Falcinelli v. Cardascia

• Decision Date: 01 September 1994
• Docket Number: No. 126,126
• Citation: 339 Md. 414,663 A.2d 1256
• Parties: Thomas Richard FALCINELLI v. April CARDASCIA. ,
• Court: Maryland Court of Appeals

Page 414

339 Md. 414

663 A.2d 1256

Thomas Richard FALCINELLI v. April CARDASCIA.

No. 126, Sept. Term, 1994.

Court of Appeals of Maryland.

Aug. 24, 1995.

Michael J. Budow (Thomas W. Plimpton, Anne K. Howard, Budow and Nobel, P.C., on brief), Bethesda, for appellant.

Richard F. Walsh, Bowie, for appellee.

Argued before ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

RODOWSKY, Judge.

When the jury in this negligence action returned a verdict in excess of the amount of damages claimed in the complaint, the stage was set for a civil procedure entanglement. The trial court permitted the plaintiff to amend to conform the amount claimed to the verdict, and the trial court later denied the defendant's motion for reconsideration of that grant of leave to amend. In order to unravel the contentions of the parties we must consider when final judgment was entered, the scope of review, and the power of a circuit court to enter judgment in the amount of a verdict that exceeds the ad damnum clause.

Appellee, April Cardascia (Plaintiff), sued appellant, Thomas Richard Falcinelli (Defendant), in the Circuit Court for Montgomery County alleging personal injuries suffered in an automobile accident. The complaint consisted of a single count. Its "demand for judgment for relief sought" was damages of $100,000. Maryland Rule 2-305. Plaintiff requested a jury trial. Approximately eighteen months later Plaintiff changed counsel.

The case came on for trial on the original complaint. The jury, by special interrogatories, returned a verdict in favor of Plaintiff, awarding $3,987.08 for reimbursement of medical expenses, $1,200 for reimbursement of lost wages, and $200,000 in noneconomic damages. No objection was made to the verdict prior to discharge of the jury. On the day the verdict was returned, February 24, 1994, the clerk noted the verdict on the docket, and the clerk further made the following docket entry:

"JUDGMENT ENTERED BY VERDICT IN FAVOR OF THE PLAINTIFF APRIL CARDASCIA AGAINST THE DEFENDANT THOMAS RICHARD FALCINELLI IN THE TOTAL AMOUNT OF TWO HUNDRED FIVE THOUSAND ONE HUNDRED EIGHTY SEVEN DOLLARS AND EIGHT CENTS ($205,187.08) AND COSTS."

Within ten days of February 24, Defendant moved in the alternative for a judgment notwithstanding the verdict, ¹ for a new trial, or for a remittitur. In support of a judgment nw. v. Defendant argued insufficient evidence of primary negligence and of causation and that there was contributory negligence as a matter of law. In support of a new trial or remittitur Defendant argued that the verdict was excessive, saying in part that "[i]t may be that the Plaintiff would agree inasmuch as the figure of $100,000 was penned in her Complaint." After arguing that Plaintiff's symptoms were largely attributable to a preexisting condition, Defendant's memorandum concluded: "Failing all else, a substantial remittitur of far more than $105,187.08 should be ordered."

Plaintiff filed a memorandum in response to these motions in which she reviewed the evidence. In addition, Plaintiff filed a motion for leave to amend her complaint, together with a proposed amended complaint which changed the original complaint only by increasing the ad damnum to $205,187.08. The motion averred that, after filing the original complaint and while her symptoms continued unabated, Plaintiff was found to have "a permanent partial disability of ten percent (10%) based on the A.M.A. Guidelines for permanent disability."

In support of the request for leave Plaintiff cited authority reflecting, in other contexts, the liberal approach to leave to amend, as well as Md.Rule 2-341. In relevant part Md.Rule 2-341 provides:

"AMENDMENT OF PLEADINGS

"(a) Prior to 15 Days of Trial Date.--A party may file an amendment to a pleading at any time prior to 15 days of a scheduled trial date....

"(b) Within 15 Days of Trial Date and Thereafter.--Within 15 days of a scheduled trial date or after trial has commenced, a party may file an amendment to a pleading only by written consent of the adverse party or by leave of court. If the amendment introduces new facts or varies the case in a material respect, the new facts or allegations shall be treated as having been denied by the adverse party. The court shall not grant a continuance or mistrial unless the ends of justice so require.

"(c) Scope.--An amendment may seek to ... (7) make any other appropriate change. Amendments shall be freely allowed when justice so permits. Errors or defects in a pleading not corrected by an amendment shall be disregarded unless they affect the substantial rights of the parties."

