Friday, March 30, 2007

McClintick v. Leavitt (Maryland U.S.D.C.) (Not approved for publication)

Signed March 26, 2007. Opinion and Order by Judge Richard D. Bennett.

Memorandum and Opinion granting summary judgment in part.

Held: 1) A federal employee can seek relief for employment discrimination only by asserting causes of action under Title VII.

2) Not being nominated for a discretionary merit-based award may constitute an adverse employment action actionable under Title VII if the plaintiff can show that such a determination represents a decision on permanent pay status.

Facts: Plaintiff, white male, worked for U.S. Dept. Health and Human Services. His direct supervisor was an African-American female. In 2004, the Plaintiff was not nominated for a so-called Quality Step Increase ("QSI"). QSI's are awards given for sustained performance of high quality that significantly exceeds an acceptable level of competence. The Plaintiff had been nominated to receive a QSI for 2003, and had received other merit-based awards, when he was previously supervised by a different supervisor, who was Caucasian.

The Plaintiff sued, alleging that he did not receive a QSI for 2004 because of racial discrimination and retaliation for filing an earlier discrimination charge. The Plaintiff alleged four causes of action: Count I - race discrimination (Title VII), Count II - race discrimination (§1981); Count III - retaliation for participating in protected activity (Title VII); Count IV - retaliation in violation of §1981.

The Defendant moved to dismiss for failure to state a claim or, in the alternative, for summary judgment. The Court dismissed Counts II and IV because they were based upon §1981, a cause of action not available to Plaintiff, a federal employee. The Court denied the motion as to Counts I and III, finding that the Plaintiff had alleged sufficient facts to state a cause of action.

A full copy of the opinion is available in PDF format.

Argiropoulos v. Kopp, et al. (Maryland U.S.D.C.)(Not approved for publication)

Decided March 26, 2007—opinion by Judge Catherine Blake

Plaintiff John Argiropoulos claimed damages on his own behalf, and on behalf of Club 10, Inc. in an action against defendants whom Argiropoulos claimed breached contracts, made fraudulent representations, breached the duty of loyalty owed to Club 10's shareholders, and were grossly negligent in the management of the club. The Court considered and granted a motion by Defendants to dismiss multiple counts of the complaint. Counts Seven through Thirteen alleged that the defendants engaged in waste, illegitimately took cash from the corporation, violated tax laws, permitted illegal activities on Club 10 premises, discriminated against customers, and generally mismanaged the corporation. The Court found that the claims alleged injuries to the corporation and would be typically appropriately brought under a derivative action. Because a suit to recover damages to a corporation can only be brought by corporation itself through a derivative action, and not by individual shareholders, the Court dismissed those counts.

In counts Fourteen through Twenty, Argiropoulos made a series of claims on behalf of the corporation in the form of a shareholder derivative action. The defendants argued that Argiropoulos did not fairly and adequately represent the interests of the shareholders or members similarly situated as required to maintain such a derivative action. Both the individual claims by Argiropoulos and his derivative claims sought significant money damages and hence, the Court reasoned, Argiropoulos and the derivative class were competing for the same pool of money, creating a conflict. The Court dismissed counts Fourteen through Twenty on the ground that Argiropoulos was not an adequate representative of the derivative class.

The opinion and order are available in PDF.

MALDONADO v. MILLSTONE ENTERPRISES, INC., et al. (Maryland U.S.D.C.)(Not approved for publication)

Decided February 23, 2007—Opinion by Judge William Connelly

Plaintiff Maldonado alleged that Defendants caused injuries to him through the negligent failure to provide safe maintenance of a material hoist, failure to use reasonable care to discover and correct unsafe conditions on the material hoist, and failure to adequately warn of a hazardous and dangerous condition which Defendants knew or should have known existed. In considering defense motions for summary judgment, the Court struck Plaintiff’s expert report because it lacked an affidavit verifying its authenticity. The Court also found inadmissible an unsworn memorandum from an NSA safety specialist.

Because this case concerned the malfunction of complex machinery, the Court determined that the Plaintiff was precluded from relying on the doctrine of res ipsa locquitur and without expert testimony the Plaintiff was unable to establish a prima facie case. The Court added that even if the expert's opinion letter was admissible, it would not create a genuine issue of material fact because it was based on the inadmissible NSA memorandum and the expert himself had never examined the material hoist. Therefore the Court entered an order granting summary judgment in favor of the Defendants.

The opinion and order are available in PDF.

Livingston v. Naylor (Ct. of Special Appeals)

Filed March 30, 2007 Opinion by Judge Timothy Meredith

Livingston appealed from an order denying his motion to dismiss a writ of garnishment of his wages. Naylor had obtained a money judgment against Livingston in North Carolina and then enrolled that judgment in Maryland pursuant to the Uniform Enforcement of Foreign Judgments Act. As a resident of North Carolina, Livingston argued that the Maryland court did not have an adequate basis to exercise personal jurisdiction over him. The Court of Special Appeals held that there were sufficient contacts for jurisdiction over Livingston and Maryland courts could garnish Livingston’s property in Maryland, including compensation he earned from Marriott for services Livingston rendered in Maryland. Due process, however, would not permit garnishment in Maryland of compensation Livingston earned for services rendered wholly outside of Maryland when the garnishment order was based solely on the fact that Livingston’s employer does business in Maryland.

State v. Mason (Ct of Special Appeals)

Filed March 27, 2007. Opinion by Judge Charles E. Moylan, Jr. (retired, specially assigned).

On appeal from the trial court's grant of the motion of the defendant ("Mason") to suppress the physical evidence of possession of cocaine with the intent to distribute, the Court AFFIRMED the decision below.

This case arose from a narcotics investigation that resorted to a Whren -style traffic stop ruse to detain the suspect until drug-sniffing dogs could be brought to the scene of the traffic stop, and "alert" to the drugs later found in the vehicle. At trial, the judge granted Mason's motion to suppress the drugs on the basis of an unreasonable detention, which Mason had estimated at 25 minutes, and the State at 10 minutes. The State appealed the decision.

Preliminarily, the Court noted that, under Section 12-302(c) in the Code, the trial court ruling would become final, unless the matter were appealed and the appeals court rendered a decision within 120 days, though commenting that this limitation would be moot unless the appellate decision were to overturn the decision below.

The Court also noted that neither the traffic stop, nor the right to search the vehicle after the drug dog "alerted" to the presence of drugs were at issue, nor relevant to the questions presented. Rather, the sole issue was to assess whether the period between the initial stop and the K-9 alert was an unreasonable detention under the Fourth Amendment. Since the State had appealed the adverse ruling below, Mason's version of the length, 25 minutes, must be presumed.

The Court then turned to the reasonableness of that length of detention, rejecting the mere length of time as the critical factor in favor of the totality of the circumstances, a factual determination. Since the decision of the trial judge, as the trier of fact, is to be overturned only if clearly erroneous, the Court had little trouble, after reviewing the testimony below and the leading cases on the subject, in finding sufficient evidence to support the ruling below, noting that had the ruling gone the other way, there was also ample evidence to support that ruling as well, had it been made below by the trier of fact.

The Court also rejected the State's alternative Fourth Amendment theory, an effort to "unpoison the fruit of the poisonous tree" by advancing an alternative basis for the stop and the detention, namely, an anonymous phone call that had alerted the police that Mason would be transporting drugs in the van later subjected to the Whren stop. While expressing considerable regret that the State had not chosen to do so, the Court found that the State had not preserved the issue, since at no point below did the State advance that rationale as a justification for the stop and detention. This was in contrast to the situation in the Court of Appeals' recent Cox decision, where the issue had been advanced below.

The opinion is available in PDF format.

Thursday, March 29, 2007

In re Michelle D. Tubman (U.S. Bankruptcy Ct., MD)

Filed March 26, 2007—Opinion by Judge Robert A. Gordon

Debtor, who had a Chapter 13 case dismissed within the preceding 1-year period, moved to extend the automatic stay in her current Chapter 13 case, after the expiration of the 30-day post-petition period. After an initial hearing, the Debtor filed a motion for declaratory judgment as to the extent of the termination of the stay under Section 362(c)(3)(A) and sought imposition of a stay under Section 105(a). A secured creditor, holder of a deed of trust on Debtor’s residence, objected to both motions, arguing that the automatic stay under Section 362(a) had expired in toto by operation of law. The Bankruptcy Court held that: (1) the automatic stay terminated by operation of law on the 30th day post-petition under Section 362(c)(3)(A), (2) an untimely filed motion cannot serve to reimpose the automatic stay under Section 362(c)(3)(B), (3) the termination of the stay under Section 362(c)(3)(A) was limited in scope and the stay, while terminating as to the Debtor, did not terminate as to property of the estate, and (4) the alternative relief requested by Debtor under Section 105(a) appeared unnecessary in light of the Court’s ruling.

The devision is available in PDF.

Liddy v. Lamone (Ct. of Appeals)

The second of two cases involving the eligibility requirements for a candidate for Maryland Attorney General. The first case, Abrams v. Lamone, discussed in this post, considered a petition challenging the eligibility of Thomas E. Perez to hold the office. The Court found that Perez had not been a member of the Maryland Bar for the requisite period and thus was not eligible. This case challenged the eligibility of Doug Gansler, based on the argument that Gansler had not practiced law in Maryland for at least ten years. The Court did not reach that question. Addressing a threshold issue, the Court determined that the appellant had waited too long to bring the action. The challenge was filed more than three months after a similar action, almost 2 months after the Court’s Order in that case, and just 18 days before the general election. Hence, the Court held it was barred by laches.

