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

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.

Thompson v. Beneficial Mortgage Co. of Maryland (Maryland U.S.D.C.) (Not Approved for Publication)

Signed March 9, 2007 -- Memorandum Opinion by Judge Deborah K. Chasanow. (Not approved for publication.)

Thompson filed this action in the Circuit Court for Prince George's County asserting claims under the Fair Credit Reporting Act and several state tort claims. Her action was removed to this Court which subsequently, by Order dated July 18, 2006, dismissed all of Thompson's federal claims without prejudice and some of her state claims. As a result of Thompson's clarification that she would not replead her federal Fair Credit Reporting Act claim, the Court exercised its discretion to decline to exercise supplemental jurisdiction over her remaining claims, all of which arose under state law. Upon remand of Thompson's remaining state claims, one of the defendants, Provident Bank of Maryland, requested entry of final judgment in its favor pursuant to Fed.R.Civ.P. 54(b), which provides:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

Accordingly, the Order dismissing Thompson's claim against Provident was not final when that Order was entered, and, in fact, the Court subsequently denied a motion by Thompson for reconsideration of that ruling.

An interlocutory order becomes final, absent an explicit certification to the contrary, only when all claims against all parties are resolved. In the context of a case remanded to a state court, the remand order, regardless of whether it is itself final and subject to appeal, resolves all matters before the court as to all parties, and renders any previous interlocutory orders final and subject to appeal. Provident's request for entry of final judgment is, therefore, moot under this doctrine. The Court's July 2006 Order decided the merits of Thompson's claim against Provident and, by dismissing this claim, decided the parties' substantive rights. As a result, the Court's remand Order rendered the prior interlocutory Orders final and started the time for any appeal as to those interlocutory Orders pursuant to Fed.R.App.P. 4.

The full opinion is available in PDF.

LaSalle Bank, N.A. v. Reeves (Ct. of Special Appeals)

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

From the opinion's headnote:

HEADNOTE: LaSalle Bank, N.A. v. Reeves
No. 0268, September Term, 2005
Civil Procedure - Jurisdiction - Indian Tribes.
Civil Procedure - Statute of Limitations.
Civil Procedure - Equity- Laches.

After appellant, LaSalle Bank, N.A., sought reformation of a deed of trust which inaccurately described the property that secured said deed, circuit court granted appellee, Elizabeth A. Reeves’, motion for summary judgment on the grounds that the claim was barred by the three-year statute of limitations. On appeal, appellant sought a determination of whether the court erred in applying the statute of limitations for civil actions rather than the equitable doctrine of laches.

Appellee raised the issue of jurisdiction and immunity because, prior to her default, she executed and recorded a quitclaim deed conveying any interest she held in the subject property to the Delaware Tribe. Although certain Indian tribes are immune from state court jurisdiction, at the time of the circuit court’s grant of summary judgment, the Delaware Tribe was not a federally recognized tribe and had been subsumed into the Cherokee Nation. Thus, the Cherokee Nation was a necessary party to the instant declaratory judgment action and remand was required.

For the guidance of the circuit court on remand, we noted that because appellant’s amended complaint contained allegations sufficient to sustain an action for reformation, their prayer for relief could properly be construed as a request for equitable relief. Since appellee was sufficiently on notice of the cause of action, appellant’s complaint for declaratory relief did not limit the circuit court to the application of statutory limitations, to the exclusion of laches.

The opinion is available in PDF format.

Baron Financial Corp. v. Natanzon (Maryland U.S.D.C.)(Approved for Publication)

Issued July 7, 2006 -- Opinion of Judge Susan K. Gauvey. (Approved for publication.)

This opinion addresses a Counterclaim and Third-Party Complaint ("Natanzon's Claim") filed by Defendant Roni Natanzon ("Natanzon") against Baron Financial Corporation ("Baron") and Samuel Buchbinder ("Buchbinder"), in the above-captioned case, in which a Co-Defendant ERN, LLC ("ERN"), an LLC in which Natanzon held a membership interest, had already declared bankruptcy. A synopsis of another ruling in this case involving different procedural and substantive issues in dispute is available here.

