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.
Showing posts with label Judge Moylan Charles. Show all posts
Showing posts with label Judge Moylan Charles. Show all posts
Friday, March 30, 2007
Thursday, March 15, 2007
Joseph v. Bozzuto Management Company (Ct. of Special Appeals)
Filed March 15, 2007. Opinion by Judge Charles Moylan (retired, specially assigned).
From the opinion headnote:
[Personal note from the poster: If you've been missing Judge Moylan's erudite and rococo style of opinion drafting since his retirement, you're in for a treat! Only Judge Moylan could elevate an appeal from the dismissal of a relatively routine slip-and-fall case into a 49-page oration about the plaintiff's doomed "illusion" of a "deus ex machina descending on the courtroom just in the nick of time." Enjoy! SGT]
The plaintiff ("Joseph") is the son of a tenant in a building managed by the defendant ("Bozzuto"), and was an invitee in that building in 2004. In the course of descending the staircase with his brother, near the eighth floor landing Joseph slipped on a small patch of an oily, colorless and translucent substance and fell, injuring his knee. The following afternoon, the fall was reported to an employee of Bozzuto, who immediately investigated but was unable to find or confirm the alleged substance spill. Joseph brought suit against the building's owners and the management company.
Both defendants filed motions for summary judgment, alleging that Joseph had not made out a prima facie case of negligence.Testimony established a regular routine of maintenance and inspection of common areas by Bozzuto, and no indication of the existence or source of the alleged spill other than the brothers' testimony, nor any prior report of such a spill. After the hearing, the motions were granted, from which judgment Joseph appealed.
On appeal, the judge first walked through the line of cases requiring knowledge on the part of the landlord before negligence will lie, before confirming that no evidence had been adduced below to establish such knowledge. On appeal, Joseph's sole contention was that the result in a 2003 Court of Appeals case, Brooks v. Lewin, had eliminated the requirement of prior knowledge, if the landlord has violated a housing ordinance.
In that case, the Court of Appeals had declared the elimination of the prior knowledge requirement in a lead paint case, which the judge in this case found to be too dissimilar in too many ways to be applicable here. To reach that conclusion, the judge walked through the line of cases holding that a violation of a statute may, "in some circumstances", be deemed evidence of negligence and a breach of a duty owned to a plaintiff, finding that the statute in question here did not create a civil action in tort for the benefit of invitees in slip-and-fall cases, and in any event no evidence was presented to show a violation of the statute. Morover, a breach of the statute would itself require knowledge of the unsafe condition, negating the asserted elimination of the knowledge requirement.
The judge went on to contrast this case with Brooks v. Levin, finding that case to have been sui generis and a response to a unique social problem, and not intended to be applied generally to negligence actions, citing several more recent case that gave no indication of a more widespread change in the law as a result of that case.
For all of the above reasons, the judge had no difficulty AFFIRMING the decision below, and in a final chastisement, noted that Joseph's failure to prepare a transcript of the hearing on the summary judgment motions would in and of itself have warranted dismissal of the appeal, as sought by Bozzuto. Since Bozzuto had at its expense provided much of the needed material, the judge, noting the court's preference to decide an appeal such as this on the merits and that it had done so, assessed Bozzuto's costs in preparing the materials against Joseph.
The opinion is available in PDF format.
