Maryland Courts Watcher

Community Clinic, Inc. v. Dept. of Health (Ct. of Special Appeals)

2007-05-23T08:03:00.000-05:00

Filed May 3, 2007--Opinion by Judge Lawrence F. Rodowsky.

This is a judicial review of an administrative decision involving the disallowance by Maryland Department of Health and Mental Hygiene ("DHMH") of claims by two federally qualified health clinics ("FQHCs" or collectively, "Clinics") for reimbursement of costs under the Maryland Medical Assistance Program ("Medicaid" or the "Program"). The disallowance was based upon DHMH's application of its regulation establishing a monetary cap on a class of costs included in the Clinics' requests for reimbursement. The Clinics contend that the Maryland regulation does not comply with governing federal law.

States that elect to participate in Medicaid are required to submit to the U.S. Department of Health and Human Services a plan detailing how the State will expend federal funds. Entitled "State plans for medical assistance," 42 U.S.C. § 1396a (1994), provides in relevant part,

. . . for payment for services . . . under the plan 100 percent of costs which are reasonable and related to the cost of furnishing such services or based on such other tests of reasonableness, as the Secretary prescribes in regulations . . . or, in the case of services to which those regulations do not apply, on the same methodology used under section 13951(a)(e)."

Reasonable, and necessary and proper, costs were defined in 42 CFR § 413.9 (1996), as follows:

(1) Reasonable cost of any service must be determined in accordance with regulations establishing the method or methods to be used, and the items to be included. The regulations in this part take into account both direct and indirect costs of providers of services. The objective is that under the methods of determining costs, the costs with respect to individuals covered by the program will not be borne by individuals not so covered, and the costs with respect to individuals not so covered will not be borne by the program. These regulations also provide for the making of suitable retroactive adjustments after the provider has submitted fiscal and statistical reports. The retroactive adjustment will represent the difference between the amount received by the provider during the year for covered services from both Medicare and the beneficiaries and the amount determined in accordance with an accepted method of cost apportionment to be the actual cost of services furnished to beneficiaries during the year.

(2) Necessary and proper costs are costs that are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities. They are usually costs that are common and accepted occurrences in the field of the provider's activity.

As part of its program, Maryland adopted regulations for FQHCs, entitled "Reimbursement Principles for FQHC Services Rendered Before and Including June 30, 1999," currently codified in COMAR 10.09.08.05.C. As relevant to the issue, the regulation provides that "federally qualified health centers shall be paid 100 percent of their reasonable allowable costs, subject to the limitations contained in § C(4)-(7) of this regulation, that are related to the provisions of covered services." Reimbursement of FQHCs is on a per visit basis. Reimbursement during a fiscal year is based on an interim per visit rate, with a final per visit rate determined for the entire year. The regulation further requires that an FQHC's cost be divided into four categories, called "centers." These are general service costs, primary care services cost, dental services costs and non-reimbursable costs. The instant matter concerns the general service cost center, for which the parties have adopted the term "administrative costs" as a shorthand reference.

The Administrative Law Judge ("ALJ") made findings of fact in each case, placing considerable emphasis on the discussion of reasonable costs in the Medicare Provider Reimbursement Manual, Part I, specifically:

It is the intent of the program that providers will be reimbursed for the actual costs if providing high quality care, regardless of how widely they may vary from provider to provider except where a particular institution's costs are found to be substantially out of line with other institutions in the same area which are similar in size, scope of services, utilization and other relevant factors.

Reasonable costs do not exceed what a prudent and cost-conscious buyer pays for a given item or service

Applying the above-quoted standards, the ALJ found that the Clinics had shown the costs were reasonable because the Clinics were subject to both internal and external checks on its fiscal practices, and there was no evidence of self-dealing or of any incentive to pay excessive salaries or rent.

DHMH excepted to the ALJ's recommended order that the disputed claim for reimbursement be paid. The Secretary of DHMH rejected the ALJ's conclusion , expressly adopting the findings of fact that the ALJ had made on the cross motions for summary decision but declining to adopt the ALJ's reasoning and legal conclusions. With respect to the DHMH exception that assumed the ALJ had concluded the cap was not reasonable on its face, the Secretary ruled that there was ample evidence supporting the reasonableness of the cap, pointing as evidence to the public process in the adoption of the cap, federal approval of the program, and the utilization of relatively comparable caps in five other states. In addition, the Secretary pointed to a cap, utilized in the program, on the reimbursable costs of managed care organizations.

The Clinics appealed from the Secretary to the Board of Review of DHMH (the "Board"). After review and oral argument, the Board affirmed the Secretary without further explanation. The Board's action constituted the final agency decision for purposes of judicial review under the Administrative Procedures Act. HG § 2-207(f)(2).

On petition for judicial review in the Circuit Court for Montgomery County, the Clinics advance the following arguments:

I. The circuit court erred in applying a substantial evidence test.

II. The Secretary erred in not accepting the ALJ's conclusions of law after accepting the ALJ's findings of fact.

III. DHMH never examined the limits at issue to determine whether they unlawfully curtailed the health centers' reasonable costs.

Is the cap invalid under all circumstances? The Clinics contended that Maryland could not cap administrative expenses at a fixed percentage of total allowable costs unless it first had undertaken a study demonstrating that administrative costs above the chosen percentage are always unreasonable. The Court found that the cap was adopted in accordance with the Maryland Administrative Procedure Act and that it was approved by HCFA as complying with federal law. Consequently, the cap is presumed valid, and the burden rests with the Clinics to demonstrate its invalidity. In Maryland, the test for determining the validity of the adoption of a regulation is whether it contradicts the language or purpose of the statute authorizing the regulation. The Court held that the federal requirement for state reimbursement of 100% of an FQHC’s reasonable cost is satisfied by the state system that affords the FQHC the opportunity to demonstrate that its costs, albeit in excess of a cap, are reasonable. To answer the Clinics’ second question, whether the cap was validly applied in the instant matter, the Court found that the Secretary was not restrained by the recommended conclusion drawn by the ALJ; rather, the Secretary was free to make the determinative inference that the excess costs were unreasonable if that inference was supported by substantial evidence.

In addressing the Clinics’ first argument, the Court relied on the issue of whether the Secretary’s decision was supported by substantial evidence. Consequently, Argument 1 missed the mark. The Secretary did not act arbitrarily or capriciously in declining to draw the inference that the Clinics’ costs were reasonable. Nor did the Secretary act arbitrarily in concluding that the Clinics’ primary evidence, due to the absence of specific comparisons to administrative costs of other FQHCs, did not persuade him that the Clinics’ administrative costs, in excess of the cap, were reasonable.

Based on the foregoing reasoning, the Court found it unnecessary to decide if the cap is a valid conclusive presumption.

Judgment was affirmed.

The full opinion is available in PDF

Williams v. Iron Workers Local No. 16 Pension Fund, et al. (Maryland U.S.D.C.) (Not Approved for Publication)

2007-05-21T12:49:00.000-05:00

Signed May 2, 2007--Memorandum Opinion by Judge Andre M. Davis.

Ronald Williams ("Williams") brought this action against defendants pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 USC § 1001, et seq., to challenege the denial of pension benefits.

The fund's existence predates the enactment of ERISA. Administration and management of the fund is by contract with specialists, with the Board of Trustees setting policies and procedures. The outcome of this case hinges on the proper interpretation and application of one of the Trustees' amendments to the plan. Defendants argue that although contributions were made on behalf of Williams over many years, he failed to vest or otherwise accrue entitlement to those benefits. Williams argues that he is eligible for a pension, albeit a reduced pension, under a 1972 pre-ERISA version of the pension plan. Under the 1972 version, a participant's entitlement to a pension would vest after he or she earned seven years of credit and at least a partial benefit was payable when he or she reached retirement age. If a participant failed to work sufficient hours over a specified period to earn the requisite vesting credit, the participant would not vest and all potential benefits would be subject to forfeiture based on the relevant "break-in-service" rules.

Consequent to an amendment in the vesting schedule, the graduated vesting schedule maintained by the fund in 1972 was rescinded; instead, vesting occurred only after ten years of service. The issue then is whether when the trustees changed the vesting schedule to ten years, they did so before Williams had accrued sufficient vesting credit to gain an entitlement to benefits even under the pre-ERISA pension plan and whether Williams received proper notice of that amendment.

The gravamen of this dispute, therefore, is two-fold: (1) whether the amendment to the vesting schedule became effective on January 1, 1976 or only later, in November 1977, when the amendment to the vesting schedule was embodied in a formal printed restatement of the plan; and (2) whether Williams received notice of the fund's amendment to the vesting schedule in time for him to adjust his work plans so as to secure a pension benefit.

The Court rejected Williams' arguments relating to any potential benefits accrued before the amendment and found the defendants provided proper and sufficient notice of the amendment. Held that the Williams' motion for summary judgment denied and defendant's motion granted.

The full opinion is available in PDF.

Stewart v. State (Ct. of Appeals)

2007-05-21T01:05:00.000-05:00

Filed May 11, 2007--Opinion by Judge Irma Raker, Dissent by Chief Judge Robert M. Bell.

Stewart was indicted in a multi-count indictment alleging child abuse, second degree sexual offense, third degree sexual offense, and fourth degree sexual offense. The court sentenced him to a term of incarceration of twenty years on the child abuse offense and merged the sexual offenses into the child abuse conviction for sentencing purposes. The single issue in this appeal involves the failure of the circuit court to ask certain questions to the venire panel during voir dire that were requested by defense counsel.

Defense counsel submitted two voir dire documents -- "Defendant's Requested Voir Dire," containing eighteen questions, and "Amended Defendant's Requested Voir Dire," containing fifty-two questions. Defense counsel withdrew the initial voir dire request and substituted the amended version. It is the failure of the trial court to ask the questions on the amended voir dire request that is the subject of this appeal.

In Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification and not, as in many other states, to include the intelligent exercise of preemptory challenges. The scope of voir dire and the form of questions propounded rests firmly within the discretion of the trial judge, as it is the responsibility of the trial judge to conduct an adequate voir dire to eliminate from the venire panel prospective jurors who will be unable to perform their duty fairly and impartially and to uncover bias and prejudice. In reviewing the court's exercise of discretion during voir dire, the standard is whether the questions posed and the procedures employed created a reasonable assurance that prejudice would be discovered if present. Further, on review of voir dire, the appellate court looks at the record as a whole to determine whether the matter has been fairly covered.

As to the scope of inquiry and the decision as to whether to permit a particular question, the trial judge is not required, with some limited exceptions, to ask specific questions requested by trial counsel. Questions which are not directed at a specific ground for disqualification, which are merely fishing for information to assist in the exercise of preemptory challegnes, which probe the prospective juror's knowledge of the law, ask a juror to make a specific commitment, or address sentencing considerations are not proper in voir dire.

Here, the record is replete with indications that the court fulfilled its duty to empanel an impartial jury. Therefore, the Court held the trial court did not abuse its discretion in declining to propount appellant's requested voir dire.

The full opinion is available in PDF.

Brown v. American Institutes for Research, (Maryland U.S.D.C.) (Approved for Publication)

2007-05-19T09:40:00.000-05:00

Opinion Issued May 17, 2007--Opinion by Judge Roger W. Titus. (Approved for publication.)

The first paragraph of the Court's opinion establishes its theme:

This case exemplifies the old adage that "you can lead a horse to water, but you can't make him drink." The Plaintiff is the horse of this story, and the water that she was led to, but would not drink, was effective service of process. In spite of repeated opportunities provided to the Plaintiff to effect valid service of process, she simply would not drink the water. However, valid service of process is essential to the concept of due process, and when it has not been effected, the due processes of the law cannot even begin. The details of this sad story follow.

The plaintiff first attempted to serve process on the corporation by serving an individual who was not an officer of the corporation. The name of the defendant as set forth in the complaint was also incorrect. Furthermore, the plaintiff used certified mail to make this first attempt, but failed to check the box on the return receipt requesting restricted delivery.

The defendant responded with a motion to dismiss under Fed.R.Civ.Proc. 12(b)(5) for failure to effect proper service. Attached to the motion was a printout from the Maryland State Department of Assessments and Taxation showing the correct name of the defendant and the name and address of the resident agent.

After the initial motion to dismiss was filed, the plaintiff made two additional attempts to effect service, one by certified mail to the same individual that the first attempt was made to, but at a different address, and another via private process server to the residence of a vice-president of the defendant. This time, the certified mail was signed for by an individual who was not authorized to accept service and the delivery by private process server was made only to the residence of the vice-president, not upon her personally. Oddly, the plaintiff's counsel again asserted that, after checking with appropriate authorities in Maryland and the District of Columbia, he could not identify a resident agent for the defendant even though this information had been provided in the motion to dismiss previously filed by the defendant.

After reviewing both the federal rules and the pertinent Maryland rules regarding service of process, the Court granted the defendant's motion. It allowed the plaintiff until May 30, 2007, to properly effect service and, sua sponte, amended the complaint to reflect the correct name of the defendant. In its opinion, the Court quoted at length the late Chief Judge of the Court of Special Appeals of Maryland from the opinion in Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 374 A.2d 419, 420-21 (1977):

[P]rocedural rules are "the lawyer's compass and serve to help him steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself with" the applicable procedural rules before filing and trying a case. [Chief Judge Gilbert] went on to lament that notwithstanding the importuning of appellate courts that the "rules of procedure are not to be considered as mere guides or Heloise's helpful hints to the practice of law, but rather precise rubrics that are to be read and followed, admonitions go unheeded by some practitioners. When that occurs, we are left to wonder whether we are engaged in an endless struggle, just as waves beat upon the shore, fall back and then repeat over and over ad infinitum."

Id. at 584-85, 374 A.2d at 421.

A copy of the opinion is available in PDF, as is a copy of the order.

Prince George County v. Ray's Used Cars (Ct. of Appeals)

2007-05-19T07:55:00.000-05:00

Filed May 4, 2003--Opinion by Judge John Eldridge.

This case concerns a challenge to the constitutionality of a zoning ordinance establishing the minimum lot size of 25,000 square feet for used motor vehicle, mobile home or camping trailer sales lots. The dispositive issue in the case, however, is whether the ordinance's challengers were first required to invoke and exhaust administrative remedies. The petitioner, Prince George's County, argues that a judicial determination of the constitutionality of the zoning ordinance is premature because the respondent used car dealers failed to invoke and exhaust their administrative remedies. The respondents claim that pursuit and exhaustion of administrative remedies were not required in this case and that the zoning ordinance is unconstitutional on the ground that it violates due process and equal protection principles.

The Court held that the respondent used car dealers were required to invoke and exhaust administrative remedies prior to obtaining judicial review.

The full opinion is available in PDF.

Patterson Park v. Teachers Union (Ct. of Appeals)

2007-05-18T07:58:00.000-05:00

Filed May 11, 2007--Opinion by Judge Lynne Battaglia.

The Baltimore Teachers Union ("the Union") and the Baltimore City Board of School Commissioners ("City Board") sought review of the Circuit Court for Baltimore City's decision that the Maryland State Board of Education was able to grant waivers to the provisions of Section 9-108(a) of the Education Article dealing with public charter schools, and that the State Board had original jurisdiction over Section 9-106(b) waiver applications. Conversely, Patterson Park Public Charter School, Inc. and the Midtown Academy, Inc. sought review of the Circuit Court's decision to reverse the grant of Section 9-108(b) waivers by the State Board on grounds that the Unions were denied the opportunity to participate in the waiver application process, and also of the Circuit Court's decision that the State Board appropriately denied Midtown Academy's application for waivers of Section 4-103(a) and 6-201.

Before any proceedings in the intermediate appellate court, the Court of Appeals, on its own initiative, issued a writ of certiorari. The Court determined that, based upon the clear language of Section 9-106 of the Education Article, the State Board may only grant waivers of provisions applying to all public schools, and not those specific to just public charter schools, and therefore Title 9's provisions were not subject to waiver under Section 9-106(b). The Court further concluded that, because local boards of education have no authority to waive State laws and regulations, they had no jurisdiction over Section 9-106(b) waiver applications implicating State laws or regulations over which the State Board has original jurisdiction.

The Court also held that the Unions, as the exclusive representative of Baltimore City school employees, had a statutory and fiduciary duty to represent the Baltimore City public school employees in the waiver proceedings, and thus the State Board erred by not giving the Unions proper notice or opportunity to be heard in the waiver proceedings. The Court further concluded that the State Board's decision denying waivers requested by Midtown Academy under Sections 4-103(a) and 6-201 was within its authority and was not inconsistent with law. The Court, therefore, vacated the Circuit Court's ruling and remanded the case for further proceedings before the State Board of Education consistent with its holding.

The full opinion is available in PDF.

McFadden v. Grasmick, et al. (Maryland U.S.D.C.) (Approved for Publication)

2007-05-16T05:03:00.000-05:00

Filed May 12, 2007--Opinion and Order by Judge Andre M. Davis.

This is an action brought pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., and 42 U.S.C. § 1983, seeking declaratory and injunctive relief in respect to the manner in which defendants, state educational officials and their agents and designees, operate the statewide system of track and field competition in Maryland.

Paralyzed from below her waist, McFadden uses a wheelchair for mobility and, by all accounts, is a world class and Olympic wheelchair racer competing in several events. She contends that defendants unlawfully discriminate against her, as a student athlete who uses a wheelchair, because their rules and protocols for assigning team points in statewide track and field competition preclude her from earning points for her team. She, therefore, seeks a preliminary injunction forbidding defendants from declining to award her one point for the successful completion of her events at the 2007 Spring Tournament.

Based in part on a February 2007 report, a plan for 12 wheelchair racing events were added to the 2007 Spring Tournament. Each wheeler may compete in up to four events, the same limit applicable to non-wheelers. The plan provides that all of the wheelchair races will be conducted on a statewide basis rather than on a class basis. In other words, the 188 secondary schools in Maryland are divided into four classes based on the number of students attending a school. Except in wheelchair race events, a student/team competes only against students in their class. Wheelchair racers (there are only three in the state) compete as a "class" without earning points for his or her team. Defendants defend their decision to assign no team points for the wheelchair races as fully consistent with policy regarding "new team events." When a "new team event" is added to state-sanctioned tournaments, the results of such event do not earn team points in the determination of team championship until high schools representing at least 40% of the jurisdictions in a particular class participate in that event during the regular and post season.

Before a preliminary injunction will issue, four factors must be evaluated: (1) the likelihood of irreperable harm to the plaintiff if the preliminary injunction is denied; (2) the likelihood of harm to the defendant if the requested relief is granted; (3) the likelihood that plaintiff will succeed on the merits; and (4) the public interest. The Court found an extraordinarily close balance of harms between McFadden and the defendants.

However, the Court reasoned, based on the third factor, that the likelihood of McFadden's success on the merits of her claims is sufficiently attenuated that the extraordinary remedy of a preliminary injunction was not justified. McFadden's claims were brought under the ADA and the Rehabilitation Act, for which success requires establishment of a prima facie case by showing that (1) she has a disability, (2) she is otherwise qualified to receive the benefits of a public service program or activity, and (3) she was excluded from participation in or denied the benefits of such service, program or activity, or otherwise discriminated against, on the basis of her disability. The Court found McFadden satisifed the first two elements. However, McFadden expressly agreed that, at the bottom, this is a discrimination case. As to the likelihood of success on the merits, therefore, the dispositive issue is whether McFadden will be able to show at trial that she is being treated less favorably on account of her disability, i.e., whether the constraints on McFadden's ability to earn points for her team differ in any material, legally cognizable way from the constraints on the opportunity of similarly situated students. That answer was "no."

The essence of unlawful discrimination is disparate treatment of two similarly situated individuals on the basis of a prohibited characteristic. As mentioned above, defendants award team points only when schools representing 40% of the students in a particular class participate in any event. Thus, given the limited participation in wheelchair racing at the statewide competiton (again, there are three), McFadden is treated no differently than is any student at any school who participates in any event with insufficient participation. Even though Howard County is the only jurisdiction offering varsity wheelchair racing, and even though only two schools in Howard County have competitors in wheelchair racing, defendants will count all of Howard County's 12 secondary schools toward the 40% minimum needed to elevate wheelchair racing to an event for which team points are awarded.

In sum, it is not likely that, upon a full review of the merits of McFadden's claims, the court will be pursuaded that it is discriminatory under the disability rights statutes for defendants to maintain a difference in the opportunity of wheelchair racers, in contrast to non-wheelchair racers, to earn points for teams, where all but a small number of teams are significantly under-represented in the distinct class of competitors of which McFadden is the sole member: wheelers. Accordingly, McFadden's request for preliminary injunction does not satisfy the long-standing criteria applicable to such efforts and the motion is denied.

The full opinion is available in PDF.

Breen v. Buttman (a.k.a. Guttman); In Re: John S. and Teresa J. Breen (U.S.D.C. Md.) (Not Approved for Publication)

2007-05-11T09:02:00.000-05:00

Filed May 8, 2007. Opinion by Judge Richard D. Bennett.

This case was an appeal from the Order of United States Bankruptcy Judge Robert A. Gordon denying a Motion to Reconsider filed by Appellant-Debtors John S. Breen and Theresa J. Breen ("Appellants").

The Appellants filed a chapter 7 bankruptcy on May 17, 2002. On August 28, 2002, an Order of Discharge was entered and the case was closed on September 15, 2005. In 2003, before the bankruptcy case was closed, Appellant John Breen filed a complaint against his former employer in the Circuit Court for Baltimore County (the "State Court Litigation") alleging numerous causes of action based in large part from the allegation that Mr. Breen was not paid the full value of commissions earned while working as a finance manager for a car dealership.

In response to a motion to dismiss by the defendants in the State Court Litigation, Appellants filed a motion to reopen their bankruptcy case, which was granted "for the limited purpose of permitting the Debtor(s) to determine the estate’s interest in the state court action..." The Bankruptcy Court also ordered that a trustee be appointed in the reopened case (the "Trustee").

On May 31, 2006, the Trustee sought the Bankruptcy Court's approval of a settlement that he reached with the defendants in the State Court Litigation. The Appellants objected to the proposed settlement on the grounds that "'[t]he Debtor, John Breen, has an individual interest, separate and distinct from the estate, in the State Litigation, to which the Trustee’s authority does not extend.'"

The Bankruptcy Court found "'[T]hat (a) but for the amount of $500, the causes of action set forth in the Complaint and Amended Complaint pending in the Circuit Court of Baltimore County, ... are property of the bankruptcy estate, (b) the Trustee has good and sufficient cause for settling the State Litigation ... and (c) John Breen (the "Debtor") is entitled to an exemption in the amount of $5,028.51.'"

The Appellants appealed two issues: "(a) Whether the Bankruptcy Court erred in exercising jurisdiction over debtor’s post-petition wages and other state law claims and by extending the Trustee's authority to administer non-estate property?;" and "(b) Whether the Bankruptcy court erred in concluding that claims based upon post-petition events, during debtor's post-petition employment, and giving rise to post-petition damages, are property of the Chapter 7 bankruptcy estate?"

In rejecting the Appellants' arguments, the Court found that (1) "the Bankruptcy Court possessed 'related to' jurisdiction over the State Court Litigation;" (2) "the Trustee possessed authority to pursue the settlement of the" State Court Litigation; (3) "the Bankruptcy Court provided the Appellants with a full and fair opportunity to present evidence establishing the existence and value of post-petition claims before approving the proposed settlement;" and (4) the Bankruptcy Court's factual findings were not clearly erroneous.

Orders of the United States Bankruptcy Judge Robert A. Gordon are AFFIRMED.

The full opinion is available in PDF format.

Educational Testing Service v. Hildebrant (Ct. of Appeals)

2007-05-10T13:30:00.000-05:00

Filed: May 10, 2007—Opinion by Judge Irma Raker

Hildebrant sued Educational Service ("ETS") for malicious defamation and breach of contract after ETS concluded that Hildebrant had not followed mandatory testing procedures and canceled her test scores. According to Hildebrant, ETS breached its contract with her by failing to “"fairly and accurately report her leadership assessment scores" to the Montgomery County Board of Education. The Court of Special Appeals had earlier reversed summary judgment on the breach of contract claim and remanded for further proceedings based on an affidavit by Hildebrant denying that she failed to follow testing procedures.

The Court of Appeals disagreed on the ground that an affidavit that presents a general, conclusory denial of misconduct is not sufficient to establish a genuine dispute of material fact as to whether a testing proctor acted in bad faith. The Court ruled that the trial judge was correct in granting summary judgment for ETS where Hildebrant acknowledged her acceptance of the contract with ETS and did not create a genuine issue of material fact as to whether Baker had acted in bad faith. The decision by the CSA was reversed with instructions to remand.

The full opinion is available in PDF.

Layton v. Howard County Board of Appeals (Ct. of Appeals)

2007-05-09T14:16:00.000-05:00

Filed May 9, 2007. Opinion by Judge Dale R. Cathell. Dissenting opinion by Judge Alan M. Wilner (retired, specially assigned).

