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

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.

McNack v. State (Ct. of Appeals)

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.

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

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.

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The full opinion is available in PDF.

Swam v. Upper Chesapeake Medical Center (Ct. of Appeals)

Filed March 16, 2007 -- Opinion by Judge John Eldridge (Judges Cathell and Harrell Concur)

The Court of Appeals held that the general statute of limitations did not bar a claim initially filed in the wrong forum, the Health Care Alternative Dispute Resolution Office ("Health Care Office"), and subsequently filed in the appropriate forum, the Circuit Court for Harford County. Plaintiffs-appellants, Mary C. Swam and Scott Swam, filed a claim with the Health Care Office for alleged personal injury resulting from an abandoned hypodermic syringe on the premises of Upper Chesapeake Medical Center, Inc. Although Swam’s injury was not a medical injury within the meaning of the Health Claims Act and thus was not properly filed with the Health Care Office, the Court held that the claim was not time-barred even though it was not filed in the circuit court until after the general statute of limitations had run. According to the Court, the policy supporting the tolling exception rule was satisfied by the ambiguity regarding the appropriate forum for a medically-related claim and basic fairness to the parties. The Court noted that Upper Chesapeake would suffer no unfairness because it already had notice of the claim prior to the expiration of the limitations period.

In a concurring opinion, Judge Cathell expressly disavowed any holding that an action begun in an executive branch agency could toll the running of a statute of limitations applicable to judicial branch proceedings. Judge Cathell would reach the same result based on holding that Upper Chesapeake waived the defense of limitations by not raising it prior to or in its answer. Judge Harrell joined in the concurring opinion.

The opinion can be found in PDF here.

Baltimore v. Valsamaki (Ct. of Appeals)

Issued Feburary 8, 2007 -- Opinion by Judge Dale Cathell, joined as to the judgment only by Judge Irma Raker and Judge Glenn T. Harrell, Jr.

The City of Baltimore instituted "quick-take" proceedings against a bar and package goods store ("Magnets") located on Charles Street in the Charles/North redevelopment district designated generally for urban revitalization. Defendant, the owner of Magnets, filed a response to the proceedings. At the fact hearing, the Circuit Court for Baltimore City held that the City failed to show sufficient grounds warranting a finding of immediate necessity for the immediate taking, and declined the City's petition, reaffirming that denial upon a motion for reconsideration. The City appealed directly to the Maryland Court of Appeals.

Public Local Law Sec. 21-16 of Baltimore City provides that the City of Baltimore may institute proceedings for immediate possession of property for public use, upon a demonstration of "the reasons" for immediate possession and title towards a "public use." The Court upheld that it is the City, not the property holder, that has the burden of proof to show prima facie the reasons for the immediate taking of property for public use. In so holding, the Court distinguished the deference shown to a condemning authority in a non-quick-take regular condemnation as to the legitimacy of the condemnor's public use from the greater burden borne by the City under the quick-take proceedings, and noted the reduced due process and pre-trial procedures available to an owner of property sought for an immediate taking.

The Court upheld the Circuit Court's finding that the general needs of an urban renewal project did not meet the threshold for immediacy and necessity for a quick-take proceeding, emphasizing the specific facts of the testimony at the hearing and the City's failure to specify the factual grounds for heightened urgency justifying truncated proceedings. From the opinion:

The purpose of the quick-take power is for it to be used when the need for the public use is immediate. It was not conferred for the purpose of allowing a condemning authority to run “roughshod” over the owners of private property. When that happens, or begins to happen, the property owner’s recourse is to the courts.

In what arguably constituted dicta, the Court opined that the evidence presented by the City at the Circuit Court hearing would have been sparse even for a regular non-immediate condemnation proceeding, noting the lack of a comprehensive renewal plan demonstrating public use per the testimony of the City's witnesses. Judges Raker and Harrell indicated that they did not join in this portion of the Court's opinion.

A further clarification and augmentation of this preliminary synopsis will issue later today.

The full opinion is available here in PDF.

Koshko v. Haining (Ct. of Appeals)

Filed January 12, 2007--Opinion by Judge Glen T. Harrell, Jr. Dissenting Opinion by Judge Dale R. Cathell

Maternal grandparents established significant relationship with the grandchildren while their daughter and first grandchild resided with them and after the daughter married and moved away. This substantial relationship encompassed the child that had resided under their roof, as well as two grandchildren born after their daughter moved away.

Following a family disagreement between the grandparents and husband on how the husband should act toward his dying mother, the daughter and her husband cut off all visitation. Grandparents brought an action for visitation in the Circuit Court for Baltimore County under the Grandparent Visitation Statute (GPS), found at Md. Fam.Law Code Ann.§9-102. The trial judge established a rolling schedule of four-hour visits every 45 days and quarterly overnight visits. The trial court also directed that the parents and grandparents attend at least four joint, professional counseling sessions to discuss issues relating to the visitation. After an unsuccessful bid for a new trial, the Koshkos appealed the judgment of the Circuit Court.

