Carroccio v. Thorpe

Decision Date29 January 1963
Docket NumberNo. 144,144
PartiesCharles S. CARROCCIO et ux. v. Bernard C. THORPE.
CourtMaryland Court of Appeals

John Summer Wood, Sr., Poolesville, for appellants.

William C. Miller, Silver Spring (Miller & Miller, Silver Spring, on the brief), for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

PRESCOTT, Judge.

The Circuit Court for Montgomery County, sitting without a jury, entered judgment against the defendants in an action at law, and they have appealed.

The appellants consume eleven pages in their brief under the heading of 'Questions Presented.' It is difficult to pin-point their contentions. In their brief, reply brief and supplemental reply brief they assert as error everything from a 'cut-short hearing' to 'abuse of judicial discretion,' and allege as reasons for reversing the judgment everything from fraud to 'mistakes of fact,' 'constructive fraud, irregularities and disqualification of the special auditor.' The case may be determined by answering two questions: (1) Was the court clearly in error in sustaining the amended report of the special auditor?; and (2) Was the allowance of interest to the plaintiff a matter within the Court's discretion, under the circumstances of this case?

This is the third time the case has been before us. In its first appearance, Carroccio v. Thorpe, 222 Md. 38, 158 A.2d 660, we reversed because summary judgment had been rendered in favor of the plaintiff when certain questions of fact, according to the record, were genuinely disputed. The facts, to the time of its rendition, are set forth in the opinion in that case. We shall, therefore, give a summary thereof without restating them in detail.

More than six years ago, the appellee, in a written contract, agreed to construct a dwelling for the appellants. On or about April 3, 1958, after the dwelling's construction, the appellee filed suit against the appellants claiming to be entitled to judgment by virtue of its construction, and for certain authorized changes and extras not included in the original contract price. Filed with the declaration was a motion for summary judgment. The appellants disputed appellee's claims, and asserted that they were entitled to 'certain credits and damages' from the appellee. Counsel for the respective parties entered into a written stipulation, whereby Edward W. Nylen, a respected member of the Maryland Bar, would be appointed a special auditor 'to examine the matters in controversy and to state an account between the parties.' The stipulation provided that 'either party aggrieved' by the account could file, within ten days, exceptions with 'the court.' Pursuant to the stipulation, the Circuit Court appointed Mr. Nylen as a special auditor to state the account. Nylen requested the respective parties to submit their claims in detail. This resulted in a total of 102 items. Nylen met with counsel for the respective parties on a number of occasions and discussed all the claimed credits of all parties, item by item. He viewed the premises on two separate occasions, and on the second, the parties to the suit and their respective counsel were present. On this second occasion, March 18, 1959, the special auditor Dr. Carroccio, Thorpe and their respective counsel went over the house in great detail and considered many of the items that were in controversy. The parties, in the presence of the special auditor, agreed as to whether each item considered should be allowed or disallowed or set forth in the account at all and the amounts to be credited to each item. Where no agreement could be reached upon an item, Nylen marked same as disputed. After this and other meetings of counsel with the special auditor, a complete settlement and agreement was reached as to all items in controversy except five. These five items could not be agreed upon as to amount and were left to the special auditor to determine. It was further agreed that there were no other items in the case to be considered. In the meetings between Nylen, counsel and the parties at which the various items were discussed, many items were exchanged or traded for other items. The amounts were adjusted according to the arguments advanced by counsel for both parties, and many items were split, traded, deleted and added in the spirit of compromise and in an effort to reach a settlement. At the point where the special auditor was to prepare his account, a complete settlement and compromise had been reached on 97 items and but five items remained in dispute. After considering various papers, documents and other evidence submitted by counsel on the five disputed items, Nylen prepared and filed an account in which he set forth all of the items agreed upon and the amounts agreed to and showed the total due the appellee by virtue of the settlement, and he also made a determination as to the five items on which no agreement could be reached and included in his report amounts due the appellee for these items. The appellants then filed exceptions to almost every item contained in the account, including those upon which they had previously agreed. Following additional pleadings, the trial court granted plaintiff a summary judgment without hearing the exceptions, and it was this judgment that we reversed as stated above. Pursuant to the mandate of this Court, hearings were held on appellants' exceptions. The court found that appellants' counsel had authority to bind his clients when he signed the stipulation; therefore the auditor's report, or account, was binding on the parties. The court, also, re-referred the matter to Nylen for an additional hearing and report on the five disputed items. Appellants noted an appeal to this Court which was dismissed. Carroccio v. Thorpe, No. 116, September Term, 1961.

