Wilson v. Capital Cleaning Concepts, Inc.

DWIGHT WILSON, et al. v. CAPITAL CLEANING CONCEPTS, INC. T/A MOLDAND MOISTURE SOLUTIONS, et al.

No. 1868

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

July 27, 2018

Circuit Court for Howard County

Case No. 13-C-15-103806

UNREPORTED

Arthur, Fader, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Arthur, 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.

In July 2014, Dwight and Sharon Wilson engaged Capital Cleaning Concepts, Inc., t/a Mold and Moisture Solutions ("M&MS"), to remediate mold contamination in their residence. The terms of the engagement were embodied in a written contract. The contract stated that "[t]he standard of cleaning is to go beyond any established levels of microbial and biological contaminants currently followed in the Indoor Environmental Quality Industry."

On or about July 28, 2014, M&MS began to work on the Wilsons' residence. The Wilsons stayed at a hotel while the project was underway.

After M&MS had spent over a month working on the house, it told Ms. Wilson that the job had been completed. She disagreed and refused to make the final payment.

The Wilsons hired a company called Mold Aid to test the mold levels in their house. Though Mold Aid's methods and results are not in evidence, the results were presumably unsatisfactory to the Wilsons, who unsuccessfully attempted to get M&MS to complete the job to their satisfaction.

In October 2014, the Wilsons hired Jenkins Environmental, Inc., which agreed to reduce "class one molds" in the house to a "zero level." After three attempts, Jenkins Environmental apparently succeeded. The Wilsons did not return to their residence until February 3, 2015, after Jenkins Environmental had completed its work.

On June 8, 2015, the Wilsons filed a three-count complaint in the Circuit Court for Howard County against M&MS and its principal, David Stough. The Wilsons alleged that M&MS and Stough breached the contract. The Wilsons also alleged that the breachamounted to negligence. Finally, the Wilsons alleged that M&MS and Stough defrauded them by asserting "false representations of material facts that [their] home would be properly remediated."

In their defense, M&MS and Stough invoked a broad, exculpatory clause in the contract with the Wilsons. The clause reads as follows:

In no event shall M&MS be responsible for any losses or damages, whether direct, indirect, special, nominal, incidental, punitive or consequential, or for any penalties, regardless of the legal or equitable theory asserted, including contract, negligence, warranty, strict liability, statute or otherwise, or for the claims by a third party.

After discovery and the denial of the defendants' motion for summary judgment, the case proceeded to trial. At the outset of the trial, the court directed the Wilsons not to advance a theory of fraud that they had not disclosed in their complaint. On the fourth day of trial, the court prohibited the Wilsons from calling an expert witness out-of-turn, in M&MS's case; the witness had not been present to testify during the three previous days in which the Wilsons were putting on their case.

At the close of the Wilsons' case, M&MS moved for judgment on several grounds, including the operation of the exculpatory clause, the absence of expert testimony to support the Wilson's negligence and breach of contract claims, and the absence of evidence of fraud. In response to the motion, the court dismissed the fraud claim. In response to another motion for judgment at the close of all the evidence, the court dismissed the remaining claims against Mr. Stough, reserved on all other issues, and submitted the case to the jury.

The jury found in the Wilsons' favor. It awarded $36,600.00 in economic damages for breach of contract, an additional $15,300.00 in economic damages for negligence, and $75,000.00 in noneconomic damages.¹

Immediately after the jury returned its verdict, M&MS made an oral motion for judgment notwithstanding the verdict and for remittitur. The court did not rule on that motion. Instead, it requested additional briefing on the aspects of the motion for judgment on which it had reserved. In its additional briefing, M&MS withdrew its oral motion on the ground that it was premature.

Once the court had received and reviewed the additional briefing from both sides, it granted M&MS's motion for judgment in an order that was docketed on October 19, 2016. The court based its ruling on the exculpatory clause in the contract between M&MS and the Wilsons.

The Wilsons noted a timely appeal.

QUESTIONS PRESENTED

The Wilsons presented four questions, which we quote verbatim:

I. Did the circuit court err by ruling on a withdrawn motion, since a motion for judgment that a court reserves ruling on until after a jury's verdictbecomes, as a matter of law, a motion for JNOV, which motion the appellees expressly withdrew in writing?

