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Opinions-Maryland Court of Special Appeals: 1/31/11

Civil Procedure
Discovery sanctions
BOTTOM LINE: Where the plaintiff’s counsel’s answers to interrogatories did not comply with Rule 2-402, the trial court did not abuse its discretion in imposing sanctions and excluding the testimony of plaintiff’s expert witnesses.
CASE: Logan v. LSP Marketing Corporation, No. 2833, Sept. Term, 2009 (filed Dec. 29, 2010) (Judges Meredith, WRIGHT, & Moylan (retired, specially assigned)). RecordFax No. 10-1229-03, 20 pages.
FACTS: On March 22, 2004, Jamal Logan filed suit in the circuit court against 22 defendants for lead paint poisoning, including LSP Marketing Corporation and Basilio Lachica (collectively, LSP).
LSP served Logan interrogatories on July 30, 2004. Interrogatory No. 22 asked Logan to identify all persons he expected to call as expert witnesses at trial and for each such expert to state his qualifications, the subject matter on which the expert is expected to testify, a summary of the grounds for each opinion, and state the terms of the expert’s compensation. Logan was also to attach all written reports of such experts concerning his/her findings and opinions.
Logan was required to respond to interrogatories by Nov. 6, 2004. When, after two requests for the responses by LSP’s counsel Logan failed to respond, LSP filed a motion to dismiss and/or compel Logan’s overdue discovery responses.
On Dec. 16, 2004, Logan produced answers to LSP’s interrogatories. In response to Interrogatory No. 22, Logan provided a list of 16 potential experts, 10 of whom were located out-of-state, along with their addresses and the subject matter on which each expert was expected to testify. Logan’s answer did not include any of the experts’ qualifications, a list of publications, a summary of the grounds for each opinion, or the terms of compensation.
Logan filed an opposition to LSP’s motion to dismiss and/or compel arguing that it was moot because provided responses. However, because Logan’s answer to Interrogatory No. 22 was not complete, LSP sought dismissal of Logan’s complaint or, in the alternative, an order compelling him to provide executed answers to interrogatories. The court granted LSP’s motion to compel, requiring Logan to provide his experts’ findings and opinions pursuant to Rule 2-402(f) and/or reports within 20 days from the date of the order.
On Feb. 23, 2005, Logan produced revised and supplemental answers to LSP’s interrogatories. In response to Interrogatory No. 22, Logan deleted two of the previously named experts. Again, however, Logan failed to include the substance of the experts’ findings.
LSP filed a motion for sanctions, seeking dismissal of the action with prejudice or, in the alternative, exclusion of all of Logan’s experts. Without holding a hearing, the court denied LSP’s request for dismissal, but granted the motion for sanctions by excluding all but one of Logan’s experts. Logan filed a motion to revise, which was denied.
The case proceeded to trial, at which time Logan again requested reconsideration of the court’s order. The court denied Logan’s request for reconsideration and granted summary judgment as to all claims.
Logan appealed to the Court of Special Appeals, which affirmed.
LAW: Rule 2-311(f) requires a trial judge to hold a hearing only if its decision would be dispositive of a claim or defense. Shelton v. Kirson, 119 Md.App. 325, 329 (1998). “For a decision to be deemed dispositive of a claim or defense within the contemplation of Rule 2-311(f), it must actually and formally dispose of the claim or defense. It is not enough to argue that it is the functional equivalent of a dispositive decision or that it lays the inevitable predicate for such a decision.” Id. at 330.
In Shelton, the circuit court granted appellee’s motion to preclude testimony by the late-named experts because of inexcusable non-compliance with the time limits set for discovery. Id. at 327-38. The circuit court then granted summary judgment in favor of appellee based on the lack of sufficient evidence as a result of the rulings with respect to discovery.
The Court of Special Appeals affirmed, holding: “The dispositive action in this case was the granting of summary judgment in favor of the appellee. Earlier discovery rulings have present pertinence only to the extent to which they may have affected the granting of summary judgment. The discovery order precluding the medical experts demonstrably had no such effect. The testimony of the experts, at best, would have established that the minor plaintiff suffered from lead poisoning. The absence of any proof in that regard was not the basis for the granting of summary judgment.” Id. at 328.
Likewise, here, the dispositive action was the granting of summary judgment in favor of LSP. Although the grant of summary judgment may have resulted from earlier discovery rulings, the court did not directly dismiss the case when it granted LSP’s motion for sanctions. Therefore, the court did not abuse its discretion by ruling on the motion without holding a hearing.
Under former Rule 2-402(f)(1)(A), now codified at Rule 2-402(g)(1)(A), “[a] party by interrogatories may require any other party to identify each person … whom the other party expects to call as an expert witness at trial; … to state the substance of the findings and the opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and to produce any written report made by the expert concerning those findings and opinions.”
