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Opinions – 5/29/12: Maryland Court of Appeals

Alternative Dispute Resolution

Statute of limitations

BOTTOM LINE: While non-binding arbitration, mandated by an employment contract, may have constituted a condition precedent to litigation, pursuing arbitration neither postponed the accrual of the underlying breach of contract claims, nor otherwise tolled the statute of limitations applicable to maintaining an action in court.

CASE: Kumar v. Dhanda, No. 47, September Term, 2011 (filed May 2, 2012) (Judges Bell, Harrell, Battaglia, GREENE, Adkins, Barbera & Cathell (retired, specially assigned)). RecordFax No. 12-0502-21, 29 pages.

FACTS: Shailendra Kumar, MD., P.A., and Anand Dhanda, M.D. entered into an employment contract on August 28, 2001, whereby Dhanda agreed to work as a doctor in Kumar’s urology practice through August 31, 2002. The contract contained a non-compete clause which prohibited Dhanda from practicing within a specified radius of Kumar’s multiple offices or soliciting or accepting Kumar’s patients for three years following the expiration of the contract, or through August of 2005.

The contract included a mandatory, non-binding arbitration clause, which provided that disputes arising out of the contract shall be resolved pursuant to arbitration conducted in accordance with the Maryland Uniform Arbitration Act. It further stated, “Both parties can go to Court if not satisfied by the decision of the Maryland Uniform Arbitration Act.”

As a result of discord between the parties, the employment relationship was not renewed upon termination of the Agreement on August 31, 2002. Soon thereafter, Dhanda filed an initial suit for breach of contract against Kumar in the circuit court. The judge dismissed the action without prejudice, because the claims were subject to mandatory arbitration.

The record was silent with regard to any activity between the parties for over two years following this dismissal. On April 29, 2005, however, Kumar filed, in the circuit court, a petition to compel arbitration and to appoint an arbitrator. The petition also included separate counts concerning the substantive claims for breach of contract and breach of the non-compete provision.

Dhanda filed both a response to Kumar’s petition to compel arbitration and his own motion to dismiss the substantive counts for improper venue and as claims subject to mandatory arbitration. The court dismissed the substantive counts, but did not order arbitration. Four months later, Kumar filed a motion for summary judgment, urging the circuit court to grant the earlier petition to compel arbitration. The judge granted the petition to compel arbitration and an arbitrator.

Kumar allowed nearly two more years to pass before actually submitting the matter to the arbitrator in March of 2008. The arbitrator denied all relief to Kumar and also denied relief to Dhanda, save for an award of $868 as reimbursement for certain disability insurance premiums.

On March 16, 2009, almost a year after the arbitration award was issued, Kumar filed the instant action in the circuit court. Dhanda filed a motion to dismiss, arguing that the applicable three-year statute of limitations barred the action because the alleged breaches of contract occurred between 2002 and 2005. The circuit court dismissed the action. The Court of Special Appeals affirmed.

Kumar appealed to the Court of Appeals, which affirmed.

LAW: Under CJ §5-101, “[a] civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” See Jones v. Hyatt Ins. Agency, Inc., 356 Md. 639, 647 & n.5 (1999); Baltimore County v. RTKL Assocs., 380 Md. 670, 689 (2004).

In the context of the statute of limitations, “[t]he law is concerned with accrual in the sense of testing whether all of the elements of a cause of action have occurred so that it is complete.” St. Paul Travelers v. Millstone, 412 Md. 424, 432 (2010). In breach of contract cases, a cause of action typically accrues at the time of the breach. See Jones v. Hyatt Insurance Agency, Inc., 356 Md. 639, 648 (1999).

Both parties agreed that the alleged breaches of contract occurred more than three years prior to the filing of the complaint in the circuit court. Further, neither party disputed that all of the elements of Petitioner’s breach of contract claims existed, at the very latest, as of the dates upon which the applicable contractual provisions terminated.

Kumar was not precluded by the contractual language from filing suit in the proper court and seeking a stay of the action pending arbitration. The permissive language, “can go to court,” does not prohibit a party from filing suit prophylactically to guard against the running of the statute of limitations.

The Maryland Uniform Arbitration Act, to which the parties agreed to be bound, specifically allows for stays of court proceedings pending arbitration. CJ §3-209. In accordance with the statute, a party is able to file an action to compel arbitration and seek a stay of claims that are related to arbitrable issues. See Frederick Contractors, Inc. v. Bel Pre Medical Ctr., Inc., 274 Md. 307, 316 (1975).

The parties agreed to non-binding arbitration. Although this mode of dispute resolution may not necessarily promote the efficiency, speed, or economy achieved through binding arbitration, it will nevertheless be enforced as a term agreed upon by the parties. See Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 103 (1983).

In its non-binding form, arbitration is a condition precedent to litigation. However, the parties are not bound by the decision of the arbitrator and afterwards are free to pursue independent legal claims concerning the same issues pursued in arbitration. See General Accident Ins. Co. v. Scott, 107 Md. App. 603, 618 (1996). Therefore, even where all issues are subject to non-binding arbitration, a party should be able to seek a stay of the legal claims pending arbitration.

By way of comparison, the principle of staying an action involving an issue subject to non-binding arbitration is similar to that specifically approved in Arroyo v. Board of Educ. of Howard County, 381 Md. 646, 851 A.2d 576 (2004), with respect to administrative proceedings generally. That case involved an educator’s wrongful termination action, which he filed in court over three years after the final administrative decision upholding his termination. The Court of Appeals made clear that, in accordance with the primary administrative remedies available to the plaintiff under ED §6-202(a), the statute of limitations on Arroyo’s civil cause of action began to run no later than after the final administrative decision, making his tort claim time-barred as a matter of law.

“[W]here there is both an administrative remedy and an independent judicial remedy, where the administrative agency may have primary jurisdiction, and where the plaintiff invokes the judicial remedy prior to exhausting the administrative procedures…the trial court may retain jurisdiction pending exhaustion of the administrative procedures. Once the administrative procedures are exhausted, the trial court may proceed.” Arroyo, 381 Md. at 659-60.

Accordingly, in addition to being free to file his legal action immediately after the final administrative decision was issued, the plaintiff could “have filed it even sooner subject to the separate action being stayed during the administrative proceedings.” Arroyo, 381 Md. at 650.

Similarly, if the parties agree to non-binding arbitration, what they pursue afterwards in court is not modification, confirmation, or vacation of an award, but an entirely independent legal determination on the merits. Therefore, under these circumstances, the court’s jurisdiction over the arbitrable claims is neither “extremely limited,” Letke Sec. Contrs., Inc. v. United States Sur. Co., 191 Md. App. 462, 472 (2010), nor is the action governed by the limitation periods applicable to appeals of binding arbitration awards. See CJ §3-223; §3-224.