Baron and Buchbinder moved to dismiss the two remaining counts in Natanzon's Claim: Intentional Interference with Economic Advantage ("Count I") and Unfair Competition ("Count IV.")

Regarding Count I, the Court noted that Natanzon claimed damages under three subtheories:

1. Baron and Buchbinder allegedly damaged ERN’s and Natanzon’s economic relationships with independent sales organizations (ISOs) and merchants by making statements to ISOs about their lawsuits against ERN and Natanzon and about Natanzon personally.

The Court held that since Natanzon personally lacked either a contract with the ISOs or an existing business relationship with them, he lacked standing to bring suit for any claim of tortious interference on the basis of his mere membership in ERN, and failed to allege facts sufficient to allow a defamation claim to proceed under a more liberal reading of the claim.

2. Baron interfered with Natanzon’s business interests by "frustrating ERN's and Natanzon's ability to devote" their full time to the operation of their business.

The Court held that Natanzon had failed to allege sufficient facts to establish either a contract with ISOs or a likelihood of a prospective business relationship with any identified ISOs, and dismissed the claim for failure to state a claim on which relief might be granted.

3. Baron and Buchbinder allegedly filed lawsuits and otherwise interfered in Natanzon’s attempt to rehabilitate ERN and meet his obligations under the Memorandum of Understanding between the parties.

The Court held that since Baron and Buchbinder were themselves parties to the Memorandum of Understanding, they could not commit tortious interference with their own contract against Natanzon as a matter of law. Accordingly, the Court dismissed Count I with prejudice.

Count IV of Natanson's Claim alleged the following as acts constituting "unfair competition":

(1) Buchbinder's and Baron's institution and prosecution of numerous lawsuits against Natanzon, ERN, and ERN Israel; (2) their failure to make residual payments to ISOs with respect to their Assigned Portfolios, pursuant to the terms of the MOU and the Rider; (3) their improper demands for documentation; (4) their claim that ERN failed to process the patent application even though Buchbinder is aggressively his own 'all-in-one' POS machine (which has diminishes the value of any patent ERN might obtain); and (5) [other additional matters]

The Court held that all of Natanzon's alleged damages arose out of his ownership interest in ERN, and that since Natanzon had not pled any distinct injury to himself specifically as an owner, as opposed to financial damages to ERN itself, he lacked standing to sue for Baron and Buchbinder for unfair competition under Maryland law. Accordingly, the Court dismissed Count IV.

Natanzon had previous conceded his lack of standing to bring Counts II and III of his Claim, and the Court summarily dismissed those two conceded counts. All counts having been dismissed, the Court dismissed Natanzon's Claim in its entirety.

The full memorandum opinion is available in PDF.

Oxedine v. SLM Capital Corp. (Ct. of Special Appeals)

Filed: January 30, 2007--Opinion by Judge Timothy Meredith.

In the Supreme Court of the State of New York, SLM Capital Corporation, appellee, obtained a default judgment against Willie and Joan Oxendine, appellants, for $332,845.02. SLM recorded the foreign judgment against the Oxendines in the Circuit Court for Prince George’s County. The Oxendines moved to vacate entry of the foreign judgment, and, in support of their motion, argued that the State of New York did not have sufficient contacts to exercise personal jurisdiction over them.

The circuit court ruled that the Oxendines had waived any challenge to personal jurisdiction by failing to raise the issue in the New York proceedings. Relying on Dixon v. Keeneland Associates, Inc., 91 Md. App. 308, the lower court stated that, under Dixon, "the full faith and credit clause of the Constitution precludes a party from attacking a decree on jurisdictional grounds [in] the courts of a sister state where the party was afforded full opportunity to contest the jurisdictional issues."

The Court of Special Appeals disagreed. It contrasted Dixon, in which the Maryland resident had actually litigated the jurisdictional issues in the out-of-state court, with the present case, where the issue of personal jurisdiction over the Oxendines was not even brought up, much less "fully adjudicated" in the foreign court.

