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Circuit Court for Baltimore City Case #93194701

IN THE COURT OF APPEALS OF MARYLAND No. 92 September Term, 1995 ON MOTION FOR RECONSIDERATION ____________________________________ ACandS, INC. et al. v. IDA SARA MASKET ASNER et al. ____________________________________ *Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker, JJ. ____________________________________ Opinion by Rodowsky, J. ____________________________________ Filed: December 6, 1996

*Murphy, C.J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A,

he also participated in the decision and the adoption of this opinion.

The plaintiffs have moved for reconsideration of Part I.B of this CourtUs opinion in which we held that the erroneous exclusion of TLV evidence by the trial court was prejudicial to the

defendants.

That ruling resulted in a remand for a new trial on In their motion

the issue of liability for compensatory damages.

plaintiffs submit that "additional evidence was admitted during the cross-claim portion of the trial, which, by any measure, satisfied the proffers of proof made by the defendants on [the issue of TLVs]." AppelleesU Motion for Reconsideration at 3. We deny the

motion because the evidence now relied upon by the plaintiffs in their motion was not referred to by the plaintiffs in their brief as appellees and also because a limiting instruction, to which no one objected, prevented the jury from considering that evidence on the claim of the plaintiffs against the defendants. The additional evidence on which the plaintiffs now rely is found in the deposition testimony of Willis Hazard and of Dr. Garrit Schepers. Excerpts from the Hazard and the Schepers

depositions were read to the jury on November 29, 1993, the twelfth day of trial, as part of the respective defendantsU cases as crossclaimants against certain cross-claim defendants. In their brief as appellees plaintiffs did not refer us to the Hazard or the Schepers depositions. That brief argued that, even

if the trial court erred in its ruling granting the plaintiffsU motion in limine excluding TLV evidence that was proffered by the defendants, the error was not prejudicial because other evidence

-2which the jury could consider on the claim of the plaintiffs against the defendants substantially That covered that which the

defendants

had

proffered.

material

came

into

evidence

principally on the cross-examination of one or more plaintiffsU witnesses during plaintiffsU case in chief. We rejected this

argument in our original opinion based on a comparison of the defendantsU proffers to the evidence to which we were referred by the appelleesU brief. Neither deposition was made part of the five volume, 2,437 page, joint record extract. All references in AppelleesU Motion for

Reconsideration to testimony in the depositions are references to the original trial transcript. Maryland Rule 8-501(c) requires that the record extract

"contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal ...." Rule 8-504(a)(4), dealing with statements of facts in an appellantUs and in an appelleeUs brief, provides that "[r]eference shall be made to the pages of the record extract supporting the assertions." Two liberalizations were made in these longstanding

requirements by the revision of Title 8 of the Maryland Rules that became effective July 1, 1988. record extract. One liberalization is the deferred A deferred record extract would Inasmuch as in the

Rule 8-501(l).

have been of little assistance to the problem at hand. references to the two depositions were not

included

appelleesU brief, deferral of the preparation of the record extract

-3in order to include all that was included in a partyUs brief would not have picked up the two depositions in the instant matter. The second liberalization is in Rule 8-501(c), dealing with contents of the record extract. following concluding sentence: That rule now includes the

"The fact that a part of the record

is not included in the record extract shall not preclude a party from relying on it or the appellate court from considering it." Obviously, the new provision is not to be abused. Compare

Naughton v. Paul Jones & Co., 190 Md. 599, 604, 59 A.2d 496, 498 (1948) (disregard of Maryland rule requiring appendix to appellantUs brief to contain all parts of the record party desires Court to read may result in dismissal of an appeal); Butler v. Reed-Avery Co., 186 Md. 686, 689-90, 48 A.2d 436, 438 (1946) (rules requiring litigantUs brief to contain an index which must include those parts of the record desired to be read by the Court are "plain, concise, and should be easily understood. They provide a means for each

side to get before this [C]ourt all the evidence that it is desired to be read by the [C]ourt. When the appellant disregards or

violates these rules his case may be dismissed on motion, or by this [C]ourt on its own motion."); Condry v. Laurie, 186 Md. 194, 197, 46 A.2d 196, 197 (1946) (when the appendix to a partyUs brief contains nothing other than the opinion and decree of the lower court the Court will look no further than the opinion and the decree to make its decision); Strohecker v. Schumacher & Seiler,

-4Inc., 185 Md. 144, 146-47, 43 A.2d 208, 209 (1945) ("[W]e do not intend to pass the one typewritten copy of the record from member to member of this Court so that each one may hunt up for himself what the appellant is discussing in his brief. ... [W]e do not

intend to permit counsel to impose upon us the burden of work, which should have been done by them."). The last sentence of Rule 8-501(c) is of no assistance to the plaintiffs on their Motion for Reconsideration. The provision does