The opinion is available in PDF.

Jones v. State (Ct. of Special Appeals)

Filed March 29, 2007—Opinion by Judge Sharer

Tyshawn Jones was convicted by a Washington County jury of first-degree felony murder, depraved heart second-degree murder, conspiracy to commit armed robbery, armed robbery, and numerous other related and lesser included offenses. He appealed based on alleged error in allowing his statement into evidence; sufficiency of the evidence for the armed robbery, conspiracy to commit armed robbery, and first-degree felony murder convictions; and error in not polling the jury or hearkening the verdict before the jurors were discharged.

The court reversed the first-degree felony murder conviction, holding that the State did not establish a casual connection between the robbery of Victim A and the later shooting of Victim B. The Court remanded for a new trial on the other counts because the verdicts were not perfected by either a jury poll or the verdict being hearkened. The court noted that failure to poll the jury, absent a request, is not error as long as the verdict is hearkened. The Court ruled that a poll of the jury is a fully commensurable substitute for hearkening, which is of ancient origin, but in the absence of a request for a poll, hearkening is required. The Court nixed a recall and swearing of the same jurors weeks later as ineffective to cure the defect since once jurors are discharged and dispersed, they no longer constitute a jury.

The opinion is available in PDF.

Tuesday, March 27, 2007

AGC v. Wohltman (Ct. of Appeals)

Ordered March 22nd, 2007 -- Order of Judge Irma Raker

Upon a Joint Petition for Order Placing Respondent on Inactive Status, the Court of Appeals placed Respondent on inactive status indefinitely with the condition precedent to Maryland reinstatement that he must first be reinstated in the Commonwealth of Virginia. No additional factual or legal details were provided with the Order.

The one-page Order is available here in PDF format.

Monday, March 26, 2007

Abrams v. Lamone (Ct. of Appeals)

Filed March 26, 2007. Plurality Opinion by Chief Judge Robert M. Bell, joined by Judge Alan M. Wilner (now retired, specially assigned) and Judge Dale R. Cathell. Concurring opinion by Judge John C. Eldridge (retired, specially assigned), joined by Judge Irma S. Raker and, as to Parts I and II only, by Judge Glenn T. Harrell, Jr. and Judge Clayton Greene, Jr. Concurring opinion by Judge Alan M. Wilner. Concurring opinion by Judge Glenn T. Harrell, Jr. and Judge Clayton Greene, Jr.

From the official headnote:
The constitutional requirements, as prescribed by Article V, § 4 of the Maryland Constitution, for the office of the Attorney General of Maryland mandate that a candidate for that office be a member of the Maryland Bar for at least ten years and be a practitioner of law in Maryland for an identical requisite period. Where a candidate was a member of the Maryland Bar for only five years, and practiced, albeit for a period of more than ten years, primarily outside of the State, he was ineligible to run for the office of the Attorney General in the primary election.
In a companion case to Liddy v. Lamone (discussed in this post), the Court of Appeals, in a rare plurality decision with three separate concurring opinions, a total of 104 pages in the slip opinions, unanimously REVERSED the decision of the Prince George's County Circuit Court that had found a candidate for the office of Attorney General ("Perez") qualified, on the grounds that he had not "practiced Law in this State for at least ten years" as prescribed by the eligibility requirements of Article V, Section 4 of the Maryland Constitution.

Before declaring his candidacy for the office of the Attorney General of Maryland ("AG"), Perez had submitted a request for an opinion of the AG as to the sufficiency of his credentials. In sum, Perez had been a member of the Maryland Bar for only five years, beginning when he joined the faculty of the University of Maryland School of Law, but before then he had been an attorney representing the federal government in various capacities since 1989, including cases involving the federal government's interests in Maryland courts. The AG issued an opinion that concluded that Perez was in fact qualified to hold the office of AG. Based upon that opinion, Perez announced his candidacy for AG, running as a Democrat. A Republican candidate for that office ("Abrams") challenged Perez's qualifications and sought declaratory and injunctive relief against the State Administrator of Elections and the State board of Elections ("Lamone") to keep him off the ballot.

While rejecting Lamone's motion to dismiss on the grounds of laches, the court below granted Perez's motion for summary judgment. An appeal was noted, and the Court of Appeals granted certiorari. Oral argument was held on August 25, 2006, and that day the Court issued its order reversing the judgment below. The plurality and concurring opinions set forth the reasons for that order.

The Court reviewed the history of the office of the AG, and of the constitutional provision setting forth the qualifications for that office, as well as the parties' arguments on the issue. Looking at the plain language of the the provision, the Court noted that it had previously refused to adopt a precise definition of the term "practice law", but now held that, as used in Article V, Section 4, the term means practiced law in Maryland, as a member of the Maryland Bar, finding that the practice of law in Maryland and Maryland Bar admission are "coterminous". The Court found support for its position in the legislative history of the provision, as well as the responsibilities to be acquitted by the AG, and no reason to interpret the provisions more liberally than the plain meaning would support. The Court also declined to equate Perez's admission to federal bar and authorization to appear in Maryland courts with respect to the interests of the federal government as equivalent to "practicing law" in Maryland. The Court then went on to articulate a two-part test for eligibility under Article V, Section 4:
that the person (1) has been admitted by this Court to practice law in Maryland for [ten years], and (2) pursuant to that admission, has, in fact, practiced here for that period.
The Court cautioned that it was not creating a Federal-State dicotomy, since Maryland practice include participation in federal courts and federal courts address issues of Maryland law, nor must the person actually appear in any court in order to "practice law" in Maryland. The Court found that Perez had neither been admitted to the Maryland Bar nor had he practiced law in Maryland as required by the Maryland Constitution, and consequently held him to have been ineligible for the office of AG.

In a concurring opinion joined by Judge Raker, and in part by two other judges, Judge Eldridge agreed with the result, and in particular with the requirement that the candidate must have been admitted to the Maryland Bar for ten years to be eligible, but disagreed with the need for a second prong of the plurality's test for eligibility, since the first prong alone is dispositive, and to reach the second prong requires the Court to address an issue not presented by the litigants. In a portion of the concurring opinion not joined by the two other judges, Judge Eldridge found no support in the language or legislative history for imposition of the second prong, suggesting that, "if ever adopted by the majority of this Court," the second prong of the test set forth in the plurality opinion might exclude numerous Maryland lawyers who would otherwise qualify, on the basis of their having practiced in other jurisdictions or primarily under federal law, and would serve as the basis for endless challenges to qualifications in the future.

In a concurring opinion, Judge Wilner took exception to Judge Eldridge's "peculiar conclusions" that the Constitutional provision only requires admission to the Maryland Bar, and did not require any actual practice of law. In a final concurring opinion, Judges Harrell and Greene agreed with the portion of Judge Eldridge's opinion that indicated it was unnecessary to go beyond Perez's failure to have been admitted to the Maryland Bar for the required ten years, but unlike Judge Eldridge they were unwilling to reach the merits of the second prong of the plurality opinion's two-part test.

The plurality and concurring opinions are available in PDF format.

Sunday, March 25, 2007

Weaver v. Schartiger (Maryland U.S.D.C.) (Not approved for publication)

Signed March 23, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication)

Upon consideration, the motion for partial summary judgment of the defendant ("Schartiger") is GRANTED except as to any claim for compensation due under the terms of the Agent Agreement, and the motion to compel of the plaintiff ("Weaver") is DENIED.

This case arose out of the termination of an Agency Agreement (the "Agreement") between Schartiger, owner of an insurance company, and Weaver, a former agent of the company. The Agreement was entered into to define the relationship of Weaver as an independent contractor working with, but not for, Schartiger, and set forth formulas for compensation, both during and after the term of the Agreement. The Agreement was to be "continuous", and contemplated annual review of the Agreement by the parties. When negotiations initiated by Schartiger to end the Agreement and move Weaver into an employee status were resisted by Weaver, Schartiger unilaterally terminated the Agreement, and Weaver filed suit.

The judge found that, under Maryland law, an employment contract without a stated duration is at will, terminable by either party, and thus Weaver's request for a declaratory judgment that the Agreement was not terminable must fail.

Likewise, Weaver's claim that she possessed an ownership interest in the business must fail, in light of explicit language in the agreement that Weaver was to be an independent contractor and that all policies and business produced were the exclusive property of Schartiger. Any implication that a provision in the Agreement that Weaver might receive 25% of the sale price of the company indicated an ownership interest was negated by the right of first refusal provision in the Agreement, which would require Weaver to pay the same price as a third-party bidder, indicating no such ownership interest.

The judge concluded that, except for any compensation due to Weaver under the Agreement, for which calculation sufficient information has already been provided, negating the need for further discovery, all her claims were denied.

The Memorandum and Order are available in PDF format.

Thursday, March 22, 2007

Haley v. State (Ct. of Appeals)

Filed March 21, 2007--Order by Judge Irma S. Raker, joined in all but Part III by Chief Judge Robert M. Bell.

Haley was convicted of robbery, second-degree assault, theft of property valued at $500 or more, unauthorized use of a motor vehicle, and theft of a motor vehicle.

The victim in this case ("Singer") testified at trial that, based on his belief that Haley was a woman in distress, stopped his car in the late night/early morning to help her. Once inside the car Haley propositioned him for sex, at which point Singer demanded Haley leave his car. Haley then threatened Singer with a knife demanding his money. Singer testified that he then ran from the car on noticing an approaching cab, and Haley drove off with Singer's car. Singer then called the police and, later that morning, identified Haley in a line up. Prior to that incident, Singer testified he had never met Haley.

