Lead Opinion
In thе case now before us, Mukhtar Taha sued Southern Management Corporation (hereinafter “SMC”) and two of its employees for malicious prosecution solely under a theory of respondeat superior liability. The jury rendered a verdict in which it found that the two named employee defendants were not liable; however, the jury also found in favor of Taha against SMC, the employer corporation. We hold that such irreconcilably inconsistent jury verdicts cannot stand under the theory of respondeat superior liability.
I. Background
A. Facts
On May 15, 1994, SMC hired Taha to work as a Maintenance Technician at the Silver Spring Towers apartment complex, one of the apartment facilities managed by SMC. Taha, a black male, had emigrated to the United States from the Sudan in 1981. Taha’s job responsibilities included plumbing, painting, lifting appliances to conduct repairs, and laying and replacing tile.
In mid-August of 1994, Taha moved a heavy barrel with the maintenance supervisor, Michael McGovern, and two other
When Taha returned to work on October 18, 1994, Wylie-Forth assigned him the task of painting doors in the apartment complex, which he completed without incident. The next day, while continuing to paint, Taha was approached by Wylie-Forth to discuss his work performance. At that time, Taha informed Wylie-Forth that he wanted to discontinue painting and allegedly raised his voice and argued with Wylie-Forth concerning his work. Therefore, Wylie-Forth and assistant property manager, Barbara Belton, terminated Taha’s employment on the basis of poor work performance, insubordination, and abusive behavior.
Shortly after Taha was terminated, McGovern and maintenance employee Wilfredo Martinez notified Wylie-Forth that several items were missing from a locked maintenance tool and supply area, including an acetylene gas tank, three padlocks, and various maintenance tools belonging to McGovern and Martinez. Martinez informed Wylie-Forth that he had witnessed Taha shaking and pulling on the lock to the maintenance area on October 4, 1994, a day that Taha was not assigned to work at Silver Spring Towers due to his disability leave. Anya Udit, a leasing consultant at Silver Spring Towers, also reported to Wylie-Forth that she spotted Taha in Wylie-Forth’s locked office on October 8, 1994, while Taha
While investigating the incidents, Officer Grims interviewed McGovern, Martinez, Wylie-Forth, and Udit. Based on these interviews, Officer Grims concluded that Taha was the only suspect in connection with the stolen property. On October 24, 1994, Officer Grims and Officer Bruce Evans questioned Taha about the missing property. Taha denied that he had keys to the locked storage area but admitted that he continued to have possession of keys for other areas of the building following the termination of his employment. Officer Grims also noticed seeing several large tool boxes in Taha’s apartment and observed Taha’s behavior during the questioning, stating that Taha “acted suspiciously and seemed nervous.”
As a result of this investigation, Officer Grims obtained a warrant for Taha’s arrest, which was executed on October 25, 1994. Taha was charged with burglary in the second degree, and the lesser included offense of attempted burglary, and burglary in the fourth degree for breaking and entering a dwelling or storehouse pursuant to Maryland Code, Article 27, Sections 30 and 32 (1957, 1992 Repl.Vol., 1994 Supp.). Prior to the scheduled trial, Taha produced alibi evidence that placed him out of town during the dates in question. Thereafter, the State entered a nolle prosequi to the charges.
B. Procedural History
On March 3, 1999, Taha filed in the Circuit Court for Montgomery County a civil complaint against SMC, and two of
Respondent: Who made the decision to file the application for statement of charges against Mr. Taha?
Grims: It was my decision.
Respondent: What if any role did Mr. McGovern, Michael McGovern, play in making that decision?
Grims: You said Mr. McGovern?
Respondent: Yes, Mr. Michael McGovern.
Grims: No role.
Respondent: What if any role did Ms. Debbie Wylie-Forth play in making your decision to file the application for statement of charges?
Grims: She was the original complainant for the police investigation, however, it was my decision to file the charges.
Respondent: At any рoint in time, what if anything did Ms. Debbie Wylie-Forth say to you to encourage you or pressure you into filing charges for Mr. Taha?
Grims: None that I recall.
Respondent: What if anything did Mr. McGovern say to you to pressure you or get you to file an application of statement of charges against Mr. Taha?
Grims: Nothing.
At trial, Taha asserted that Wylie-Forth had an unfavorable bias against him and his work and alleged that McGovern, a white, hearing-impaired individual, made racially disparaging comments towards Taha, in an effort to establish malice on the part of Wylie-Forth and McGovern. Taha did not present evidence at trial to show that other SMC agents or employees, other than Wylie-Forth and McGovern, could be liable for malicious prosecution.
