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Opinions: Maryland Court of Appeals

MARYLAND COURT OF APPEALS

Consumer Protection

New-home construction

BOTTOM LINE: Although the evidence did not support the conclusion that a developer held itself out as a registered home builder, its new-home construction contracts violated the Consumer Protection Act by requiring purchasers to grant the developer a general release in exchange for a limited warranty.

CASE: Bayly Crossing, LLC, et al. v. Consumer Protection Division, Office of the Attorney General, No. 8, Sept. Term, 2010 (filed Nov. 22, 2010) (Judges Bell, HARRELL, Battaglia, Greene, Barbera, Eldridge (retired, specially assigned) & Rodowsky (retired, specially assigned)). RecordFax No. 10-1122-20, 19 pages.

FACTS: In 2002, Theodore Passyn acquired Bayly Crossing, LLC, including its main assets — 30 undeveloped, single-family residential lots in the Bayly Crossing subdivision in Dorchester County. Bayly entered into contracts with various buyers to produce new homes on certain of these lots.

As Bayly was not a registered home builder in Maryland, the contracts specified that Bayly would subcontract with T.B. Passyn & Sons, Inc., a registered home builder, to build the homes. This understanding, per the form contracts, was that Bayly agreed to “sell and construct … a house substantially similar to the seller’s model … .” Bayly agreed, in a later provision, to “complete … a dwelling substantially similar to seller’s Model House … .” Near the end of the contracts, buyers acknowledged that “my home builder, T.B. Passyn & Sons, Inc., MHBR [Maryland Home Builder Registration] # 455 Provided me with a copy of [a] consumer information pamphlet.”

In an addendum entitled “Builder’s Notice of Standards and Buyer’s General Release to Landowner and Buyer’s Acknowledgment of Receipt of Consumer Pamphlet Information,” buyers were advised that T.B. Passyn & Sons “is the Builder for [their] house … and hereby agrees to grant to the Buyers of said house a One-Year Limited Warranty in accord with the Standards set by the Residential Warranty Corporation … .” “In exchange for [the] Limited Warranty,” the addendum continued: The buyer’s “hereby grant a general release to [Bayly and Passyn] forever discharge [them] from any and all actions or causes of action relating to the construction of the house.”

In 2004, seven homes were constructed on Bayly’s lots and the purchase-price amounts in the contracts were paid to Bayly. Bayly sold the remaining undeveloped twenty-three lots to an unrelated real estate development company in October 2004.

In July 2005, the Consumer Protection Division of the Attorney General’s Office (Division) filed charges against Passyn and Bayly, alleging violations of Maryland’s Home Builder Registration (HBRA) and Consumer Protection Acts (CPA) based on the contention that Bayly was operating as a home builder, without properly registering with the State Home Builders Registration Unit (HBRU). The Division delegated to the Maryland Office of Administrative Hearings (OAH), an independent state agency, the obligation to conduct evidentiary hearings and make recommended written findings of fact and conclusions of law.

In September 2005, an Administrative Law Judge (ALJ) of the OAH, following hearings, issued a written Proposed Ruling, concluding that Bayly was exempt from the registration requirements of the HBRA. The ALJ reasoned that Bayly “f[ell] squarely within the [statutory] exception [for real estate developers who do not construct homes], and hence, outside of the registration requirement.”

The Division appealed the ALJ’s Proposed Ruling to the Division’s adjudicative arm (the “Agency”), which concluding that Bayly, in fact, “was required to have registered as a home builder at the time that it entered into the contracts in which it undertook to construct new homes for consumers.” The Agency then remanded the case to the OAH for further proceedings and filed an Amended Statement of Charges against Bayly and Passyn, alleging a violation of CPA §13-301(13). Specifically, it claimed that Bayly and Passyn engaged in an unfair or deceptive trade practice by asking in the contracts for the buyers to grant a general release, in exchange for a one-year home warranty.

After remand, the ALJ concluded that Bayly and Passyn violated the HBRA by failing to register as a home builder and by limiting or precluding the buyer’s right to obtain consequential damages as a result of the seller’s breach or cancellation of the contract.

Bayly and Passyn filed exceptions and, in August 2007, the Agency issued a Final Order, upholding the ALJ’s ruling and imposing penalties and costs. In pertinent part, the Agency concluded that Bayly was a “home builder,” within the meaning of the HBRA, because it undertook to build new homes – that is, it “placed upon itself the obligation to sell and construct new homes.” Bayly and Passyn filed a petition for judicial review in the circuit court. The court affirmed. The intermediate appellate court also affirmed.

Passyn appealed to the Court of Appeals, which reversed.

LAW: The parties, as well as the lower courts, framed the flagship issue as one of pure statutory interpretation, therefore, a pure question of law. The question involved the interplay between the class of individuals and entities defined as “home builder[s],” by §4.5-101(f)(1) of the HBRA, and therefore required to register with the State, and those excluded expressly from the registration requirement by §4.5-101(g)(3)(iv) as “real estate developers” who do not construct homes.

The Division argued that the term “home builder,” defined in the statute as one who “undertakes to erect or otherwise construct a new home,” should include those who appear to contract to build new homes, but who, in fact, do not. Relying upon §4.5-101(g)(3)(iv), which exempts from registration “real estate developer[s] who do[] not construct homes,” the Passyns argued that the HBRA applies only to those who actually construct new homes. Thus, the parties centered their arguments on the statutory scheme, believing it to control the outcome of this case.