“When there is a claim of failure of discovery, the circuit court has broad discretion to fashion a remedy based on a party’s failure to abide by the rules of discovery. Once a trial court resolves a discovery dispute, our review of that resolution is ‘quite narrow; appellate courts are reluctant to second-guess the decision of a trial judge to impose sanctions for a failure of discovery. Accordingly, we may not reverse unless we find an abuse of discretion.’“ Gallagher Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., — Md.App. —-, No. 356, Sept. Term, 2009, slip op. at 10-13 (filed Oct. 28, 2010) (quoting Warehime v. Dell, 124 Md.App. 31, 43 (1998)).
In Rodriguez v. Clarke, 400 Md. 39 (2007), the respondents provided “sparse preliminary expert witness designation” because they did not state “the substance of [the experts’] findings and opinions, nor a summary of the grounds for each opinion, [they] also did not produce any written report made by the experts concerning their findings and opinions, as required by Rule 2-402(f)(1).” Id.
Also “[s]ix of the ten expert witnesses identified by the [respondents] were out-of-state witnesses,” and their deposition “can be an onerous and costly process and is one which easily can be obviated through good faith efforts to communicate available deposition dates.” Id. at 68-69.
Here, similarly, despite several requests for discovery from LSP’s counsel, Logan failed to respond, prompting LSP to call Logan’s counsel on two occasions. After receiving no response, LSP filed a motion to dismiss and/or compel. When Logan did respond, his answers did not comply with Rule 2-402 because he failed to include the substance of the experts’ findings and opinions, as well as a summary of the grounds for each expert’s opinion.
Sanctions are warranted where a party provides “sparse expert witness designation, elusive answers to interrogatories, and fail[s] to communicate.” Rodriguez, 400 Md. at 69-70. Therefore, the trial court did not abuse its discretion in ruling that Logan’s expert designations were inadequate and duplicative, and then imposing sanctions by striking these experts from testifying at trial.
Accordingly, the judgment of the circuit court was affirmed.
COMMENTARY: When a party moves for summary judgment, the circuit court may grant that motion if it determines that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 2-501(f); see also Zurich Am. Ins. Co. v. Uninsured Employers’ Fund, Md.App. —-, No. 1509, Sept. Term, 2009, slip op. at 10 (filed Nov. 3, 2010).
At trial, Logan, for a third time, requested reconsideration of the court’s order. After hearing from counsel, the court denied Logan’s motion, based on the procedural posture leading up to trial and the sanctions imposed upon Logan. Logan’s counsel then stated that he could not “present a prima facie case” but would be willing to proceed and pick a jury to “protect [his] client’s interest.”
The court acted properly in granting LSP’s motion for sanctions. It then followed that the court also acted properly in imposing those sanctions during trial. Because Logan conceded that he could not present a prima facie case, the court did not err in finding that there existed no dispute as to material fact and that summary judgment was appropriate.
PRACTICE TIPS: “Like the imposition of costs, attorney’s fees, and contempt sanctions, the imposition of a…sanction is not a judgment on the merits of an action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Such a determination may be made after the principal suit has been terminated.” Mullaney v. Aude, 126 Md.App. 639, 652 (1999).
Environmental Law
Motion to intervene

BOTTOM LINE: Appellants failed to establish standing to intervene in an action against the operator of power plants for alleged violations of the Clean Water Act because their interests were not different and distinct from the interests of the general public.
CASE: Environmental Integrity Project v. Mirant Ash Management, LLC, No. 1779, Sept. Term, 2009 (filed Dec. 29, 2010) (Judges Woodward, MATRICCIANI & Moylan (retired, specially assigned)). RecordFax No. 10-1229-01, 18 pages.
FACTS: Mirant Maryland Ash Management, LLC, and Mirant Mid-Atlantic, LLC (collectively, Mirant), leases and operates two power plants in southern Maryland, including the Morgantown Generation Station.
The Morgantown plant generates electricity through the combustion of coal, which produces waste byproducts (CCBs), including fly ash. In order to dispose of the fly ash and other waste products created by their plants, Mirant owns and operate the Faulkner Fly Ash Storage Facility, previously owned and operated by the Potomac Electric Power Company (PEPCO).
Environmental Integrity Project (EIP) is a nonprofit organization based in Washington that advocates for the enforcement of environmental laws, focusing on coal-burning plants, refineries, and factory farms.
Likewise, the Potomac Riverkeeper (PRK) is a nonprofit organization that advocates for the creation of new laws and the enforcement of existing state and federal laws affecting the Potomac River watershed. The five individual citizens involved in the instant litigation were persons whose homes are located within 10 to 15 miles of the Faulkner facility, on either the Wicomico River or Potomac River.
On Dec. 18, 2000, the Maryland Department of the Environment (MDE) and PEPCO entered into a complaint and consent order, through which the parties agreed that PEPCO, and subsequently Mirant, would be responsible for installing a water treatment system to address discharges from the fly ash material to surface water and groundwater.