From the opinion headnote:
HEADNOTE
RESPONSIBILITY OF A PROPERTY OWNER FOR AN INVITEE'S SLIP AND FALL – FACTUAL BACKGROUND – THE "OILY SUBSTANCE" – THE INSPECTION AND CLEANING ROUTINE – A CLAIM OF NEGLIGENCE – THE PREREQUISITE OF KNOWLEDGE FOR A BREACH OF DUTY – THE ABSENCE OF PROOF OF KNOWLEDGE – HAS BROOKS V. LEWIN CHANGED THE GENERAL LAW OF LANDOWNER LIABILITY? – APPLES AND ORANGES – THE VIOLATION OF A STATUTE AS EVIDENCE OF NEGLIGENCE – LEGISLATIVE IMPACT ON THE STANDARD OF CONDUCT – THE MONTGOMERY COUNTY CODE ON LANDLORD-TENANT RELATIONS – A SLIP-AND-FALL IS NOT RES IPSA LOQUITUR – THE OVERARCHING SIGNIFICANCE OF "IN SOME CIRCUMSTANCES" – THE ANTI-LEAD-PAINT REGULATIONS: LANDLORD KNOWLEDGE IS NOT A FACTOR – BROOKS V. LEWIN IS SUI GENERIS – BROOKS V. LEWIN DID NOT OVERRULE 70 YEARS OF "SLIP-AND-FALL" CASELAW SUB SILENTIO – THE HOLDINGS OF THIS COURT THAT SLIP-AND-FALL LAW HAS NOT CHANGED – THE MOTION TO DISMISS
[Personal note from the poster: If you've been missing Judge Moylan's erudite and rococo style of opinion drafting since his retirement, you're in for a treat! Only Judge Moylan could elevate an appeal from the dismissal of a relatively routine slip-and-fall case into a 49-page oration about the plaintiff's doomed "illusion" of a "deus ex machina descending on the courtroom just in the nick of time." Enjoy! SGT]
The plaintiff ("Joseph") is the son of a tenant in a building managed by the defendant ("Bozzuto"), and was an invitee in that building in 2004. In the course of descending the staircase with his brother, near the eighth floor landing Joseph slipped on a small patch of an oily, colorless and translucent substance and fell, injuring his knee. The following afternoon, the fall was reported to an employee of Bozzuto, who immediately investigated but was unable to find or confirm the alleged substance spill. Joseph brought suit against the building's owners and the management company.
Both defendants filed motions for summary judgment, alleging that Joseph had not made out a prima facie case of negligence.Testimony established a regular routine of maintenance and inspection of common areas by Bozzuto, and no indication of the existence or source of the alleged spill other than the brothers' testimony, nor any prior report of such a spill. After the hearing, the motions were granted, from which judgment Joseph appealed.
On appeal, the judge first walked through the line of cases requiring knowledge on the part of the landlord before negligence will lie, before confirming that no evidence had been adduced below to establish such knowledge. On appeal, Joseph's sole contention was that the result in a 2003 Court of Appeals case, Brooks v. Lewin, had eliminated the requirement of prior knowledge, if the landlord has violated a housing ordinance.
In that case, the Court of Appeals had declared the elimination of the prior knowledge requirement in a lead paint case, which the judge in this case found to be too dissimilar in too many ways to be applicable here. To reach that conclusion, the judge walked through the line of cases holding that a violation of a statute may, "in some circumstances", be deemed evidence of negligence and a breach of a duty owned to a plaintiff, finding that the statute in question here did not create a civil action in tort for the benefit of invitees in slip-and-fall cases, and in any event no evidence was presented to show a violation of the statute. Morover, a breach of the statute would itself require knowledge of the unsafe condition, negating the asserted elimination of the knowledge requirement.
The judge went on to contrast this case with Brooks v. Levin, finding that case to have been sui generis and a response to a unique social problem, and not intended to be applied generally to negligence actions, citing several more recent case that gave no indication of a more widespread change in the law as a result of that case.
For all of the above reasons, the judge had no difficulty AFFIRMING the decision below, and in a final chastisement, noted that Joseph's failure to prepare a transcript of the hearing on the summary judgment motions would in and of itself have warranted dismissal of the appeal, as sought by Bozzuto. Since Bozzuto had at its expense provided much of the needed material, the judge, noting the court's preference to decide an appeal such as this on the merits and that it had done so, assessed Bozzuto's costs in preparing the materials against Joseph.
The opinion is available in PDF format.
Wednesday, March 14, 2007
Montgomery Investigative Services, Ltd. v. Horne (Ct. of Special Appeals)
Filed March 12, 2007. Opinion by Judge Charles E. Moylan, Jr. (retired, specially assigned)
From the opinion's headnote:
Horne had been conditionally hired by Southern Services, pending receipt of a criminal background check requested from MIS. MIS erroneously reported to Southern Services that Horne had been convicted of theft and served 6 months in prison, and on the basis of that report, Horne was fired. Horne filed suit, and at the conclusion of the plaintiff's case, judgment was granted in favor of Southern Services on the basis that Horne had failed to make out a prima facie case of actual malice against it. A similar motion was denied against MIS, both then and at the end of the trial, and the jury subsequently rendered a verdict in favor of Horne against MIS. MIS appealed, and Horne cross-appealed against Southern Services.
The court found, as Horne had conceded, that Southern Services had a qualified privilege, but no merit in Horne's contention that MIS did not have the qualified privilege found by the trial court, elevating dicta in the Court of Appeals' Wetherby v. Retail Credit Co. case to the status of a holding in this case, finding that Southern Services' obvious business-related interest was reciprocally extended to MIS as the "flip side" of the same coin.