Like the situation in Arroyo, while resolution of the legal action must wait until the satisfaction of the condition precedent, the court’s jurisdiction may be maintained and the claim properly stayed prior to that time.

COMMENTARY: With respect to whether the limitations period was tolled here, in Philip Morris v. Christensen, 394 Md. 227 (2006), the Court of Appeals explicated two factors which continue to guide the consideration of whether to apply a judicial tolling exception in a particular case. In order for an exception to be applied the Court must find that: “(1) there is persuasive authority or persuasive policy considerations supporting the recognition of the tolling exception, and, (2) recognizing the tolling exception is consistent with the generally recognized purposes for the enactment of statutes of limitations.” Philip Morris, 394 Md. at 238. See also Bertonazziv. Hillman, 241 Md. 361 (1966),

In Swam v. Upper Chesapeake Medical Center, Inc., 397 Md. 528 (2007), the plaintiff accompanied her father to the hospital where he would undergo surgery. Plaintiff was injured while in a waiting area, when she was stuck by an uncapped hypodermic needle after placing her hand on a counter. She filed suit in the Health Care Alternative Dispute Resolution Office; however, her suit was dismissed because she was not a patient receiving treatment, and therefore her injury was not a “medical injury” within the meaning of the Maryland Health Care Malpractice Claims Act. Her subsequent claim in the circuit court was filed beyond the statute of limitations and was therefore also dismissed.

In reversing, the Court of Appeals held that the complaint related back to the plaintiff’s timely, albeit misdirected, filing with the alternative forum and therefore could proceed on the merits. Under the first requirement set out in Philip Morris, the “persuasive policy supporting the exception” was the “ambiguity regarding the appropriate forum for a medically-related claim and basic fairness to the parties.” Swam, 397 Md. at 543. The second component of the Phillip Morris test was met because recognizing a tolling exception “would not contravene the general purpose of the statute of limitations” as the hospital had notice of the Swams’ claims within three years of the injury such that the claims were not “so stale as to be unjust.” Swam, 397 Md. at 544.

In Walko Corp. v. Burger Chef Systems, Inc., 281 Md. 207 (1977), the Court of Appeals considered whether the statute of limitations was suspended during the pendency of a motion for leave to intervene in a suit against the same defendant, ultimately denied as procedurally defective. Walko, 281 Md. at 209. The Court held that there was no justification for tolling the statute of limitation. If tolling were permitted, a plaintiff could, by filing defective motions, “effectively postpone the running of the statute [of limitations] for an indefinite period of time.” Id. at 215. The plaintiff also had ample opportunity prior to the expiration of the limitations period to file suit, both following the denial of the motion to intervene and during its pendency, but offered “no explanation for its failure to file a separate but timely action.” Id. at 215.

The ability to contractually affect the statute of limitations applicable to the underlying cause of action within the arbitration agreement, suggests that a judicial tolling policy is not necessary to ensure the continued use of arbitration in Maryland or fairness to the parties. See Rule 2-323(g)(15); Kim v. Comptroller, 350 Md. 527, 536 (1998).

Furthermore, tolling limitations during the pendency of mandatory, non-binding arbitration would not comport with the “generally recognized purposes for the enactment of statutes of limitations.” Philip Morris, 394 Md. at 238.

The breach encompassed in the first count of Kumar’s complaint must have occurred no later than August 31, 2002, the date upon which the contract expired by its own terms. Any breach of the non-compete provision must have occurred prior to August 31, 2005, three years after Dhanda’s termination from employment. The statute of limitations on the claims expired, therefore, at the very latest, on August 31, 2005, and August 31, 2008, respectively.

Kumar filed his petition to compel arbitration on April 2005. After receiving the court’s order permitting arbitration in 2006, he delayed two years, until March 2008 to actually submit the claim to the court-appointed arbitrator. After the arbitration award was issued in June of 2008, and Kumar could “go to court,” he did not file in the circuit court until March 2009.

Therefore, when Kumar filed his cause of action nearly six years after the termination of the contract, and more than three years after the expiration of the non-compete provision, his action was time-barred, as a matter of law. It is more than feasible that arbitration could have been completed before the expiration of the three-year statute of limitations, and nothing prevented Kumar from filing his claims and requesting a stay if timely arbitration was in doubt.

PRACTICE TIPS: Maryland’s Health Claims Mediation and Arbitration Act explicitly provides for the tolling of the statute of limitations pending completion of arbitration in front of the Heath Care Alternative Dispute Resolution Office. CJ §5-109(d); Group Health Assn., Inc. v. Blumenthal, 295 Md. 104 (1983).

Civil Procedure

Failure to name use plaintiff

BOTTOM LINE: The circuit court erred in dismissing plaintiffs’ wrongful death action for failure to name a use plaintiff as a potential beneficiary.

CASE: University of Maryland Medical Systems Corp. v. Muti, No. 42, September Term, 2011 (filed May 3, 2012) (Judges Bell, Harrell, Greene, Barbera, RODOWSKY (retired, specially assigned), Raker (retired, specially assigned) & Wilner (retired, specially assigned)). RecordFax No. 12-0503-20, 18 pages.

FACTS: The decedent, Elliott Muti, died on March 4, 2005. His widow was Giuseppina Muti, and the children of that marriage were Thomas and David Muti. The stepson adopted by Elliott during a previous marriage to Bertha Muti was Ricky Muti.

According to Giuseppina’s deposition testimony, Ricky was ten or eleven years old in 1977 and living with Bertha. He left that home when he was eighteen, and Giuseppina had no idea where he might be living. On deposition, Tom testified that he was a young child when he last saw Ricky, that he did not know where Ricky, or Bertha, might be living or how to contact them. David testified that he has never laid eyes on Ricky.

Over thirty-four months after Elliott died, Giuseppina, as personal representative of Elliott’s estate, but not individually, asserted a medical malpractice claim in the Health Care Alternative Dispute Resolution Office (HCADRO) against University of Maryland Medical Systems Corporation (UMMSC). That claim was amended to add claims for wrongful death by Giuseppina, Tom, and David in separate counts. In August 2008, the Mutis waived arbitration, and HCADRO transferred the case to the circuit court. UMMSC served interrogatories on Giuseppina. Answers to these interrogatories listed Ricky as a child, by adoption, of Elliott.

