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Opinions – Maryland Court of Special Appeals: 6/20/11

Civil Procedure

Contempt

BOTTOM LINE: Although defendant’s appeal of the order holding her in contempt for failure to pay child support was dismissed as moot, the circuit court erred in entering the contempt order and imposing a sentence without first ascertaining that defendant had validly waived her right to counsel.

CASE: Bradford v. State, No. 206, Sept. Term, 2010 (filed June 1, 2011) (Judges Zarnoch, KEHOE & Moylan (retired, specially assigned)). RecordFax No. 11-0601-00, 29 pages.

FACTS: On September 26, 2006, Joanie Bradford was ordered to pay child support in the amount of $223 per month for two of her children. Bradford was unable or unwilling to pay the required child support and was the subject of repeated enforcement proceedings.

The Child Support Unit of the Washington County Department of Social Services (the Department) filed a petition for contempt. The petition alleged that Bradford was $2,870 in arrears as of May 26, 2009 and requested that the court find Bradford in contempt, order her incarcerated for her willful contempt and impose sanctions.

The petition was served on Bradford, together with a writ of summons requiring her to appear at a “conciliation conference” with the Department, which occurred on July 24, 2009. During the conference, and without the assistance of counsel, Bradford signed a “delayed sentencing agreement” (DSA). In the DSA, Bradford admitted that she was in contempt of court and agreed to serve a sixty-day jail sentence to commence at a future date. The agreement provided for a monetary purge which, if timely paid before the sentence commenced, would have discharged the contempt. Bradford was not represented by counsel at the time she signed the agreement.

The Department submitted the DSA to the circuit court, which, without holding a hearing, entered an order holding her in contempt and imposing the sentence.

Bradford did not satisfy the purge provisions set forth in the DSA by October 23, 2009. On that day, she appeared without counsel before the circuit court. The court advised her of her right to counsel, which Bradford waived. She was sentenced to 60 days incarceration, all of which was suspended. In addition, she was ordered to continue to pay $223 per month and her arrearage was determined to be $3,931. The court ordered that Bradford pay an additional $55 per month to reduce the amount of the arrearage.

Over the ensuing months, Bradford’s performance of her obligations to pay child support was sporadic and at no time did she make the full payments called for in either the DSA or the court order of October 23, 2009.

Finally, on March 12, 2010, the circuit court conducted a hearing. By this time, Bradford was represented by counsel. At the conclusion of the hearing, the circuit court entered an order imposing a sentence of thirty days confinement in the Washington County Detention Center to begin immediately. Bradford’s purge amount was subsequently paid by her husband and she was released from jail on March 15, 2010.

The Court of Special Appeals dismissed Bradford’s appeal of the order finding her in contempt.

LAW: A case is moot when there is “no longer an existing controversy when the case comes before the Court or when there is no longer an effective remedy the Court could grant.” Suter v. Stuckey, 402 Md. 211, 219–20 (2007). Courts do not entertain moot controversies. Id. at 219. However, there are circumstances in which appellate courts will address the merits of a moot case. Sanchez v. Potomac Abatement, Inc., –––Md.App. ––––, No. 569, September Term, 2009 (filed April 27, 2011). The first is where the controversy, even though moot at the time of judicial review, “is capable of repetition but evading review.” Slip op. at 6. The second exception “allows us to express our views on the merits of a moot case to prevent harm to the public interest.[]” Id. at 7.

The Court of Appeals applied the latter exception to reach the merits in Arrington v. Dept. of Human Resources, 402 Md. 79 (2008). The issue there was whether the circuit court had the authority to confine “fathers found in contempt for failure to comply with child support orders … until such time as they obtain employment through a work release program or satisfy other conditions they are unable to meet in time to avoid the incarceration.” Id. at 91. Noting that such a practice could affect hundreds of fathers subject to child support orders in the City, the Court of Appeals concluded that appellate review was warranted because it was “urgent and imperative that the issue be resolved.” Id. at 92.

DSAs are widely used in Washington County. When defendants in past proceedings involving DSAs appealed orders imposing jail sentences, the State agreed to release the defendant from confinement if the appeal was dismissed. This practice makes it unlikely that questions as to the validity of DSAs will receive appellate review. There is a need for guidance from an appellate court on this issue. Under such circumstances, appellate review was warranted. See, e.g., Arrington, 402 Md. at 92.

Thus, although Bradford’s appeal of the March 12, 2010 order was moot since the purge was paid, the Court addressed the merits of Bradford’s contentions.

Direct contempt is “a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.” Rule 15–202(b). All other forms of contempt are constructive. Rule 15–202(a). See Ashford v. State, 358 Md. 552, 563 (2000).