While this appeared to be a question of statutory interpretation, the heart of this dispute rested not with the meaning of the terms “home builder” or even “real estate developer,” as used in the HBRA, but with the way the Division applied those terms to a less than inclusive consideration of all of the relevant and material undisputed facts of the case. Not only were the material facts undisputed, the parties relied correctly on the basic governing statute, without real quarrel as to its meaning. They agreed that the HBRA requires those who undertake to construct new homes to register as “home builder[s].” The parties only reached an impasse regarding the exclusion of real estate developers because the Division presumes, as a matter of contract construction, that Bayly, in fact, “undertook” to construct new homes. A complete reading of the relevant portions of the contracts, as demanded by the principles of contract interpretation, undermined this presumption. Thus, this case involved a mixed question of law and fact rather than a pure legal question.

In applying the HBRA (and the principles of contract interpretation) to the facts, the Division read selectively the contracts, ignoring the direction that “in ascertaining [its] true meaning … the contract must be construed in its entirety and, if reasonably possible, effect must be given to each clause so that … an interpretation … [does not cast] out or disregard a meaningful part of the language of the writing.” Cochran v. Norkunas, 398 Md. 1, 17-18 (2007).

In concluding that Bayly undertook to “erect or otherwise construct a new home,” the Division relied upon contractual provisions where it seemed that Bayly agreed to “sell and construct,” as well as “complete” new homes. When the sections that the Division highlighted in its final decision were read in isolation, the contracts appeared to constitute an undertaking, on the part of Bayly, to construct new homes. When read in their entirety, however, it was clear that the contracts specified who, exactly, was going to be performing the actual construction of the new homes — T.B. Passyns & Sons, a registered home builder.

Indeed, the buyers were not only required to acknowledge, by executing the contracts, that T.B. Passyn & Sons was “my home builder,” but they were advised once more, in an addendum, that “T.B. Passyn & Sons, Inc. MHBR 455 is the Builder of [their] house.” Thus, unmistakably, the buyers were on notice of the identity of their registered home builder.

The Division appeared to have ignored this, thus rendering these material clauses nugatory, in violation of basic contract interpretation principles. Moreover, the Division offered no rationale for why the structure of the contractual arrangement presented hidden dangers for consumers, a matter that might have implicated agency expertise. As a result, the Division’s presumption that Bayly held itself out as a home builder, within the meaning of the HBRA, was unsupported by competent, material, and substantial evidence in light of the entire record as submitted. Therefore, the Division’s determination of a violation by Bayly regarding the HRBA’s registration requirement could not stand.

Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: Another question was whether Bayly and the Passyns, under the circumstances, violated the CPA by requiring buyers to grant a general release.

Section 13-301(13) of the CPA provides that no “seller … of consumer realty [may use] … a clause limiting or precluding the buyer’s right to obtain consequential damages as a result of the seller’s breach or cancellation of the contract.” Com. Law §13-301(13).

The contracts in this case provided that, in exchange for a limited warranty, buyers were to grant a general release discharging the Bayly and the Passyns from “any and all … causes of action relating to the construction of the houses.”

The Division argued that general releases, which preclude a buyer from obtaining any kind of resultant damages, necessarily preclude a buyer from obtaining consequential damages, in violation of the CPA. The Passyns retorted that the general releases “sa[id] nothing about consequential damages,” meaning they did not preclude or limit, in any way, a buyer’s right to consequential damages. Although the phrase “any and all actions or causes of action” is broad in scope, they relied upon the qualifying phrase “relating to the construction of the house[s]” to suggest that buyers waived only causes of action arising after contract-performance. As the CPA concerns only those causes of action arising during contract-performance, or so the Passyns claimed, the post-performance general releases did not violate it.

Unlike the HBRA issue, this question focused on the meaning and coverage of the statute. Due to the clarity and specificity of this statutory provision, however, it was concluded that the Legislature did not entrust much to the Division’s expertise and decision-making respecting general releases. See Div. of Labor & Indus. v. Triangle Gen. Contrs., Inc., 366 Md. 407, 417 (2001).

On the basis of the plain meaning of the CPA, the Legislature intended to proscribe the use of general releases, by a seller of consumer realty, which do not preserve specially a buyer’s right to obtain consequential damages. A seller of consumer realty need not address expressly in its waiver consequential damages; that all claims for damages were precluded, however, is violative of the CPA. Thus, the Passyns did not persuasively argue that the general releases did not offend the CPA because they said nothing about consequential damages and were targeted at only post-construction claims. The language of the releases was sufficiently expansive to fall within the clear and unambiguous regulatory prohibition of the CPA.

Accordingly, the Division’s subsequent determination that the general release violated CPA §13-301(13) was affirmed.

Criminal Procedure

Good conduct credits

BOTTOM LINE: Defendant was entitled to good conduct credits at the rate of ten, rather than five, days per month on a sentence in the term of confinement for a non-violent, non-drug crime committed while he was on parole.

CASE: Stouffer v. Holbrook, No. 25 Sept. Term 2010 (filed Nov. 22, 2010) (Judges Bell, HARRELL, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 10-1122-21, 24 pages.

FACTS: In 1999, Eric Holbrook was convicted of several non-violent, non-drug offenses. At about the same time, he was convicted also for distributing cocaine. These 1999 convictions resulted in combined sentences, including active and suspended time, that expired on May 5, 2009.

In April 2003, Holbrook was released on parole and, while on parole, committed an assault in the second degree. The circuit court found that the assault constituted a violation of the terms and conditions of Holbrook’s parole. As a result of the parole violation, the court ordered Holbrook to serve five years of “back-up” time. For the second degree assault conviction, the court sentenced Holbrook to a three year term, to run consecutively to the back-up time.

Holbrook earned 598 good-conduct credits against his new, post-parole sentence for second degree assault (computed originally at the time at a rate of ten credits per month). Sometime after May 2007, however, the Division of Corrections disallowed half of these credits, reducing them to 299.

