Goldstein v. Chesley
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Goldstein & Baron Chartered, et al. v. William Chesley No. 94, Sept. Term, 2002 Party who de mands ju ry trial in timely filed counterclaim is entitled to jury trial on all issues in the cas e tria ble to a jury. Circuit Co urt for Princ e Georg e s Coun ty Case No. CAL95-15260 IN THE COURT OF APPEALS OF MARYLAND No. 94 September Term, 2002 ______________________________________ GOL DSTE IN & B ARO N CH ART ERED , et al. v. WILLIAM CHESLEY ______________________________________ Bell, C.J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: June 11, 2003 The dispute that spawned this litigation arose from the sale of a parcel of land by the Estate of Dr. Erwin Rose to William Chesley. That sale produce d a claim by a broker, Coldwell Banker, for a commission on the sale, an agreement by Chesley to indemnify the Estate against any liability for such a co mmission , and a furth er agreem ent by Chesle y to allow the attor neys for the Esta te, Goldstein & Baro n, Chartere d (G& B), to defe nd the claim by Coldwe ll Ba nker and to pa y the fees of G&B in curred in that defense. Th e claim for a commiss ion was litiga ted and ev entually settled. What linger with us are some procedural issues arising from separate litigation between Chesley and G&B over the indemnity agreeme nt. BACKGROUND Prior to his de ath in Ju ly, 1987, D r. Rose had listed the property with Coldw ell Banker, agreeing to pay a 10% commission on any sale, but that agreement lapsed in March, 1987. During the period of the listing, Coldwell Banker distributed literature about the property to a number o f people, o ne of w hom w as Chesle y. Upon D r. Rose s de ath, his sister, Rosalind Marsh, was appointed as personal representative of the Estate. Although she did not renew the listing with Coldwell Banker, that firm continued to market th e property to prospective buyers in the belief that the listing remained effective. Two offers were sent to Ms. Marsh, but she did not respond to them. At some point, Ms. Marsh retained G&B as attorneys for the Estate. In the course of that represe ntation, Leonard Goldstein, a principal of G&B, began negotiating with Chesley and, on April 11, 1988, they concluded a written agreement for the sale of the property for $1,000,000. Althoug h he did not believe that any comm ission was due to C oldwell Banke r, Goldstein was aware that it might make a claim for one. To protect the Estate against such a claim, he inserted into the contract of sale the following provision: Seller and Purchaser hereby acknowledge and agree that no real estate com mission sh all be paid b y Seller, and that any brokerage fee or commission resulting from this transaction shall be the sole responsibility of the Purchaser. If any claim or action is brought by any agent or broker fo r a comm ission with respect to this transaction, the Purcha ser shall pay and hold harmless, defend and indemnify the Seller against all claims, costs, expenses, liability, damage or actions, including Seller s attorneys fees, in conne ction w ith such claim o r action. Goldstein promptly informed Coldwell Banker that the property had been sold. The sale was ratified by the Orph ans Cou rt, and closing occurred on July 8, 1988. On September 1, Coldw ell Banke r filed suit in the Circuit Co urt for Prince George s C ounty for a commission on the sale. The complaint was partially based on an alleg ation that, before he died, Dr. Rose had extended the listing agreement to May 30, 1988, and that the listing was therefore in existence when the property was sold. Goldstein notified Chesley of the law suit, reminded him of his obligation under the indemnity clause, and offered him the choice of obtaining his own attorney or allowing G&B to conduct the defense. Chesley agreed to allow G&B to defend the action. The case proceeded to trial in October, 1991. At the end of the plaintiff s case, the court entered judgment in favor of the Estate. Evidence had been presented that the -2- extension agreement relied upon by Coldwell Banker was, in fact, a forgery. Aggrieved, Coldw ell Banker appe aled. In October, 1992, the Court of Special Appeals, in an unreported Opinion, reversed, co ncluding th at there we re certain triable issues for the jury to determine. Before the commencement of a second trial, Chesley entered into negotiations with C oldwell Banker and settled the case. In June, 1989, while the case against Coldwell Banker was first pending in the Circu it Court, Ms. Marsh and G&B petitioned the Orphans Court for allowance of a fee in the amount of $175,252 for the legal services G&B had rendered. They noted that the maximum fee permitted under Marylan d Cod e, Estate