In a civil contempt proceeding for failure to pay child support, the moving party must prove, by clear and convincing evidence, that the “alleged contemnor has not paid the amount owed.” Rule 15–207(e)(2). Once this threshold has been met, the obligation shifts to the defendant to prove by a preponderance of the evidence that one or more of the defenses set out in Rule 15–207(e)(3) are present. If the court finds that the moving party has met its burden of proof and none of the defenses apply, it shall enter an order pursuant to Rule 15–207(e)(4).

A defendant in a civil contempt proceeding “must have the ability to avoid both the commencement and the continuation of incarceration.” Arrington, 402 Md. at 101. Any purge must be within the present ability of the defendant to perform at the time of sentencing. Id. at 101.

A party to a civil action may initiate a civil contempt proceeding to secure compliance with a court order. Rule 15–206. If the moving party seeks incarceration as a possible means of compelling compliance, the petition for contempt must so state. Rule 15–206(c)(1). In such a case, the defendant is entitled to counsel and must be properly informed of his or her right to counsel. Rule 15–206(c)(2); Arrington, 402 Md. at 98–106.

Because the Department’s petition to hold Bradford in contempt sought her incarceration, she was entitled to representation by counsel. Zetty v. Piatt, 365 Md. 141, 159 (2001). Concomitant with a defendant’s right to counsel is the court’s obligation to advise a defendant of that right and to assure itself that, if the right is waived, it is done so knowingly and voluntarily. Id. at 159. See Rule 15–206(e)

In the DSA, Bradford admitted that she was in contempt of court, agreed that she had the present ability to pay her child support obligation and address her arrearage, and consented to a sixty-day jail sentence if she failed to do so. While the DSA recited that Bradford waived her right to an attorney at the conciliation conference, there was nothing in the DSA that suggested that her waiver was knowing or voluntary. On July 27, 2009, based solely upon the DSA, the court held Bradford in contempt and imposed a sentence, without first providing the advisement required under Rule 15–206(e).

Before 2000, Rule 15–206(e)(1) stated that the rule applied to any constructive civil contempt proceeding “if incarceration to compel compliance is sought.” At that time, pursuant to what was then Rule 9–207(g), civil contempt petitions in support enforcement matters, including those seeking incarceration, were routinely referred to masters. The Public Defender, however, refused to provide representation to indigent persons in master’s proceedings. Thrower v. Support Enforcement, 358 Md. 146, 149 n. 2 (2000).

In 2000, the Rules Committee proposed changes to Rule 15–206(e)(1) together with amendments to what was then Rule 9–207(g) (now Rule 9–208(d)). An intended effect of the 2000 amendments was to make civil contempt proceedings involving possible incarceration the exclusive province of judges. There is nothing in the rule, or its history, that suggests that a determination as to whether a defendant’s waiver of counsel was knowing and voluntary could be made by a support enforcement worker or anyone other than a judge.

For a court to find Bradford in contempt and impose a sentence of incarceration based solely upon the DSA, without an independent inquiry by the court as to whether she voluntarily and knowingly waived her right to counsel, would conflict with the purpose of Rule 15–206(e).

Thus, errors by the circuit court would have justified reversing the orders holding Bradford in contempt and sentencing her to incarceration. However, Bradford’s husband paid the modified purge amount imposed by the circuit court at the conclusion of the March 12, 2010 hearing. Thus, her appeal was dismissed as moot.

COMMENTARY: When the circuit court found Bradford in contempt on July 27, 2009, it sentenced her to a jail sentence of sixty days, to begin on October 23, 2009. While the order provided that Bradford could avoid incarceration by addressing her support arrearages prior to the latter date, it did not provide a purging mechanism after incarceration was to begin.

Thus, the July 27, 2009 order effectively imposed a criminal sanction, and imposed it to begin in the future. Such a sentence is illegal in a civil contempt proceeding and is manifestly irreconcilable with Arrington, 402 Md. at 101.

In addition, when the circuit court held Bradford in contempt on July 27, 2009, it did not inquire whether she had the present ability to satisfy the purge it imposed at that time, because it did not hold a hearing.

Accordingly, the DSA itself called for the imposition of an illegal sentence and was unenforceable. See Human Relations v. Dept. of Parks, 166 Md.App. 33, 47 (2005).

Civil Procedure

Garnishment

BOTTOM LINE: Where life insurance company’s request for a writ of garnishment failed to clearly and unambiguously identify the garnishee, company’s motion for conditions for satisfaction of judgment of condemnation was properly denied.

CASE: Phoenix Life Insurance Company v. Wachovia Bank, No. 0562, Sept. Term, 2010 (filed June 1, 2011) (Judges Zarnoch, WRIGHT, Sharer & Frederick (Retired, Specially Assigned)). RecordFax No. 11-0601-02, 15 pages.

