in fact, have reached an accord.24
To this
end, the trial court must make a prelimi- nary assessment whether the parties have, indeed, mutually assented.25
This assess-
ment should be on the record. Second, the trial court may decline to accept a pro- posed stipulation if it finds that the facts of the stipulation are untrue, or if one of
24
C & K Lord, Inc. v. Carter, 74 Md. App. 68, 536 A.2d 699 (1988); Peddicord v. Franklin, 270 Md. 164, 310 A.2d 561 (1973).
25
In State v. Broberg, 342 Md. 544, 677 A. 2d 602 (1996), discussed infra, the Court of Appeals cautioned of the “need to state the precise terms of the stipulation on the record,” and to ensure that mutual assent is demonstrated on the record. See also Sam Galloway Ford, Inc. v. Universal Underwrit- ers Ins. Co., 793 F. Supp. 1079 (M.D. Fla. 1992)(federal district court judge has an in- dependent duty to determine the accuracy of the stipulation); Fletcher v. Eagle River Memorial Hospital, Inc., 456 N.W.2d 788 (Wis. 1990)(there must be a “searching in- quiry before [the court] reaches the conclu- sion that a party has voluntarily foregone the opportunity to prove or to contest a critical factual element of the lawsuit”). Ordinary principles of contract construction are ap- plied to determine the parties’ intentions with respect to the stipulation. Ragin, su- pra, 133 Md. App. At 135, 754 A.2d at 514. Thus, when the language of a written agree- ment is clear and unambiguous, it controls, even if the expression is not congruent with the parties’ actual intent at the time of the document’s creation; the “true test of what is meant is not what the parties to the con- tract intended it to mean, but what a rea- sonable person in the position of the parties would have thought it meant.” Id. The ques- tion whether a contract is ambiguous is de- termined by the court as a question of law. Id. See also Highway Administration v. David A. Bramble, Inc., 351 Md. 226, 239, 717 A.2d 943 (1998).
the parties can show that the stipulation should be set aside because of collusion, fraud, mutual mistake or other grounds that would justify a setting aside of the contract.26
Third, there may be a legiti-
mate disagreement as to the scope of the stipulation even if the parties have mutu- ally assented to the factual stipulation.27 Again, this requires the trial court’s on- the-record assessment as to the parties’ intentions. 28
Fourth, the stipulation of
fact may really be a conclusion of law which may not be reached by the process of judicial admission.29
Such “stipula-
tions” are not binding on the court or trier of fact.
Assuming mutual assent to a factual stipulation, which is relevant to an issue in the case, does the trial court have any discretion to permit the party benefiting from the stipulation to offer extrinsic evi- dence of the stipulated fact? As the United
26
C & K Lord Carter, 74 Md. App. 68, 536 A.2d 699 (1988). With respect to withdraw- ing admissions made under Fed. R. Civ. Pro. 36, see Perez v. Miami-Dade County, 297 F.3d 1255 (11th Cir. 2002). Under Maryland Rule 2-424 (d) the trial court has the discre- tion to permit a party who has been deemed to have made a conclusive admission to with- draw or amend the admission “if the court finds that it would assist the presentation of the merits of the action and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the ac- tion or defense on the merits.” As under the federal rule, an admission under Rule 2-424 is “for the purpose of the pending action only and is not an admission for any other pur- pose, nor may it be used against that party in any other proceeding.”
27
In Ragin v. Porter Hayden Co., 133 Md. App. 116, 138, 754 A.2d 503, 515, cert. denied, 361 Md. 232, 760 A.2d 1107 (2000), the
States District Court recognized in Briggs, not all stipulations are equal and not all evidence which tends to prove the same fact is of identical force. To date, Mary- land has not adopted an absolute rule barring other proof of the stipulated fact. In State v. Broberg,30
the Court of Ap-
peals discussed the trial court’s discretion to allow extrinsic proof of a fact to which
(Continued on page 12)
scope of the parties’ stipulation was at issue. Asbestos manufacturers who were parties to two mass consolidations of personal injury cases had stipulated to waiver of proof of negligence and strict liability in exchange for which the plaintiffs represented by the undersigning counsel waived and dismissed their claims for punitive damages, breach of warranty, fraud, and other causes of action. In Ragin, defendants contended that the plaintiff was bound by this stipulation. The Court of Special Appeals, applying principles of contract construction, determined that the stipulation unambiguously applied only to consolidated cases bearing a different case number than the actions with which the present plaintiff’s case had been consolidated. It vacated a judgment entered by the court on a verdict of liability. Id.
28
See also Fletcher, supra, 456 N.W. 2d at 792- 793 (judicial admissions must be clear, de- liberate and unequivocal, and germane to the issue for which its admission is sought; they should not be applied to one issue when it is unclear whether party making admission intended to address another issue).
29
See, e.g, Fletcher, supra, 456 N.W.2d at 795- 797 (trial court abused its discretion in con- cluding that the defendant hospital had made a binding judicial admission that its conduct was “under color of state law” or “govern- ment action” for purposes of claimed civil rights violations as such determinations were conclusions of law, not fact, which could not be reached by process of judicial admissions). 30342 Md. 544, 677 A.2d 602 (1996).
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Summer 2003 Trial Reporter 11
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