s and T rust Ar ticle, ยง 7-601 was $125,353, based on a 10% commission on the real estate sold ($100,000 for the property sold to Chesley and $8,750 for the sale of other real estate), 10% of the first $20,000 of personalty, and 4% of the remaining personalty ($14,603), but they sought an additional $49,899 for extra and special services that G&B had rendered. In July, 1989, the court allowed the entire requested fee. G&B began billing Chesley for its services in connection with the Coldwell Banker litigation in Decem ber, 1989. B y April, 1994, G&B had billed a total of $65,811, of which Chesley paid $23,3 81. In Au gust, 1995 , after it becam e clear that C hesley did not in tend to pay anything mo re, G&B filed suit in the C ircuit Court for Prince George s County, seeking a total of $5 2,675, inclu ding pre-ju dgment in terest. G& B did no t ask for a jury trial. On Nove mber 2 , Chesle y filed an a nswe r to the co mplain t, in which he raised a number of defen ses, including an allegation that he wa s induced to enter into th e indemn ity -3- agreement by fraudulent or negligent misrepresentations on Goldstein s part. Chesley claimed tha t Goldstein h ad not only m isrepresente d Coldw ell Banker s participation in the sale but had also stated that no real estate commission would be paid by the Estate on th e sale of the property, a statement that, in light of G&B s acceptance of what Chesley regarded as a 10% commission on the sale, was false. Chesley did not pray a jury tria l in his an swer. A month later, however, on December 5, 1995, Chesley filed a counterclaim against G&B and a third party claim against Goldstein, based on the same allegation that Goldstein had fraudulen tly or negligen tly misrepresented that no commission would be paid by the Estate. Because Goldstein and G&B stand essentially in the same position, we shall, for convenience, refer to that pleading as a counterclaim against G&B. Chesley charged G&B with fraud, negligent misrepresentation, and legal malpractice and sought compensatory damages of $150,000, principally to cover the costs incurred in defending claims by the Estate and G&B. Attached to the counte rclaim wa s a deman d for jury trial D efendan t, Counter Plaintiff and Third Par ty Plaintiff, William Chesley, [by counsel], hereby demands a trial by jur y. In September, 1996 , the court determined that Chesley s counterclaim was barred by limitations and granted summary judgment to G&B on that claim. The basis for the court s ruling was that Chesley became aware of the facts underlying the claim, which was filed in Decembe r, 1995, when the Court o f Special A ppeals filed its opinion in the Coldwell Banker appeal in Octo ber, 199 2. Although it does not appear that the court ever formally struck -4- Chesley s demand for a jury trial, when the G&B claim was called for trial and Chesley asserted a right to a jury, the court determined that the jury trial demand, having been made more than 15 days after the answer was filed, was untimely. The court relied on Maryland Rule 2-32 5(b), whic h is part of the Rule on e lecting a jury trial in civil cases, and provides that [t]he failure of a party to file the demand [for jury trial] within 15 days after service of the last pleading filed by any party directed to the issue constitutes a waiver of trial by jury. The court then tried the G&B action non-jury and, at the close of evidence, found that there was no f raud in the inducement of the indemnity agreement and that the amounts billed by G&B were f air and r easona ble. After givin g Chesley cre dit for the amounts he had paid, the court entered judgment for G&B in the amount of $41,731 plus $15,023 in pre-judgment interest. Chesley appealed, complaining both about the judgment for the attorneys fees and the summary judgment entered on his counter claim. With respect to the fees, Chesley argued that G&B had acted as attorneys for both him and the Estate, that the firm was in a conflict situation, and that Goldstein had failed in hi s dut y of loyalty to him to disc lose certain important information, such as his receipt of a commission on the sale of the property. As to the counterclaim, he averred that, although he had received a c opy of the Court of Special Appea ls Opinion in the Co ldw ell B anker ca se, he did not immedia tely understa nd the significance of it and did not become aware of the relevant facts until March, 1993, in the course of negotiating the settlement with Coldw ell Banker. The Co urt of Spe cial Appe als found no merit in Chesley s complaint about the fees -5- and affirmed that part of the judgment. In an unreported Opinion , it concluded that, although G&B did represe nt Chesley in the Coldwell Banker litigation, there