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Eagle-Picher Industries Inc. v. Balbos8/29/1990
tions of adversity stating as reasons for adversity that "manufacturers do not think the same way as the installers"; "certain evidence is contested by different lawyers representing different companies"; "some defendants are not named, others are named in both cases." The appellants / co-defendants presented no evidence on the crossclaims between the co-defendants or how the crossclaims or nature of the claims proved adverse or hostile interests. We agree with the finding of the trial judge that the initial distinction between the manufacturing and installing co-defendants was artificial as evidenced by the fact that counsel for appellants / co-defendants represented clients from both camps. Representation of manufacturers and installers by the same counsel was inconsistent with a finding of adversity or hostility. As noted in Kloetzli, "Adverse means ' aving opposing interests; having interests for the preservation of which opposition is essential.' Black's Law Dictionary 49 (rev. 5th ed. 1979). Hostile is defined as ' aving the character of an enemy; standing in the relation of an enemy.' Id. at 664, 501 A.2d 499." Kloetzli, 65 Md. App. at 600, 501 A.2d 499. Clearly, if the interests of
manufacturers and installers were able to be represented by the same counsel, any conflict of interest that might have existed was not sufficient to warrant a finding of adverse or hostile interests. In addition, counsel for the appellants / co-defendants specifically requested that the manufacturing and installing defendants he represented be treated as one entity to avoid any appearance of conflict.
The appellants contend that because the trial court awarded additional strikes, the trial court implicitly found adversity between co-defendants. To support this contention, the appellants cite Kloetzli, in which the court stated "Implicit in the allowance of the separate challenges was a determination that the parties' interests were adverse or hostile . . . . he Rule does not require that an express determination be made." 65 Md. App. at 599, 501 A.2d 499. In the instant case, however, the judge expressly stated that he had not ruled that adversity or hostility existed between the co-defendants but merely had accepted agreement between counsel to provide the plaintiff and each co-defendant with six strikes. That which is implicit is readily distinguishable from the explicit. Thus, Kloetzli is distinguishable from the instant case.
The trial court was correct in concluding that the interests of the co-defendants were not adverse or hostile and therefore the eight peremptory strikes awarded to the defendant party exceeded the six peremptory strikes to which the defendant party was entitled under Rule 2-512(h). But even assuming arguendo that adverse or hostile interests had been found between the co-defendants, the number of strikes exercised by the appellants / co-defendant were still sufficient to meet the requirements of Rule 2-512.
Under the Rule, it is the party that is entitled to the strikes and not the individual co-defendants, regardless of whether or not their interests are adverse or hostile. The
rule allows the trial court in its discretion to allow the co-defendants to exercise separately the strikes granted to the party. In St. Luke Evangelical Lutheran Church, Inc. v. Smith, 74 Md. App. 353, 537 A.2d 1196(1988), rev'd on other grounds, 318 Md. 337, 568 A.2d 35(1990), we restated the two-step process used in Kloetzli for matter
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