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Opinions – 9/19/11: Maryland Court of Special Appeals

Administrative Law

Land use

BOTTOM LINE: Defendant adequately articulated its finding that a preliminary subdivision plan was consistent with the land use provisions in Prince George’s County’s General Plan and Master Plan and there was substantial evidence in the administrative record to support that finding.
CASE: Naylor v. Prince George’s County Planning Board, No. 2809, Sept. Term, 2008 (filed Aug. 31, 2011) (Judges Eyler, J., Kehoe & KENNEY (retired, specially assigned)). RecordFax No. 11-0831-02, 30 pages.

FACTS: In its 2002 General Plan, the Maryland–National Capital Park and Planning Commission (the Commission) set, as a “smart growth” initiative, an objective of limiting the  percentage of dwelling unit growth in the Rural Tier of Prince George’s County through the year 2025 to less than one  percent (the 1 percent growth objective).

The property at issue is a 95.5 acre parcel in the Rural Tier. The parcel is zoned Open–Space (O–S), which permits single family detached residences on five acre lots, subject to a density limit of .2 dwelling units per acre.

On Dec. 9, 2004, the Prince George’s County Planning Board of the Commission (the Planning Board) adopted an amended resolution (the Amended Resolution) approving a preliminary subdivision plan submitted by Archers Glen Partners, Inc. (the Developer) for construction of nineteen homes in a development to be known as Bennington Farms (the Preliminary Plan).

Debra Naylor, Esther Naylor, Ruth Naylor, Joyce Anderson, Charles and Janette Hoisington, Scott and Susan Morrill, Ross Williams, and the Greater Baden–Aquasco Citizens Association (collectively Citizens) petitioned for judicial review of the Planning Board’s action in the circuit court. The circuit court affirmed the Amended Resolution approving the Preliminary Plan.

The Citizens appealed to the Court of Special Appeals, which affirmed.

LAW: In Archers Glen Partners, Inc. v. Garner, 176 Md.App. 292 (2007), aff’d on other grounds, 404 Md. 203 (2008), the Citizens challenged the Planning Board’s approval of the preliminary subdivision plan for Archers Glen, a development of forty-seven residences to be built by Developer on property bordered by the Bennington Farms parcel. In a prior appeal, the Court of Appeals had remanded to the Planning Board because it failed “to articulate its decision with adequate specificity” as to whether the plan was consistent with the land use provisions in the County’s General Plan and Master Plan. Id. at 296.

The Planning Board thereafter held a new evidentiary hearing and adopted an amended resolution, again approving the preliminary subdivision plan. Citizens petitioned for judicial review. The circuit court concluded that the Planning Board’s resolution was once again insufficient because it did “not contain information relating specifically to projected housing unit growth in Prince George’s County between 2000 and 2025.” Id. at 303. The circuit court remanded to the Board. Id. at 304.

Developer and the Planning Board appealed to the Court of Appeals. The Court found that “the Master Plan is a binding document” that, although it “does not expressly contain a numeric growth objective,” must nevertheless “be consistent and compatible” with the General Plan[,]” which does contain the 1 percent growth objective. Id. at 315.

Nevertheless, “[t]he General Plan and the Master Plan contain many general goals and objectives, not necessarily consistent when applied to a specific property.” Id. at 316. For that reason, “at times, various provisions in the Plans have to be interpreted and applied, in light of other provisions, the goals, and limitations contained in the Plans.” Id. That function is performed by the Board. Id.

In the remanded proceedings before the Planning Board, Citizens’ arguments focused on “whether the Board appropriately considered and balanced all objectives in the Plans,” rather than focusing specifically “on the 1 percent numeric growth limitation.” Id. at 322–23.

Alan Hirsch, presenting the Planning Staff’s recommendation that the Planning Board approve the Archers Glen plan, testified as to the elements of both the Master Plan and the General Plan as applied to the property in question, indicating that all those elements were considered by the staff and that the Archers Glen plan conformed to them. Id. The Planning Board agreed with that testimony. Id.

Because “[t]he Planning Board is in the best position to determine whether the preliminary subdivision plan conformed to the County’s Plans [,]” the Court of Special Appeals declined to “disturb that judgment,” vacated the circuit court’s judgment, and remanded with instructions to affirm the Planning Board’s decision to approve the Archers Glen plan. Id. At the conclusion of its opinion, the Court noted that, although the parties devoted substantial portions of their brief to arguing whether the General Plan’s Growth Objectives are binding on the Commission and applicants in the subdivision review process, that issue was not properly before the Court. Id. at 60.

A year and a half later, however, the question of what impact the 1 percent growth objective has on the subdivision review process was squarely presented in Md. Nat’l Capital Park & Planning Comm ‘n v. Greater Baden–Aquasco Citizens Ass’n, 412 Md. 73 (2009). There, a developer applied for a preliminary subdivision plan for twenty residences on a parcel located in the Rural Tier in southern Prince George’s County. Id. at 77. Citizens opposed the application. The Commission’s Planning staff did not address the 1 percent growth objective. Id. at 106.

The Planning Board approved the application. Id. Citizens petitioned for judicial review. Id. The circuit court remanded to the Planning Board because there was not substantial evidence in the record to support the Planning Board’s conclusion that the preliminary plan conformed with the General and Master Plans” Id. at 77, 80. The developer and the Planning Board appealed.

The Court of Special Appeals applied Archers Glen in holding that the 1 percent growth objective in the General Plan is “binding” on the Planning Board, although the Board has “discretion … in its interpretation and application … to a preliminary subdivision plan.” Greater Baden, 412 Md. at 81, 83. The panel further concluded that “‘when the evidence in a given case generates a material issue as to compliance with that objective,’ the Planning Board must address the General Plan’s numeric growth objective vis-a-vis the preliminary plan application before it.” Id. at 81–82. It held that, because Citizens’ testimony raised the issue and the Planning Board failed to adequately consider it in either its deliberations or its resolution, “there was not substantial evidence that the application conformed to the Master Plan and the General Plan.” Id. at 81.

The Court of Appeals affirmed. However, it declined to adopt as a general proposition that the Planning Board cannot make its written findings of fact by referencing or incorporating the contents of a staff report. Id. at 82 n. 9. Instead, it endorsed the approach articulated in Colao v. County Council of Prince George’s County, 109 Md.App. 431, 460–61 (1996), that staff reports and recommendations may be adopted in the Planning Board’s resolution “so long as the adopted findings and conclusions with each of the reports are sufficiently articulated, clear, and specific.” Id.

Applying that standard to the Greater Baden administrative record, the Court pointed out that “the Planning Board did not simply incorporate by reference the Technical Staff’s Report.” Id. Although it “included large portions of the report in the [r]esolution,” the Board also made “additional findings of fact and conclusions.” Id.

The Court concluded that even though the Planning Board’s resolution approving the preliminary subdivision plan stated that the application was “not inconsistent” with the General Plan and repeated certain goals found in the General Plan to buttress its approval, it did not mention the 1 percent growth objective. Id. That deficiency required remand. Id. at 106–09.

It is clear that mere reference to the 1 percent growth objective, in the form of a conclusory statement in a resolution, cannot satisfy the Planning Board’s obligation to “offer some analysis of how the … plan may impact” the 1 percent growth objective. See Greater Baden, 412 Md. at 107. To constitute meaningful consideration of that objective, the Greater Baden Court concluded that “it is necessary that the Planning Board at least account for how, if at all, the proposed subdivision might affect residential growth in the Rural Tier, even if some modest assumptions must be made, and more difficult decisions deferred to later in the development process.” Id. at 108.