On May 29, 2008, MDE sued Mirant seeking injunctive relief and civil penalties pursuant to EN §9-339 and §9-342. EIP, PRK and the individual citizens filed a motion to intervene as a matter of right, pursuant to Rule 2-214(a), or in the alternative, for permissive intervention pursuant to Rule 2-214(b). The circuit court denied the motion to intervene.
EIP, PRK, and the individual citizens appealed to the Court of Special Appeals, which affirmed.
LAW: Rule 2-214(a) governs intervention as a matter of right, and provides that “a person shall be permitted to intervene in an action: (1) when the person has an unconditional right to intervene as a matter of law; or (2) when the person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties.”
Recognizing that previous Maryland case law did not explicitly articulate the appropriate standards for appellate review applicable to motions to intervene, the Court of Appeals recently adopted the standards articulated in federal intervention guidelines. See Maryland-National Capital Park & Planning Comm’n v. Town of Wash. Grove, 408 Md. 37, 65 (2009). The denial of a motion to intervene as a matter of right, premised on any ground other than untimeliness, is reviewed de novo.
The four-part test for determining whether a party qualifies for intervention as a matter of right is: (1) the application for intervention must be timely; (2) the applicant must have an interest in the subject matter of the action; (3) disposition of the action would at least potentially impair the applicant’s ability to protect its interest; and (4) the applicant’s interest must be inadequately represented by existing parties. Hartford Ins. Co. v. Birdsong, 69 Md.App. 615, 622 (1987).
The motion to intervene here was timely. “‘[W]hether the applicant for intervention has an interest which it is essential to protect may be equated with the requirement…that he is or may be bound by a judgment in the action.’ It is not enough for a person seeking intervention to base its motion on concern that some future action in the proceedings may affect its interests adversely.’” Maryland-National Capital Park & Planning Comm’n, 408 Md. at 75 (quoting Citizens Coordinating Committee on Friendship Heights, Inc. v. TKU Associates, 276 Md. 705, 712 (1976)).
In Duckworth v. Deane, 393 Md. 524 (2006), the Court of Appeals held that in order to demonstrate an interest sufficient for intervention, “the disposition of the action must ‘directly’ impact upon the applicant’s interest,” and that “‘concerns [which] are indirect, remote, and speculative’ are insufficient.” Id. at 539-40.
In addition, “for intervention under Rule 2-214(a)(2), the applicant’s interest must be such that the applicant has standing to be a party … [which] ordinarily requires that the outcome of the lawsuit might cause the person to ‘suffer [ ] some kind of special damage … differing in character and kind from that suffered by the general public.’” Id.
The Court of Appeals has also held, in a slightly different context, that property rights alone do not give a party standing. In Shore Acres Improv. Asso. v. Anne Arundel County Board of Appeals, 251 Md. 310, 317 (1968), the Court held that the plaintiff community association did not have standing to appeal a zoning board decision, where the association’s hall and recreation area were located 3,760 feet measured in a straight line, and approximately 9,400 feet by road, from the property in question. In so holding, the Court affirmed the circuit court’s judgment that “due to the distance of [the association’s] property from [the re-zoned] tract,” the association was not “especially affected in a way different from that suffered by the public generally.” Id.
In Sugarloaf Citizens Ass’n v. MDE, 344 Md. 271 (1996), on the other hand, the Court of Appeals held that a party who could demonstrate “that much higher levels of toxic substances would fall on [their] farm … than would fall on properties farther away from the site” did have standing as “an aggrieved party” to challenge MDE’s issuance of permits for the construction of solid waste incinerators. Id. at 299-300.
Here, the interests claimed by EIG and PRK did not appear to be different than and distinct from the interests of the general public in protecting the environment, restoring and safeguarding the natural habitats of the Wicomico and Potomac rivers, and enforcing state environmental laws. The individuals, likewise, did not assert that they were personally affected in some way that is different from any other residents living within a ten to fifteen mile radius of the plant. Therefore, their interests were insufficient to give them standing to intervene under Rule 2-214(a) and the case law cited above.
EIG, PRK and the individuals contended that their interests are not adequately represented by the existing parties because they are adverse to, distinct from, and much narrower in scope that the interests of MDE.
In Maryland Radiological Soc’y, Inc. v. Health Servs. Cost Review Comm’n, 285 Md. 383, (1979), the Court of Appeals fashioned a three-prong test for an “interest analysis” to determine whether or not there was adequate representation of a movant’s interest: “(1) if the movant’s interest is not represented or advocated to any degree by an existing party, or if the existing parties all have interests that are adverse to those of the movant, the movant should be permitted to intervene; (2) if the movant’s interest is similar, but not identical to that of the existing party, a discriminating judgment is required on the circumstances of the particular case, but the movant ordinarily should be allowed to intervene unless it is clear that the party having a similar interest will provide adequate representation; and (3) if the interest of an existing party and the movant are identical, or if an existing party is charged by law with representing a movant’s interest, a compelling showing should be required to demonstrate why this representation is not adequate.” Id. at 390.
