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Thomas Richard Falcinelli v. April Cardascia, No. 126, September Term, 1994. [Civil Procedure - Appeal From Denial Of DefendantUs Motion For Reconsideration Of Trial CourtUs Post-Trial Grant Of Leave To Amend Complaint By Increasing Ad Damnum To Amount Of Jury Verdict. Held:

Error, If Any, In Granting Leave Did Not Affect Fundamental Power Of Court To Enter Judgment In The Amount Of The Verdict At The Time Post-Trial, Ten-Day Motions Denied. Denying Motion For Reconsideration. No Abuse Of Discretion In

Circuit Court for Montgomery County Civil #94400

IN THE COURT OF APPEALS OF MARYLAND No. 126 September Term, 1994 ____________________________________

THOMAS RICHARD FALCINELLI v.

APRIL CARDASCIA

____________________________________ Eldridge Rodowsky Chasanow Karwacki Bell Raker, JJ. ____________________________________ Opinion by Rodowsky, J. ____________________________________ Filed: August 24, 1995

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 defendantUs 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 Its "demand Maryland

accident.

The complaint consisted of a single count.

for judgment for relief sought" was damages of $100,000. 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 On the day the verdict was returned,

discharge of the jury.

February 24, 1994, the clerk noted the verdict on the docket, and the clerk further made the following docket entry:

-2"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 PlaintiffUs symptoms

were largely attributable to a preexisting condition, DefendantUs 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. after filing the original complaint The motion averred that, and while her symptoms

Prior to July 1, 1984, under former Maryland Rule 563, this motion was a "Motion for Judgment N.O.V.," (non obstante veredicto). Effective July 1, 1984, under Md. Rule 2-532, the name was changed to "Motion for Judgment Notwithstanding The Verdict." We shall abbreviate the current name as "nw. v."

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-3continued 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. 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." In relevant part Md. Rule 2-341

-4By Orders of April 29, 1994 the court disposed of all pending motions. DefendantUs motions were denied, and PlaintiffUs motion to Within ten days of April 29 the Defendant, on

amend was granted.2

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 motion for reconsideration on May 24. The court denied

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 partiesU 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. PlaintiffUs 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 Following PlaintiffUs filing of her motion for leave to amend and of her proposed amended complaint, Defendant also had moved to strike the proposed amended complaint. Although the docket entries of the orders of April 29 did not directly address the motion to strike, the grant of leave accepting the amended complaint as tendered necessarily denied the motion to strike.
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-5circuit 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. "1. It provided:

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. DefendantUs 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 As evidence that no authorization for

be set forth expressly.

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

Under former Rule 320.d.1, no leave of court was required to file an amendment, but amendments were subject to the adversaryUs right of objection. If, in a jury trial, an amendment were made after the jury was sworn, the case proceeded unless the court considered a continuance necessary for a fair trial. See former Rule 320.e.2.

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-6in 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 DefendantUs motion for reconsideration. Plaintiff submits that final judgment was entered

April 29 when the circuit court denied DefendantUs motions filed under Rules 2-532 and 2-533. The time for noting an appeal

following the entry of that judgment expired without DefendantUs having filed any notice of appeal. DefendantUs 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

-7reconsideration, 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 In B & K Rentals, a property damage

applies to the instant matter.

negligence case, the jury returned a verdict for the plaintiff for $123,252, and judgment was entered accordingly. Md. Rule 2-601(a).

The defendant timely moved for judgment nw. v. which was granted, and judgment was entered in favor of the defendant for costs. K Rentals, 319 Md. at 128-29, 571 A.2d at 1214. B &

Within ten days

-8thereafter, the plaintiff moved to reconsider the grant of judgment nw. v. Id. That motion was denied, and the plaintiff noted an Id., at 129, 571 A.2d

appeal within thirty days from that denial. at 1214.