To justify disallowance of the higher rate of accrual, the Division reasoned that Holbrook served a single, continuous term of confinement because he was never outside its custody or supervision completely. Thus, the single term of confinement included the sentence for the 1999 drug-related crime. The Division concluded, therefore, that pursuant to CS §3-704(b)(2), Holbrook was entitled only to the lesser accrual rate of five good-conduct credits a month.

The circuit court concluded that it was improper for the Division to include the 1999 conviction in the calculus of the relevant term of confinement. It ordered the Division to restore the revoked credits. The Court of Special Appeals affirmed.

The Division appealed to the Court of Appeals, which affirmed.

LAW: When a defendant is convicted of multiple crimes, multiple sentences may result. For purposes of determining the actual period of imprisonment, however, these sentences typically are aggregated into a single “term of confinement,” defined as “the period from the first day of the sentence that begins first through the last day of the sentence that ends last.” CS §3-701.

Diminution credits are credits which can be “earned by inmates to reduce the lengths of their confinements.” See, e.g., Frost v. State, 336 Md. 125, 128 (1994). Once the inmate accumulates “sufficient credits to earn entitlement to release, the inmate is deemed released under ‘mandatory supervision.’” Id.

There are four types of diminution credits: good-conduct, work, educational and special project credits. CS §3-701. Good-conduct credits are different from other diminution credits in that they are deducted “in advance from the inmate’s term of confinement, subject to the inmate’s future good conduct.” now CS §3-704(a).

Prior to Oct. 1, 1992, inmates, upon incarceration, were prospectively awarded five days of good-conduct credits for each month of their sentence, regardless of the nature of their sentence. Art. 27, §700(d)(2).

In 1992, Art. 27, §700 was amended so that now inmates may be awarded ten, rather than five, good-conduct credits per month. See CS §3-701(b)(1)(ii). However, if their term of confinement “includes a consecutive or concurrent sentence for a crime of violence … or a crime of manufacturing, distributing, dispensing, or possessing a controlled dangerous substance,” their credits are limited to five a month. See CS §3-704(b)(2). Only those terms of confinement imposed on or after Oct. 1, 1992, are eligible for the more favorable rate. Md. House of Corr. v. Fields, 348 Md. 245, 262 (1997).

In Fields, the defendant was sentenced for daytime housebreaking and heroin possession in 1988. Fields earned release on mandatory supervision. It was revoked, however, when Fields was convicted and sentenced in 1994 for theft and malicious destruction of property offenses.

The effective date of the 1992 legislative changes notwithstanding, the Division prevented Fields from earning the new rate of ten credits a month against his post-1992 nonviolent, non-drug offenses.

Deeming the phrase “term of confinement” ambiguous, the Court of Appeals found, “[i]n light of the legislative history of the 1992 amendment … [and] the applicability of the rule of lenity,” that not “all sentences that overlap or run consecutively must aggregate for all purposes to a single term of confinement.” Fields, 348 Md. at 267-68.

In Beshears v. Wickes, 349 Md. 1 (1998), Wickes was serving a pre-1992 sentence for rape when he was released on mandatory supervision, only to be re-incarcerated for post-1992 offenses. In denying Wickes the more favorable good-conduct credit rate installed by the 1992 amendment, the Division stressed the fact that Wickes’s pre-1992 sentence was for a crime of violence. It combined Wickes’s pre- and post-1992 sentences into a single term of confinement under the aggregation principle of Art. 27, §700(a). Then, it disallowed Wickes from earning the more favorable rate under the limiting provision in Art. 27 §700(d)(2). Id. at 4.

The Court of Appeals disagreed with the Division, holding that Wickes was entitled to receive the more favorable rate for his post-1992 non-violent, non-drug sentences. Once again, the Court rejected the principle that “‘all sentences that overlap or run consecutively must aggregate for all purposes to a single term of confinement.’” Id. at 9 (quoting Fields, 348 Md. at 267-68).

“Where a defendant is released on mandatory supervision and later commits and is sentenced for a new crime … the new sentence and the old sentence … do not aggregate to form one term of confinement for the purpose of [Art. 27] §700.” Wickes, 349 Md. at 9.

The defendant in Secretary of Public Safety and Correctional Services v. Henderson, 351 Md. 439, 446 (1998), was originally sentenced in 1975 for a conviction of robbery with a deadly weapon. Once paroled, he was convicted and sentenced for, a separate offense, possession of a controlled dangerous substance with intent to distribute. As both his pre-and post-parole-were drug-related, he was not eligible for the ten days a month good conduct credit. Id. at 446. However, if the two ineligible sentences were aggregated, he could be released from prison earlier.

The Court of Appeals concluded, based on the plain meaning of the statute, that the Division should have aggregated Henderson’s sentences into a single term of confinement, leading to the earlier release date. The Court stated that it should have relied upon the legislative history and the rule of lenity, as these “would have dictated the same result in Wickes … [and] Fields and also confined the [disaggregation approach] to those situations in which strict application of the … definition of ‘term of confinement’ would preclude inmates from receiving the benefit of the 1992 [amendment].” Henderson, 351 Md. at 445.

Just two years after Henderson, the Court of Appeals decided Sec’y of Pub. Safety and Corr. Servs. v. Hutchinson, 359 Md. 320, 322 (2000). Hutchinson was in and out of prison multiple times, beginning in 1970. In 1993, he was sentenced for a conviction of possession with intent to distribute heroin. Ultimately, he was released on mandatory supervision. In 1996, he was convicted and sentenced for possession with intent to distribute cocaine.