Ultimately, the goals of ensuring the water quality of the Wicomico and Potomac rivers, safeguarding the viability of the surrounding wildlife habitats, and generally protecting the environment are largely similar and are not adverse. A party is adequately represented, even if its interests are not precisely the same as the parties already in the litigation when, “as far as the unresolved portion of [the] litigation is concerned, there is every indication of a compatibility of objective, and of efforts to obtain that goal.” Maryland Radiological Soc., 285 Md. at 392.
Moreover, MDE is charged by law with protecting the very environmental interests claimed here. See EN §9-339 and §9-342, EIG, PRK and the individuals failed to establish interests that are different than those of the general public. Therefore, their interests are adequately protected by MDE in this litigation.
Accordingly, the judgment of the circuit court was affirmed.
COMMENTARY: Under Rule 2-214(b), which governs permissive intervention: “a person may be permitted to intervene in an action when the person’s claim or defense has a question of law or fact in common with the action….In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”
The claims involved here arose out of Title 9, Subtitle 3 of the Environmental Article, which authorizes MDE — and only MDE — to institute civil actions against violators of the subtitle’s clean water laws.
In addition, the burden was on EIG, PRK and the individuals to establish an abuse of discretion by the circuit court in not granting intervention. They failed to meet this burden, because they have not shown that the circuit court’s denial of their motion for permissive intervention was “clearly against the logic and effect of facts and inferences before the court,” or that it was “violative of fact and logic.” See In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997).
Therefore, the circuit court did not abuse its discretion in denying the motion for permissive intervention.
PRACTICE TIPS: The Clean Water Act, 33 U.S.C. §1365(b)(1)(B), prohibits independent citizen suits where a state “has commenced and is diligently pursuing a civil or criminal action … to require compliance,” but also provides an “automatic intervention” provision which states that “in any such action in a court of the United States any citizen may intervene as a matter of right,” a provision not included in either EN §9-339 or §9-342.
Hearsay exception

BOTTOM LINE: The victim’s statement to a police officer a month prior to the shooting was inadmissible because it was too remote in time and was not reliable circumstantial evidence of the victim’s state of mind when he was shot.
CASE: Smith v. State, No. 1178, Sept. Term, 2008 (filed Dec. 28, 2010) (Judges Eyler, J., Matricciani & THIEME, JR. (retired specially assigned)). RecordFax No. 12-1228-00, 75 pages.
FACTS: Michael McQueen died of a gunshot wound to the head in the early morning hours of Sept. 26, 2006. His roommate, Gary Smith, was the only one present at the time of the shooting. Smith and McQueen had been roommates for about three weeks prior to the shooting. Both had served as U.S. Army Rangers and had been deployed several times together in Afghanistan.
On the night of the shooting, at around 5:30 p.m., Smith and McQueen smoked some marijuana in their apartment, had dinner, and drank a couple beers. After that, they went to the VFW post in Gaithersburg, where, over the course of two or three hours, they drank mixed drinks and played pool. After leaving the VFW at 11:00 p.m., McQueen and Smith went to the Village Café, where they stayed for about an hour, and left without finishing their beers.
When he was interviewed by police, Smith gave police at least three versions of what happened next. In the first version, Smith stated that he dropped McQueen off at their apartment, then traveled to his mother’s house. When Smith returned to the apartment, he found McQueen dead in a chair. While Smith admitted that he owned a .45 caliber pistol, a .9 mm rifle, and an AK47, he indicated that these weapons were stored at his mother’s house. Thus, according to Smith’s first version, there were no guns either in the house or in his car.
In his second version, Smith informed police that there was, in fact, a gun in the apartment when he discovered McQueen. Smith maintained that he dropped McQueen off while he went to his mother’s house. When Smith came home, there was a gun in McQueen’s hand and he was dead. The gun was Smith’s own Smith & Wesson .38 special that he kept under the kitchen counter, a location known both to Smith and McQueen. Believing that his fingerprints were on the weapon, Smith took the gun and drove to nearby Lake Needwood. He removed the bullets out of the gun, and then threw the gun and the bullets into the lake. Smith maintained that McQueen’s blood got on him when he checked on McQueen and when he put the gun in his pocket.
In his final version, Smith admitted he was inside the apartment when the shooting occurred. Smith stated that he told McQueen where the gun was and that it was loaded. Shortly after, Smith was in his room when he heard a gunshot and saw blood coming out of McQueen’s head. Smith then decided to dispose of the gun.