UMMSC moved to dismiss the complaint for failure to join a necessary party, Ricky. The circuit court dismissed the complaint, based on the violation of Rule 15-1001(b) arising from the failure to name Ricky as a use plaintiff. The circuit court also granted a UMMSC motion for summary judgment that had been filed against the survival claim. The Court of Special Appeals vacated the dismissal of the wrongful death claims, summary judgment on the survival claim was reversed, and the action was remanded to the circuit court.

The Court of Appeals vacated the motion to dismiss and remanded.

LAW: CJ §3-904(f) provides that “[o]nly one action under this subtitle lies in respect to the death of a person.” Under CJ §3-904(g), an action under this subtitle shall be filed within three years after the death of the injured person.

Furthermore, under Maryland Rules of Procedure, Rule 15-1001(b), “all persons who are or may be entitled by law to damages by reason of the wrongful death shall be named as plaintiffs whether or not they join in the action. The words `to the use of’ shall precede the name of any person named as a plaintiff who does not join in the action.”

Maryland’s wrongful death statute was first enacted by Chapter 299 of the Acts of 1852. It created a cause of action, brought in the name of the State, for the use of the spouse, parent, or child of the person tortiously killed — today’s primary beneficiaries under CJ §3-904(a)(1). The damages under the 1852 Act were “the pecuniary loss sustained by the parties entitled to the benefit of the action.” Stewart v. United Elec. Light & Power Co., 104 Md. 332, 348 (1906).

Section 2 of the 1852 Act directed that the recovery “be divided amongst the before mentioned parties, in such shares as the jury by their verdict shall find and direct.” Section 3 of the Act required the plaintiff to furnish particulars of the nature of the claim and of the persons on whose behalf the action was brought.

The 1852 Act also contained two provisos: “That not more than one action shall lie for and in respect of the same subject matter of complaint; and that every such action shall be commenced within twelve calendar months after the death of the deceased person.” Today, these provisos are found, respectively, in subsections (f) and (g) of §3-904.

Since at least State u/o Stasciewicz v. Parks, 148 Md. 477, 479-82 (1925), the Court of Appeals has construed the time limit in the wrongful death statute to be a substantive provision, that is, a condition precedent to asserting the statutorily created cause of action. See, e.g., Trimper v. Porter-Hayden, 305 Md. 31 (1985); Slate v. Zitomer, 275 Md. 534, 542 (1975).

A plaintiff who does not assert the cause of action within the statutorily prescribed time, now three years, loses the right to sue a defendant who is not estopped to assert the defense. See Chandlee v. Shockley, 219 Md. 493, 502-03 (1959).

Ordinarily it is the wrongful death plaintiff who fails to sue timely who is out of court. UMMSC asked the Court to hold that those plaintiffs who timely sued are also out of court because there may be another living child of Elliott’s who may attempt to sue, leaving UMMSC theoretically exposed to more than one wrongful death action. This argument considers the statute to compel that a wrongful death action be a unitary action by all actual or potential beneficiaries.

That is not the construction placed by the Court of Appeals on the 1852 statute’s one-action provision in Deford v. State u/o Keyser, 30 Md. 179 (1869). The deceased, Mrs. Keyser, a widow, had nine children, all of whom were alive when the reported wrongful death suit was filed by a next friend on behalf of four infant children and an adult daughter. Id. at 181, 184. The tortfeasor argued that, because there were children who had not joined in the declaration and who were not named in the particulars, “the plaintiff cannot recover under the pleadings…because of such non-joinder.” Id. at 184.

The Court rejected the argument: “The action is brought in the name of the State as legal plaintiff, for the use of such of the children of the deceased as may have been actually damaged by her death; and those who have joined in bringing the suit are those, as we may presume, who supposed themselves damaged; and if there be others who have not joined, it cannot prejudice the rights of those who have. Nor is it a matter of which the defendant Deford can complain, that all the children are not joined, for he is subject to but one action, for and in respect of the same subject matter of complaint.” Id. at 208.

Further, with reference to the joinder of the adult daughter, the Court held: “And the joinder of a party…who may not be entitled to a portion of the damages awarded, should not be allowed to defeat or prejudice the rights of others who may be entitled.” Id. See also State u/o Bashe v. Boyce, 72 Md. 140 (1890).

Thus, the one-action clause, that has been in the wrongful death statute since 1852 without substantial change, is not a basis for dismissing an original plaintiff’s claim for failure to identify a potential beneficiary as a use plaintiff.

UMMSC submitted that Deford and Boyce have been overruled, implicitly, by Walker v. Essex, 318 Md. 516 (1990), and Ace Am. Ins. Co. v. Williams, 418 Md. 400 (2011).

Walker stands for the proposition that a use plaintiff, who was not identified in the suit as filed, but who asserts his or her claim within the window of the three year condition precedent, and before any judgment has been entered for the original plaintiffs, must be joined. On appeal from an unenrolled judgment, the remedy applied in Walker was to enlarge the set of claimants seeking damages, not to dismiss the original plaintiffs.

In Ace, the deceased was struck and killed by a motor vehicle on September 12, 2002. He was survived by two sons from a prior marriage (Group One) and by his widow and their two sons (Group Two). Group Two sued on May 14, 2003 (Williams I). Their complaint identified Group One in the background allegations, but did not name them as use plaintiffs. Ace, 418 Md. at 407. Group Two negotiated a settlement under which the principal contributor was Ace, the deceased’s underinsured motorists coverage carrier. Ace insisted that Group One be named as use plaintiffs. Counsel for Group Two prepared an amended complaint, so providing, that was served on Group One, id. at 411, but there was no record of its having been filed in court. Group Two petitioned for court approval of the settlement that excluded Group One, but that petition was not served on Group One. By an order docketed May 19, 2005, the court approved the settlement of Williams I, and declared all claims stemming from the death of the decedent to be satisfied. Group Two filed an order of satisfaction on June 6, 2005. Id. at 414-15.

About a month and a half before the third anniversary of the deceased’s death, Group One filed suit against Ace (Williams II). Id. at 415. Group One asked that the judgment in Williams I be opened and that that case be consolidated with Williams II. Id. at 420. The circuit court refused to do so, and entered summary judgment in Williams II for Group Two.

On cross-appeals, the Court of Special Appeals vacated the enrolled judgment in Williams I and reversed the summary judgment in Williams II. Williams v. Work, 192 Md. App. 438 (2010). It reasoned: “Although Rule 15-1001(b) does not require formal joinder, the failure to include a known statutory beneficiary as a plaintiff or a `use plaintiff’ in a wrongful death action and to settle without providing for that beneficiary can be analogized to the failure to join a necessary party in an action where joinder is required. In our view, because of the one action rule, the failure to do so is a `defect’ or `mistake’ of jurisdictional proportions in the proceeding, which may be raised at any time.” Id. at 455-5. The Court of Appeals affirmed.