This Court held that the motion, labeled as one for operated as a motion to alter or amend a

"reconsideration,"

judgment under Rule 2-534, because the judgment was "based on a court decision." Id. at 131, 571 A.2d at 1215. When a timely

motion is filed pursuant to Rule 2-534, Rule 8-202(c) provides that the notice of appeal shall be filed within thirty days after the denial or disposition of the motion. Md. Rule 8-202(c). Id. at 132, 571 A.2d at 1215;

Consequently, when the Rule 2-534 motion was

denied that order became a "UjudgmentU [and] ... was the only final appealable judgment in the case." B & K Rentals, 319 Md. at 132,

571 A.2d at 1216 (footnote omitted). In the instant case judgment was entered February 24, 1994, based on the jury verdict, when the clerk entered a judgment in the amount of $205,187.08 on the docket. Md. Rule 2-601(b).

DefendantUs reliance on B & K Rentals in effect seeks to treat that judgment as severable. Defendant views the judgment on February 24

as legally effective only for $100,000 and views the order of April 29, 1994 as a new judgment for an additional $105,187.08. If the

$105,187.08 portion of the judgment did not spring into being until April 29, 1994 by virtue of the amendment to the ad damnum, then

-9the leave to amend operated like the grant of a judgment nw.v. for Plaintiff, strengthening the analogy to B & K Rentals. DefendantUs contention is contrary to the docket entries, while the analysis in B & K Rentals was consistent with docket entries. "Upon a general verdict of a jury ... the clerk shall forthwith enter the judgment ...." Rule 2-601(a). "The clerk shall enter a

judgment by making a record of it ... on a docket ... and shall record the actual date of the entry." Rule 2-601(b). DefendantUs

analysis requires rejecting part of what facially appears from the docketed judgment of April 29 by applying a perceived rule of law based on a comparison of the docketed judgment with the ad damnum of the complaint. But the Rules generally confine the

determination of whether there is a final judgment to the face of the docket. See Estep v. Georgetown Leather Design, 320 Md. 277,

577 A.2d 78 (1990). Thus, the question arises whether the ad damnum clause, as a matter of substantive law, so limits the extent of a juryUs verdict that a judgment, entered by the clerk pursuant to a rule regulating only procedure, is ineffective as to any excess in the judgment over the ad damnum. II Clearly, the amount claimed in the ad damnum clause in this case did not affect the fundamental jurisdiction of the Circuit Court for Montgomery County to render a judgment for $205,187.08 in

-10a tort case.4 jurisdiction. Circuit courts in Maryland are courts of general On the other hand, Defendant is quite correct in

asserting that Maryland case law has uniformly treated the ad damnum as a limitation on recovery. nature of the limitation. As recently as Scher v. Altomare, 278 Md. 440, 365 A.2d 41 (1976), this Court stated: "Of course, the recovery, if any, by The problem is discerning the

the plaintiff cannot exceed in nature or amount either the damage proved or the sum claimed in the ad damnum, whichever is the lesser." Id. at 442, 365 A.2d at 42. Scher involved a claim for

breach of contract.

This Court held that dismissal of the action

on limitations grounds was erroneous, and remanded for further proceedings. Thus, the quoted statement was dicta, but this Court

obviously considered the proposition to be so clear as not to require any citation. The opinion in Finch v. Mishler, 100 Md. 458, 59 A. 1009 (1905), reflects that in the Court of Appeals the plaintiff had released $32 of a judgment, the amount by which it exceeded the ad

Civil procedure has come a long way since the time of the original writ. "The writ was the instrument by which jurisdiction to entertain the particular suit was conferred upon the court, the issue of the writ importing that the King had delegated to certain of his judges authority to adjudicate the specific controversy mentioned in the document." C.A. Keigwin, Cases in Common Law Pleading at 13 (2d ed. 1934). "Therefore the jurisdiction of the KingUs court was limited by the language of the writ and the judges were confined to consideration of the identical case stated in that document." Id. n.2.

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-11damnum. Id. at 462, 59 A. at 1010. That plaintiff was acting

pursuant to a statutory predecessor of Rule 8-604(c)(2). The plaintiff in Attrill v. Patterson, 58 Md. 226 (1882), remitted in the trial court the amount by which the verdict exceeded the ad damnum. On the defendantUs appeal the judgment was

reversed and a new trial ordered, because of misdirection of the jury. This Court thought "it proper to say that the action of the

[trial] court, in requiring the plaintiff to remit so much of the verdict as was in excess of the damages laid in the declaration, was in entire conformity with the law, practice and decisions of the State." Id. at 260-61. The Court cited to Md. Code (1860),

Art. 29,

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