Here, the Amended Resolution satisfied that standard. Albeit briefly, the Board expressly acknowledged the 1 percent growth objective and discussed how the Bennington Farms subdivision would conform to it, when it stated that “[t]he ultimate development of the 19 lots created by this subdivision [is] not in conflict with the hundreds of dwelling units envisioned in the Rural Tier over the next approximate 20 years, given one percent of the County’s residential growth in that time frame.” This indicates that the Board determined that, given the “relatively distant” advent of the 2025 benchmark, it anticipated the addition of “hundreds” of dwelling units in the Rural Tier during that time frame, and that approval of these additional nineteen dwelling units would not result in the total number of approved units in the Rural Tier exceeding that targeted amount.

The Planning Board’s finding reflected the principle recognized in Greater Baden, that “[a]lthough it is mandatory that the Planning Board consider the numeric residential growth objective, it has leeway in that regard, especially where the 2025 horizon selected in the growth objective remains relatively distant at the present time.” Id. at 107.

The final issue, then, was whether there was substantial evidence to support the Board’s finding that approval of the Preliminary Plan for Bennington Farms was not inconsistent with the 1 percent growth objective.

“Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Archers Glen, 176 Md.App. at 307. When the administrative record contains “the facts on which the agency acted or a statement of reasons for its action,” the substantial evidence standard has been satisfied. Id.

Alan Hirsch, from the Planning Staff, was questioned about how the 1 percent growth objective applied to that subdivision application. Citizens argued that Hirsch’s admissions that “no calculation had been performed to determine and/or predict the rate of residential growth in the Rural Tier” and that “[n]o investigation was undertaken to determine how many houses had been built or were approved to be built in a two-mile radius around Bennington Farms” compelled the conclusion that the record lacked substantial evidence to support the Board’s conformance finding.

The Planning Board concluded and explained that the nineteen residences in this subdivision would not be inconsistent with the 1 percent growth objective because, at the targeted growth rate of 1 percent in the Rural Tier through 2025, hundreds of additional dwelling units would be added during the remaining twenty years of that period, and the nineteen new residences in Bennington Farms would not conflict with that target. This finding was supported by Mr. Hirsch’s testimony. Cf. Greater Baden, 412 Md. at 110.

Absence of specific projections as to total dwelling unit growth in the Rural Tier through 2025 or the failure to present a comprehensive accounting of previously approved subdivisions in the Rural Tier are not reasons to vacate the amended resolution. Although at some point during the 23-year period between 2002 and 2025, the Board must calculate where it stands on dwelling unit growth in the Rural Tier, at the time of this application in 2006, the Board was not required to do so with respect to this particular application.

COMMENTARY: Principles of claim and issue preclusion did not bar this appeal. Although this case involved the same parties in the Archers Glen litigation, it was undisputed that the Preliminary Plan for Bennington Farms differs from the preliminary plan for Archers Glen, reflecting differences in the location, size, configuration, and timing of the two subdivisions. For that reason, the administrative record adduced with respect to the Bennington Farms Preliminary Plan was not the same administrative record that was reviewed in Archers Glen. Given such differences in the evidentiary facts, Developer’s motion to dismiss the appeal was denied See generally Klein v. Whitehead, 40 Md.App. 1, 18 (1978).

PRACTICE TIPS: It is within the Planning Board’s discretion to deny a subdivision application that complied with applicable zoning regulations on the ground that it exceeded density rates in the applicable Master Plan. See Coffey v. Md. Nat’l Capital Park & Planning Comm’n, 293 Md. 24, 30–31 (1982).

Civil Procedure

Timeliness of appeal

BOTTOM LINE: Appellant’s failure to timely file a technically sufficient notice of appeal was not excused by circuit court clerk’s erroneous acceptance and filing of plaintiff’s notice of appeal. The Court of Special Appeals therefore dismissed the appeal for lack of jurisdiction.

CASE: Lovero v. Da Silva, No. 1547, Sept. Term, 2009 (filed Sept. 1, 2011) (Judges WOODWARD, Graeff & Hotten). RecordFax No. 11-0901-02, 21 pages.

FACTS: On July 29, 2009, a Maryland district court granted Gaetano Lovero a Judgment of Absolute Divorce from his then-wife, Joelma Da Silva. The clerk of the court entered the judgment on the docket on July 31, 2009. In that judgment, the court ordered, inter alia, Lovero to pay indefinite alimony of $300 per month to Da Silva.

On Aug. 28, 2009, a Notice of Appeal was delivered to the clerk of the circuit court. The Notice of Appeal stated simply that Lovero was filing an appeal relative to the order dated July 29, 2009. The Notice of Appeal did not include a certificate of service or an admission or waiver of service, as required by Maryland Rule 1–323. Nevertheless, the Notice of Appeal was filed on Aug. 28, 2009. Lovero did not serve a copy of the Notice of Appeal upon the Da Silva’s attorney of record.

On Sept. 4, 2009, Lovero filed an Amended Notice of Appeal with the clerk of the circuit court. Da Silva’s attorney received a copy of the Amended Notice of Appeal on Sept. 8, 2009. Attached to this Amended Notice of Appeal was a certificate of service stating that the Amended Notice had been mailed to Da Silva’s counsel. Also on Sept. 8, 2009, the clerk’s office entered both the Notice of Appeal and the Amended Notice of Appeal on the docket.

On Sept. 14, 2009, Da Silva filed a motion to strike Lovero’s notices of appeal pursuant to Maryland Rule 8–203(a)(1), arguing that Lovero did not file a notice of appeal within 30 days after entry of the Judgment of Absolute Divorce. On Sept. 30, 2009, the circuit court denied Da Silva’s motion to strike without any explanation. On Dec. 11, 2009, Da Silva filed in the Court of Special Appeals a motion to dismiss Lovero’s appeal under Maryland Rule 8–602(a)(3).2 By order dated Jan. 7, 2010, the Court of Special Appeals denied the motion to dismiss, without prejudice to Da Silva’s right to seek the same relief in her brief.

In her brief, Da Silva renewed her motion to dismiss the appeal. The Court of Special Appeals granted Da Silva’s renewed motion and dismissed Lovero’s appeal.

LAW: It was undisputed that Lovero’s Notice of Appeal was delivered to the clerk of the circuit court on Aug. 28, 2009, which was within 30 days after the entry of the judgment from which the appeal was taken. In her renewed motion to dismiss, however, Da Silva argued that Lovero’s initial, timely-filed appeal was ineffective ab initio because it lacked proof of service. Specifically, Da Silva contended that a notice of appeal is filed on the date that the notice is received by the clerk’s office, except for notices of appeal that fail to comply with the certificate of service requirement of Md. Rule 1–323.

Da Silva further argued that a notice of appeal that lacks the required certificate of service cannot be deemed “filed” on the date that the notice is received by the clerk, and that for this reason, Lovero’s original Notice of Appeal should not have been entered as filed on Aug. 28, 2009. Lovero’s Amended Notice of Appeal, which did include the required certificate of service, was filed on Sept. 4, 2009, four days after the expiration of the 30-day period prescribed in Rule 8–202(a). As such, Da Silva contended, Lovero’s appeal was not timely “filed” and should be dismissed.

Thus, the question to be resolved by the Court of Special Appeals was whether Lovero’s initial Notice of Appeal was “filed” within the meaning of Maryland Rule 8–202(a) on Aug. 28, 2009. Rule 8–202 requires that except as otherwise provided by law, a notice of appeal must be filed within 30 days after entry of the judgment or order from which the appeal is taken. In this Rule, “judgment” includes a verdict or decision of a circuit court to which issues have been sent from an Orphans’ Court. This 30-day filing limitation prescribed in Rule 8–202(a) is jurisdictional. Ruby v. State, 353 Md. 100, 113 (1999). In essence, the “mandatory” parts of Rule 8–202(a) are two-fold: first, the notice of appeal must be “filed;” and second, the filing must be within the specified 30-day time period.

