concurring and dissenting:
Although I agree with the majority’s view that the judgments as to the negligence-based claims should be affirmed, I respectfully dissent from that portion of the majority opinion that vacates the judgment regarding the breach of contract claim. My reasoning in this regard does not exclude uniformly the potential for a viable breach of contract claim under the same or similar circumstances, only that the available record in this case, in my view, does not support the majority’s outcome.
At the close of all of the evidence, appellee Dingle renewed his motion for judgment as to appellant’s breach of contract claim. The thrust of the motion was that the alleged breach *86of contract count was subsumed in the counts styled as lack of informed consent and negligence in the performance of the surgical procedure. According to the trial transcript, Dr. Dingle’s counsel argued in support that:
[I]t is a breach of contract arising out of a professional relationship, and therefore, negligent [sic] or malpractice case, and that is all she has here. If anything, it is a malpractice case because the injuries growing [therefrom] would be the same. She does not have any special damages because of the alleged breach of contract. There is no indication that there was anything special that happened to her or didn’t happen or otherwise simply because a resident [physician] did the part of the procedure that she alleges she did not want the resident to do. And therefore, it is simply at its foundation, a negligence ease. The breach of contract should be dismissed.
In direct response to this motion and argument, appellant stated:
As I indicated to the court — [ ] as long as it’s made clear to the jury that this contractual issue is part of the cause— and or the negligence — then fíne, I have no problem with you granting the motion for dismissal. So, my only concern is that all the issues of this case — what form it takes, I don’t really care. So, as long as that can be considered by the jury as part of negligence by — then, that’s fíne with me. One of my concerns is — but, if Your Honor feels this is a close call, as long as my issues can be presented to the jury in one form or another, I have no problem granting the motion, although — and, as long as all issues are before the jury.
Based on these arguments, the court granted appellee Dingle’s motion for judgment. After the court instructed the jury regarding the negligence counts, appellant did not except to any of the instructions as given on the basis that any instruction limited her closing arguments as to liability or damages in a way that conflicted with her response to the motion for judgment on the contract claim. Moreover, appellant took no *87exception to any instruction requested, but not given, related to this point.
My review of the joint record extract provided to us by the parties regarding appellant’s closing argument, both initially and on rebuttal, reveals no objection by appellees (and therefore no additional limitation imposed by the court) or any expression by appellant that she was inhibited or limited in her arguments in a way inconsistent with her articulated position on the motion for judgment. To the contrary, she integrated in her remarks at numerous places allusions to the alleged agreement that only Dr. Dingle would perform the surgery on her. For example, during her initial closing, she stated variously:
There are two separate aspects to this case. Lack of informed consent, the Judge has told you, the consent to have someone else other than Dr. Dingle be in the position of the operating surgeon.
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Dr. Dingle was being paid $2,800 to perform that surgery, and she [appellant] wanted him to be the operating surgeon. The lack of informed consent issue does apply as to Dr. Dingle because he is the one who was required to get the informed consent.
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Dr. Dingle, however, is accountable for that. There was an agreement, an expressed agreement as to who would be the operating surgeon.
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To find in favor of the doctors and the hospital, you have to find that my client, Debra Belin, is lying regarding her request made to Dr. Dingle ...
In rebuttal argument, appellant’s counsel continued, for example, by saying:
*88My client wanted the person who she thought knew how to do a laparoscopic cholecystectomy to do the cutting and clipping.
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But if you had your druthers, whose hand would you rather have on that sharp instrument? Someone who you are paying to do the job? That is why I mentioned the money because $2,800 is something you are paying for a heck of a lot of expertise to be on that fine cutting and the clipping, to make those fine determinations ...
Like my colleagues, I attempted to listen to the audio of the videotape of the pertinent portions of the trial proceedings. Although snippets of phrases were identifiable (and those were consistent with the portions of the transcript reproduced in this dissent), static was the predominant aural message conveyed on the tape. Had appellant wished to supplement or correct the record, she obviously knew how to do so as she had moved us successfully to accomplish that objective previously with regard to an unrelated shortcoming of another part of the record.1 While I have no reason to doubt the majority opinion’s description of counsel as able, experienced and ethical, I am unable, as an article of appellate faith, to declare that something else is present that is not demonstrably there.
Based on the state of this record, as presented in the joint record extract, I cannot but conclude that appellant failed to *89preserve for appellate review (see, e.g., Osztreicher v. Juanteguy, 838 Md. 528, 534, 659 A.2d 1278 (1995)) the argument with which the majority finds favor and upon which rock it constructs its opinion vacating the judgment as to the breach of contract claim. I would affirm the judgments.
. In a Motion For Correction of Record, filed on 22 October 1998, appellant asked that we accept the following stipulation of counsel in supplementation of an inadequate "corrected transcript” of the trial proceedings of 8 December 1997:
[The trial judge] dismissed the Plaintiff’s contract count at the close of all of the evidence on the grounds that it was subsumed under the negligent count. It was also stipulated that the Plaintiff's counsel excepted to the Court not instructing the jury as requested by the Plaintiff in Plaintiff’s Instruction No. 11 [regarding expert opinion testimony], that the Plaintiff need not prove the specific mechanism or act of negligence that occurred in the operating room and that an expert may conclude from the results of the operation that negligence occurred causing injury.
We granted the motion. No other such motion, proposing to correct the portions of the record addressed in this dissent, is to be found.