From the official headnote:

Reaffirming the Yorkdale Corporation v. Powell, 237 Md. 121, 205 A.2d 269 (1964) rule that a change in statutory law that takes place during the course of the litigation of a land use or zoning issue shall be retrospectively applied by appellate courts whether it operates to deny, i.e., moot an application (provided that it does not affect the vested rights of a party), or applies in an opposite context.

The owners and operators of a wildlife and primate sanctuary ("Layton") had sought a special exception from the Howard County Board of Appeals (the "Board") to bring their operation into compliance with that county's zoning ordinances, but were denied permission to operate as a primate sanctuary. Prior to the Circuit Court's hearing of Layton's appeal of the Board's decision, the pertinent part of the Howard County Code was amended, changing the definition upon which the Board had relied in denying the special exception. Nonetheless, the Circuit Court affirmed the Board's decision, ruling in part that the change was not to be given retroactive effect. The Court of Special Appeals, in a reported decision, affirmed.

On appeal, the Court noted that the general rule is that statutes, and substantive statutory changes, are to be given only prospective, and not retrospective, effect, unless otherwise indicated by the legislature. One relevant exception to the general rule was stated in the Yorkdale case, where retrospective application is given to changes to statutes that impact land use issues made during the course of litigation in land use and zoning cases, unless vested or accrued substantive rights would be disturbed or the legislature had shown a contrary intent. Reviewing the cases since Yorkdale, the Court concluded that the rule set forth in Yorkdale was still good law, and had not been overturned, in the Riverdale case, the CSA's Holland case, or otherwise.

In dissent, Judge Wilner argued that, though the Court had treated zoning cases differently in the past, there was "no practical or jurisprudential basis for such a distinction, and the Court offers none." Absent legislative expression that a law is to be applied retrospectively, Judge Wilner argued for a consistent rule that prospective application would be given to substantive changes, and retrospective application only for procedural changes, and overruling the exception created in Yorkdale and its progeny.

The majority and dissenting opinions are available in PDF format.

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

2007-05-08T12:24:00.000-05:00

Filed May 8, 2007. Opinion by Chief Judge Robert M. Bell.

Respondent ("Goff") was charged with violating Rules 1.1, Competence, 1.3, Diligence, 1.15, Safekeeping Property, 5.3, Responsibilities Regarding Non-lawyer Assistants, 8.1, Bar Admission and Disciplinary Matters, and 8.4, Misconduct, and the petitioner (the "AGC") recommended an indefinite suspension, while Goff suggested no sanction was needed, or at the most a reprimand or 30 day suspension. After considering the report of the hearings judge, the Court agreed with the AGC, and ordered the indefinite suspension of Goff, with the right to apply for readmission after 60 days.

As an adjunct to a client's request to handle the sale of certain parcels of land owned by various members of the client's family, Goff agreed to open three estates for deceased family members who held record title to several parcels. After the sale, most of the proceeds were distributed without controversy, but the portion of proceeds held on behalf of one estate were not timely distributed, and Goff was not responsive to inquiries by family members and their counsel. Some time after a complaint had been filed with bar counsel, Goff distributed the remaining proceeds.

Goff was incompletely and less than timely responsive to bar counsel's repeated requests, and the subsequent investigation revealed many shortcomings in Goff's records and escrow account administration. When several overdraft notices were subsequently received by bar counsel, the investigation was widened to include several of Goff's other escrow accounts, and more errors and inappropriate practices were revealed. Computer crashes, and the failure to make timely and adequate backups, had added to the problem by destroying blocks of escrow account records. Throughout, Goff exhibited behavior that the hearing judge characterized as "lackadasical" and "unreliable", leading to the conclusion that Goff's representation was "incompetent".

The Court had little trouble finding no merit in Goff's multiple exceptions, including his claim that, because most of his professional activities were as a title insurance agent, he was exempt from liability under the Code of Professional Conduct. On that point, the Court found the conduct here was clearly legal representation, easily distinguishable from prior cases where the conduct in question was solely as a title agent.

By contrast, the Court upheld the AGC's exceptions, correcting a "technical" error in referring to the current rather than the then-existing statute, and finding an additional violation not confirmed by the hearing judge below.

The opinion is available in PDF format.

O’gray Import & Export v. British Airways (U.S.D.C. Md.)(Not Approved for Publication)

2007-05-08T11:09:00.000-05:00

Filed May 4, 2007--Opinion by Judge Richard D. Bennet

In an action by O’gray Import & Export against British Airways, PLC for damages due to British Airways’s delivery of spoiled cargo, the court granted a defense motion for summary judgment. According to the facts found by the Court, O’gray Import & Export hired British Airways to transport smoked fish from Accra, Ghana to Baltimore-Washington International Airport. The cargo arrived more than five days after the expected date and was delivered to the wrong shipper. When the FDA inspected the fish it was released to O’gray but placed on a hold because there was evidence of mold. Eventually the FDA found that the fish was not edible for sale to the public and denied entry of the shipment.

The Court determined that O’gray had failed to comply with the notice requirements of the Warsaw Convention, which governed the transportation at issue, and therefore its claim against British Airways was barred. On that basis the court granted the Defendant’s Motion for Summary Judgment.

The full opinion is available in PDF.

Lorraine v. Markel American Ins. Co. (U.S.D.C. MD)

2007-05-08T10:27:00.000-05:00

Filed May 4, 2007--Opinion by Judge Paul Grimm

In an action brought to enforce a private arbitrator’s award for damage to a yacht, the court determined that the motion by the boat owners was properly considered as a motion to modify the award under the Federal Arbitration Act, while the motion by the insurance company sought to enforce the award rather than have it increased as requested by the boat owners. The court denied both motions without prejudice because counsel for both sides had failed to establish the authenticity of their exhibits, to resolve potential hearsay issues, to comply with the original writing rule, and to demonstrate the absence of unfair prejudice to the extent that their exhibits were inadmissible.

In its 101 page opinion, the court dedicated at least 90 pages to providing extensive and detailed analysis and guidance on the interrelated evidentiary issues governing the admissibility of electronically stored evidence (ESI), including: analysis under Rule 104, relevance under Rule 401, authentication as required by Rule 901(a), effect of hearsay as defined by Rule 801 and any applicable exceptions, consideration of the form of the ESI being offered under the original writing rule and the admissibility of any secondary evidence to prove its content, and the probative value of the ESI considering potential unfair prejudice or one of the other factors identified by Rule 403.

The full opinion is available in PDF.

Johns Hopkins Hospital v. Correia (Ct. of Special Appeals)

2007-05-07T14:16:00.000-05:00

Filed April 30, 2007. Opinion by Judge James P. Salmon.

Issue: Does the owner-operator of an elevator owe its passengers the same "highest degree of care" owed by common carrier to passengers?

Held: Yes. The jury's verdict is affirmed. The 1906 precedent set in Belvedere Building Co. v. Bryan still stands: the owner-operator of an elevator owes its passengers the same duty as a common carrier - the highest degree of care practicable under the circumstances.

Facts: The plaintiff was injured on an elevator owned and operated by Johns Hopkins when it came to a sudden stop because of a mechanical defect. At trial, the plaintiff introduced evidence that showed that, in the six months prior to the accident, Johns Hopkins had received thirty-two complaints about the elevator. At the conclusion of the case, the trial court instructed the jury that the owner of elevators "is bound to exercise the highest degree of care and skill and diligence . . . practicable under the circumstances to guard against injury to
individuals riding on those elevators." The trial court based its instruction upon case law that was decided over 100 years before, affirmed in the 1930's, and not addressed since.

The jury returned a verdict for the plaintiff, and Johns Hopkins appealed. Johns Hopkins contended that the trial court's instruction was erroneous. Johns Hopkins argued that the owner of an elevator owes a passenger the same duty that a property owner owes an invitee, i.e., the duty to use reasonable care to see that the portion of the property that the invitee is expected to use is safe. Not the heightened duty of a common carrier.

The full opinion is available in PDF.

In the Matter of R.M.W. (U.S.D.C.)(Approved for Publication)

2007-05-06T08:17:00.000-05:00

Signed May 1, 2007--Opinion by Judges Peter J. Messitte, Benson E. Legg, and Andre M. Davis. Approved for publication.

R.M.W., a former member of the Bar of the U.S. District Court for the District of Maryland, was convicted of several felonies and as a result lost his bar membership. He petitioned for readmission to membership. Previously in this case, the U.S. District Court, en banc, had ruled that the standards applicable to the evaluation of application for membership in the Bar by individuals convicted of felonies should also apply to applications for readmission.

The case involving admissions to the Bar, In the Matter of S.G.P., 428 F.Supp. 2d 389 (D. Md. 2006) overruled In the Matter of G.L.S., 586 F.Supp. 375 (D. Md. 1984), and established new criteria for the evaluation of applications and reapplications for membership in the Bar by individuals convicted of felonies.

The factors to be considered are as follows:

1. The nature and character of the offense or offenses committed;

2. The number and duration of offenses and the sentence as to each;

3. The period of any probation or supervised release term and whether the petitioner's adjustment to same was satisfactory;

4. The age and maturity of the applicant when the offenses were committed;

5. The grant or denial of a pardon for any offenses committed;

6. Whether the petitioner was disbarred by any other court;

7. The number of years that have elapsed since the last offense was committed, and the presence or absence of misconduct during that period;

8. Whether the petitioner has complied in all respects with the terms and conditions of prior disciplinary or remedial orders, including the payment of any costs ordered by the disbarring court;

9. Whether the petitioner has engaged or attempted or offered to engage in the unauthorized practice of law;

10. With regard to any incapacity or infirmity (including alcohol or drug abuse), whether it has ceased to exist and is not reasonably likely to recur in the future;

11. Whether the petitioner recognizes the wrongfulness and seriousness of the professional misconduct for which discipline was imposed;

12. Whether the petitioner currently has the requisite honesty and integrity to practice law;

13. The opinions of character witnesses about the applicant's moral fitness;

14. Whether the petitioner has kept informed about recent developments in the law and is competent to practice law;

15. Any other re-admissions to the bar since the petitioner's disbarment;

16. Any other matter that the petitioner may deem relevant to the application or that may be specifically requested by the Court.

R.M.W. began to practice law in his home town, Frederick, Maryland, immediately after graduating law school and passing the bar in 1975. Having used marijuana and other drugs as early as his high school days, by the late 1970's he had become addicted to cocaine and alcohol. In his law practice, much of which involved representation of clients charged with drinking and driving offenses and family matters, he was often paid in cash which he intentionally failed to report as income. This unreported income was used to purchase cocaine for his own consumption such that, during the period of time before his arrest, he was spending between $30,000 and $40,000 a year on his drug habit.

In September 1982, a search warrant was executed on Respondent's residence, which ultimately led to felony convictions both in Maryland state courts (state tax offenses) and federal court (drug offenses) and his disbarment from membership in the Maryland U.S.D.C. He spent a little more than nine months in various federal and Maryland detention facilities.

R.M.W. was suspended from the practice of law by the Maryland Court of Appeals in April 1985 and disbarred on June 4, 1987. He was disbarred by the Maryland U.S.D.C. on July 10, 1984.

R.M.W. was reinstated to the Maryland Bar by Order dated January 7, 2000 signed by Chief Judge Bell for the Maryland Court of Appeals, "with a majority of the Court concurring." He was returned to the Registry of Attorneys on February 3, 2000. Since that time he has satisfied the conditions set forth in that Order in every respect.

The opinion relates in detail the story of R.M.W.'s rehabilitation. As noted in the opinion, the report of the special investigator appointed by the court found that "One Judge [in Frederick County] described Respondent as 'a poster child' for rehabilitation. All the Judges [in Frederick County] enthusiastically support [his] current petition for reinstatement."

In concluding, the panel said as follows:

This Court believes that dishonesty involved in evading income taxes and in not filing tax returns has always been a serious matter. Drug activity today has become a matter of prime concern in the criminal justice system. Indeed, were [R.M.W.'s] cases to have come before a federal court in 2007, it is clear that the punishment to be imposed would be considerably more severe than that which was imposed by the state and federal judges in the mid-1980's.

But whatever the courts of some jurisdictions may believe about the permanent disqualification to serve as an attorney of an individual who has been convicted of a crime of dishonesty, this Court, joining the majority of courts, takes a different view. The Court believes that, when sufficient time has passed since the criminal activity, when there is manifest indication of the individual’s rehabilitation and remorse as well as his skill to serve as an attorney, when all that is presented to the Court in a clear and convincing matter, there is still room for someone to rejoin (or indeed to join in the first instance) the ranks of the Bar of this Court.

Accordingly, the Court concludes that [R.M.W.'s] rehabilitation is genuine and that he does indeed represent a benchmark for attorneys similarly situated who would seek reinstatement in our Bar.

A copy of the opinion is available in PDF as is a copy of the order. Note: As of this posting, the link provided here is correct, while the link to the opinion on the Court's website is not.

Update: A memorandum in this case by the special investigator appointed by the Court as to the issue of whether there is criminal conduct so serious or heinous to preclude reinstatement has been posted here.The Court ordered that the memorandum be attached to the opinion and recommended it for publication because "the memorandum is extraordinarily thorough in its exposition of a very important issue not well illuminated by the case law which would almost certainly prove useful to other courts facing the issue."

State v. Rush (Ct. of Special Appeals)

2007-05-05T23:32:00.000-05:00

Filed April 27, 2007--Opinion by Judge Deborah S. Eyler.

In its murder prosecution against Rush, the State has appealed a pre-trial ruling suppressing from evidence inculpatory statements Rush gave to the police.

The issues before the court at the suppression hearing were whether Rush's statements were obtained in violation of Miranda and whether her statements had been obtained voluntarily. The circuit court ruled that Rush's statements had been obtained in violation of Miranda and would be suppressed on that ground. Further, the court made plain that it was granting the suppression motion on the Miranda violation ground only and was not granting it on the alternative involuntariness ground.

The issue stems from a murder investigation for which Rush was brought in to the police station and questioned. Subsequent to some light background conversation on the investigation, the detective proceeded to advise Rush of her rights using a standard Advice of Rights Form ("Form"), to which he made a handwritten alteration. The form with the alteration stated, in relevant part:

If you want a lawyer, but cannot afford one, a lawyer will be provided to you @ some time at no cost.

The bolded portion is the handwritten addition made by the detective. Rush read the form and, when the detective asked Rush whether it all made sense, she replied in the affirmative. He then asked several questions to verify that she understood the stated advisements and had her initial next to the four answers on the form, confirming:

that she understood the rights that had been read to her;
that she wanted to make a statement at that time without a lawyer;
that she had not been offered any kind of reward or benefit nor had she been threatened in any way in order to get her to make a statement; and
that she was not under the influence of alcohol or drugs.

Prior to Rush signing the form, she asked " . . . do I need a lawyer or somethin' or is it, am I just in here for . . . questioning?" The detective responded, ". . . if you decide at that, any point in time during our questioning that you feel that that'd be the best for you, then you let me know that. Okay?" Ultimately, Rush signed and noted her level of education below her signature.

At the suppression hearing, the detective explained that handwriting the words "@ some time" is his usual practice because "[a lawyer] is not going to magically appear. It's going to take a little time for a lawyer to be provided to her for a representation. . ." Rush testified that she did not remember being advised of her rights but did remember being told that a lawyer would be appointed for her "after [she] would go to jail." She then acknowledged, however, that that was said to her only after the interrogation had concluded.

On review, the Court assessed the advisements given to Rush in their totality. By means of Advisement 2, "You have the right to talk to a lawyer before you are asked any questions and to have a lawyer with you while you are being questioned," Rush was told orally and in writing that she had the right to talk to a lawyer. She was then informed, by means of Advisement 3, also orally and in writing, that if she could not afford a lawyer, one would be provided for her at some time, at no cost. Under Eagan and Prysock, the added language did not violate Miranda because the warnings, as given, told Rush in straightforward language that she had a right to talk to a lawyer before being questioned and to have a lawyer present during questioning. Advisement 3, as altered by the words "at some time," was not inconsistent with the rights communicated in Advisement 2. Its message, stated separately from Advisement 2 because its topic was not the same, was that, if Rush decided that she wanted a lawyer, i.e., to exercise the right to a lawyer communicated in Advisement 2, but she did not have the resources to pay for a lawyer, she would be given a lawyer at no cost and at some time. Read objectively, this message did not tell Rush that, if she indeed asked for a lawyer right then, she nevertheless would have to undergo questioning without a lawyer until her lawyer arrived "at some time."

Rush argues that the detective actually asked her a few questions before advising her of her rights and, by doing so, created the impression that the interrogation had begun and the advice-of-rights had no bearing on Rush's ability to stop the interrogation. The Court reasoned that the questions posed prior to advising Rush of her rights were meant to orient her and to determine whether she had any first-hand familiarity with the Miranda warnings before he gave them to her. Further, the remarks made by Rush while the Miranda warnings were being given, and subsequently during the interview, evidence no confusion about her right to counsel and show that she was willing to speak to the police at the outset of the interview and as it progressed. Rush affirmatively stated she was willing to speak with police without a lawyer; and in doing so, she said nothing to suggest that she thought she had no choice in the matter. Rush even inquired whether she "needed" a lawyer, which prompted the detective to advise her that it was her decision and that she could make that decision at any time and questioning would cease.

Based on the stated reasoning, this Court held the circuit court erred in holding that Rush was not advised of her rights in accordance with Miranda and in granting her motion to suppress her statements from evidence on that ground.

With this holding, ordinarily the Court's inquiry would end. However, Rush asked they address the alternative voluntariness and argues that her statements were induced by improper promises and threats and, therefore, were involuntary and subject to suppression even if Miranda were complied with. As opposed to the State, a criminal defendant has no right to immediately appeal a circuit court's decision not to suppress evidence and has no right to pursue a cross-appeal in a State's appeal under CJ section 12-302(c)(3). The criminal defendant, unlike the State, is not without remedy if inculpatory evidence is erroneously admitted at trial, as he may raise the error on appeal after a final judgment of conviction. The legislature created the right of immediate appeal for the State in order to equalize the opportunities the parties have in criminal cases for meaningful correction of erroneous pretrial evidentiary rulings, made on constitutional grounds. The objective was to provide a vehicle to challenge a pre-trial ruling excluding critical evidence so that, if the ruling were erroneous, the error could be corrected before jeopardy would attach. Without such a right of immediate appeal, the State has no meaningful opportunity for error correction, because under double jeopardy principles and the developed case law on verdicts of acquittal, the State cannot appeal from a final judgment in favor of the defendant. The Court reasoned, however, that as the fields have been leveled, it would amount to an enourmous waste of judicial time and resources, and contrary to policies favoring judicial economy, to delay fully ruling on the correctness of a pre-trial suppression ruling when an immediate appeal has been taken.

To be voluntary, a confession must be "freely and voluntarily made at a time when [the defendant] knew and understood what he was saying." Similarly, in order to pass federal and Maryland constitutional muster, a confession must be voluntary, knowing and intelligent. The burden falls on the State to show "affirmatively that the inculpatory statement was freely and voluntarily made." Ordinarily, voluntariness is determined based on a totality of the circumstances test. When a confession is preceded or accompanied by threats or a promise of advantage, however, those factors are transcendant and decisive, and the confession will be deemed involuntary unless the State can establish that such threats or promises in no way induced the statement (the "Hillard" test). The first prong of Hillard is objective -- whether the police or State agent made a threat, promise or inducement, i.e., that is not, as a matter of routine, done for all suspects. Mere exhortations to tell the truth and appeals to a suspect's inner conscience has been held not to be improper. Further, the suspect's subjective belief that he will be advantaged in some way by confessing is irrelevant. The second prong of Hillard triggers a causation analysis to determine whether there was a nexus between the promise or inducement and the accused's confession.

Rush maintains the detective made improper promises during her interrogation that caused her will to be overborne, resulting in her making incriminating statements -- he promised "to help her if she told him the truth." The essential questions to answer are: (1) whether, to a reasonable person in Rush's circumstances, any of the detective's statements urging her to tell the truth were coupled with a promise, express or implied, that there would be a special benefit in doing so; and (2) if so, whether any such improper promise caused her to make an incriminating statement. The Court found that, because the interrogation was recorded, there was no factual dispute about what was said.

The Court agreed with Rush that several of the detective's comments were implied inducements in which he suggested that it would be advantageous to Rush, in terms of the charges she was facing, to speak out and reveal all she knew about the events leading up to the murder. He made two references that strongly implied a special benefit from speaking: 1) that there could be "salvation" for Rush if she told the truth, but, if not, she would remain in "major trouble"; and 2) that if Rush were to tell him "exactly what happened and why it happened," "we can resolve this and get it over with. . . ." These comments went beyond mere pleas to honesty and good conscience. Rather, they conveyed the message that a full statement would get the detective's assistance in making the first degree murder warrant go away so she would not have to "take the ride, take the charge," because the charge would be "resolved." A reasonable person in Rush's circumstances -- age 20 and having a 9th grade education - was an improper inducement. Accordingly, the Court affirms the order of the circuit court suppressing Rush's statements from evidence, in part, and vacates in part.

The full opinion is available in PDF.

Cornfeld v. State Board of Physicians (Ct. of Special Appeals)

2007-05-05T22:51:00.000-05:00

Filed May 2, 2007--Opinion by Judge Sally Adkins.

The State Board of Physicians ("Board") found Cornfeld (1) violated the standard of care in his treatment of a surgical patient by leaving her under anesthesia and unattended in the operating room, and (2) engaged in unprofessional conduct in the practice of medicine by misrepresenting to both a hospital peer review investigator and the Board that improper settings on the surgical instrument he used were not made to his specifications. The Board suspended Cornfeld's license to practice medicine until he satisfied certain conditions and imposed a three year probationary period thereafter. The Circuit Court for Baltimore City affirmed the Board's order. Cornfeld appeals, raising five issues for review:

Did the Board err in concluding that Dr. Cornfeld engaged in unprofessional conduct "in the practice of medicine" by making misrepresentations during hospital peer review and Board investigations?
Did the Board violate section 14-401(i) of the Medical Practice Act by failing to complete its investigation within 18 months, or to explain its delay, requiring dismissal of the complaint against Cornfeld?
Is the Board's conclusion that Dr. Cornfeld violated the standard of care by leaving an anesthetized patient unattended in the operating room supported by substantial evidence?
Is the sanction imposed by the Board "so disproportionate as to constitute arbitrary and capricious agency action?
Did the administrative law judge abuse her discretion by excluding certain evidence offered by Dr. Cornfeld?

The Court held that Dr. Cornfeld's false statements to hospital peer reviewers and Board investigators constituted "professional misconduct in the practice of medicine." Finding substantial evidence to support the Board's decision, no abuse of discretion, and no error of law, the judgment was affirmed.

The Medical Practice Act ("Act") identifies 40 specific bases for disciplinary action, two of which explicitly pertain to conduct committed "in the practice of medicine." Section 14-404(a)(3) permits the board to disclipline a licensee who is guilty of immoral or unprofessional conduct in the practice of medicine. Section 14-404(a)(11) authorizes discipline of a physician who "wilfully makes or files a false report or record in the practice of medicine." In addition, Section 14-404(a)(22) allows disciplinary action against a licensee who "fails to meet appropriate standards as determined by appropriate peer review for the delivery of quality medical and surgical care performed in a hospital."

Prior to a gynecological procedure in October 1999, Cornfeld instructed the overseeing nurse ("Dickey") to change the settings of the surgical machine ("Bovie") to his preferred settings indicated on a card he had on file. During the procedure, he burned the patient twice and repaired the lacerations with two large Vicryl stitches. Proper notifications of the incident by Dickey ultimately led to another surgeon's ("Vincent") review and correction of Cornfeld's stitching. Upon Dickey's notification to Cornfeld that another surgeon would be conducting such review and that the patient was to remain unconscious until the review, Cornfeld replied "Do what you need to do," and then left the operating room. No other surgeon was in the operating room at that time, and it was at least two to three minutes before the reviewing surgeon arrived. MGH suspended Cornfeld's hospital privileges shortly thereafter.

In a subsequent statement through his attorney in February 2000 to the investigating Board and a peer review investigation in July 2000, Cornfeld made statements in direct opposition to the stated preference of the card he had on file and alleged Dickey was negligent. The Board filed charges against Cornfeld in November 2003, alleging both violations of the standard of care and unprofessional conduct in the practice of medicine. After an evidentiary hearing, an administrative law judge ("ALJ") initially found Cornfeld breached the standards of care applicable to the charges. However, after hearing and exceptions, the Board concluded that "the clear and convincing evidence demonstrates only that Dr. Cornfeld left an anesthetized patient unattended in the operating room and thus violated Section 14-404(a)(22)."