Haley testified that he and Singer had been having a homosexual relationship off and on for over a year or so. On that particular evening, Haley began teasing Singer that he was going to tell Singer's son about their relationship. The conversation became serious because Haley stated he was tired of hiding in Singer's closet, literally, whenever his son and neighbors came by, and an argument ensued. Singer then stated he was going to catch a cab and ordered Haley to stop the car on noticing the approaching cab.

In an effort to demonstrate the ongoing relationship with Singer, Haley, during trial, described the outside of Singer's residence, the area surrounding the residence, items inside the residence, and Singer's dog. Over objection, the State was permitted to question Haley about when he relayed the information about his familiarity with Singer's house and dog to his defense counsel.

In an unreported opinion, the intermediate appellate court affirmed the conviction holding that Haley's information was intended to be disclosed to third parties and, consequently, the attorney-client privilege was not breached. It seems that, prior to Haley discussing his defense with his counsel, he provided a report to "some lady." It is this testimony that this Court reviews for breach of attorney-client privilege.

This Court granted a writ of certiorari to consider two questions:

1) Did the Court of Special Appeals err in holding that the attorney-client privilege does not extend to information provided by a criminal defendant to his defense attorney that would later form the basis of his defense at trial because such information was "intended to be disclosed to a third party?"

2) Where the only description of the suspect involved in a carjacking is a "black female with long hair" wearing a mult-colored shirt," did the officer in this case have probable cause to arrest the petitioner, a black male with short hair, several hours later based primarily on the fact that he was wearing the same shirt?

In reviewing the grant or denial of a motion to suppress evidence under the 4th Amendment, an appellate court considers only the information contained in the record of the suppression hearing and not the record developed at trial. The attorney-client privilege is well established and understood to be a rule of evidence that prevents the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice. In its analysis of privilege, the Court set out the elements as follows: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client (6) are at his insistence permanently protected (7) from disclosure by himself or by his legal adviser, (8) except that the protection may be waived. There is no legal distinction between the disclosure of [the contents] of a communication as distinguished from the fact that no such communication was ever made between the client and the attorney. The fact that a defendant testifies in his own behalf does not waive the privilege. Consequently, this Court held that the timing and the substance of Haley's communications to his defense counsel was, in fact, privileged communication.

The second question goes to whether the officer had probable cause to arrest Haley given the description of the suspect as a "black female with long hair" wearing a "multi-colored shirt." In considering whether probable cause existed, the Court considers the totality of the circumstances, in light of the facts found to be credible by the trial judge, factoring in the variables of the information leading to police action, the environment, the police purpose, and the suspect's conduct. A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. Even though Haley did not match the description, per se, the Court was pursuaded by the fact that the arresting officer, after getting confirmation that the car he was following was indeed the subject of the carjacking, personally observed Haley during the commission of the crime and then again when he executed the arrest. Thus, the particularity of the description of the offender was based on first-person observation. Consequently, this Court held there were sufficient facts on the record to justify reasonable grounds for belief by the officer that Haley was associated with the carjacking.

The full opinion is available in PDF.

Mercantile-Safe Deposit & Trust Company v. Chicago Title Insurance Company (Maryland U.S.D.C.) (Not approved for publication)

Signed March 20, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication)

On consideration of cross motions for summary judgment, the motion of the plaintiff ("Mercantile") is GRANTED, the motion of the defendant ("Chicago Title") is DENIED, and JUDGMENT ENTERED in favor of Mercantile.

This case arose out of the refusal by Chicago Title to pay claims made by the insured, Mercantile, under two lenders title insurance policies it had issued to cover two indemnity deed of trust ("IDOTs") granted to secure guarantees of two loans made by Mercantile to two family businesses. The guarantor and grantor of the IDOTs was the trustee named in two unrecorded qualified personal residence trusts ("QPRTs") established by the original owners of the property. The deed which transferred title to the trustee had recited in part that no party dealing with the trustee with regard to the property need inquire as to the trustee's authority or to the satisfaction of the terms of the trust documents. Neither Mercantile nor Chicago Title asked for or reviewed the trust documents.

When the loans went bad, certain of the beneficiaries under the QPRTs filed suit to dispute the validity of the IDOTs, claiming the trustee had engaged in improper self-dealing in violation of his responsibilities to the beneficiaries. Pursuant to a notice of claim from Mercantile, Chicago Title undertook to defend in the suit, without reservation of right to disclaim coverage. The trial court declared that the trustee had been without power to grant the IDOTs, since the loans were unconnected to the trusts and granting the IDOTs was inconsistent with the beneficiaries' interests. Mercantile lost on appeal, and was thus unable to foreclose on the IDOTs.

Upon Mercantile's filing of a proof of claim under the title policies with Chicago Title, counsel for Chicago Title requested access to Mercantile's records as part of its "investigation" of Mercantile's claim. Mercantile subsequently filed this suit, alleging breach of contract and asking declaratory relief.

After reviewing the standards for summary judgment, the judge noted that in Maryland, insurance policy language is not construed most strongly against the insurance company as drafter, but rather using customary, ordinary and accepted meanings of terms used. Chicago Title claimed that the claimed amounts were not covered, since the IDOTs were given to secure payments due under the guaranties, and that the guaranties were invalid for the same reason the IDOTs had been declared invalid. Even though the judge conceded that the IDOTs were clear that they secured the guaranties, she found they also "indirectly secured the underlying loan obligations," citing the common Maryland practice of using IDOTs to avoid imposition of recordation tax on the loan amount. The judge opined that "[i]nterpreting the language of the IDOT as though it secured only the unconditional guaranty agreements and not the underlying promissory notes would be to rely on a technical differentiation that ignores Maryland practice and, more importantly, contradicts the plain purpose of the IDOTs as well as the parties’ understanding of the title insurance contracts," and found that the policies secured the underlying loan obligations and that Mercantile had suffered losses covered under those policies.

In addition, the judge found that, by unconditionally accepting and continuing representation of Mercantile in the underlying and preceding litigation, Chicago Title was now estopped from disclaiming its liability, since it precluded Mercantile from obtaining independent counsel and possibly accepting offers of settlement that had been rejected by counsel provided by Chicago Title.

Chicago Title also raised several bases for exclusion of the claim, as set forth in the language of the policy. The judge had little difficulty finding that the defect here was not "created, suffered, assumed or agreed to" by Mercantile, since it had the same information available to it that was available to Chicago Title, nor had Mercantile concealed material facts about the transaction, nor had it breached the policy by refusing to produce records associated with the claim, since Chicago Title had effectively waived the requirement when it had proceeded to treat Mercantile's claim as covered throughout the litigation below without reservation of right.

Consequently, the judge entered judgment in favor of Mercantile for the policy amounts, plus prejudgment interest, but declined to award attorney fees to Mercantile.

The Memorandum and Order are available in PDF format.

Department of Human Resources, Child Care Administration v. Roth (Ct. of Appeals)

Filed: (undated in the original, but posted March 22, 2007) Opinion by Chief Judge Robert M. Bell.

From the official headnote:
"A case is moot when there is no longer any existing controversy between the parties at the time that the case is before the court, or when the court can no longer fashion an effective remedy." In re Kaela C., 394 Md. 432, 452, 906 A.2d 915, 927 (2006). In October 2001, the relevant portions of the Code of Maryland Regulations and were amended, changing the language from the "Office of Child Care Licensing and Regulation" to the "Child Care Administration." Thus, there was no longer any existing controversy between the parties.
This matter arose out of the revocation of a registered family day care facility license held by the respondent ("Roth") by the appellant ("CCA"), following an investigation that found Roth had hit and inappropriately supervised children in her care. The revocation was upheld by an administrative judge, but overturned by the Circuit Court for Harford County, on the basis that CCA had no authority to revoke family day care licenses, that authority having been entrusted by regulation to the Office of Child Care Licensing and Regulation ("OCCLR"). The judge noted that some, but not all, references to OCCLR in the regulations had previously been changed from OCCLR to CCA. CCA timely appealed to the Court of Special Appeals, and the Court of Appeals issued a writ of certiorari prior to consideration by that court.

The court found this case to be moot, since the regulations in question had since been amended to clarify that CCA, rather than its former incarnation, OCCLR, was empowered to regulate family day care licensing. Further, Roth was no longer operating a family day care facility. However, the court did VACATE the decision below and REMAND the matter to the trial court with instructions to affirm the decision of the Department of Human Resources.

The opinion is available in PDF format.

Wednesday, March 21, 2007

Attorney Grievance Commission v. Mba-Jonas (Ct. of Appeals)

Decided March 20, 2007 -- Opinion of Chief Judge Robert M. Bell

Respondent had entered a Condition Diversion Agreement ("CDA") with Petitioner ("the Commission") after a client complaint to Petitioner, the specifics of which complaint were not identified. Respondent's monitor ("Monitor") under the CDA came to learn of escrow account irregularities in Respondent's account including three overdrafts, one of which post-dated the execution of the CDA, and that settlement funds pertaining to one client's accident case were used to satisfy other escrow payments for other clients and to third-party medical care providers who had not treated that client.

The Commission charged Respondent with violations of
  • MLRPC Rule 1.15 Safekeeping Property
  • MLRPC Rule 8.1 Bar Admission and Disciplinary Matters
  • MLRPC Rule 8.4 (a) and (d) Misconduct, as adopted by Rule 16-812
  • Rule 16-604
  • Rule 16-607
  • Rule 16-609
  • Maryland Code, BP §§10-304,-306 and -307.
The Circuit Court for Anne Arundel County found violations of Rules 1.15 and 8.4(a) and of Rule 16-604 and -607, but no other violations, and noted mitigation evidence in Respondent's lack of intent to deceive and personal difficult circumstances.