Officers from the Gaithersburg Police Department and the Montgomery County Police responded to the scene at around 1:00 a.m. following the 9-1-1 dispatch. Smith was outside the apartment building. Smith had a considerable amount of blood on his hands, face, shirt, and shoes. The parties would later stipulate that Smith’s clothing all tested positive McQueen’s blood, and negative for blood from Smith. DNA swabbed from Smith’s left palm and chin contained a combination of McQueen’s blood DNA, and Smith’s non-blood DNA. The swab from Smith’s cheek and neck tested positive for McQueen’s DNA.
A forensics specialist processed the crime scene and took photographs of the blood spatter on the carpet and surrounding area. A portion of the carpet containing blood spatter was cut out and recovered. Blood was found on a door handle, and bloody footprints were found in the hallway near the rear bedroom. A gun locking cable was also recovered from the living room area.
Recovered from Smith’s car were three rifle magazines, a pistol magazine, a 12 gauge shotgun round, two live 7.62mm rounds, a box of .22 ammunition, and one live .38 round. Gunshot residue (GSR) samples were taken from both Smith’s and McQueen’s hands. However, the GSR expert could not conclude who the shooter was based on his analysis.
A suspected projectile or portion of a bullet, as well as copper fragments from a bullet jacket, was collected during McQueen’s autopsy. A firearms expert examined these items, as well as the .38 revolver recovered from Lake Needwood. While the bullet fragments recovered from McQueen were consistent with having been fired from a similar firearm, the expert could not conclude that the fragments actually were fired from the .38 revolver recovered in this case.
The State’s forensic pathologist who conducted McQueen’s autopsy concluded that the manner of death was homicide. Defense experts testified that the pattern of the blood stains and the presence of tissue on McQueen’s right arm indicated that McQueen’s arm was upright, above shoulder height at the moment of impact. It was also concluded that McQueen’s head was upright at the time the wound was sustained. Therefore, the arm would have to have been up in this position, up above the shoulder.
The defense’s expert in forensic pathology concluded that McQueen died as the result of a self-inflicted gunshot wound. His conclusions were based on that fact that there was a tremendous amount of gunshot residue on McQueen’s hands; McQueen had at least a .13 blood alcohol level; that there was a history of depression; there was no evidence of a struggle; and there was no motive for a homicide. Nevertheless, Smith was convicted of second-degree depraved heart murder and use of a handgun in the commission of a felony.
Smith appealed to the Court of Special Appeals, which affirmed.
LAW: Smith first contended the trial court erred in not admitting evidence of McQueen’s state of mind when it refused to permit testimonial evidence of the decedent’s statements to a police officer after he had been arrested for a driving while intoxicated (DWI) a month-and-half before his death. During that arrest, McQueen stated to the officer that he had seen a lot of bad stuff in Iraq and Afghanistan and that the arrest was the last thing he needed on top of all the bad stuff going on in his life.
It is ordinarily within the sound discretion of the trial court to determine the admissibility of evidence. See Sifrit v. State, 383 Md. 116, 128 (2004); see also Rule 5-104(a). In Robinson v. State, 66 Md.App. 246 (1986), the appellant shot the victim on September 3, 1984. Id. at 248. After the State introduced evidence from an owner of a gun shop that the appellant bought a gun on Aug. 4, 1984, the defense sought to elicit whether appellant told the gun shop owner why she bought the gun. The trial court sustained the State’s objections to these questions. Id.
The Court of Special Appeals considered whether the evidence should have been admitted under the common law “state of mind” exception to the rule against hearsay. This exception “embraces two subspecies: 1) a declaration of present mental or emotional state to show a state of mind or emotion in issue, and 2) a declaration of intention offered to show subsequent acts of [the] declarant.” Id. at 257.
The mental state at issue in Robinson was whether the gun was fired accidentally or was fired with a malicious intent. Id. The trial court properly excluded the evidence about whether appellant told the gun shop owner why she purchased the gun a month before the shooting on the grounds of: (1) lack of relevance due to remoteness; and, (2) lack of trustworthiness. Id. at 257-58.
On the issue of remoteness, the Court of Special Appeals stated: “Since, however, the duration of states of mind or emotion varies with the particular attitudes or feelings at issue and with the cause, it is reasonable to require as a condition of invoking the continuity notion that the declaration mirror a state of mind which, in light of all the circumstances including proximity in time, has some probability of being the same condition existing at the material time. Where there is room for doubt, the matter should be left to the discretion of the trial judge.” Id. at 258.
Here, as in Robinson, McQueen’s statement in early August 2006 as to his state of mind did not go directly to show anything about his state of mind on Sept. 26, 2006, the night he sustained a gunshot wound to his head. Moreover, even if there were “room for doubt,” the matter was appropriately left to the discretion of the trial judge.
