Buck v. Cam's Broadloom Rugs, Inc.

• Decision Date: 01 September 1991
• Docket Number: No. 98,98
• Citation: 612 A.2d 1294,328 Md. 51
• Parties: Kenneth J. BUCK v. CAM'S BROADLOOM RUGS, INC. ,
• Court: Maryland Court of Appeals

Page 51

328 Md. 51

612 A.2d 1294

Kenneth J. BUCK v. CAM'S BROADLOOM RUGS, INC.

No. 98, Sept. Term, 1991.

Court of Appeals of Maryland.

Oct. 5, 1992.

Motion for Reconsideration Denied Nov. 6, 1992.

Harry W. Blondell (Edward T. Pinder, William J. Blondell, Jr., Chartered, all on brief), Baltimore, for petitioner.

William N. White, Towson, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

McAULIFFE, Judge.

Kenneth J. Buck (Buck) and his wife sued Cam's Broadloom Rugs, Inc. (CBR) for injuries and damages arising out of an automobile accident allegedly caused by the negligence of CBR's driver. A jury in the Circuit Court for Baltimore County found in favor of Buck and awarded damages of $3,868. The jury did not award damages for the claimed loss of consortium. The plaintiffs filed a timely motion for new trial on the issue of damages, contending that the verdict was unjust. Specifically, the plaintiffs contended that the award of damages was grossly inadequate, and that the verdict more than likely was the product of a series of improper questions, comments, and arguments of the defendant's attorney during trial. Judge Joseph F. Murphy Jr. granted the motion as to Buck's claim for damages, but refused to disturb the jury's finding in favor of the defendant on the consortium claim.

The defendant appealed from the order granting a new trial. The Court of Special Appeals properly dismissed that appeal because it was not taken from a final judgment, and this Court denied the defendant's petition for certiorari. Cam's Broadloom Rugs v. Buck, 314 Md. 628, 552 A.2d 894 (1989).

Upon retrial, the jury awarded damages of $87,000 to Buck. The defendant again appealed, raising numerous issues concerning the conduct of both trials, and asserting that the trial judge abused his discretion in granting a new trial. The Court of Special Appeals found it necessary to address only the issue of the grant of a new trial because that Court agreed with the defendant that Judge Murphy abused his discretion in awarding a new trial. Cam's Rugs v. Buck, 87 Md.App. 561, 590 A.2d 1060 (1991). We granted certiorari, and we shall vacate the judgment of the Court of Special Appeals.

I.

Buck begins his argument by suggesting that the Court of Special Appeals may have been in error in even considering an appeal from the action of the trial judge in granting a new trial. He cites Chiswell v. Nichols, 139 Md. 442, 444, 115 A. 790 (1921), for the proposition that an appellate court in this jurisdiction should "refuse[ ] to entertain" an appeal from a lower court's grant or denial of a motion for new trial. There is support for this proposition in the language of a substantial number of the earlier cases of this Court.

In Anderson v. State, 5 H. & J. 174, 175 (1821), our predecessors said:

[W]e are decidedly of opinion, that the refusal of an inferior Court to grant a new trial cannot be assigned for error. The Marine Insurance Company v. Hodgson, 6 Cranch, 218. The law has been considered as settled in this country beyond all controversy; and no case can be found in England where a superior tribunal, acting on the transcript of the record, or the record itself, brought before them by a writ of error, has entertained such a question.

See also Griffith v. Benzinger, 144 Md. 575, 597, 125 A. 512 (1924) ("the action of a trial court in granting or refusing a new trial is within the discretion of such court and will not be reviewed on appeal"); Washington & R. Rwy. Co. v. Sullivan, 136 Md. 202, 211, 110 A. 478 (1920) ("granting or refusing a new trial is a matter resting in the discretion of a trial Court, and its action thereupon is not the subject matter of review upon appeal to this Court"); Whitcomb v. Mason, 102 Md. 275, 285, 62 A. 749 (1905) ("It is well settled that no appeal will lie from an order granting or refusing a new trial the motion for which is always addressed to the sound discretion of the Court."); Sittig v. Birkestack, 38 Md. 158, 166 (1873) ("No appeal lies from the refusal to grant a new trial, that being a matter which in Maryland, rests exclusively in the discretion of the court below."); Baltimore v. Reynolds, 18 Md. 270, 273 (1862) (granting of new trial unless remitted or filed is an action within the discretion of the lower court, and cannot be reviewed on appeal); Wall v. Wall, 2 H. & G. 79, 81 (1827) ("where the subject decided by the inferior Court is left by law to their discretion, as in the refusal to grant a new trial, it has been adjudged that a writ of error will not lie").

Thus, in 1925 in 2 Poe, Pleading and Practice § 349 (Tiffany's ed.), the learned author wrote:

Motions for a new trial are addressed to the sound discretion of the court, and from its action in granting or refusing them, whether absolutely or on terms, no appeal will lie.