To fairly implement the legislative intent, the Court of Appeals held that “[p]risoners who receive a new sentence[] for conduct committed while on mandatory supervision should receive, and must be given, good conduct credits on that sentence[] as though there were no existing sentence[].” Id. at 331. “[W]ith respect to the existing sentence,” however, the prisoner “gets no benefit from [good-conduct credits].” Id. Thus, [f]or purposes of applying CS §7-504(b), “the existing sentence[] .. and any new sentence[] … must be considered separately.” Hutchinson, 359 Md. at 330-31.

The Court stated “we subordinate[] the general direction to aggregate multiple sentences into a single term of confinement when to do otherwise would … den[y] inmates the benefit of a law that the General Assembly intended be applicable to them.” Id.

After Hutchinson, the General Assembly recodified CS §7-504, adopting almost verbatim the Court of Appeals’ interpretation of the awarding of good-conduct credits for old and new sentences. See Ch. 485 §1 of the Acts of 2002.

Where a statute mandates that a specific group of persons be given a benefit, but its application deprives that group of persons of the intended benefit, the statute may be unclear or ambiguous in application. That was the situation here. The Legislature mandated that inmates earn ten good-conduct credits a month, so long as their term of confinement did not include other sentences for certain ineligible, disqualifying offenses (those for violent or drug-related crimes).

At best, the Legislature intended that prisoners like Holbrook have their pre-parole and post-parole sentences considered separately, if thereby they may access the more favorable good-conduct credit rate. Indeed, such a construction avoids a nonsensical distinction, does not allow Holbrook to receive credits for more than one term of confinement, and serves to advance the purpose of the statute.

At worst, even if the Legislature did not intend such a result, it injected enough uncertainty into the statutory scheme, with respect to inmates in Holbrook’s situation, to implicate the rule of lenity.

Determining in what instances sentences should be considered separately is a difficult question. However, “[p]risoners who receive a new sentence[] for conduct committed while on mandatory supervision [or, in this case, parole] should receive, and must be given, good conduct credits on that sentence[] as though there were no existing sentence(s).” Hutchinson, 359 Md. at 331. These kinds of prisoners, who are treated as though they had no existing sentences, may earn those good-conduct credits at the more favorable rate, if none of their new sentences disqualifies them.

COMMENTARY: An examination of the jurisprudence revealed little debate about the proper standard of review for an inmate’s habeas corpus challenge to a good-conduct credits decision by the Division.

Pollock v. Patuxent Institution Board of Review, 374 Md. 463 (2003), involved an inmate who filed a habeas challenge to the Patuxent Institution Board of Review’s revocation and subsequent non-renewal of his parole because of a positive urinalysis. After reciting the administrative standards of review, the Court of Appeals upheld ultimately the Board’s decision under the arbitrary and capricious standard of review.

Here, there was some uncertainty as to whether the Division’s revocation of 299 good-conduct credits should be characterized as an administrative decision, legal interpretation, or something else. The parties did not brief this issue, however, presupposing instead that this case presented an agency’s statutory interpretation. Assuming this is a matter of statutory interpretation and that the Division’s decision was, therefore, entitled to some deference, the decision would remain the same.

Family Law

Permanency plan

BOTTOM LINE: The juvenile court did not abuse its discretion in changing a 3-year-old girl’s permanency plan from reunification with her father to “open adoption” because, among other things, her father chose to reside four hours away and failed to visit her despite many opportunities to do so.

CASE: In re Adoption/Guardianship of Cadence B., No. 21, Sept. Term, 2010 (filed Nov. 22, 2010) (Judges Bell, Harrell, Battaglia, Greene, Murphy, ADKINS & Barbera). RecordFax No. 10-1122-01, 21 pages.

FACTS: In 2007, the Charles County Department of Social Services received a complaint that Cadence, four months old, and her seven year-old half brother, John, were being neglected by Cadence’s parents, Mr. B. and Ms. L. After its investigation, the Department filed a non-emergency Child In Need of Assistance (CINA) petition.

In 2001, the Department had removed Mr. B.’s two oldest children from Mr. B.’s care following concerns of lack of supervision of the children, home environment, and parental drug use. Those children were placed into the custody of Mr. B.’s mother, who resides in Maryland.

Mr. B. fathered three other children with Ms. L. and his parental rights to those children were involuntarily terminated in 2008. All three children tested positive at birth for illegal substances, prompting the Department to inquire into their living situation. Each of these investigations produced findings of neglect.

Five months after the Department filed its petition in this case, the juvenile court declared Cadence to be a CINA and placed her in the temporary custody of Ms. L. under an order of protective supervision. Ms. L., however, violated that order, leading the Department to place Cadence in the foster home of Mr. and Mrs. Z., where she has remained.

After Cadence’s four-month birthday, Mr. B. surrendered to Charles County law enforcement after he discovered that there was a warrant for his arrest for writing a bad check. He remained incarcerated for one month until he was extradited to Pennsylvania to satisfy another arrest warrant for welfare fraud.

Following his release from jail in Pennsylvania, Mr. B. chose to remain in that state to live with his new girlfriend and current fiancé, Denise, instead of returning to Maryland where all six of his children reside. His home is currently in Fayette County, Pennsylvania, which is approximately a four hour drive from where Cadence lives in Maryland. He and Denise share a trailer with two full baths, three bedrooms, a kitchen, living room, and laundry room. Mr. B. pays the mortgage and lot fees for the trailer. He has also maintained employment and his court-ordered urinalysis results have consistently been negative.

Mr. B. has had irregular and limited contact with Cadence since she has been in foster care. Between his release from jail in Pennsylvania and the juvenile hearing changing Cadence’s permanency plan, Mr. B. chose to visit her 11 out of 19 months. The Department has indicated to Mr. B. that he could visit Cadence more frequently and that he could arrange visits directly with Ms. Z. It has even provided him with gas vouchers to facilitate more visits, but to no avail. When Mr. B. did visit Cadence, the two interacted well.