The Commission filed four exceptions to the Maryland Court of Appeals, regarding the Circuit Court's failure to find violations of Rule 16-609, Code § 10-306 and Rules 8.1 and Rule 8.4(d). The Court of Appeals sustained the Commission's first three exceptions but overruled it on
the matter of Rule 8.4(d), noting that the Commission's reliance on the existence of contradictory testimony at the fact hearing was not a proper basis for a valid exception to the hearing judge's finding on that point.

The Court of Appeals noted the breadth of Rule violations in this case and the failure of Respondent to take the opportunity that the Commission afforded him under the CDA. Examining prior precedents involving conduct similar to Respondent's but also critically distinguished therefrom, the Court of Appeals suspended Respondent indefinitely with leave to reapply for reinstatement after 90 days.

The full opinion is available here in PDF format.

Cochran v. Norkunas (Ct. of Appeals)

Filed March 20, 2007. Opinion by Judge Irma Raker.

Held: A letter of intent is not enforceable as a binding contract for the sale of real property where the letter indicates that a standard form contract would be delivered and specified how certain terms in that contract would be construed. This indicates a lack of intent by the parties to be bound by the letter.

A contract for the sale of real property is not enforceable where the offeree did not manifest acceptance of the contract by mailing or other action.

Facts: The dispute arose over the sale of residential real property. The Buyers tendered a letter of intent ("LOI") to purchase the property. Among other things, the LOI specified that the parties would execute a standard form Maryland Realtors contract. The Buyers then delivered a contract and addenda to the Seller to effect the transaction. The Seller signed the contract and addenda on the majority of the signature lines, but the Seller crossed out and did not sign certain contingency provisions. Ultimately, the Seller did not return the documents to the Buyers. Nor did she otherwise communicate to the Buyers that she had accepted their offer. The Seller simply retained the signed documents. After a week had passed, the Seller communicated to the Buyers that she was taking the property off the market.

The Buyers sued for specific performance of the LOI. During discovery, the Buyers learned that the Seller had privately signed the contract and most addenda. Upon learning this, the Buyers amended the complaint to request specific performance of the contract. The Buyers submitted affidavits stating that the changes the Seller had made to the proposed contract would have been acceptable to them.

The Circuit Court for Baltimore City granted summary judgment in favor of the Buyers, holding that the LOI and contract "signed by all parties constitute the contract in this case and together they constitute an enforceable contract of sale."

The Court of Special Appeals reversed. A copy of the opinion is available here. The CSA concluded that the LOI did not indicate that the parties had reached final agreement at the time the LOI was signed. Second, the CSA held that the Seller did not accept the contract, even though she signed the documents, because the Seller did not mail the signed contract to the Buyers so as to communicate her acceptance.

On appeal to the Court of Appeals, the Court held that a manifestation of mutual assent is an essential prerequisite to the creation of a contract. Upon reviewing the LOI, the Court concluded that a reasonable person would have understood the LOI to mean that a formal contract offer was to follow the letter of intent. The Court found that the plain language of the document indicated that the parties intended to finalize the sale through a standard form Maryland Realtors contract. Accordingly, the Court held that the LOI was the type of preliminary "agreement to agree" generally held to be unenforceable in Maryland.

Regarding enforcement of the executed but undelivered sales contract, the Court held that the Seller had not manifested acceptance of the terms of the agreement. The Court rejected the Buyers' argument that execution of a document in private, without delivery of the document or other manifestation of assent was sufficient. Rather, the Court held that notice of acceptance must be communicated to the counter-party in some way. In the case at hand, the Seller had not communicated her acceptance.

Accordingly, the Court affirmed the opinion of the CSA overturning the judgment of the Circuit Court in favor of the Buyers.

The full opinion is available in PDF.

Attorney Grievance Commission v. Hill (Ct. of Appeals)

Filed March 21, 2007--Opinion by Chief Judge Robert M. Bell.

Respondent was retained by Edward Beier to prepare and obtain an Eligible Domestic Relations Order ("EDRO") necessary to enable him to obtain half of his ex-wife's State employee's retirement benefit. In his engagement letter, Respondent conditioned commencement of work on payment by Beier of a minimum fee of $500.00, of which $200.00 was paid on the date of retention and the balance more than three months later. Despite Beier's numerous requests, Respondent did not prepare the EDRO or cause it to be executed prior to Beier's remarriage and consequent ineligibility to share in his ex-wife's pension. After several letters and telephone calls over the course of four months from Bar Counsel, Respondent provided Bar Counsel with a written response and refunded Beier's entire fee, admitting he had done no work on Beier's case.

In the meanwhile, Respondent was retained to represent John Wilson in connection with a domestic relations case involving visitation and access issues relating to his daughter. Respondent was paid a $2,000.00 retainer, attended a pre-trial conference with his client, his client's ex-wife and her counsel, and, as a result of an agreement, agreed on the record to prepare and submit a written consent order within two weeks of that date. Despite calls from the Master's office, Respondent had not prepared the order for more than six months. In response to an Order from the Circuit Court for Respondent to appear in court and "explain the reason for his failure to submit the order and show cause why sanctions and costs should not be imposed," he prepared a consent order, sent it to opposing counsel and submitted it, signed by both counsel, to the court on the date scheduled for the show cause hearing. Respondent neither sent the consent order to his client for review, nor even inform his client that he had prepared one.

Based on the findings of fact, the hearing court concluded that Respondent, by failing to act expeditiously in both cases, by not timely preparing the EDRO in the Beier case and by his delay in preparing the consent order in the Wilson case, violated Rule 1.3. The inaction in the Beier case was, in addition, a violation of Rule 8.4(d). The hearing court further concluded that in each case, Respondent violated Rule 1.4.

Having found the rules violations charged, the hearing court also offered findings of mitigation. Neither Petitioner nor Respondent filed exceptions to the hearing court's findings of fact or conclusions of law. While both appeared at oral argument and offered their respective recommendations orally, only the Petitioner submitted a written recommendation, urging Respondent's suspension for a one year period.

The purpose of attorney discipline is not to punish the erring attorney but to protect the unsuspecting public. Respondent presented evidence, and the hearing court found the existence of, mitigating factors which, it concluded, were responsible, at least in part, for Respondent's misconduct. Additionally, Respondent expressed remorse and, consistently, there was testimony that such conduct was out of character for him. Taken together, it may be inferred that Respondent's misconduct is not likely to be repeated. Accordingly, the court found the public will be protected if a thirty-day suspension from the practice of law is imposed.

The full opinion is available in PDF.

Tina A. Hall v. UMMS (Ct. of Appeals)

Filed March 21, 2007 -- Opinion by Judge Robert Bell.

Issue: Whether notes contained in the hospital record of a pregnant mother were hearsay and/or not pathologically germane in a medical malpractice case brought by the child who was born of the pregnancy.

Held: The Circuit Court erred in excluding the records because they were admissible under the business records exception to the hearsay rule and because they were pathologically germane.

Facts/Court Analysis: Plaintiff "Teonna" is the minor biological daughter of Joyce Boyce. Plaintiff was born on November 12, 1992 with, among other things, cerebral palsy, mental retardation, and developmental delay. Teonna claimed that her conditions were caused by defendant's delay in performing a c-section on her mother. "The parties agreed that liability was dependent on one factor - when appellant's mother presented and was treated at the hospital." Teonna claimed that her mother had first arrived at defendant hospital at 12:30 am on November 12, 1992, complaining of abdominal pain. Defendant UMMS claimed that Teonna's mother first presented at 6:45 am.

In attempting to establish her case, plaintiff sought to introduce records from defendant hospital indicating that her mother had presented to defendant hospital at 2:00 am on November 12, 1992. These records were prepared by physicians at the end of their shift on November 12 (at approximately 4:45 pm and at approximately 5:00 pm). The recording physicians each testified at deposition that the information in their notes came from a person with personal knowledge of Teonna's history. The lower court held that the records were inadmissible as hearsay and that they were not pathologically germane.

The Court of Appeals reversed, holding that the records were admissible under the business record exception to the hearsay rule. While generally a determination of admissibility is left to sound discretion of the trial court, where it involves a legal determination, the decision will be reviewed de novo. A trial court's decision to exclude evidence based on hearsay is generally a decision of law and is to be reviewed de novo. Ordinarily, hospital records will be admitted as an exception to the hearsay rule. Notes made at the end of a doctor's shift "are within the meaning contemplated by the words in Rule 5-803(B)(6)(A) 'at or near the time.'" Any issues regarding the recording physicians personal knowledge of the facts contained in the notes goes to the weight of the evidence and not its admissibility. Finally, the discrepancy between the mother's testimony of arriving at the hospital at 12:30 am and the information in the notes that the mother arrived at 2:00 am was not so serious as to indicate a lack of trustworthiness sufficient to exclude the evidence.

The Court of Appeals also found that the information in the notes was pathologically germane. To be pathologically germane, information "'must fall within the broad range of facts which under hospital pracitice are considered relevant to the diagnosis or treatment of the patient's condition.'" "As a general proposition, we fail to understand how the medical treatment of the mother of an unborn baby within hours before delivery is not pathologically germane to the treatment of an unborn (or newborn) baby."