Ace did not support UMMSC’s position. Ace does not hold that the original plaintiffs, Group Two, lost their claims because known beneficiaries, Group One, had not been identified as use plaintiffs in Williams I. Although the settlement, i.e., the judgment in Williams I, was vacated in Ace, and the judgment in Williams II was reversed, Williams, 192 Md. App. at 468, the entire matter was remanded for further proceedings to which the original plaintiffs and the use plaintiffs, who had joined the action, would be parties.

Further, Ace did not affect the long recognized condition precedent that requires a beneficiary to sue within three years of death. Ricky did not do so. Consequently, Ricky’s claim expired.

The Mutis contended that the trial court erred by not applying the doctrine of relation back and treating Ricky as having been named as a use plaintiff when the Mutis filed their action. Relation back cannot be applied in this case, however, because Ricky’s claim has expired by operation of the three year condition precedent.

Knauer v. Johns-Manville Corp., 638 F. Supp. 1369 (D. Md., filed February 3, 1986), was an occupational disease case, decided under what is now CJ §3-904(g)(1). George Knauer and Ann Knauer, his wife, sued thirteen asbestos manufacturers on December 26, 1980, alleging that George had contracted mesothelioma. Ann joined in the action as a plaintiff in the claim for damage to their marital relationship. See Deems v. Western Md. Ry. Co., 247 Md. 95 (1967).

George died on May 1, 1982. On May 6, 1985, three years and five days after George’s death, Ann moved to amend the complaint to assert a wrongful death claim. Although FRCP 15(c) expressly recognizes that amendments relate back to the date of the original pleading, the court held that relation back could not be applied to the wrongful death claim because to do so would violate a fundamental precept of diversity jurisdiction jurisprudence, in that relation back would produce a result contrary to the result that would be reached by a state court applying the substantive law of Maryland. The federal court recognized that, under Maryland law, the “[f]ailure to bring suit within the statutory three-year period bars both the remedy and the right to sue.” Knauer, 638 F. Supp. at 1375.

Thus, unless the Mutis’ action was properly dismissed as a sanction for a Rules violation, the Mutis’ claims can proceed, while Ricky’s unasserted claim cannot.

COMMENTARY: The Mutis violated Rule 15-1001(b) when they did not identify Ricky as a use plaintiff. Rule 15-1001(b) does not spell out the consequences of failure to comply with it. When a rule is violated that does not provide for the consequences of the noncompliance, the consequence is determined “in light of the totality of the circumstances and the purpose of the rule.” Rule 1-201(a).

Here, the evidence under oath from the three Mutis is that Ricky, if living, is older than Tom, who was thirty-one years old when this action was dismissed. There has been no contact between the Mutis and Ricky for many years, and his whereabouts are unknown.

The purpose of Rule 15-1001 is to implement the one-action provision in the statute. The purpose of that provision “is to protect a defendant from being vexed by several suits instituted by or on behalf of different equitable plaintiffs for the same injury when all of the parties could be joined in one proceeding.” Walker v. Essex, 318 Md. at 523. When the Mutis’ claims were dismissed, Ricky could not be joined. His claim, if any, had expired.

A claim by Ricky could not have any value, even if it were timely asserted. At the time when this case was dismissed, there could be no prejudice to UMMSC, because Ricky’s claim was extinguished.

The Mutis should have identified Ricky as a use plaintiff. Lack of knowledge of his whereabouts did not prevent compliance. What the Mutis need only have done was state in their complaint that any address for use plaintiff Ricky was unknown. See Rule l-301(a).

PRACTICE TIPS: CJ §3-904 and Rule 15-1001 cannot be construed to anoint counsel for the original (i.e. joined) plaintiffs as the attorney for the use plaintiffs as well. By designating potential beneficiaries as use plaintiffs, counsel demonstrates that he or she does not represent them and has no authority to make decisions for them or to present evidence, including proof of damages, on their behalf. To hold otherwise invites grave problems of conflict of interest. See Michael, The “USE” Plaintiff in Maryland Wrongful Death Cases: Some Ethical Observations, Fall 2008 Trial Reporter 9 (2008).

Criminal Law

Indecent exposure

BOTTOM LINE: The statutory, specific-intent crime of indecent exposure by an inmate to a correctional officer did not preempt the common law offense of indecent exposure.

CASE: Genies v. State, No. 11 September Term, 2011 (filed May 1, 2012) (Judges Bell, Harrell, BATTAGLIA, Greene, Adkins, Barbera, & Murphy (retired, specially assigned)). RecordFax No. 12-0501-21, 44 pages.

 

FACTS: While incarcerated at the Montgomery County Correctional Facility in 2008, Daniel Genies masturbated in sight of a female correctional officer while smiling and making eye contact with her, in spite of her orders to stop. Genies was subsequently charged with committing the common law offense of indecent exposure, as well as with violating CS §8-803, which prohibits certain conduct by inmates.

Prior to trial, Genies moved to dismiss the common law charge, arguing that §8-803 was preemptive. The motion was denied. The jury acquitted Genies of the statutory offense but convicted him of the common law offense. Genies’ motion for new trial was denied. The Court of Special Appeals affirmed.

Genies appealed to the Court of Appeals, which affirmed.

LAW: The common law offense of indecent exposure is defined as “a public exposure, made wilfully and intentionally, as opposed to an inadvertent or accidental one; which was observed, or was likely to have been observed, by one or more persons, as opposed to performed in secret, or hidden from the view of others.” Wisneski v. State, 398 Md. 578, 593 (2007).

“It [is] a generally accepted rule of law that statutes are not presumed to repeal the common law `further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law,’ but we also observed that ‘[w]here a statute and the common law are in conflict, or where a statute deals with an entire subject-matter, the rule is otherwise, and the statute is generally construed as abrogating the common law as to that subject.” Robinson v. State, 353 Md. 683, 693 (1999).

This view, generally disfavoring repeal of the common law by implication, has a long history in Maryland. See Hooper v. Mayor & C.C. of Balto., 12 Md. 464, 475 (1859).

Under CS §8-803(b), an inmate “may not, with intent to annoy, abuse, torment, harass, or embarrass a correctional officer or authorized personnel, lewdly, lasciviously, and indecently expose private parts of the inmate’s body in the presence of the correctional officer or authorized personnel.” CS §8-803(a) states: “Words or phrases in this section that describe the common-law crime of indecent exposure shall retain their judicially determined meanings except to the extent expressly or implicitly changed in this section.”