In Cave v. Elliott, the Court of Special Appeals set forth the definition of “filed” under the Maryland Rules as articulated by the appellate courts of Maryland. Cave v. Elliott, 190 Md.App. 65, 75 (2010). Under Maryland law, a paper is said to be “filed” when it is delivered to the proper officer and received by him to be kept on file. Id. at 92. Corresponding to the delivery of a pleading or paper to the clerk is the duty of the clerk to record any such pleading or paper as filed and entered on the docket of the case in question. See Md.Code (1974, 2006 Repl.Vol.), §2–201(a)(3) of the Courts & Judicial Proceedings Article (“C.J.”). This duty has been classified as “ministerial.”

In descriptions of a clerk’s ministerial duty, Maryland courts have noted that the clerk has no discretion in the matter and no right to make a judicial determination of whether the paper complies with the Rules or ought to be filed; if the paper has not been presented timely or if it suffers from some other deficiency, it is subject to being stricken by the court, usually upon motion of a party objecting to the paper, but so long as it is properly presented, the clerk must accept and file it. Dir. of Fin. v. Harris, 90 Md.App. 506, 513 (1992). Thus, under most circumstances, regardless of how defective or deficient the pleading or paper is, the clerk may not reject it, but rather should leave it to the court and the parties to determine the sanction for the defect or deficiency. Paul V. Niemeyer, Linda M. Schuett, John A. Lynch, Jr., & Richard W. Bourne, Maryland Rules Commentary 48–49 (3d ed. 2003).

The only exception to the duty of the clerk to file a pleading or paper, regardless of a defect or deficiency, is the requirement of Maryland Rule 1–323 that the “clerk shall not accept for filing” a pleading or paper requiring service that does not contain an admission or waiver of service or a signed certificate showing the date and manner of making service. See Harris, 90 Md.App. at 513. Rule 1–323 serves the function of assuring the court that procedural due process is accorded to the parties at every step of the litigation process. A pleading or paper required to be served by Rule 1–321 that does not contain an admission or waiver of service or a signed certificate showing the date and manner of making service cannot become a part of any court proceeding, and the clerk is mandated by Rule 1–323 not to accept for filing any such pleading or paper. See Ace American Insurance Co. v. Williams, 418 Md. 400, 414, 421 (2011).

Applying this holding to the facts of the present case, Lovero’s Notice of Appeal should not have been accepted for filing on Aug. 28, 2009, because the notice did not contain an admission or waiver of service or a signed certificate of service, as required by Rule 1–323. By erroneously accepting Lovero’s Notice of Appeal on Aug. 28, 2009, the circuit court clerk caused the docket entries for the case to reflect that the Notice of Appeal had been “filed” on Aug. 28, 2009. Thus, it remained for the Court to determine what legal effect was had by the clerk’s erroneous acceptance of a notice of appeal that was required by Rule 1–323 to be rejected for lack of any certificate of service.

Rule 1–323 does not prescribe any consequences for the clerk’s failure to follow its mandate. Under Rule 1–201, where no consequences are prescribed by the rule for noncompliance with mandated conduct, the court may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule. Previous holdings by Maryland courts have clearly suggested that a notice of appeal that fails to comply with the proof of service requirement under Rule 1–323 is not “filed” within the meaning of Rule 8–202(a), notwithstanding the delivery to and acceptance by the clerk of such defective notice. See Bond v. Slavin, 157 Md.App. 340, 353 (2004).

Thus, because Lovero’s Amended Notice of Appeal was filed on Sept. 4, 2009, more than 30 days after the entry of the judgment from which the appeal was taken, the Court of Appeals acquired no jurisdiction. Accordingly, Lovero’s appeal was dismissed.

COMMENTARY: In disputing Da Silva’s motion to dismiss, Lovero argued that the holding in Frank v. Storer, 308 Md. 194 (1986), supported his position that the acceptance and docketing of the Notice of Appeal by the clerk’s office provided constructive notice to any persons interested in the status of the case, and whether an appeal was noted. Frank involved a promissory note that was secured by a deed of trust on three Maryland properties. Frank v. Storer, 308 Md. at 196.

However, the Frank decision related to the recording and indexing requirements for documents filed in the land records, not pleadings or papers filed in the litigation of a case. The policy issues surrounding the filing of documents in the land records are markedly different from those involving the filing of pleadings and papers in a court case. More importantly, although the clerk in Frank was authorized to reject a deficient document for recording, the clerk was not required to do so.

Here, by contrast, the clerk was mandated to enforce the requirements of Rule 1–323 by not accepting for filing a pleading or paper that does not comply with those requirements. As such, Frank was readily distinguishable from the instant case.

PRACTICE TIPS: It is the practice of Maryland appellate courts to decide appeals on the merits rather than on technicalities. Indeed, the appellate courts of Maryland have generally been quite liberal in construing timely orders for appeal, and have often overlooked clerical errors or minor technical deficiencies in order to decide a case on the merits. However, such cases proceed from the premise that the notice of appeal was timely filed and the appellate court thus had jurisdiction to consider the matter; by contrast, where a notice appeal is not timely filed, the court is deprived of jurisdiction to rectify any deficiency, regardless of the merits of the appeal or the lack of prejudice.

Contracts

Enforcement of government contracts

BOTTOM LINE: Where City Council did not approve a written amendment to a service contract between county and a government contractor, trial court erred in denying county’s motion for judgment with regard to plaintiff’s claim for additional services because the contract required that any amendment be in writing and approved by the County Council.

CASE: Baltimore County, Maryland v. Aecom Services, Inc., No. 1301, Sept. Term, 2009 (filed Sept. 1, 2011) (Judges Meredith, Hotten & WATTS). RecordFax No. 11-0901-01, 55 pages.

FACTS: This case involved dispute between Baltimore County and DMJM H & N, Inc., now known as AECOM Services, Inc., regarding payment for services performed in connection with the expansion of the Baltimore County Detention Center. On Dec. 18, 2000, the County and DMJM entered into a contract in which DMJM was appointed as the architect to provide professional architectural and engineering services in connection with a project to construct an addition and associated parking structure at the Baltimore County Detention Center. Under the terms of the contract, DMJM was to be paid $4,516,779.16. The contract contained provisions addressing changes in the work or services to be performed and payment.

On Jan. 20, 2006, the County filed a two-count complaint against DMJM in circuit court alleging that DMJM breached the contract and negligently performed architectural and engineering services resulting in damages to the County in the amount of $5 million. DMJM filed a counterclaim and an amended counterclaim for breach of contract, seeking payment for services under the “base contract” and for “additional services.” A jury awarded damages in favor of DMJM, including payment for the additional services.

The County appealed to the Court of Special Appeals, asserting that the circuit court erroneously denied the County’s motion for judgment at the conclusion of the trial with respect to DMJM’s claim for additional services because there was no contract amendment approved by the County Council for those services, and that DMJM’s counterclaim for additional services was barred by the one-year statute of limitations in Md. Ann.Code, Article 25A, §1A(c). DMJM filed a cross-appeal asserting that the trial court erred in denying DMJM pre-judgment interest.

The Court of Special Appeals found that the circuit court erred in denying the County’s motion for judgment and did not err in refusing to submit to the jury the issue of pre-judgment interest, and entered an order reversing in part and affirming in part the circuit court’s judgment.

LAW: On appeal, the County argued that the trial court erroneously denied its Motion for Judgment at the conclusion of the trial as to DMJM’s claim for additional services because there was no written contract amendment approved by the County Council obligating the County to pay for the services. Article 4 and Article 21.1 of the contract required that any amendment to the contract be in writing and approved by the County Council, and it was undisputed that the Council did not approve an amendment for the payment of the claimed additional services. The County presented three bases for its position: (1) the plain meaning of the contract; (2) the plain meaning of the applicable Baltimore County Charter and Baltimore County Code (“B.C.C.”) sections; and (3) relevant case law.

