the verdict of the jury. * * *

"The Court's conscience was not shocked by the jury's damages verdicts. As above noted, the jury awarded the plaintiff those damages sought by plaintiff with respect to all matters except non-economic damages and damages for the replacement value of Mrs. Bienkowski's household services. The Court can find no support for the argument that the jury was confused about the evidence regarding the plaintiff's damages and/or confused by the Court's instructions regarding the damages, or that the jury ignored or disregarded the evidence and/or the Court's instructions regarding the plaintiff's damages.

"The Court was more surprised that the jury found in favor of the plaintiff and against the defendant on liability especially given the testimony of the reconstruction experts called by plaintiff and defendant. The Court found the defendant's expert to be far more credible in his opinions and the basis for his opinions than that of the plaintiff's expert. In fact, the Court found the Plaintiff's reconstruction expert's testimony not credible. Upon hearing the jury's verdict the Court also suspected that the jury had in fact reached a compromise verdict. The Court does not believe it can be fair to both parties if it takes `face value' the verdict sheet as it relates to the verdicts findings as to liability and some of the damages awarded while not taking `face value' the verdicts of the jury as to those damages not awarded.

"Although the defendant opposes the new trial request, the defendant asks that if the Court is inclined to order a new trial, that the new trial be granted as to all issues. Plaintiff opposes the granting of a new trial as to all issues and asks only that a retrial be on damages. As justice requires fairness to both plaintiff and defendant, a retrial on damages only would, in the Court's discretion, not be fair to both parties. To close its eyes to the entire trial and focus only on the damages verdicts when the jury exhibited an understanding of the issues before it and the instructions given would not be justice to all of the parties.

"Given that the plaintiff seeks only a new trial as to damages, and opposes a new trial if a new trial is to be granted as to all issues, and given that the Court is, as stated, mindful of its responsibility to do justice by all parties, the Court's conscience will not allow the granting of a new trial limiting the new trial to the issue of damages only, and will therefore deny the Plaintiff's motion."

Mr. Bienkowski filed a "notice for in banc review" under the provisions of Maryland Rule 2-551(a) and (b). In his supporting memorandum...