FACTS: Phoenix Life Insurance Company obtained a judgment against Dinkins Dry Cleaners, Inc. (DDC) and Lila Dinkins in the federal district court. On May 9, 2005, it recorded the judgment in the Circuit Court for Baltimore City. On May 6, 2008, Phoenix filed the request for the First Writ, wherein it named DDC and Dinkins the judgment debtors, and listed the address of “2142 W. North Avenue, Baltimore, Maryland 21217–1222” for both of them.

On June 11, 2008, Wachovia filed an answer, stating, “THE GARNISHEE reports that it holds assets (other than wages) belonging to [DDC], consisting of the following as of the [sic] 5/28/2008, the date upon which attachment herein was served. Wachovia did not file an answer as to Dinkins, individually. On August 25, 2008, Phoenix filed a “Request for Judgment—Garnishment,” along with a proposed order. On September 20, 2008, the court granted Phoenix’s request and signed the proposed order, entering judgment in favor of Phoenix in the amount of $1,163, and requiring Wachovia to promptly pay over this amount to Phoenix. The case caption for the court’s order listed DDC and Dinkins as Judgment Debtors. A notice of recorded judgment was entered. On October 22, 2008, Wachovia paid the sum of $1,163 to Phoenix.

On February 26, 2009, the court issued the Second Writ, directing Wachovia to hold the property of the Judgment Debtor named above subject to further proceedings. The writ listed the Judgment Debtor as “Lila Dinkins, 2142 W. NORTH AVENUE, Baltimore, MD 21217.” On March 18, 2009, Wachovia filed an answer, reporting that it held no assets belonging to Dinkins, as of March 12, 2009, the date upon which attachment herein was served. On September 11, 2009, Wachovia was again served with a writ of garnishment with respect to DDC. Subsequently, Wachovia filed a confession indicating that it held no assets belonging to DDC. On September 29, 2009, Phoenix sent a fax transmission to Wachovia attaching a request for writs of garnishment of property, which had been filed with the court on or about August 21, 2009. The request listed DDC and Dinkins as Judgment Debtors and specifically sought information related to an account ending in –5700, but the court did not appear to issue a writ with respect to Dinkins. After receiving the fax, Wachovia located a joint personal account belonging to Dinkins, with an account number ending in –5700.

On October 21, 2009, Wachovia amended its answer to the Second Writ to state that it held assets (other than wages) belonging to Dinkins, consisting of $8,078 in a Crown Banking account, the account number of which was listed as “[ ]5700.” On January 14, 2010, Phoenix filed a motion to determine conditions for satisfaction of judgment of condemnation as to the First Writ. Phoenix also filed a motion for judgment of condemnation as to the Second Writ. The court denied Phoenix’s motion as to the First Writ and granted in part and denied in part the motion pertaining to the Second Writ.

Phoenix appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Phoenix argued that that the circuit court erred by refusing to direct Wachovia to pay Phoenix monies that Lila Dinkins deposited into her Wachovia account from the time of service of the garnishment until entry of the judgment of condemnation. Specifically, Phoenix contended that it had met its burden as established by Maryland Rule 2–645(b), which provides that the judgment creditor may obtain issuance of a writ of garnishment by filing in the same action in which the judgment was entered a request that contains: “(1) the caption of the action, (2) the amount owed under the judgment, (3) the name and last known address of each judgment debtor with respect to whom a writ is requested, and (4) the name and address of the garnishee. Upon the filing of the request, the clerk shall issue a writ of garnishment directed to the garnishee.”

The burden of obtaining a writ that properly identifies a judgment debtor rests on the judgment creditor. Parkville Fed. Sav. Bank v. Maryland Nat’l Bank, 343 Md. 412 (1996) (“PFSB “). Phoenix attempted to differentiate its case from PFSB by noting that the Court of Appeals in that case held that the judgment creditor did not specifically and accurately identify the four judgment debtors when it listed only the first judgment debtor’s name, followed by “et al.” Id. at 422, 424. Phoenix argued that, by contrast, it properly identified Lila Dinkins and correctly listed her last known address.

In its request for the First Writ, Phoenix stated that the last known address of Defendant/Judgment Debtor Lila Dinkins was “2142 W. North Avenue, Baltimore, Maryland 21217-1222.” However, the Wachovia Bank account later cited in Phoenix’s motion to determine conditions for satisfaction of judgment of condemnation listed the address as “3705 Ellamont Ave., Baltimore, MD 21215.” In applying its narrow interpretation of PFSB, Phoenix assumed that Wachovia only had one account holder named “Lila Dinkins” and that, by providing her “last known address” of 2142 W. North Avenue, Baltimore, Maryland 21217–1222, Wachovia would be able to determine that Lila Dinkins, of 3705 Ellamont Ave., Baltimore, MD 21215, was the same Lila Dinkins who was listed as a judgment debtor. Had Lila Dinkins of West North Avenue been a separate individual from Lila Dinkins of Ellamont Avenue, and had Wachovia garnished monies from the wrong person, Wachovia would have been held liable for damages as a result of improperly impounding assets. See MNB, 105 Md.App. at 616.