In Re: Marnitta L. King (King v. Wells Fargo Bank, N.A.) (U.S. Bankruptcy Court)

Filed March 20, 2007. Memorandum Opinion by Judge Thomas J. Catliota.

Marnitta L. King (the "Debtor") is a joint owner of the real property located at 5015 Cumberland Street, Capitol Heights, Maryland (the "Property"). Wells Fargo Bank, N.A. ("Wells Fargo") is a secured creditor by virtue of a promissory note, repayment of which is secured by a deed of trust duly recorded among the land records of Prince George's County. There was no dispute that both the note and the deed of trust were executed by the Debtor and the other joint owner (the "Codebtor").

The Debtor filed the instant bankruptcy case seeking relief under chapter 13 of the United States Bankruptcy Code (the "Code") on September 15, 2006, intending to stop a foreclosure sale of the Property scheduled for later that same day. The Debtor alerted Wells Fargo of the bankruptcy filing but Wells Fargo indicated that they would not stop the foreclosure sale because the Debtor had filed two previous bankruptcy cases within a one year period (both cases having been dismissed) and, consequently, there was no automatic stay by virtue of Section 362(c)(4)(A)(i) of the Code. The foreclosure sale was held, at which Wells Fargo was the successful bidder.

The Debtor subsequently filed a Motion to Set Aside Sell [sic], asserting that the foreclosure sale was held in violation of the codebtor stay of Section 1301(a) of the Code, which barred Wells Fargo from proceeding with a post-petition foreclosure sale even though the automatic stay did not arise as to the Debtor pursuant to Section 362(c)(4)(A)(i). Wells Fargo argued that the "vitality of the codebtor stay is at the mercy of the status of the automatic stay."

The Court held that the terms of Section 362(c)(4)(A) are unambiguous in that only the automatic stay of Section 362(a) is prevented from going into effect "when the factual predicate enumerated in Section 362(c)(4) exists. Section 362(c)(4)(A)(i) does not address the applicability of the codebtor stay that arises under Section 1301(a), and it certainly does not provide that the codebtor stay of Section 1301 does not come into effect if the circumstances of Section 362(c)(4) are met." Further, the Court found that, "Nowhere in Section 1301(a) is the codebtor stay limited, qualified, or effected by Section 362(c)(4)." The Court concluded that Wells Fargo's "foreclosure sale was in violation of the codebtor stay and is void."

This opinion is available in PDF.

Tuesday, March 20, 2007

Thornton v. State (Ct. of Appeals)

Filed March 20, 2007--Opinion by Judge Clayton Greene.

Petitioner seeks review of a Court of Special Appeals judgment affirming his conviction for murder in the second degree. Two questions were presented:

1. Did the intermediate appellate court and the trial judge correctly interpret and apply the mens rea element of the second-degree murder of the intent-to-inflict-grievous-bodily-harm variety?

2. Did the intermediate appellate court and the trial court correctly interpret and apply the law of imperfect self-defense?

Second degree murder does not require premeditation or deliberation. In order to convict the defendant of second degree murder, the burden is on the State to prove (1) that the conduct of the defendant caused the death of the victim; and (2) that the defendant engaged in the deadly conduct either with the intent to kill or with the intent to inflict serious bodily harm such that death would be the likely result.

To determine whether the trial judge and intermediate appellate court correctly interpreted and applied the intent element of second-degree murder, the Court reviewed the mens rea requirement, focusing on the definitions of murder, malice and grievous bodily harm, including the meaning of the phrase "that death would be the likely result." Where murder is predicated upon a theory of intent to commit grievous bodily harm, the intended harm must be grievous bodily harm and must be the legal equivalent of malice. Furthermore, in the context of a murder prosecution, intent to inflict grievous bodily harm means such harm that a reasonable person could or should know, under the circumstances, would likely result in death to the victim. Because the crime involves an unintentional killing, the defendant need not actually know that his conduct will result in the victim's death. The requisite mens rea is measured by an objective standard, i.e., could or should a reasonable person, under the circumstances, have foreseen that death would likely ensue as a result of his or her conduct. Thus, the likelihood requirement is no more than an objective standard used to circumscribe and clarify the elements of intent and malice.

Malice may be inferred from (1) an act by the accused sufficient to show an intent to inflict great bodily harm, or (2) an act the natural tendency of which would cause death or great bodily harm. In other words, the trier of fact may infer malice where the defendant acts without provocation, justification or excuse, and could or should have foreseen that the consequences of his or her conduct might result in death to another person. Malice may be either express or implied.

Intent has traditionally been defined to include knowledge, and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows those consequences are substantially certain to result from his act. A general mens rea or intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire). By contrast, a specific intent requires more than the general intent to do the actus reus. An offense is murder depending on the results and the nature and extent of the injury or wrong actually intended.

Thus, the trier of fact may find the requisite intent for second-degree murder, even where the defendant did not intend to kill the victim, but did intend to inflict grievous bodily harm. Murder of the intent-to-inflict-grievous-bodily-harm type is, by definition, a specific intent crime, and the specific intent necessary for conviction is the intent to do serious bodily injury, that death would be the likely result.

In the instant case, the trial judge found that Petitioner did not possess a specific intent to kill his victim but did indicate that malice was implied. Yet, at no time did the trial judge state that Petitioner acted with the intent to inflict grievous bodily harm. Essentially, the trial judge reasoned that because Petitioner was responsible for his actions, he, therefore, must have known that his act would inflict serious bodily harm and that death would be a possible or probable consequence of that harm. The intent to inflict grievous bodily harm is a life-threatening state of mind. Thus, in order to convict Petitioner, the trier of fact was required to find that Petitioner's desire or purpose was to inflict such harm that a reasonable person, under the circumstances, could or should have anticipated that death would likely occur.

The trial judge erred by substituting the notion of responsibility for one's actions (the act of stabbing the victim in the leg) for knowledge that death would likely occur. Merely because Petitioner may be blameworthy, because of the consequences of his actions, does not mean that he either had a desire to bring about those results or that those results were probable. Essentially, the trial judge found that because Petitioner caused the injury from which death resulted, he was guilty of murder. This determination resulted in a presumption that Petitioner intended the consequences of his actions and a modification of the mens rea requirement for specific intent-to-inflict-grievous-bodily-harm. The trier of fact may draw inferences from the facts presented in the case but may not presume an element of the State's case.

Held that the Court of Special Appeals erred in affirming the trial court's interpretation and application of the intent element for the crime of second-degree murder. The qualification that "death would be the likely result" both circumscribes and clarifies the intent element of second degree murder of the type of consideration. Moreover, the panel majority did not acknowledge the difference between serious bodily harm in the context of murder and in the context of an assault. Second degree murder of the intent to inflict grievous bodily harm is neither a strict liability crime nor a crime predicated upon a theory of negligence. Accordingly, the State must prove intent to injure the victim so severely that death would be the likely result even though the defendant did not intend that the victim die. In summary, the trial judge's mistaken conclusions of law, which modified the specific intent requirement and unconstitutionally shifted the burden of proof to Petitioner, warrants reversal of conviction for murder in the second degree and a remand of the case for a new trial. In light of this holding, the second question was not addressed.

The full opinion is available in PDF.

Koons Ford of Baltimore, Inc. v. Lobach (Ct. of Appeals)

Filed March 20, 2007--Opinion by Judge Clayton Greene (JJ Raker and Harrell dissenting).

The Lobachs purchased a vehicle from Koons Ford and, after discovering defects in the vehicle, filed a complaint against Koons alleging, inter alia, that Koons violated the Magnuson-Moss Warranty Act ("MMWA"), the Maryland Consumer Protection Act ("MCPA"), breach of contract, violation of the Maryland Commercial Law Code, fraud, and a derivative action against Suntrust Bank for all of the aforementioned claims. Koons responded with a Petition for Order to Arbitrate and Dismissal of Complaint. Koons maintained that the claim had to be submitted to binding arbitration because, as part of the purchase, the Lobachs signed a buyer's order that contained a binding arbitration clause, and arbitration is expressly favored by the Federal Arbitration Act ("FAA"). The Lobachs argued the MMWA prohibits the forced resolution of claims through binding arbitration and, therefore, the FAA does not apply. The Lobachs further maintained that the arbitration clause must be included in the warranty document to be enforceable under the single document rule.

This Court rejected the Lobach's claim that they had no notice of the binding arbitration provision or that they were foregoing their ability to bring a civil suit. The applicable language was clear and comprehensible and appeared in the buyer's order in capital letters and bold print. Because the Lobachs signed their names below the arbitration provision, attesting to their understanding of what they read, the Court held that they may not evade their obligations simply because they choose to not read what they had signed.

Another provision in the buyer's order provided in relevant part, "NOR SHALL ANYTHING HEREIN BE CONSTRUED TO LIMIT ANY REMEDIES UNDER . . . THE MAGNUSON MOSS ACT." The Court interpreted this provision to mean that the Lobachs may not be precluded from pursuing claims for breach of warranty in a court of law. However, although the MMWA allows for non-binding, as opposed to binding, arbitration, the next issue is to determine whether the FAA trumps the MMWA and whether the binding arbitration provision contained in the buyer's order is nonetheless enforceable.

The Court rejected Koon's interpretation of the MMWA and agreed with the Lobach's contention that Congress expressed an intent to preclude binding arbitration of claims under the MMWA, a conclusion which is further supported by the FTC regulations. The language of 15 U.S.C. § 2310 makes clear that the warrantor may establish informal dispute settlement mechanisms that consumers must use to resolve their claims under the MMWA, but that consumers cannot be forced to resolve their claims through an informal dispute resolution mechanism that is binding. Consumers may be required by warrantors to participate in a non-binding informal dispute settlement mechanism, but only as a prerequisite; afterwards, consumers may pursue other legal remedies.

