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Acands Inc. v. Asner12/6/1996
ON MOTION FOR RECONSIDERATION
Opinion by Rodowsky, J.
The plaintiffs have moved for reconsideration of Part I.B of this Court's 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 the issue of liability for compensatory damages. In their motion 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]." Appellees' 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 defendants' cases as cross-claimants 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 plaintiffs' motion in limine excluding TLV evidence that was proffered by the defendants, the error was not prejudicial because other evidence which the jury could consider on the claim of the plaintiffs against the defendants substantially covered that which the defendants had proffered. That material came into evidence principally on the cross-examination of one or more plaintiffs' witnesses during plaintiffs' case in chief. We rejected this argument in our original opinion based on a comparison of the defendants' proffers to the evidence to which we were referred by the appellees' brief.
Neither deposition was made part of the five volume, 2,437 page, joint record extract. All references in Appellees' 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 appellant's and in an appellee's brief, provides that "reference 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. One liberalization is the deferred record extract. Rule 8-501(l). A deferred record extract would have been of little assistance to the problem at hand. Inasmuch as references to the two depositions were not included in the appellees' brief, deferral of the preparation of the record extract in order to include all that was included in a party's 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. That rule now includes the following concluding sentence: "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
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