Assuming, for example, that the judgment debtor had a common name such as “John Smith” or “Mary Jones,” Wachovia would not be expected to garnish monies from all account holders with that name, nor would Wachovia be expected to cross-check its extensive records of every account bearing that name in order to find the proper account to be garnished. See Flat Iron, 90 Md.App. at 294. Rather, it is the judgment creditor’s responsibility to state clearly, by providing the correct address, which individual is a debtor and which account is subject to garnishment. As Wachovia pointed out, Phoenix was permitted to obtain discovery to aid enforcement of a money judgment. Md. Rule 2–633(a). And indeed, Phoenix filed such discovery on May 6, 2008, and on May 27, 2008, the court entered an order requiring that Dinkins appear before an auditor on July 30, 2008, to be examined under oath. A writ of body attachment was issued on December 4, 2008, and after Phoenix filed a motion for constructive civil contempt, the court issued a show cause order on July 10, 2009.

Based on this record, Phoenix had numerous opportunities to determine where Ms. Dinkins resided and whether she had a personal bank account listed under a separate address. Given that Phoenix’s request for the First Writ included a different address than that listed in the bank account at issue, Phoenix failed to “clearly and unambiguously identify” Lila Dinkins of 3705 Ellamont Ave., Baltimore, MD 21215, as the judgment debtor whose property was to be garnished.

Therefore, the circuit court acted properly in denying Phoenix’s motion for conditions for satisfaction of judgment of condemnation. Accordingly, the circuit court judgment was affirmed.

COMMENTARY: Phoenix also argued that the circuit court erred when it refused to award a judgment of condemnation as to the Second Writ for the total amount of the funds that the judgment debtor had deposited into her account from the date the writ was served until the hearing on the motion for condemnation. Relying on Maryland Rule 2–645(j), Phoenix sought the amount of $27,444, which was deposited into the Crown Bank account from the date of service until the motion for judgment came for a hearing on April 21, 2010. Phoenix argued that by limiting Wachovia’s liability to the $8,078 that it confessed, the court wrongfully deprived Phoenix of an additional $19,366.

Maryland Rule 2–645(j) provides, in relevant part, that the judgment against the garnishee “shall be for the amount admitted plus any amount that has come into the hands of the garnishee after service of the writ and before the judgment is entered, but not to exceed the amount owed under the creditor’s judgment against the debtor and enforcement costs.” In this case, as Phoenix was the party that filed the request for the Second Writ, it had the duty to assure the correctness of the instrument; Wachovia was not responsible for not receiving service of a writ as to Dinkins, after Phoenix filed its request on February 2009. And on October 21, 2009, after learning that the Second Writ also pertained to Dinkins, Wachovia amended its answer to include the $8,078 that was present in Dinkins’s personal account at that time. Then, pursuant to the court’s April 26, 2010 order, Wachovia garnished that amount from the account and paid it over to Phoenix. The garnishee is not required to look any further than the text of the writ itself.

Therefore, the court acted properly in limiting the judgment of condemnation to $8,078.

PRACTICE TIPS: The need for certainty in identifying the judgment debtors covered by a writ of garnishment is critical given that a writ requires the garnishee to take positive action and impound assets owned by another party. It is the obligation of the judgment creditor to obtain a writ that properly identifies the property to be attached, and the garnishee is not required to look any further than the text of the writ itself.

Civil Procedure

Reply brief

BOTTOM LINE: Appellant’s reply brief, filed more than 10 days before the scheduled oral argument, was untimely pursuant to Rule 8–502(a)(3); therefore, appellee’s motion to strike appellant’s reply brief was granted.

CASE: Heit v. Stansbury, No. 354 Sept. Term, 2010 (filed May 27, 2011) (Judges EYLER, D., Zarnoch & Clarke (specially assigned)). RecordFax No. 11-0527-01, 8 pages.

FACTS: An appeal is pending before the Court of Special Appeals from judgments entered in a divorce action in the circuit court between Gary Heit, appellant, and Kathryn Stansbury, appellee. On October 6, 2010, Heit filed his brief. On November 5, 2010, Stansbury filed her brief. The appeal then was docketed for argument, which took place on May 4, 2011.

On April 21, 2011, more than 10 days before the scheduled argument date but 5½ months after Stansbury filed her brief, Heit filed a reply brief. Stansbury filed a motion to strike the reply brief, on the ground that it was not timely filed under Rule 8–502(a)(3).

The Court of Special Appeals granted the motion to strike reply brief.

LAW: Under Rule 8–502(a)(3), “an appellant may file a reply brief within 20 days after the filing of the appellee’s brief, but in any event not later than ten days before the date of scheduled argument.”