Clearly, the express language of §8-803(a) embraces, rather than preempts, the common law crime of indecent exposure, because “words or phrases” describing the crime retain their judicially-determined meanings, unless altered in the section.

Repeal of the common law by implication, then, was the issue. The presumption against such repeal may be overcome, generally, when the statute either addresses the entire subject matter, known as field preemption, or is inconsistent with the common law, known as conflict preemption. Field preemption is implicated when an entire body of law is occupied on a comprehensive basis by a statute. Robinson v. State, 353 Md. 683 (1999).

In Robinson, the Court of Appeal held that the assault statutes enacted in 1996, §§12, 12A, and 12A-1 of Article 27, Maryland Code, preempted the common law offenses of assault and battery entirely. While the statutes did not expressly abrogate the common law offenses, their legislative history included bill analyses and a floor report, which stated that the statutes would consolidate and replace the common law offenses. This legislative history, coupled with the statute’s expressed repeal of the entire existing statutory scheme, indicated that “[t]he new statutes thus subsumed all previous statutory assault provisions as well as the common law into a single scheme and established a two-tiered regimen.” Id. at 694.

Conflict preemption is implicated when a statute repeals the common law “to the extent of inconsistency.” Lutz v. State, 167 Md. 12, 15 (1934). In State v. North, 356 Md. 308 (1999), the issue was whether the crime of attempted possession of a controlled dangerous substance was “narrowed” by §287B of Article 27, which criminalized the possession or purchase of “look alike drugs,” or non-controlled substance that the person reasonably believed to be a controlled substance. The Court of Appeals observed that there was no express preemption in the language of the statute or enacting session law and proceeded to review the statute’s legislative history, which revealed an intent on the part of the Legislature to create a wholly separate offense, rather than supplanting the crime of attempt at common law.

There is nothing in the language or legislative history of §8-803 to support the notion that the statute was intended to occupy the entire field of indecent exposure by an inmate. In reality, field preemption could not apply, because §8-803 only covers exposures in the presence of “authorized personnel,” a term left undefined, rather than the population of individuals who could be victims of indecent exposure, such as visitors, among others, who are regularly present in correctional facilities.

The Court of Special Appeals, in determining that §8-803 did not preempt the common law, was persuaded by the statute’s legislative history, including the Floor Report for Senate Bill 429, that the Bill was intended to address specific behavior directed towards correctional officers: “[a]ccording to testimony, this bill is intended to address behavioral problems in the corrections system involving inmates (usually male inmates) who intentionally expose themselves to corrections officers and personnel (often female), creating a hostile working environment for the personnel.” Genies v. State, 196 Md. App. 590, 608 (2010) (quoting Senate Judicial Proceedings Committee Floor Report on Senate Bill 429, at 2 (2002)).

Like its express language, the legislative history of the statute does not contain any discussion of preempting the common law. Rather, the history is replete with discussion that the statute was intended to specifically criminalize harassment by inmates of correctional officers.

The essence of the Legislature’s purpose was to redress workplace harassment by providing a new offense and deterrent for inmates who indecently exposed themselves in an effort to abuse correctional officers. This unique purpose separates the statutory offense from the common law, which originated as “an offense against morality,” Wisneski v. State, 398 Md. 578, 590 (2007), and is a factor to consider in any preemption equation. See Lutz, 167 Md. at 16.

The statutory specific intent “to annoy, abuse, torment, harass, or embarrass a correctional officer or authorized personnel,” §8-803(b), is sufficiently different from the common law general intent explained in Wisneski, 398 Md. at 593-94. Specific intent, unlike general criminal intent, is “not simply the intent to do an immediate act, but the additional deliberate and conscious purpose or design of accomplishing a very specific and more remote result.” Chow v. State, 393 Md. 431, 464 (2006). The specific intent renders it separate and distinct from the common law and, thus, supplemental, rather than exclusive. See Lutz, 167 Md. at 17.

As a result, the specific intent of §8-803, coupled with a legislative history describing an intent to protect a particular class of victims rather than preempt the common law offense, establishes that §8-803 was intended to serve as a discrete offense, supplementing rather than supplanting the common law, so both prevail.

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

COMMENTARY: In Genies’ motion for a new trial, Genies alleged that at the conclusion of the trial, a juror had reported to the Jury Commissioner’s Office that she had changed her vote during jury deliberations because she had “felt threatened” by another juror who stated “If you don’t change your vote, I will make sure we all stay here for weeks,” which undermined his ability to have a fair and impartial trial; he requested a hearing on the motion. The trial judge denied Genies’ motion without a hearing and the Court of Special Appeals affirmed.

Under Rule 4-331, in effect at the time of the trial, on motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial and the court may hold a hearing on the motion.

Rule 5-606(b) prohibits a juror from testifying as to a “statement occurring during the course of jury deliberations” or to “the effect of anything upon that or any other sworn juror’s mind or emotions as influencing the sworn juror to assent or dissent from the verdict.” The Court has held that “under no circumstances would it be admissible to impeach the juror’s own verdict at the hearing of the motion for a new trial.” Williams v. State, 204 Md. 55, 71 (1954).

The facial allegations of the motion and the State’s response violated these norms, to Genies’ ultimate detriment, but the allegations could not have been the subject of a hearing. The trial judge acted within his discretion when he reviewed and ultimately denied Genies’ motion for new trial under Rule 4-331 without a hearing.

DISSENT: According to the dissent, it is clear both from the language of CS §8-803 and the legislative history of the statute, that the Legislature intended that the statute, rather than the common law offense of indecent exposure, apply when an inmate, in a correctional facility, exposes him or herself in the presence of a correctional officer or other authorized personnel, and that the common law offense is preempted.

Furthermore, with Genies’ fundamental right to a fair trial at stake, and proffered facts that were required to be proven to the satisfaction of the court by evidence, which could only occur at a hearing, the trial court abused its discretion when it did not grant a hearing prior to denying his motion for a new trial.

PRACTICE TIPS: A statute, criminalizing the keeping of a bawdy house, did not preempt the common law offense, criminalizing the keeping a disorderly house, where “they were directed to different objects.” See Lutz v. State, 167 Md. 12, 16 (1934).

Criminal Procedure

Communications from jury

BOTTOM LINE: A jury note with no date or time stamp found in the appellate record did not establish that the trial court received the jury communication at issue in order to trigger statutory disclosure requirements under Rule 4-326(d).

CASE: Black v. State, No. 73, September Term, 2011 (filed May 3, 2012) (Judges Harrell, GREENE, Adkins, Barbera, Cathell (retired, specially assigned) & Kenney (retired, specially assigned)) (Judge Bell dissenting). RecordFax No. 12-0503-21, 32 pages.