This Court held that, under the MMWA, claimants may not be forced to resolve their claims through binding arbitration because Congress expressed an intent to preclude binding arbitration when it enacted the MMWA. The FAA does not supersede the MMWA. Because of the resolution of this case, the Court did not address the parties' dispute over the single document rule.

The full opinion is available in PDF.

Flores v. Bell, et al. (Ct. of Appeals)

Filed March 20, 2007–Opinion by Judge Irma Raker.

Mr. and Mrs. Bell filed an action for negligence against Mr. Flores, alleging that Flores negligently caused injury to Mr. Bell in an automobile accident. The issue concerns a stipulation entered into by the parties before the trial began and the impact this stipulation had on questions submitted by the trial court for consideration by the jury. After a seven-day jury trial, the Bells were awarded $5,329 in damages, from which they appealed. The Court of Special Appeals vacated the judgment and remanded for a new trial.

Prior to the original trial, counsel for both sides orally agreed to stipulate that Flores was liable for the automobile accident. The stipulation was neither reduced to writing nor formally placed on the record. At the close of the Bell's case, after the jury had been excused from the room and after Flores’ counsel announced his intention to make a motion, the court, sua sponte, raised the issue of whether the Bells had proven Flores was driving the vehicle that hit the Bells. The Bells’ counsel raised the issue of the stipulation, while Flores’ counsel clarified that they only admitted responsibility for the damages if the damages were causally proven to have related from the accident. The court reserved ruling on Flores’ Motion for Judgment and informed counsel that a question would be included on the verdict sheet asking the jury to determine whether Flores was the driver of the vehicle that collided with the Bells.

This Court granted Flores’ petition for a writ of certiorari to primarily address the following question (the second question was not addressed in light of the Court’s holding on the first question):

"On review of the trial court’s decision to reserve ruling on a motion for judgment and submit an issue to the jury, can the Court of Special Appeals vacate a jury’s verdict when, if it was error, it was harmless?"

The Court noted that the special verdict sheet required that the jury provide a separate answer to the driver-identification question. The jury's verdict to this question was in favor of the Bells and, even if submitting the question to the jury was error because the issue had been resolved by stipulation, there is nothing in the record, other than the verdict itself, to suggest that the question distracted the jury from reaching a fair and proper verdict on the question of damages. The question did not prejudice the Bells, and the Court of Special Appeals judgment vacating jury verdict was reversed.

The full opinion is available in PDF.

Virtual Physical Center - Rockville, LLC v. Phillips Medical Systems North America, Inc. (Maryland U.S.D.C.) (Approved for publication)

Signed March 16, 2007. Opinion and Order by Judge Catherine C. Blake.

Upon consideration of cross motions for summary judgment, the motion of the defendant ("Phillips") was GRANTED and the motion of the plaintiff ("Virtual") was DENIED.

In a case arising from the failure of Virtual's "whole body" imaging business, intended to screen healthy individuals for asymptomatic and potentially life-threatening diseases by means of CT scans, Virtual filed suit against Phillips, the manufacturer of the CT machines, alleging fraud, negligent misrepresentation and breach of warranty.

Phillips countered that the statute of limitations had run on the fraud and negligent misrepresentation counts, since more than three years had passed since Virtual knew or should have known that the allegedly fraudulent or negligent representations had been known to have been false. After reviewing the sequence of events and the information of which Virtual was aware, the judge agreed, finding that Virtual's claims were time-barred.

In similar fashion, Phillips argued that Virtual's warranty claims were barred by the applicable statute of limitations, The judge agreed, finding that the alleged defect was, if anything, a design defect, and not one subject to the one-year express warranty for defects and workmanship which might have extended the implied warranty period.

Finally, Virtual argued that Phillips' counter-claim for damages for breach of contract should be limited to the date Virtual advised Phillips it had ceased operations, as being effective notice of termination of the lease agreement. The judge found, while Virtual would likely prevail on the issue, it had failed to submit confirmation that the party who instituted suit against Virtual considered the lease to have been terminated at that time, and denied Virtual's motion for summary judgment on that issue.

The Opinion and Order are available in PDF format.

Pye v. State (Ct. of Appeals)

Filed March 19, 2007–Opinion by Chief Judge Robert M. Bell.

This opinion resolves three cases: Teel v. State (No. 123), Womack v. State (No. 114), and Pye v. State (No. 113). With one exception, all three cases address essentially the same legal issue and involve essentially the same argument with respect to the merger of certain handgun related offenses. That issue is restated as follows:

"Whether the holding in Frazier v. State, 318 Md. 597, 569 A.2d 684 (1990), that the offenses of carrying a handgun and possession of a firearm by a convicted person do not merge, is still viable even though, subsequent to that decision, the General Assembly increased the penalties associated with the crime of possession of a firearm by a convicted person."

This Court held Frazier is still viable. The exception is the second issue, presented only in Pye:

"Did the trial judge err in denying Pye’s motion to dismiss and acquit by sentencing him to a five year no parole sentence for possession of a firearm by a person with a prior conviction under Article 27, § 449(e) where Pye previously had been convicted of a felony but not a crime of violence?"

Concluding that § 449(e) requires an individual to have been previously convicted of a crime or crimes that were both a felony and a crime of violence, the Court answered in the affirmative holding that the trial judge erred as a matter of law by denying Pye’s motion for judgment of acquittal on that count.

The full opinion is available in PDF.

Monday, March 19, 2007

Solorzano v. State (Ct. of Appeals)

Filed March 19, 2007--Opinion by Judge Irma Raker.

Appellant was indicted by the Grand Jury for Prince George's County for attempted first degree murder, first degree assault, second degree assault, and two counts of carrying a dangerous weapon with the intent to injure an individual in an unlawful manner. He agreed to plead guilty to attempted first degree murder in exchange for the State dismissing the remaining counts of the indictment and to recommend to the trial court that the sentence not be greater than the upper limit of the recommended range established by the Maryland Sentencing Guidelines, in this case twelve to twenty years.

At trial, the State provided a factual basis upon which to accept the plea, followed by a colloquy between the court and appellant stating, in essence, that if appellant's pre-sentencing investigation warranted a greater sentence than the parties anticipated, appellant could, in fact, receive a greater sentence than twenty years. Appellant stated he understood and entered a plea of guilty. At sentencing, dialogue between the court and appellant restated the terms of the negotiation, and the court inquired whether the appellant understood he could receive up to a term of life imprisonment reasoning that " . . . the State has agreed not to recommend more than twenty years in this case but the Court is not bound to that recommendation and could in fact sentence up to life in prison." The court subsequently sentenced appellant to life in prison with all but fifty years suspended. The Court of Special Appeals denied timely motions by appellant seeking specific performance of the plea agreement and a motion to vacate his guilty plea.

Whether a trial court has violated the terms of a plea agreement is a question of law to be reviewed de novo according to the reasonable understanding of the defendant when he pled guilty. Because plea agreements are similar to contracts, "contract principles should generally guide the determination of the proper remedy of a broken plea agreement." The trial court may accept a guilty plea only after it determines, upon an examination of the defendant on the record if it is in open court, that (1) the defendant is pleading voluntarily, with an understanding of the nature of the charge and the consequences of the plea, and (2) that there is a factual basis for the plea. Rule 4-242(c).

Rule 4-243(c)(1) makes clear that a trial court is under no obligation to accept any particular sentence agreed upon by the State and a defendant. However, Rule 4-243(c)(3) makes equally clear that if the trial judge approves a plea agreement, the trial court is required to fulfill the terms of that agreement if the defendant pled guilty in reliance on the court's acceptance. Although the trial court indicated that it could sentence appellant to a term of incarceration greater than twenty years if the sentencing guidelines were greater than the recommendation, the court never indicated that if the agreement was within the guidelines that the sentence could be greater. The obvious interpretation of the judge's remarks is that if the guidelines were greater than twenty years, then and only then, the defendant could receive a greater sentence.

Therefore, this Court held that the trial court accepted the terms of the plea agreement, that appellant pled guilty in reliance on the court's acceptance, and that as such, defendant was entitled to specific performance of the terms of that agreement.

The full opinion is available in PDF.

Attorney Grievance Commission v. McCulloch (Ct. of Appeals)

Filed March 19, 2007. Opinion by Chief Judge Robert M. Bell.

This case arose out of the representation by McCulloch of a client in a pending divorce action, for which McCulloch asked and received a retainer of $2,500. The retainer, including the unearned portion thereof, was deposited by McCulloch into her operating account rather than an escrow account.

Beginning about two weeks thereafter, the client began a series of e-mail requests to McCulloch, urging her to "move forward" on the case, to which she did not respond until about a month later, stating that the documents "were in progress". By e-mail about three weeks later, the client "discharged" McCulloch, and asked for a complete refund within a week. McCulloch responded the same day, with a copy of the letter and pleadings she had prepared, and a bill showing a credit due of $1,474, but no check. Two days later, McCulloch e-mailed the client, urging him to reconsider his decision to discharge her. Other than a few inconclusive e-mails, there was no further communication from McCulloch about the case for almost three months.