[A]ll the elements of malicious prosecution must be established beyond a reasonable doubt in order for the plaintiff to prevail. Malicious prosecution is the beginning or continuing of a criminal proceeding with malice and without probable cause against another where the proceeding terminates in favor of the other person.
A person is responsible for starting a criminal proceeding who ... directs or requests a prosecution based on information which the person knows is false or withholds information which a reasonable person would realize might affect the decision to prosecute, ... or gives inaccurate or incomplete information to those who prosecute.
With respect to probable cause, the defendant acted without probable cause if the defendant did not have any reasonable grounds to believe in the plaintiffs guilt. Mere belief, however sincere, is not sufficient. There must be such grounds for belief founded upon actual knowledge of acts as would influence the mind of a reasonable person.
Well, the plaintiff in this matter was initially charged with the offenses contained in the charging document. The action by the charging authority is to be considered along with the other evidence on the question of whether the defendant has reasonable grounds to believe in the plaintiffs guilt or involvement.
You are not bound by this in determining this action of the prosecuting authority in determining whether the defendant had reasonable grounds to believe in the plaintiffs guilt. Also, there must be a demonstration or proof by a preponderance of the evidence that the defendant or defendants acted with malice, and a person acts with malice if the*473 person’s primary purpose in starting a prosecution is other than bringing an offender to justice. If a prosecution was started without probable cause, you may infer the existence of malice....
After holding a bench conference, the court gave the following supplemental instruction on respondeat superior liability:
In this matter, the dеfendants are sued as employer and employee, so the management may be employer and co-defendant, and the employees, being Mr. McGovern and Ms. Wylie, for them.
If the employee or employees are responsible for the acts about which the complaint is made by the plaintiff, the employer is also responsible since they would have been acting in the course of their employee responsibilities.
Neither party objected to the trial court’s instruction or requested further clarification concerning respondeat superior liability.
After the jury left to begin its deliberations, counsel for SMC requested that the question concerning liability be posed separately with regard to each named defendant on the special verdict sheet. The trial court approved the request, and counsel for Taha did not object to the form of the questions posed on the special verdict sheet. The verdict sheet presented to the jury asked the following questions concerning liability:
1. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant Southern Management Corporation?
2. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant, Debra Wylie-Forth?
3. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant, Michael McGovern?
The jury returned a verdict in favor of defendants Wylie-Forth and McGovern, finding that Taha had not been the victim of malicious prosecution by either employee, but found against SMC. The jury awarded Taha $25,000 in economic
[Tjhere is an additional consideration that you must make, but are not required to. It is fundamental that you make a determination with respect to liability; that is, compensatory damages, but you may make an award for punitive damages if you deem it appropriate.
An award for punitive damages, if you decide to award punitive damages, must be established by clear and convincing evidence, and I am going to define what clear and convincing is.
To be clear and convincing, evidence should be clear in the sense that it is certain, plain to the understanding and unambiguous and convincing in the sense that it [is] so reasonable and persuasive as to cause you to believe it. But you need not be convinced beyond a reasonable doubt; only to clear and convincing evidence.
An award of punitive damages, I indicated, must be established by clear and convincing evidence, and for an award of punitive damages to' be made, you should consider the following three factors: in an amount that will deter the defendant and others from similar conduct in the future; two, proportionate to the wrongfulness of the defendant’s conduct and the defendant’s ability to pay; and three, but not designed to bankrupt or financially destroy a defendant.
As I indicated earlier, you may, if you deem it appropriate, award for punitive damages, but you are not required to do so.
SMC then offered two exceptions to these instructions. SMC argued that the judgе should have instructed the jury that “there needs to be actual malice” for an award of punitive damages.. The judge responded that instructions as to actual malice were unnecessary because, by virtue of the jury finding malicious prosecution, it had determined already that malice existed. SMC also complained, unsuccessfully, that the judge failed to instruct the jury that it could award only nominal
SMC filed a motion for judgment notwithstanding the verdict, a motion for remittitur, and a motion to strike the punitive damages award. On February 10, 2000, the trial court held a hearing on SMC’s post-trial motions. The court denied SMC’s motion for judgment notwithstanding the verdict, stating:
Well, with respect to the verdict, without getting into any extensive recitation and review of the facts of this case, because what was before the jury is essentially uncontested, but with respect to the J.N.O.Y., the Court finds that the verdict was not contrary to the evidence, and it was supported by the evidence. The finder of fact has a rather wide latitude.
And I appreciate [SMC’s] argument about vicarious liability. I think that the evidence before the jury was one of whether or not they were acting in the course of their employment, and [if] that was a factual issue that had to be decided by the jury, their argument would be a stronger one.