Appellate courts take an objective approach to contract interpretation. Unless a contract’s language is ambiguous, the court gives effect to that language as written without concern for the subjective intent of the parties at the time of formation. Ocean Petroleum, Co. v. Yanek, 416 Md. 74, 86 (2010). When interpreting a contract, the court is confined to “the four corners of the agreement,” and ascribes to the contract’s language its customary, ordinary, and accepted meaning. Id.

In this case, Article 4.1 of the contract between the County and JMJM provided that the County, by written order, could make changes in the work or services to be performed by DMJM, and if those changes caused an increase or decrease in the cost of the contract, an equitable adjustment would be made and the contract modified in writing accordingly. The plain meaning of Article 4.1 was clear and unambiguous: the clause required that any adjustment claims sought by DMJM be asserted in writing within 30 days of DMJM’s receipt of notification of changes by the County. The meaning of Article 4.2 of the contract was likewise clear: DMJM could charge for no additional services without written authorization of the County.

Article 7.2, relating to payment of the direct labor costs, provided that direct labor costs were not to exceed a total value of $4,516,779 unless authorized by properly executed amendment. DMJM identified no ambiguous language in Article 7.2 which would permit the amount payable under the contract to exceed $4,516,779, absent a properly executed amendment. Thus, the meaning of Article 7.2 was also clear: without an amendment to the agreement signed by the parties, the cost of the contract to the County could not be greater than $4,516,779.

Article 21.1 of the contract, titled “Special Causes, Council Approval,” stated that DMJM, by entering into the contract, covenanted that the agreement was subject to and in compliance with provisions of §715 of the Baltimore County Charter, Article VII, title, ‘Budgetary and Fiscal Procedures. Charter §715 provides that any contract must be approved by the county council before it is executed if the contract is for services for a term in excess of two years or involving the expenditure of more than $25,000 per year or such amount or term as may be set by legislative act of the county council. By a plain reading of Article 21.1 and Charter §715, in signing the contract, DMJM agreed that any contract for services lasting more than two years or for a cost of more than $25,000 per year must be approved by the County Council.

Thus, the language of the contract was entirely unambiguous. Based on a plain reading of the document, in simplest terms, DMJM did not comply with the requisite procedures for seeking compensation for additional services. As such, there was no merit to DMJM’s position that the contract allowed for the County to be obligated to pay for additional services beyond those authorized by a properly executed written amendment approved by the County Council.

Likewise, the plain meaning of the relevant provisions of the Baltimore County Charter and the B.C.C. supported the conclusion that an enforceable contract amendment required approval by the County Council. As discussed, Article 21.1 of the contract required that DMJM comply with Charter §715 and the B.C.C., both Charter §715 and the relevant B.C.C. sections are clear and unambiguous, requiring contracts to be approved by the County Council. Once more, DMJM identified no ambiguous words or phrases in the relevant Charter and B.C.C.

Finally, relevant case law supported the conclusion that the County could contract only by the method prescribed by the legislature. Case law is clear that a governmental entity, unlike a private corporation, may never have an obligation imposed upon it to expend public funds except in the formal manner expressly provided by law. Alternatives Unlimited, Inc., 155 Md.App. at 425. It is well settled that a county or municipality can make a contract only in the manner prescribed by the legislature. This rule is strict; if the municipality’s charter provisions are not precisely followed during the contracting process, the contract is ultra vires, or outside the power of the municipal corporation to make, and void ab initio. State of Maryland Comm’n on Human Rels. v. Baltimore City Dep’t of Rec. and Parks, 166 Md.App. 33, 41–42 (2005).

The overarching principle of relevant case law is that a governmental entity, unlike a private corporation, may never have an obligation imposed upon it to expend public funds except in the formal manner expressly provided by law. Gontrum v. Baltimore, 182 Md. 370, 375 (1943). There is no exemption from this rule because of any apparent authority of one of its agents to bind the governmental entity; rather, all persons dealing with the agent of a municipal corporation are bound to ascertain the nature and extent of his authority. Dillon’s Municipal Corporations, 5th Ed., Sec. 777. Accordingly, a municipal corporation is not bound by a contract made in its name by one of its officers or by a person in its employ, although within the scope of its corporate powers, if the officer or employee had no authority to enter into such a contract on behalf of the corporation. 38 Am.Jur., Municipal Corporations, p. 183.

For these reasons, the circuit court erred in denying the County’s motion for judgment. Accordingly, the judgment of the circuit court denying the County’s motion was reversed, and remanded with instructions for the circuit court to vacate the judgment in favor of DMJM.

COMMENTARY: DMJM contended that the County was estopped from enforcing compliance with Articles 4.1 and 4.2 of the contract. However, DMJM’s counterclaim alleged only a breach of contract, and DMJM failed to raise the doctrine of estoppel at trial. As such, the issue of estoppel was not preserved for appeal.

Moreover, as to the merits of DMJM’s argument, Baltimore County Charter §715 requires County Council approval for amendments to a professional services contract for amounts above $25,000 and, the doctrine of estoppel was therefore inapplicable.

PRACTICE TIPS: Pre-judgment interest as a matter of right is the exception rather than the rule. Pre-judgment interest is allowed as a matter of right when the obligation to pay and the amount due have become certain, definite, and liquidated by a specific date prior to judgment so that the effect of the debtor’s withholding payment was to deprive the creditor of the use of a fixed amount as of a known date. Where the recovery is for bodily harm, emotional distress, or similar intangible elements of damage not easily susceptible of precise measurement, the award itself is presumed to be comprehensive, and pre-judgment interest is not allowed. If a case falls in between the “as of right” and “absolute non-allowance,” rules, then pre-judgment interest is within the discretion of the trier of fact.

Contracts

Settlement agreements

BOTTOM LINE: Circuit court properly denied motion to enforce settlement agreement where, following mediation, no final settlement agreement was ever executed and parties’ counsel subsequently continued to discuss outstanding issues, thereby demonstrating a lack of mutual assent to a contract.

CASE: Erie Insurance Exchange v. Estate of Reeside, No. 2941, Sept. Term, 2009 (filed Sept. 1, 2011) (Judges Eyler, D., WRIGHT & Salmon (retired, specially assigned)). RecordFax No. 11-0901-03, 12 pages.

FACTS: This case arose out of a claim for damages filed by the Estate of Jeanne Reeside against Erie Insurance Exchange and the Washington Suburban Sanitary Commission (“WSSC”). The Estate alleged that on July 6, 2003, WSSC sewage pipes backed up, causing raw sewage to flood Reeside’s basement. The complaint further stated that the flood damaged family heirlooms, including photographs, films, and other miscellaneous personal property.

The Estate claimed that WSSC authorized Ralph Reeside, one of the personal representatives of the Estate, to have the Personal Property cleaned and/or restored at an organization operating under the name of Document Reprocessors. The Estate alleged that WSSC failed and/or refused to pay for any clean up and/or remediation and that the Estate was forced to pursue reimbursement against the home owners’ insurance company, Erie. Jeanne Reeside had since passed away.

On Sept. 26, 2007, WSSC and the Estate attended a mediation session. According to the Estate, WSSC made a monetary offer to settle during that meeting. On Oct. 2, 2007, counsel for the Estate sent an email to counsel for Erie and WSSC, stating that counsel had informed the assignment clerk of the settlement, and directing WSSC’s attorney to make the settlement check a two-party check payable to “Document Reprocessors and The Estate of Jeanne Reeside.” On Oct. 10, 2007, the court stayed the case for a period of 30 days, stating that failure to file the joint line of dismissal within 30 days would result in dismissal of the case without prejudice.

By email dated Oct. 17, 2007, counsel for WSSC informed the Estate that “the check and release” would arrive by mail. On Oct. 26, 2007, counsel for the Estate responded that the settlement agreement and release were not acceptable as written. Counsel for the Estate also asked WSSC to make a total of six changes to the agreement.