The client filed a complaint with the Attorney Grievance Commission ("AGC"), and AGC forwarded a copy of the complaint on to McCulloch, requesting a response from her within 15 days, She did not respond to that or to two subsequent letters until more than four months later, by which time the client had written directly to McCulloch, seeking a refund of the $1,474 he had been advised was due. In the meantime, AGC had written again, this time seeking copies of her trust account and client cards. With her response, McCulloch included an amended bill, with a revised credit due of $880, which she had refunded to the client "directly from her trust account" after she had received a settlement on an unrelated matter in the amount of $960. Her operating account had had a negative balance during the time the refund was due to the client.

Referred for a hearing, the hearing judge found, by clear and convincing evidence, the above facts, and violations of Rules 1.4(a)(3), 1.15(a), 1.16(d), 8.4(b), (c) and (d) of the Rules of Professional Conduct, Rule 16-604 and Sections 10-304 and 10-306 of the Business Occupations and Professions Article, but rejected the argument that McCulloch had committed theft.

Neither party excepted to the hearing judge's findings, but AGC did file exception to the recommended sanction, requesting disbarment rather than indefinite suspension. It relied upon the Vanderlinde, Blum, Duvall and Roberts cases for the proposition that misappropriation of funds by an attorney will result in the disbarment of an attorney in the absence of compelling extenuating circumstances justifying a lesser sanction, and that no such circumstances are present here.

The court disagreed, noting that the circumstances in this case were much less egregious than in the other cases, that McCulloch had admitted to her wrong conduct without making excuses, had expressed remorse and that she expected consequences from that conduct, only requesting something short of disbarment. The court also noted that the finding below on the theft charge was at best ambiguous on the issue of the conduct being dishonest and deceitful, and was inclined not to impose disbarment on "such a finding". The court further noted that McCulloch had no prior grievance history, and from McCulloch's remorse the court noted that it could infer that the conduct was less likely to recur. Given that the purpose of attorney discipline was to protect the public and not to punish the erring attorney, the court was satisfied the appropriate sanction was to suspend McCulloch indefinitely, rather than disbarment.

The opinion is available in PDF format.

Pfeufer v. Cyphers, Personal Representative of the Estate of James Russell Hoffman (Ct. of Appeals)

Filed March 19, 2007 -- Opinion by Judge Robert Bell

Issue: Whether a will directing the P.R. to pay estate taxes "without apportionment" required the P.R. to deduct the estate taxes prior to distribution where some legatees were to be taxed and others were exempt.

Held: The P.R. must deduct the taxes prior to distribution, effectively splitting the taxes among all legatees even though some were tax-exempt. Interestingly, the Court found that there are no cases expressly stating the standard of review for legal determinations of an Orphans' Court. In this matter, the Court of Appeals saw "no need to deviate from the standard of review that we have applied to interpretations and conclusions of law by courts of general jurisdiction."

Facts: James Russell Hoffman ("Decedent") died leaving a will instructing the P.R. to pay all estate taxes from the estate without apportionment. This is in contrast to Md. Code Ann. Tax-General 7-203(b), which exempts certain family members of the decedent from inheritance tax. In this case, three of the four legatees were family members exempt from taxation. The P.R. initially paid the inheritance taxes owed by the fourth legatee from the entire estate, so that, effectively, each legatee paid 1/4 of the taxes due by the one non-exempt legatee. Subsequently, the P.R. reversed herself and deducted the entire tax due from the share of the one non-exempt legatee. The Orphans' Court for Montgomery County affirmed the decision of the P.R.

The Court of Appeals reversed, holding that a will is to be construed to effectuate the intent of the testator. In this case, the Court found, the will was clear and should be effectuated by not apportioning the estate tax.

The full opinion is available in PDF.

Saturday, March 17, 2007

Weems, et al. v. County Commissioners of Calvert County (Ct. of Appeals)

Filed March 16, 2007--Opinion by Judge Dale Cathell .

Appellants filed a declaratory judgment action in the Circuit Court for Calvert County against the County Commissioners, seeking a declaration as to the westerly terminus of a public easement, a declaration as to the ownership of an area known as Leitch's Wharf, and a declaration that § 15-201 of the Calvert County Code - as it pertains to Leitch's Wharf - is unconstitutional in that the statute constitutes a taking of Appellant's property without just compensation.

After an adverse decision, Appellants raised four questions to the Court of Special Appeals, which found, in an unreported opinion, the language of the easement at issue to be ambiguous. Further, the court found that the testimony at trial, by the nature in which it was given and the failure of trial counsel to clarify the issues by connecting the testimony to the exhibits in the record, did not contain a sufficient description of the easement, as presented in that record, to resolve the ambiguity. As a result, the court found it necessary to remand the case for further proceedings and, because of its determination regarding the easement, did not resolve any of the other issues. After the remand hearing, Appellants again appealed, and this Court granted a writ of certiorari for the following two questions:

1) Whether the trial court erred in arbitarily disregarding Appellants' expert's opinion and thereafter finding that the westerly terminal of the easement granted in the 1949 Deed was located within Appellants' property.

2) Whether the trial court erred when it did not find § 15-201 of the Calvert County Code unconstitutional as applied to Appellants' property at Leitch's Wharf.

The Court reviewed two key documents to reach their determination: (1) the easement at issue, and (2) § 15-201 of the Calvert County Code. The controversial language of the easement provides:

"2. The remaining of the above mentioned parties of the first part do hereby grant a parcel or strip of ground beginning for the same at the intersection of the present County road, and the land of Thomas I. Weems and Clifton Smith, and running in a westerly direction adjacent to and through the lands of the above mentioned parties of the first part, and running with the center of the said present county road, said 30 foot strip lying 15 feet on each side at the center line thereof, and having for its westerly terminal the lands of the grantor, Lydia Leitch."

Section 15-201 of the Calvert County Code provides, in relevant part:

(a) The public shall have an easement or right-of-way over any roads or ways in Calvert County leading to . . . Leitch's Wharf . . ..

(b) The purpose for this easement or right-of-way is solely for access to the wharves and landings and enjoyment of the wharves and landings by the public.

This Court found that the language at issue in the easement (the last phrase) is not ambiguous. While confusion may exist as to who was the party of the first part, the easement being granted had its westerly boundary clearly fixed. Therefore, as relevant to the present controversy, it makes no difference who "he" was. The term "westerly" did not refer to the westerly boundary of the Leitch property; it referred to the westerly boundary of the easement. The "lands of Lydia Leitch" was, in essence, a "call" -- it defined the western boundary, which is the easement's terminus. In the case at hand, the "call" set the boundary of that property being granted by referencing the boundary of another property beyond which the lands being granted did not go. There was no dispute as to the other boundaries of the easement relevant to the instant case. This case only concerned the western boundary of the public easement and the County has no rights, under this easement, beyond that point.

In deeds granting easements, ambiguity only exists when the particular location point at issue cannot be determined; not in instances where the location point is clear from the language of the deed. If there was any ambiguity in respect to language, then, in such event, other evidence might be considered to attempt to locate the right of way. The case sub judice, however, did not require the Court to look outside the four corners of the granting document. Consequently, the Court held the relevant language of the deed of easement was not ambiguous.

The Supreme Court has remained consistent in asserting that included amongst a property owner's bundle of rights is the right to exclude others. Consistent with that assertion, this Court found it constitutionally impermissible for the government to give the public the right to use the private property of a landowner without that landowner's permission, just as it would be unconstitutional for a governmental entity to enact a statute to give the public the right to go into and reside in the private home of a citizen. The government cannot grant a license to the public to go into a homeowner's bedroom or his backyard. The legal and constitutional principals are exactly the same whether applied to a bedroom or a field, and a governmental entity may not legislatively terminate, by enactment of a statute, an individual's "right to exclude" others from their private property without providing the landowner compensation for that "taking" or without the landowner's permission.

The full opinion is available in PDF.

Hunter v. State (Ct. of Appeals)

Filed March 16, 2007--Opinion by Judge Dale Cathell (JJ Battaglia and Harrell dissenting).

Appellant was convicted of one count of first degree burglary, for which he was sentenced to fifteen years in prison. In an unreported opinion, the Court of Special Appeals affirmed the judgment of the trial court. In a writ of certiorari, the petitioner presented two questions for review:

1) In a criminal trial, is it error for the judge to allow the prosecutor to ask the defendant whether the police witnesses were lying?

2) If the answer to the preceding question is yes, did the Court of Special Appeals err in holding that the error was harmless, particularly where the underlying facts were contested, the jury sent out notes suggesting that they were struggling with some of the factual issues, and the prosecutor's closing argument augmented the prejudicial effect of the error?

In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded to a witness' testimony are solely within the province of a jury. Generally, the rule is that it is error for the court to permit to go the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying. Therefore, it is the well established law of this State that issues of credibility and the appropriate weight to give to a witness's testimony are for the jury, and it is impermissible, as a matter of law, for a witness to give an opinion on the credibility of another witness.

At trial, petitioner was asked five "were-they-lying" questions. These questions were impermissible as a matter of law because they encroached on the province of the jury by asking the petitioner to judge the credibility of the detectives and weigh their testimony, i.e., he was asked: "And the detective was lying?" The questions also asked petitioner to stand in place of the jury by resolving contested facts. Moreover, the questions were overly argumentative. They created the risk that the jury might conclude that, in order to acquit petitioner, it would have to find that the police officers lied. The questions were further unfair because it is possible that neither the petitioner nor the police officers deliberately misrepresented the truth. These questions forced petitioner to choose between answering in a way that would allow the jury to draw the inference that he was lying or taking the risk of alienating the jury by accusing the police officers of lying. Therefore, the trial court erred in allowing the State to ask petitioner "were-they-lying" questions. When prosecutors ask "were-they-lying" questions, especially when they ask them of a defendant, they, almost always, will risk reversal.