The Maryland Rules are interpreted using the same principles that apply to the interpretation of statutes. Barbre v. Pope, 402 Md. 157, 172 (2007). As with statutory construction, the objective is to effectuate the intention of the drafters, and to do so the Court starts with the words of the rule and from the premise that the words carry their ordinary and usual meanings. Id. at 172–73.

Heit argued that Rule 8–502(a)(3) permits him to file a reply brief at any time, so long as it is not within ten days of the scheduled oral argument. He asserted that, because April 21, 2011, was more than 10 days before May 4, 2011, the reply brief was timely filed.

Heit’s reading of the Rule focused upon its use of the word “may,” which connotes a discretionary act, i.e., one that is not required, in contrast to the word “shall,” which in many contexts is mandatory. He reasoned that, because the appellant’s initial brief “shall” be filed within 40 days, but the appellant’s reply brief “may” be filed within 20 days, it is only logical that an appellant is not required to file his reply brief within that 20–day period. Rather, he has until ten days before oral argument to do so.

The words “shall” and “may” in those subsections of the Rule are used not only to designate the time for filing briefs but also to establish the obligation, if any, to file a brief. An appellant in a case before the Court of Appeals must file a brief and the time for doing so is 40 days after the record of the circuit court has been filed. See Rule 8–502(a)(1). An appellant’s failure to timely file a brief may result in his appeal being dismissed. See Rule 8–502(d).

Likewise, pursuant to Rule 8–502(a)(2), “[w]ithin 30 days after the filing of the appellant’s brief, the appellee shall file a brief.” The consequence of the appellee’s not filing a brief, or a timely brief, is not dismissal of the appeal. Instead, “[a]n appellee who fails to file a brief within the time prescribed by this Rule may not present argument except with permission of the Court.” Rule 8–502(d).

In contrast to the duties that are imposed for filing the appellant’s brief and the appellee’s brief, there is no duty for an appellant to file a reply brief. Doing so is entirely a matter of choice; hence, the use of the word “may” in subsection (a)(3) of Rule 8–502. If the word “shall” were used instead of “may” in that subsection, the subsection would impose an obligation upon an appellant to file a reply brief. It is for that reason that subsection (a)(3) uses the word “may” when the two subsections preceding it use the word “shall.”

Read in that context, the phrase, “[t]he appellant may file a reply brief within 20 days after the filing of the appellee’s brief,” is not a mere suggestion that any reply brief that is filed be filed within 20 days after the appellee’s brief is filed. Rather, the “20 days” language directs the appellant that, if he is going to file a reply brief at all, the deadline for doing so is 20 days after the date on which the appellee’s brief is filed. And, anticipating that there may be cases in which the appellee’s brief properly is filed not long before the scheduled argument, it further directs, in the “but in any event not later than ten days before the date of scheduled argument” phrase that follows, that the appellant will not have the benefit of the full 20–day time period if that time period encroaches upon ten days of the scheduled argument date.

Accordingly, under a proper reading of Rule 8–502(a)(3), the last day for Heit to file a reply brief was November 29, 2010. When he filed a reply brief on April 21, 2011, it was significantly overdue.

Therefore, Stansbury’s motion to strike was granted.

COMMENTARY: Heit asserted that Rule 8–502(a)(3) as actually written is consistent with its federal counterpart, Fed. R.App. P. 31(a), which provides that the appellant must serve and file a brief within 40 days after the record is filed and the appellee must serve and file a brief within 30 days after the appellant’s brief is served. The rule further provides that the appellant may serve and file a reply brief within 14 days after service of the appellee’s brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing.

Rule 8–502(a)(1) through (a)(3) are consistent with Fed. R.App. P. Rule 31(a). However, Fed. R.App. P. Rule 31(a) has been interpreted to have the same meaning as Rule 8–502(a)(3).

In Meza v. Washington State Department of Social and Health Services, 683 F.2d 314 (9th Cir.1982), decided at a time when the “7 days before argument” period in Rule 31(a) only was 3 days, the state’s reply brief was filed a few days before oral argument. Id. at 316. The state’s attorney argued that the rule allowed filing up to 3 days before argument. The court held that it does not so provide and, therefore, the brief was nearly 80 days late. Id.

PRACTICE TIPS: In some contexts, particularly when the word “shall” is found in a constitutional provision or enactment appearing to impose a duty on a court, it is viewed as directory, not mandatory. In re Abiagail C, 138 Md.App. 570, 581 (2001). See, e.g., Md. State Bar Ass’n v. Hirsch, 274 Md. 368 (1975).

Criminal Procedure

Voir dire

BOTTOM LINE: Trial court erred in asking venire panel whether any member believed the state was required to utilize specific investigative or scientific techniques in order for the defendant to be found guilty, as this question deprived the defendant of a fair and impartial jury by expressing a foregone conclusion as to the expected outcome of the trial.