In similar fashion, the court had little trouble finding actual malice on the part of MIS, overcoming its qualified privilege, after first confirming over Horne's challenge the jury instruction given on actual malice, since it was straight out of the Maryland pattern jury instruction book and otherwise comported with the Maryland cases. The court found more than sufficient evidence below that MIS had, with reckless disregard to the truth, disregarded or overlooked several obvious inconsistencies when its raw data was considered against information it had been given about Horne, which should have, at the least, advised caution or further checks before presenting the unqualified summary of its results, and affirmed the trial judge's decision to let the matter go to the jury.
Finally, the court agreed that it was error to grant judgment in favor of Southern Services, finding the evidence below as to the manner of Southern Services' discharge of Horne's discharge was so abusive as to abrogate the qualified privilege, and the matter deserved to have been submitted to the jury. Consequently, the court reversed the judgment in favor of Southern Services and remanded for a new trial.
The opinion is available in PDF format.
From the opinion's headnote:
HEADNOTEIn an appeal from a conviction below on defamation charges by an employee ("Horne") arising from his discharge by his employer ("Southern Services") based upon false information provided by an investigative service and its investigator (collectively, "MIS"), and a cross appeal taken by Horne against the dismissal below of such charges against Southern Services, the court AFFIRMED the judgments against MIS, and REVERSED the judgment in favor of Southern Services and REMANDED for a new trial against Southern Services.
DEFAMATION – QUALIFIED PRIVILEGE – ABUSE OF PRIVILEGE – THE FACTUAL BACKGROUND – THE INITIAL HIRING OF HORNE – THE CRIMINAL BACKGROUND CHECK – THE BACKGROUND CHECK REPORT – THE AGE DISCREPANCY – CONSEQUENCES OF THE FALSE REPORT – QUALIFIED PRIVILEGE AND THE PROOF OF MALICE – THE RECIPROCITY OF THE QUALIFIED PRIVILEGE – ACTUAL MALICE ON THE PART OF MIS AND TAMMY WHITE – JURY INSTRUCTION ON ACTUAL MALICE – THE RECKLESS DISREGARD OF TRUTH – ABUSE OF THE PRIVILEGE BY SOUTHERN SERVICES – HAPPY 40 V. MILLER – GENERAL MOTORS V. PISKOR – THE BEHAVIOR OF JAMES LAMBERT
Horne had been conditionally hired by Southern Services, pending receipt of a criminal background check requested from MIS. MIS erroneously reported to Southern Services that Horne had been convicted of theft and served 6 months in prison, and on the basis of that report, Horne was fired. Horne filed suit, and at the conclusion of the plaintiff's case, judgment was granted in favor of Southern Services on the basis that Horne had failed to make out a prima facie case of actual malice against it. A similar motion was denied against MIS, both then and at the end of the trial, and the jury subsequently rendered a verdict in favor of Horne against MIS. MIS appealed, and Horne cross-appealed against Southern Services.
The court found, as Horne had conceded, that Southern Services had a qualified privilege, but no merit in Horne's contention that MIS did not have the qualified privilege found by the trial court, elevating dicta in the Court of Appeals' Wetherby v. Retail Credit Co. case to the status of a holding in this case, finding that Southern Services' obvious business-related interest was reciprocally extended to MIS as the "flip side" of the same coin.
In similar fashion, the court had little trouble finding actual malice on the part of MIS, overcoming its qualified privilege, after first confirming over Horne's challenge the jury instruction given on actual malice, since it was straight out of the Maryland pattern jury instruction book and otherwise comported with the Maryland cases. The court found more than sufficient evidence below that MIS had, with reckless disregard to the truth, disregarded or overlooked several obvious inconsistencies when its raw data was considered against information it had been given about Horne, which should have, at the least, advised caution or further checks before presenting the unqualified summary of its results, and affirmed the trial judge's decision to let the matter go to the jury.
Finally, the court agreed that it was error to grant judgment in favor of Southern Services, finding the evidence below as to the manner of Southern Services' discharge of Horne's discharge was so abusive as to abrogate the qualified privilege, and the matter deserved to have been submitted to the jury. Consequently, the court reversed the judgment in favor of Southern Services and remanded for a new trial.
The opinion is available in PDF format.
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