Cochran v. GRIFFITH ENERGY SERVICE, INC.

993 A.2d 153

191 Md. App. 625

Robert COCHRAN, et ux. v. GRIFFITH ENERGY SERVICE, INC. t/a Ewing Oil.

No. 19 September Term, 2009.

Court of Special Appeals of Maryland.

March 31, 2010.

Edward J. Brown, Ellicott City, MD, for Appellants.

Collin J. Hite, Richmond, VA and Sung B. Yhim, Baltimore, MD (R. Trent Taylor, Richmond, VA and Ava E. Lias-Booker, Baltimore, MD of McGuire Woods, LLP, on the brief), for Appellee.

Panel: DEBORAH S. EYLER, MEREDITH, and STUART R. BERGER (Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

This is the second appeal in a successful action by Robert and Suzanne Cochran ("the Cochrans"), the appellants, against Griffith Energy Services, Inc., t/a Ewing Oil ("Griffith"), the appellee, for damages caused by a fuel oil spill in the Cochrans' home. The primary issue now in dispute is the amount of post-judgment interest the Cochrans are entitled to receive.

A jury in the Circuit Court for Washington County found in favor of the Cochrans on their claims of negligence and breach of contract,¹ and awarded them $230,000 in damages. Thereafter, Griffith contacted the Cochrans several times to arrange payment of the judgment. The Cochrans did not respond to these communications.

In the meantime, the Cochrans pursued an appeal in which they challenged the imposition of sanctions against them for discovery violations and pretrial rulings disposing of certain of their claims.² In an unreported opinion, this Court rejected the Cochrans' appellate contentions and affirmed the judgment. Cochran v. Griffith Energy Services, Inc., No. 215 September Term, 2007, 180 Md.App. 763, 180 Md.App. 765 (filed July 2, 2008) ("Cochran I").

The Cochrans subsequently instituted execution proceedings to collect the $230,000 judgment plus post-judgment interest from the date judgment was entered forward. Griffith, believing that its efforts to pay the judgment had arrested the accrual of post-judgment interest, responded by filing a motion to deposit the $230,000 judgment, plus interest (although less than that claimed by the Cochrans), into the court registry, and to have the judgment declared satisfied. At the conclusion of a hearing, the circuit court ruled in favor of Griffith in the dispute over post-judgment interest, and granted its motion.

In this appeal, the Cochrans challenge two orders of the circuit court stemming from the post-judgment interest dispute. We slightly reword their questions presented as follows:

I. Did the circuit court err by awarding only $5,544.88 in post-judgment interest?

II. Did the circuit court err by denying their recusal motion?³

For the reasons that follow, we shall affirm the judgment. We also shall grant a motion by Griffith to strike portions of the Cochrans' reply brief for failure to comply with the Maryland Rules.

FACTS AND PROCEEDINGS

The $230,000 judgment at the center of this dispute was entered on Monday, March 5, 2007, at the close of a nine-day jury trial. The damages awarded consisted of the following:

• Robert and Suzanne Cochran: Additional Repair/Remediation/Assessment—$55,000; Diminution in value due to market resistance—$125,000; Past loss of rental value—$10,000;

• Robert Cochran: Past lost earnings— $0; Non-economic damages—$25,000;

• Suzanne Cochran: Non-economic damages—$15,000.

On Thursday, March 8, 2007, counsel for Griffith sent an e-mail to counsel for the Cochrans stating:

We do not foresee filing any post trial motions. Griffith wishes to put the matter behind them at this point. We would like to start the process to cut the check for judgment. I will need the full legal name and social security number for Mr. and Mrs. Cochran, plus your firm's Tax ID Number. Let me know how the check should be payable. . . .

Counsel for the Cochrans did not respond to this e-mail.

On April 4, 2007, the Cochrans noted an appeal in Cochran I. They did not challenge the jury's award of damages in their favor on their breach of contract and negligence claims; rather, they challenged the trial court's imposition of discovery sanctions against them and its pretrial rulings disposing of certain of their claims. Specifically, they asserted that the circuit court had erred in dismissing their claim for violation of the Maryland Medical Records Confidentiality Act, Md.Code (2005) section 4-301 et seq. of the Health General Article; granting summary judgment against them on their claim for fraud; dismissing as speculative their claim for "lost business opportunities"; and dismissing their claim for violation of the Maryland Consumer Protection Act, Md.Code (2005) section 13-101 et seq. of the Commercial Law Article ("CL"). Griffith did not note a cross-appeal or otherwise challenge the jury verdict.