As required by Maryland law, the juvenile court has monitored the progress of Cadence’s reunification with Mr. B. through a series of permanency plan review hearings. At the conclusion of the one at issue here, the juvenile court changed the permanency plan from reunification to “open adoption,” allowing the foster family to begin the process of adopting Cadence. The Court of Special Appeals affirmed the juvenile court’s decision.

Mr. B. appealed to the Court of Appeals, which affirmed.

LAW: Mr. B. challenged the juvenile court’s ultimate decision rather than any findings of fact. Thus, the question was whether that court abused its discretion. See In re Yve S., 373 Md. 551 (2003).

In CINA cases where a child had been removed from the family home, a juvenile court is required to conduct “a permanency planning hearing to determine the permanency plan for a child.” CJ §3-823(b). At the hearing, the court must consider the following factors: (i) the child’s ability to be safe and healthy in the home of the child’s parent; (ii) the child’s attachment and emotional ties to the child’s natural parents and siblings; (iii) the child’s emotional attachment to the child’s current caregiver and the caregiver’s family; (iv) the length of time the child has resided with the current caregiver; (v) the potential emotional, developmental, and educational harm to the child if moved from the child’s current placement; and (vi) the potential harm to the child by remaining in State custody for an excessive period of time. FL §5-525(f)(1).

Reunification with the parent is presumptively the better option, and, absent compelling circumstances to the contrary, the plan should be to work towards reunification as it is presumed that “it is in the best interest of the children to remain in the care and custody of their [biological] parent[].” In re Adoption/Guardianship of Rashawn H. and Tyrese H., 402 Md. 477, 495 (2007). Nevertheless, that course must be “consistent with the best interests of the child[.]” CJ §3-823(e)(1)(i).

Additionally, where there is a proven history of abuse or neglect, “the proper issue before the hearing judge [is] whether there was sufficient evidence that further abuse or neglect [is] unlikely.” Yves, 373 Md. at 593; see also FL §9-101(b).

In In re Adoption/Guardianship of Alonza D., JR. and Shaydon S., 412 Md. 442 (2010), the juvenile court terminated a father’s parental rights, even after finding him to be a “fit parent,” because the children had spent six years — a majority of their lives — with their foster family. See id. at 444. The juvenile court criticized the father for his failure to timely remedy his housing situation so that the children could be returned to him. Yet, it also recognized that the father had acquired appropriate housing and had satisfied other Department requests by the time of the hearing. The court simply considered these efforts to be too late. Id. at 452-53.

The Court of Appeals vacated the juvenile court’s decision, explaining that the court incorrectly “focused primarily on the length of time [the children] had been in foster care and the apparent bond that had developed between [the foster mother] and the children” without making any findings as to “how a continued parental relationship would have caused a detriment to the children[.]” Id. at 468.

Similarly, in McDermott v. Dougherty, 385 Md. 320 (2005), the circuit court awarded custody of the son to the maternal grandparents because the father’s career as a merchant marine required him to spend months away at sea, resulting in what the court considered to be an unstable living situation that was contrary to the best interests of the child. Id. at 324.

The Court of Appeals reversed, holding that “under circumstances in which there is no finding of parental unfitness, the requirements of a parent’s employment, such that he is required to be away at sea, or otherwise appropriately absent from the State for a period of time, and for which time he or she made appropriate arrangements for the care of the child, do not constitute ‘extraordinary or exceptional circumstances’ to support the awarding of custody to a third party.” Id. at 325-26.

The father in Alonza had already been living in a home plagued with lead and could only correct the situation by moving to a new home or paying for lead abatement. The father in McDermott was very proactive, even flying his son and his son’s maternal grandparents “to Texas … to spend a week aboard [the] ship [where he was stationed] to celebrate [his son’s] birthday.” McDermott, 385 Md. at 329 n. 6.

Here, by contrast, Mr. B. chose to absent himself from Cadence’s life. He had been living in Maryland prior to his incarceration, yet he moved into a home in Pennsylvania upon his release despite his family, five children, and Cadence being in Maryland.

In addition to considering the length of time that Cadence had been in the care and custody of the Z. family, see FL §5-525(f)(1)(iv), the juvenile court also addressed the remaining statutory factors. The court found that Cadence could not be safely returned home at this time, and to do so would be contrary to her welfare as her parents are unable to properly care for her. See FL §5-525(f)(1)(i).

The juvenile court also considered Cadence’s attachment to both of the parties, finding that Mr. B. was more in the position of a beloved uncle, than a father and that she considered Mr. Z. to be her father. See FL §5-525(f)(1)(ii). Furthermore, the Z.s had provided Cadence “a safe and stable and loving home” and Cadence had bonded to the family. See FL §5-525(f)(1)(iii). The court also found that separating Cadence from the Z.s would be traumatic and detrimental to her well-being. See FL §5-525(f)(1)(v).

Finally, in considering “the potential harm to the child by remaining in State custody for an excessive period of time”, FL §5-525(f)(1)(vi), the court found that reunification was unlikely to occur in the near future and, unless the court changed the permanency plan to open adoption, Cadence would almost certainly remain in foster care limbo for an excessive period of time, one that would be detrimental to her best interests. See In re Adoption/Guardianship of Victor A., 157 Md.App. 412, 427-28 (2004).

Thus, the juvenile court did not abuse its discretion when it changed Cadence’s permanency plan to open adoption.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: Mr. B. argued that his efforts for reunification were improperly thwarted by the Interstate Compact on the Placement of Children (ICPC) because of the Fayette County Children and Youth Services’ refusal to certify his home as placement resource for Cadence.

