Kloetzli v. Kalmbacher, No. 469

CourtCourt of Special Appeals of Maryland
Writing for the CourtROSALYN B. BELL
PartiesRuth Ellen KLOETZLI v. Edward S. KALMBACHER, et al. ,
Docket NumberNo. 469
Decision Date01 September 1985

Page 595

65 Md.App. 595
501 A.2d 499
Ruth Ellen KLOETZLI
v.
Edward S. KALMBACHER, et al.
No. 469, Sept. Term, 1985.
Court of Special Appeals of Maryland.
Dec. 13, 1985.

[501 A.2d 500]

Page 596

Lawrence S. Greenwald (Jerrold A. Thrope and Gordon, Feinblatt, Rothman, Hoffberger & Hollander, on brief), Baltimore, for appellant.

Robert C. Verderaime, (Verderaime & DuBois, P.A., on brief for appellee, Kalmbacher), Baltimore.

J. Shawn Alcarese, Asst. City Sol. (Benjamin L. Brown, City Sol. on brief for appellee, Mayor and City Council of Baltimore), Baltimore.

Argued before WILNER, ADKINS and BELL (ROSALYN B.), JJ.

ROSALYN B. BELL, Judge.

The sole question presented by this appeal is whether the court erred in granting each appellee separate peremptory challenges.

Ruth Ellen Kloetzli brought suit in the Circuit Court for Baltimore City against Officer Edward S. Kalmbacher of

Page 597

the Baltimore City Police Department and the Mayor and City Council of Baltimore City for injuries she sustained when she was shot in the neck by Kalmbacher. 1 She sought recovery from Kalmbacher for negligence and for deprivation of her civil rights under 42 U.S.C. § 1983. In addition, she claimed that the Mayor and City Council were negligent under the doctrine of respondeat superior.

The case was tried during 1984, and the jury returned verdicts in favor of Kalmbacher and the Mayor and City Council. The trial court granted a new trial because of an error in the jury instructions. On retrial, the jury again returned verdicts in favor of Officer Kalmbacher and the Mayor and City Council. Kloetzli then noted this appeal asserting that the court erred in granting each appellee separate peremptory challenges under Rule 2-512(h), over appellant's objection.

A bizarre and tragic series of events gave rise to this suit. Officer Kalmbacher, while on duty slightly past midnight, chased Kloetzli's vehicle through the Baltimore City streets. Kalmbacher's and Kloetzli's perceptions of what gave rise to the chase and how it proceeded were vastly different. At the end of the chase, in a manner which Kalmbacher claimed was an accident, his gun discharged and Kloetzli was badly injured.

RULE 2-512(h)

Two Step Process

Rule 2-512(h) provides that

"[e]ach party is permitted four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impanelled. For purposes of this section, several plaintiffs or several defendants shall be considered as a single party unless the court determines that adverse or hostile interests between plaintiffs

Page 598

or between defendants justify allowing to each of them separate peremptory challenges not exceeding the number available to a single party. The parties shall simultaneously exercise their peremptory challenges by striking from the list."

It is derived from former Md.Rules 543 a.3. and 4. Md.Rule 543 a.3. stated that

"[e]ach party may peremptorily strike, without cause, four persons from the lists of twenty provided for in paragraph 1 of section a of this Rule, and the remaining twelve persons shall thereupon be immediately empaneled and sworn as the petit jury in the action. Several defendants or several plaintiffs shall be considered as a single party for the purpose[501 A.2d 501] of making such peremptory strikes."

Md.Rule 543 a.4. explained:

"Whenever it appears that the trial of an action by a jury involves two or more plaintiffs or two or more defendants having adverse or hostile interests, or involves multiple parties and claims, including third-party claims, whether in a single action or two or more actions consolidated or consolidated for trial, the court may allow additional peremptory strikes, from additional lists of jurors to be prepared by the clerk, but no party shall be allowed more than four such strikes."

Under former Md.Rule 543 a.4., the court had the discretion to permit additional peremptory challenges if it found that two or more plaintiffs or two or more defendants had adverse or hostile interests.

In revising Md.Rules 543 a.3. and a.4., the Rules Committee considered replacing the discretionary standard with a mandatory approach. In fact, one draft of the peremptory challenge rule provided, inter alia, that "[s]everal plaintiffs or several defendants shall be considered as a single party ... unless the court determines that adverse or hostile interests exist between plaintiffs or between defendants." Minutes of Meeting of the Court of Appeals Standing

Page 599

Committee on Rules of Practice and Procedure, April 21, 1981. The rule, as ultimately adopted, however, retained the discretionary standard. Thus, under Rule 2-512(h), the court may grant additional peremptory challenges if it "determines that adverse or hostile interests between plaintiffs or between defendants justify allowing to each of them separate peremptory challenges...." (Emphasis added.)