The Board's separate charge of unprofessional conduct was based on Cornfeld's statements regarding his instructions for the Bovie machine settings. The ALJ concluded that the misrepresentations Cornfeld made about the settings were made during the hospital peer review and Board investigation and, therefore, did not fall within the "practice of medicine." The Board sustained the State's exception to that conclusion and, in support, cited its own precedents that making a false application or submitting a false testimony for a Board proceeding are "clearly within the practice of medicine."

The Board sanctioned Cornfeld by revoking his license until he satisfied certain enumerated conditions and, once the suspension was lifted, continued Cornfeld on probation for three years, during which his practice would be subject to "Board review and peer review" at the Board's discretion.

The standards governing judicial review of the Board's decision are limited to determining whether there was substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determining whether the decision was premised upon an erroneous conclusion of law. In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached; should defer to the agency's fact-finding and drawing of inferences if they are supported by the record; must review the agency's decision in the light most favorable to it; the agency's decision is prima facie correct and presumed valid; and it is the agency's province to resolve conflicting evidence and to draw inferences from that evidence.

Unprofessional Conduct in the Practice of Medicine: The practice of medicine is statutorily defined as

to engage, with or without compensation, in medical (i) diagnosis, (ii) healing, (iii) treatment, or (iv) surgery;
"practice medicine" includes doing, undertaking, professing to do, and attempting any of the following: diagnosing, healing, treating, preventing, prescribing for, or removing any phsyical, mental or emotional ailment or supposed ailment of an individual:

by physical, mental, emotional or other process that is exercised or invoked by the practitioner, the patient, or both, or
by appliance, test, drug, operation, or treatment.

Cornfeld contends that his misconduct did not occur in the practice of medicine because it took place in the context of judicial proceedings and was unrelated to the manner in which he treated a patient such that it was directly tied to the effective delivery of patient care. The Court reasoned that this case involved misconduct that occurred during proceedings that arguably adjudicated the medical propriety of Cornfeld's care. However, the Court did not agree that the definition of the pratice of medicine was so narrowly defined so as to exclude professional misconduct during hospital peer reviews and Board disciplinary proceedings. The issue of whether a treating physician's dishonesty in a peer review or state discplinary proceeding falls within the "practice of medicine" is one of first impression, and the Court was persuaded that Cornfeld made the false statements in order to influence decisions concerning the quality of his medical care to a patient and his fitness to practice medicine at MGH specifically, and in Maryland generally. Further, Cornfeld's false statements concerned his instructions for settings on a surgical instrument he used to operate, a matter that required his medical judgment in a specific surgical procedure. These misrepresentations were made to persons responsible for evaluating Cornfeld's medical care to patients. Held: Such misrepresentations were directly tied to medical treatment and surgery within the statutory definition of "practice medicine."

Delay in Board Investigation: The relevant section, 14-404(j)(2), states "If the Board is unable to complete the disposition of a complaint within 1 year, the Board shall include in the record of that complaint a detailed explanation of the reason for the delay."

Although the investigation was opened in January 2000, charges were not issued for more than three years. Cornfeld contends that, despite repeatedly raising the issue of untimeliness of the investigation, the Board failed to comply with either the statutory time frame or the statutory requirement that any extension beyond one year will be explained in detail on the record and posits the proper remedy is dismissal of the charges for failure to comply with the statute. The Court found that the legislature's failure to include a penalty for failure to act within a prescribed time indicates the provision is directory rather than mandatory. In accordance with HO § 14-405(g), "hearing of charges may not be . . . challegend by any procedural defects alleged to have occurred prior to the filing of charges" including complaints that the Board failed to comply with Section 14-404(j).

Violation of Standard of Care: The Court held the cited evidence provided a substantial factual basis for the Board's finding that Cornfeld violated the applicable standard of care in leaving an anesthetized patient.

Sanctions: The Board has statutory authority to "place any license on probation or suspend . . . a license" for violations of the Act. The Court could not find that suspension and long term probation for the breach of the standard of care in this case was so extreme and egregious as to warrant judicial intervention.

Evidentiary Rulings: The Administrative Procedure Act protects a party's right to call witnesses, offer evidence (including rebuttal evidence), cross-examine any witness, and present summation and argument. An ALJ may exclude evidence that is incompetent, irrelevant, immaterial or unduly repetitious, Cornfeld contends the ALJ went too far when she denied him his right to pursue any theories of the case. After reviewing the relevant portions of the record in support of Cornfeld's complaints, the Court did not find that Cornfeld was denied his rights to defend himself.

The full opinion is available in PDF.

Wilson v. State (Ct. of Special Appeals)

2007-05-05T19:55:00.000-05:00

Filed May 2, 2007--Opinion by Judge James Kenney.

During a traffic stop, the trunk of a vehicle driven by Wilson was found to contain a suitcase packed with six and one-half pounds of marijuana. Wilson was found guilty in a bench trial of possession of marijuana with intent to distribute and sentenced to two years imprisonment.

Prior to trial, Wilson moved to suppress evidence of the marijuana recovered from the trunk, and the denial of that motion is the subject of this appeal. The Court rewrote the presented question as follows: Does the odor of burnt marijuana emanating from the passenger compartment of a vehicle, by itself, establish probable cause to search the vehicle's trunk under the automobile exception to the warrant requirement of the Fourth Amendment?

In considering a denial of a motion to suppress, the Court is limited to the record of the suppression hearing. Further, the appellate court will accept the version of the evidence most favorable to the prevailing party. As a question of law, the Court reviews de novo whether appellant's motion to suppress was properly denied.

The Fourth Amendment ordinarily requires that a warrant be secured prior to conducting a search. An exception to the warrant requirement is the "automobile exception," known as the "Carroll Doctrine." If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more. This Court has held that the odor of burnt marijuana, alone, affords probable cause to search the passenger compartment of a vehicle under the automobile exception. Further, many of the cases applying the Carroll doctrine have found probable cause to search the trunk of a motor vehicle based on evidence apparent to a police officer after a lawful search of the passenger compartment of the vehicle. However, in this case, the search of the passenger compartment produced no additional evidence of the presence of marijuana in the vehicle. Wilson contends that, under the circumstances, any probable cause to search the passenger compartment of a vehicle based solely on the odor of burnt marijuana would not extend to the vehicle's trunk.

The Court reasoned that marijuana and other illegal drugs, by their very nature, can be stored almost anywhere within a vehicle. The location-specific principle that "probable cause must be tailored to specific compartments and containers within an automobile" does not apply when officers have only probable cause to believe that contraband is located somewhere within the vehicle, rather than in a specific compartment or container within the vehicle. The odor of burnt marijuana emanating from a vehicle provides probable cause to believe that additional marijuana is present elsewhere in the vehicle. To adopt Wilson's argument, the trunk or any other area outside of the passenger compartment would become a safe harbor for the transportation of drugs for both users and traffickers. Judgment Affirmed.

The full opinion is available in PDF.

Martin V. State (Ct. of Special Appeals)

2007-05-05T18:49:00.000-05:00

Filed May 3, 2007--Opinion by Judge Arrie Davis.

Martin was convicted by a jury of robbery and sentenced to eight years imprisonment, all but eighteen months suspended, accompanied by three years of supervised probation. His appeal presented the following questions for review:

Was the evidence legally sufficient to sustain a conviction for robbery where the prosecution failed to show that [Martin] used threat of force to obtain property?
Did the trial court err when it refused to clarify and supplement a jury instruction upon a critical issue?
Did the trial court err in its jury instructions that excluded a defense at issue?
Did the trial court err when it substituted an erroneous statement of the law in the jury instructions?

The alleged victim ("Turner") testified that he stopped to speak with a neighbor while walking his dog when Martin accosted him with a baseball bat demanding that Turner return $150 to him from a botched drug buy. Demanding more than the $100 in Turner's pocket, Martin followed Turner home where he recovered the remaining $50. The encounter at Martin's home was accompanied by a 911 call for police assistance by Turner's wife. Conversely, Martin testified that Turner had stolen $150 from him in a sham drug transaction. He encountered Turner walking his pit bull and, afraid of the dog, broke off a branch from a nearby tree, approached Martin, and requested his money back. Turner gave him $100 from his pocket, and Martin accompanied him home to recover the remaining $50.

Martin's counsel contemplated raising as a defense that Martin lacked the intent to steal from Turner because he was recovering his own money, i.e., the claim of right defense. Defense counsel's proposed jury instructions to support this claim were summarily rejected by the court.

During deliberations, one of the notes sent by the jury asked, "Does it matter whether the victim felt threatened for there to be a threat of force?" Upon declining to answer the question, the court instructed the jury to rely on prior instructions.

Martin contends that the State failed to prove beyond a reasonable doubt that he intended to intimidate or intimidated Turner, which is a prerequisite of a robbery conviction. Further, in his brief, he attempted to rationalize the jury verdict and any implications arising therefrom by commenting on what testimony the jury found more credible. This Court disagreed.

Robbery has been defined as "the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear . . . or, more succinctly, as larceny from the person, accompanied by violence or putting in fear . . .." The "putting in fear" aspect of that definition is of particular relevance to the instant case. The requisite level of fear, utilizing the objective standard, is "any attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention." Martin admitted possessing an object -- whether a bat or a tree branch -- and also admitted that he threatened to hit Turner with the object if he did not produce the money. In the instant case, context is given to the incident in light of Turner's testimony, which indicated he was "scared."

The Court found no need to address Martin's position that the jury rejected Turner's testimony and only Martin's testimony informed the jury what had transpired. In performing a fact-finding role, the jury has authority to decide which evidence to accept and which to reject. Because the trial record demonstrated the applicable objective standard of fear was met, there was sufficient evidence to convince the jury of Martin's guilt beyond a reasonable doubt.

Next, Martin contended that the trial court erred by failing to answer the jury's question. Subsequent to the trial court's response to the jury note, the State filed a motion to reconsider. Martin's counsel did not object to the instruction. Maryland Rule 4-325(e), which sets forth:

No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.

Pursuant to this rule, the Court has consistently held that a party waives his rights when he fails to request an instruction or object to an instruction. Here, Martin did not object to the instruction given nor did he request that an amended instruction be given when the note was sent to the court. The State objected; however, the appellant must object himself to preserve the issue for appellate review. Accordingly, Martin is precluded from raising this issue.

Martin next argues that the claim of right defense has not been abrogated in Maryland and, accordingly, his request to propound a jury instruction should have been granted and that the instruction regarding possession versus title to the property misled the jury. The Court's analysis required determination of whether the requested instruction constituted a correct statement of the law: whether it was applicable under the facts and circumstances of the particular case; and whether it was fairly covered in the instructions given. In general, a party is entitled to have his theory of the case presented to the jury through a requested instruction provided that theory is a correct exposition of the law and it is supported by the evidence. Regardless of any testimony to the contrary, if the Court were to find merit in Martin's contentions and overturn his conviction, the decision would have the practical effect of condoning an otherwise illicit activity. Consequently, the trial court did not err by denying Martin's request for a claim of right jury instruction.

Finally, Martin argues that the final portion of the instruction misled the jury into believing that [Turner's] theft was immaterial and to ascribe it no weight, contending that such instruction was not a proper statement of the law in light of the circumstances. The Court held the disputed portion of the instruction is a correct statement of the law, is applicable based on the facts of the instant case, and was not covered by other instructions.

The full opinion is available in PDF.

Hagen v. U.S. (Maryland U.S.D.C.) (Approved for Publication)

2007-05-05T17:07:00.000-05:00

Signed April 30, 2007--Memorandum Opinion by Judge Andre M. Davis.

Hagen filed this tax refund action after paying a portion of the amount allegedly due under a trust fund recovery penalty for unpaid payroll withholding taxes. The government counterclaimed for a total of $274,918 in unpaid assessments, penalties and interest for the fourth quarter of 1999 and the third quarter of 2000. Pending are the parties' cross-motions for summary judgment.

Subsequent to Hagen becoming CEO/Board Chairman in 1998 of American Quantum Cycles ("Quantum"), he was alerted that the company had not paid payroll withholding taxes. After achieving compliance, Quantum again lapsed into delinquency. This time, however, Hagen was unable to raise sufficient capital to pay the obligation and was forced to seek a merger with another motorcycle company, which merger ultimately failed. Hagen then left the company in October 2000.

Hagen asserts that certain portions of his former partner's ("Irving") testimony are inadmissible for lack of personal knowledge and, thus, cannot be used as a basis for determining whether summary judgment is warranted. Irving admitted that he had no personal knowledge of whether Hagen signed signature cards for bank accounts and that he lacked personal knowledge that Condon, Quantum's Financial Director, was instructed not to pay employment taxes. As such, the Court found Irving's testimony on these issues could not be considered in any examination of the pending motions.

The remaining portions of Irving's testimony were clearly admissible. Irving did have personal knowledge that Hagen was CEO and the duties Hagen's position entailed, including his power to "periodically dive anywhere and say do it this way." Further, Irving testified that Hagen was regularly briefed on all aspects of Quantum, including the finances, e.g., raising money, banking relationships and "tax things." In short, the testimony that related to the corporate structure or everyday governance of the company was clearly admissible.

Condon's testimony regarding whether Hagen ever signed any Quantum checks was inadmissible because it was related to written instruments not produced by either party. Pursuant to Fed. R. Evid. 1002, to prove the content of a writing, recording, or photograph (i.e., Hagen's signature on checks) required the original writing, recording or photograph. Nevertheless, Condon's testimony regarding Hagen's authority to sign Quantum checks was admissible.

The relevant statute, 26 U.S.C. § 6672(a) provides:

Any person required to collect, truthfully account for, and pay over any tax imposed by this title who wilfully fails to collect such tax, or truthfully account for and pay over such tax, or wilfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.

Courts have uniformly interpreted this provision to mean that a person can be liable under Section 6672(a) only if (1) he is a "responsible person" under a duty to collect, account for, and pay over trust fund taxes, and (2) he wilfully fails to discharge his duties as a responsible person. A party is not presumed to be a responsible person merely because of his title. The Fourth Circuit has stated that, in determining responsibility under § 6672, the "crucial inquiry [is] whether the person had the effective power to pay taxes -- that is, whether he had the actual authority or ability, in view of his status within the corporation, to pay the taxes owed." Further, § 6672 applies to all responsible persons and not just the most responsible person.

Hagen was Quantum's CEO and Board Chairman and directed what bills to pay and how to pay them. Hagen, himself, admitted that he gave instructions as to how payroll and other expenses should be handled after the taxes for the first quarter of 1999 were not paid. "[A] person has significant control if he has the final or significant word over which bills or creditors get paid." Quattrone Accounts, Inc., v. U.S. Although Hagen never physically signed the checks, he had the power, as Quantum's CEO, to order which checks to issue.

In further consideration, liability arises only from a "wilfull" violation. The Fourth Circuit has stated that "wilfullness," as defined by § 6672, means actual or constructive knowledge that taxes were unpaid. Specifically, the "failure to pay trust fund taxes cannot be wilfull unless there is either 'knowledge of nonpayment or reckless disregard of whether the payments were being made.'" One way in which wilfullness may be established is to show that the responsible person made a "voluntary, conscious and intentional decision to prefer other creditors over the government." Even assuming Hagen may not have known about the second wave of tax deficiencies until late July/early August, his own testimony disclosed that he learned of the tax deficiencies prior to instructing Condon as to which bills were to be paid and in what order -- none of which included the United States.

Because Hagen is a responsible person under § 6672 and he wilfully failed to pay withheld taxes to the IRS, the motion of the United States for summary judgment was granted and Hagen's motion denied.

The Full Opinion is Available in PDF.

Maddox v. Stone (Ct. of Special Appeals)

2007-05-05T16:14:00.000-05:00

Filed May 2, 2007--Opinion by Judge Timothy Meredith.

Maddox, individually and as parent of her minor children, presents the following questions:

(1) Because the plaintiffs' expert witness died, leaving them with no expert to testify, should the plaintiffs have been permitted to substitute an expert?

(2) Because the plaintiffs complied with the scheduling order, did the circuit court abuse its discretion in striking their original expert witness?

The Court held that the circuit court abused its discretion in striking one of Maddox's other expert witnesses ("Wald") because of a lack of strict compliance with the scheduling order. Accordingly, there was no need to reach the question of whether, upon learning of the death of Maddox's other expert witness ("Hauf"), the circuit court abused its discretion in not allowing Maddox to substitute the earlier stricken expert for the deceased expert.

The Court reasoned that, while it is true that the Maryland Rules of Procedure are to be strictly followed, the discovery rules in particular are to be liberally construed in order to effectuate their purpose. Maddox maintained that they had met the "substantial compliance" or "good faith and earnest effort" test because Wald was named two weeks before the scheduling order deadline and his report was provided to opposing counsel immediately as soon as it was available; 34 days after the deadline but well in advance of trial and prior to the closing of discovery. Further, Wald was made available for deposition and was, in fact, deposed over two full months prior to trial and prior to the date established in the scheduling order for completion of all discovery. Maddox argued that, because Wald was deposed well in advance of trial, Stone was not deprived of the ability to prepare a proper defense.

The governing principle is that the appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court. The more draconian sanctions of dismissing a claim or precluding the evidence necessary to support a claim are normally reserved for persistent and deliberate violations that actually cause some prejudice. The scheduling order is not meant to function as a statute of limitations, and good faith substantial compliance with the scheduling order is ordinarily sufficient to forestay a case-ending sanction. Accordingly, although the decision of whether to exclude a key witness because of a party's failure to meet the deadlines in a scheduling order is generally committed to the discretion of the trial court, the imposition of such a draconian sanction must be supported by circumstances that warrant the exercise of the court's discretion in such a manner -- the trial record must contain an analysis of the relevant facts and circumstances that resulted in the exercise of the judge's discretion and not simply some applied predetermined position.

This opinion is not to say that trial counsel and litigants are free to treat scheduling orders as mere suggestions or imprecise guidelines for trial preparation. Scheduling orders must be given respect as orders of the circuit court, and the court may, under appropriate circumstances, impose sanctions upon parties who fail to comply with the deadlines in scheduling orders.

The full Opinion Available in PDF.

Davis v. Knipp, et al. (Maryland U.S.D.C.) (Not Approved for Publication)

2007-05-05T15:58:00.000-05:00

Signed May 1, 2007. Memorandum and Order by Judge J. Frederick Motz.

In response to a pro se action, State defendants filed a motion to dismiss or for summary judgment and were granted the motion to dismiss.

The Court found that Davis' claims arose out of a peer review process in which defendants were engaged, and the law is clear that to the extent Davis was seeking monetary damages against defendants, all of them were entitled to absolute immunity in connection with their peer review activities.

Further, to the extent Davis was seeking injunctive relief in connection with the peer review process (which is ongoing), it was appropriate for this Court to abstain under the Younger v. Harris Doctrine.

The full Memorandum is available in PDF.

In re: Melvin and Aretha Watson (Maryland U.S. Bankr. Ct.)

2007-05-04T19:50:00.000-05:00

Signed April 11, 2007--Opinion by Chief Judge Duncan W. Keir.

Melvin and Aretha Watson ("Debtors") filed their Second Amended Chapter 13 Plan. Debtors' original Chapter 13 plan was met with objection by the agent for five different unsecured creditors, which together represented an alleged 21% of the unsecured claims. Debtors' Second Amended Plan proposed the same payment to the Trustee for the first four months with a slight monthly increase for the remaining 56 months. At a September 2006 hearing ("September Hearing") held upon the Second Amended Plan, the Trustee informed the court that Debtors had agreed to further amend their plan, this time increasing significantly monthly payments for the final 55 months of the plan. At the September Hearing, the parties stipulated that Debtors' income exceeded that of the median family income and that Debtors owned two vehicles, neither of which was collateral for a secured debt requiring monthly installment payments. Further, Debtors listed as an allowable expense both an operating allowance and ownership allowance for each vehicle. Various interested parties disputed Debtors' entitlement to the ownership allowance because Debtors did not have secured payments due as payment for the vehicles. All the parties agreed at the initial hearing that if Debtors were not entitled to claim such expense as part of the analysis required by 11 U.S.C. 707(b), Debtors would be unable to confirm a plan unless the court found that projected disposable income for the purposes of Section 1325(b)(1) was not required to be the disposable income calculated pursuant to Section 707(b). The Debtors' actual expenses on Schedule J differed significantly from those set forth under Section 707(b).

The first issue raised was whether, when applying the means test of Section 707(b), Debtors are entitled to deduct as allowable expenses both ownership and operational vehicle expenses where the subject vehicles are not subject to liens. The second question was whether the court must restrict its confirmation analysis to the final number shown on Form B22C, or whether the court may also take into account other evidence regarding income and expense of Debtors at the time confirmation is considered.

The Bankruptcy Abuse Prevention And Consumer Protection Act of 2005 ("BAPCPA") amended Section 707(b) to include, inter alia, new subparagraph (b)(2). Under this new provision, in certain cases, the court shall presume abuse exists if the debtor's CMI, reduced by amounts determined under clauses (ii), (iii), and (iv) and multiplied by 60, is not less than the lesser of: (A) $10,000.00, or (B) the greater of 25% of the debtor's non-priority unsecured claims in the case, or $6,000.00. This calculation of expenses becomes relevant and applicable to the issue of confirmation of a debtor's plan in a Chapter 13 case by virtue of Section 1325(b), which provides in substance that if the Trustee or holder of an allowed unsecured claim objects to confirmation, the court may approve the plan only if, as of the effective date of the plan, the value of property to be distrubted under the plan on account of such claims is not less than the amount of such claims, or the plan provides that all of the debtor's projected disposable income to be received during the applicable commitment period of the plan will be applied to make payments to unsecured creditors under the plan. The term "disposable income" is defined as CMI received by the debtor (other than child support, foster care payments or disability payments for a dependent child to the extent reasonably necessary to be expended for such child) ("Adjusted CMI"), less amounts reasonably necessary to be expended for the maintenance and support of the debtor or dependent of the debtor, charitable contributions to a qualified religious or charitable entity up to 15% of debtor's gross income, and expenditures necessary for the continuation, preservation, and operation of a debtor's business.

BAPCPA added new subsection 1325(b)(3) as to the determination of amounts reasonably necessary to be expended. Where the debtor's Adjusted CMI when multiplied by 12 is greater than the applicable median family income for the State, then amounts reasonably necessary to be expended shall be determined in accordance with subparagraphs (A) and (B) of Section 707(b)(2). In other words, in a Chapter 13 case in which a party-in-interest has objected to confirmation, a plan can only be confirmed if the plan pays 100% of the allowed claims provided for in the plan, or the plan provides that all of the debtor's projected disposable income would be applied to make payments to unsecured creditors for the period of the plan. Projected disposable income is the Adjusted CMI of the debtor minus amounts reasonably necessary to be expended for certain support and maintenance. If the debtor's CMI multiplied by 12 exceeds the median family income applicable to the debtor's household, amounts reasonably necessary to be expended are determined under Section 707(b)(2)(A)(ii). This provision further adds to such expenses the enumerated items set forth in Section 707(b)(2)(A)(ii)(II, III, IV and V), (iii) and (iv). This calculation of expenses is the Allowable Expenses. Although perhaps not clearly stated in the statute, courts (including this Court) have held that a debtor is not entitled to include the aggregate of the Local Ownership Allowance plus the average monthly loan payment for a vehicle in calculating the Allowable Expense.

The remaining issue is the relationship between "disposable income" and the "projected disposable income" that may be required to be applied to payments under the plan pursuant to Section 1325(b)(1)(B). The Court reasoned that § 1325(b)(1)(B)'s requirement that a plan propose to pay projected disposable income means that the number resulting from Form B22C is a starting point for the Court's inquiry only. Section 1325(b)(2) defines Disposable Income but § 1325(b)(1)(B) requires that a debtor propose a plan paying Projected Disposable Income. The word "projected" means to calculate, estimate, or predict [something in the future] based on present data or trends. By placing the word "projected" next to "disposable income," Congress modified the import of "disposable income." The significance of "projected" is that it requires the Court to consider both future and historical finances of a debtor in determining compliance with § 1325(b)(1)(B). Consequently, the Court held that the Local Ownership Allowance is properly included by the debtor in the calculation of "disposable income" on Form B22C. The Court further held that "disposable income" as calculated on Form B22C is the presumptive "projected disposable income" for application of Section 1325(b)(1)(B). However, by evidence a party may demonstrate "a substantial change in circumstances such that the numbers contained in Form B22C are not commensurate with a fair projection of the debtor's budget in the future. If the presumption is rebutted, a projected budget based upon the evidence, reflecting projected earnings and projected reasonable necessary expenses, will govern the determination of "projected disposable income" for purposes of confirmation of the plan.

The full opinion is available in PDF.

The Equal Rights Center v. Equity Residential, et al. (Maryland U.S.D.C) (Approved for Publication)

2007-05-04T19:11:00.000-05:00

Signed April 13, 2007--Memorandum Opinion by Judge Andre M. Davis.

