Standard Constr. & Coatings v. Chrysso C. Plato Tr.

STANDARD CONSTRUCTION & COATINGS LLC, ET AL. v. CHRYSSO C. PLATO TRUST, ET AL.

No. 1172

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

February 7, 2020

Circuit Court for Baltimore City

Case No. 24-C-16-004931

UNREPORTED

Fader, C.J., Arthur, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

Opinion by Fader, C.J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

The appellants, Standard Construction & Coatings LLC ("Standard") and Chung Yi (together, the "Contractors"), challenge several rulings made by the Circuit Court for Baltimore City during a jury trial of two consolidated cases. The parties' competing claims concerned a dispute over unfinished home renovation services that one of the Contractors was to perform for the appellees, Chrysso Plato and the Chrysso C. Plato Trust.¹ As relevant to this appeal, the jury found that Mr. Yi breached the contract with Plato and awarded damages of $58,915.46.

The Contractors contend that the circuit court committed numerous errors, including with respect to the admission of exhibits, jury instructions, the denial of a motion for judgment, the failure to deem Plato to have made binding factual admissions, allowing damages evidence, and allowing a damages claim to go to the jury. The Contractors also claim prejudice arising from alleged deficiencies in the trial skills of Plato's counsel. We agree with the Contractors that the circuit court erred in submitting Plato's claim for non-economic damages to the jury, and so will reverse the judgment on that issue, but will affirm in all other respects.

At the outset, we observe that several of the Contractors' challenges concern exhibits offered for admission at trial, some of which were admitted and others not. None of those exhibits appear in the record or in the record extract, however, because (1) they were destroyed by the circuit court before the record was transmitted to this Court, and(2) the Contractors, although aware of the problem, made no effort to supplement the record with copies of the missing documents. We emphasize both numbered points because it is only as a result of both that this Court lacks the ability to review adequately several of the Contractors' claims of error. To be clear, the Contractors appear to bear no responsibility for the destruction of the exhibits. It was, however, within their power to remedy the deficiency that resulted from that destruction, and they failed to do so. Instead, they filed an exhibit-less record extract accompanied by an appendix-less brief. Furthermore, that brief discusses exhibits as though they were properly before the Court, with no explanation of why they are not. When the Court raised the issue during oral argument, it was clear that no effort had been made to supplement the record with copies of the destroyed documents. As discussed below, the Contractors' failure to supplement the record will prove fatal to several of their challenges.

BACKGROUND²

Mr. Yi owns Standard, which is in the business of commercial and residential renovations. In November 2015, Mr. Yi contracted with Plato to perform construction and demolition services as part of a home renovation project at Ms. Plato's condominium.

The parties never executed a formal written contract. Instead, Mr. Yi provided Plato with four written estimates, one covering demolition, a second covering most of the renovation work, a third covering recessed lighting, and a fourth covering built-inbookcases. The parties treated those documents as establishing the terms of the contractual relationship and introduced copies of each estimate into evidence at trial. None of them are in the record or the record extract.

The parties agreed that Mr. Yi would complete the work in or about February 2016, but he did not. When the project remained incomplete that April, Plato terminated Mr. Yi. Each party blamed the other for the breakdown. The Contractors contended that Plato's numerous (and sometimes inconsistent) change requests, as well as damage from an unforeseeable flood, delayed the project. Plato argued that the delay resulted from some combination of incompetence, inattention, and fraud by Mr. Yi. Mr. Yi also contended that the project was mostly complete when Plato terminated the contract, whereas Plato argued that a considerable amount of work remained unfinished and that much of the finished work needed to be redone.

Before termination, Ms. Plato had written multiple checks for the renovations, totaling $51,239.30. Ms. Plato made the first check payable to Standard and the remaining checks payable to Mr. Yi. She testified that she gave all of the checks to Mr. Yi, who cashed or deposited them. All of the checks were admitted into evidence at trial, but none are included in the record or record extract.

In mid-May, Plato contracted with David Kennard, a general contractor, to complete the renovations.