was no conflict of interest betw een Che sley and the E state with resp ect to that litigation, that G&B had made adequate disclosure to Chesley, and that it had not defrauded him . In that regard, the court determined that Goldstein had not received a commission on the sale of the property but rather a fee for legal services rendered to the Estate, part of which was merely stated as a commission, and that, even if the fee could be regarded as including a commission, there was still no error, as the Estate had never claimed reimbursement from Chesley for that expense. The appellate court reversed the summary judgment entered on the counterclaim, however, concluding that, on the facts presented, the question o f whethe r a reasona ble person in Chesley s position would have realized that he had a cause of action based on the Opinion filed in the Coldwell Banker case was for a jury to determine. Having resolved th e merits of th e appeal, the Court of Special Appeals, in response to a motion for reconsideration filed by Chesley, addressed one additional matter the jury trial issue. There were tw o prongs to that issue. Ch esley had asse rted in his brief that, in the event of a reversal of the summary judgment entered on the counterclaim, he would be entitled to a jury trial on that claim, and, in its revised Opinion, filed in response to the motion for reconsideration, the appe llate court agreed with him. Citing Hawe s v. Liberty Homes, 100 Md. App. 222, 640 A.2d 743 (1 994), cert. denied, 336 Md. 300, 648 A.2d 203 (1994), the court noted that, under Maryland Rule 2-325(e), when a trial by jury has been -6- elected by any party, the action, including all claims whether asserted by wa y of counterclaim, cross-claim or third-party claim, as to all parties, and as to all issues triable of right by a ju ry, shall be designated upon the docket as a jury trial. On that premise, the court concluded that, with the reversal of the summary judgment on the counterclaim, Chesley was entit led, o n rem and, to a jury trial on all iss ues triable by a jury. The court also noted that, in his motion for reconsideration, Chesley had sought reversal of the judgment entered for the attorneys fees because of the denial of his request for a jury trial. Inconsistently with its ruling on the first prong of the argum ent, the court declined to address that point because it was not raised in Chesley s brief and was presented for the first time in his motion for reconsideration. The court expressed no opinion as to any preclusive effect the judgment entered for attorneys fees, affirmed by the appellate court, might have on the counterclaim. The court s disinclination to address either of those issues effectively generated the current dispute now before us. On remand, G&B again moved for summary judgment on the counterclaim, this time on the twin grounds of res judicata that the counterclaim was based on the same a llegations tha t were adju dicated in the G&B claim for attorneys fees and law of the case. The court gran ted that motion and en tered judgment for G &B. It concluded that the issues presen ted in the cou nterclaim w ere the sam e as those ra ised in defense of the G& B action whether G&B had a con flict of interest with respect to the Coldw ell Banker litigation and whether adequate disclosure had been made to C hesley before -7- he agreed to the indem nity provision that they were expressly dec ided in that action, and that the bar of both issue preclusion (collateral estoppel) and claim preclusion (res judicata ) thus applied. Chesley again appealed. T he Court of Special Appeals held that, because the countercla im was filed in the same a ction as G &B s c laim, neither iss ue preclusio n nor claim preclusion applied . Chesley v . Goldstein , 145 Md. App. 605, 806 A.2d 296 (2002). The court noted that claim preclusion (res judicata ) applies when the parties to a subseq uent suit are the same o r in privity with the parties to a prior suit; the first and second suits present the same claim or cause o f action; and there was a final judg ment rend ered on the merits in the first suit, by a court of competent jurisdiction (id. at 622, 806 A.2d at 306) and that, under issue preclusion (collateral estop pel), [w]h en an issue of fact or law is actually litigated and determined by a valid and f inal judgm ent, and the de termination is essential to the judgmen t, the determination is conclusive in a subsequent action between the parties. Id. at 623, 806 A.2d at 306 ( quotin g prior C ourt of Appe als case s). Both doctr ines, the court observed, require sequential litigation and do not apply to a d ecision on o ne claim in a single multiclaim action. Recognizing that a reversa l and rema nd on the