The Equal Rights Center ("ERC") is a Washington, D.C.-based non-profit organization having approximately 150 individual members, many with disabilities. ERC's mission, inter alia, is to protect the rights of persons with disabilities through education, counseling, advocacy, enforcement, and referral services. ERC instituted this action for injunctive and declaratory relief, and damages, against Equity Residential, a real estate investment trust organized under the laws of Maryland (which describes itself as one of the largest owners [of apartment buildings] in the U.S.) and ERC Operating Limited Partnership, an Illinois limited partnership owned and controlled by Equity Residential (collectively, "Equity").

The first claim by ERC falls under the Fair Housing Act ("FHA"). The gravamen of this claim is that Equity engaged in a pattern and practice of violating the FHA in that they repeatedly and continually failed to design and construct properties subject to prescriptions of the FHA, i.e., multi-family properties containing the minimum number of units and relevant features so as to render the properties accessible to persons with disabilities. The second claim sues under the Americans with Disabilities Act ("ADA"), contending that the properties at issue do not contain, in areas comprising "public accommodations," e.g., leasing offices, parking lots, sidewalks, and restrooms, certain features of minimum accessibility and adaptable design as required by law.

Equity responded with a Rule 12(b)(6) motion to dismiss for lack of subject matter jurisdiction and for improper venue. Equity sought, in the alternative, a severance of what they asserted were multiple claims and a transfer of venue of such severed claims to the numerous districts where the challegened properties are located. Reasoning that the purpose of Rule 12(b)(6) is to test a sufficiency of a complaint and not to resolve contests regarding facts, the merits of a claim, or the applicability of defenses, the Court denied Equity's motion.

A Rule 12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitled plaintiff to relief, viewed in the light most favorable to the plaintiff. The Court's first consideration was standing. To establish Article III standing, a plaintiff must allege facts which demonstrate: (1) the existence of a "concrete and particularized" injury-in-fact; (2) a causal connection between the injury suffered and the conduct complained of; and (3) that a favorable adjudication would redress the alleged injury. Fundamentally, it is a pleading burden, although the court must be satisfied at all times that the requirement is met. Organizational standing under the FHA exists to the limits of constitutional "case or controversy" limits; prudential considerations play no role. Thus, to allege a redressable injury-in-fact caused by Equity under the FHA, ERC need only allege facts that demonstrate that the Equity's actions either have caused the organization to divert resources to identify and counteract the defendants' unlawful practices or that the challenged actions have frustrated ERC's mission, which allegation ERC made.

Nonetheless, Equity challenged standing, relying on the contentions that (1) ERC's mission is too generalized for ERC to suffer a cognizable injury; (2) as a matter of law, ERC does not and cannot suffer a cognizable injury outside of the greater Washington area; and (3) ERC will not be entitled to relief on a nationwide basis. The Court found all three contentions unpursuasive.

Finally, Equity sought to have the court slice and dice ERC's two legal claims into 300 separate claims (one for each property) and, thereafter, transfer each claim to the federal district in which that property is located. The Court found to do so would not only be inappropriate but would unnecessarily create a litigation nightmare. Courts have recognized a presumption in favor of the nonmoving party that all claims in a case will be resolved in a single trial and not be severed, placing the burden on the party moving for severance to show that: (1) it will be severely prejudiced without a separate trial; and (2) the issue to be severed is so distinct and separable from the others that a trial of that issue alone may proceed without injustice. In determining whether severance is proper, courts consider: (1) whether the issues sought to be tried separately are significantly different from one another; (2) whether the separable issues require different witnesses and different documentary proof; (3) whether the party opposing severance will be prejudiced if it is granted; and (4) whether the party requesting severance will be prejudiced if the claims are not severed.

As the circumstances in the instant case weighed heavily against severance and transfer, Equity's motion was denied.

The full opinion is available in PDF.

City of Bowie, Maryland v. MIE, Inc. (Ct. of Appeals)

2007-05-04T09:51:00.000-05:00

Filed May 4, 2007. Opinion by Judge Glenn T. Harrell, Jr..

From the official headnote:

REAL PROPERTY - RESTRICTIVE COVENANTS - THE STANDARD FOR DETERMINING IF A RESTRICTIVE COVENANT REMAINS VALID IS WHETHER, AFTER THE PASSAGE OF A REASONABLE AMOUNT OF TIME, A CHANGE IN CIRCUMSTANCES HAS OCCURRED, SINCE THE COVENANTS’ EXECUTION, RENDERING THE PURPOSE OF THE COVENANT OBSOLETE.

REAL PROPERTY - RESTRICTIVE COVENANTS - WAIVER - THE ASSERTING PARTY BEARS THE BURDEN OF PROVING WAIVER BY ACQUIESCENCE DEFENSE.

ZONING - A MUNICIPALITY WITHOUT ZONING AUTHORITY DOES NOT ENGAGE IN ILLEGAL CONTRACT ZONING WHEN IT ASSERTS LIMITATIONS ON THE USE OF LAND BASED ON A RESTRICTIVE COVENANT IT HAS THE RIGHT TO ENFORCE.

CIVIL PROCEDURE - FAILURE TO JOIN NECESSARY PARTIES - THE NONJOINDER OF AN ASSERTEDLY NECESSARY PARTY MAY BE EXCUSED WHEN THAT PARTY FAILS TO JOIN THE LITIGATION AS A PARTY DESPITE ITS KNOWLEDGE OF THE LAWSUIT POTENTIALLY AFFECTING ITS INTERESTS,
VERIFIED BY THE FACT THAT THE PARTY TESTIFIES AT TRIAL.

In an appeal by Bowie from an unreported Court of Special Appeals decision, the Court of Appeals REVERSED the appellate decision below and REMANDED to that court with direction to affirm the original judgment of the trial court, which had upheld the validity of covenants affecting a parcel of real property in Prince George's County.

(synopsis to follow)

The opinion is available in PDF format.

Evans v. State (Ct. of Special Appeals)

2007-05-03T17:38:00.000-05:00

Filed May 3, 2007--Opinion by Judge Arrie Davis.

Subsequent to the sale of heroin to an undercover detective, Evans was arrested by another detective and approximately five members of a Baltimore City arrest team. A search conducted by the arresting detective produced one clear gel capsule containing suspected heroin in Evans' back pocket. In a pre-trial suppression hearing, defense counsel moved to suppress the evidence based on lack of probable cause. Both the undercover detective to whom the drugs were sold and the arresting detective testified at the suppression hearing. Subsequent to his jury conviction, Evans presented the following issues for review:

(1) Whether the trial court erred in failing to suppress evidence illegally obtained from [Evans] in a search incident to an arrest made without probable cause.

(2) Whether the trial court erred in instructing the jury on the State's failure to use certain investigative and scientific techniques, where the instruction hampered [Evans'] ability to present his legal defense and was not part of the Maryland Pattern Criminal Instructions.

Evans argued that, during the suppression hearing, the testimony of either detective failed to establish probable cause to arrest or subsequently search him. He based his contention on the fact that the only eyewitness to the buy-bust was the undercover detective who then relayed the information to the arresting detective, and the information provided to the arresting detective was too general to establish probable cause.

The State contended that because Evans failed to raise the issue at trial that the information relayed between the detectives was too general to establish probable cause, he was precluded, by Maryland Rule 8-131, from raising the issue on appeal.

The threshold issue, then, before the Court was whether Evans raised the lack of sufficient description to establish probable cause at trial as he did in his appellate brief. The Court found that defense counsel's argument at trial questioned the detectives about the description [of Evans] given to the arrest team. However, his counsel's argument was premised upon the claim that Evans was not acting in concert with the other arrestee. Thus, the issue of vagueness did not appear to have been raised, much less decided by the trial court, and Evans was precluded from raising it on appeal.

Evans further contended that the trial court went too far in charting a corrective course for the jury as to the significance to attribute to the alleged void in the State's evidence. The net effect of the court advising the jury that the State had no obligation to produce evidence, which was indisputably available to it, either explicitly or implicitly relieved the State, in the minds of the jurors, of the burden to establish guilt beyond a reasonable doubt. Evans contends this diminution of the State's burden unfairly prejudiced him.

The trial judge was prompted to give the questioned instruction by the cross-examination of one of the detectives, which inquired as to specific investigative techniques that were not used in this case. At the close of the State's case in chief and outside the presence of the jury, the court reviewed the instructions with all parties. Objections by defense counsel for the co-defendant were duly noted and overruled, but Evan's counsel did not note an objection at that point. Following the reading of the instruction to the jury, co-defendant's counsel noted another objection to the same instruction, but Evan's counsel, again, did not object.

The Court held that, pursuant to Rule 4-325, failure to request an instruction or object to an instruction constitutes a waiver. The trial record clearly demonstrates that Evan's counsel failed to object to the instructions at issue during the proceedings. In his brief, he relies solely on the objection raised by co-defendant's counsel. However, a bedrock principle of Maryland law is that a defendant may not rely on an objection made by a co-defendant for the purpose of raising an appeal as to that issue. Accordingly, Evans' failure to raise such issue in the trial court precluded the Court from such consideration on appeal.

The full Order is available in PDF.

Ivy v. Board of Education of Baltimore County (Maryland U.S.D.C.) (Not approved for publication)

2007-05-03T14:42:00.000-05:00

Signed April 30, 2007. Memorandum and Order by Judge J. Frederick Motz (not approved for publication).

In a case filed pro se by a former employee ("Ivy") against her former employer ("Board of Education"), upon consideration of the Board of Education's motion for summary judgment, the judge GRANTED the motion, finding that Ivy had presented no evidence to support her claims of race, religious, age and disability discrimination.

The Memorandum and Order are available in PDF format.

Halpert v. Dental Care Alliance, LLC (Maryland U.S.D.C.) (Not approved for publication)

2007-05-03T14:27:00.000-05:00

Signed April 30, 2007. Memorandum Opinion by Judge Richard D. Bennett (not approved for publication)

In an action to enforce the contractual obligation of another entity, which obligation had been assumed by the defendant ("Dental Care Alliance"), to pay certain sums to the plaintiff ("Halpert"), on consideration of cross motions for summary judgment, the judge DENIED Halpert's motion, GRANTED summary judgment in favor of Dental Care Alliance on three of four counts and DENIED summary judgment on the final count, so the case will proceed to trial.

(synopsis to follow)

The Memorandum Opinion is available in PDF format.

Bruns v. Potter (Maryland U.S.D.C.) (Not approved for publication)

2007-05-03T14:08:00.000-05:00

Signed April 30, 2007. Memorandum and Order by Judge J. Frederick Motz (not approved for publication).

In an action in which an employee ("Bruns") alleged retaliation in violation of Title VII by his employer, the Postal Service, the defendant moved for summary judgment. Bruns failed to respond to the motion, and the judge GRANTED the defendant's motion, finding that there was no dispute as to any material fact, that the record showed that the disciplinary action against Bruns (being sent home and given a seven day suspension) was taken as a reasonable response to Bruns having "acted inappropriately and in a threatening manner" toward his supervisor, and that Bruns was treated no more harshly than any other employee in his circumstances.

The Memorandum and Order are available in PDF format.

Rose v. Visiting Nurse Association of Maryland, LLC (Maryland U.S.D.C.) (Not Approved for Publication)

2007-05-03T07:55:00.000-05:00

Filed April 26, 2007--Memorandum and Order by Judge Catherine C. Blake. Not approved for publication.

Plaintiff filed this action alleging Defendant discriminated against her on the basis of her chronic anxiety in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act.

Plaintiff suffers from chronic anxiety, particularly when she drives over bridges and beltways. At the outset of her employment as a home hospice worker, she was assigned routes that did not require such travel. However, she was ultimately transferred to a route which required the type of travel that exacerbated her anxiety. Her physician wrote a recommendation that she temporarily confine her driving to city streets, to which Defendant responded by placing her on a leave of absence, until the restriction was lifted, due to a lack of accommodating substitute routes. With no activity by Plaintiff for over one year, she was terminated.

The Court granted Defendant's motion for summary judgment reasoning that Plaintiff did not have a disability within the meaning of those statutes. A plaintiff asserting a claim under either the ADA or the Rehabilitation Act must demonstrate that she had a disability according to those terms. Those statutes define a disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Plaintiff argued that her anxiety substantially limited her in the major life activity of working. The phrase "substantially limits" sets a threshold that excludes minor impairments from coverage under the ADA. An impairment substantially limits an employee's ability to work only where that employee is unable to work in a broad class of jobs. In other words, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. In the Fourth Circuit, an employee must demonstrate that because of her impairment, she was "generally foreclosed" from jobs utilizing her skills.

In the instant action, Plaintiff's evidence consisted solely of her health care provider's diagnoses. Such reports fall short of demonstrating disability within the meaning of the statutes. Plaintiff, further, was not disabled because all other evidence showed she could have used her skills to work elsewhere, e.g., a hospital, nursing home, or hospice.

Finally, Defendant did not regard Plaintiff as disabled. An employer regards an employee as disabled only where it erroneously believes that either the employee has an impairment that substantially limits a major life activity, or that the employee's actual, nonlimiting impairment substantially limits a major life activity. Where the major life activity is working, the employer must perceive the employee "to be significantly restricted in [her] ability to perform either a class of jobs or a broad range of jobs in various classes." There was no evidence here that Defendant regarded Plaintiff as substantially limited in her ability to work. Defendant's knowledge of Plaintiff's impairment, without more, does not indicate that the company regarded her as disabled. Additionally, the fact that Defendant viewed Plaintiff as incapable of performing one aspect of her job - driving to certain locations - does not mean that she was regarded as disabled.

The full opinion is available in PDF.

Metro Ready Mix, Inc. v. Essroc Cement Corp. (Maryland U.S.D.C.)(Not Approved for Publication)

2007-05-03T07:50:00.000-05:00

Order Signed April 25, 2006--Judge Catherine C. Blake. Not approved for publication.

Metro Ready Mix, Inc. claims damages in a case arising out of contracts for the supply of cement. Metro initially filed a complaint in this court against Essroc Cement Corp. alleging breach of contract and breach of warranty; subsequently it amended the complaint to add allegations of intentional misrepresentation, intentional concealment, negligence, and negligent misrepresentation and to seek punitive damages. This ruling deals with Essroc's motion to dismiss the added claims.

Metro is in the business of supplying and placing ready mix concrete for construction jobs. Cement is a necessary ingredient in order to mix concrete, and for the years leading up to and including 2004, Metro obtained much of its cement from Essroc. In late 2004, Metro bid for, and was awarded, several large contracts for various projects all requiring high-strength concrete. At unclear times between November 2004 and March 2005, Metro and Essroc allegedly entered into oral contracts for the delivery of cement sufficient to cover Metro's needs for these projects. In December 2004 and January 2005, Metro, using cement supplied by Essroc, created concrete mix designs for its large projects. These mix designs received approval from the contractors and from independent testing agencies, certifying that the concrete met strength and other testing requirements.

Beginning in May 2005, Metro began to receive complaints about the strength of its concrete. In December 2005 and January 2006, Metro had its concrete tested, and the tests revealed that the cement supplied by Essroc was defective. As a result of the defective cement, Metro alleges that its customers began terminating their contracts and charging Metro for remedial costs caused by the problematic concrete. Because of the terminated contracts, Metro had to sell off some equipment at a loss, and pay for the cancellation of other leased equipment. Apparently Metro has since been forced to close its business.

Metro alleges that Essroc made misrepresentations inducing Metro to contract with Essroc. Metro representatives met with Essroc representatives in the fall of 2004 and early 2005. At these meetings, Metro alleges that Essroc stated it could provide Metro with the quality and quantity of cement it needed. Metro alleges that when Essroc made these assurances, however, it knew it was not capable of providing safe and suitable cement.

Metro's complaint included claims for intentional misrepresentation, intentional concealment, negligence, and negligent misrepresentation. Metro alleged that Essroc's two main plants were experiencing severe maintenance and quality control problems in the spring of 2005, which brought Essroc's cement in violation of the standards for cement manufacturing established by the American Society for Testing and Materials (ASTM). In its intentional misrepresentation claims, Metro alleges that in 2004 and February 2005, Essroc falsely represented that it was capable of supplying Metro with suitable cement that would meet ASTM standards, and did so "with actual malice, ill will, and spite towards Metro."

In its intentional concealment claim, Metro alleges that Essroc knew and did not disclose the problems at its manufacturing plants. In its negligence claim, Metro alleges that Essroc had a duty to exercise ordinary care in the production of cement, and breached that duty by selling substandard cement. Lastly, in its negligent misrepresentation claim, Metro alleges that Essroc falsely represented that the cement would be safe and suitable for Metro's needs. Essroc moved to dismiss the added claims.

As to the fraud allegations, the Court found that there appears to be no specific evidence or allegation that Essroc did not believe it could fulfill the contracts at the time they were entered or that it was attempting to deceive or defraud Metro with its representations. Thus, it dismissed Metro's claims for fraudulent misrepresentation and fraudulent concealment for failure to meet the specificity requirements of Rule 9(b). Because Metro did not proffer in its opposition or at the hearing any evidence that would support these claims, the Court ruled that no further leave to amend would be granted.

Because it found that the "application of the somewhat uncertain contours of Maryland law" pertaining to negligence and negligent misrepresentation in the context of a business dispute might be assisted by further factual development, and discovery will be proceeding on the contract claims in any event, Essroc's motion to dismiss the negligence and negligent misrepresentation claims were denied, subject to renewal if warranted as a summary judgment motion at the close of discovery.

Finally, because Metro has not alleged facts to show that Essroc acted with "actual malice," the Court dismissed any claim for an award of punitive damages.

The opinion and order are available in PDF.

Jenson v. Maloff (Maryland U.S.D.C.)

2007-05-03T00:07:00.000-05:00

Decided April 27, 2007 -- Judge Andre M. Davis

Petitioner Dagmar Jenson filed for habeas corpus relief in the United States District Court for the District of Maryland following a state conviction for first degree murder and a handgun violation. Petitioner cited five grounds for habeas relief after exhausting her appellate and post-conviction remedies under Maryland law. The United States District Court denied all claims for habeas relief and dismissed Petitioner's petition generally.

A more elaborate synopsis of this opinion shall appear shortly.

Yourik v. Mallonee (Ct. of Special Appeals)

2007-05-02T20:52:00.000-05:00

Decision Filed May 1, 2007--Opinion by Judge Sally D. Adkins.

Yourik is the son of Mallonee. In 1964, shortly after Yourik married, Mallonee and her now deceased husband selected a house for the newlyweds. Mallonee made the downpayment and paid all settlement fees and recording costs; the balance of the purchase price was obtained by mortgaging the property. The deed to the property was titled in the name of Yourik and his wife Leonora, as tenants by the entireties.

Within a year, however, the Youriks had not only separated, but also had become delinquent in their mortgage, resulting in foreclosure proceedings being initiated. With Yourik’s blessing, Mallonee and her husband “took over” the house and its mortgage. They paid the arrearage and continued making mortgage payments until that debt was paid in full. Meanwhile, Yourik moved to Baltimore City, never again living in the house, paying anything toward it, or receiving any income from it. At most, Yourik returned to the house for occasional holiday visits with the Mallonees.

Thus, beginning in late 1965 and continuing until trial in 2006, Mallonee either lived in the house or rented it out to others. She made all rental decisions without informing Yourik and kept all rental income. She and her husband paid all the taxes and utilities, and made all expenditures for upkeep, improvements, and repairs. Mr. Mallonee died two years before trial; Ms. Mallonee now lives in the property by herself.

After a bench trial, the Circuit Court for Baltimore County held that Mallonee had established all the elements of adverse possession, including the requirement that the possession be "hostile," even though she has always acknowledged that Yourik has held a recorded deed to the property since 1964. Yourik appealed, raising a single issue for review:

May a person acquire title to property by adverse possession if she acknowledges that when she first took possession, and at all times thereafter, she has had actual knowledge that the legal title is in the name of her son?

The Court held that a person who acknowledges legal title in a family member who abandoned the disputed property to foreclosure may occupy the property "hostilely" for purposes of acquiring that title by adverse possession. The Court noted that:

Mallonee did not occupy [the property] in the belief that her son owned it, or under the terms of a contract that required her to earn her interest over time. . . . . [A]ny agreement by which Yourik would "sign over" the deed did not signify that Mallonee considered her possession to be permissive, because Yourik had relinquished his ownership rights in the face of foreclosure. Instead, Mallonee made all mortgage payments, tax payments, repairs, and occupancy decisions on her own behalf, while keeping all rental income for the property for herself.

The Court therefore affirmed the lower court's determination that title had passed to Mallonee under the doctrine of adverse possession.

A copy of the opinion is available in PDF.

Gunby v. Olde Severna Park Improvements Association, Inc. (Ct. of Special Appeals)

2007-05-02T11:23:00.000-05:00

Filed April 27, 2007. Opinion by Judge Ellen Hollander.

Upon consideration of a motion by the "substituted parties as successors in title" to the original plaintiff/appellant ("Gunby") for reconsideration of the opinion earlier filed in this case and discussed here, the Court granted the motion and revised the original opinion to clarify the disposition of the two actions consolidated for hearing, and made some minor corrections to the original opinion, without affecting the outcome of the case.

The revised opinion is available in PDF format.

Gordon Grocery, Inc. v. Associated Wholesalers, Inc. (Maryland U.S.D.C.) (Not Approved for Publication)

2007-05-02T08:09:00.000-05:00

Signed April 30, 2007--Memorandum opinion by Judge Andre M. Davis. (Not approved for publication.)

In a previous opinion (MCW synopsis here), the Court remanded the case to state court from which it had been removed. After remand, the plaintiff amended its complaint. In response, the defendant again attempted to remove the case to federal court.

The plaintiff had previously attempted to amend its claim in federal court to state the same additional claim that it set forth in the amended complaint filed in state court. The defendant had previously opposed this amendment in federal court and the defendant's opposition was sustained. However, because Maryland state rules are more liberal with respect to the allowance of amendments, the defendant lacked the ability to attack the amendment procedurally in the state court. Instead, it argued that the amendment constituted a "changed circumstance" allowing it to again seek removal to the federal court.

The Court again remanded the case to state court holding that: "Plainly, defendant will not be heard to contend under the circumstances here that plaintiff engaged in 'procedural fencing' to deprive it of a federal forum. . . or that it 'uncovered' some 'new ground of removal' after this case was remanded." (Citations omitted.)

The Court's opinion is available in PDF.

U.S. ex rel. Sanders v. North American Bus Industries, Inc. (Maryland U.S.D.C.) (Not Approved for Publication)

2007-05-01T19:38:00.000-05:00

Signed April 23, 2007--Memo to Counsel by Judge J. Frederick Motz.

This memo is in response to defendant's motion for summary judgment as to a surviving claim from a prior ruling.

The Court relied on the Fourth Circuit's establishment of a two-part test for determining whether under Fed. R. Civ. P. 15(d)(2) a new claim or defense relates back to the party's original complaint: (1) whether a factual nexus exists between the original pleading and the amendments; and (2) if such a factual nexus exists, whether defendant had notice of the amended claim and would not be prejudiced by its assertion. In the instant matter, although plaintiff's original and first amended complaints did not contain the specific allegations in a separate count, the allegations put defendant on notice of the claim now asserted. Further, defendant did not show any prejudice that would result from permitting assertion of the claim.

However, on the undisputed facts, plaintiff's claim failed as a matter of law. Plaintiff asserted that had NABI declared the proper payments in the Customs declarations, the amount of Customs duties paid by NABI would have been higher. The flaw here is a hypothetical declaration that was never made and that would have been erroneous in light of the finding subsequently made by Customs that no Customs duties were due because the imported items were non-dutiable. This flaw is of the most fundamental nature because one of the four required elements of a False Claims Act claim is that a defendant's statement or conduct caused the government to pay or forfeit money due.

Defendant's motion granted.

The full Memorandum is available in PDF.

Rankin v. State (Ct. of Special Appeals)

2007-05-01T12:54:00.000-05:00

Filed April 30, 2007--Opinion by Judge Patrick Woodward.

Consequent to various burglary and sex offense charges, Rankin entered into a plea agreement with the State in 1999. The agreement allowed Rankin to plead to the count charging conspiracy to commit a second degree sex offense and limited the sentencing to no more than three years. The trial court imposed a sentence of twenty years with all but three years suspended, followed by a period of probation of five years.

The filed Plea / Sentence Agreement provided "Defendant will plead guilty to:" and, handwritten on the form was "Conspiracy to Commit 2 Sex Offense (Amended count #7) (Alford plea)." The form recited "State will dismiss other charges/cases as follows:" with everything after charges crossed out. It also stated "Court will," (then in handwriting) "impose an active cap of no more than 3 years. Court may impose additional suspended time." On the next line was printed "There is no other sentencing limitation except that provided by law."