But that was essentially conceded, and I think the jury might well determine that the responsibility was through the agents. Even though not finding the individual employees responsible, which clearly they did by their verdict, that does not mean that the verdict was legally defective, аlthough it may appear on the surface to be factually inconsistent.
So for that reason I am not going to disturb the verdict. I do believe that the J.N.O.V. should be denied.
SMC filed a timely appeal of the trial court’s judgment to the Court of Special Appeals.
This Court granted Taha’s petition for a writ of certiorari, Taha v. Southern Management Corp.,
On remand, the Court of Special Appeals vacated its reversal of judgment against SMC and dismissed Taha’s appeal. Following this order, the case again reached the Circuit Court, awaiting entry of judgment pursuant to Maryland Rule 2-601. Upon SMC’s motion, the Circuit Court ordered that the clerk enter judgments as to all defendants in the case. The order stated:
*477 Judgment by Verdict entered and recorded in judgment index in favor of Defendants Debra Wylie-Forth and Michael McGovern and against Plaintiff Mukhtar Taha and in favor of Plaintiff Mukhtar Taha against Defendant Southern Management Corporation in the amount of Twenty-Five Thousand Dollars ($25,000.00) for economic damages and the amount of Seventy-Five Thousand Dollars ($75,000.00) for non-economic damages and in the amount of One Hundred Thousand Dollars ($100,000.00) for punitive damages.
SMC then filed its previously-filed Motions for Judgment Notwithstanding the Verdict and, in the alternative, for Re-mittitur and to Strike the Punitive Damage Award. The Circuit Court denied those motions, and SMC appealed. This Court, on its own motion and before any further proceedings in the Court of Special Appeals, issued a writ of certiorari. Southern Management Corp. v. Taha,
1. Whether the Circuit Court erred in denying SMC’s Motion for Judgment Notwithstanding the Verdict for mаlicious prosecution because the jury found that its agents did not commit that tort.
2. Whether the Circuit Court erred in refusing to instruct the jury that actual malice is necessary for an award of punitive damages.
3. Whether the Circuit Court erred in denying SMC’s Motion to Strike Punitive Damages because there was no evidence of actual malice in the record to support the award.
4. Whether the Circuit Court erred in denying SMC’s Motion for Remittitur of the jury’s award of $25,000 for economic damages because there was only evidence of $500 in such damages.
We conclude that the Circuit Court erred in denying SMC’s post-judgment motion to set aside the jury’s verdicts as to SMC and its employees because they were irreconcilably
II. Discussion
We must consider whether SMC could be held liable for the tort of malicious prosecution under the doctrine of respondeat superior when the jury exonerated the very employees alleged to have acted maliciously in prosecuting the petitioner. Prior to the commencement of the trial, both Taha and SMC submitted proposed jury instructions to the court. The trial court instructed the jury on the theory of liability under the doctrine of respondeat superior stating, “[i]f the employee or employees are responsible for the acts about which the complaint is made by the plaintiff, the employer is also responsible since they would have been acting in the course of their employee responsibilities.” The instructions also limited the universe of responsible SMC employees to сo-defendants, Wylie-Forth and McGovern. Neither party objected to the instructions given by the court, so the jury was to base its decision only on the conduct of Wylie-Forth and McGovern, who, the parties conceded, were the agents of SMC.
Taha argues that the verdict form was “consistent and was agreed to and insisted by Southern,” such that SMC is es-
To understand the effect of the jury’s verdict, we must explore the underlying cause of action for malicious prosecution and theory of liability advаnced by Taha against SMC. To establish a prima facie case of malicious prosecution, a plaintiff must show that 1) the defendant(s) instituted a criminal proceeding against the plaintiff; 2) the criminal proceeding was resolved in favor of the plaintiff; 3) the defendant(s) instituted the criminal proceeding without probable cause; and 4) the defendant(s) acted with malice or for the primary purpose other than bringing the plaintiff to justice. See Okwa v. Harper,
A plaintiff may bring an action for malicious prosecution against a corporate entity, see Carter v. Howe Machine Co.,
In Central Railway Co. v. Brewer, supra, we set forth the following explanation of corporate liability in the context of a claim for malicious prosecution:
The liability of corporations aggregate for torts committed by them through their agents has, in recent years, received a good deal of attention from the Courts. It may indeed be said that the question of corporate liability for torts has been in a progressive stage; but step by step, have the limits of such liability been enlarged and extended, until now, there is but little difference between corporate liability and individual liability with respеct to torts.