On Nov. 6, 2007, the Estate emailed WSSC to inquire about the status of the revised settlement agreement. WSSC responded that same day and stated that it was “crucial” to include an indemnification clause. On Nov. 8, 2007, counsel for the Estate informed WSSC that Reeside and his sisters would not sign the settlement agreement with Erie as written, and again requested that Erie make all of the previously requested changes. Counsel for the Estate stated that if Erie did not make these changes, he would request that the clerk put the case back on trial track.

In a reply dated Nov. 14, 2007, WSSC stated that it would not make the suggested changes, and proposed to bring in a mediator. The Estate rejected this suggestion and informed WSSC that it would be requesting this matter be put back on the trial track.” On April 22, 2008, the court reinstated the action.

On Jan. 11, 2010, Erie filed a motion to enforce settlement and for costs. On Feb. 2, 2010, the court held a hearing, and ultimately denied the motion to enforce the settlement agreement.

Erie filed an interlocutory appeal with the Court of Special Appeals, which affirmed the circuit court’s decision.

LAW: Erie argued that the circuit court erred by failing to enter an order enforcing the parties’ settlement agreement and/or permitting the case to proceed to trial after a substituted agreement had been reached.” Specifically, Erie argued that the plain language of the communications between the parties’ counsel demonstrated the existence of the agreement or “substituted contract.”

Settlement agreements are enforceable as independent contracts, subject to the same general rules of construction that apply to other contracts. Maslow v. Vanguri, 168 Md.App. 298, 316 (2006). As long as the basic requirements to form a contract are present, there is no reason to treat such a settlement agreement differently from other binding contracts. David v. Warwell, 86 Md.App. 306, 310 (1991). Where the contract is fair, reasonable and certain, a court of equity can decree specific performance. Excel Co. v. Freeman, 252 Md. 242, 246 (1969).

It universally accepted that a manifestation of mutual assent is an essential prerequisite to the creation or formation of a contract. Cochran v. Norkunas, 398 Md. 1 (2007). Manifestation of mutual assent includes two issues: (1) Manifestation of mutual assent includes two issues: (1) intent to be bound, and (2) definiteness of terms. See CORBIN ON CONTRACTS [ ] § 2.8, p. 131. Failure of parties to agree on an essential term of a contract may indicate that the mutual assent required to make a contract is lacking. See Safeway Stores v. Altman, 296 Md. 486, 489–90 (1983). If the parties do not intend to be bound until a final agreement is executed, there is no contract. See Peoples Drug Stores v. Fenton, 191 Md. 489, 494 (1948).

In this case, no final agreement was ever executed. At the end of the mediation session, the mediator did not prepare anything in writing that stated the terms to which WSSC and the Estate had agreed. In fact, further discussion regarding outstanding issues continued by way of email among counsel for all the parties. The Estate made clear to WSSC that it would not agree to at least three essential terms included in the proposed written settlement agreement. As such, mutual assent required to make a contract was lacking. Thus, no contract of any type was ever formed, and no valid settlement agreement ever existed.

Accordingly, the Court of Special Appeals affirmed the judgment of the circuit court.

COMMENTARY: Erie further contended that the “representations” made by the Estate constituted a “judicial admission” and that, therefore, the court should have dismissed the Estate’s claim against Erie. Erie claimed that the Estate made a judicial admission when its counsel stated in an email, “The Estate is not releasing and/or settling with Erie. The Estate has agreed to dismiss the pending lawsuit as to both WSSC and Erie, with prejudice. The Estate is not giving any sort of blanket release to Erie. The Estate has settled with and is releasing WSSC only.”

However, as counsel for the Estate explained, that statement was made on the condition that WSSC pay the Estate money, didn’t require the indemnification clause, and didn’t require the Estate to settle and release with Erie. With the mediation proceedings as a frame of reference, counsel for the Estate was simply listing the specific provisions to which the Estate had agreed and not agreed during the mediation, and the Estate agreed to dismiss its case against Erie only if it reached a settlement with WSSC. Before the parties could even arrive at the issues involving Erie, the settlement negotiations broke down over the indemnification issue. Given that Erie did not settle between WSSC and the Estate, Erie could not be dismissed from the case.

PRACTICE TIPS: A ruling denying a motion to enforce a settlement agreement, although interlocutory, is subject to immediate appeal under the collateral order doctrine.

Contracts

Statute of limitations

BOTTOM LINE: Where contractual provisions stated that parties waived any bar imposed by the statute of limitations for collection of debt, the waiver provision operated retrospectively, and plaintiff’s claims for breach of contract and unjust enrichment, brought more than three years after contract date, were therefore barred.

CASE: Ahmad v. Eastpines Terrace Apartments, Inc., No. 1043, Sept. Term, 2009 (filed Sept. 1, 2011) (Judges WOODWARD, Kehoe & Salmon (retired, specially assigned)). RecordFax No. 11-0901-00, 21 pages.

FACTS: Plaintiff, M. Abraham Ahmad, brought several claims which arose from a series of business transactions among family members. Eastpines Terrace Apartments, Inc. was established in 1977 by Ahmad’s father, the company’s sole shareholder. Eastpines thereafter purchased the Eastpines Terrace Apartments complex in Riverdale, Maryland. Mehahmad Enterprises, Inc., a business entity organized in 1978, purchased commercial property with capital from Ahmad’s parents.

In 1984, Ahmad, along with his brother and sister, acquired an interest in Stanton Partners, which owned real property on Maryland Avenue in the District of Columbia. In 1986, Ahmad and his brother purchased Metamorphosis Limited Partnership, which owned property on Florida Avenue, also in the District of Columbia. In 1989, the parties consummated a transaction commonly known as a “1031 Exchange.”

Under the terms of the 1031 Exchange, Eastpines transferred Eastpines Terrace Apartments to a third party known as RFI Associates. RFI then delivered to Eastpines the deeds to Stanton’s Maryland Avenue property and Metamorphosis’s Florida Avenue property. RFI also transferred $1,150,000 in cash to Stanton and Metamorphosis. Eastpines received 100 percent ownership in Stanton and 99 percent of Metamorphosis. The remaining 1 percent of Metamorphosis was owned by Ahmad. At the conclusion of the 1031 Exchange, Eastpines owned the Maryland Avenue property, the Florida Avenue property, 100 percent of Stanton, and 99 percent of Metamorphosis.

Between August 1989 and November 1995, Ahmad purportedly provided both direct and indirect financial support to Eastpines and Metamorphosis. Ahmad subsequently told his father that he wished to be reimbursed for these payments to Eastpines and Metamorphosis. On June 25, 2000, after a series of discussions regarding repayment, Ahmad’s father, in his individual capacity and on behalf of Eastpines, Stanton, and Metamorphosis, signed an acknowledgment which provided for repayment to Ahmad.

On Sept. 22, 2003, after Ahmad did not receive any repayment under the 2000 Acknowledgment, he wrote a letter to his sister demanding reimbursement for his payments to Metamorphosis. Ahmad attached a copy of the 2000 acknowledgment and stated that he would file suit if the matter could not be resolved. The defendants’ counsel replied with a letter stating that Ahmad’s claims were barred by the statute of limitations and that Ahmad’s father did not recall executing the 2000 Acknowledgment, and requesting that Ahmad provide documentary evidence of the asserted debt. Further communications failed to resolve the dispute.

On Nov. 28, 2007, Ahmad, filed a complaint in circuit court against Eastpines Terrace Apartments, Inc., Metamorphosis Limited Partnership, and Mehahmad Enterprises, Inc. The complaint included a claim against Eastpines and Metamorphosis for breach of contract for failing to reimburse Ahmad for payments made on behalf of those corporations, a claim against Eastpines, Metamorphosis, and Mehahmad for unjust enrichment, and a claim against Metamorphosis for an accounting. The defendants filed a motion for judgment on all three claims. The circuit court granted the motion for judgment.