Approximately 13 months after Rankin was released from incarceration, the court was informed by the Department of Parole and Probation that Rankin committed a new offense. Rankin subsequently admitted violating probation and was sentenced to serve ten years of the suspended sentence consecutive to the new sentence imposed on the case forming the basis for Rankin's violation of probation. Rankin then filed a Motion to Correct an Illegal Sentence, claiming that the plea agreement did not include any term of probation. The trial court denied his motion, stating that the agreement "made no comment about the length of terms of probation" and that the terms imposed "were within the limits provided for by statute."

In determining a defendant's reasonable understanding of the agreement at the time he entered into it, the terms implied by the plea agreement as well as those expressly provided are considered. Relying on Md. Code, Article 27 Sec. 641A, effective at the time of Rankin's sentencing, the language of the statute indicated that when a trial court suspends a sentence, it will impose probation as a matter of course. On appeal, the Court reviewing de novo found it clear that a probationary period was implicit in the terms of the plea agreement. Although the prosecutor did not specifically discuss probation, he told the trial court that the only sentencing limitation was that the "active cap," i.e., the executed portion of the sentence, was three years. The written agreement recited that there could be additional suspended time and that there was "no other sentencing limitation except that provided by law." Thus, the agreement gave the trial court the authority to suspend part of the sentence and impose probation. Further, because a suspended sentence would be meaningless without probation, the Court held the right to impose a period of probation is included in any plea agreement that provides for a suspended sentence. Held that the sentence imposed was in accordance with the plea agreement that Rankin entered into.

The full opinion is available in PDF.

Williams v. Office Relocators (Maryland U.S.D.C.)

2007-05-01T07:27:00.000-05:00

Memorandum Opinion and Order Signed April 23, 2007--Judge J. Frederick Motz.

Gerald Williams, in an action against his former employer under the Fair Labor Standards Act ("FLSA"), the Maryland Wage & Hour Law ("MWHL"), and the Maryland Wage Payment & Collection Law ("MWPCL"), presented the question whether Williams, while employed by Maryland Office Relocators ("MOR") fell within a class of employees over whom the Interstate Commerce Commission ("ICC") has the power to establish "qualifications and maximum hours of service." If Williams does not fall under this exemption (the "Motor Carrier Act" exemption), it is undisputed that he is entitled to overtime pay. If, on the other hand, he does fall within the exemption, it is undisputed that he is not entitled to overtime pay.

In this instance, the critical consideration in determing whether Williams falls within the Motor Carrier Act exemption is whether his activities "affect safety of operation" of a motor vehicle in interstate commerce. Therefore, where the "continuing duties of the employee's job had no substantial direct effect on such safety of operation or where such safety-affecting activities are so trivial, casual, and insignificant as to be de minimus, the exemption will not apply to him in any work week so long as there is no change in his duties."

In testimony, MOR failed to present any person supervised by Williams, who saw Williams on a job, any truck driver or mover who worked with Williams on a job, or indeed any operations manager contradicting Williams' own description of the work he actually performed. This Court found that, as a result, the Motor Carrier Act exemption applied and Williams was entitled to overtime pay under the FLSA and MWHL.

Two ancillary questions relating to Williams' claims remained under the FLSA and MWHL. First, was Williams entitled to liquidated damages under the FLSA and, second, was MOR's non-payment of Williams' overtime compensation "willful" so as to entitle Williams to three, rather than two, years back overtime pay?

An employer who violates the terms of the FLSA "shall be liable to the employee(s) affected in the amount of their unpaid minimum wages or their unpaid overtime compensation, as the cause may be, and in an additional equal amount as liquidated damages." However, if the employer shows to the satisfaction of the court that the act or ommission giving rise to such action was in good faith and that he had reasonable grounds for believing his act or ommission was not a violation of the FLSA," a court may refuse to award liquidated damages or may award liquidated damages in an amount less than that of the unpaid overtime compensation. The employer bears the plain and substantial burden of pursuading the court by proof that his failure to obey the statute was both in good faith and predicated upon such reasonable grounds that it would be unfair to impose upon him more than a compensatory verdict. Here, MOR's averments were entirely insufficient and it was found liable for the liquidated damages.

The statute of limitations for the FLSA is normally two years. However, if a plaintiff can demonstrate that the defendant's violation was "willful," the plaintiff may recover for the preceding three years. Violations are "willful" if the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute. The plaintiff bears the burden of proof of whether the defendant's actions were willful.

Williams' final claim for treble damages under the MWPCL was found without merit. Williams' claim was governed by the FLSA and the MWHL, not the MWPCL.

The full opinion is available in PDF.

NaturaLawn of America, Inc. v. West Group, LLC (Maryland U.S.D.C.) (Approved for publication)

2007-04-24T16:38:00.000-05:00

Filed April 22, 2007. Memorandum Opinion and Order by Judge Andre M. Davis (approved for publication).

Upon consideration of a motion by the plaintiff ("NaturaLawn") for a preliminary enjuction to enjoin the defendants ("West") from infringing NaturaLawn's trademark, disclosing or using NaturaLawn's trade secrets or competing against NaturaLawn, and West's motion to stay pending appeal, the judge GRANTED the requested preliminary injunction and DENIED the motion to stay.

(synopsis to follow)

The Memorandum Opinion and Order are available in PDF format.

Erachem Comilog, Inc. v. [United Steel Workers Union] (Maryland U.S.D.C.) (Not approved for publication)

2007-04-24T16:23:00.000-05:00

Signed April 19, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication).

On consideration of a claim by the plaintiff ("Erachem") to vacate an arbitration award entered in favor of United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC Local 12517-04 (the "Union"), and the Union's counterclaim to affirm the award, the judge DENIED Erachem's motion, and GRANTED the Union's motion.

A member of the Union ("Cavey") was discharged by his employer, Erachem, for allegedly misrepresenting his physical condition following a knee injury at work. Pursuant to the provisions of the Union's Collective Bargaining Agreement with Erachem, the discharge decision was eventually taken to arbitration, where the arbitrator found that Erachem failed to prove it had just cause to discharge Cavey, and ordered his reinstatement.

Noting that its review of an arbitral award was "among the narrowest known to the law", the judge affirmed the arbitrator's decision, finding that the arbitrator's consideration of the unemployment and worker's compensation awards in Cavey's favor was not erroneous and only part of the support cited for the decision, nor did the discussion of Cavey's Weingarten rights, even if in error, did not form the basis for the decision and award. In sum, the judge found that Erachem had not met its "exacting burden" of showing the arbitrator had "dispensed his own brand of justice" in granting the award, and affirmed.

The Memorandum and Order are available in PDF format.

Glaxo Group Ltd. v. Leavitt (Maryland U.S.D.C.) (Approved for publication)

2007-04-24T16:06:00.000-05:00

Filed April 23, 2007. Order by Judge Andre M. Davis (approved for publication).

In a follow-up to an earlier opinion (discussed here on this blog), an intervenor in the case, Roxane Laboratories, Inc. ("Roxane"), filed a motion requesting the court to recall the earlier opinion and substitute a redacted version which would omit historical net profit information as being "proprietary" and "highly confidential". The court declined the request, noting that Roxane's request had come not only after the opinion was posted on the court's Web site, but also after a copy could be found on "a popular legal research website" [could it be . . .? ed.], and thus the request was too late. Moreover, the court is a "public institution doing the public's business", and the reasons for its judgments must be exposed for public scrutiny, so even a timely request would likely have been declined.

The Order is available in PDF format.

Pendleton v. State (Ct. of Appeals)

2007-04-22T16:29:00.000-05:00

Filed April 13, 2007. Opinion by Judge Robert M. Bell.

Issue: Did a pleading asserting a claim for negligence against the State based upon abuse that the plaintiff suffered in a State licensed home sufficiently allege a duty on the part of the State where the complaint alleged that, "upon information and belief," the State "knew or should have known" of the perpetrator's propensity for violence?

Held: No. The Circuit Court's dismissal of the claim against the State defendants is affirmed. For a pleading to be sufficient in the context of a negligence action, it must allege “with certainty and definiteness” facts to show a duty on the part of the defendant to the plaintiff . Whether a legal duty exists is a question of law, to be decided by the court. Stating that, upon information and belief, a party knew or should have known about a third party’s alleged propensity for violence, without more, is not a sufficient factual allegation from which a duty may arise.

Facts: The plaintiff sued the State in the Circuit Court for Baltimore City for negligence in connection with alleged sexual and physical abuse that the plaintiff suffered at the hands of his roommate while he was residing in a group home licensed by the State. The plaintiff alleged that, "upon information and belief," the State knew or should have known of the perpetrator's propensity for violence.

The plaintiff did not allege that the perpetrator had committed assaults prior to those alleged in the complaint, or that the State had knowledge of any sexual tendencies the perpetrator may have had or that he had a history of sexual assaults. The State moved to dismiss, and the trial court granted the motion.

On appeal, the Court of Appeals noted that there was "no factual allegation as to the basis for the knowledge attributed to the State or that related why the State should have been aware of any deviant tendencies that [the perpetrator] may have had, or even that he, in fact, had such tendencies prior to the alleged incidents that occurred with the [plaintiff]. The Court stated that, "in simple situations involving an easily recognized breach of duty, a general averment of negligence following a simple statement of the defendant’s act or omission will be regarded as an ultimate fact; while in more complex situations where the breach of duty is not readily apparent, such an averment will be regarded as a mere legal conclusion.”

Finding that the situation presented by the complaint was not one "where the plaintiff’s right and the defendant’s [corresponding] duty are simple and easily perceived, or involve an easily recognized breach of duty," the Court affirmed the dismissal.

The opinion is available in PDF format.

Holland v. Psychological Assessment Resources, Inc. (Maryland U.S.D.C.) (Approved for Publication)

2007-04-21T10:51:00.000-05:00

Signed April 30, 2007--Memorandum and Order by Judge Christine C. Blake.

Dr. John Holland ("Holland") contracted with PAR in 1986 and again in 1989 to publish his career guide ("SDS"). Under the terms of the agreement, Holland transferred his rights in SDS to PAR, subject to those expressly reserved, in exchange for royalty payments based on PAR's sales of the SDS and related products. PAR created an internet version of the SDS between 1997 and 1998 and launched it on-line in September 1998 without Holland's consent. Despite Holland's continued objections to the internet version of SDS ("internet version"), PAR has maintained it on-line and attached Holland's name and biographical information to it.

Holland's intitial 1999 complaint alleged the agreement had been breached due to PAR's failure to obtain Holland's consent and to pay him proper royalties for the internet version. Holland's subsequent amendments resulted with the following claims: breach of contract (count II); breach of the covenant of good faith and fair dealing (count III); false light (invasion of privacy) (count IV); unfair and deceptive trade practices (count V); violation of the Lanham Act (count VI); and unjust enrichment/restitution (count VII). Holland further requested the court to render a declaratory judgment under the Maryland Uniform Declaratory Judgments Act regarding the breach of contract issue (count I) and the parties' rights and obligations under the contract (count VIII).

The core conflict in this case is the result of a contract that was entered into before the rise of the internet; specifically, differences between pre- and post-internet contracts and, in this case, the effect on post-internet SDS. The standard for summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. The party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial. The court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in his favor without weighing the evidence or assessing the witness' credibility. However, the court also must abide by the affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial.

Under Maryland law, contracts are interpreted objectively. A court generally interprets the terms of a written contract as a matter of law; a determination that terms are ambiguous is likewise a matter of law. Ambiguity arises when, to the perception of a reasonably prudent person in the position of the parties, the terms are susceptible to more than one meaning. To resolve ambiguity and determine the intent of the parties, a court will look to evidence from extrinsic sources. At the heart of this case is a conflict over whether Holland's consent was required prior to PAR's release of the internet version. The consent requirement only arose when PAR sought to publish and print a revised edition of the original works. "When PAR seeks to publish all test materials which incoroprate the original works, Holland must be afforded an opportunity to review and comment on the materials but his consent is not required." The court reasoned that, despite the contract's ommission of revised editions of original works, logic would dictate that PAR would wish to incorporate the most up to date material possible - revisions - into its new products, implying the existence of a category of materials other than original works - again, revisions - which PAR might seek to incorporate, thereby giving rise to a category of products incorporating revisions which is not specifically defined by the terms of the contract.

This Court was presented with two key ambiguities which required resolution in order to establish the parties' rights and responsibilities under the contract. First, the definition of "revised edition" under the contract is unclear. Second, once this definition has been established, is whether the internet version is a revised edition, in which case the consent provision of the contract is triggered. The Court accepted the parties' agreement that a revised edition is one in which the content has been substantively changed from previous editions. "Substantive" was defined as "belonging to the essence or intrinsic nature of the substance." The Court adopted "substantive change" as the basis of the understanding of "revised edition." In this instance, changes from print to internet were a substantive change because millions of people may be exposed to an abbreviated version of the test where the truncation is not offset by the presence of a counselor.

In addition to the breach of contract claim, Holland requested the Court to construe the contract and declare the parties' rights under it (count VIII). As one of the contract's central ambiguities could not be resolved, this request was denied. With respect to the breach of contract claim , Holland based his claim on an express contractual provision stating that "the parties hereto shall deal with one another fairly and in good faith." This claim should have been characterized as another ground for breach of contract rather than as a separate cause of action, which is not available. The allegations of breach of the covenant of good faith and fair dealing were thus subsumed within the breach of contract claim (count I) and did not proceed as an independent cause of action. Presenting an individual "before the public in a false light" (count III) is one variation of the more general tort of invasion of privacy. For liability to attach for a false light claim in Maryland, "(a) the false light in which the other person was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other person would be placed." If the statements on which the claim for false light is based are true, however, the "defendant in a false light case is entitled to judgment as a matter of law." In the instant case, PAR would nonetheless be entitled to summary judgment because it is not disputed that the statements on which Holland's claim is based are true. The parties agreed that Holland could not bring suit for unfair or deceptive trade practices under the Maryland Consumer Protection Act because Holland is not a consumer of the internet version but the creator of the materials on which it is based (consumer defined as "an actual or prospective purchaser, lessee, or recipient of consumer goods, consumer servces, consumer realty, or consumer credit"). The general rule is that no quasi-contractual claim (such as unjust enrichment) (count VII) can arise when a contract exists between the parties concerning the same subject matter on which the quasi-contractual claim rests. This rule is closely adhered to, and exceptions have been granted only when there is evidence of fraud or bad faith, there has been a breach of contract or mutual recission of the contract, when recission is warranted, or when the express contract does not fully address a subject matter. Holland's attempt here failed because both the agreement between the parties addressed marketing and promotion and because Holland, himself, revealed in his complaint that this claim was concerned with revenue PAR received from the internet version rather than on redressing promotional and marketing violations. Whether PAR was entitled to market the internet version depended wholly on an interpretation of the express contract between the parties. PAR was thus entitled to summary judgment on Holland's unjust enrichment claim. The Lanham Act (count VI) generally has been construed to protect against trademark, service mark or trade infrginement even though the mark or name has not been federally registered. Holland's claim does not arise in the typical context of a Lanham violation as he and PAR are not marketplace rivals but parties to a contract, the terms of which are undisputed. Holland sought to proceed under a "false endorsement" theory under which courts have found " (a) injury where the plaintiff's voices, uniforms, likenesses, published works or names were used in such a way as to deceive the public into believing that they endorsed, sponsored or approved of the defendant's product." To succeed using a false endorsement theory, the plaintiff must prove the likelihood of consumer confusion as to the origin, approval or endorsement of the project making summary judgment for the defendant appropriate where the plaintiff cannot possibly show confusion as to the source or sponsorship. As both parties acknowledge Holland's standing within the field of career testing, Holland's value of his persona seems undisputed. However, Holland's claim hinges in part on the outcome of the underlying breach of contract dispute. If Holland's consent was not required for the publication of the internet version because it was not a revised edition, his endorsement or approval of the product is contractually established and, although he may not like hte internet version, he has no legal claim that his endorsement or approval has been falsely implied. The Lanham Act turns in part on the answer as to whether there was a substantive change between the internet and print versions of SDS resulting in a revised edition and requiring consent. This answer must be presented for a jury for resolution.

The full opinion is available in PDF.

Larson v. Westlake Vinyls, Inc. (Maryland U.S.D.C.)

2007-04-21T10:03:00.000-05:00

Decided April 5, 2007--Opinion by Magistrate Judge William Connelly.

Larson moved to quash a subpoena from the District of Maryland by Westlake. The subpoena commanded Larson to appear for a deposition on March 1, 2007 regarding the case of Westlake Vinyls, Inc. v. Goodrich Corporation, currently pending in the United States District Court for the Western District of Kentucky, Paducah Division. In separate state court litigation in Ohio, Larson, a groundwater hydrologist, had been retained as as an expert witness to testify Goodrich's excess insurers.

The Kentucky case which gave rise to the subpoena against Larson concerns which of three parties should be responsible for cleaning up soil and groundwater contamination at a particular site. Westlake argued that Larson's opinions, articulated in the Ohio state litigation, are relevant to the Kentucy case and thus discoverable pursuant to Federal Rules of Civil Procedure 26(b)(1) and 45(c)(3)(B)(ii). However, it is undisputed that: (i) Larson is not testifying in the Kentucky litigation, (ii) Goodrich has not retained or specially employed Larson in anticipation of the Kentucky litigation, and (iii) that Goodrich retained Larson for the Ohio litigation.

The Court thus concluded that Larson is not a retained, nontestifying expert subject to Rule 26(b)(4)(B) with regard to the Kentucky litigation and that, alternatively, even if Rule 26(b)(4)(B) applied to Larson "to shield an expert’s opinions about the specific case they are retained for or any closely related litigation[,]" this "protection" is moot because Larson's expert report, deposition testimony, trial testimony, his expert disclosures as well as the data and information underlying his opinions have been disclosed to Westlake.

Further, the Court found that Larson's testimony in the Ohio litigation did not concern which entities are responsible for the contamination at issue in the Kentucky litigation and thus, do not do not describe matters disputed in the Kentucky litigation. It therefore quashed the subpoena under Rule 45(c)(3)(B)(ii) because it concluded that Larson was an unretained expert. In making its determination, the Court analyzed the motion using the five factors set forth in Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir. 1976).

Finally, the Court determined that Larson had not waived his right to object to the subpoena because he did not serve written objections within fourteen (14) days of receiving the subpoena. Westlake argued that the fourteen day rule under Rule 45(c)(2)(B) was applicable. However, the Court noted that Rule 45(c)(2)(B), by its terms, only applies to a subpoena ad testificandum not to an objection to a subpoena duces tecum. In this case, the subpoena was a subpoena duces tecum and Rule 45(c)(3)(A) applies. That rule only requires that the motion to quash be filed within a reasonable time after service. The Court concluded that the motion to quash, filed within 29 days after service, was filed within a reasonable time.

The opinion is available in PDF.

In Re: Van T. Vu (Maryland U.S.D.C.) (Approved for Publication)

2007-04-21T10:02:00.000-05:00

Signed April 17, 2007--Memorandum opinion by Judge Deborah K. Chasanow.

This is an appeal by objecting creditors challenging a December 2006 Bankruptcy Court Order Approving Counsel Fees.

Debtor ("Vu") filed a voluntary Chapter 11 in July 2004. As the case progressed, however, it came to light that Vu had participated in a real estate business with her sister, Minh-Vu Hoang ("Hoang"). In June 2006, Vu's primary counsel moved to employ additional counsel ("Regenhardt") when it became clear that the trustee appointed in Hoang's bankruptcy case intended to file a motion for substantive consolidation of Vu's bankruptcy estate into Hoang's bankruptcy estate, which motion was approved by the Bankruptcy Court.

The Hoang trustee filed a motion to substantively consolidate, asserting that many of the assets claimed by Vu as part of her estate were actually titled in the name of other entitities and that Hoang's estate had a superior claim to the ownership of these properties. In August 2006, the U.S. Trustee filed a motion to convert Vu's Chapter 11 to a liquidation proceeding under Chapter 7 based on an assertion that Vu had made unauthorized payments to some of her creditors from her bankruptcy estate.

In October 2006, Vu's counsel applied for payment of their fees for services in connection with Vu's bankruptcy case. Regenhardt's application indicated her services were primarily directed toward defending against the motion for substantive consolidation and the motion to convert to Chapter 7. The creditors argued that Regenhardt's services did not confer a benefit for Vu's bankruptcy estate and that the fees requested were unreasonable. The Bankruptcy Court determined that the services were reasonable and necessary expenses, and that the hours and fees submitted were reasonable.

Upon review, de novo, this Court found Regenhardt's services were of benefit to the estate. Analysis of the benefit to the estate is whether, at the time at which the services were rendered, a reasonable attorney would have believed they would benefit the estate rather than a subsequent consideration of the practical effects actually acheived by an attorney's services. Creditors further argued that Regenhardt failed to exercise billing judgment. The bankruptcy court found that Regenhardt was presented with an unusually challenging litigation schedule and taught deadlines after starting work in the middle of ongoing litigation. In addition, the litigation regarding the motions for substantive consolidation and the conversion to Chapter 7 were difficult and fact-intensive legal issues and this complexity was compounded by complicated facts associated with convoluted financial transactions which had occurred in the case. In light of these factors, this Court affirmed the Bankruptcy Court's order approving counsel fees, finding the amount of time expended was reasonable and necessary, and Regenhardt's substantial qualifications rendered her fee comparable to or lower than comparable professional fees.

The full opinion is available in PDF.

Costa Brava Partnership III, L.P. v. Telos Corp., (Cir. Ct. for Baltimore City)

2007-04-21T09:18:00.000-05:00

Issued April 19, 2007--Order and Opinion by Judge Albert J. Mattricciani, Jr.

An earlier opinion in this case was issued on November 29, 2006. It is synopsized here. In that earlier opinion, the Court denied the plaintiffs' motion for the appointment of a receiver.

Here, the plaintiffs had asked asked the Court to enjoin defendants and their agents from pursuing or closing any sale of the corporation's assets outside the ordinary course of business until May 31, 2007, when two new Class D directors will be elected to the corporation's board. Defendants countered that plaintiffs' request for a preliminary injunction sought extraordinary relief to which they were not entitled under Maryland corporation law or the facts of this case.

The Court adopted the defendants' position that the request was one for a preliminary injunction. It denied the request because it concluded that the plaintiffs were unable to establish that they had a likelihood of succeeding on the merits of their claim. Specifically, the Court concluded that "at this point [in time]" the plaintiffs are unable to persuade it that the current directors lack the requisite independence to consider a sale of the corporation's assets.

The order, together with supporting opinion, is available in PDF.

Wisneski v. State (Ct. of Appeals)

2007-04-18T21:48:00.000-05:00

Filed April 18, 2007–Opinion by Judge Lynne Battaglia.

Wisneski was convicted in the Circuit Court for Montgomery County for indecent exposure. While a guest in a private home, Wisneski suddenly exposed his genitalia to three other people, not family members, who were offended by that conduct. There was no evidence whether anyone outside the home did see or could have seen Wisneski. Wisneski raised the following question on appeal:

Does the "public place" element of the common law offense of indecent exposure require exposure in a public place, or is a non-consensual exposure by an invited guest inside a private home to three people who are not members of his family or his household and where the exposure is not visible outside of the private home to casual observers, sufficient to constitute the crime?

The three elements of the common law offense of indecent exposure requires (1) a public exposure, (2) made wilfully and intentionally, as opposed to inadvertent or accidental, which (3) was observed, or was likely to have been observed, by one or more persons, as opposed to performed in secret or hidden from the view of others.

Wisneski exposed himself in the home of a third party, in daylight, while in a room that had a big window pane. Although there was insufficient evidence for the jury to determine whether Wisneski was visible to passers-by outside the window, his conduct still amounted to indecent exposure because, as a guest in a private home, he had exposed himself intentionally, as opposed to inadvertently, to three persons who were not members of his family or household, without their permission or consent, in an area of the house not regarded as private, such as a bathroom. The public element does not require the exposure be actually seen by more than one person if it occured under such circumstances that it could be seen by a number of persons, if they happened to look and thus, it was likely to be seen by a number of casual observers. The element of intent can be express or inferred from the circumstances and the environment of the exposure. When a defendant exposes himself at such a time and place that a reasonable person knows or should know that his or her act will be observed by others, his or her acts are not accidental and the intent may be inferred.

The majority of state courts have concluded that an indecent exposure may be criminalized if it occurs in a private dwelling. Some have held that the public nature of the offense of indecent exposure is met when the defendant's indecent exposure occurs in front of an unobstructed window inside of a private dwelling. Many have also determined that the behavior can be criminalized even when it is not visible from the exterior of the home. This Court reasoned that the issue is primarily one of whether the defendant's behavior was done in secret or in a place observed or capable of being observed: "[t]he place where the offense is committed is a public one if the exposure be such that it is likely to be seen by a number of casual observers." A casual observer in this context is one who observes the defendant's acts unexpectedly. Therefore, under a reasoned approach, the common law offense of indecent exposure requires wilfulness and observation by one or more casual observers who did not expect, plan or foresee the exposure and who were offended by it.