CASE: Stringfellow v. State, No. 0139, Sept. Term, 2010 (filed May 27, 2011) (Judges Meredith, Woodward, ALPERT & Paul (retired, specially assigned)). RecordFax No. 11-0527-00, 15 pages.

FACTS: On the evening of November 21, 2009, Detectives Biggers and Lake, of the Baltimore City Police Department, were driving in an unmarked police car down a dead-end street when they saw four men standing on the sidewalk, including Reginald Stringfellow, who was holding a handgun. When Stingfellow saw the detectives, he tried to pass off the gun to one of his companions and began running.

The detectives stopped Stringfellow and arrested him. One of Stringfellow’s companions told the detectives that Stringfellow was his brother. The detectives recovered the loaded gun from the sidewalk, but they did not request a fingerprint analysis.

During jury selection, the judge asked the voir dire panel, over Stringfellow’s objection: “Does any member of the panel believe that the State is required to utilize specific investigative or scientific techniques such as fingerprint examination in order for the defendant to be found guilty beyond a reasonable doubt?”

The jury convicted Stringfellow of possessing a regulated firearm after having been convicted of a disqualifying crime, and wearing, carrying, or transporting a handgun. He was sentenced to five years imprisonment, without the possibility of parole, and a concurrent three year term, respectively.

Stringfellow appealed to the Court of Special Appeals, which reversed the convictions and remanded the case for a new trial.

LAW: Stringfellow argued that the judge’s question to the voir dire panel signaled to the potential jurors that they should convict him, and minimized the State’s ultimate burden of proof by informing jurors that they need not expect evidence of scientific quality.

Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. White v. State, 374 Md. 232 (2003). The overarching purpose of voir dire in a criminal case is to ensure a fair and impartial jury. Wright v. State, 411 Md. 503, 508 (2009). Indeed, the only purpose of voir dire in Maryland is to illuminate to the trial court any cause for juror disqualification. Id.

The manner of voir dire is governed by Md. Rule 4–312, which provides, in pertinent part, “The trial judge may permit the parties to conduct an examination of qualified jurors or may conduct the examination after considering questions proposed by the parties. If the judge conducts the examination, the judge may permit the parties to supplement the examination by further inquiry or may submit to the jurors additional questions proposed by the parties. The jurors’ responses to any examination shall be under oath.” Md. Rule 4–312(d)(1). In the absence of a statute or rule prescribing the questions to be asked of the venire persons during the examination the subject is left largely to the sound discretion of the court in each particular case. Moore v. State, 412 Md. 635, 644 (2010). That discretion extends to both the form and the substance of questions posed to the venire. Wright, 411 Md. at 508.

Although it is impermissible to commit prospective jurors to a decision in advance, potential jurors may be questioned about their attitudes concerning key issues to be raised at trial. See, e.g., State v. Thomas, 369 Md. 202 (2002). In Charles and Drake v. State, the Court of Appeals recently addressed the propriety of a voir dire question aimed at addressing the “CSI effect” – that is, the impact that viewing forensic criminal television dramas have upon juror behavior. Charles and Drake v. State, 414 Md. 726 (2010). In that case, the trial court asked the venire question, “I’m going to assume that many of you, from having done a few of these, watch way too much TV, including the so-called realistic crime shows like CSI and Law and Order. I trust that you understand that these crime shows are fiction and fantasy and are done for dramatic effect and for this dramatic effect they purport to rely upon, “scientific evidence,” to convict guilty persons. While this is certainly acceptable as entertainment you must not allow this entertainment experience to interfere with your duties as a juror. Therefore, if you are currently of the opinion or belief that you cannot convict a defendant without ‘scientific evidence,’ regardless of the other evidence in the case and regardless of the instructions that I will give you as to the law, please rise.” Id. at 730.

On appeal, the Court of Special Appeals affirmed, finding that the question was an appropriate inquiry made to identify venire persons who, without “CSI-type” evidence, could not convict. Id. However, the Court of Appeals disagreed and reversed, noting that its concern was with the language of the question, rather than its object, and that whether a voir dire inquiry related to the purported “CSI effect” is appropriate at a theoretical level was a question to be left for another day. Charles and Drake, 414 Md. at 733. The Court summarized the voir dire question asked as whether the jury could not “convict” the defendants without “scientific evidence.” Id. at 728, 731. The Charles and Drake Court concluded that the judge abused his discretion by suggesting to the panel that convicting Drake and Charles was the only option. Id. According to the Court, this suggestive question poisoned the venire, thereby depriving Drake and Charles of a fair and impartial jury. Id.