In consequence however of the fact that a corporation must of necessity act through its agents, Courts have almost invariably held that to hold a corporation liable for a tor-tious act committed by its agent, the act must be done by its express precedent authority, or ratified and adopted by the corporation. Nor is a corporation responsible for unauthorized and unlawful acts, even of its officers, though done colore officii. To fix the liability, it must either appear that the officers were expressly authorized to do the act, or that it was done bona fide, in pursuance of a general authority, in relation to the subject of it, or that the act was adopted or ratified by the corporation.
Litigants may invoke the doctrine of respondeat superior as a means of holding an employer, corporate or
By “authorized” [it] is not meant authority expressly conferred [by the employer], but whether the act was such as was incident to the performance of the duties entrusted to the employee by the employer.
As a corporation without the capacity to exercise judgment, SMC cannot be held liable for the tort of malicious prosecution under the doctrine of respondeat superior without evidentiary proof that one of its employees, acting within the scope of that person’s employment duties, engaged in conduct sufficient to form a prima facie case of malicious prosecution.
Taha based his theory of recovery against SMC for the tort of malicious prosecution solely on application of the doctrine of respondeat superior to the conduct of employees Wylie-Forth and McGovern. Taha could have pursued his claim of malicious prosecution against the corporate defendant, SMC, alone, and established the corporate entity’s liability through evidence concerning the conduct of one or more of SMC’s employees. Taha, however, elected to pursue a more narrow theory of recovery based on evidence presented to the jury regarding the conduct of Wylie-Forth and McGovern.
Taha contends that he named Wylie-Forth and McGovern as individual defendants so that he could recover against them personally based on the egregious and outrageous nature of their conduct. Such an assertion, however, undermines the respоndeat superior theory of recovery, for when an agent’s conduct is deemed to be “ ‘quite outrageous’ ” or “ ‘highly unusual,’ ” it is usually indicative of the fact that the conduct falls outside the scope of the agent’s employment. See Sawyer,
The jury instructions and the special verdict sheet further undercut Taha’s claim that the individual defendants were sued personally for their egregious and outrageous conduct. The trial judge offered the following supplemental instructions, to which Taha did not object:
In this matter, the defendants are sued as employer and employee, so the management may be employer and co-defendant, and the employees, being Mr. McGovern and Ms. Wylie-Forth, for them.
*483 If the employee or employees are responsible for the acts about which the complaint is made by the plaintiff, the employer is also responsible since they would have been acting in the course of their employee responsibilities.
With these instructions, the jury was directed to consider the behavior of each defendant in his/her capacity as an employee. The jury did not have the task of determining whether the employees’ conduct was outrageous or fell outside of the their duties as agents of SMC. The special verdict sheet also did not ask the jury to distinguish whether McGovern or Wylie-Forth acted outrageously or outside their employment duties. Rather, the questions as tо each individual defendant simply asked whether the plaintiff had been “the victim of malicious prosecution.”
Taha maintains, however, that its case against McGovern, Wylie-Forth, and SMC should be likened to a criminal prosecution against one accused of murder and the lesser-included offense of assault. He contends, basically, that proving SMC’s “corporate liability” is a lesser-included form of the McGovern’s and Wylie-Forth’s “personal liability,” like assault is a lesser-included offense of murder. Because the failure to prove murder does not necessarily preclude the jury from finding assault, Taha claims that the jury could find “corporate liability” of SMC even if it did not find “personal liability” of McGovern and Wylie-Forth. Taha’s attempt to apply a criminal law theory to this civil tort claim misses the mark.
The term “lesser-included offenses” refers to a criminal law doctrine that has been applied where a defendant has been charged with numerous crimes that share some elements. In such a situation, the jury may “consider the possibility of conviction for an offense consisting of the same, but fewer elements of the crime for which the defendant was brought to trial.” State v. Bowers,
The tort of malicious prosecution, however, is not gradable; it is comprised of certain established elements, and there are no less serious or more serious varieties of it. The jury determined that Taha failed to prove that McGovern’s or Wylie-Forth’s conduct, either in their individual or employment capacity, amounted to malicious prosecution. The jury considered this same conduct of Wylie-Forth and McGovern and, applying the established elements of malicious prosecution, determined that SMC, their employer, was liable for malicious prosecution. SMC’s liability, however, did not require the establishment of fewer elements nor some “lesser” conduct on the part of its employees. Therefore, because a corporation cannot be held liable but through the acts of its agents, we cannot reconcile the verdicts exonerating McGovern and Wylie-Forth with the verdict finding SMC liable for malicious prosecution.