FL §5-609, the law governing the ICPC, states: “This compact shall not apply to: (1) the sending or bringing of a child into a receiving state by the child’s parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or guardian and leaving the child with any such relative or non-agency guardian in the receiving state.”

Mr. B.’s interpretation, however, was inconsistent with the plain language of the statute. Cadence would have been sent to Pennsylvania by the Department, a party not enumerated in FL §5-609. Thus, the ICPC, with its jurisdictional limitations on the Department, clearly applies to Cadence’s placement in Pennsylvania. Furthermore, “the ICPC was not designed to protect the rights of birth parents; instead, it is designed to ensure that placements for children across state lines are safe.” In re Adoption/Guardianship No. 3598, 347 Md. 295, 317-18 (1997).

PRACTICE TIPS: Maryland regulations permit the Department of Social Services to “explore” open adoption when “(1) [o]lder children who are placed in out-of-home care know who their birth parents are and have already formed significant emotional attachments to them; and (2)[i]t is otherwise appropriate and in the child’s best interest not to sever all ties with the child’s birth parents or relatives.” MD.CODE REGS. 07.02.12.12-1 (2010).

Torts

Asbestos

BOTTOM LINE: Defendants were entitled to summary judgment where the plaintiffs’ evidence was insufficient to generate a jury issue on the question of whether any of the defendants’ products were used at the specific site where the decedent actually worked.

CASE: Reiter v. Pneumo Abex. LLC, No. 72, Sept. Term, 2008 (filed Nov. 19, 2010) (Judges Bell, Harrell, Battaglia, Greene, MURPHY, Rodowsky (retired, specially assigned) & Wilner (retired, specially assigned)). RecordFax No. 10-1119-20, 22 pages.

FACTS: The widows of steelworkers who were employed by the Bethlehem Steel Corporation at its Sparrows Point facility (Facility) sued Eaton Corporation (successor in interest to Cutler-Hammer, Inc.), Pneumo Abex LLC and Square D Company (collectively, the Suppliers), asserting that their husbands died from lung cancer caused by exposure to the asbestos contained in those corporations’ products which were supplied to the Facility.

Decedent William Johnson worked as a laborer in the slab yard from 1960 to 1972. Square D and Cutler-Hammer were implicated in his suit. Johnson’s only fact-specific witness was Walter Sperl, who testified that the only location at which Johnson worked with any regularity was the area of the slab yard adjacent to the 56-Inch Hot Strip Mill. This area was the size of nearly three football fields.

Decedent William Reiter worked in the tin mill from 1947 to 1990. Only Square D was implicated in his suit. The only fact-specific witness deposed in Reiter’s case was Lloyd Martin, who began working with Reiter at the mill sometime in 1960. According to Martin, Reiter never worked at any location of the tin mill other than the coil prep line. The mill itself accounted for nearly 480 acres of the entire facility. The coil prep line accounted for 50 square feet of this area.

Decedent Harold Williams worked as a laborer at the facility from 1964 to 1993. Square D, Abex, and Cutler Hammer were all implicated in his suit. The only witness in Williams’ suit was Robert Freeman, who testified at his deposition that beginning in the early 1960s he worked with Williams in the scrap yard. By the mid 1960s both men were assigned to work at the “finishing end” of the Number 3 Rod and Wire Mill. Williams’ job duties were performed exclusively at the finishing end, an area the size of three football fields.

There was also testimony that Cutler-Hammer and Square D brake linings were used on the crane brakes throughout the slab yard during this time. Furthermore, there was testimony that Square D brake linings were used in the tin mill during this period of time and that Westinghouse (Pneumo Abex) crane brake linings, Square D brake linings, and Cutler-Hammer brake linings were used in the three rod & wire mills throughout the period of time.

The circuit court granted the Suppliers’ motions for summary judgment, and entered judgment against each of the widows. The Court of Special Appeals affirmed.

The widows appealed to the Court of Appeals, which affirmed.

LAW: “Whether the exposure of any given bystander to any particular supplier’s product will be legally sufficient to permit a finding of substantial-factor causation is fact specific to each case.” Eagle-Picher Industries v. Balbos, 326 Md. 179, 210 (1992). The finding involves “the interrelationship between the use of a defendant’s product at the workplace and the activities of the plaintiff at the workplace. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product.” Id. at 210.

In ACandS v. Godwin, 340 Md. 334 (1995), the plaintiff alleged that his asbestosis was caused by exposure to block and pipecovering insulation called “Unibestos” when he walked past several large furnaces five to six times per shift on a daily basis. The evidence showed that, nearly every day, at least one of the furnaces would need to be relined with new insulation. Under these circumstances, although the plaintiff never “worked hands on” with the insulation, the Court of Appeals found that the evidence sufficiently supported a finding that exposure to Unibestos was a substantial cause of the plaintiff’s asbestosis. Id. at 353.

The “specific site” where each decedent worked was the limited area in the Facility where the decedent was located on a day-to-day to basis. While a “boiler room” or an “engine room” may constitute a specific site, a factory the size of an airplane hanger does not.

Robertson v. Allied Signal Inc., 914 F.2d 360, 367-68 (3d Cir.1990), presented the claims of workers at a tire manufacturing facility where the principal activity took place in a building three levels high with a total area of 862,000 square feet. One of the defendants, Allied Signal, made the asbestos brakes used on certain cutting machines in the stock-cutting area. The trial court had granted summary judgment for Allied Signal. That judgment was reversed as to one plaintiff whose job was to run the mill that supplied the cutters, so that that plaintiff worked in proximity to the cutters for seven years. Judgment for Allied Signal was affirmed as to the other plaintiffs who worked elsewhere in the building.