Once error is established, the burden is on the State to show that it was harmless beyond a reasonable doubt. Here, the possible prejudicial effect of the "were-they-lying" questions is demonstrated by the number and combination of the questions themselves, the repeated emphasis on them during the State's closing argument, and, most importantly, the jury's behavior during its deliberations. During deliberation, the jury sent four notes to the trial court, which could have been related to concerns the jury had about the truthfulness of petitioner's testimony. Consequently, the Court is unable to say, beyond a reasonable doubt, that the jury was not effected by the "were-they-lying" questions. Therefore, the trial court's error in allowing the questions was not harmless.

The full opinion is available in PDF.

Friday, March 16, 2007

Bolton Partners Investment Consulting Group, Inc. v. The Travelers Indemnity Company of America (Maryland U.S.D.C.) (Not approved for publication)

Signed March 15, 2007. Memorandum Opinion by Judge Richard D. Bennett (not approved for publication)

In a case arising from the denial of coverage under comprehensive business insurance issued to the parent company of the plaintiff ("Bolton Partners") by the defendant ("Travelers"), and upon consideration of the parties' cross motions for summary judgment, the judge DENIED Bolton Partners' motion for partial summary judgment and GRANTED Travelers' motion for summary judgment.

In the course of providing consulting services to a client, an employee of Bolton Partners made allegedly defamatory statements about one of the companies being evaluated, which resulted in that company filing suit against Bolton Partners. Travelers declined to defend or indemnify under the insurance policy, citing the Designated Personal Services Exception. Bolton Partners eventually settled the suit, and sought indemnification from Travelers in this action.

Upon cross motions for summary judgment, the judge first addressed Travelers' claim that it had no duty to defend because Bolton Partners was not an "insured", since the policy was issued to the parent corporation of Bolton Partners. The judge found the structure of the policy to contemplate coverage of the subsidiary, and also because the issue had not been previously raised by Travelers in declaring its intent not to defend, and Travelers was thus estopped to raise that issue now.

Turning to the professional services exception, the judge noted that, unlike many other states, Maryland does not construe insurance contracts against the drafter, but rather uses normal principles of interpretation. Looking to cases in other jurisdictions, the judge found that such exceptions had been interpreted broadly. Turning to the facts here, the judge found the claimed defamation to have been within the context of Bolton Partners' performance of their professional services. Thus, the suit fit within the Professional Services Exception, and Travelers was not required to defend under its policy. Accordingly, the judge GRANTED Travelers' motion for summary judgment.

The Memorandum Opinion is available in PDF format.

Weistock v. Levin (Maryland U.S.D.C.) (Not approved for publication)

Signed March 13, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication).

On consideration of a motion to dismiss for lack of personal jurisdiction by the defendant ("Levin"), and the opposition to that motion by the plaintiff ("Weistock"), or in the alternative Weistock's motion to transfer the venue, the judge TRANSFERRED the case to the Northern District of Illinois.

This case arose from the allegedly negligent treatment received by Weistock's husband from Levin in the course of what proved to be fatal lung cancer. Weistock and her husband had been referred to Levin, who practiced in Illinois, for a second opinion. Opting to receive treatment form Levin, Weistock's husband traveled to and received all treatments in Illinois. Eventually, Weistock's husband succumbed to kidney failure, which Weistock claimed was a result of the cancer treatments administered by Levin without due and proper regard to the patient's preexisting condition.

Weistock brought suit in Maryland state court, and Levin had the case removed to federal court on diversity basis. On motion to add Weistock's children to the suit, Levin opposed for lack of personal jurisdiction in Maryland. Weistock claimed personal jurisdiction did exist in Maryland, or in the alternative requested that the venue be transferred to the Northern District of Illinois.

Noting that, when personal jurisdiction is challenged, the plaintiff bears the burden of proving, by a preponderance of evidence, grounds for jurisdiction. Specific jurisdiction may exist where the claim is related to or arises out of the defendant's contacts with the state, or general jurisdiction may exist when the defendant's contacts with the forum state are continuous and systematic. Weistock met the first test required under Maryland law, citing injury arising under a Maryland statute, Courts and Judicial Proceedings Article, Section 6-103(b)(1). Weistock was unable to allege at least minimum contacts between Levin and Maryland to support constitutionally reasonable jurisdiction, though, since all activities took place in Illinois, Levin had made no effort to attract patients from Maryland, and the largely passive Web site and the national television ads run by Levin were not sufficient to support even the lower general jurisdiction standard.

Rather than dismiss, though, the judge found that interests of justice compelled transfer of the case to the proper venue, where all the allegedly tortious actions took place.

The Memorandum and Order are available in PDF format.

Western World Insurance Company, Inc. v. Greene (Maryland U.S.D.C.) (Not approved for publication)

Signed March 13, 2007. Memorandum and Order and Declaration of Judgment by Judge Catherine C. Blake (not approved for publication)

On motion for summary judgment made by the plaintiff ("Western"), the judge GRANTED summary judgment in favor of Western and DECLARED the amounts due under certain insurance policies.

This case arose from a claim made by a tenant (Greene") for lead paint exposure over four years' occupancy in a residence insured by the landlord's insurance company ("Western World") in a series of four one-year policy periods. The first three years, the policy limit was $50,000 per year per occurence, while the policy limit was raised to $300,000 approximately half-way through the final year, one month after Greene had vacated the premises. Western World had offered Greene a total of $200,000, while Greene demanded $450,000, and Western World sought a declaratory judgment and summary judgment.

The judge had little difficulty finding that there was no dispute over any material fact, since the increase in policy limit in the final year did not occur until after Greene had vacated the premises, and the increase in the insurance premium was proportional to the roughly one-half year of enhanced coverage. The judge also did not find that the claim, raised for the first time on appeal, of in utero lead exposure in the last year, thus raising the total claim to $250,000, created a dispute as to a material fact. Consequently, the judge granted Western World's motion for summary judgment, and declared the policy limit for occurances prior to the endorsement date was limited to $50,000 per occurance, and thus the limit for Greene was $50,000 for that year, and $200,000 in total for all four years.

The Memorandum and Order and Declaration of Judgment are available in PDF format.

Proa v. NRT Mid Atlantic, Inc. (Maryland U.S.D.C.)

Filed March 13, 2007. Memorandum opinion by Judge Andre M. Davis.

Plaintiffs, real estate agents in Maryland, allege principally that the defendants discriminated against them on the basis of race and religion. Defendants timely moved to dismiss the Title VII claims of one plaintiff for failure to exhaust administrative remedies and the ostensible declaratory judgment “class claim” asserted by both plaintiffs. The motion was fully briefed and no hearing was needed. For the reasons stated within, the motion shall be granted.

(synopsis to follow)

The memorandum opinion is available in PDF.

Thomas v. State (Ct. of Appeals)

Filed on March 16, 2007. Opinion by Judge Irma Raker.

From the headnotes by the court:

SANCTIONS: Under Maryland Rule 4-263, the trial court possesses discretion to impose appropriate sanctions for discovery violations; the proper focus and inquiry in determining the proper sanctions is whether the petitioner was prejudiced, and if so, whether he was entitled to have the evidence excluded.

SANCTIONS: The trial court did not abuse its discretion in refusing to exclude evidence of consciousness of guilt.

CRIMINAL LAW – EVIDENCE – CONSCIOUSNESS OF GUILT: The State satisfied the evidentiary foundation for the admissibility of evidence of consciousness of guilt."

(synopsis to follow)

The opinion is available in PDF.

Cunningham v. State (Ct. of Appeals)

Filed March 15, 2007--Opinion by Judge Alan M. Wilner (retired, specially assigned).

Appellant was caught distributing counterfeit compact discs (CDs) and digital video discs (DVDs) from the back of his van and was subsequently convicted in the Circuit Court for Baltimore City of (1) possession with intent to distribute goods of a value less than $1,000 that Appellant knew bore or were identified with a counterfeit mark, (2) possession for purposes of delivery of recorded articles on which sounds or images had been transferred that did not contain the same name and address of the transferor of the sounds or images, and (3) acting as a peddlar without a license. The court sentenced Appellant to 18 months in prison, with all but 30 days suspended in favor of 18 months probation. As an additional penalty, the court required that Appellant pay restitution in the amount of $955.

Although no objection was made to the restitution order and notwithstanding Appellant immediately, at the sentencing hearing, paid the restitution, Appellant now complains that the order constitutes an illegal sentence because (1) the recipient was neither a victim nor a proper restitution payee, and (2) no evidence was introduced regarding the amount of restitution.

Referring to Chaney v. State, to fit within the category of an illegal sentence, the illegality must inhere in the sentence itself, i.e., there either has been no convinction warranting any sentence or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantially unlawful. This Court held that the Order challenged here did not fit within the ambit of an "illegal sentence" in that regard, and the alleged deficiencies went only to the amount and to whether the recipients were persons entitled to restitution. Any other deficiency in the sentence that may be grounds for an appellate court to vacate it must ordinarily be raised in or decided by the trial court. Subject only to the appellate court's discretion under Maryland Rule 8-131(a), the defendant is not excused from having to raise a timely objection in the trial court. Here, not only did the Appellant not object to the restitution, but brought money orders totalling $955 to the sentencing hearing, made them payable to persons not identified in the record, and delivered them to the prosecutor.

Held: When a criminal defendant fails to raise a timely objection in the trial court to a valid restitution order, that defendant waives any complaint about the amount or the recipient of the restitution.

The full opinion is available in PDF.