Taha asserts that in presenting his case against Wylie-Forth, McGovern, and SMC, he was able to establish a prima facie case of malicious prosecution against SMC based on the conduct of unnamed SMC employees. To the contrary, the record, including testimony, jury instructions, and verdict forms contain scant reference to the actions of SMC employees other than Wylie-Forth and McGovern. As relevant to Taha’s claim of malicious prosecution, the jury heard evidence that Martinez, an SMC employee, told McGovern and Officer Grims that Taha had been observed pulling on the lock to the maintenance area on a day when Taha was not on duty. The jury also heard that Udit, another SMC employee, told officer Grims that she saw Taha briefly enter Wylie-Fоrth’s office on a day that he was not working. These morsels of evidence regarding the conduct of other SMC employees hardly provide the jury with sufficient evidence to determine that, based on
Rather, the gravamen of the case was limited to the two named employees. In establishing his case of malicious prosecution against SMC, Taha did not ask the jury to consider whether SMC employees other than Wylie-Forth and McGovern who were interviewed by Officer Grims were agents of SMC, and whether they, in fact, were acting within the scope of their employment when giving those interviews to the police. Providing information to the police about the conduct of a co-worker during a police interview, particularly when the interview was not conducted at the behest of the employer, may or may not be considered as being within the scope of employment. See Cox,
We hold that a principal corporation cannot be held liable under the doctrine of respondeat superior when the jury has exonerated the co-defendant employees whose conduct was alleged to be the sole basis of the claim for liability. See DiPino,
In criminal matters, inconsistent jury verdicts may be permitted to stand. Dunn v. United States,
Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment---- That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.
Id. In the years following the Supreme Court’s decision in Dunn, we have applied this principal to our decisions in criminal cases. See Mack v. State,
We recognize that treatment of irreconcilably inconsistent jury vеrdicts in the civil context may be different from our decisions about inconsistent jury verdicts in criminal trials wherein we have permitted inconsistent jury verdicts to stand. See Shell v. State,
The general view is that inconsistencies may be the product of lenity, mistake, or a compromise to reach unanimity, and that continual correction of such matters would undermine the historic role of the jury as the arbiter of questions put to it.
Id.
In keeping with the rationale set forth in the Supreme Court’s decision in Dunn and with our decisions in criminal matters involving inconsistent jury verdicts, the Court of Special Appeals has reasoned that absent proof of actual irregularity, an inconsistent jury verdict in a criminal case is generally not a sufficient basis for an appellate court to reverse the jury’s verdict. See Steffey v. State, 82 Md.App. 647, 662,
It is well settled that irreconcilably defective verdicts cannot stand. Gaither v. Wilmer,71 Md. 361 , 364,18 A. 590 (1889). Where the answer to one of the questions in a special verdict form would require a verdict in favor of the plaintiff and an answer to another would require a verdict in favor of the defendant, the verdict is irreconcilably defective. Ladnier v. Murray,769 F.2d 195 , 198 (4th Cir.1985); Carter v. Rogers,805 F.2d 1153 , 1158-59 (4th Cir.1986); Robertson Oil Co., Inc. v. Phillips Petroleum Company,871 F.2d 1368 , 1373 (8th Cir.1989); Hopkins v. Coen,431 F.2d 1055 , 1059 (6th Cir.1970); Lewis v. Yaggi,584 S.W.2d 487 , 497-98; Russell v. Pryor,264 Ark. 45 ,568 S.W.2d 918 , 922-23 (1978).
S & R, Inc. v. Nails,
We note that various of our sister jurisdictions agree that verdicts that exonerate an employee for a tort while holding the employer responsible based on the doctrine of respondeat superior cannot stand. See Stevenson v. Precision Std., Inc.,
As the dissent points out, the case before us involves multiple general verdicts rather than a general verdict accompanied by answers to special interrogatories, a jury’s specific fact-findings. FRCP 49(b), however, dictates a federal trial judge’s options only when a jury has answered special interrogatories and reached a general verdict:
When the answers [to interrogatories] are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
Here, we face neither of the inconsistencies described by the federal rule.
The court entertained the employer’s argument. Although the court acknowledged its general rule that verdict inconsistencies should be brought to the trial court’s attention before the jury is discharged, it stated that where “[njeither side sought resubmission of the case to the jury” or sought a new trial, it seemed “procedurally fair” to resolve the inconsistency at the appellate level. Id. at 451-52. The court also noted that a new trial was not appropriate because the employee opted not to appeal the judgment in favor of the president. Id. at 452.