Testimony at Wisneski's trial established that he was standing in proximity to three persons at the time he exposed himself, and that he repeatedly shook his genitalia at one of them, while adamantly and repeatedly asking her if she was "on her period." Judgment Affirmed.

The full opinion is available in PDF.

Edmund v. State (Ct. of Appeals)

2007-04-18T21:43:00.000-05:00

Issued April 17, 2007 -- Opinion of Judge Lawrence J. Rodowsky

HEADNOTE: Criminal Law - First Degree Assault - Victim in shooting fled and never located. Held: Charging document that identified victim by description, but not by name, charged a criminal offense and was not jurisdictionally defective.

Defendant was arrested after reports of an alleged shooting of a victim later described by ethnicity and race, approximate weight, height, facial and specifics of attire. After arrest, Defendant confessed to firing a handgun at such a victim after a neighborhood dispute with an unidentified victim fitting that general description. A charging document was filed in the Circuit Court for Baltimore County describing but not identifying the victim and accusing Defendant of first degree assault and handgun violations. The grand jury returned an indictment on all counts.

Defendant's counsel filed a general omnibus motion objecting, inter alia, to the sufficiency of the charging documents, but without specificity as to the nature of the insufficiency. The State objected to the timeliness of the motion but the Circuit Court ruled instead on the merits that the charging document was sufficient, notwithstanding Defendant's counsel's arguments in open court that the failure of the charging document to identify the victim was a defect depriving the Circuit Court of jurisdiction. After trial, conviction and sentence before the Circuit Court, Defendant appealed to the Court of Special Appeals, but the Court of Appeals issued a writ of certiorari sua sponte before the Court of Special Appeals ruled on the appeal.

Reviewing the text of the first degree assault statute, Code CL 3-202, the "sufficient" form of pleading provided in Code, CL 3-206, the developed common law of Maryland and of some other states and Great Britain and the text of and precedents under Article 21 of the Maryland Declaration of Rights, the Court concluded that none of those authorities required that the charging document identify the victim of the first degree assault in this case.

In summary fashion, the Court also held that the prosecution presented sufficient evidence to support a finding of guilt, and upheld the discretion of the Circuit Court to allow Defendant to present a more specific argument orally than was presented in written motion, finding no prejudice to the State in this case.

Accordingly, the Court of Appeals upheld Defendant's conviction before the Circuit Court for Baltimore County for first degree assault.

The full opinion is available in PDF form here.

In Re: Lakeshia M. (Ct of Appeals)

2007-04-18T15:35:00.000-05:00

Filed April 16, 2007. Opinion by Judge Lawrence Rodowsky (retired, specially assigned).

From the official headnote:

Juveniles - Delinquency Proceedings - L. 2005 c. 580 requires the juvenile court to stay proceedings and to order an evaluation by a qualified expert of a child's mental condition, if there is reason to believe that the child may be incompetent to proceed with, inter alia, an adjudicatory hearing. Held: Facts sufficient to trigger "reason to believe" determination. Absent determination, error to adjudicate child delinquent.

On appeal from the decision in the trial court to determine delinquency of a minor ("Lakeshia M.") despite competency issues raised by defense counsel, the Court VACATED the judgment of the trial court and REMANDED to that court for further proceedings.

The opinion is available in PDF format.

Harford County v. Saks Fifth Avenue Distribution Company (Ct. of Appeals)

2007-04-18T14:34:00.000-05:00

Files April 17, 2007. Opinion by Chief Judge Robert M. Bell.

From the official headnote:

PROPERTY TAXES - MONEY JUDGMENTS - REFUNDS - INTEREST
When taxpayer overpaid its personal property taxes, it was entitled to a refund of those monies, as to which both the interest on the refunded taxes and pre-judgment interest on that interest are also payable.

On appeal from a decision of the Court of Special Appeals reversing the decision below denying interest on the refund of personal property taxes mistakenly overpaid by the taxpayer ("Saks") and remanding for consideration whether pre-judgment interest is due on the amount of refund interest due, the Court of Appeals AFFIRMED the Court of Special Appeals' decision as to reimbursement of interest, and REVERSED as to the need for remand, instead ordering pre-judgment interest at the legal rate to be paid on the refund interest.

In a case with distinctly limited general applicability, since the statute being interpreted had been changed even prior to consideration of this case to eliminate the right to interest on refunds of overpaid personal property taxes, the Court found that the statute then in effect entitled Saks to interest on the amounts it had overpaid in personal property taxes. That overpayment occurred when Saks mistakenly included the value of personal property it leased in its own personal property return for several years, when taxes on the same property had been paid by the lessor and the lessor reimbursed by Saks. When Saks filed amended returns, the taxing authorities ("the County") agreed to and did pay the requested refund amounts, but Saks' claim for interest.

Saks filed suit, and the trial court dismissed for failure to state a claim. On appeal, the Court of Special Appeals reversed the judgment below, finding that interest was in fact due, but remanded the case to the trial court for a determination whether pre-judgment interest would be due on the refund interest. The Court of Appeals then granted a writ of certiorari.

Reviewing the statutory language, Court found no ambiguity in the provisions providing for interest on overpaid personal property taxes at the same rate that would have been collected had the amounts been un- or underpaid. It also had little difficulty finding that the filing of amended returns by Saks constituted an "appeal" under the statute, and Saks' failure to file an appeal of the favorable ruling below (that it was due a refund) did not result in administrative finality precluding the issue from being raised in this case.

The final issue was whether pre-judgment interest was due on the interest held due but unpaid on the refunded amounts. Although it is the exception rather than the rule, the Court found that the necessary criteria for pre-judgment interest had been met here, since the obligation to pay interest on any refund was established by the statute, the amount of interest due on the refund amounts was certain, definite and liquidated on the date the refund was made to Saks, and the withholding of that interest deprived Saks of the use of those amounts. The Court therefore overruled the remand ordered by the Court of Special Appeals and awarded pre-judgment interest at the "legal rate" of 6% per annum as a matter of law.

The opinion is available in PDF format.

Moscarillo v. Professional Risk Management Services, Inc. (Ct. of Appeals)

2007-04-18T14:18:00.000-05:00

Filed April 16, 2007. Opinion by Judge Clayton Greene.

From the official headnote:

PROFESSIONAL LIABILITY INSURANCE– DUTY TO DEFEND– To establish a potentiality of coverage, an insured can refer to extrinsic evidence, however, the extrinsic evidence must relate to a cause of action actually alleged in the complaint and can not create a new, unasserted claim. An insurer’s duty to defend is not triggered when the professional liability insurance policy at issue does not provide coverage for fraud and the gravamen of the complaint in the underlying action alleges only fraud.

On appeal from a decision of the Court of Special Appeals affirming the decision below that the insurer had no duty to defend the insured ("Moscarillo") for intentional rather than negligent conduct, the Court of Appeals AFFIRMED the decisions below.

The opinion is available in PDF format.

Frank v. Home Depot (Maryland U.S.D.C.) (Approved for Publication)

2007-04-14T19:10:00.000-05:00

Signed April 11, 2007. Memorandum Opinion by William D. Quarles, Jr. (Approved for publication).

Opinion granting defendant's motion for summary judgment.

Issues: Did a prior dismissal, pursuant to Rule 12(b)(6), for failure to state a claim bar litigation of the plaintiff's claim for breach of contract where the claim was based on the same alleged wrong and the parties to the suit were identical?

Did the statute of limitations or statutory qualified immunity bar the plaintiff's claim against his former employer for defamation arising in the context of providing a prospective employer a negative employment reference?

Held: Yes to both. The plaintiff's claim for breach of contract alleged the same wrong as his previous claim for discriminatory termination. Accordingly, the doctrine of res judicata applied. In addition, the statute of limitations barred the plaintiff's claim for defamation where the claim was filed more than 1 year after the alleged wrong. Even if it did not, the qualified privilege set forth in Md. Code. Ann., Cts. & Jud. Proc. s. 5-423, precluded the plaintiff's claim, absent evidence of malice or intentional or reckless disclosure of false information.

Facts: Home Depot fired the plaintiff for falsely stating that he was properly licensed to operate a forklift. When the plaintiff subsequently applied for a job at Lowe's, Lowe's contacted Home Depot for a reference. A Home Depot employee allegedly told Lowe's that the plaintiff was fired for theft.

The plaintiff filed suit in the United States District Court for for retaliatory and discriminatory discharge in violation of Title VII and Maryland law. The court dismissed the claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Then the plaintiff filed suit, alleging breach of contract and wrongful discharge, in the Circuit Court for Anne Arundel County. Home Depot removed the case to the U.S. District Court. The court dismissed the complaint without prejudice. The plaintiff then filed an amended complaint, restating the breach of contract claim and adding a defamation claim.

Home Depot moved for summary judgment on the breach of contract claim on the grounds that 1) the plaintiff was an "at will" employee, and 2) the doctrine of res judicata, arising from the prior dismissal pursuant to Rule 12(b)(6), barred the claim. Home Depot moved for summary judgment on the defamation claim on grounds that 1) it was filed more than 1 year after the alleged wrong, and 2) the claim was barred by privilege under Md. Code. Ann., Cts. & Jud. Proc. s. 5-423.

Applying the elements of res judicata, the court found that 1) the earlier dismissal was an adjudication on the merits, 2) the two lawsuits "centered" on the same alleged wrong, and 3) the parties were identical. Accordingly, the court held that the doctrine of res judicata barred the plaintiff's breach of contract claim.

Turning to the defamation claim, the court found that the alleged defamation occurred more than 1 year before the filing of the complaint. As the statutory limitations period for defamation in Maryland is 1 year, the court held that the claim was barred.

The court further held that, even were the claim not barred by the statute of limitations, the qualified privilege afforded to employers under Md. Code. Ann., Cts. & Jud. Proc. s. 5-423 would bar the claim. The privilege bars claims against employers for giving good faith references to prospective employers. An employer is “presumed to be acting in good faith unless it is shown by clear and convincing evidence that the employer: 1) acted with actual malice toward the employee or former employee; or 2) intentionally or recklessly disclosed false information about the employee or former employee.” The plaintiff offered no evidence supporting a finding of actual malice or intentional or reckless disclosure. Accordingly, the privilege barred his claim.

The Memorandum Opinion is available in PDF format.

Semtek International v. Lockheed Martin (Balt. City Circuit Court, Bus. And Tech. Ct.)

2007-04-14T17:01:00.000-05:00

Filed April 12, 2007—Opinion by Judge Albert J. Matricciani

Prior Proceedings:
Semtek sought to amend its complaint shortly before a trial in 2003 in order to add additional allegations and two new causes of action under Massachusetts law. The Court granted Lockheed’s motion to strike the amended complaint, with the modification that permitted Semtek to allege additional facts relating to intentional interference with prospective economic advantage, which was the single count before the Court for trial. At the close of Semtek's case, the Court granted Lockheed’s moved for judgment under Md. Rule 2-519. The Court of Special Appeals affirmed, but remanded to the Circuit Court to consider the two additional Massachusetts causes of action that Semtek had tried to insert in the stricken amended complaint. On remand, Semtek engaged new counsel and filed a second amended complaint, which Lockheed moved to strike or dismiss.

Memorandum Opinion:
The Court denied the motion to strike the second amended complaint but granted with prejudice the motion to dismiss it. The Court found that the factual allegations were expanded significantly in the second amended complaint but the causes of action were the same as those asserted by Semtek in its first amended complaint. Because those were the causes of action the Court of Special Appeals had directed the Court to consider on remand, it would not strike the second amended complaint.

The Court determined, however, that the Court of Special Appeals had already conclusively determined that Lockheed had not interfered with Semtek’s prospective economic advantage and had not engaged in other tortuous conduct that had been alleged. Applying those conclusions as the law of the case, the Court determined that even with the additional allegations of the second amended complaint, Semtek’s claims under the Massachusetts causes of action could not withstand a motion to dismiss or summary judgment. The Court dismissed the amended complaint with prejudice.

The opinion and order are available in PDF.

Frank v. Home Depot (U.S.D.C. Maryland)

2007-04-14T16:54:00.000-05:00

Filed April 11, 2007—Opinion by Judge William Quarles

The District Court granted Home Depot’s motions for summary judgment of a suit by Charles Frank, a former employee, for breach of contract and defamation related to his termination and certain statements made by a Home Depot employee to Frank’s potential future employer.

Home Depot had terminated Frank because he falsely stated that he had been properly licensed to operate the forklift when his license had expired. Thereafter, Lowe’s allegedly failed to hire him because of defamatory statements made by a Home Depot employee to someone at Lowe’s.

This is the second suit brought by Frank against Home Depot. In the first, Frank sued pro se, alleging retaliatory and discriminatory discharge in violation of Title VII of the Civil Rights Act of 1964 and wrongful discharge in violation of Maryland law. The Court had dismissed that suit for failure to state a claim.

The instant suit alleging breach of contract and wrongful discharge was previously dismissed without prejudice and reinstated on an amended complaint that added the defamation claim. The Court determined that the first count was barred by res judicata, while the defamation claim was barred by the statute of limitations and, in any event, by a statutory and common law qualified privilege, citing Md. Code Ann., Cts. & Jud. Proc. § 5-423 and Gohari v. Darvish, 363 Md. 42, 56 (2001).

The opinion and order are available in PDF.

Williamson v. State (Court of Appeals)

2007-04-13T10:37:00.000-05:00

Filed April 13, 2007 – Opinion by Judge Lynne Battaglia

Derek Maurice Williamson sought review of the denial of a motion to suppress statements he made during the execution of a search warrant. During surveillance, police had observed him enter and leave the residence to be searched on numerous occasions. Based on their belief that Williamson was an occupant of the residence, after arriving to exercise a search warrant and seeing him leave the house, police stopped Williamson as he was about to enter his car. The police returned him to the house and detained him during the search. The Court of Appeals affirmed, holding that the court properly denied Williamson’s motion because the police had the authority to return Williamson to the house and detain him while the search was conducted.

The full opinion is available in PDF.

Green v. Carr Lowery Glass Company, Inc. (ct. of Appeals)

2007-04-13T10:32:00.000-05:00

Filed April 13, 2007 – Opinion by Judge Irma Raker

The Court of Appeals considered whether, under the Workers’ Compensation Act, a claimant whose hearing has been damaged as a result of his occupation is entitled to have hearing aids provided by his employer/insurer, even though he does not meet the criteria for monetary compensation under the Act. The Court held that the claimant is not eligible for medical benefits, i.e. hearing aids, unless he mets the criteria for eligibility for compensation under the Act.

Thus the Court affirmed the Court of Special Appeals, which had affirmed the circuit court’s grant of summary judgment in favor of the employer/insurer.

The full opinion is available in PDF.

Lewis v. State (Ct. of Appeals)

2007-04-12T17:44:00.000-05:00

Filed April 12. 2007. Opinion by Judge Lynne A. Battaglia. Dissenting opinion by Judge Lawrence F. Rodowsky (retired, specially assigned), joined by Judges Raker and Harrell.

From the official headnote:

CRIMINAL LAW – SUPPRESSION OF EVIDENCE:
Petitioner, Lamont Anthony Lewis, sought review of the denial of his motion to suppress the seizure of marijuana discovered during a traffic stop. The marijuana was discovered by police stopped Lewis after he "almost" struck a police car when he pulled his vehicle away from a curb; Lewis was convicted of possession of a controlled dangerous substance, marijuana, in violation of Section 5-601 (c)(2) of the Criminal Law Article, Maryland Code (2002). The Court of Appeals reversed, and held that the court erred in denying Lewis’s motion because the police did not have an articulable reasonable suspicion to stop Lewis based upon the fact that he "almost" hit the car.

In dissent, Judge Rodowsky found the evidence sufficient to support the traffic stop, because the misdemeanor of negligent driving was committed in the presence of the police officers.

The majority and dissenting opinions are available in PDF format.

McNack v. State (Ct. of Appeals)

2007-04-12T17:36:00.000-05:00

Filed April 12, 2007. Opinion by Judge Dale R. Cathell.

From the official headnote:

Seven members of the Dawson family died as a result of the alleged firebombing of their home by drug-dealers. Relatives of the Dawson family filed suit against various governmental entities asserting that their actions violated the state constitutional rights of the Dawson family and that said entities were also negligent in failing to protect the Dawson family from the drug-dealers. Reviewing the trial court’s grant of the governmental entities’ motion to dismiss the complaint for failure to state a claim, the Court of Appeals held that the Circuit Court for Baltimore City was correct as a matter of law when it found that the state-created danger theory did not apply in Maryland or, even if applicable, did not apply under the circumstances of the case and that a special relationship did not exist between the appellees and the Dawson family. The Court further held that the trial court did not err in dismissing the case prior to discovery being conducted.

This case arose out of the tragic deaths of the Dawson family, whose home was firebombed in retaliation for the Dawsons' efforts to combat the illicit drug trade in their neighborhood. The suit was filed by certain relatives of the Dawsons ("McNack") against the State and City, and virtually every public official involved in law enforcement at the time (collectively, the "State"), alleging violations of the Dawsons' right to due process and equal protection under Maryland's Declaration of Rights, and negligence in failing to protect the Dawsons. The State defendants argued that they did not owe a duty to, nor did a "special relationship" exist with, the Dawsons. The Baltimore City Circuit Court agreed, and dismissed.

The Court issued a writ of certiorari, and on appeal McNack questioned the trial court's rulings on the due process rights under the 'state created danger' doctrine, on the lack of a "special relationship", and on dismissing the case prior to the opportunity to conduct discovery.

The Court noted that Maryland had not yet, by statute or caselaw, adopted the state created danger theory to impose liability upon governmental entities for private acts that, if committed by the government, would violate constitutionally protected rights, even where no special relationship exists between the government and the injured person, where the state has increased the risk of harm to its citizens through its own acts. Moreover, even in those cases where it has been recognized in other states, the claims were all brought under federal law, and not the Declaration of Rights of the Maryland Constitution or other state constitutions. Finally, even if the Court were to adopt the state created danger doctrine here, there were no affirmative acts by the State in this instance, and the Court therefore declined to decide the application of the doctrine in this case.

Turning to the negligence claim, the Court looked to the "seminal" Ashburn case for guidance, and found that there must be a "special relationship" between the officer and the individual in order to create a duty to that individual, that is, a demonstration that the officer affirmatively acted to protect the specific victim or group, thereby inducing the victim or group to rely upon the officer. Here, the Court did not find that the pattern of 911 and 311 calls by the Dawsons, the promises to put the family on the "Special Attention List", or suggestions that the family move or be placed in a protective status created such a special relationship, under either the first or second prongs of the Ashburn test. The Court found that the result here to be consistent with the public policy considerations present in Ashburn.

Since the allegations would not suffice to establish a duty based upon a special relationship, the Court found no error in dismissing prior to discovery.

The opinion is available in PDF format.

Bereano v. State Ethics Commission (Ct. of Special Appeals)

2007-04-12T12:25:00.000-05:00

Filed April 12, 2007. Opinion by Judge James A. Kenney, III (retired, specially assigned).

Upon consideration of Bereano's appeal of the judgment of the Circuit Court for Howard County, which had affirmed the finding of the State Ethics Commission (the Commission") that Bereano had knowingly and willingly violated Section 15-713(1) of the State Government Article of the Maryland Code by being engaged for lobbying purposes for compensation that was contingent upon executive or legislative action, and the sanctions of reprimanding him, suspending his lobbying activities for ten months, fining him $5,000 and requiring him to submit copies of all fee agreements for a period of three years, the Court AFFIRMED the judgment below. The Court also DENIED Bereano's motion for reconsideration to a court panel or in the alternative for an en banc hearing.

This case arose out of a contractual relationship between Bereano and a client ("Traina") for lobbying, political consulting and contract development services for Traina's company. The contract ("Fee Argeement") was proposed by Bereano on September 1, 2001 and accepted by Traina on September 13, 2001, and provided for a monthly retainer, reimbursement of expenses, and compensation of 1% of the first year's receivables for each facility opened for which Bereano was "involved in securing and participated in obtaining, and/or any contract or performance of services which is entered into by your company with any government entity, unit or agancy in the State of Maryland or and other sate of jurisdiction in which [Bereano] worked on the matter."

On November 13, 2001, Bereano filed a lobbying registration form with the Commission for executive and legislative action lobbying on behalf of one of Traina's company's subsidiaries. Subsequently, Bereano billed Traina for his services, including the monthly retainer and expense reimbursement.

In June of 2002, Traina sent a letter to Bereano, noting that the Baltimore Sun had questioned the Fee Agreement, claiming it contained an illegal "contingency agreement". Subsequently, the Fee Agreement was amended to remove the questioned language. The Commission subsequently initiated a complaint against Bereano in September, 2002, on matters including the Fee Agreement, and a hearing on the merits was held in June of 2003. At the hearing, Bereano claimed the additional fee was included at Traina's request, but did not call Traina to testify on this, and claimed that he had not in fact performed any lobbying on behalf of his client.

In its final decision and order, the Commission found that Bereano had knowingly and willfully violated Section 15-713(1), based upon the clear language of the Fee Agreement, finding Bereano's testimony less than credible in claiming not to be aware of Traina's public contracts and in not performing lobbying for Traina, and imposed a fine, a reprimand, a suspension for ten months, and supervision for three years thereafter.

The Court noted that Bereano's claim to have not done any actual lobbying was not relevant, since the prohibited activity was contracting for such contingent agreement and not actual performance, and he had in fact registered as a lobbyist, bringing him within the sanctions provided in the statute. Interpretation of the 'plain meaning' of the statute may include consideration of the context in which it was passed, and the evil intended to be addressed, and to prohibit only contracts for successful lobbying would not effect the purpose. Similarly, the 'plain language' of the Fee Agreement supported the Commission's conclusion that in fact it contained a prohibited contingency fee agreement.

Bereano also claimed that the statute's effective date, being November 1, 2001, was after the execution of the Fee Agreement, and to hold him liable would be to retroactively apply the statute. The Court disagreed, since it was not only the execution of the Fee Agreement, but the continued operation under it, that constituted the violation, distinguishing this situation from that in the Evans decision, which involved a prior criminal conviction. The Court also found that intentionally and voluntarily entering into the Fee Agreement and continuing to operate under its provisions satisfied the "knowingly and willingly" requirement of the statute.

Bereano also contended that the Commission erred in applying the "missing witness rule" to infer from Bereano's decision not to call Traina that Traina would not have supported Bereano's representations on several points. The Court found that it was up to the Commission, as trier of fact, to draw inferences from conflicting evidence, and that here Traina was "peculiarly available" to Bereano, based on their business relationship, that was not countermanded by the Commission's ability to subpoena Traina, had it chosen to do so. Since Bereano had himself highlighted what Traina would have said "if he were here under oath", it was incumbent upon him to explain Traina's absence, and no error for the Commission to apply the "missing witness rule", allowing it to draw a negative inference from that absence.

The opinion is available in PDF format.

Sapero v. Mayor and City Council of Baltimore (Ct. of Appeals)

2007-04-12T11:42:00.000-05:00

Filed April 12, 2007. Opinion by Judge Dale R. Cathell.

From the official headnote:

Headnote: Code of Public Local Laws of Baltimore City, §21-16 requires that, in order to utilize quick-take condemnation, the City of Baltimore demonstrate why, because of some exigency or emergency, it is necessary and in the public interest for the City to take immediate possession of a particular property.

On direct appeal to the Court of Appeals, the Court VACATED the judgment of the Baltimore City Circuit Court allowing the quick-take of Sapero's property, and REMANDED the case for further proceedings consistent with this opinion.

In a factual situation very similar to that considered in the recent Valsamaki case (discussed in this post), the Court once again considered litigation stemming from an attempt by the city of Baltimore (the "City") to exercise its quick-take condemnation powers, this time against the owner of the old Chesapeake Restaurant property and other parcels (the "Property"), as part of Charles North Urban Renewal Plan for the Charles North Revitalization Area.

In this case, after being authorized in June 2004 to purchase the Property, the City negotiated with the owner to acquire the Property until December, 2005, when it filed an action for regular condemnation and petitioned for immediate possession and title. The trial court granted the City's petition. Sapero timely answered the petition, and filed a motion to vacate. After several postponements, the trial court finally held a hearing on March 20, 2006, granted the City's petitions and denied Sapero's motion to vacate, and denied Sapero's subsequent motion to alter or amend judgment.

On appeal, Sapero raised several questions, some of which the Court "briefly comment[ed] on" in a footnote, but the case was resolved on two of them. The first, and dispositive, issue was the total lack of evidence to support the required "immediate need" for possession under the quick-take statute. This matter had been decided below prior to the Valsamaki case, and therefore the trial judge did not have the benefit of the Court's ruling in that case that the City must demonstrate the reasons why it is necessary for it to have immediate possession and title to a particular property. Here, as in Valsamaki, there was no such sufficient showing.