Overruling the lower court's finding that the issue of personal jurisdiction was waived by the Oxendines' failure to participate in the New York proceedings, the Court of Special Appeals remanded the case to allow the circuit court to take evidence and inquire into whether the New York court had a sufficient basis to exercise long-arm jurisdiction over the Oxendines, under the principles enunciated in International Shoe. It further instructed the circuit court that, if it finds that the State of New York did not have a sufficient basis to exercise long-arm jurisdiction over the Oxendines, it must vacate the entry of the SLM judgment.

The full opinion is available in PDF here.

Baron Financial Corp. v. Natanzon (Maryland U.S.D.C.)

Decided December 13, 2006 – Opinion of Judge Susan K. Gauvey

Plaintiff had sued the named Defendant in the above caption above and multiple other defendants and filed a Second Amended Complaint in that case ("the 2004 case"), one of defendants (an attorney, "Rombro") had obtained a dismissal of all counts against him. Plaintiff subsequently filed a new complaint against Rombro ("the 2006 case"), for which Rombro intended to seek a dismissal or summary judgment due to collateral estoppel or res judicata. The general subject matter of both suits was Plaintiff's claims of tortuous and contractual harm arising out of Plaintiff's claims of security interests in certain merchant accounts of one of the Defendants.

After Rombro's dismissal from the 2004 case but before service of process on Rombro of the 2006 case Complaint, Plaintiff sought to depose Rombro as a non-party witness regarding the 2004 case, and Rombro sought a protective order against such deposition, on the grounds that it was inter alia, a mere "fishing expedition" and an attempt to "sidestep" the terms of his dismissal as a defendant from the 2004 case.

After a teleconference with counsel, the Court held that Rombro had not met the burden of "good cause" to merit a general protective order against a non-party witness deposition under Rule 26(c) of the Federal Rules of Civil Procedure ("FRCP"), noting that the burden was a high burden, that protective orders were to be granted sparingly and cautiously and that Rombro was likely to have considerable information relevant to the 2004 case. The Court passed an order allowing the deposition to proceed but set conditions and limits as to its promptness and duration.

The full opinion and order are available in PDF.

Aventis Pasteur, Inc. v. Skevofilax (Ct. of Appeals)

Filed January 8, 2007--Opinion by Judge Glenn T. Harrell, Jr.

Respondents, individually and as next friends for their minor child, filed suit in the Circuit Court for Baltimore City seeking damages claiming that their minor son's autism was caused by toxic levels of mercury contained in thimerosal. After three-amended scheduling orders and nearly eleven months of discovery, Respondents' sole expert on specific causation withdrew from further participation in the case without ever having rendered his expert opinion. The Circuit Court denied Respondents' motion for voluntary dismissal without prejudice, and entered summary judgment in favor of Petitioners.

The Court of Special Appeals reversed, holding that the Circuit Court improperly applied the pertinent legal factors in its analysis regarding the legal rights of minors and stating that the plaintiff's minority status weighed heavily in favor of voluntary dismissal without prejudice.

Held: The trial judge did not abuse his discretion in denying Respondent's Motion to Dismiss without prejudice and granting Petitioner's Motion for Summary Judgment. The decision of the Court of Special Appeals is reversed.

The decision to grant or deny a motion for voluntary dismissal pursuant to Maryland Rule 2-506(b) is addressed to the sound discretion of the trial court, and will not be overturned on appeal absent a showing that the trial judge abused that discretion. So long as the Circuit Court applied the proper legal standards and reached a reasoned conclusion based on the facts before it, an appellate court should not reverse merely because the appellate court would have reached a different conclusion. The trial court recounted properly the following four non-exclusive factors which instruct a decision whether to grant a voluntary dismissal: (1) the non-moving party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the moving party; (3) sufficiency of the reason of the need for dismissal; and (4) whether a motion for summary judgment or other dispositive motion is pending.

A trial court has a special duty to protect the rights and interests of a minor plaintiff who is represented by a next friend to ensure that the next friend does not prejudice those rights and interests through conflict of interest, fraud, or neglect. Absent conflict of interest, fraud, or neglect by a parent, guardian, next friend, or the minor's attorney, however, a motion for voluntary dismissal filed on behalf of a minor should not be analyzed any differently than a motion for dismissal without prejudice filed by any plaintiff.