That statement of the law, with rare exceptions, was repeated in succeeding Maryland cases. See, e.g., Hartlove v. Bottling Co., 160 Md. 507, 509-510, 153 A. 850 (1931); Von Schlegell v. Ford, 167 Md. 584, 593-94, 175 A. 589 (1934); Lynch v. Baltimore, 169 Md. 623, 633-34, 182 A. 582 (1936); Riley v. Naylor, 179 Md. 1, 9, 16 A.2d 857 (1940); Snyder v. Cearfoss, 186 Md. 360, 366-69, 46 A.2d 607 (1946); Hill v. Coleman, 218 Md. 1, 2, 144 A.2d 694 (1958).

In Leizear v. Butler, 226 Md. 171, 178, 172 A.2d 518 (1961), the rule was stated with a qualification: "[W]e find it firmly established in Maryland that whether the claim be of excessiveness or inadequacy the action of the trial court in allowing or refusing a new trial will rarely, if ever, be reviewed on appeal." Shortly thereafter, in Brinand v. Denzik, 226 Md. 287, 292, 173 A.2d 203 (1961), this Court referred to "the general rule that a motion for a new trial is within the sound discretion of the trial court and its ruling is ordinarily not reviewable on appeal." The Court noted that in Wash., B. & A. R. Co. v. Kimmey, 141 Md. 243, 118 A. 648 (1922), the denial of a motion for a new trial was reversed and the case remanded for further consideration where the record indicated the trial judge had improperly refused to receive newly discovered evidence that should have been considered in connection with the motion. Holding that the failure to exercise discretion is tantamount to an abuse of discretion, the Brinand Court proceeded to consider whether the trial judge had abused his discretion, and found he had not. Similarly, in Martin v. Rossignol, 226 Md. 363, 366-67, 174 A.2d 149 (1961), this Court noted that "the denial of a motion for a new trial is not appealable, at least where the trial court fairly exercises its discretion."

The rule was then stated in its narrower form in Carlile v. Two Guys, 264 Md. 475, 477, 287 A.2d 31 (1972): "a trial judge's granting or refusing a new trial--fully, partially, conditionally, or otherwise--is not reviewable on appeal except under the most extraordinary or compelling circumstances". See also A.S. Abell Co. v. Skeen, 265 Md. 53, 59, 288 A.2d 596 (1972) (same) and Estep v. Estep, 285 Md. 416, 421 n. 5, 404 A.2d 1040 (1979) ("general rule [is] that orders granting a new trial are not appealable").

In Wernsing v. General Motors Corp., 298 Md. 406, 420, 470 A.2d 802 (1984), we said that an appeal will lie from the grant or denial of a motion for a new trial, but that the judgment of the trial court will not be disturbed except for an abuse of discretion. Notwithstanding the sometimes confusing use of language in the past, we make it clear that the correct statement of the law in this area was set forth by Judge Davidson for the Court in Mack v. State, 300 Md. 583, 600, 479 A.2d 1344 (1984):

The question whether to grant a new trial is within the discretion of the trial court. Ordinarily, a trial court's order denying a motion for a new trial will be reviewed on appeal if it is claimed that the trial court abused its discretion. However, an appellate court does not generally disturb the exercise of a trial court's discretion in denying a motion for a new trial. (Citations omitted.)

Although, as the defendant learned earlier in this case, an order granting a new trial is not immediately appealable because it is an interlocutory order, an order granting a new trial is ultimately reviewable when an appeal is taken from the final judgment. Thus, the issue of whether Judge Murphy erred in granting a new trial is now properly before the Court, for review under an abuse of discretion standard.

II.

We turn to the question of whether Judge Murphy abused his discretion in granting Buck a new trial. In so doing, we are obliged to consider the breadth of discretion that is afforded a trial judge in making this type of decision. As we have seen in tracing the history of our treatment of this issue, the emphasis has consistently been upon granting the broadest range of discretion to trial judges whenever the decision has necessarily depended upon the judge's evaluation of the character of the testimony and of the trial when the judge is considering the core question of whether justice has been done. We noted, for example, that "[w]e know of no case where this Court has ever disturbed the exercise of the lower court's discretion in denying a motion for a new trial because of the inadequacy or excessiveness of damages." Kirkpatrick v. Zimmerman, 257 Md. 215, 218, 262 A.2d 531 (1970).

On the other hand, a trial judge has virtually no "discretion" to refuse to consider newly discovered evidence that bears directly on the question of whether a new trial should be granted. See Wash., B. & A. R. Co. v. Kimmey, supra, 141 Md. at 250, 118 A. 648 ("discretion could not be characterized as sound which wholly disregarded evidence by which its exercise should have been aided"). See also Browne v. Browne, 22 Md. 103, 112 (1864). And, if newly discovered evidence clearly indicates that the jury has been misled, a new...