The trial court specifically addressed the trustworthiness of the statements when it stated that there was no evidence to suggest that the reaction to being arrested for a serious charge and comments made during that process was somehow related to any notions of suicide. The statements were too remote and untrustworthy to the fact sought to be proved, i.e., that McQueen committed suicide because he was somehow distraught, in whole or in part, about the prior arrest for driving under the influence or while intoxicated. Further, in criminal cases, “error is harmless if a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict.” State v. Blackwell, 408 Md. 677, 698.
The defense set forth sufficient evidence from which the jury could rationally consider whether McQueen was holding the gun. One expert clearly testified that McQueen died as the result of suicide. There was also little evidence suggesting a conflict between McQueen and Smith. Thus, there was a sufficient basis for the jury to determine whether McQueen died at his own hands or at the hands of Smith. Accordingly, any error in the exclusion of the evidence that the victim had been arrested for drunk driving one month before the shooting was harmless beyond a reasonable doubt.
Accordingly, the judgment of the circuit court was affirmed.
COMMENTARY: Smith contended that the trial court erred in propounding an instruction on voluntary intoxication, over defense objection, because it was not generated by the evidence.
Rule 4-325(c) requires that a trial court “give a requested instruction that correctly states the applicable law and that has not been fairly covered in other instructions.” General v. State, 367 Md. 475, 485 (2002). A requested instruction must be given “‘when … : (1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in instructions actually given.’” LaPin v. State, 188 Md.App. 57, 69 (2009) (quoting Dickey v. State, 404 Md. 187, 197-98 (2008)). There was no dispute concerning the instruction’s accuracy of the instruction.
“Voluntary intoxication, although it will never be allowed to negate a general criminal intent, may, if sufficient, be found to have eroded a specific intent.” Wieland v. State, 101 Md.App. 1, 32 (1994).
“[V]oluntary drunkenness can be a defense to a specific intent crime, but the degree of intoxication which must be demonstrated to exonerate a defendant is great.” State v. Gover, 267 Md. 602, 607-08 (1973).
Starting at around 6:00 p.m., Smith drank beer and smoked marijuana at home prior to going to the VFW, where he drank several mixed drinks over a two hour period. After that, he drank one beer at the Village Café before returning home at midnight.
While the consumption of approximately nine alcoholic beverages over an approximately six hour span may seem like an inordinate amount of alcohol, that in itself, “with no evidence as to the effect of that alcohol on the defendant, would not permit a jury reasonably to conclude that he had lost control of his mental faculties to such an extent as to render him unable to form the intent to murder or to maim.” Lewis v. State, 79 Md.App. 1, 12-13 (1989).
No reasonable juror could infer from any of the evidence presented that Smith “was so intoxicated that he was robbed of his mental faculties or that he did not appreciate what he was doing.” Lewis, 79 Md.App. at 12-13.
Accordingly, the voluntary intoxication instruction was not generated by the evidence. However, because Smith was not prejudiced by the voluntary intoxication instruction and the evidence was sufficient to sustain the jury’s verdict, any error was harmless.
PRACTICE TIPS: “[N]ot every widespread experiment with a procedural rule favorable to criminal defendants establishes a fundamental principle of justice. Although the rule allowing a jury to consider evidence of a defendant’s voluntary intoxication where relevant to mens rea has gained considerable acceptance, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance, to qualify as fundamental, especially since it displaces a lengthy common law tradition which remains supported by valid justifications today.” Montana v. Egelhoff, 518 U.S. 37, 51 (1996).
Qualified immunity

BOTTOM LINE: The circuit court improperly granted trustees’ motion to dismiss because, due to certain defects in the parties’ pleadings, the court failed to consider the trustees’ affidavits attached to the motion.
CASE: D’Aoust v. Diamond, et al., No. 1708, Sept. Term, 2009 (filed Dec. 29, 2010) (Judges Woodward, MATRICCIANI & Salmon (retired, specially assigned)). RecordFax No. 10-1229-07, 23 pages.
FACTS: Cindy Diamond and Bruce Brown (Defendants) were court-appointed Trustees, appointed to sell Michelle D’Aoust’s Property. The Property was sold at public sale on May 26, 2005 for $65,000. There was no existing mortgage on the Property at the date of Sale.
D’Aoust sued Defendants in the circuit court, alleging that Defendants had actual or constructive knowledge of D’Aoust’s address and that despite such knowledge, the Defendants directed the Notice of the Sale of the Property to another address. Likewise, the Defendants caused the Notice of Intention to Create a Lien to be posted on the Property, and did not serve or mail a copy of said Notice to Plaintiff at D’Aoust’s correct address.
As a result of Defendants failure to send Notice of the Sale to the correct address, D’Aoust alleged that she did not know that her Property was sold on May 26, 2005. Had she been advised of the sale, she would have taken steps to prevent it by paying the lien, and/or would have attended the sale to bid on the Property.