We hold that the determination of whether multiple plaintiffs or multiple defendants are entitled to additional challenges under Rule 2-512(h) involves a two step process. First, the court must make a factual finding of adverse or hostile interest, and second, the court, in its discretion, must determine whether that interest would justify allowing the added challenges. Furthermore, the burden of establishing the existence of that adverse or hostile interest is upon the proponent of the request.

Our task, then, is to determine whether the court erred in concluding that the interests of appellees were adverse or hostile and if the court did not err, whether the court abused its discretion in granting them separate peremptory challenges.

-Adverse or Hostile Interest-

At the outset, appellant asserts that the court erred in granting the additional peremptory challenges because it did not determine that appellees' interests were adverse or hostile, as it was required to do under Rule 2-512(h). While appellant is correct that the court did not make a specific finding of adversity or hostility, this is of little assistance to her.

The judge is presumed to know the law and to perform his or her duties properly. Olson v. Olson, 64 Md.App. 154, 494 A.2d 737 (1985); Stern v. Stern, 58 Md.App. 280, 473 A.2d 56 (1984). Implicit in the allowance of the separate challenges was a determination that the parties' interests were adverse or hostile. In any event, the Rule does not require that an express determination be made. If that

Page 600

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8 practice notes
  • Goren v. U.S. Fire Ins. Co., No. 791
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...determine, in its discretion, whether the adverse interests justify granting additional peremptory challenges. Kloetzli v. Kalmbacher, 65 Md.App. 595, 599, 501 A.2d 499 (1985). Even if the court determines that there are hostile co-parties, it is not required to award additional strikes. Ea......
  • Eagle-Picher Industries, Inc. v. Balbos, EAGLE-PICHER
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1989
    ...Rule 2-512(h), should have been permitted to participate in the exercise of at least six peremptory challenges." Kloetzli v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985), cert. denied, 305 Md. 621, 505 A.2d 1342 (1986), provides guidance on the appropriate inquiries with which to begin o......
  • Eagle-Picher Industries, Inc. v. Balbos, EAGLE-PICHER
    • United States
    • Court of Appeals of Maryland
    • September 1, 1991
    ...had adverse or hostile interests. The trial judge need not expressly have articulated that finding. See Kloetzli v. Kalmbacher, 65 Md.App. 595, 599, 501 A.2d 499, 501 (1985), cert. denied, 305 Md. 621, 505 A.2d 1342 (1986). Petitioners, who had urged in the circuit court that they be treate......
  • St. Luke Evangelical Lutheran Church, Inc. v. Smith, No. 72
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1987
    ...totally within the court's discretion as to whether that interest justifies allowing the additional challenges. Kloetzli v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 Page 364 (1985). In the event the court determines the interests to be sufficiently diverse as to justify the award of additio......
  • Request a trial to view additional results
8 cases
  • Goren v. U.S. Fire Ins. Co., No. 791
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...determine, in its discretion, whether the adverse interests justify granting additional peremptory challenges. Kloetzli v. Kalmbacher, 65 Md.App. 595, 599, 501 A.2d 499 (1985). Even if the court determines that there are hostile co-parties, it is not required to award additional strikes. Ea......
  • Eagle-Picher Industries, Inc. v. Balbos, EAGLE-PICHER
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1989
    ...Rule 2-512(h), should have been permitted to participate in the exercise of at least six peremptory challenges." Kloetzli v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985), cert. denied, 305 Md. 621, 505 A.2d 1342 (1986), provides guidance on the appropriate inquiries with which to begin o......
  • Eagle-Picher Industries, Inc. v. Balbos, EAGLE-PICHER
    • United States
    • Court of Appeals of Maryland
    • September 1, 1991
    ...had adverse or hostile interests. The trial judge need not expressly have articulated that finding. See Kloetzli v. Kalmbacher, 65 Md.App. 595, 599, 501 A.2d 499, 501 (1985), cert. denied, 305 Md. 621, 505 A.2d 1342 (1986). Petitioners, who had urged in the circuit court that they be treate......
  • St. Luke Evangelical Lutheran Church, Inc. v. Smith, No. 72
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1987
    ...totally within the court's discretion as to whether that interest justifies allowing the additional challenges. Kloetzli v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 Page 364 (1985). In the event the court determines the interests to be sufficiently diverse as to justify the award of additio......
  • Request a trial to view additional results

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