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.
Friday, May 4, 2007
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:
(synopsis to follow)
The opinion is available in PDF format.
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.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.
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.
(synopsis to follow)
The opinion is available in PDF format.
Thursday, May 3, 2007
Evans v. State (Ct. of Special Appeals)
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.
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)
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.
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)
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.
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)
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.
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)
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.
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)
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.
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.)
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.
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.
Wednesday, May 2, 2007
Yourik v. Mallonee (Ct. of Special Appeals)
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:
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)
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.
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)
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.
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.
Tuesday, May 1, 2007
U.S. ex rel. Sanders v. North American Bus Industries, Inc. (Maryland U.S.D.C.) (Not Approved for Publication)
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.
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)
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.
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.)
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.
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.
Tuesday, April 24, 2007
NaturaLawn of America, Inc. v. West Group, LLC (Maryland U.S.D.C.) (Approved for publication)
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.
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)
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.
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)
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.
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.
Sunday, April 22, 2007
Pendleton v. State (Ct. of Appeals)
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.
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.
Saturday, April 21, 2007
Holland v. Psychological Assessment Resources, Inc. (Maryland U.S.D.C.) (Approved for Publication)
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.
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.)
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.
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)
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.
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)
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.
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.
Wednesday, April 18, 2007
Wisneski v. State (Ct. of Appeals)
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?
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)
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.
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)
Filed April 16, 2007. Opinion by Judge Lawrence Rodowsky (retired, specially assigned).
From the official headnote:
The opinion is available in PDF format.
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)
Files April 17, 2007. Opinion by Chief Judge Robert M. Bell.
From the official headnote:
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.
From the official headnote:
PROPERTY TAXES - MONEY JUDGMENTS - REFUNDS - INTERESTOn 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.
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.
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)
Filed April 16, 2007. Opinion by Judge Clayton Greene.
From the official headnote:
The opinion is available in PDF format.
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.
Saturday, April 14, 2007
Frank v. Home Depot (Maryland U.S.D.C.) (Approved for Publication)
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.
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.)
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.
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)
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.
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.
Friday, April 13, 2007
Williamson v. State (Court of Appeals)
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.
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)
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.
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.
Thursday, April 12, 2007
Lewis v. State (Ct. of Appeals)
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:
The majority and dissenting opinions are available in PDF format.
From the official headnote:
CRIMINAL LAW – SUPPRESSION OF EVIDENCE: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.
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.
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:
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.
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)
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.
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)
Filed April 12, 2007. Opinion by Judge Dale R. Cathell.
From the official headnote:
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.
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.
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