On or about July 5, 2005, D’Aoust filed exceptions to the sale in the circuit court. A hearing was scheduled for Aug. 31, 2005. Prior to the hearing, Defendant Diamond told D’Aoust that the Trustees were withdrawing their objections to the exceptions and would advise the court that no hearing was required because the exceptions should be sustained. However, after Defendants withdrew objections, they did not advise the court that the exceptions should be sustained and the sale not ratified. Accordingly, the court ratified the exceptions without a hearing on Sept. 14, 2005.
Although Defendants knew that the court’s ratification was ordered without knowledge that the sale had been made without adequate notice to D’Aoust, the Defendants did not advise the court, but instead conveyed the property without further notice of D’Aoust, to the party who purchased it at the public sale, with the intent of depriving D’Aoust of obtaining reconsideration of the Sept. 14, 2005 ratification order.
Based on these facts, D’Aoust alleged two counts. Count one, entitled “Breach of Duty,” added that, in proceeding with a judicial sale of the Property, Defendants owed a fiduciary duty to D’Aoust to conduct the proceedings in accordance with Maryland law and the Maryland Rules of Procedure, including without limitation, Maryland Rule 14-206(b)(2). According to D’Aoust, Defendants breached their fiduciary duty by failing to send Notice of Sale of D’Aoust’s Property to her last known address, as required by §14203(a) of the Real Property Article (Maryland Contract Lien Act). Defendants further breached their fiduciary duty and committed actual fraud by filing a false or incorrect Affidavit in the Petition for Sale case stating that they had sent Notice of the Sale to her at her last known address.
Count two, entitled “Constructive Fraud,” added alleged that the failure of Defendants to provide notice amounted to constructive fraud under the doctrine of Jannenga v. Johnson, 243 Md. 1,243 Md. 1 (1966). Defendants further committed constructive fraud in not advising the court that they had failed to give proper notice of the sale, but instead conveying the unit to the purchasers.
Defendant’s filed a motion to dismiss, which incorporated a memorandum of law and two exhibits in the form of affidavits from Diamond and Brown. Defendants argued that they were entitled to the defense of judicial immunity and that the court should therefore dismiss the complaint with prejudice. Specifically, Defendants claimed that they were not personally aware that D’Aoust had changed her address.
While the court referring to the motion as one for “summary judgment,” the court’s opinion concluded that “the Defendants’ Motion to Dismiss should be GRANTED.” The order that accompanied it, however, once again indicated that it was granting “Defendants’ cross motions for summary judgment.” The court amended its judgment on Sept. 29, 2009, and entered an order granting the motion to dismiss.
D’Aoust appealed to the Court of Special Appeals, which reversed.
LAW: This case centered on the common law of immunity, an ancient feature of the common law that exists in two main forms: “[T]he Court has distinguished between the qualified and narrower immunity for discretionary acts generally accorded to public officials, and absolute judicial immunity, which, unlike qualified immunity, applies regardless of the nature of the tort and even where the suit against the judge alleges that he acted in bad faith, maliciously or corruptly.” Parker v. State, 337 Md. 271, 285 (1995). “The principle that judicial officers should be immune from all civil liability for their judicial acts has been part of the common law since very early days.” Parker, 337 Md. at 277.
In Maryland, “[t]he common law principle of absolute judicial immunity for judicial acts has neither been abrogated nor been modified[.]” Id. at 283. By contrast, certain acts of the Maryland legislature supersede the common law of public official immunity, most notably Title 12, “Immunity and Liability,” of the State Government Article, Maryland Code (1984, 2009 Repl.Vol.). But where there is no legislation, the common law doctrine survives as the default rule of law. Id. at 283 n. 7.
As to qualified immunity, Tucker v. Woolery, 99 Md.App. 295 (1994), extended the rule in Rice v. Dunn, 81 Md.App. 510, 515 (1990), that “judicial officers” — such as the district court commissioner in Rice — are entitled to qualified immunity from suit. Tucker drew upon the common logic and purpose underlying the two separate strains of immunity, as well as persuasive opinions from federal and sister state jurisdictions, and held that, while trustees are not judges, “they are entitled to some degree of immunity.” Tucker, 99 Md.App. at 299-300; see Briscoe v. LaHue, 460 U.S. 325, 335 (1983). “When judicial immunity is extended to officials other than judges, it is because their judgments are ‘functional[ly] comparab[le]’ to those of judges — that is, because they, too, exercise a discretionary judgment as part of their function.” Tucker 99 Md.App. at 299-300; see Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993).
Here, all of D’Aoust’s allegations stemmed from Defendants actions undertaken as trustees in a judicial sale of real estate. RP §14-204(a) provides that a contractual lien “may be enforced and foreclosed by the party who obtained the lien in the same manner, and subject to the same requirements, as the foreclosure of mortgages or deeds of trust on property in this State containing a power of sale or an assent to a decree.” The manner and requirements of such a sale are set forth in RP §§7-105 et seq. In such a judicial sale, “[t]he court itself is the vendor, the trustee being merely the agent of the court to carry into effect the order of court directing the sale, and upon final ratification of the sale by the court the contract of purchase becomes complete.” Merryman v. Bremmer, 250 Md. 1, 8 (1968).