The Court noted that there was more than 19 months from the time it was authorized to acquire the Property before it filed for quick-take condemnation, a time period sufficient to allow for discovery in a regular condemnation proceeding, and that the City had requested at least one postponement during the proceedings. By contrast, the trial judge denied Sapero a requested continuance, based upon the perceived urgency imposed by the quick-take statute.

In considering Sapero's due process challenge to the statute and its use in this case, the Court noted that the nature of a quick-take proceeding limits the availability of discovery, and therefore limits the ability of the property owner to investigate the appropriateness of the condemnation and challenge it effectively. The Court noted that in this case there was no indication that Sapero's request for answers to interrogatories, production of documents and admissions had ever been answered by the City, highlighting the due process constraints imposed by quick-take proceedings.

Given the potential for due process violations created by the expedited quick-take remedy, and the specific language of the statute, the Court affirmed the principle established in Valsamaki, that the City must establish that such truncated procedures are "warranted by extreme circumstances" and are in the public interest. Here, as in Valsamaki, there was virtually no evidence of any kind that any such extreme circumstances existed, but rather it appeared that the City was using quick-take proceedings to gain a litigation and negotiating advantage rather than proceeding from and with the requisite justification demanded by the federal and state due process requirements, and the specific language of the statute.

The opinion is available in PDF format.

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

2007-04-11T10:16:00.000-05:00

Filed April 10, 2007. Opinion by Judge Clayton Greene, Jr.

From the official headnote:

ATTORNEY DISCIPLINE – Our goal in matters of attorney discipline is to protect the public and the public's confidence in the legal profession rather than to punish the attorney.

ATTORNEY DISCIPLINE – We protect the public by imposing sanctions that are commensurate with the nature and gravity of the attorneys’ violations and the intent with which they were committed. The severity of the sanction depends upon the facts and circumstances of each case, taking account of any particular aggravating or mitigating factors. Under the circumstances, the appropriate sanction is a reprimand where the attorney disrupted court proceedings in one instance; and, in another instance walked out during the court proceedings to show his disdain for the trial judge. The mitigating factors were that the attorney’s clients were not prejudiced as a result of his misconduct and that there were no prior disciplinary proceedings filed against the attorney. In addition, by imposing a reprimand in this case, we are able to send a clear message to the Bar that deliberately disruptive behavior by attorneys in court proceedings will not be tolerated.

In the course of representing two clients in three matters before two judges, Mahone was found by the hearings judge to have not shown up for a hearing in one matter, without notice to the court that he would be tardy or explaining or apologizing for his tardiness afterwards, and repeatedly interrupted the judges and acted in a condescending manner in two other matters, including leaving the courtroom and abandoning his client during the judge's rendering of his opinion in one of them. Consequently, the hearings judge found Mahone's conduct to have been prejudicial to the administration of justice in violation of Rule 8.4(d) of the MRPC.

Mahone filed exceptions on the grounds that the hearings judge failed to make findings of mitigation on the basis of his "Equitable Grounds Defense", in which he had suggested that the complaints had been filed as a product of judicial retaliation and resentment, and that the hearing judge erred in finding that one instance of lateness supported a finding of discourtesy, and in failing to find that one of the trial judges initiated a patter of interruptions, goaded him during the hearing, was discourteous to counsel, and lost control of the proceedings and created a hostile and oppressive court environment, and that Mahone's walking out was a "speech protest" rather than a substantial idsruption of the proceedings. Mahone also noted that neither judge had held him in contempt, and that one waited four months before filing a complaint.

The Court found that Mahone had had a full opportunity to be heard before the hearing judge on all matters raised in the exceptions, and found no basis for determining the factual findings below were clearly erroneous. The Court had little effort affirming the hearing judge's finding of law that Mahone had violated MRPC 8.4(d), finding that his patterns of disruption and walking out of court constituted a direct contempt, and that the exceptions proffered, even if taken at face value as true, did not excuse Mahone's conduct. Further, the restraint exercised by the judges did not serve to demonstrate that his conduct was not disruptive.

The Court did not agree with the suspension requested by Bar Counsel, noting that not every contempt of court deserves suspension or disbarment. Here, given that Mahone was, as noted by the hearing judge, a "zealous advocate" who had "[lost] his perspective", that neither client had been prejudiced by Mahone's misconduct, and that there had been no prior disciplinary proceedings against him, the Court held that the appropriate sanction was a reprimand, since that would be sufficient to "send a clear message" that such behavior will not be tolerated.

The opinion is available in PDF format.

Miller v. Comptroller of Maryland (Ct. of Appeals)

2007-04-11T09:13:00.000-05:00

Filed April 10, 2007 -- Opinion by Judge Dale Cathell

This case involed the issues of how a State employee is to be compensated for time spent commuting to and from an out-of-regular work site and whether a State employee is entitled to an award of compensation for acts occurring outside a 20 day period prior to the filing of a grievance. The Court held that COMAR17.04.11.02B (1)(j) does not entitle employees to compensation for all time spent traveling between home and a work site other than their assigned office and that Maryland Code (1993, 2004 Repl. Vol.), § 12-203(b) of the State Personnel and Pensions Article requires a remedy to be limited to compensation for claims existing within 20 days prior to the initiation of a grievance.

The opinion is available in PDF.

Erie Insurance Exchange v. Heffernan, II, et al. (Court of Appeals)

2007-04-11T08:54:00.000-05:00

Filed April 10, 2007 --Opinion by Judge Clayton Greene

The parents of a child killed in an automobile accident when the driver fell asleep sued for benefits, pursuant to two policies of insurance issued to them by Erie Insurance Exchange. The Court of Appeals held that, in a breach of contract action for benefits, pursuant to the uninsured/underinsured provisions of an automobile insurance contract executed in Maryland, what the parents were "entitled to recover" was determined by Delaware substantive law because the law of the situs of the accident controlled the tort aspects of the claim, including questions of liability and damages raised in an uninsured motorist claim.

Prior to filing the contract action, the parents had settled the underlying tort claim against the underinsured tortfeasor. Because Erie approved the settlement with the tortfeasor, the Court noted that Erie was bound by that settlement and, therefore, liability was not at issue. The Court also concluded that Maryland's public policy exception to the doctrine of lex loci delicti does not require the application of Maryland's statutory cap on non-economic damages or application of Maryland's contributory negligence principles.

The opinion is available in PDF.

Forster v. Hargadon (Ct. of Appeals)

2007-04-11T08:20:00.000-05:00

Filed April 11, 2007 --Opinion by Judge Alan Wilner

Nancy S. Forster, the Public Defender of Maryland, petitioned for a writ of prohibition, writ of mandamus, or other appropriate relief, vacating a directive and order issued by Judge Edward Hargadon, of the Circuit Court for Baltimore City. Forster argued the directive and order were substantively unlawful and constituted an impermissible local rule. The order imposed certain procedural requirements on parties filing exceptions to the report of a master in juvenile cases and permits the court to dismiss the exceptions if those requirements are not met. The directive directed the court clerk to enter the order in each exceptions case, so that the order and its requirements would be case-specific.

A motion to stay the directive and order pending the Court's decision on the petition had been granted earlier. After considering the petition, however, the Court dismissed it and revoked the stay because the requested relief, if
warranted, was available in two pending cases in Court of Special Appeals.

The Opinion is available in PDF.

Jackson v. Pasadena Receivables (Ct. of Appeals)

2007-04-11T08:17:00.000-05:00

Filed April 11, 2007 --Opinion by Judge Alan Wilner

This case arose from a collection action in the District Court to recover judgment on a credit card debt. The debtor, Sheri Jackson, never denied that she used the credit card to purchase the items which, together with finance charges, comprise the debt and that, at some point, she simply stopped making payments on the account. She argued that, because she never signed the credit card agreement and the credit card issuer, Citibank, made no reasonable attempt to obtain her signature, the credit card agreement violates a provision of the Maryland Retail Credit Accounts Law (RCAL), codified at Maryland Code, § 12-503(e)(1) of the Commercial Law Article (CL). As a result, Ms. Jackson claimed that, in accordance with CL § 12-513(a), all of the finance charges that had ever been assessed during the nine years that she used the credit card were forfeited.

The Court disagreed and holding that the choice of law provision in credit card agreement, calling for South Dakota law to be applied to disputes arising under the agreement or in connection with the use of he card, was valid and enforceable in Maryland. The Maryland Retail Credit Account Law provision requiring that the credit card agreement be signed by buyer or that issuer make reasonable attempt to obtain buyer's signature was not such a fundamental policy of Maryland that it could override the choice of law provision.

The Opinion is available in PDF.

Alford v. Genesis Healthcare (Maryland U.S.D.C.) (Not approved for publication)

2007-04-10T10:17:00.000-05:00

Signed April 9, 2007. Memorandum Opinion by Judge Richard D. Bennett (not approved for publication)

Upon consideration, the motion by defendant ("Genesis") for summary judgment was GRANTED.

The plaintiff ("Alford") was employed by Genesis as a Registered Nurse in its nursing care facility in Maryland beginning in 2003. When complaints arose about her performance, an investigation determined that Alford had failed to properly handle controlled substances, and she was discharged in 2004. As required by statute, Genesis reported the medication errors to the Maryland State Board of Nursing, and consequently Alford was required to enter a rehabilitation program for nurses to avoid disciplinary action against her by the State Board.

In 2005, Alford filed suit against Genesis in state court, and Genesis subsequently had the case moved to federal court based upon diversity of citizenship. Alford sought relief from Genesis based upon counts sounding in respondeat superior, wrongful termination, civil conspiracy, invasion of privacy false light, and intentional infliction of emotional distress. Genesis moved for summary judgment, and the judge reviewed the evidence in a light most favorable to Alford to determine if there was a genuine issue as to any material fact.

The judge found that the doctrine of respondeat superior was not a separate cause of action, but would only be relevant if a cause of action existed against Alford's direct employer, in order to hold Genesis liable. Since Alford was an at will employee, and no evidence to support a claim of abusive discharge had been submitted, there was no wrongful termination in this case. Since Genesis was under a statutory duty to report Alford's misdeeds to the State Board, it had a qualified immunity sufficient to overcome Alford's allegation of defamation, and Genesis' qualified immunity would also protect it against Alford's false light charge. Finally, civil conspiracy is not a cause of action apart from an underlying tort, and since no tort had been demonstrated in this case, the judge granted Genesis' motion for summary judgment on all counts.

The Memorandum Opinion is available in PDF format.

Ward v. Hammond et al. (Maryland U.S.D.C.) (Not approved for publication)

2007-04-10T09:06:00.000-05:00

Filed March 30, 2007 --Opinion by Judge Catherine Blake

Ward, an inmate at the Western Correctional Institution ("WCI"), alleged that medical personnel at WCI had denied him medical treatment and housing for his complaints regarding knee and lower back problems related to an old automobile accident. The court considered motions to dismiss and/or for summary judgment, granting all but those pertaining to Plaintiff's claims against defendants Hammond, Van Meter, and Tessema (respectively, a nurse practitioner, nurse, and physician at WCI) for his medical treatment prior to July 1, 2005, based on a delay in providing treatment prior to that date.

The count asserted against Department of Public Safety and Correctional Services ("DPSCS") was dismissed because DPSCS is not a "person" under 42 U.S.C. § 1983 and is entitled to Eleventh Amendment immunity. Defendants CMS and PHS were dismissed because the doctrine of respondeat superior liability does not apply to § 1983 claims. The count asserted against those defendants stemmed from violations of prison directives, which the court held did not give rise to a § 1983 claim or a private right of action.

The court explained that a denial of medical care claim in violation of the Eighth Amendment required the plaintiff to prove an objectively serious medical condition and a subjective component of deliberate indifference on the part of prison officials or health care personnel. The Court determined that there was no dispute that Ward had a medical problem involving his knees relating to injuries suffered in a motor vehicle accident in the mid 1980's. The Court found a genuine dispute of material fact regarding the constitutionality of the level of care received by Ward for his orthopedic condition prior to July 1, 2005. Thus summary judgment was not granted for that time period as to the medical defendants.

The Opinion and Order are available in PDF.

Sykes v. Wicomico County (Maryland U.S.D.C.) (Not approved for publication)

2007-04-10T09:02:00.000-05:00

Filed March 30, 2007 --Opinion by Judge Catherine Blake

Tyrone Sykes sued the defendants, Officers Phillips and Alessandrini for violations of federal and state law arising out of a scuffle during his arrest for criminal trespass in Salisbury, Maryland. In a Maryland district court trial, Sykes was found not guilty of the criminal trespass charge, after the judge found no probable cause for his arrest. The judge noted that under the common law one could resist reasonably in an unlawful arrest. In federal court Sykes alleged violations that included assault, battery, false imprisonment, false arrest, malicious prosecution, excessive force, violation of the Maryland Declaration of Rights, and violation of 42 U.S.C. § 1983.

Sykes claimed that his Fourth Amendment rights were violated because the defendants illegally searched his person after arresting him without a warrant. The court denied summary judgment on that claim because of a genuine dispute of material fact as to whether the officers had probable cause for the arrest. The court rejected summary judgment for the defendants based on qualified immunity because as stated by Syke’s version of the events, an arrest for trespass, and subsequent search, by the police without express authorization or prior agreement, and where the plaintiff articulates a plausibly legitimate reason for being on the premises, which has been acknowledged by the officer, is a constitutional violation.

Finding that the notice provisions of the Maryland Tort Claims Act do not implicate individual state employees, the court held that Sykes’s possible failure to comply with the MTCA would not bar his claim.

The defendants claimed that they were entitled to statutory immunity for the state law claims but the court rejected that as a basis for summary judgment because on the facts taken in the light most favorable to Sykes there was evidence sufficient for a jury to find actual malice, which would preclude qualified immunity. Analyzing the claims of excessive force during an arrest under the Fourth Amendment’s objective reasonableness standard and again taking the facts in the light most favorable to the plaintiff, the Court found a genuine dispute of material fact concerning whether defendants used excessive force.

With respect to the assault and battery claims, the court noted that police officials are not responsible in inflicting injury on a person being arrested, unless the officer acts with malice or gross negligence. Because there was a genuine dispute as to whether the police officers lacked probable cause in arresting Sykes for trespass, and taking the facts in the light most favorable to Sykes, the judge denied summary judgment on that basis because a jury could find malice in the defendants’ actions. On a similar reasoning, the court found summary judgment inappropriate as to the false arrest, false imprisonment, and malicious prosecution allegations.

The Opinion and Order are available in PDF.

Thomas v. Giant Food, LLC (Ct. of Special Appeals)

2007-04-09T15:46:00.000-05:00

Filed April 9, 2007. Opinion by Judge Deborah S. Eyler.

On appeal from the grant of summary judgment in favor of the employer ("Giant") against a former worker ("Thomas"), affirming the denial of Thomas' claim by the Workers' Compensation Commission (the "Commission"), the Court AFFIRMED the decision below.

Thomas was injured while at work at Giant, during a period in which he was employed both by Giant and in a second job. The injury was severe enough to preclude Thomas from continuing to work at Giant, but he was able to continue the more sedentary second job. Thomas filed with the Commission for temporary partial disability, which was opposed by Giant because his weekly earnings from his second job exceeded his average weekly wage from Giant. The Commission agreed, and Thomas' appeal to the Circuit Court for Prince George's County was equally unavailing.

On appeal, Thomas advanced what the Court characterized as an "equity" argument: that the wages from the second job should not be considered in calculating his "wage earning capacity", or in the alternative the second job should be included as well in the "average weekly wage". Otherwise, since the wages from the second job exceeded the average weekly wage received from Giant, there would be no compensation, and that was contrary to the social purpose of the workers' compensation laws.

The Court noted that Worker's Compensation is purely a statutory remedy, and therefore any remedy is limited to that provided by the terms of the statute. Here, the statute clearly provides that "wage earning capacity" includes not only income from the injury-producing job but also other jobs, and "average weekly wage" only includes wages from the injury-producing job. Since Thomas' "wage earning capacity" exceeded his "average weekly wage", no compensation for temporary partial disability was due per the relevant provisions in the statute.

The Court noted other provisions in which the legislature had explicitly included or excluded other income in calculating eligibility for or the amount of benefits, but had not done so there. Unless and until the legislature sees fit to change the statute, the Court found that the result arrived at by the Commission and the court below was correct.

The opinion is available in PDF format.

Becker v. Anne Arundel County (Ct. of Special Appeals)

2007-04-09T10:23:00.000-05:00

Filed April 9, 2007. Opinion by Judge James R. Eyler, Jr.

From the official headnote:

ZONING – CRITICAL AREA PROGRAM

Amendments to State and county critical area laws, absent an express statement as to prospective or retrospective application, apply to matters pending and not yet decided by the agency responsible for de novo decision making.

When a board of appeals denies an application for a variance, and the property owner has a legal right to build on the property, but cannot do so without a variance, it is not sufficient for the Board to state that the owner had not met its burden of proof. The Board must explain and give reasons for its denial of the requested variance.

On appeal from the affirmation by the Anne Arundel Couty Circuit Court of the Board of Appeals' denial of variances needed to permit construction of a home by the owner ("Becker") on a waterfront parcel subject to the Critical Area Program, the Court REVERSED the decision below and REMANDED to the Circuit Court with instructions to vacate the decision of the Board and remand the case to the Board for further proceedings consistent with this opinion.

Becker applied for three variances needed to allow the construction of a proposed dwelling on a lot on the Magothy River, 97% of which was within the 100-foot critical area buffer. After taking testimony in a de novo hearing, the Anne Arundel County Board of Appeals (the "Board") denied the variances, and Becker appealed to the Circuit Court, which affirmed the Board's decision.

Upon appeal, Becker alleged that the Board applied an incorrect and illegal standard in requiring the variances to be the "absolute minimum necessary", failed to make reasonable accommodations for Mrs. Becker's physical disability, erred in ignoring the overwhelming evidence in favor of the variances, ignored the physical evidence supporting the variance criteria, and erred in "taking" Becker's property without just compensation.

The Court found that the state legislature had been very clear in strengthening the Critical Area Program by amendment, in direct response to several cases indicating some judicial leniency, allowing local implementation consistent with the state program. The Court found that a clarifying amendment enacted during the pendency of the matter at issue here did apply, and that the county enactments incorporating the amendments were effective and not preempted by the state provisions.

In reviewing the deliberations by the Board, the Court noted that the two Critical Area-related variences should have been considered separately from the setback variance, since different standards applied, and the reasons for the decision should have been stated with greater particularity, finding no evidence at all in the record to support some of the Board's findings. In context, the Court found the Board had applied the correct standard notwithstanding some language indicating otherwise. The Court also indicated taht the Board must take into account evidence of Mrs. Becker's alleged disability in its considerations. The Court was not willing to entertain Becker's taking argument, since it was not clear that the Board's decision would preclude all economically beneficial use of the property, but noted that denail of variances might, under some circumstances, constitute a taking.

Finally, the Court noted that the Board was not an administrative body which had discretion to do or not do an act, for which a mere statement that the applying party had failed to satisfy the burden of persuasion would suffice, but rather it must grant or deny varience requests, and has an obligation to explain its decision. For that reason, the Court reversed the decision below and remanded with instructions to remand to the Board for further proceedings consistent with the Court's opinion.

The opinion is available in PDF format.

U.S. v Carson (Maryland U.S.D.C.)(Not Approved for Publication)

2007-04-08T22:32:00.000-05:00

Order Signed April 5, 2007--Magistrate Judge James K. Bredar. (Not approved for publication.)

On February 20, 2007, the Court entered an Order detaining the Defendant pending disposition of the criminal charges against him, pursuant to 18 USC §3141 et seq. (The Bail Reform Act). In light of the Defendants manifest health issues (the Defendant was a transgendered individual, infected with HIV), the Court entered another Order directing the United States Marshals Service and its contractors to evaluate specified medical problems reported by the Defendant and his lawyer and then to provide care and treatment consistent with the standard of care for the conditions revealed by the ordered examination.

Two weeks after the Defendant was remanded to the custody of the Marshal the Court was advised that the Defendant was not receiving necessary medication, and it became apparent that the Court's prior medical Order was being ignored. The Defendant requested that he be ordered released and, when the Government raised no objection to this proposed remedy for the failure to care for the Defendant, the Court granted the request. Frustrated by the noncompliance with the Medical Order, the Court went on to order the Marshals Service and its contractors to show cause why they should not be held in contempt for their apparent violation of the Order. A hearing was held on March 13, 2007.

That hearing revealed defects in process in addition to omissions by individuals. At the conclusion of the hearing the Court took the matter of contempt findings under advisement and directed that the Marshals Service and their contractors conduct a further investigation and then file with the Court a plan of action designed to insure that federal detainees will receive appropriate medical care in the future and, most importantly, will insure that there is good compliance with the Court's medical orders in the future.

The United States Marshals Service and the Maryland State Department of Public Safety and Correctional Services submitted their "Proposed Plan of Action" on March 27, 2007. The Court concluded that it now appears that there is a definite and precise procedure for insuring that federal detainees are presented to medical staff and that any relevant orders of this Court are transmitted to medical staff. The Court concluded that the imposition of any sanctions would not be productive and that further pursuit of contempt issues would not be useful at this time. However, the Court warned that:

The Marshals Service, the U.S. Attorney and the State are collectively charged with the responsibility to be vigilant and to insure that conditions do not again deteriorate to the deplorable state revealed at the hearing and by the subsequent investigation.

The Memorandum and Order are available in PDF.

Glaxo Group, Ltd. v. Leavitt (Maryland U.S.D.C.) Approved for Publication

2007-04-07T10:48:00.000-05:00

Order Signed April 6, 2007--Judge Andre M. Davis. Approved for publication.

Plaintiff Glaxo Group, Ltd., sought and obtained a temporary restraining order (TRO), which was secured by a $3 million bond, enjoining the effectiveness of the approval by the Food and Drug Administration of an application by intervening defendant Roxane Laboratories, Inc. (Roxane), to market fluticasone propionate, the generic form of Glaxo's patented Flonase, the patent for which had expired. Subsequently, after a hearing, the Court denied Glaxo's motion for a preliminary injunction. Now pending is Roxane's motion for execution on the bond.

In this opinion and order, Judge Davis sets forth findings of fact and conclusions of law determining that Roxane has suffered damages from the TRO and should have execution against the bond.

The Court concluded that:

The TRO prevented Roxane from marketing fluticasone for a total of 11 days, causing Roxane to lose profits that it would have otherwise realized. This harm is real and substantial for two reasons: (1) at the time of the TRO, Roxane's fluticasone products, which had already been shipped to the retailers, were prevented by the TRO from being sold to consumers; and (2) Roxane has established by the clear weight of the evidence an adequate, if modest, run rate for fluticasone sufficient to reasonably calculate lost profits.

The Court found that Roxane would have had net profit of $14.80 per unit and that, in the 11 days that the TRO was in effect, it would have sold 223,272 units. It thus suffered $3,304,423.97 in lost profits as a consequence of the TRO, which is an amount in excess of the $3 Million bond. Accordingly, it awarded Roxane the entire bond amount.

In a footnote, however, the Court denied Roxane full restitution damages, holding that:

Roxane is not entitled to a restitutionary measure of recovery. Glaxo did not act wrongfully under the circumstances of this case; indeed, its prompt decision to withdraw its appeal from the denial of the preliminary injunction evidences its good faith. While it is true that Glaxo had sales that it would not have enjoyed during the pendency of the TRO had the TRO not been issued, its right to seek such relief was not exercised maliciously or unlawfully. As an intervening defendant, Roxane had the right to urge the court to require a bond that was reasonable under the circumstances and it did so.

The full opinion is available in PDF.

Trail v. Terrapin Run, LLC (Ct. of Special Appeals)

2007-04-06T12:11:00.000-05:00

Filed April 6, 2007. Opinion by Judge James R. Eyler, Jr.

From the official headnote:

ZONING –

Maryland Code Art. 66B, which empowers certain local jurisdictions to adopt zoning codes, does not require a special exception use to be in strict compliance with a local comprehensive plan. A local jurisdiction may require strict compliance, but if it does not, a plan functions as a guide. The local ordinances and comprehensive plan, adopted by a particular jurisdiction, must be reviewed as a whole to determine the role of the plan in a special exception analysis. Thus, the conclusion as to the plan's role does not necessarily turn on the use of a particular word or phrase at a specific location within an ordinance or a plan. If a review of the ordinances and plan as a whole lead to the conclusion that strict compliance with a plan is not
required, the phrases "conforms to," "is consistent with," and "is in harmony with," when used to describe the relationship between a special exception use and a plan, have essentially the same meaning. Held that Allegany County's plan serves as a guide, not a strict regulatory requirement.