FACTS: Ocie Black was charged in the circuit court with child sexual assault and related offenses with regard to the assault of his girlfriend’s daughter. After the close of all the evidence, the jury began its deliberations around 5:10 p.m. on July 23, 2008, and returned with its verdict at 12:06 a.m. on July 24, 2008. At some point after the jury returned with its verdict and had been excused, five notes relevant to this discussion were found located in a single envelope contained within the court file; three of the notes, as confirmed by the affidavits of the trial judge, the prosecuting attorney, and the defense attorney, were actually communicated to the trial court and a response was given by the trial judge.

All five notes were written on loose-leaf style, lined paper. The first three notes were dated in the upper right-hand corner, with a question written on them and a handwritten response. Note four was not dated, nor was any time placed on the paper indicating receipt by the court during the course of the trial or deliberations. The Note contained a statement and a question. The fifth note was a small strip of paper. In the lower left-hand corner margin there was drawn a picture of what appeared to be a flower or four-leaf clover. Outside of the margin, in the body of the strip of paper, the word “Guilty” was written. There were no other writings on the paper.

Consistent with the affidavits of the presiding judge and the prosecuting and defense attorneys, the receipt of the three answered notes was clearly a regular part of the trial court proceedings. Neither the trial judge nor the trial attorneys had any recollection or knowledge with regard to the unanswered note four. In addition, there was no indication in the record that any of the parties mentioned had any knowledge of note five.

The jury convicted Black of one count of child sexual abuse, two counts of second degree sex offense, and two counts of third degree sex offense. The court imposed a sentence of thirty-two years incarceration. The Court of Special Appeals affirmed.

Black appealed to the Court of Appeals, which affirmed.

LAW: To determine the existence of reversible error, ordinarily the Court conducts two inquiries: (1) whether an error occurred in the trial court; and (2) if so, whether that error was harmless beyond a reasonable doubt. See Stewart v. State, 334 Md. 213, 228 (1994). With respect to the first inquiry, “[t]here is a presumption of regularity which normally attaches to trial court proceedings, although its applicability may sometimes depend upon the nature of the issue before the reviewing court.” Harris v. State, 406 Md. 115, 122 (2008). To overcome the presumption of regularity or correctness, the appellant or petitioner has the burden of producing a “sufficient factual record for the appellate court to determine whether error was committed[.]” Mora v. State, 355 Md. 639, 650 (1999). If the appellant or petitioner demonstrates that error occurred, the burden rests with the State to establish that the error was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 658 (1976).

Rule 4-326(d) provides: “The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury.”

The requirements enunciated in this Rule derive from the principle that an accused in a criminal prosecution has the absolute right to be present at every stage of trial from the time the jury is impaneled until it reaches a verdict or is discharged; that includes the right to be present “when there shall be any communication whatsoever between the court and the jury[,] unless the record affirmatively shows that such communications were not prejudicial or had no tendency to influence the verdict of the jury.” Midgett v. State, 216 Md. 26, 36-37 (1958).

In Denicolis v. State, 378 Md. 646 (2003), the trial court received four notes from the jury during deliberations. The third note, the note at issue, was marked as an exhibit and sought clarification on the definition of the crime of solicitation. Id. at 653. There was no mention of a third note in the trial transcript, nor was there any other indication in the record that reflected a response or any mention of the note. Id. The Court of Appeals concluded that the communication from the jury was received, for it appeared in the record and was labeled as a court exhibit. Neither the defendant nor his attorney were informed about the communication. Id. at 658.

In Fields v. State, 172 Md. App. 496 (2007), the official record contained a note that was not reflected in the trial transcripts. Id. at 512. The note contained a substantive question, and the record did not indicate that any response had been given to the jury. Id.

In concluding that Fields produced a sufficient record on appeal to establish trial court error, the intermediate appellate court reasoned that “[a]lthough we do not know what action was taken in response to the jury’s note, what we do know is that the note was submitted and marked as an exhibit in the proceedings and what we must surmise is that there is a real possibility, if not probability, that the jury never received an answer to a substantive question deemed important to its determination of who murdered [the victim].” Id. at 516.

When reading the plain language of Rule 4-326(d), it is clear that the trial court’s obligations under the Rule begin upon “the receipt of any communication from the jury pertaining to the action[.]” Receipt by the “court,” as contemplated by Rule 4-326(d), includes the trial judge and all court personnel who are subject to the direction and control of the judge, including, but not limited to, the courtroom clerk, the judge’s law clerk, and the bailiff.

In April 2005, the Court of Appeals adopted an amendment to Rule 4-326(d) to require that written communications to or from a jury shall be dated and time-stamped and that the time of any oral communications shall be noted in the record. Rule 4-326(d) (amended 2005).

There is a presumption, under Rule 4-326(d), that written jury communications that are received by the trial court will be dated and time-stamped and that the time of any oral communications will be noted in the record. Thus, when a purported jury note found in the appellate record is not dated or time-stamped, nor is the time of any oral communication noted in the record, there is a rebuttable presumption that the trial court did not receive the communication. The burden is on the appellant to overcome the presumption of regularity in a situation where there is no date or time-stamp on the jury note and there is no indication in the record that the trial court addressed, or otherwise responded to, the communication.

There was an affidavit filed by the trial judge here stating affirmatively that he did not know of the existence of jury note four; thus, it was clear that he did not receive it. Furthermore, it was reasonable to conclude, based on the appellate record produced by Black, that no other court personnel received the Note prior to the discharge of the jury.

Unlike the circumstances in Denicolis, where a member of the court staff marked the jury note as a court exhibit, Note four contained no indication that any court personnel received, raising a rebuttable presumption that Note four was not received by the court. Accordingly, Black failed to produce a sufficient appellate record to rebut the presumption of regularity.

Lastly, in Denicolis, the Court concluded that the petitioner’s ability to establish the circumstances under which the note in question was received and what, if any, reaction there was to it, was hampered. Denicolis, 378 Md. at 657-58.

In the present case, appellate counsel for Black obtained affidavits from the trial judge and from trial counsel. No adequate explanation was given, however, for the absence in the record of affidavits from the courtroom clerk(s), bailiff(s), and trial judge’s law clerk, any of whom may have knowledge bearing on how Notes four and five ended up in the court file and why there is no apparent response to them in the record. The mere fact that the trial judge failed to respond to a jury communication, which the record supported that he did not receive, did not mean that no better record than the one presented by Black could have been made for purposes of a direct appeal.