This case is similar to DeFeliciano in that SMC and Taha both did not request the trial judge to resubmit the issues to the jury for clarification prior to the jury’s discharge. In addition, neither SMC nor Taha have argued that a new trial is in order as a result of the inconsistent verdicts. Taha merely seeks a remand, so the discharged jury somehow would have “the opportunity to clarify who or what it believed.” DeFeliciano further parallels the case before us in that here Taha also chose not to appeal the judgments in favor
Moreover, the cases cited by the dissent have little persuasive value because there is no counterpart to FRCP 49(b) in the Maryland Rules. By virtue of FRCP 49(b), federal trial judges and parties alike are on notice that a court must respond to verdict inconsistencies before the jury is discharged. See White v. Celotex, 878 F.2d 144, 146 (4th Cir.1989) (stating that the waiver rule is “mandated” out of “[pjroper respect” for FRCP 49(b)); see also Lockard v. Missouri Pac. R.R. Co.,
Nevertheless, as we recognized in Allstate Ins. Co. v. Miller,
The scope of a court’s power under Rule 2-535(a) is broad. In its discretion, a court may modify a judgment if a party files a motion seeking to revise or set aside that judgment within 30 days after its entry. Haskell v. Carey,
SMC filed its post-judgment motion in this case within 30 days after the entry of the jury verdicts, giving rise to the court’s powers to set aside the judgments. Nonetheless, the Circuit Court, failing to exercise its broad discretion, allowed the judgments to stand, even though those judgments reflected irreconcilably inconsistent jury verdicts. In this regard, the Circuit Court еrred as a matter of law, and the judgment as to SMC must be set aside.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO ENTER JUDGMENT IN FAVOR OF APPELLANT. COSTS TO BE PAID BY APPELLEE.
Notes
. Taha originally filed a complaint against SMC, Wylie-Forth, and McGovern in the United States District Court for the District of Maryland, raising a claim for a violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, and a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, in addition to common law tort claims. On December 27, 1996, the federal court ruled favorably upon the defendants' Motion to Dismiss Taha’s claim under the ADA. The federal court found that Taha did not meet the statutory requirements of the ADA because he failed to allege that he had experienced discrimination on the basis of a physical disability in his initial complaint filed with the Montgomery County Government Human Relations Commission. On February 4, 1999, the federal court granted defendants’ Motion for Judgment on the Pleadings on Taha’s Title VII claim. Once Taha’s federal claims were dismissed, the federal court declined to exercise its supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) to hear Taha’s remaining state tort law claims. Therefore, the federal district court dismissed Taha's complaint without prejudice.
. Taha's complaint also contained allegations of wrongful discharge, conspiracy, false imprisonment, defamation, and intentional infliction of emotional distress. Upon a motion filed by the defendants, the circuit court dismissed with prejudice all of Taha’s claims except for the intentional infliction of emotional distress and malicious prosecution claims prior to trial. At the close of Taha’s presentation of evidence at trial, the circuit court entered judgment in favor of SMC on the intentional infliction of emotional distress claim. Thus, the jury only considered Taha’s claim for malicious prosecution.
. The record does not contain any proposed jury instructions from Taha.
. Taha did not file a cross-appeal against the judgments in favor of Wylie-Forth and McGovern.
. Although, for the purpose of this opinion, addressing question 2 is unnecessary, its answer is so obvious and the law is so clear that it makes little sense for us to pass it over completely. In a malicious prosecution case, "[although an inference of malice based on a lack of probable cause is sufficient to support an award of compensatory damages, in order to receive a punitive damage award [a plaintiff] must prove at trial that [the defendant was] moved by actual malice. This showing may not be made inferentially.” Okwa v. Harper,
. Whether an individual is an employee and whether that individual’s conduct falls within the scope of employment is normally a question for the jury. See Sawyer,
. The dissent relies heavily on the distinction between “special verdicts” and "general verdicts” to argue that the inconsistent verdicts in this case should not be striсken. Although we have no quarrel with the dissent’s characterization of those types of verdicts, we find the distinction irrelevant to the resolution of this case. Where the plaintiff has proven that non-party employees of a corporation acted to commit a tort in the scope of their employment, we agree that a finding of corporate liability is permitted even though other employees who were named as defendants have been exonerated. This type of split verdict is not irreconcilably inconsistent because the actions of the named defendants do not form the sole basis for the plaintiff's claim against the corporation. Here, as we have stated, the evidence does not support a jury finding that the corporation was liable based on conduct of non-party employees.
. We leave for another day the issue of whether this Court should reconsider its decision in criminal matters in which inconsistent verdicts have been rendered.
. Not all courts construing FRCP 49(b) require a party to object to the inconsistent verdict prior to the discharge of the jury. See Los Angeles
. The dissent would advocate not reaching the central issue in this case, the very reason why we issued a writ of certiorari, because SMC did not voice a timely objection at trial. As we have stated, however, this Court "has discretion to consider issues that were not preserved.” Fisher v. State,
. Maryland Rule 2-535(a) states in relevant part: "On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment....”