Here, the challenged voir dire question was nearly identical that posed in Charles and Drake. As a result of this improper question, Stringfellow was deprived of a fair and impartial jury. Both questions expressed a similar foregone conclusion as to the expected outcome of the trial and clearly laid out only one option, guilt, without presenting any alternative verdict. Permissible voir dire questions use neutral language, asking the venire if they would “give either more weight or less weight,” or whether they “have strong feelings,” or whether they have beliefs that might affect their ability “to render a fair and impartial verdict.” As such, the error fundamentally affected Stringfellow’s right to a fair trial.

Accordingly, the circuit court judgment was reversed.

COMMENTARY: Stringfellow additionally argued that there was insufficient evidence of possession to sustain his two handgun convictions.

Under PS §5–133(b)(1), a person may not possess a regulated firearm if the person has been convicted of a disqualifying crime. CL §4–203(a) prohibits a person from wearing, carrying, or transporting a handgun. Both crimes require that the person possess a handgun.

Stringfellow contended that the State’s evidence was insufficient to show that he possessed the gun because: (1) more than one person besides himself stood near where the gun was found; (2) he did not flee from the police; and (3) the gun was not processed for fingerprints.

However, two witnesses testified that they saw Stringfellow holding the gun. If their testimony was credited by the jury, as it clearly was here, that testimony was sufficient for a rational juror to conclude beyond a reasonable doubt that Stringfellow possessed the gun. As such, Stringfellow’s argument was without merit.

Real Property

Foreclosure fees

BOTTOM LINE: Although it was improper to require a successful third-party bidder at a foreclosure sale to pay the trustees an additional $295 as an attorney’s fee where deed of trust did not authorize such a fee, mortgagor of the foreclosed property had no standing to raise the fee question because mortgagor suffered no injury-in-fact as a result of the improperly imposed fee.

CASE: Maddox v. Cohn, No. 15, Sept. Term, 2009 (filed May 26, 2011) (Judges Woodward, ZARNOCH & Graeff). RecordFax No. 11-0526-00, 18 pages.

FACTS: On November 29, 1993, Bonnie Maddox purchased property in Mardela, Maryland. On February 16, 2007, Maddox obtained a mortgage on the property with Beneficial Mortgage Co. of Maryland for $87,512. On February 22, 2009, after making $6,469 in payments on the principal, she defaulted on the mortgage. By July 2, 2009, Maddox owed Beneficial $81,512, including interest and late charges.

On September 4, 2009, Beneficial filed an affidavit of default and notice of intent to foreclose, initiating foreclosure proceedings through its substituted trustees, Edward Cohn, Esq., Stephen Goldberg, Esq., Richard Rogers, Esq. and Richard Solomon, Esq. Prior to the foreclosure sale, weekly advertisements appeared in the Salisbury Daily Times for three successive weeks, stating, “Purchaser agrees to pay a fee of $295 to the Sellers’ attorneys at the settlement for review of the settlement documents.” The auction took place on November 9, 2009. At the sale, Beneficial was the highest, and presumably only, bidder. The substituted trustees sold the property to Beneficial for $77,044. The trustees filed a Report of Sale with the court that same day, as is required following a foreclosure sale.

After the court issued a notice that the sale would be ratified and confirmed in 30 days, Maddox filed a timely exception to the Report of Sale, objecting to the proposed ratification. Maddox argued that the auction was improper because as a condition of being able to submit an acceptable bid at the auction, any would-be purchaser was required to agree to pay a fee that was not authorized by the debt instrument or by the applicable rules governing sales of property in foreclosure proceedings. The trustees responded that Maddox had no evidence showing that any bidders were specifically discouraged from bidding at the sale because of the fee. On February 4, 2010, the court held a hearing on the issue and subsequently issued an order denying Maddox’s objections and ratifying the foreclosure sale.

Maddox appealed to the Court of Special Appeals, which affirmed the circuit court judgment.

LAW: Because the propriety of the attorney’s fee was decided by the circuit court and because the issue was of sufficient importance, the Court of Special Appeals stated its views on whether, under the circumstances presented here, imposition of an additional fee by an attorney/trustee was permissible.

A foreclosure action may be initiated when a party who has conveyed property to a lender to hold as collateral for a debt defaults on the loan. Fagnani v. Fisher, ––– Md. –––– (filed Mar. 18, 2011), Slip op. at 6–7. Where, as here, the debtor conveys the property to a third-party trustee, instead of the lender, the legal relationship between the parties is evidenced by a deed of trust. Id. at 7. The deed of trust acts as a security interest device that transfers the legal title from a property owner to one or more trustees to be held for the benefit of a beneficiary. Id.