"not preclude a party from relying" in that partyUs brief on the matter omitted from the record extract. The liberalizing provision

relating to record extracts in Rule 8-501(c) does not excuse the failure to furnish in the brief references to factual material in support of a partyUs argument as required by Rule 8-504(a)(4).1 Nor

does the liberalization in Rule 8-501(c) alter the fundamental rule of appellate practice under which the appellate court has no duty independently to search through the record for error. See State

Roads CommUn v. Halle, 228 Md. 24, 32, 178 A.2d 319, 323 (1962); Van Meter v. State, 30 Md. App. 406, 407-08, 352 A.2d 850, 851-52 (1976); GAI Audio of New York, Inc. v. Columbia Broadcasting Sys., Inc., 27 Md. App. 172, 182-83, 340 A.2d 736, 743-44 (1975). Thus,

the Court of Special Appeals has appropriately held that a party

By way of contrast, in ACandS v. Godwin, 340 Md. 334, 667 A.2d 116 (1995), the factual material that formed the basis for the reconsideration had been referred to in the brief entitled, "Brief of Appellees on Consolidated General Issues and On Consolidated Punitive Damage Issues and Brief of Cross-Appellants."

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-5may lose the right to appeal on an issue by failing to indicate in that partyUs brief the location in the record where the alleged error occurred. Mitchell v. State, 51 Md. App. 347, 357-58, 443

A.2d 651, 657, cert. denied, 459 U.S. 915, 103 S. Ct. 227, 74 L. Ed. 2d 180 (1982). of an error. The second reason for our denial of the Motion for The same principle applies to the alleged cure

Reconsideration is that, under the instructions of the trial court, the jury could not consider either of the depositions. Indeed, it

may have been because of the limiting instruction that plaintiffs did not include reference to those depositions in their brief as appellees. We describe below how the instruction evolved.

On the eleventh trial day, November 24, 1993, after plaintiffs had introduced their case in chief, the defendants were producing evidence in support of their cross-claims. Counsel for the

plaintiffs, referring specifically to the anticipated introduction by Porter Hayden Company, Inc. (PH) of excerpts from the deposition of Dr. Schepers in support of PHUs cross-claim against OwensIllinois, Inc. (O-I), pointed out to the court, out of the presence of the jury, that a number of passages designated from the

deposition dealt with TLVs.

Plaintiffs complained that they had

presented their case in chief in reliance on the motion in limine ruling under which TLVs were not an issue, and plaintiffs submitted that injection into the case of TLV evidence "brings a whole new

-6ball game up ...." The court resolved the matter by saying: "I

intend to tell the jury that that evidence is only as to the crossclaim and can only be considered as to the cross-claim; it canUt be considered as to anything else." objections to the designations. Plaintiffs reasserted their

After the jury was brought back

into the courtroom, the trial court gave an instruction consistent with what it had indicated it would do. The text of the

instruction is set forth in the margin.2
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Due to the intervening

"THE COURT:

...

"... [W]hen evidence is admitted in particular matters against particular individuals or companies, that evidence may only be considered as to that company and may not be considered for any other purpose. "I have mentioned that to you before, but I wanted to remention that to you so that there is no crossover of your consideration of evidence against one party against another party. "Do you understand that? "THE JURY: Yes.

"THE COURT: Okay. Keep that in mind at all times during the course of the trial. "At certain times, you have heard that the evidence is being offered against party A, for example. "Well, that evidence that was admitted against party A can only be considered by you in your deliberations against party A. "You have heard party A and B, for example, using just those generic designations say, Uwe adopt,U or party B will say Uwe adopt what party A is offering.U "Then you may consider that evidence in favor of (continued...)

-7Thanksgiving holiday the next trial day was Monday, November 29, when excerpts from the two depositions were read to the jury. At

that time, and thereafter, any defendant adopting one or the other or both depositions as part of that defendantUs case as a crossclaimant so stated to the jury, and the adopting defendant

identified to the jury the specific cross-claim defendant against which the evidence was offered. Under the limiting instruction the jury was not permitted to consider the depositions of Hazard and of Dr. Schepers as evidence bearing on defendants. the original claim of the plaintiffs against the

Consequently, the deposition evidence did not render

non-prejudicial to the defendants the erroneous ruling on the motion in limine. For these reasons AppelleesU Motion for Reconsideration is denied.

(...continued) both of those and against only the individuals or corporations that it is being offered against, and not for any other purpose. "Is that clear? "THE JURY: Yes."

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