Ahmad appealed to the Court of Special Appeals, which affirmed.

LAW: Ahmad first argued that the circuit court erred in finding that the statute of limitations barred Ahmad’s claim for breach of contract. Specifically, Ahmad argued that the parties agreed to a prospective waiver of the limitations period in the 2000 acknowledgment, rather than merely a retrospective waiver, as the trial court ruled.

Maryland law requires that a civil action at law must be filed within three years from the date it accrues, unless otherwise provided by statute. Maryland Code (1974, 2006 Repl. Vol), §5–101 of the Courts & Judicial Proceedings Article (“C.P.”). The purposes of statutes of limitation are to provide adequate time for a diligent plaintiff to bring suit as well as to ensure fairness to defendants by encouraging prompt filing of claims. Fairfax Sav., F.S.B. v. Weinberg & Green, 112 Md.App. 587, 612 (1996). Maryland case law makes clear that a statute of limitations is designed to protect a potential defendant from “surprise” actions which inhibit his ability to fashion a defense because of the litigation’s temporal distance from the disputed occurrence. Reed v. Sweeney, 62 Md.App. 231, 235, cert. denied, 303 Md. 471 (1985).

Here, the trial court properly determined that the 2000 acknowledgment was a contract between the parties. Maryland follows the objective theory of contract interpretation, which focuses on the written text; the construing court’s task is to determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated. Thomas v. Capital Med. Mgmt. Assocs., LLC, 189 Md.App. 439, 454 (2009). A court will give effect to the clear terms of the contract regardless of what the parties to the contract may have believed those terms to mean.

In this case, specifically at issue were the first two sentences of the 2000 acknowledgment. The plain language of the first sentence acknowledged the amount of the debt, the time period of the debt’s accrual, and the rate of interest due on the debt. The second sentence made clear the effect of the first sentence, to wit, that the bar imposed by the statute of limitations was waived on the principal and the interest accrued thereon. See Jenkins v. Karlton, 329 Md. 510, 531 (1993). Thus, the second sentence articulated the import of the first sentence, namely, that the parties effectuated a waiver of the statute of limitations as of June 25, 2000. Notably absent from the 2000 acknowledgment was any explicit language relating to a perpetual duration for the waiver.

The trial court properly determined the consequence of this omission, holding that the waiver provision did not operate as (or even purport to be) a perpetual waiver of the statute of limitations; rather, the provision operated as a waiver of the statute of limitations up until that point. The effect of the 2000 acknowledgment was to remove the limitations bar on June 25, 2000, and consequently, Ahmad’s breach of contract claim was barred three years and one day later, on June 26, 2003 – well before Ahmad filed his lawsuit in November 2007. As such, the trial court was correct in ruling that Ahmad’s breach of contract claim was barred by the statute of limitations.

Likewise, Ahmad’s unjust enrichment claim, which was allegedly based on payments last made by Ahmad in 1995, was not subject to any purported permanent waiver in the 2000 acknowledgment. Ahmad asserted both in his complaint and during his trial testimony that he last provided the defendants with the monetary benefits which served as the basis of his unjust enrichment claim in 1995. Because Ahmad sought the relief of repayment of money, his unjust enrichment claim was a claim “at law.” As such, the three-year statute of limitations established by C.P. §5–101 applied. See Ver Brycke v. Ver Brycke, 379 Md. 669, 698 (2004).

Unlike the breach of contract claim, Ahmad’s unjust enrichment claim was not the subject of the 2000 acknowledgment, and Ahmad’s “perpetual waiver” argument did not apply. Therefore, the limitations period on appellant’s claim for unjust enrichment expired sometime in 1998 at the latest. Thus, the trial court did not err by ruling that Ahmad’s suit for unjust enrichment, which was filed in November 2007, was barred by the statute of limitations.

Accordingly, the circuit court’s judgment was affirmed.

COMMENTARY: Ahmad further argued that the trial court erred in denying Ahmad an accounting of Metamorphosis. Specifically, Ahmad contended that the trial court erroneously found that Metamorphosis had no assets.

In this case, at the time of trial, the only asset that Ahmad claimed to be owned by Metamorphosis was the Florida Avenue property. Ahmad testified that as part of the 1031 Exchange, there was a deed conveying the Florida Avenue property from Metamorphosis to RFI, and then the Florida Avenue property was “deeded over” by RFI to Eastpines. A deed is valid when there is both delivery and acceptance. Gianakos v. Magiros, 234 Md. 14, 26 (1964). Thus, because the deed to the Florida Avenue property was delivered to and accepted by Eastpines, the transaction was complete, and Metamorphosis was no longer the owner of the Florida Avenue property.

Moreover, even if the deed conveying the Florida Avenue property was not delivered to Eastpines, Metamorphosis had, at most, only bare legal title to the property after the 1031 Exchange, under the doctrine of equitable conversion. Under the doctrine of equitable conversion, a purchaser of land under a sales contract acquires equitable title to the property. Legal title to the property remains with the seller and does not pass, other than by operation of law, until a deed is properly executed and recorded. Wash. Mut. Bank v. Homan, 186 Md.App. 372, 392 (2009). Therefore, after the 1031 Exchange, Eastpines had equitable title to the Florida Avenue property, and Metamorphosis had only bare legal title to such property.

Thus, the trial court’s finding that Metamorphosis did not have any assets at the time of trial was supported by the record, and the trial court did not err in denying appellant an accounting of Metamorphosis. Accordingly, the trial court’s judgment was affirmed.

PRACTICE TIPS: Under the “continuation of events” theory, the statute of limitations is generally tolled during the existence of a fiduciary relationship between the parties. However, the presence of a fiduciary relationship does not toll the limitations period where a party had knowledge of facts that would lead a reasonable person to undertake an investigation that, with reasonable diligence, would have revealed wrongdoing on the part of the fiduciary.

Criminal Procedure

Juror misconduct

BOTTOM LINE: Trial court did not err in refusing to grant defendant a new criminal trial on the basis that a juror brought into the jury room a magnifying glass because the jurors’ use of the magnifying glass did not put them in possession of evidence which was not admitted during trial.

CASE: Charleau v. State, No. 2644, Sept. Term, 2009 (filed Sept. 2, 2011) (Judges Eyler, J., MATTRICIANI & Moylan (retired, specially assigned)). RecordFax No. 11-0902-04, 17 pages.

FACTS: Roland Charleau was charged with a number of crimes relating to a robbery of B.J.’s Beer and Wine in Gaithersburg. On May 16, 2009, a cashier was working alone at the store when two black males, their faces covered by bandanas, entered the store. The first man, described as the “big guy,” pointed a gun at him and demanded money.  The second man, a “skinny guy,” entered about a minute later.

The cashier handed them some money, and when the men ordered him to open the cash register, he complied. The men placed the contents of the cash register in a black plastic bag from underneath the register. The men then asked where the video tape was located and, when told, tried to grab the video camera. One of the robbers instructed the cashier to get down on the ground, and he did so. According to the cashier, the men took over $600 in cash.

After the men left, the cashier called the police. Police officer David Grimm responded to the report of armed robbery. While Officer Grimm was speaking with the cashier, a woman later identified as Lakesha Akinsada, Charleau’s wife, came into the store. She approached Officer Grimm and handed him several checks and deposit slips belonging to the store. Officer Grimm called for other units to accompany him to Akinsada’s residence, located less than a half-mile from the store. At the residence, Akinsada showed the officer two photographs of Charleau. She also granted Officer Grimm and his colleagues permission to search the house, but the suspects were not located.