. Section 6-408 of the Courts & Judicial Proceeding Article provides:
For a period of 30 days after the entry of judgment, or thereafter pursuant to a motion filed within that period, the court has revisory power and control over the judgment. After the expiration of that period the court has revisory power and control over the judgment*494 only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rale.
. SMC’s filings comport with the timing requirements of the Maryland Rules. On July 9, 2002, the Circuit Court entered judgment against SMC and in favor of the other named defendants, issued a notice of that judgment, and indicated those actions in the docket. Ten days later, on July 19, 2002, SMC filed its post-judgment motion, in which it argued that the jury verdicts were irreconcilably inconsistent. Because this motion was filed within 10 days after the judgment, it stayed the timing for appeal. See Unnamed Attorney v. Attorney Grievance Comm’n,
Dissenting Opinion
with whom BELL, C.J. joins as to Parts I and II only, dissenting.
I respectfully dissent. I would affirm the judgment of the Circuit Court for three reasons. First, appellant has waived any objection to raise an inconsistency in the verdict because appellant did not contemporaneously object at the time the verdict was rendered and before the jury was discharged. Second, because the verdict was in the form of a general verdict, it is not necessarily an inconsistent verdict. Third, Maryland law has long permitted inconsistent verdicts.
Southern Management Corporation has waived any objection that the verdict is inconsistent.
Southern Management argues that it challenged the inconsistency at the earliest opportunity. Raising the issue for the first time in a motion j.n.o.v., well after the jury was dismissed, is not the earliest opportunity. The earliest opportunity, as most courts that have considered the waiver argument have found, is before the jury is dismissed, and not at a post-
Had the objection to the verdict been brought to the attention of the trial court in a timely manner, the court had several options. For example, the court initially could have avoided the problem entirely if the jury had been instructed that no verdict could be rendered against the employer unless the jury found that an employee had been guilty of malicious prosecution. Southern Management neither sought such an instruction, nor objected to the instructions as given. After the verdict was rendered, the judge, if alerted, could have resubmitted the matter to the jury for clarification.
This Court has adhered continuously to the contemporaneous objection rule. See Klauenberg v. State,
The majority of courts that have considered this issue have held that unless a party objects to an inconsistent verdict before the jury is dismissed, any objection on grounds of inconsistency is waived. Babcock,
II. The Verdict Form — General versus Special Verdicts
Courts have treated inconsistent civil jury verdicts in a variety of ways, partially dependent upon the particular procedure used to obtain the jury’s findings. A civil verdict may be received in different ways: First, a general verdict may be received; second, a special verdict may be used; and third, a general verdict may be supplemented by special interrogatories, thereby combining features of a special verdict and a general verdict.
The Federal Rules of Civil Procedure explicitly address special verdicts and general verdicts with interrogatories. Rule 49(a) of the Federal Rules of Civil Procedure governs the use of special verdicts in federal courts.
Verdicts are usually returned in the form of a general verdict in most courts. See Portage II v. Bryant Petroleum, Corp.,
The jury plays a simple factfinding role when it renders a special verdict, whereas the jury applies the law to the facts and announces legal conclusions when it renders a general verdict. As the Ninth Circuit Court of Appeals explained in Zhang:
“A jury may return multiple general verdicts as to each claim, and each party, in a lawsuit, without undermining the general nature of its verdicts. Although some general verdicts are more general than others, encompassing multiple claims, the key is not the number of questions on the verdict form, but whether the jury announces the ultimate legal result of each claim. If the jury announces only its*503 ultimate conclusions, it returns an ordinary general verdict; if it makes factual findings in addition to the ultimate legal conclusions, it returns a general verdict with interrogatories. If it returns only factual findings, leaving the court to determine the ultimate legal result, it returns a special verdict.”
Zhang,
The Zhang court further explained that the form of a verdict has important implications for determining whether verdicts are irreconcilably inconsistent. Id. In addressing the alleged inconsistency between two legal conclusions — a finding of liability for a corporate defendant and a finding of no liability for the corporation’s employee, the cоurt in Zhang distinguished this inquiry from its task in reviewing whether special verdict answers support the ultimate judgment of the trial court. Id. at 1032-33. In cases involving the latter inquiry, “the real question [is] whether the jury’s factual findings require[] judgment for the plaintiff or the defendant, a question that is simply irrelevant where ... no factual findings are at issue.” Id. at 1033.