The process of foreclosure when there is a deed of trust has been described as a power of sale which enables the trustee to sell the property upon the debtor’s default, in order to reimburse the lender for the debt. Pursuant to the power of sale provision, a trustee may institute a foreclosure action, in which the trustee may order and direct that the mortgaged premises, or so much thereof as may be necessary to discharge the money due and costs, be sold for ready money. Id. at 7–8. Following the sale and ratification by the court, the trustee must convey the property to the purchaser, which necessarily includes reviewing the parties’ settlement documents. Md. Rule 14–215(c). During foreclosure proceedings, the court itself is regarded as the vendor, and the trustee conducting the sale is considered to be the court’s agent. Fowler v. Fitzgerald, 82 Md.App. 166, 173 (1990). As the court’s agent, the trustee is entitled to compensation for facilitating the sale of the property. Id. at 177.

In Maryland, there is no statewide rule governing the compensation of trustees. Instead, judicial circuits have adopted local rules which provide for the compensation that may be allowed to a trustee who conducted a foreclosure. Id.; see also Md. Rule 1–102. When an attorney is also acting as a trustee, the question of whether the attorney is entitled to separate payment for each role arises. Early Maryland caselaw recognizes that if an attorney is acting as a trustee, the attorney may receive both an attorney’s fee and a trustee’s commissions. Title Guarantee & Trust Co. v. Burdette, 104 Md. 666 (1906). The Second Judicial Circuit took a similar approach, holding that where an instrument under which a sale is made provides for the allowance of a counsel fee, the amount thereof shall be charged against the estate in addition to the commissions provided for in this Rule. Local Rule BR 8(c). The commissions referenced in the rule refer to the compensation owed to the fiduciary, or trustee. Local Rule BR 8(a).

However, the majority of local rules in Maryland regarding foreclosure proceedings give more discretion to the individual circuit courts. More recent Maryland caselaw reflects this approach, stating that, unless statutory authority dictates otherwise, circuit courts have the authority to control both the amount and the aggregation of these fees. Fowler, 82 Md.App. at 176. When an instrument under which a sale is made provides for the allowance of a counsel fee, the amount thereof may be charged against the estate, or against the compensation to the fiduciary, or divided between them as justice may require. Local Rule BR 1(c).

Under this type of rule, the court has several options when dealing with one party who is both the attorney and trustee during a foreclosure proceeding. If the court allows the attorney’s fee to be charged to the estate, the court is allowing the attorney/trustee to double-charge and receive an additional fee separate from that owed to the trustee. If the court orders the attorney’s fee to come out of the trustee’s compensation, the attorney/trustee is only receiving one fee.

While the judicial circuits differ over their approach to double-charging, there is a consensus that any valid attorney’s fee must be explicitly provided for in the debt instrument. In this case, the language in the debt instrument did not explicitly state that a $295 fee will be charged to the successful bidder, but merely provided for “reasonable attorneys’ fees” and did not state a specific amount or percentage. Under these circumstances, where an attorney’s fee was not provided for in the debt instrument and was not authorized by any statute or rule, it was impermissible for an attorney/trustee to charge such a fee to a third-party purchaser.

COMMENTARY: As a threshold inquiry in any litigation, a party must be able to demonstrate a real and justiciable interest that is capable of being resolved through litigation. Norman v. Borison, 192 Md.App. 405, 420 (2010). This showing necessarily requires a demonstration of some kind of injury-in-fact, or an actual legal stake in the outcome of the litigation. Id.

In this case, the fee was never actually charged because the sale was a lender “buy-in.” Even if the fee had been charged, Maddox was not the party who would have had to pay it; the fee was to be paid by the successful bidder. Therefore, the only way for Maddox to prove injury-in-fact was to show that the advertisement of the fee alone, rather than its imposition, injured her. In other words, Maddox could demonstrate injury-in-fact, or an actual legal stake in the outcome of the present litigation, only if another bidder was willing to bid more money than Maddox owed Beneficial but was deterred by the advertised fee.

However, the record lacked any evidence showing that, had the fee been excluded, another purchaser would have paid more than $81,512 (what Maddox owed Beneficial) for the property, resulting in a surplus for Maddox. A surplus from the sale would be the only way the end result could have been different for her, thereby showing an injury-in-fact, or an actual legal stake in the outcome of the litigation. Because the record contained no evidence of a deterred, potentially higher bidder, there was no demonstrated difference in the outcome for Maddox that depended on whether the fee was advertised or not.

Furthermore, there was no evidence in the record of any fraud or wrongdoing on the part of the trustees. Absent evidence of fraud, or of a deterred higher bidder, the record supported the circuit court’s ratification of the foreclosure sale.

PRACTICE TIPS: Although some have argued that a foreclosure sale is not a judicial sale and thus, the circuit court cannot regulate trustee compensation under local rules, the leading treatise rejects this view. In addition, Md. Rule 14–215 expressly provides that foreclosure sales are to follow the procedures set forth in Md. Rule 14–305, which deals with judicial sales.