c ounterclaim alone raised the prospect of a verdict on the counterclaim that might be inconsistent with the decision reached on the G&B claim, the court examined further the relationship between the two actions in light of its previous affirmance of the decision entered on the G&B claim. Citing one of its earlier -8- decisions, the court concluded that a remand for a partial new trial w as not appro priate unless the issue to be retried is so distin ct and sepa rable from the others tha t a trial of it alone may be had without injustice. Chesley, supra, 145 Md. App. at 628, 806 A.2d at 310 (quoting Stickley v. C hisholm , 136 Md. App. 305, 315, 765 A.2d 662, 668 (2001), quoting, in turn, Gasoline Produc ts Co., Inc. v. Champlin Refining Co., 283 U.S . 494, 500, 5 1 S. Ct. 513, 515, 75 L. E d. 1188, 1191 (19 31)). It was app arent to the co urt that the relev ant operativ e facts underlying the G& B claim were so interwoven with those on which the counterclaim was based that they could not be determined independently. Accordingly, the court concluded that Chesley s right to have a jury determine the issues triable of right by jury in this case cannot be enforced in the absence of a retrial on all of the claims. Chesley, supra, 145 Md. App. at 629, 806 A.2d at 310. That co nclusio n, of course, raised the question of how to treat the court s earlier affirmance of the judgment entered on the G&B claim for attorneys fees: did the law of the case doctrine preclude the court from vacating a ju dgment th at, in a previous appeal, it had affirmed? In responding negatively, the court relied on Hawes v. Liberty Homes, supra, 100 Md. App. 222, 640 A.2d 743, which explained that the law of the case doctrine is one of appellate procedu re and con venience rather than a n inflexible r ule of law, such as claim or issue preclusion, and that, although an appellate decision certainly binds lower courts, the appellate court that rendered the decision is not precluded from reco nsidering a n issue it -9- previously decided, even in the same case, when exceptional circumstances so warrant. The thrust of Hawes was that decisions rendered by a prior appellate panel of the Court of Special Appea ls will generally govern in a second appeal unless (1) the prev ious decisio n is patently inconsistent with controlli ng principles announced b y a higher court and is therefore c learly incorrect, and (2) follow ing the prev ious decisio n would create manif est injus tice. Hawes, supra, 100 Md. App. at 231, 640 A.2d at 747. The court fo und bo th of tho se criteria to be m et. It held that, unde r Ma ryland Ru le 2-325(e), Chesley, having demanded a jury trial in his counterclaim, was entitled to a jury trial on all claims in the action, and that the earlier remand for retrial only on the countercla im was therefore clear error: th e only proper d isposition [in the earlier app eal] given our holding wa s to vacate the judgme nts on all the claims and rem and the case for a new trial, on all the claims. Chesley, supra, 145 Md. App. at 634, 80 6 A.2d at 313. Not to do so, the court added, would continue to create a manifest injustice: For Chesley to have a fair trial, the original, counterclaim, and third party claims must be tried toge ther; and to e ffectuate Chesley s jury trial right, the trial on a ll the issues in those claims, being factual issues, must be to a jury. The only way to accomplish that is to vacate the judgment in the original claim, which we sh all do. Id. Obviou sly distraught at losing not only its victory on the counterclaim but also the judgment for attorneys fees, G& B sough t certiorari, raising essentially three issues: whether, apart from any question of claim or issue preclusion, summary judgment on the -10- countercla im was app ropriate because there were no material facts in dispute and G&B was entitled to judgment as a matter of law; whether the second panel of the Court of Special Appea ls misapplied the law of the case doctrine; and whether that panel err ed as we ll in failing to find that the counterclaim w as barred by claim preclusion (res judicata ). We granted the petition and shall affirm the judgment of the Court of Special Appeals, although not entirely for the reasons cited by that court. DISCUSSION The answer to all three complain ts made by G&B lies in the fact that, when Chesley filed a deman d for jury trial with his counterclaim, he was entitled to a jury trial on all issues in the action, including those raised in G &B s complaint. That right, which was denied to him, can be en forced on ly by a remand of the entire c ase. It is regrettable that the case has to go back to Square One at this point, but it was at G&B s urgings that the problem was created. The