In February, 1962, Nylen held a hearing to take additional testimony in accordance with the previous opinion and order of the trial court. Counsel for the appellants and appellee were present and they advised the auditor they did not desire to offer further evidence. Thereafter, on March 30, 1962, the auditor filed an amended report, and the appellants promptly filed another voluminous list of exceptions. On June 18, 1962, the court held a hearing on the exceptions to the five items reconsidered on re-referral. Counsel for the appellants was present and advised the court that he did not intend to offer any additional evidence. On June 12, 1962, the court rendered judgment in favor of the appellee. This judgment was based upon the auditor's amended report, which consisted of an 'agreed to by counsel' adjustment of 97 of the original disputed items and the auditor's allowances to the plaintiff on the five disputed claims, and four years' interest on the principal amount of the judgment. This appeal followed.

I.

In order to decide the first question, it becomes necessary to determine whether there was sufficient evidence to support the trial court's finding that the 97 items listed in the auditor's amended report as having been 'mutually agreed to by counsel' had in fact been settled and compromised by the parties. Fifteen of the ninety-seven items were covered in Schedule A of the report, being items of extras credited to appellee; sixty-three of the items were covered in Schedule B of the report, being items credited to the defendants 'for work and materials not performed or furnished, and for work improperly done,' or items upon which counsel had agreed that no adjustment should be made to either side; and the remaining nineteen items were covered in Schedule C, and consisted of items of credit to the defendants for 'work and materials either omitted or paid for by the defendants.'

Appellants' contentions as to why the trial court was clearly in error in upholding the auditor's amended report seem to be three-fold: (a) that no settlement or compromise by the parties was, in fact, reached on the 97 items; (b) that even if there were such a settlement by counsel, the settlement was made by appellants' counsel without authority; and (c) even if there were an authorized settlement, it should be upset because of a disqualification of the special auditor.

(a) and (b) may be considered and answered together. The solution of both involves questions of fact. The testimony was taken in open court, and the trial court saw and heard the witnesses. The court found that Larcombe, defendants' counsel of record, had authority, 'under all of the circumstances adduced at this hearing,' to stipulate and to bind his clients; and, after hearing all the evidence, the court was convinced that the defendants 'were merely...

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5 cases
  • 4900 Park Heights Ave. LLC v. Cromwell Retail 1, LLC
    • United States
    • Court of Special Appeals of Maryland
    • April 30, 2020
    ...to have authorized.3 This constituted "ample evidence to support" the court's finding of express authority. See Carroccio v. Thorpe , 230 Md. 457, 463, 187 A.2d 678 (1963) ; see also Posko v. Climatic Control Corp. , 198 Md. 578, 583, 84 A.2d 906 (1951) ("[E]xpress authority may be shown th......
  • Scamardella v. Illiano
    • United States
    • Court of Special Appeals of Maryland
    • April 9, 1999
    ...his assent to the contingent settlement plan. We will not disturb the court's finding based on that evidence. See Carroccio v. Thorpe, 230 Md. 457, 463-64, 187 A.2d 678 (1963) (upholding the trial court's finding of authority to settle claims as not clearly erroneous); Posko v. Climatic Con......
  • Chapman v. Kamara
    • United States
    • Court of Special Appeals of Maryland
    • December 2, 1997
    ...court's determination that a party has failed to overcome the presumption will only be reversed for clear error. Carroccio v. Thorpe, 230 Md. 457, 463, 187 A.2d 678 (1963); Lovering, 38 Md.App. at 363, 380 A.2d 668. While we have almost two centuries of precedents stating that an appearance......
  • Brown v. Bradshaw
    • United States
    • Maryland Court of Appeals
    • February 15, 1967
    ...they, in their discretion, shall find to be fair and equitable in the circumstances. Robert C. Herd & Co., supra; Carroccio v. Thorpe, 230 Md. 457, 466, 187 A.2d 678 (1963). Judgment reversed. Case remanded for the further proceedings directed in this opinion. Appellee to pay the 1 For the ......
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