Defendant responded to the motion for leave to amend by asserting that "[t]here is no allowance for the amending of the ad damnum clause to a Complaint after a trial on the merits by Rule of Court. Nor is such permitted through case law."

By Orders of April 29, 1994 the court disposed of all pending motions. Defendant's motions were denied, and Plaintiff's motion to amend was granted. ² Within ten days of April 29 the Defendant, on May 9, moved for reconsideration of the denial of his motion for judgment nw. v., or for new trial, or for remittitur, and for reconsideration of the grant of leave to amend. The court denied the motion for reconsideration on May 24. Defendant noted his appeal to the Court of Special Appeals on June 22, 1994.

Prior to consideration of the matter by the Court of Special Appeals, this Court on its own motion issued the writ of certiorari.

An overview of the parties' contentions perhaps can best be achieved by a point and counterpoint presentation. Defendant, citing Maryland cases dating back to Harris v. Jaffray, 3 H. & J. 543 (1811), contends that where the verdict exceeds the ad damnum the defendant, on timely application to the trial court, is entitled as a matter of law to a remittitur down to the ad damnum. Plaintiff's answer is that the cases relied upon by Defendant were decided prior to the revision of the Maryland Rules of Procedure effective July 1, 1984, but that Md.Rule 2-341 removed any end limit on when amendments may be made while an action is in a circuit court, if leave of court is obtained. The immediate predecessor of Rule 2-341, former Md.Rule 320, dealt with the time for amendment in section c. It provided:

"1. Before Trial--Trial Before Court.

"In a case heard or tried before the court without a jury, any amendment may be made at any time before a final judgment or decree is entered.

"2. Trial Before Jury.

"In a case tried before a jury, an amendment may be made at any time before the jury retires to make up its verdict." ³

Plaintiff submits that Md.Rule 2-341, by omitting any time limit, thus permits a post-verdict amendment, with leave of court. Accordingly, Plaintiff says that the Maryland cases relied upon by Defendant are irrelevant because the present rule controls.

Defendant's reply is that mere silence in the present rule should not be construed to permit post-verdict amendments, even with leave of court. He argues that so substantial a change would be set forth expressly. As evidence that no authorization for post-verdict ad damnum amendments was intended, Defendant points to one of the appeals rules, Md.Rule 8-604(c)(2). It reads:

"Excessive Amount of Judgment.--A judgment will not be reversed because it is for a larger amount than claimed in the complaint if the plaintiff files in the appellate court a release of the excess."

Present Rule 8-604(c)(2) is substantially former Rule 873.b, which antedated the 1984 revision of Title 2 of the Maryland Rules. As Defendant sees it, the recognition in former Rule 873.b, and the continued recognition in Rule 8-604(c)(2), of the need for a plaintiff to remit any excess of a verdict over the ad damnum demonstrates that the trial court in the instant matter was obliged to order a remittitur of the excess.

The rejoinder by Plaintiff is that Rule 8-604(c)(2) has no application to this case. Here, Plaintiff amended the ad damnum in the circuit court before the order for appeal was noted, so that the record on appeal presents a verdict, judgment, and ad damnum conforming with each other.

Plaintiff further contends that the order for appeal in this case operates only as to the denial of Defendant's motion for reconsideration. Plaintiff submits that final judgment was entered April 29 when the circuit court denied Defendant's motions filed under Rules 2-532 and 2-533. The time for noting an appeal following the entry of that judgment expired without Defendant's having filed any notice of appeal. Defendant's motion for reconsideration, Plaintiff submits, is a motion under Rule 2-535(a) and, pursuant to Rule 8-202(c), it does not stay the time for noting an appeal from the final, appealable judgment of April 29. Thus, the appeal is limited to the denial of the motion for reconsideration, and review is limited to whether discretion was abused.

Defendant on the other hand submits that the foregoing, ordinary analysis does not apply in this case. He contends that the grant of leave to amend altered the legal effect of the verdict and increased the judgment from $100,000 to $205,187.08. Citing B & K Rentals & Sales Co., Inc. v. Universal Leaf Tobacco Co., 319 Md. 127, 571 A.2d 1213 (1990), Defendant asserts that he filed his motion within ten days of the change in the judgment and that he had thirty days from the denial of that motion within which to appeal the change erroneously and adversely made in the judgment. Consequently, Defendant asserts that our review is for error in authorizing by amendment a post-verdict increase in the judgment and that the review is not limited to whether denial of the motion for reconsideration was an abuse of discretion.

I

Seemingly, the logical starting point is to determine the scope of review. That question turns on whether B & K Rentals applies to the instant matter. In B & K Rentals, a property damage negligence case, the...