Charleau and his co-defendant, Dante Craven, were apprehended by police on May 19, 2009. After his arrest, Craven signed his advice of rights form and voluntarily spoke with the officers in Rockville. Although he initially denied any involvement with the robbery, Craven eventually admitted that he was one of the two robbers. He entered into a plea agreement with the State, and, pursuant to the agreement, pleaded guilty to conspiracy to commit armed robbery and agreed to testify truthfully in Charleau’s trial. At the time of the trial, he had already entered his guilty plea.

Charleau elected to be tried by a jury in circuit court. At the close of the State’s evidence, Charleau moved for judgment of acquittal, which was denied. Charleau was found guilty of robbery with a dangerous weapon, robbery, and conspiracy to commit robbery. The jury acquitted him of conspiracy to commit robbery with a dangerous weapon. The trial judge sentenced Charleau to incarceration for a period of ten years for each count, to be served concurrently.

On Nov. 16, 2009, Charleau filed a motion for a new trial, arguing that he was deprived of a fair trial due to juror misconduct. On Jan. 6, 2010, prior to sentencing, the trial judge reviewed Charleau’s motion and subsequently denied the motion for a new trial.

Charleau appealed to the Court of Special Appeals, which affirmed the judgments of the circuit court.

LAW: Charleau contended that one of the jurors was a professional photography analyst and that he provided the other jurors with magnifying equipment during deliberations. Charleau argued that pursuant to Maryland Rule 4–326(b) (2010), a magnifying glass is not among the listed items that may be brought into the jury room. Charleau claimed that the jurors indicated that the equipment, together with the expertise of this juror, was decisive in the jury’s deliberations, thereby depriving Charleau of a fair trial.

In his brief, Charleau pointed to the decision of the Supreme Court of Washington in State v. Burke, 124 Wash. 632, 636–37 (1923). In Burke, the Court reversed the lower court’s denial of a motion for new trial after jurors were provided with a magnifying glass during deliberations, without knowledge of the court. The Burke jurors used the magnifying glass to find and compare dust particles on several hacksaws allegedly used in a bank robbery. In doing so, the jurors uncovered new evidence not admitted at trial and came to the “scientific conclusion” that the dust was the same, and based their guilty verdict upon their conclusions. Burke, 124 Wash. at 637. In reaching its decision to reverse the verdict, the Court noted that if the effect of such an experiment is to put the jury in possession of evidence “which should have been but was not offered during the trial, it is not permissible, but if the experiment involves merely a more critical examination of an exhibit than had been made of it in the court, there is no ground of objection.” Id.

By contrast, in the present case, the jurors merely used the magnifying equipment to more closely examine photographs which had been admitted into evidence. Because there were no factually analogous Maryland cases, the Court of Special Appeals looked to several cases from other jurisdictions to guide its decision. The Supreme Court of Washington faced a manslaughter case involving a juror’s impermissible use of a magnifying glass during deliberations, in which the walking stick of the deceased was introduced into evidence in a manslaughter case, and some or all of the jurors used a magnifying glass to examine it more carefully. State v. Everson, 166 Wash. 534 (1932). The Everson Court refused to reverse the verdict, concluding that the jury merely more critically examined the walking stick by the aid of a magnifying glass, and this examination did not put them in possession of material facts which were not already in evidence. Id. at 535. Rather, the Court compared their use of the glass to jurors’ use of their reading glasses to examine the end of the stick, which nobody would question would be proper. Id. at 537.

Likewise, in United States v. Brewer, 783 F.2d 841, 843 (9th Cir.1986), the Court rejected an appellant’s contention that the trial court should have declared a mistrial because the jury used a magnifying glass, without court approval, to examine photographic evidence. The Court concluded that it could not accept the characterization of the magnifying glass used by the jury as extrinsic evidence, and was “unable to see how the use of the magnifying glass to view photographs differs from the use of corrective eyeglasses by jurors.” And similarly, in United States v. Holmes, 30 Fed. Appx. 302, 310 (4th Cir.), cert. denied, 537 U.S. 873 (2002), the 4th Circuit noted the difference between obtaining new information or facts not in evidence, and merely taking a more critical examination of exhibits already in evidence through the use of a magnifying glass.

Thus, here, the trial court properly considered whether the jury’s use of a magnifying glass allowed them to have access to information that would not otherwise be available to them, such as conversations with a third party or use of the internet to access information. Although a magnifying glass is not on the list of permissible items set forth in Rule 4–326, neither are eyeglasses on that list, and it cannot be denied that many jurors require the use of reading glasses to examine items in evidence. For these reasons, the trial court did not abuse its discretion in refusing to grant a new trial.

Accordingly, the circuit court judgment was affirmed.

COMMENTARY: Charleau also argued that the evidence was insufficient to support his conviction for robbery with a dangerous item because the State failed to prove, beyond a reasonable doubt, that the weapon used in the robbery was genuinely capable of inflicting harm, and because the case rested entirely upon the testimony of Charleau’s co-defendant Dante Craven, whose testimony was not sufficiently corroborated. The State maintained that because Charleau failed to raise his second argument during his motion for judgment of acquittal, this issue was not preserved, and could not be raised for the first time on appeal. See Maryland Rule 4–324(a).

However, even assuming that Charleau’s argument regarding the sufficiency of the evidence was preserved, his contention that the case was based solely upon the uncorroborated testimony of his accomplice, Craven, was not supported by the record. The record contained more than ample evidence by which a rational jury could have found the essential elements beyond a reasonable doubt. This evidence included, inter alia, the testimony of the store clerk, the stipulated fact that Charleau’s wife returned stolen receipts and checks shortly after the robbery took place, the fact that Charleau lived a short distance from the store, but was found with Craven three days later in another town, a police detective’s testimony that Charleau offered him money for his freedom while being transported back to Montgomery County, Charleau’s step-daughter’s testimony regarding his possession of a black plastic bag from a liquor store after the robbery, and several photographs taken from the surveillance video in the store.

Moreover, although Charleau argued that the State failed to prove that the gun used in the robbery was real, the fact remained that Maryland courts have considered and upheld numerous convictions where no tangible evidence was presented at trial establishing the use of a handgun; thus, it is well settled that circumstantial evidence alone will often suffice. Curtin v. State, 165 Md.App. 60, 71–72 (2005). In this case, because the actual weapon was not recovered, proof of the gun was made through circumstantial evidence. Such evidence was sufficient to support Charleau’s conviction.

PRACTICE TIPS: When jurors retire to determine a verdict, they are not directed to leave their experience and knowledge at the door. Rather, the contrary is true; in evaluating evidence, jurors should consider the evidence in light of their own experiences and may draw any reasonable inferences or conclusions from the evidence that they believe to be justified by common sense and their own experiences. Thus, for instance, a juror who is a medical doctor may his or her training and experience as a doctor in evaluating the evidence during jury deliberations.

Workers’ Compensation

FELA

BOTTOM LINE: Trial court erred in granting summary judgment in favor of employer railroad where employee presented evidence from which a fact-finder could reasonably infer that employer was negligent and that employee’s physical injury was a foreseeable result of that negligence.

CASE: Page v. National Railroad Passenger Corporation, No. 01959, Sept. Term, 2009 (filed Sept. 2, 2011) (Judges Hollander, Zarnoch & KEHOE). RecordFax No. 11-0902-00, 27 pages.

FACTS: On Feb. 22, 2007, Donzel Page, a police officer employed by the National Railroad Passenger Corporation (“Amtrak”), was on duty near the information desk in Pennsylvania Station in Baltimore. Page was approached by an Amtrak passenger who informed him that a baggage cart was lying on a track adjacent to a passenger platform on the lower level of the terminal. Page’s duties included removing obstructions from the railroad tracks within the terminal. Page, accompanied by Charles Harris, an Amtrak customer service employee, went to the passenger platform to investigate.