II. Did the circuit court err by enforcing an exculpatory clause in a contract for both breach of contract and negligence where there was harm caused by reckless, wanton, or gross behavior; where the contract resulted from grossly unequal bargaining power; and/or where the transaction adversely affected the public interest?

III. Did the circuit court err by excluding all evidence of the appellees' alleged fraud and then dismissing the fraud count based on lack of evidence?

IV. Did the circuit court err by refusing to allow an out-of-state expert witness to be called out of turn by just one hour and forty-one minutes' time and forcing the appellants to rest their case?

We answer the first, third, and fourth questions in the negative: the court did not err in proceeding to rule on the motion for judgment; it did not abuse its discretion in excluding evidence of an unpleaded theory of fraud or err in entering judgment against the Wilsons on the fraud claim; and it did not abuse its discretion in declining to permit the Wilsons to call a witness during their adversaries' case. We need not answer the second question concerning the exculpatory clause, because we can affirm the grant of the motion for judgment on another ground that is adequately shown in the record: the Wilsons' failure to adduce expert testimony in support of their claims of breach of contract and negligence. Accordingly, we shall affirm the judgment.

DISCUSSION

I. The Effect of Withdrawing the Oral Motion for Judgment Notwithstanding the Verdict

As previously stated, M&MS made an oral motion for judgment notwithstanding the verdict and for remittitur after the jury had returned a verdict in the Wilsons' favor. The court did not rule on the motion, but directed the parties to submit post-trial briefing.

In its post-trial memorandum, M&MS wrote that it had prematurely moved for judgment notwithstanding the verdict and for remittitur, because the judgment had not yet been entered. Accordingly, it withdrew those motions pending the entry of judgment.

In a written opinion, the court granted the motion for judgment on which it previously reserved. The Wilsons argue that the court erred in granting the motion, because, they say, M&MS had withdrawn it. Their argument has no merit.

Rule 2-532(b) states that "[i]f the court reserves ruling on a motion for judgment made at the close of all the evidence, that motion becomes a motion for judgment notwithstanding the verdict if the verdict is against the moving party or if no verdict is returned." In this case, the court reserved ruling on the motion for judgment that M&MS made at the close of all the evidence. Under Rule 2-532(b), therefore, M&MS's motion for judgment became a motion for judgment notwithstanding the verdict as soon as the jury returned a verdict in the Wilsons' favor.

It was completely unnecessary for M&MS to make an oral motion for judgment notwithstanding the verdict after the jury returned the verdict, because the verdict itself had already transformed the undecided motion for judgment into a motion for judgmentnotwithstanding the verdict. Furthermore, because the oral motion was completely unnecessary, nothing of consequence could possibly have occurred when M&MS withdrew it. By withdrawing a superfluous oral motion, M&MS did not withdraw the pending motion for judgment that, by operation of law, had become a motion for judgment notwithstanding the verdict when the jury returned a verdict in the Wilsons' favor.

In its written ruling, the court granted the motion for judgment that M&MS had made at the close of all of the evidence. In substance, the court granted judgment notwithstanding the verdict, because M&MS's motion had become a motion for judgment notwithstanding the verdict under Rule 2-532(b) when the jury returned its verdict. M&MS's assertion and withdrawal of an additional motion for judgment notwithstanding the verdict had no effect on the court's ability to decide the motion on which it had reserved after the close of all of the evidence. Therefore, the Wilsons are simply incorrect in asserting that the court decided a motion that it had no power to decide.

II. Absence of Expert Testimony

In their respective briefs, the parties spent most of their effort debating the enforceability of the expansive exculpatory clause in M&MS's contract. We need not decide that issue,² because the circuit court's judgment can be upheld on a separate andindependent ground: the Wilsons' failure to adduce expert testimony in support of their claims. Offutt v. Montgomery Cnty. Bd. of Educ., 285 Md. 557, 563 n.3 (1979) ("[a]n appellate court may, on a direct appeal, affirm a trial court's decision on any ground adequately shown by the record, even though not relied on by the trial court or the parties").

To prevail on their claim for negligence, the Wilsons had to prove that M&MS breached the...