On May 30, 2007, two months after the appeal in Cochran I was noted, counsel for Griffith again wrote to counsel for the Cochrans (this time via facsimile and U.S. mail) expressing his client's desire to pay the judgment. He opined that, given that the Cochrans "only were appealing the rulings on Griffith's dispositive motions," and therefore were not challenging the $230,000 jury verdict on appeal, "there was no reason not to resolve the judgment as we had expressed back on March 8, 2007." Counsel for Griffith continued:

Liberty Mutual Griffith's liability insurance carrier is prepared to tender the judgment amount of $230,000, as it has been willing to do since we wrote back in early March. We request that you please indicate no later than June 1, 2007 if the Cochrans are willing to accept the tender of this amount.

If we do not hear from you by 5 p.m. this Friday we will consider the tender rejected by the Cochrans. Please respond in writing so that we may relay the response to our client and its insurer.

Counsel for the Cochrans did not respond to this correspondence either.

More than a year went by. On July 2, 2008, this Court filed the opinion in Cochran I, affirming the judgment below. Then, on July 30, 2008, counsel for Griffith wrote counsel for the Cochrans to express for a third time his client's intention to pay the $230,000 judgment. (The letter again was sent via facsimile and U.S. mail.) Counsel for Griffith asked to whom the check should be made payable, and again asked for the Cochrans' social security numbers and the tax ID number for their counsel's firm.

Again, counsel for the Cochrans did not respond.

On November 19, 2008, shortly after the Court of Appeals denied the Cochrans' petition for writ of certiorari, and about one year and eight months after the judgment was entered, the Cochrans' lawyer sent a letter to Griffith's lawyer captioned: "NOTICE TO PRESERVE EVIDENCE PENDING INITIATION OF SUIT." The letter set forth counsel's intent to bring suit on behalf of the Cochrans' two adult children against Griffith and the law firm representing it, and asked that "all evidence concerning the non-disclosure of the increase in the benzene finding be preserved, including but not limited to all communications between Griffith, Griffith's counsel, Griffith's insurer and their experts, as well as all billing records for this time period."

In reference to the prior unanswered correspondence from counsel for Griffith, the Cochrans' attorney wrote as follows:

Although I appreciate what we affectionately refer to as "set-up" letters in the bad faith context, please be advised that the Cochrans will commence execution efforts immediately upon Griffith for the full amount of the judgment, interest and costs. As your local counsel will advise you,⁴ acceptance of payment in Maryland absent an express, unequivocal agreement terminates the appeal, and Liberty Mutual was required to file a Md. Rule 8-424 complaint Affidavit and Written Undertaking in the Circuit Court for Washington County, Maryland, not simply "tender" letters. In any event, our judgment is against Griffith, not Liberty Mutual, and thus the Cochrans will proceed immediately with the remedies provided by Md. Rule 2-633 et seq. against Griffith until the outstanding amount of $278,438.36 (as of 11/14/2008) is fully satisfied. By my calculation the per diem interest amount is $63.01, so the above figure should be adjusted daily by this amount.

With respect to this issue, as it appears that your interests lie with Liberty Mutual, we would ask that you forward a copy of this letter to Griffith's non-insurer retained counsel, as it is their assets, accounts and property which will be garnished or attached. In light of transparent effort on Liberty's behalf, as evidenced, for example, by its May 30, 2007 correspondence, to fail to protect its insured pursuant to Md. Rule 8-424 while also refusing to even offer to satisfy the full amount owed, we will also proceed with a direct action against Liberty Mutual pursuant to WMATA v. Queen, 324 Md. 326, 597 A.2d 423 (1991). We will send a courtesy copy of this suit to you following service upon the M.I.A.

Liberty has obviously had the benefit of the money for which it is now attempting to renege on its obligation to its insured, for its own interest, so we would request that Griffith's non-insurer retained counsel contact us upon receipt of this letter to discuss possible assignment of claims and/or joinder in the action against Liberty, in exchange for a short term stay of discovery and execution upon them.

On November 21, 2008, the Cochrans filed discovery requests "in aid of enforcement," including a notice of deposition of a designee of Griffith, scheduled for December 30, 2008, interrogatories, and a request for production of documents. See Md. Rule 2-633(a) (providing that "a judgment creditor may obtain discovery to aid enforcement of a money judgment (1) by use of depositions, interrogatories, and requests for documents, and (2) by examination before a judge or an examiner as provided in section (b) of this Rule").

On December 3, 2008, Griffith filed a "Motion to Deposit Judgment Funds into the Court Registry and Declare Judgment...