In Rotondo v. Keene Corp., 956 F.2d 435 (3d Cir. 1992), Rotondo was a welder at the Philadelphia Naval Shipyard in 1942-43. The defendant manufactured an asbestos pipe covering called “Ehret.” The 3rd Circuit stated “a plaintiff must establish more than the presence of asbestos in the workplace. In particular, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. The relevant evidence is the frequency of the use of the product and the regularity of the plaintiff’s employment in proximity thereto.” Id. at 439.

Those requirements were satisfied in Rotondo because the testimony did not merely place Ehret pipecovering somewhere in a large facility, but rather placed it in the specific area (i.e., the boiler room) in which Rotondo worked. In addition, the evidence established that Rotondo worked in the boiler room at least 2 days a week for at least 3 to 4 months and that the pipecoverers used the Ehret product fifty percent of the time. Id. at 442.

Applying these holdings to the case at bar, Johnson’s specific work site was the area of the slab yard adjacent to the 56-Inch Hot Strip Mill (still around three football fields in length); Reiter’s specific work site was the 50 square feet of the tin mill reserved for the coil prep line; and Williams’s site was part of the Number 3 Rod Mill (also nearly 3 football fields in length).

Reiter worked on a daily basis in the 50 square feet of the tin mill reserved for the coil prep line. His plaintiff-specific witness testified that overhead cranes were used to move coils in the area where he and Reiter worked, and that the cranes would generate dust that they would breathe in. This testimony, however, did not establish that a Square D product was used on the cranes at that specific site. Evidence that some Square D products were used somewhere in the 480-acre tin mill did not establish that a Square-D product was on the crane that was in the 50 square feet where Reiter “actually worked.”

Williams’ witness testified that there were two overhead cranes where they worked. Dust would fall and he and Williams were both close enough to breathe in the dust. No witness, however, could identify which corporation’s asbestos product was used there.

Johnson’s witness testified that he saw crane mechanics work on the brakes, that airhoses would be used to clean off the brakes, and that both he and Mr. Johnson would be in the area when this work was done. There were, however, at least six different cranes located in the slab yard.

Under these circumstances, the evidence was insufficient to establish that Cutler-Hammer or Square D products were used on the cranes located at or near the “specific site” where Johnson “actually worked” (the area of the slab yard next to the 56 Inch Hot Strip Mill).

Thus, although the widows’ evidence was sufficient to generate a jury issue on the question of whether each decedent was exposed to asbestos dust at the specific site where they actually worked, the evidence was insufficient to generate a jury issue on the question of whether any of the Suppliers’ products were used at those sites. Thus, the Suppliers were entitled to summary judgment.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: The circuit court denied the Suppliers’ motions for summary judgment with respect to those plaintiffs who presented deposition testimony that was legally sufficient to establish both that (1) they were close enough to the dust emitted from the crane brakes, and (2) the Supplier’s products were used at the “specific site” or sites where each actually worked.

James Crudup was a laborer and electrician between 1952 and 1992, whose work involved cleaning up dust and debris throughout the mills and working in close proximity to the electricians and millwrights. There was evidence that, on a weekly basis, Mr. Crudup used an air hose to blow out the brakes, he was in the immediate area when the brakes were blown out and dust accumulated in the brake systems was released into the atmosphere.

Crudup’s witness recalled General Electric and Westinghouse as names of the manufacturers of the electrical equipment. He further testified that he first started noticing the General Electric name on the equipment while working around the mills. Because the record showed that Abex products went into Westinghouse motors, a reasonable trier of fact could reasonably infer that Crudup was exposed to an asbestos product supplied by Abex.

Plaintiff Eddie Hawkes was a laborer between 1946 and 1975 who worked inside and outside the crane themselves. Hawkes testified during his deposition that the brake shoes were stamped with the name Mark, Square D, or Cutler-Hammer.

Workers’ Compensation

Calculation of benefits

BOTTOM LINE: Under the Workers’ Compensation Act, an injured employee’s permanent partial disability benefits were properly “capped” by the State average weekly wage in effect on the day the injury occurred.

CASE: Sanchez v. Potomac Abatement, Inc., No. 65, Sept. Term, 2009 (filed Nov. 19, 2010) (Judges Bell, Harrell, Battaglia, Greene, MURPHY, Adkins & Barbera). RecordFax No. 10-1119-21, 16 pages.

FACTS: In September 1998, Edy Sanchez suffered an injury in the course of his employment with the Potomac Abatement, Inc. Eight years later, on Aug. 3, 2006, the Workers’ Compensation Commission awarded Sanchez compensation for a temporary total disability (TTD), to be paid retroactively for the period of March 4, 1999, to Jan. 13, 2000. The Commission also awarded Sanchez compensation for a permanent partial disability (PPD), to be paid for a period beginning on Jan. 14, 2000.

With respect to the PPD award, the Commission calculated that Sanchez was entitled to 150 weekly payments, qualifying him as a Tier 2 PPD claimant. As a Tier 2 PPD claimant, Sanchez would be entitled to the lesser of two thirds of his average weekly wage AWW and one third of the state average weekly wage (SAWW). See LE §9-629. One third of the SAWW was the lesser, and therefore applicable, amount. The Commission applied the value of the SAWW for the year when Sanchez was injured — $573 for 1998 — and calculated that Sanchez was entitled to weekly payments of one third of that amount, i.e., $191.

Sanchez filed a petition for judicial review in the circuit court, requesting a jury trial. Sanchez then filed a motion for partial summary judgment, arguing that the Commission should have solely used the SAWW for the year 2000, the year that his right to the PPD award commenced. The circuit court denied the motion. The Court of Special Appeals affirmed.