The Court of Special Appeals affirmed the judgment, Koshko v. Haining, 168 Md.App. 556, 897 A.2d 866 (2006), holding that the GVS was neither facially unconstitutional nor unconstitutional as applied to the Koshkos. The intermediate appellate court rejected the argument that the GVS violated the Koshkos' fundamental right to parent, as articulated in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality), simply because it lacked an express presumption that parental decisions are in the best interests of children. Under the principle of constitutional avoidance, the court interpreted the GVS to contain such a presumption. Upholding the trial court's order of visitation The Court of Special Appeals disagreed with the parents' position that there must be a threshold finding of either parental unfitness or exceptional circumstances as a predicate to the statutorily-imposed best interests of the child inquiry.

The Koshkos petitioned the Court of Appeals, which granted a writ of certiorari to consider the Koshkos' substantive due process challenge to the GVS.

Held:

The natural parents' decisions regarding the care, custody and upbringing of their minor children are presumptively correct which can only be overcome by a threshold showing of either parental unfitness or exceptional circumstances demonstrating current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis, overruling the portions of Fairbanks, Maner, Beckman, Herrick and Wolinski that are inconsistent with the ruling.

While less of an intrusion than custody, parents in a visitation case have a fundamental constitutional right to parent their children which is only rebutted by a showing of unfitness or exceptional circumstances.

In deciding the issue of fundamental constitutional rights afforded to parents the court stated that visitation was a temporary form of custody.

Because of the fundamental constitutional right afforded to parents, the proper standard in reviewing the constitutionality of the GVS is strict scrutiny.

Under the principal of constitutional avoidance, The GPS as interpreted and glossed by the Court of Appeals was not facially unconstitutional because of the requirement of a threshold finding of parental unfitness or exceptional circumstances demonstrating the detriment that has or will be imposed on the children absent visitation by their grandparents before the best interests analysis may be engaged.

In applying the strict scrutiny standard the Court held that the GVS was unconstitutional as applied.

In affected cases pending at the time this opinion was filed, where appropriate, courts may allow amendments to pleadings or the presentation of additional evidence in light of the holdings announced here. In cases filed after this opinion, the petitioners, in order to avert or overcome a motion to dismiss their petition, must allege a sufficient factual predicate in the petition so as to present a prima facie case of unfitness or exceptional circumstances, as well as invoking the best interest standard.

In a dissenting opinion, Judge Eldridge agreed that the GVS was not facially unconstitutional, but argued that the Court placed a great deal of reliance on Justice O'Connor's opinion in Troxel, which was not the opinion of the Supreme Court and did not appear to reflect the views of a majority of the Supreme Court.

Full opinion PDF.

Ehrlich v. Grove (Ct. of Appeals)

Decided January 11, 2007 -- Opinion by Judge Dale Cathell.

In a case involving a suit by a senior official of the Maryland Department of the Environment for wrongful termination by Governor Robert Ehrlich upon the beginning of his term as Governor in January 2002, the Court of Appeals held that an interlocutory appeal is appropriate under the extraordinary circumstance of a discovery order being directed to a Governor of Maryland when the collateral order doctrine’s four-part test is met, namely, when:

the interlocutory order sought to be reviewed:

(1) conclusively determines the disputed question,

(2) resolves an important issue,

(3) resolves an issue that is completely separate from the merits of the action, and

(4) would be effectively unreviewable if the appeal had to await the entry of a final judgment.

The Court of Appeals further held that the Circuit Court for Baltimore City had abused its discretion when, in the course of resolving a complex and extended discovery dispute between the parties, it ordered expanded in camera review with the active participation of the attorney for the Plaintiff of documents protected by attorney-client privilege or the work product doctrine and when it actively solicited by its draft of a solicitation letter the consent of 341 former executive-branch employees of the State of Maryland to the release of employment and other documents that the Circuit Court itself had held to be irrelevant and not reasonably calculated to lead to admissible evidence in this case.

The full opinion is available here in PDF.

Centre Insurance Co. v. J.T.W. (Ct. of Appeals)

Filed January 9, 2007--Opinion by Judge Dale R. Cathell.

Issue: When, under Title 2 of Maryland's Insurance Article does the 30-day filing period for a petition for judicial review of an administrative decision begin?

Held: The plain language of the pertinent statutes provides that, in the context of the relevant sections of the Insurance Article, the 30-day filing period for a petition for judicial review of an administrative decision under §§2-204(c) and 2-215(d)(1) begins when the order resulting from a relevant administrative hearing is mailed.