The full opinion is available in PDF.

Final Analysis Communication v. Ballard Spahr Andrews & Ingersoll (Cir. Ct. Balto. City)

Filed January 2, 2007--Opinion by Judge Albert Matricciani, Jr.

In an amended memorandum decision, the Court considered a motion for summary judgment on all of Final Analysis Communication's (FAC's) claims because it allegedly failed to comply with the Court's pre-trial scheduling order in designating expert witnesses and because the undisputed material facts demonstrated that it cannot prove that its damage claims were proximately caused by Ballard Spahr's actions.

FAC asked the Court to excuse its failure to make timely expert witness designations because there was a change in its legal representation in early 2006; because there was an unsuccessful but time consuming effort to bring its parent corporation into the litigation; because Ballard Spahr had previously suggested a six month stay of the case; and because Ballard Spahr allegedly was not prejudiced and did receive notice of proposed experts.

The Court expressed serious doubts about FAC's ability to prove that its damage claims were proximately caused by Ballard Spahr's actions. Further, finding exceptional circumstances, the Court precluded FAC from presenting expert testimony and entered summary judgment for Ballard Spahr on all claims.

The full opinion is available in PDF.

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

Filed December 18, 2006 - Opinion by Chief Judge Robert M. Bell.

Upon disciplinary referral from the Court of Appeals, the Circuit Court for Baltimore City found the following facts to be true:

1. Respondent agreed to represent the complainant, an interested party in a unfiled decedent's estate, and took a retainer for such representation. The decedent had domiciled in Montgomery County, but Respondent agreed to pursue a claim of the decedent's estate in Anne Arundel County regarding decedent's real estate claims there involving a disputed debt and lien. Respondent failed to open an estate in Anne Arundel County, and ignored several notices from the Registrar of Wills and the Orphans' Court of that county including an adverse petition for judicial probate.

2. Respondent represented to the complainant that he was able to proceed in Maryland or the District of Columbia without assistance of other counsel. Respondent did proceed to file a civil action in the District of Columbia with an attorney barred in that jurisdiction, but Respondent was not a barred attorney in the District of Columbia at any time relevant.

3. Respondent made a further false representation on his pro hac vice motion to the Superior Court of the District of Columbia, stating that he had no open disciplinary actions in Maryland when the Attorney Grievance Commission has opened and notified Respondent of a then-unresolved disciplinary proceeding approximately two months prior to his statement. Due to service of process issues, the civil action co-filed by Respondent was dismissed twice without prejudice, but Respondent falsely represented to the complainant on one such dismissal that the case had merely been continued, not dismissed.

4. The Orphans' Court for Anne Arundel County proceeded to transfer the related probate case to the Orphans' Court for Montgomery County, but Respondent failed to make many required estate filings in that court, prompting a threat of discharge of the complainant as personal representative of the decedent's estate and her discharge of Respondent as her counsel.

5. During the period of Respondent's failure to act, the size of a disputed debt claim against the decedent's estate rose from approximately $50,000,00 to $57,000.00 and continued to grow with interest thereafter.

The Circuit Court for Baltimore City found violations of Rules 1.1 (competence), 1.3 (diligence) (two such violations), 1.4 (a) (duty to keep client informed) and (b) (duty to explain for informed decision-making), 1.5(a) (fees commensurate with services) and 8.4 (misconduct and conduct prejudicial to the administration of justice.)

Neither party took subsequent exception to these findings of fact or of Rule violations by the Circuit Court. The Court of Appeals accordingly accepted them as established for purposes of imposing a sanction. Respondent had already been suspended indefinitely by the Court of Appeals for the conduct giving rise to the disciplinary action identified in paragraph 3 above. In light of that aggravating factor and weighing the totality of Respondent's dishonest and unprofessional conduct in this matter, the Court of Appeals disbarred Respondent.

The full opinion is available in WPD and PDF.