At about the time they reached the lower level of the terminal, Page and Harris learned that there was an inbound train scheduled to arrive on the track that was blocked by the baggage cart. Harris made an emergency call on his radio to the train’s engineer, and the train stopped approximately 60 feet from the cart. When Page arrived on the passenger platform, he observed that the train was unable to unload its passengers because of the track blockage. Page jumped down onto the ballast adjacent to the track. When he landed, he felt a pain in his left hip. Page pushed the cart off the tracks and walked back along the tracks to a set of stairs leading up to the platform. The train then pulled into position and disembarked its passengers onto the platform.

At the end of his shift, Page filed a report about the incident. At that time, he declined medical attention. By the following day, however, Page’s symptoms had worsened, and he sought medical treatment. His physical condition continued to deteriorate and, as a result of the injury, Page eventually became unable to perform his duties for Amtrak.

On Oct. 10, 2008, Page filed a complaint against Amtrak in circuit court under the Federal Employers’ Liability Act (“FELA”). In his complaint, Page asserted that Amtrak negligently failed to provide a reasonably safe workplace and that this negligence was a cause of his injuries. At the conclusion of written discovery and depositions, Amtrak filed a motion for summary judgment. The circuit court granted Amtrak’s motion for summary judgment and entered final judgment in favor of Amtrak.

Page appealed to the Court of Special Appeals, which reversed the judgment of the circuit court and remanded the case for trial.

LAW: Page argued that the circuit court erred in granting summary judgment in favor of Amtrak on the basis that Page presented no evidence that Amtrak breached any duty to him and that any negligence on Amtrak’s part was not the proximate cause of his injuries. The FELA and related statutes have been the subject of several recent decisions by the Maryland Court of Appeals and Court of Special Appeals. See Collins v. Nat’l R.R., 417 Md. 217, 230–41 (2010). Originally enacted in 1906, the FELA is a remedial statute intended to modify common law rules of negligence in actions brought by employees of railroads to recover for injuries suffered in the course of their employment. CSX v. Miller, 159 Md.App. 123, 129 (2004).

In order to prevail in a FELA claim, a plaintiff must establish: (1) that the defendant is a railroad engaged in interstate commerce; (2) that the plaintiff was an employee of the defendant in interstate commerce, acting in the course of his employment; (3) that the defendant or one of its employees or agents was negligent; and (4) that such negligence played a part, no matter how slight, in bringing about an injury to the plaintiff. 5 L. Sand et al., MODERN FEDERAL JURY INSTRUCTIONS–CIVIL P 89.02, pp. 89–38, 89–40 (2010). In this case, the circuit court granted summary judgment in favor of Amtrak because it concluded that Page failed to present sufficient evidence to create a jury issue on the third and fourth elements of the cause of action. Specifically, the circuit court’s stated that Page was not able to show negligence on Amtrak’s part because he had no direct evidence as to how the cart ended up on the tracks and, because he was at fault, a fact-finder would be barred from inferring negligence on Amtrak’s part, and that even assuming that Amtrak was negligent, the appearance of a baggage cart on the tracks was not the actual and proximate cause of Page’s injuries.

A railroad has a non-delegable duty to provide employees with a safe place to work. Brown v. CSX Transp., 18 F.3d 245, 249 (4th Cir.1994). Here, Amtrak contended that it did not breach this duty because it took reasonable precautions to protect employees from harm and that it could not be held liable if it had no reasonable way of knowing that the hazard which caused Page’s injury existed. However, the deposition testimony of Page and his co-worker Harris clarified the steps that Amtrak took to secure carts. From this testimony, it could be reasonably inferred that Amtrak recognized that unattended baggage carts were potentially problematic.

For one, Amtrak provided locking cables on some, but not all, of the carts so that Amtrak employees could secure them when they were not using them. Moreover, Amtrak had a policy, even if informally promulgated, prohibiting employees from leaving the carts unattended. Finally, each employee using a cart was responsible for monitoring the cart to prevent unauthorized use. Thus, if the specific cart in question lacked a securing cable, Amtrak would be responsible for the failure to provide it. If that cart had a cable but was not locked through the oversight of an Amtrak employee, Amtrak would nonetheless be responsible, as the fellow servant doctrine is not a defense in FELA actions. Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 560 n. 2 (1994).

However, a breach of duty, by itself, is insufficient to establish negligence; a plaintiff must also establish that the harm to a person was a foreseeable consequence of the breach. If a person has no reasonable ground to anticipate that a particular condition would or might result in a mishap and injury, then the party is not required to do anything to correct the condition. CSX Transp. v. McBride, ––– U.S. ––––, 131 S.Ct. 2630, 2638 n. 2 (2011). Foreseeability does not require the employer to have anticipated the plaintiff’s injury in the precise manner in which it occurred. It is sufficient if the employer could reasonably foresee that an injury might occur. In a close case, the FELA action should be allowed to proceed to trial. Miller, 159 Md.App. at 221.

In this case, the record, taken in the light most favorable to Page, established that unauthorized persons used baggage carts at Pennsylvania Station on multiple occasions and that unattended carts wound up on tracks at the station three or four times per year. From this evidence, a fact finder could infer that Amtrak should have foreseen the possibility of harm, either by a cart’s collision with a person, injuries caused when a train stopped unexpectedly to avoid a cart or, as here, when an employee was injured in the course of removing the cart from the track. Amtrak need not have foreseen Page’s specific injury; it enough simply that Amtrak reasonably should have foreseen that an injury to a person could have resulted from the unattended carts. See Miller, 159 Md.App. at 221.

Thus, Page presented evidence, albeit circumstantial, from which a fact-finder could reasonably infer that Amtrak was negligent and that physical injury was a foreseeable result of that negligence. Viewing the facts in a light most favorable to the non-movant, there was evidence from which a fact finder could conclude that Amtrak was negligent and that Amtrak’s negligence played a part in producing Page’s injuries. Whether Page acted unreasonably in dropping down from the platform instead of using the stairs, and the degree to which Page’s fault, if any, contributed to his injuries, were questions for the jury. And, while the relationship between Amtrak’s negligence and Page’s injuries may not have satisfied the common law requirements for proximate causation, a plaintiff in a FELA action need only prove that employer negligence played any part, even the slightest, in producing the injury. CSX Transp. v. McBride, ––– U.S. ––––, 131 S.Ct. 2630, 2638 n. 2 (2011). Page met this unexacting threshold. Therefore, the circuit court erred in granting summary judgment in favor of Amtrak.

Accordingly, the judgment of the circuit court was vacated and the case remanded for trial.

COMMENTARY: Amtrak further asserted that because there was direct evidence, in the form of Page’s own testimony, as to how he was injured, the doctrine of res ipsa loquitur was inapplicable. In the analogous case Jesionowski v. Boston & Maine R.R., which addressed the applicability of the res ipsa loquitur doctrine in a case involving derailment of a train, the Court noted that the pertinent question was whether the circumstances were such as to justify a finding that the derailment of the train was a result of the defendant’s negligence. See Jesionowski v. Boston & Maine R.R., 329 U.S. 452, 456 (1947). The Court went on to state that derailments are extraordinary, not usual, happenings, and when they do occur, a jury may fairly find that they occurred as a result of negligence. Id. at 456–57.

Applying this reasoning in the present case, baggage carts do not, as a matter of routine, end up on train tracks. Interpreting the facts most favorably to Page, there was evidence that Amtrak’s policy was that carts were not to be left unattended by the employees, and that the railroad provided locking devices for some but not all carts. Thus, there was sufficient evidence in the record for a fact finder to infer that Amtrak had a duty to properly control the use of the carts and that Amtrak breached that duty.

PRACTICE TIPS: Intended to provide a remedy for injured railroad workers, FELA hovers between workers’ compensation law and the common law of negligence. The purpose of the FELA was “to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations.” To that end, the FELA, as initially enacted and by subsequent amendment, abolished certain common law defenses otherwise available to employers, such as assumption of risk, the fellow servant doctrine, and contributory negligence.

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