Not considered in opinion: The effect of Maryland Rule 1-203(c)

Full opinion available in PDF.

Eastside Vend Distributors, Inc. v. The Pepsi Bottling Group, Inc. (Ct. of Appeals)

Filed December 19, 2006--Opinion by Judge Dale R. Cathell.

Preliminary injunctions are designed as a preventative and protective remedy for actions which may occur in the future. The purpose of interlocutory injunctions is to maintain the status quo between parties engaged in litigation pending the resolution of such litigation. If the granting of a preliminary injunction would fail to prevent a future act or maintain the status quo between the parties, then it should not be granted.

If the granting of an interlocutory injunction satisfies the above criteria, then the court will examine four factors: (1) the likelihood that the plaintiff will succeed on the merits, (2) the balance of convenience, (3) whether the plaintiff will suffer irreparable injury unless the injunction is granted, and (4) the public interest. See Department of Transportation v. Armacost, 299 Md. 392, 404-05, 474 A.2d 191, 197 (1984). The party seeking the injunction has the burden of proving the facts necessary to support each factor and must prove all four factors in order to receive preliminary relief. Should the plaintiff fail to prove even one of the factors, an interlocutory injunction will not be granted.

Furthermore, as a precursor to analyzing the four factors, courts must balance the likelihood of irreparable harm to the plaintiff against the likelihood of irreparable harm to the defendant. Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 195 (4th Cir. 1977); Lerner v. Lerner, 306 Md. 771, 783-84, 511 A.2d 501, 507 (1986). If this "balance of hardships" weighs in favor of the plaintiff, then the likelihood of success on the merits factor is replaced with a more lenient standard: whether "the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation." Blackwelder, 550 F.2d at 195 (citations omitted) (quotations omitted).

The plaintiff entered into an agreement with the defendant , effective, March 21, 2004 – prior to filing the complaint and initiating the pending controversy. Therefore, the 2004 agreement was freely negotiated before the complaint was filed, at which time the status of the parties was peaceable and non-contested. It is uncontroverted that the 2004 agreement would terminate by its own freely negotiated terms on December 25, 2004. That date that was before the date the lawsuit was filed. The termination had also been established prior to the date that the plaintiff alleged the defendant had committed the illegal actions that gave rise to the case.

Under these circumstances, the plaintiff failed to establish its entitlement to a preliminary injunction.

The full opinion is available in WPD or PDF.

Dashiell v. Meeks (Ct. of Appeals)

Filed December 14, 2006--Opinion by Judge Dale R. Cathell. Dissenting opinion by Judge Glenn T. Harrell, Jr.

In a legal malpractice case, the Court of Special Appeals, in reviewing a grant of a motion for summary judgment in favor of the defendant, ordered that the record on appeal be supplemented by material from the record in another case. Ultimately, the Court of Special Appeals did not consider this material in reaching its decision.

Held: There is no requirement that an appellate court must consider portions of the record from a prior case that it (i.e., the appellate court) has ordered to be obtained as a supplement to the record in a subsequent case. The Court of Special Appeals did not abuse its discretion by doing exactly that in this case. In so holding, the Court of Appeals affirmed the judgment of the Court of Special Appeals that: (1) the Circuit Court for Wicomico County erred as a matter of law in finding that the plaintiff's claim was barred by the statute of limitations; (2) the Circuit Court for Wicomico County, in a summary judgment context, did not abuse its discretion in denying the defendant's motion based on judicial estoppel grounds; and (3) upon remand the defendant is free to assert the claims of limitations, judicial estoppel, and any other defenses.

With respect to the statute of limitations defense, the Court of Appeals discussed the discovery rule in the context of a claim with respect to a contract executed by the plaintiff where part of the plaintiff's claim involves alleged negligence of the attorney with respect to the attorney's advice in the course of the negotiation and preparation of the contract.

The full opinion is available in WPD or PDF.

Purich v. Draper Properties, Inc. (Ct. of Appeals)

Filed December 7, 2006--Opinion by Judge Dale Cathell.
Dissenting Opinion by Judge Glenn Harrell, in which Judges Irma Raker and Clayton Greene, Jr., join.

In Montgomery County, once a special exception is obtained for a particular use of a property and the property is thereafter utilized for that use, a prior nonconforming use that is identical to that for which the special exception is granted is terminated or the six month period of abandonment begins to run. §59-G-4.14 of the Montgomery County Zoning Ordinance. Once the special exception is granted the use becomes "permitted" and, if not sooner terminated, after six months the nonconforming use is abandoned and may not be revived unless additional relief is granted under other provisions of the Zoning Ordinance, i.e., variances, etc.

The full opinion is available in WordPerfect and PDF.