D’Aoust did not dispute that, as Trustees, Diamond and Brown were judicial officers. Nor did she dispute that they acted within their delegated jurisdiction to dispose of the property by sale. She argued only that Rule 14-206(b)(2)(A), “is mandatory and the duty of Diamond and Brown, as Trustees, is ministerial in nature: they are to send a notice to Ms. D’Aoust’s last known address by certified and first class mail.” In short, D’Aoust’s argument defined “the act” under review too narrowly: it was not the mandatory notice provision, but the general position as trustee that gives rise to immunity in this case. Logically, D’Aoust contended that any “ministerial act” that falls within a broader discretionary function is without the protection of immunity.
This cannot be so. Nearly every judicial officer’s duties will include some ministerial act necessary to carry out a broader discretionary function. A rule that fails to shield those “nested” ministerial acts from liability would impair “the independent and impartial exercise of judgment vital to the judiciary,” Antoine v. Byers & Anderson, 508 U.S. 429, 435 (1993), and contravene the purpose of judicial immunity. See Parker, 337 Md. at 280, 280 n. 5. D’Aoust thus failed to establish that Defendants were not entitled to qualified immunity for a particular ministerial act necessary to carry out a broader discretionary authority vested by the court.
Having established that Defendants were entitled to assert the defense of qualified immunity, the heart of the matter on appeal was whether the facts alleged and their permissible inferences would, if proven, overcome the defense, thus permitting D’Aoust to survive the motion to dismiss. The task was complicated by the fact that neither party recognized the obvious defects in D’Aousts’s pleadings. Resolving these problems inevitably led to the conclusion that the motion was granted in error and that this case must be remanded for further proceedings.
One failing in the parties’ pleadings was that they ignored the crucial role that intent plays in immunity. This is the thus-far-overlooked distinction between “absolute” and “qualified” immunity. These twin defenses are in some sense “fraternal,” rather than identical, for they afford different levels of protection to the accused.
An absolute immunity from tort liability stands even if the official acts in bad faith, or with malice or corrupt motives. Prosser & Keeton on Torts, §132, at 1057 (5th ed.1984). The scope of qualified immunity at common law has not always been apparent. The language in certain Maryland decisions limited the qualified immunity exception to “malicious” acts. See James v. Prince George’s County, 288 Md. 315, 323-324 (1980).
Any confusion on this point has been put to rest by the Court of Appeals’ recent decision in Houghton v. Forrest, 412 Md. 578, 587 (2010), in which it was held that a police officer was not immune from the plaintiff’s intentional tort claim under a common law theory of public official immunity. Common law public official immunity is reserved for public officials (as opposed to mere employees) who perform negligent acts during the course of their discretionary (as opposed to ministerial) duties. See James v. Prince George’s County, 288 Md. 315, 323 (1980). Thus, the distinction between torts that are shielded by qualified immunity and torts that are not shielded by qualified immunity is “intent.” Coincidentally, this is precisely the distinction between “actual” and “constructive” fraud. Actual fraud is an intentional tort. Gross v. Sussex, Inc., 332 Md. 247, 260 (1993).
D’Aoust was thus left with only one claim to which Defendants may not be immune: actual fraud. Defendants’ only remaining response to the fraud claim was based in fact and founded on affidavits attached to the motion to dismiss. The court based its decision on the legal sufficiency of D’Aoust’s claims and granted the motion to dismiss. As such, the court could not have properly considered Defendants’ exhibits when it granted the motion. Thus, Defendants could not establish that D’Aoust’s alleged facts and permissible inferences would not afford her relief for actual fraud; therefore, the court erred when it dismissed appellant’s complaint.
Accordingly, the judgment of the trial court was reversed.
COMMENTARY: Another defect in the pleadings concerned the allegation of “actual fraud.” Within the count for “breach of duty,” D’Aoust alleged that “Diamond and Brown … committed actual fraud by filing a false or incorrect Affidavit in the Petition for Sale case stating that they had sent Notice of the Sale of Plaintiff’s Property to her at her last known address.”
There is no argument that actual fraud is a cause of action distinct from constructive fraud. D’Aoust’s “actual fraud” allegation was included within the claim of breach of duty and therefore in violation of Maryland Rule 2-305 (“Each cause of action shall be set forth in a separately numbered count.”).
Despite this, Defendants specifically referenced and controverted the fraud claim, and it was therefore considered to have been adequately pled. See Kirchner v. Allied Contractors, Inc., 213 Md. 31, 36 (1957).
PRACTICE TIPS: Common law public official immunity does not apply to intentional torts. See Lee v. Cline, 384 Md. 245, 258 (2004).