Sanchez appealed to the Court of Appeals, which affirmed,

LAW: Each year the Department of Labor, Licensing, and Regulation determines the “State Average Weekly Wage” (SAWW) as required by LE §9-603. “The higher the AWW, the higher the benefits the claimant receives up to any statutory caps in effect for the year in which the injury occurred.” Gilbert, Maryland Workers’ Compensation Handbook §9.06.

Sanchez was awarded 185 weeks of benefits under LE §9-629. According to Sanchez, however, because LE §9-629 does not expressly state which year’s SAWW should be used to determine the cap on his benefits that ambiguity should be resolved in his favor.

The SAWW of the year of the accidental injury controls the amount of a PPD award. Marshall v. Univ. of Md. Med. Sys. Corp., 161 Md.App. 379, 386 (2005). “The general rule in workers’ compensation benefit cases is that the date of injury controls for determining compensation benefits.” Id. at 96. The date of injury is considered to be the date of the accident, not the date on which the resulting disability manifests itself. Id. at 99.

The statutory basis of the general rule is LE §9-601, which “fixe[s] the compensation rate as of the time of the accidental injury.” Baltimore County v. Fleming, 113 Md.App. 254, 258 (1996). There has been legislative acquiescence in the Commission’s consistent practice of using the SAWW of the year of injury ever since the General Assembly first directed the Commission to cap awards using the SAWW in 1975. “A long-standing administrative interpretation is particularly persuasive … when the administrative interpretation was established at the same time as the legislative enactment and continued uniformly thereafter. In a like vein, the consistent construction by an administrative agency responsible for administering a statute, particularly where the administrative interpretation has been made known to the legislature in various annual reports of the agency, as in the present case, is entitled to considerable weight.” Falik v. Prince George’s Hosp. & Med. Ctr., 322 Md. 409 (1991).

LE §§9-628-9-630 sets forth a three tier system for PPD benefits. Each depends on the number of weeks compensation is awarded. See Marshall, 161 Md.App. at 383-86. Furthermore, compensation for second and third tier benefits cannot exceed a set percentage of the SAWW. See LE §§9-629, 9-630. The SAWW, in turn, is calculated on a yearly basis by the Department of Labor, Licensing, and Regulation. See LE §9-603(a). See Marshall, 161 Md.App. at 383-86. Finally, LE §9-604(a) requires the Commission to “compute all compensation awarded under this title in accordance with the applicable schedule in this subtitle.”

Construing the above sections together, the Legislature intended that PPD benefits be awarded at rates applicable at the time of the accidental injury. See Marshall, 161 Md.App. at 383-86.

Sanchez argued that his interpretation of LE §9-629 was consistent with Cline v. Mayor and City Council of Baltimore, 13 Md.App. 337 (1971). In Cline, Appellant’s husband sustained an accidental injury at his place of employment on in April 1967. In June 1967, Appellant’s husband died from his injury. On June 1, 1967, the day before his death, the statute was amended to raise the maximum death benefits that a dependent could receive as a result of a death caused by an on-the-job accidental injury.

The court held that the statute in effect on the date of death is the applicable statute when the death is caused by the initial accidental injury because the survivor’s benefits vest on the date of death. Id. at 340-41. The court first pointed to a distinction present in the relevant statute. According to the statute, dependents may receive benefits under the following two scenarios: (1) when the employee dies from a cause unrelated to the compensable injury and there is a remaining award based on permanent total or permanent partial disability compensation; or (2) when the employee dies as a result of the compensable injury and death occurs within five years of the injury. See id. at 340.

According to the court, in the first scenario, the benefit belongs to the employee, and “those who take, in the event of his death, take under him, and not independently.” Id. The dependent’s right to the benefits is governed by the statute in effect at the time of the injury. Id.

In the second scenario, “although the survivor’s right to death benefits arises out of the compensable injury, it is the employee’s death itself which is the compensable event, and the right of the surviving dependents to death benefits is separate and independent of the injured employee’s rights and does not depend upon whether compensation was paid to the injured workman during his lifetime.” Id. at 340-41. Thus, the survivor’s claim for benefits vests when the employee dies and the employee’s claim for benefits vests at the time of the injury.

The reasoning of the Cline court demonstrated that, in determining benefits for employees who suffer accidental injuries, it is the date of the injury that controls. Id. at 100-101.

As of September 1998, the date of Sanchez’s injury, the payment basis then in effect incorporated that year’s SAWW value, $573. Nothing in the law at that time entitled Sanchez to the benefit of a later SAWW value. Thus, the Commission was correct to apply the 1998 SAWW to Sanchez’s claim.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: The Court of Appeals stated: “It has been established that the date of injury for determining benefits for an occupational disease is the date of disablement and the date of determination for accidental injuries is the date of occurrence of the injury. This difference in analysis is based upon the fundamental differences in definition between an occupational disease and an accidental injury.” Waters v. Pleasant Manor Nursing Home, 361 Md. 82 (2000),

“[T]he defining difference between accidental injury and occupational disease is that the cause of the former is unusual or unexpected and the cause of the latter is usual and a risk inherent to the nature of employment.” Luby Chevrolet v. Gerst, 112 Md.App. 177, 191 (1996). In addition, an occupational disease often develops over time and will manifest itself at some point after the encounter with its causation. See id. at 193.

The Workers’ Compensation Act treats accidental injuries differently from occupational diseases. The significant difference is that for an occupational disease to be compensable under the Act, “it must cause some disablement.” Id. at 192-93. For an accidental injury to be compensable, however, no disability is required; all that is required is the date of occurrence. See id. at 193.

“[T]he date of disablement in an occupational disease case serves the same purpose as the date of occurrence in an accidental injury case.” Id. It is necessary to fix the date in such a manner so as “to limit proof of causation problems and potential limitation problems.” Id. at 193. See also Waters, 361 Md. at 98.