Likewise, Black’s ability to establish the circumstances surrounding the court’s receipt of note four was not hampered. Given the trial judge’s attestation that note four was not received by him, the more plausible explanation for how note four got into the court record was that all papers left in the jury room after the jury had been discharged were gathered and placed in one envelope, in the court file, for storage, along with jury notes that had been presented to the trial judge for a response.

On the basis of the record, note four was not received by the court from the jury within the meaning of Rule 4-326(d). In addition, Black did not rebut the presumption of regularity for trial court proceedings. Therefore, the trial court’s responsibilities under subsection (d) were never triggered.

DISSENT: According to the dissent, the majority’s ruling places a burden on a defendant that the Rule does not. The presence of the note in the court’s file with the several other notes pertaining to the action, that were acted on affirmatively established that the note was received by the court. The affidavits which stated that neither the trial judge nor counsel recalled receiving the note served to establish that the note’s receipt was never communicated to Black, which “alone constitutes error.” Denicolis, 378 Md. at 658. The burden then shifts to the State to prove how the note came to be in the court’s file and why its receipt was not communicated to Black. It was not Black’s burden to explain either of those occurrences.

PRACTICE TIPS: “In Maryland there has been no deviation from the rule that what takes place in the jury-room ought to be…known only to the jurors themselves and that their testimony cannot in general be heard to impeach their verdict.” Williams v. State, 204 Md. 55, 70 (1954).

Criminal Procedure

Merger of convictions

BOTTOM LINE: Where an ambiguity existed as to the factual bases for the defendant’s convictions for second-degree assault, under the required evidence test, the second-degree assault convictions merged into the conviction for resisting arrest.

CASE: Nicolas v. State, No. 88, September Term, 2011 (filed May 8, 2012) (Judges Bell, Harrell, Battaglia, GREENE, Adkins, Barbera & McDonald). RecordFax No. 12-0508-21, 47 pages.

FACTS: On December 12, 2009, Alycia Moss observed an SUV backing out of her driveway. According to Moss, as the SUV backed up, she heard it hit a parked van on her street. Moss indicated that she called out to the driver of the vehicle that he had hit the car. In response, she heard a voice say, “No, I didn’t.” Moss then called 911.

Officer Jonathan Anspach of the Montgomery County Police Department responded, along with Officers Mark Burhoe and William Sands. An MVA registration check revealed that McKenzie Nicolas was the owner of the SUV.

The officers approached Nicolas’ house. A woman answered the door and indicated that her son, Nicolas, had been driving the SUV. The officers entered the home, and according to Officer Anspach, when Nicolas came upstairs from the basement he was very agitated and started using profanity. Nicolas accompanied the officers outside.

According to Officer Anspach, Nicolas initially walked toward his car, but when asked for his identification, Nicolas walked by Officer Anspach and pushed him with his arm. The push was hard enough to cause the officer to step back. Nicolas then approached the porch, where Officer Burhoe was standing, and he hit him in the face.

Officer Anspach testified that after Nicolas brushed against him, it was decided he was going to be placed under arrest for assault on a police officer. Officer Anspach repeatedly told Nicolas he was under arrest and he refused to comply. When Nicolas then attempted to re-enter his home, Officer Anspach grabbed onto Nicolas’ shirt to keep him outside. Nicolas managed to get back into his house, with Officer Anspach following, and a struggle ensued for several minutes.

According to Officer Burhoe, when Nicolas went outside he initially walked toward his car but then turned around and pushed Officer Anspach as he was coming up the step. Officer Burhoe also testified that it was at that point that they decided to arrest Nicolas.

Officer Burhoe put his arm up in front of Nicolas to stop him from going back inside and Nicolas swung and knocked his arm out of the way and punched him in the face. Nicolas then attempted to go back inside his house. The officers followed him in an attempt to effectuate the arrest. A struggle ensued in the kitchen, and Nicolas continued to resist being placed under arrest. Nicolas was punching Officer Anspach and pushing him against walls and doors.

Officer Sands testified that when Officers Anspach and Burhoe went outside with Nicolas, he remained inside. At some point not long after the officers went outside with Nicolas, Officer Sands was hit from behind with the front door. He turned around and observed both officers fighting with Nicolas. Officer Sands testified that he heard Officers Anspach and Burhoe telling Nicolas he was under arrest and commanding that he put his hands behind his back. Nicolas was hitting, pushing, shoving, and slapping Officer Anspach.

According to Nicolas, when the officers came to his home to question him about the alleged hit and run, they began “pulling” him and “tasing” him without any provocation. Nicolas stated that he did not swing at the officers and, in fact, he had his hands up. According to Nicolas, when he initially followed Officers Anspach and Burhoe outside, he did not touch either one of them; rather, he walked around the officer who was “in the doorway” to regain entry into his home. Nicolas claimed that the officers abused him throughout the entire encounter.

The jury convicted Nicolas of one count of resisting arrest and two counts of second degree assault. The court imposed a sentence of eighteen months for each of the convictions, to run consecutively with each other, and three years of supervised probation. The court suspended the sentences for the second degree assault convictions. The Court of Special Appeals affirmed the convictions and sentences.

At some point after the jury had been excused, four notes were found in a single envelope in the court file marked “Jury Notes, Filed.” Three of the notes contained questions directed to the court, and, at the bottom of the respective notes, there were handwritten answers to the questions, accompanied by the trial judge’s apparent signature and an indication of the date and time. The fourth note contained a question and no other markings.

In his appeal to the Court of Special Appeals, Nicolas contended that the trial court erred in failing to disclose the fourth note to him and his trial counsel, thus violating the mandates of Rule 4-326(d). The Court of Special Appeals concluded that Rule 4-326(d) was never triggered.

Nicolas appealed to the Court of Appeals, which affirmed in part and reversed in part.

LAW: The Double Jeopardy Clause forbids multiple convictions and sentences for the same offense. Under the common-law rule of merger as well, when offenses merge, separate sentences are normally precluded. State v. Lancaster, 332 Md. 385, 392 (1993).

The test for determining the identity of offenses is the required evidence test. “The required evidence test focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter. If each offense requires proof of a fact which the other does not…there is no merger under the required evidence test even though both offenses are based upon the same act or acts.” Lancaster, 332 Md. at 391-92.

When there is a merger under the required evidence test, the lesser included offense merges into the greater offense, and a sentence is imposed only for the offense having an additional element or elements. McGrath v. State, 356 Md. 20, 24 (1999). In addition, for merger to occur the offenses must also be based on the same act or acts. Holbrook v. State, 364 Md. 354, 370 (2001).