right to a jury trial in civil actions at law is provided for in Articles 5 and 23 of the Maryland Declaration of Rights and is therefo re of Con stitutional dime nsion. Article 23 the more specific provision states th at the right of trial by jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of $10,000, shall be inviolably preserved. Maryland Rule 2-325(a) implements that right. It provides that [a]ny party may elect a trial by jury of any issue -11- triable of right by a jury by filing a demand therefor in writing either as a separate paper or separa tely titled at th e conc lusion o f a plea ding . . . . Chesley filed a demand f or a jury trial with his counterclaim which, as we noted, was labeled as a countercla im agai nst G &B and a thir d party cla im ag ainst Goldste in individually. A countercla im is a plead ing, as is a third pa rty comp laint. See Maryland Rule 1-2 02(s). Maryland Rule 2-331(a) permits a party to assert as a counterclaim any claim that party has against any opposing party, whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party s claim. Section (c) of that Rule also allows the counterclaimant to make a person not previously a party to the action a party to the counterclaim.1 The Court of Specia l Appeals was corre ct in its ultimate conclusion that, having filed a demand for jury trial with his counterclaim, Chesley was entitled to a jury trial on all issues 1 Chesley characterize d his action a gainst Go ldstein as a third party complaint. More appropr iately, he was simply adding Goldstein as a party to his counterclaim, as permitted by Rule 2-331(c). Third party complaints are dealt with in Rule 2-332 and are for the purpose of suing a person w ho is not alrea dy a party to the action and who is or may be liable to the defendant for all or part of a plaintiff s claim against the defendant. It does not appear that Chesley was asserting that Goldstein was liable for any part of the claim asserted against Chesley by G&B but rather was liable, along with G&B, for wrongs committed independ ently by them. Th at nuance is not impo rtant at this poin t. -12- in the action. The demand was timely, in that it was made contemporaneously with the last pleading filed by any party directed to the issue. M aryland Rule 2-331(d) p ermits a party to file a counterclaim within 30 days after the time for the filing of that party s answer, and there is no indication in this case that Chesley s counterclaim was not filed within that period.2 It is clear that a demand for jury trial filed with a cou nterclaim su bjects all issues in 2 Although the reco rd before us is not entire ly clear wheth er the coun terclaim w as, in fact, timely filed, there is no indication that it was not. Maryland Rule 2-331(d) provides that, if a countercla im is filed more than 30 d ays after the time for filing that party s answer, any other party may object to the late filing by a motio n to strik e the co untercla im. If such a motion is file d and the c ourt finds th at the coun terclaim w as, in fact, untim ely, the Rule requires the court to grant the motion unless there is a showing that the delay has not prejudiced any other party. Under Maryland Rule 2-321, an answer to an original complaint served in Maryland must be f iled within 30 days after service of the complaint. G& B s complaint was filed A ugust 4, 19 95. Ches ley s answer w as filed No vember 2 , 1995, but, because the record before us does not show when the complaint was served on Chesley, we cannot tell whether the answer was filed before the expiration of the 30 day period, and thus we cannot tell whether the counterclaim, filed December 5, 1995, was within 30 days after the answ er was due. This is all irrelev ant, howe ver, as neithe r G&B nor Gold stein ever filed a mo tion to str ike th e cou nterclaim , and so it m ust b e tak en as thou gh it was filed time ly. -13- the actio n, oth erw ise triable by a ju ry, to that mode of trial. The very text of Rule 2-325(e) so provides: When tria l by jury has been e lected by any party, the action, inclu ding all claims whether asserted by way of counterclaim, cross-claim or third-party claim, as to all parties, and as to all issues triable of right by a jury, shall be designated upon the docket as a jury trial. It is also apparent from our holding in Higgins v. Barnes, 310 Md. 532, 530 A.2d 724 (1987) and is implicit from the holding of the Co urt of Spe cial Appe als in Hawes v. Liberty Homes, supra, 100 Md. App. 222, 640 A.2d 743. Like the case before us, Higgins involved a contract dispute. Barnes sued for specific perform ance of th e contract o r, in the alternative, for damages. It was an equitable action, triable by the court withou t a jur y. Higgins answered