Procedural History

On June 24, 2016, Plato filed a complaint against Mr. Yi, "trading as Standard Construction, LLC." As later amended, Plato's complaint sought damages for breach ofcontract, intentional misrepresentation, and violation of the Maryland Consumer Protection Act. Plato claimed, among other things, that Mr. Yi had failed to complete certain work, failed to complete other work "in a proper and workmanlike manner," and "intentionally . . . made false statements regarding the status of the Project to induce [Plato] to give him more money." Plato alleged that it had suffered damages in the form of, among other things, loss of use of the condominium, additional expenditures required to complete the project and "bring[] the house to a safely []habitable condition," and emotional distress.

On September 2, 2016, Standard filed a complaint against Plato for breach of contract and unjust enrichment. In its breach of contract count, Standard alleged that it had entered a contract with Plato for Standard to perform demolition and renovation services at Plato's condominium and that Plato had breached that contract by "wrongfully terminating Standard" and failing to pay for work performed. In its unjust enrichment count, Standard incorporated all of the same factual allegations—including as to the existence of the contract governing the relationship between Standard and Plato—and alleged that Plato "unjustly retained the benefit" of Standard's work without payment.

The circuit court consolidated the actions and held a seven-day jury trial during which the jury heard testimony from Ms. Plato; her two adult children, Meropi Plato and Chris Plato; Mr. Yi; and Mr. Kennard. Mr. Kennard testified both as a fact witness and as an expert qualified "in construction, including home improvements."

On October 23, 2017, the jury (1) found that Mr. Yi (and not Standard) had entered and then breached the contract with Plato and (2) awarded Plato $55,915.46 in economicdamages and $3,000.00 in non-economic damages. However, the judgment was erroneously entered against Standard, rather than against Mr. Yi.

Collectively, the parties filed four post-trial motions in November 2017. The Contractors filed a motion for new trial, motion for remittitur, and motion for judgment notwithstanding the verdict, and Plato moved to correct the judgment to reflect that it was entered against Mr. Yi, not Standard. For reasons that are not clear from the record, the court did not rule on any of the motions until the summer of 2018.³ The court eventually denied all three of the motions filed by the Contractors and granted Plato's motion to correct the judgment.⁴ The Contractors appealed.

DISCUSSION

I. THE CONTRACTORS HAVE NOT PROVIDED A SUFFICIENT RECORD TO PERMIT THIS COURT TO ASSESS THEIR CHALLENGE TO THE CIRCUIT COURT'S FAILURE TO PROVIDE A LIMITED ADMISSIBILITY INSTRUCTION.

The Contractors first challenge the circuit court's denial of their request to instruct the jury that certain emails and text messages were not admitted as substantive evidence. "We review the denial of a proposed jury instruction under the highly deferential abuse of discretion standard . . . ." White v. Kennedy Krieger Inst., 221 Md. App. 601, 623 (2015). "The complaining party must demonstrate both prejudice and error from the grant of orrefusal to provide a jury instruction." CR-RSC Tower I, LLC v. RSC Tower I, LLC, 202 Md. App. 307, 371 (2011), aff'd, 429 Md. 387 (2012).

According to descriptions in the parties' briefs, the emails and text messages at issue reflect the course of dealings between Plato and Mr. Yi regarding the renovation work, including complaints made by Plato and explanations given by Mr. Yi. In admitting the documents over objection, the court ruled that they were not hearsay because they were not offered for the truth of the matters asserted. The Contractors then requested that the court instruct the jury as to the limited purpose for which the documents were being admitted. The court denied the request for a contemporaneous limiting instruction, stating that "[t]he jury will be properly instructed at the end."

At the close of evidence, the Contractors requested that the court include in its instructions to the jury an "evidentiary advisory comment" that the emails and text messages between the parties could not be considered as "substantive evidence." The court declined to do so, stating that the documents at issue were "substantive evidence" and that the jury "will be instructed repeatedly throughout the jury instructions that it's their job to determine what the facts are."

The Contractors now argue that the trial court erred in failing to instruct the jury that the email and text messages at issue could not be considered as "substantive evidence." Plato responds that the documents were properly admitted into evidence and that a limiting instruction...