In S & R v. Nails,
The majority improperly characterizes the jury verdict in the instant case as a special verdict. See maj. op. at 479 (referring to “the text of the special verdict form”). The
The cases cited by the majority involving the doctrine of respondeat superior do not establish that the jury’s exoneration of an employee can never be consistent with a verdict of liability for the corporate defendant. The cases cited by the majority involve situations where corporate liability was based solely on the doctrine of respondeat superior and only one employee’s actions grounded the claim. See maj. op. at 488-89. Zhang is more instructive regarding the interplay of the doctrine of respondeat superior with apparently inconsistent general verdicts. In Zhang, the Ninth Circuit Court of Appeals contemplated that general verdicts might be alleged to be inconsistent in three ways.
Although Southern Management raises the question of whether, as a matter of law, the jury verdict was irreconcilably inconsistent, underlying its claim of inconsistency is a presumption that Taha failed to produce sufficient evidence of tortious conduct by employees other than Wylie-Forth and McGovern. As the Court of Special Appeals phrased it in Taha I,
The majority in the instant case states that “the gravamen of the case was limited to the two named employees,” maj. op. at 485, and embraces the Court of Special Appeals’ pronouncement that Taha “proceeded against Southern for the tort of malicious prosecution based only on the conduct of McGovern or Wylie-Forth, not other Southern employees who were not sued.”
The United States Supreme Court has held that where a jury renders apparently inconsistent verdicts, it is the court’s duty to search for a logical interpretation of those verdicts. The Court addressed this issue in Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,
III. Inconsistent Verdicts Generally
It has long been the law in Maryland that verdicts may be inconsistent. This is so in both civil and criminal cases. See, e.g., Garrett,
“inconsistent verdicts by a jury ‘are normally tolerated.... ’ This is so because of ‘the unique role of the jury, [and has] no impact whatsoever upon the substantive law explicated by the Court.’ Due to the singular role of the jury in the criminal justice system, ‘there is a reluctance to interfere with the results of unknown jury interplay, at least without proof of “actual irregularity.” ’ ”
Courts permit inconsistent verdicts based on a recognition of the unique role of the jury. Juries render verdicts for a variety of reasons, including mistake, the application of lenity, nullification, or compromise to reach a unanimous verdict. See Shell,
The majority overlooks more than one procedural error on the part of Southern Management. In order to reach the merits, the majority has to pull the corporation’s “chestnuts out of the fire” and overlook the waiver of the issue and the filing of an improper j.n.o.v. motion. See Stockton v. State,
Under the posture of this case, the judgments did not reflect irreconcilably inconsistent verdicts that must be set aside as a matter of law. I would affirm the trial court’s
Chief Judge BELL authorizes me to state that he joins in Parts I and II of this dissenting opinion.
. Appellee argues waiver, but on a different ground than I would find. Appellee argues that Southern Management waived any inconsistency because Southern Management drafted the verdict sheet, and the verdict sheet encouraged or at least permitted an inconsistent verdict. In response, Southern Management maintains that the issue before the Court is the verdict and not the verdict sheet. Although the issue on appeal is the consistency of the verdict, courts have found that verdict sheets and jury instructions play a role in the determination of whether apparently inconsistent verdicts are reconcilable. See Tipton v. Michelin Tire Co.,
. The verdict sheet read as follows:
"1. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant Southern Management Corporation?
*498 2. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant, Deborah Wylie-Forth?
3. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant, Michael McGovern?
If "Yes” to any defendant, answer Question 4.
4. What amount of damages do you award plaintiff?
A. Economic $_
B. Non-Economic $_"
. The Court of Special Appeals addressed the jury instruction in Southern Management Corporation v. Taha (Taha I),
"Following the bench conference, the jury was specifically instructed that, '[i]f the employee or employees are rеsponsible for the acts about which the complaint is made by the plaintiff, the employer is also responsible since they would have been acting in the course of the employee responsibilities.' That supplemental instruction was accurate but arguably incomplete and, as a result, possibly misleading. Although the court specifically told the jury that Southern would be liable if the jury found McGovern and Wylie-Forth liable, the court never advised the jury of the converse — that Southern’s liability, if any, is founded on the conduct of its employees, and if the jury exonerated the two named employees, Southern could not be liable. Even if liability could attach based on the conduct of other employees of Southern who were not sued, the jury was not instructed to consider the conduct of other employees.”
Id. at 718,
. Even if a strict waiver rule should for some policy reason not be applied in every circumstance, it should be applicable to this case because this is not a complex case, nor one where the alleged inconsistency was not immediately apparent when the verdict was rendered and before the jury was discharged.
. Rule 49(a) reads as follows:
(a) Special Verdicts. The court may require a jury tо return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
. Taha presented evidence of wrongdoing by Udit and Martinez, two other employees, although he did not sue them. See Taha I,
. The United States Court of Appeals for the Ninth Circuit in Zhang v. American Gem Seafoods, Inc.,