the complaint and filed a countercla im for damages for breach of contract. That was a law action subject to jury trial, and along with the answer and counterclaim, Higgins filed a demand for a jury trial. The Circuit Court struck the demand, however, and tried the case non-jury, on the ground that it was an equitable action. We reversed and concluded that, because th e claim and countercla im involved common issues and because Higgins was entitled to a jury trial on his breach of contract claim, the demand for jury trial should h ave been granted as to the issues raised by her answer and counterclaim. Higgins v. Barnes, supra, 310 Md. at 552, 530 A.2d at 734. Hawes is to the same effect. That case also involved a contract dispute, centered on whether a financing contingency in a contract for the construction of a home was either satisfied or w aive d. Th e builder , Lib erty, c onclude d tha t the c ontingency had not been -14- satisfied and declared the contract void, whereupon the buyers (collectively Hawes) sued for specific performance, declaratory and injunctive relief, and damages. In their initial and first amended complaints, Hawes alleged breach of contract and civil conspiracy; neither they nor Liberty sought a jury trial. In a second amended complaint, Hawes added two additional counts for deceptive tra de practices and neglig ent misrepre sentation a nd in its answer to that com plaint, L iberty dem anded a jury trial o n all issu es. The court tried the specific performance and declaratory judgment counts non-jury but allowed the other counts to be tried to a jury. The jury found for Hawes and awarded damages. In reaching that verdict, the jury necessarily determined that the financing contingency had either been satisfied or waived, as that was really the only issue in dispute, other than damages. In ruling on post-trial motions, the court held that there was sufficient evidence to support the jury s verdict but th at the dam ages we re excessiv e, and, in def ault of agreeme nt to a remittitur, o rdered a ne w trial. It later denied th e request fo r specific performance on the ground that Hawes had failed to satisfy the financing contingency and that such failure terminated the contract sought to be specifically enforced. That dete rmin ation was flatly inco nsistent w ith th e ver dict o f the jury. The Court of Special Appeals affirmed those rulings, concluding that (1) the issue of the new trial was not properly before it, (2) it had no merit in any event, and (3) in ruling on the request for specific performance, the judge was not bound by the jury s determination that the contract had been breached by Liberty and was free to make a ruling inconsistent -15- with that dete rminatio n. Hawes v. Liberty Homes, Inc., No. 78, Se pt. Term, 1992, 93 Md. App. 829 (199 2) (unrepo rted opinion ). When th e case return ed to the Circuit Co urt, supposed ly for the new trial, Liberty filed a motion for summary judgment grounded on the premise that Hawes was bound by the court s determination, affirmed o n appeal, that there had been no breach. The cou rt granted that mo tion, wh ich pro duced a secon d appe al. Hawes v. Liberty Homes, supra, 100 M d. App . 222, 64 0 A.2d 743. In that second appeal, the court determined that, in light of Higgins v. Barnes, supra, 310 Md. 532, 530 A.2d 724, the earlier appellate determination that the Circuit Court judge was free to rule inconsisten tly with the jury s determination that there had been a breach of the contract was clear error and that, to give it binding effect under the law of the case doctrine would be manifestly unjust. The prior affirmance of the judge s determination that the contract ha d not been breached could not, therefore, serve to preclude the new trial that both the Circuit Cou rt and the appellate court had expected wo uld occur. More significantly to our purpose here, the Court of Special Appeals, in that second appeal, also addressed, and rejected , the argument by Liberty that, by not demand ing a jury trial within 15 days after the filing of the initial or first amended complaints, Hawes had waived their right to such a trial. Liberty s own demand for jury trial, it averred , went only to the deceptive trade practice count added in the second amended complaint, and that, as that count was no longer in the case, Hawes had no right to a jury trial at all. Relying, as we do, on Maryland Rule 2-325(e), the court concluded that, when the demand for jury trial was -16- made in response to the second amended complaint, all issues triable of right before a jury were subjected to that mode of trial . . . . Hawes, supra, 100 Md. App. at 235, 640 A.2d at 749. Moreover, by virtue of Rule 2-325(f), even though the demand had been made by Liberty, it could not be withdrawn without the consent of Hawes and Hawe s had a righ t to its benefit. 