Judgment of the Allegheny County Circuit Court denying a special exception for a large-scale planned residential development was REVERSED on appeal, and REMANDED with instructions to affirm the decision of the Board of Appeals allowing the special exception.

This case arose out of the application by the developer ("Terrapin Run") to the Board of Appeals for Allegheny County for a special exception to allow it to construct a large residential community, including community-specific retail space and wastewater treatment plant, which was a permitted use under the applicable zoning classifications requiring a special exception. The Board of Appeals granted the special exception, finding the development to be in harmony with the local comprehensive plan, and that the evidence presented by the appellants ("Trail") did not demonstrate a site-specific adverse effect. The Board also found the retail use to be accessory to the principal residential use.

Trail appealed the Board's decision to the Circuit Court, alleging the Board applied the wrong standard of review, and erred in approving the retail/commercial area and the waste water treatment plant. The trial court declined to address the latter points, but agreed with the first, and reversed the Board's grant of the special exception. On appeal, Terrapin Run suggested the proper standard had been applied below, and the approval of the retail area and the wastewater treatment plant was proper.

The Court noted that, at various places in the statutes, regulations, plans and case law, the terms "conform to", "consistent with" and "in harmony with" are used to describe the necessary relationship of the proposed special exception to the comprehensive plan. After reviewing the relevant law, the Court concluded that the enabling state law, Article 66B, grants considerable discretion to the counties in how they establish land use regulations, ranging from the comprehensive plan being anything from a mere guide to a true regulatory device, notwithstanding Article 66B's phrase "use that conforms to the plan" to describe a "special exception".

Turning to the implementation of a comprehensive plan by Allegheny County, the Court found that the county had declined to use the mandatory terms "shall" or "will", but had instead in several places referred to the plan as a "guide", and had given it little regard in the statutory zoning scheme. From this, the Court found no intent to require strict compliance with the plan, but rather an intent to give the Board wide latitude in interpreting and applying the plan when considering special exceptions.

The Court also found that neither the retail area nor the wastewater treatment plant had to be considered separately and apart from the residential development, since both were clearly incidental and accessory to the primary use, and were appropriately considered and approved with the primary residential development use.

The opinion is available in PDF format.

Lowery, et ux. v. Smithsburg Emergency Medical Service, et al. (Ct. of Special Appeals)

2007-04-05T13:34:00.000-05:00

Filed April 5, 2007--Opinion by Judge Arrie Davis.

This case involves allegations of defamation and intentional interference with economic relations claims. At the close of the Lowery's case, Smithsburg moved for judgment on all counts and the trial court granted the motion pursuant to Rule 2-519 on the defamation and intentional interference with economic relations claims. The Lowery's posit the following issues for review:

1) Did the trial court err in granting [Smithsburg's] Motion in Limine and precluding any testimony whatsoever pertaining to lost wages and benefits for supposed discovery violations?

2) Did the trial court apply the wrong standard of proof with regard to [Smithsburg's] motion for judgment pertaining to forfeiture of the conditional privilege afforded employers for statements made about a former employee's job performance?

3) Did the trial court err in finding there was not sufficient evidence to prove that the conditional privilege afforded statements made about an individual's employment had been forfeited in this case for the matter to be submitted to the jury?

4) Did the trial court err in finding that there was not sufficient evidence to prove that Mr. Myerly acted intentionally and wilfully for Mr. Lowery's intentional interference with economic relations claim to be submitted to the jury?

This Court affirmed the judgment of the Circuit Court for Washington County.

(synopsis to follow)

The full opinion is available in PDF.

Comptroller of the Treasury v. Clise Coal Co., Inc. (Ct. of Special Appeals)

2007-04-05T13:21:00.000-05:00

Filed April 5, 2007--Opinion by Judge James R. Eyler.

Clise, pursuant to Tax. Gen. 9-318, obtained a license to buy diesel fuel without paying motor fuel tax at the time of sale. Clise was required to maintain records of fuel purchased and used in Maryland and, further, was required to file monthly returns with the Comptroller's office reporting the amount of fuel used in Maryland and pay tax on the fuel used.

If a taxpayer fails to keep records required under Tax. Gen. 9-309, the Comptroller may compute the motor fuel tax by using the best information in its possession. A taxpayer may appeal to the Maryland Tax Court. The assessment is prima facie correct, and the burden is on the taxpayer to show error.

In Tax Court, after proving its assessment, the Comptroller had no duty to present evidence in support of its assessment. The burden was on Clise to show error. The question on judicial review is whether there was substantial evidence in the record as a whole to support the Tax Court's decision.

Held: Judgment of the Tax Court affirmed.

(synopsis to follow)

The full opinion is available in PDF.

Kernius v. International Electronics, Inc. (Maryland U.S.D.C.)

2007-04-05T13:08:00.000-05:00

Signed March 30, 2007--Memorandum Opinion by Judge Richard D. Bennett.

Plaintiffs filed a patent infringement action against Defendants alleging that Defendants infringed U.S. Patent No. 6,628,771, relating to "a device that allows a person to use his or her call waiting feature when he or she is using the same telephone line to connect to the internet." This memorandum addresses the Defendants' request, and the Court's construction, of certain claim language from the Patent.

(synopsis to follow)

The full Memorandum is available in PDF.

Jones v. Bakery Express - Ms. Desserts (Maryland U.S.D.C.)

2007-04-05T12:57:00.000-05:00

Signed March 30, 2007--Memorandum and Order by Judge J. Frederick Motz.

In an action for alleged racial discrimination brought under Title VII of the Civil Rights Act of 1964, Defendant filed a motion for summary judgment to which Plaintiff (who was represented by counsel) did not respond. The motion was granted because:

First, the summary judgment record contained no direct or indirect evidence that Defendant had a discriminatory attitude in dealing with the Plaintiff;

Second, Plaintiff did not establish on the summary judgment record that her job performance was satisfactory (the second element of a prima facie case under the McDonnell Douglas protocol); and

Third, Plaintiff did not establish that there were any employees who were not members of the protected class who were retained under apparently similar circumstances (the fourth element of a prima facie case under the McDonnell Douglas protocol).

The opinion is available in PDF.

Chance v. Washington Metropolitan Area Transit Authority (Ct. of Special Appeals)

2007-04-05T07:44:00.000-05:00

Filed April 4, 2007--Opinion by Judge Patrick Woodward.

Appellant was injured during the course of her employment with WMATA. She filed a timely claim with the Worker's Compensation Commission, which WMATA did not contest. Due to a change in legal counsel and an incorrect date of injury on her claim, Appellant, through her new counsel, filed a second claim for the same injury with the Commission. When the error was discovered, Appellant moved to dismisse one of the claims. Because of another clerical error, however, her motion sought to dismiss the first claim rather than the second. The Commission granted her motion and dismissed her first claim.

Upon realizing the error, Appellant filed a motion to reinstate the first claim and dismiss the second, which the Commission also granted. WMATA then filed a petition for judicial review in the Circuit Court for Montgomery County. The circuit court vacated the Commission's order and remanded the matter for a new hearing on whether the Commission had the authority to reinstate the dismissed claim. The Commission held a hearing, found that it had the authorityto reinstate the claim and reinstated Appellant's first claim.

The Commission's order was filed and mailed to the parties. WMATA then filed a petition for judicial review. Appellant filed a motion to dismiss, arguing that WMATA's petition was filed after the statutorily prescribed thirty-day appeal period. The circuit court denied the motion. Thereafter, WMATA filed a motion for summary judgment and the circuit court granted that motion. Appellant, on appeal, presented two questions for review:

1) Did the circuit court err by denying her motion to dismiss WMATA's petition for judicial review as untimely filed?

2) Did the circuit court err as a matter of law by granting WMATA's Motion for Summary Judgment.

Held: Judgment of the circuit court for Montgomery County reversed; case remanded to that court with instructions to dismiss [WMATA's] petition for judicial review and remand the case to the Worker's Compensation Commission.

(synopsis to follow)

The opinion is available in PDF.

Dove v. Childs (Ct. of Special Appeals)

2007-04-05T07:37:00.000-05:00

Filed April 4, 2007--Opinion by Judge James R. Eyler.

This matter required interpretation of the Maryland Mobile Home Parks Act of 1980, Maryland Code (2003 Repl. Vol.), §§ 8A-101 to 8A-1803 of the Real Property Article, and Howard County ordinances regulating mobile home developments, specifically, § 16.516 of the Howard County Code.

The owners of a mobile home park, after giving notice to the tenants of their intention to close the park as of a certain date, sought and obtained a judgment of restitution of possession, requiring the tenants to vacate the park. The tenants appealed from that decision and contended the court erred because the owners were not in compliance with the above laws.

This Court perceived no error and affirmed the judgment.

(synopsis to follow)

The opinion is available in PDF.

Swoboda v. Wilder (Ct. of Special Appeals)

2007-04-05T07:32:00.000-05:00

Filed April 4, 2007--Opinion by Judge Sally Adkins.

In an appeal from the approval of a Rodgers Forge building permit, the Court held that determining the front, side, and rear orientation of a townhouse end unit situated at the corner of intersecting streets requires consideration of all physical characteristics of the property, not merely street address and foundation walls, and that in an appropriate case an end unit may front on a different street than the interior units in the same townhouse group.

(synopsis to follow)

The opinion is available in PDF.

Attorney Grievance Commission v. Long (Ct of Appeals)

2007-04-04T08:49:00.000-05:00

Filed April 3, 2007. Opinion signed by Judge Irma S. Raker.

In its entirety:

Upon consideration of the Joint Petition for Disbarment by Consent filed herein pursuant to Maryland Rule 16-772, it is this 3rd day of April, 2007,

ORDERED, by the Court of Appeals of Maryland, that DIMONE G. LONG, be, and is hereby, disbarred by consent from the further practice of law in the State of Maryland effective immediately; and it is further,

ORDERED, that the Clerk of this Court shall strike the name of Dimone G. Long from the register of attorneys, and pursuant to Maryland Rule 16-772(d) shall certify that fact to the Trustees of the Client Protection Fund and the Clerks of all judicial tribunals in this State.

The Order is available in PDF format.

In Re: Roneika S. (Ct. of Special Appeals)

2007-04-04T08:04:00.000-05:00

Filed April 3, 2007--Opinion by Judge Mary Ellen Barbera.

The issue is what a petition alleging juvenile delinquency must contain as a factual basis to support the allegation. The issue implicates the requirements of notice embodied in the Due Process Clause of the Fourteenth Amendment, Article 21 of the Maryland Declaration of Rights, the specific dictates of Maryland Code § 3-8A-13 and Maryland Rule 11-103.

The State filed a juvenile delinquent petition alleging that Roneika made a false statement to a police officer, in response to which Roneika filed a motion to dismiss on the ground that the petition did not sufficiently allege the facts supporting the charged delinquent act; specifically, the petition failed to include a "to wit" clause indicating the specific false statements.The Circuit Court for St. Mary's County decided that the brief description in the charging document was unsatisfactory. Roneika knew she was charged with making a false statement but did not know what statement the State claimed was false, preventing her from properly preparing for trial. Additionally, the lack of a specific statement did not protect Roneika from a future prosecution for the same offense because, again, the specific content of the statement was not set forth.

On appeal, Roneika interposed the preliminary argument that the State’s appeal should be dismissed because the State sought relief – reinstatement of the delinquency petition and an adjudicatory hearing – which would violate the prohibition against double jeopardy. Double jeopardy principles preclude, among other things, further trial proceedings after an acquittal or equivalent adjudication on the merits in favor of the accused. Roneika’s argument was based on the premise that the juvenile judge granted her motion to dismiss for reasons of legal insufficiency of the evidence. This Court held that argument failed because, based on discussion among the court and counsel that preceded the ruling, the circuit court dismissed the petition because it believed it to be legally inadequate on its face. Because the court’s dismissal was not substantively an acquittal, jeopardy did not attach to that decision.

In the matter of whether the juvenile court erred or abused its discretion when it dismissed the delinquency petition, this Court held that juveniles are entitled to fair notice under Article 21 of the Maryland Declaration of Rights and the Due Process Clause of the Fourteenth Amendment.
The protections afforded a criminal defendant to be informed of the accusation against him must apply to juvenile delinquency proceedings.

Finally, the Court held that the delinquency petition passed muster under the Due Process Clause, Article 21, C.J. § 3-8A-13, and Rule 11-103(c). Reasoning that the technical details required of common law pleading have been relaxed and little factual detail, beyond a statement of the essential elements of the offense, e.g., the precise manner and means of committing the offense, generally is required in the charging document. The offense of making a false statement to police contains no element that is cast in such generic terms as would embrace a variety of conduct. The petition not only set forth the elements of the charged offense but also set forth the date and place of the alleged act, the officer to whom Roneika made the statements, and the names of witnesses. The question of whether the petition could have been more factually particular is not the question. Rather, the question is whether the petition was legally sufficient and this Court reasoned that it was.

The opinion is available in PDF.

104 West Washington Street II Corporation v. Hagerstown (Ct. of Special Appeals)

2007-04-03T15:34:00.000-05:00

Filed April 3, 2007. Opinion by Judge Peter B. Krauser.

On appeal from the grant of Hagerstown's motion for summary judgment in a case involving a challenge to Hagerstown's Adult Businesses Ordinance, the Court AFFIRMED the decision below.

Appellant ("104") owns and operates Hagerstown's only "adult" establishment, selling books, magazines, videos, lingerie and novelties and providing booths for customers to view adult videos. Reports of drug and sexual activities prompted the police and health departments to take action against the facility, and in 2002 the Mayor and City Council of Hagerstown passed an Adult Business Ordinance (the "ABO"), to regulate the time, place and manner in which Hagerstown's adult businesses could operate.

In 2003, 104 filed a complaint against Hagerstown and its police chief, seeking declaratory and injunctive relief. After a brief removal to the United States District Court, the case was heard by the Circuit Court for Washington County. Several amendments were made to the ABO during the pendency of the case to conform with developing case law, and the trial court eventually granted Hagerstown's motion for summary judgment.

On appeal, 104 claimed the ABO violated the First Amendment to the federal constitution, and Article 40 of the Maryland Declaration of Rights, arguing that the ABO was not "narrowly tailored to serve a significant government function", since there was no "pre-enactment evidence" in the legislative record, and thus the supplemental materials submitted in support cannot sustain the regulation.

The Court, in applying the Renton test, found neither the federal nor the state constitutions require pre-enaction evidence, and that indications of the "negative secondary effects" were before the legislators when the ABO was being enacted. Further, the Court noted that there is no constitutional requirement that the least restrictive means be employed in addressing the problem and 104's objections to the form and timing of certain affidavits submitted to the trial judge in support of Hagerstown's summary judgment motion were found to not be well grounded.

The Court also found little merit in 104's argument that, because the ABO does not contain provisions allowing for judicial review, it constitutes an unconstitutional prior restraint on free speech, since the issue was not raised below, and in any event, ordinary judicial review would be adequate in this case. Finally, the Court found that the ABO did not permit arbitrarily withholding a license, but only for the violation of the statute.

The opinion is available in PDF format.

Continental Casualty Company v. Kemper Insurance Company (Ct. of Special Appeals)

2007-04-02T16:03:00.000-05:00

Filed April 2, 2007. Opinion by Judge J. Frederick Sharer.

From the official headnote:

Insurance contracts - exclusion of coverage to employee operating his own vehicle - not ambiguous - not contrary to public policy - exclusion not previously discussed by Maryland court

Policy provision in commercial automobile insurance policy that covers the auto of an employee while in the course of his employment, but excludes coverage to the employee if the auto is owned by the employee or a member of his family or household is not ambiguous.

Exclusion provision is likewise not contrary to stated public policy when minimum compulsory motor vehicle insurance law is complied with.

Judgment below that Kemper wrongly denied coverage under its policy and awarding damages and attorney fees to Continental was REVERSED on appeal.

This case arose out of an automobile accident in which the driver of one vehicle ("Green") filed suit against the other driver ("Piazza") and her (Green's) insurance company ("Kemper") for injuries received, but did not name Piazza's employer. It was uncontested that Piazza was driving his own vehicle while conducting his employer's business. A portion of the damages were paid by Piazza's personal carrier, and the remaining portion by Kemper pursuant to its underinsured motorist coverage of Green.

Kemper sought, but had not received, an agreement to defend and indemnification from Piazza's employer's insurance company ("Continental"), and subsequent to the judgment sought a declaratory judgment that Continental had been obligated to defend Piazza and must reimburse Kemper for the balance of the judgment. The trial agreed, ordering Continental to reimburse Kemper and pay its attorney fees, and Continental appealed.

At issue was an exclusion in Continental's policy, which defined an "insured" under the policy to include "[a]nyone else while using with your permission a covered “auto” you own, hire or borrow except: * * * [y]our employee if the covered “auto” is owned by that employee or a member or his or her household."

The Court found that, although Kemper argued ambiguity, it offered no alternative to the plain meaning of the provision, instead suggesting that the exclusion was inconsistent with the inclusive language requiring that "all autos" be covered, and that there should be no logical difference between driving a company car and the employee's car. While not disagreeing with the pragmatic concept, the Court noted that, absent conflict with statutory provisions or public policy, insurers are entitled to limit their liability and enforce reasonable restrictions upon the obligations they assume. While the precise language had not yet been interpreted under Maryland or Texas law (the latter being the jurisdiction whose law applied to the insurance contract), other jurisdictions had, in favor of enforcing the exception, and the Court agreed.

Kemper had also argued against enforcing the exclusion on public policy grounds. The Court rejected the challenge, since the public policy of requiring insurance coverage of motorists was met by Kemper's obligation to pay the judgment, and the issue here was only a matter of which insurer would ultimately be held liable for the judgment. The Court found that Kemper was the appropriate insurer to have to pay, and reversed the decision below.

The opinion is available in PDF format.

Palm v. Wausau Benefits, Inc. (U.S.D.C. Maryland)(Not approved for publication)

2007-04-01T10:11:00.000-05:00

Filed March 26, 2007—Opinion by Judge Andre Davis

Plaintiff Anthony Palm, a beneficiary under a group long term disability income policy sponsored by his former employer, sued under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et. seq., to challenge a denial of benefits.

The Court considered it undisputed that Palm suffered from numerous impairments, including chronic lumbalgia, acute chronic lumbosacral paravertebral muscle spasm, bilaterally, and degenerative dessication with dorsal disc bulging at L4 - 5, L5 - S1 and C5 - 6, that are, collectively, disabling. On the ultimate issue, however, of whether the evidence was sufficient to establish that Palm was "totally disabled" from working in "any occupation," the Court determined that a physician’s opinion that Palm cannot perform sedentary or light duty work was rather conclusory and wholly undercut by other evidence in the record, including surveillance videos of Palm engaged in physical activity inconsistent with his claims.

On cross-motions for summary judgment, the Court found that Palm failed to show by a preponderance of the evidence that he is "totally disabled" within the definition of the relevant policy. At best, the Court said, the evidence was in equipoise (and parenthetically added that it was not), but in any event Palm failed to satisfy his burden to show “total disability” under the Policy.

The opinion is available in PDF.

Montrose Educational Services, Inc. v. Sylvan Learning Systems, Inc. (U.S.D.C. Maryland)(Not approved for publication)

2007-04-01T10:04:00.000-05:00

Decided March 30, 2007—Opinion by Judge Richard D. Bennett

Montrose Educational Services, Inc. (“Montrose”) alleged that Sylvan Learning Systems, Inc. (“Sylvan”) had made fraudulent representations to induce Montrose to enter into a franchise agreement and then breached their contractual duties by failing to provide proper assistance. Montrose argued that Sylvan had presented certain demographic information from 1998 to Montrose regarding the territory in the franchise agreement and Montrose had relied on this information in its decision to buy that particular territory. Under the terms of the license agreement, Montrose had promised to pay certain fees and to operate in compliance with Sylvan’s standards of operation. In return, Montrose was to receive supervision and assistance, most notably through a Quality Assurance Review, which was to be conducted “approximately one hundred twenty (120) days after Licensee first opens its Center.” The Defendants allegedly did not offer much support to Montrose’s center and did not conduct a Quality Assurance Review until approximately two years after the opening of the center.

From early 2002 to 2003, Montrose negotiated with the owners of two other Sylvan Learning Center franchises in Reno, Nevada, and Mobile, Alabama, in an attempt to purchase those franchises. During these negotiations, but before any sales were finalized, Defendants allegedly spoke to the Reno and Mobile franchise owners and told them that they would get a higher purchase price if they allowed Defendants to broker the sale to outside buyers rather than selling to Montrose. Montrose was not able to purchase either franchise.

The Complaint filed by Montrose sought damages in connection with five causes of action: breach of contract; breach of a covenant of good faith and fair dealing; fraud; negligent misrepresentation; and tortious interference with business relationships. Sylvan moved to dismiss or for summary judgment to the extent appropriate. Because the parties attached extrinsic documents to their briefs, the Court determined that the motion could be converted to a motion for summary judgment.

The Defendants argued that all of the causes of action were subject to Maryland's three-year statute of limitations and were time-barred. Montrose argued that, under the discovery rule, the claims were timely. Rejecting any continuing breach of contract theory and holding that by any measure, Montrose must have been aware of facts prior to February 6, 2003, with respect to the demographics and value of the territory, the Court granted summary judgment based on a statute of limitations bar as to all but the claim of tortious interference with business relationships. The Court determined that resolution of the tortuous interference count required more discovery and further briefing by the parties.

The opinion is available in PDF.

Brown v. Smith (Ct. of Special Appeals)

2007-04-01T07:33:00.000-05:00

Filed: March 29, 2007--Opinion by Judge Sally Adkins

In a case arising from disputed use of a right-of-way, the Court of Special Appeals examined the nature of a nominal damages award, and whether there is a maximum limitation on the dollar amount that can be considered nominal damages.

Appellants, the Browns, were determined by the lower court to have been trespassing on property owned by the Smiths, by traveling over a farm lane to access a public road from the Browns’ property. The Browns appealed both the decision that they had no right to use the farm lane and an award of $8,350 in “nominal damages.”

The Court first determined that there was a final appealable judgment, even though no judgment had been entered on a third party complaint against a neighbor of both parties. Next the Court agreed that the common grantor of the original deeds in 1875 had not intended to create mutually reciprocal rights of way appurtenant to the Smith and Brown properties. The Court also held that the trial court did not err in admitting expert testimony or in denying injunctive relief. On the issue of damages, however, the Court concluded that an $8,350 damage award on the trespass count was too high to be a “nominal damages” award. Because the Court could not determine from the record whether there may or may not be justification for compensatory damages, it remanded for reconsideration of that issue.

The opinion is available in PDF.

City of Annapolis v. Bowen et al. (Ct. of Special Appeals)

2007-04-01T07:30:00.000-05:00

Decided March 30, 2007—Opinion by Judge Peter Krauser

Retired firefighters and police officers sought declaratory and injunctive relief requiring the City of Annapolis (“City”) to increase their pension payments in tandem with reclassification of the positions of their active-duty counterparts. The Circuit Court for Anne Arundel County agreed that Annapolis City Code § 3.36.150A1 required that the retirees receive pension increases commensurate with wage increases received by active-duty personnel. The City appealed, contending that pension increases under ACC § 3.36.150A1 were limited to cost-of-living adjustments.

The retirees first argued that Maryland Code (1974, 2006 Repl. Vol.) § 12-302 of the Courts and Judicial Proceedings Article barred the City’s appeal. Reasoning that circuit court had been exercising mandamus jurisdiction below, the Court of Special Appeals found that it had jurisdiction to hear the City’s appeal.

On the merits, the retirees argued that their interpretation of ACC § 3.36.150A1 was supported by “similar legislation” in DC. The “similar” DC provision contains an explicit “equalization provision” granting retired police officers and firefighters increases in their pension when active-duty counterparts receive wage increases. The Court of Special Appeals held that the DC provision was not a cost-of-living provision like ACC § 3.36.150A1, and was in fact created to compensate for the absence of such a provision in DC. Thus the Court reversed the lower court’s decision.

The opinion is available in PDF.

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

2007-03-30T16:13:00.000-05:00

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)

2007-03-30T13:43:00.000-05:00

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)

2007-03-30T13:18:00.000-05:00

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)

2007-03-30T12:16:00.000-05:00

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)

2007-03-30T06:56:00.000-05:00

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.

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

2007-03-29T12:18:00.000-05:00

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)

2007-03-29T08:53:00.000-05:00

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)

2007-03-29T08:48:00.000-05:00

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.

AGC v. Wohltman (Ct. of Appeals)

2007-03-27T10:49:00.000-05:00

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.

Abrams v. Lamone (Ct. of Appeals)

2007-03-26T13:37:00.000-05:00

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:

CONSTITUTIONAL LAW - INTERPRETATION - ELIGIBILITY REQUIREMENTS - ATTORNEY GENERAL
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.

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

2007-03-25T15:02:00.000-05:00

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.