3 With that principle in place, the response to G&B s arguments becomes rather simple. G&B s first argument has two disparate parts. It looks at its complaint for breach of contract 3 In that regard, the court quoted with approval from the treatise on the Maryland Rules, P AUL N IEMEYER AND L INDA S CHUETT, M ARYLAND R ULES C OMMENTARY, 160-61: Once a jury trial is properly elected by any party, it becomes the right of any party thereaf ter to hav e the ca se tried b efore a jury. All parties may rely on the properly filed demand of any other party, and need not file an additional dema nd on th eir own behalf . A demand properly made by any party on any claim in the action has the effect of submitting to the jury all issues triable of right by a jury. Section (e) of this rule does not permit submitting some legal claims to the jury and reserving others for trial b y the cou rt. The rule evidences an intent to preserve and favor the jury tria l even if , to prese rve it, a tec hnical e xpans ion mig ht occu r. -17- and the counterclaim, sounding entirely in tort, as raising completely separate issues and thus contends that the cou nterclaim was not directed to th e issue raised in its compla int. Acc ordingly, the demand for jury trial attached to the countercla im was not filed within 15 days after the last pleading directed to the issue raised in the G&B complaint and, for that reason, was untimely. In making that argument, G&B conveniently ignores the defense asserted to its claim, which raised the same issues that were raised in the counterclaim. As the counterclaim was a pleading, and as it was directed to the same issue that was raised with respect to the initial complaint, the demand for jury trial filed contemporaneously with that counterclaim was, indeed, timely. It was the last pleading directed to the issue. As the second part of its first argument, G&B urges that, apart from any notion of claim or issue preclusion, summ ary judgment was pro perly granted because there were no material facts in dispute and it was entitled to judgment as a matter of law on the merits. The reason no material facts were in dispute is because the judge had already decide d those fac ts in his non-jury trial of the G&B action. The rein, of cou rse, lies the fallac y in the argum ent. The judge had no right to decide those facts; they were, indeed, in dispute, and that dispute was for a jury to resolve. The Circuit Court granted the summary judgment, on remand, because it concluded that Chesley s co unterclaim w as barred b y claim and issue preclusion. That, in turn, was based on the fact that the court had already adjudicated the facts underlying the counterclaim. The Court of Special App eals wen t to some ef fort in addre ssing that qu estion, ultimate ly -18- concluding that, because G& B s complaint and Chesley s counterclaim were all part of the same single action, neither doctrine applied. There is a much simpler, and less problematic, answer the same one that resolves a ll of the issues . The basis f or the argum ent of both claim and issue preclusion is the judgment entered by the court on G&B s claim for attorneys fees. But as both the Court of Special A ppeals and we hav e recogniz ed, that claim should no t have bee n resolved by the court. A s we hav e conclud ed that rigid ad herence to the law of the case doctrine was inappropriate and that affirmance of the judgment for G&B could not stand, the entire basis for both claim and issue preclusion evaporates. This brings us to the final argument pos ited by G&B that the Court of Special Appeals erred in not a pplying the law of the case doctrine w ith respect to its prior affirmance of the judgment entered in the G&B action. We find no error. The court applied the principles it had announced in Hawes, which accurately describe the nature and limitations of the law of the case doctrine. The decision of the first panel not to address Chesley s argumen t that he wa s entitled to a jury trial on the G&B action and to remand only the counterclaim for new trial was not only wrong but inconsistent with its own conclusion that, once the demand for jury trial was made in Chesley s counterclaim, he was entitled to a jury trial on all issues in the case, as all were otherwise triable to a jury. For the second panel to ignore that error and permit it, under the law of the case doctrine, to preclude Chesley from having the jury trial to which he was en titled, would, indeed, have been manifestly un just. -19- JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH CO STS. -20-
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