Here, the two offenses at issue were second degree assault and resisting arrest. Assault is defined in CL §3-201(b) as “the crimes of assault, battery, and assault and battery, which retain their judicially determined meanings.” CL §3-203 provides a penalty of imprisonment not exceeding ten years or a fine not exceeding $2,500 or both.

As indicated by the statutory language, the offense of second degree assault retains its common law meaning. Under Maryland common law, an assault of the battery variety is committed by causing offensive physical contact with another person. In the present case, the trial judge, in accordance with the Maryland Criminal Pattern Jury Instructions (MPJI-Cr), instructed the jury that to find Nicolas guilty of assault, the State must prove that: (1) the defendant caused offensive physical contact with, or harm to, the victim; (2) the contact was the result of an intentional or reckless act of the defendant and was not accidental; and (3) the contact was not consented to by the victim or was not legally justified. See MPJI-Cr 4:01 (2007 Supp.); Epps v. State, 333 Md. 121, 127 (1993).

“A person may not intentionally…resist a lawful arrest[.]” CL §9-408(b) Prior to its codification, the crime of resisting arrest was a common law offense. See Purnell v. State, 375 Md. 678, 687 (2003).

Here, the trial judge instructed the jury that in order to find Nicolas guilty of resisting arrest, the State must prove that: (1) a law enforcement officer attempted to arrest the defendant; (2) the defendant knew that a law enforcement officer was attempting to arrest him; (3) the officer had reasonable grounds to believe that the defendant was committing or had committed a crime; and (4) the defendant refused to submit to the arrest and resisted the arrest by force. See MPJI-Cr 4:27.1 (2007 Supp.); Barnhard v. State, 325 Md. 602, 609-10 (1992).

In Cooper v. State, 128 Md. App. 257, 261 (1999), Cooper was convicted of one count of resisting arrest and two counts of second degree assault. The trial judge sentenced Cooper to five years for the resisting arrest conviction and ten years for each assault conviction. Id.

The Court of Special Appeals concluded that “because all of the elements of assault are included in resisting arrest, the two offenses satisfy the required evidence test.” Id. at 266. Furthermore, when considering whether the convictions for the assaults and the resisting arrest stemmed from the same act or acts committed by Cooper, the court concluded that “the only force applied to Officers Haltzman and Kayser was that utilized by [Cooper] to resist arrest.” Id. Thus, the court determined that Cooper’s convictions for second degree assault should merge into his conviction for resisting arrest. Id. See also Grant v. State, 141 Md. App. 517 (2001).

All of the elements of second degree assault are included within the offense of resisting arrest. The “force” that is required to find a defendant guilty of resisting arrest is the same as the “offensive physical contact” that is required to find a defendant guilty of the battery variety of second degree assault. While the force element of resisting arrest need not always constitute second degree assault against a law enforcement officer, when the force used by a defendant to resist arrest is the same as the offensive physical contact with a law enforcement officer attempting to effectuate that arrest, the convictions merge under the required evidence test.

In Nightingale v. State, 312 Md. 699 (1988), the Court of Appeals found that the petitioners’ convictions for child abuse and certain sexual offenses merged under the required evidence test. Id. at 700. The Court concluded, however, that it could not decipher from the trial records whether the factual bases underlying the convictions of both petitioners were based on the same acts or on different acts committed by the petitioners. Id. Thus, that the proper approach was to resolve the ambiguity in favor of the petitioners and to merge the convictions for the sexual offense counts. Id. See also Snowden v. State, 321 Md. 612, 614 (1991).

Upon reviewing the trial transcript, the judge’s instructions to the jury, and the verdict sheet here, the record was ambiguous as to the factual bases for which the jury found Nicolas guilty of second degree assault of Officer Anspach and Officer Burhoe. A reasonable jury could have found that the assaults were based on acts that preceded the officers’ attempt to arrest Nicolas, or that the assaults were an integral part of the resisting arrest. This factual ambiguity was resolved in Nicolas’s favor.

Accordingly, the trial judge should have merged the assault convictions into the conviction for resisting arrest.

COMMENTARY: Rule 4-326(d), which governs communications between a jury and the trial court, provides: “(d) Communications with jury. The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury.”

Under the plain language of Rule 4-326(d), the requirements of that subsection are not triggered unless the appellant or petitioner produces a sufficient factual record to establish that the trial court actually received the communication at issue. Black v. State, ___ Md. ___ (2012) (No. 88, September Term, 2011) (filed May 3, 2012). Furthermore, to trigger the mandates of subsection (d), the communication must have been received by the trial court prior to the jury’s rendition of the verdict. Black, ___ Md. at ___.

Furthermore, “there is a presumption, under Rule 4-326(d), that written jury communications that are received by the trial court will be dated and time-stamped and that the time of any oral communications will be noted in the record. The burden is on the petitioner or appellant to overcome the presumption of regularity in a situation where there is no date or time-stamp on the jury note and there is no indication in the record that the trial court addressed, or otherwise responded to, the communication.” Black, ___ Md. at ___.

Here, an unexplained and unmarked jury note located in the record was discovered by Nicolas’s appellate counsel well after the jury had rendered its verdict and been discharged. While the other three jury notes located in the record included a response, a date and time, and the judge’s apparent signature, the Fourth note contained no markings whatsoever to indicate receipt by the court. In addition, the trial transcript contained a record of the discussions between the trial judge, the prosecutor, and Nicolas’s trial counsel pertaining to the three answered jury communications. The record contained no mention of the Fourth note.

The trial judge indicated that his usual practice upon receiving a communication from the jury is to convene with counsel on the record to discuss possible responses and, thereafter, to provide a response on the note itself, along with a date and time. That did not occur here, raising the presumption that the Note was not received by the court.

Furthermore, there was no indication that Nicolas’s efforts to establish a sufficient record on appeal were hampered. See Denicolis v. State, 378 Md. 646 (2003); Black, ___ Md. at ___.

Nicolas failed to produce a sufficient record to rebut the presumption of regularity by establishing that the trial court actually received the Fourth note. Thus, the trial court’s responsibilities under Rule 4-326(d) were never triggered.

DISSENT: According to the dissent, Nicolas did produce sufficient evidence of the court’s noncompliance with Rule 4-326(d).

PRACTICE TIPS: “By subsuming and combining all statutory offenses of assault then existent as well as all common law forms of assault and battery into a single and comprehensive statutory scheme, the 1996 assault statutes represent the entire subject matter of assault crimes” and, therefore, the assault statutes abrogated the common law offenses of assault and battery. Robinson v. State, 353 Md. 683, 696 (1999).

Professional Responsibility

Disbarment

BOTTOM LINE: Disbarment was the appropriate sanction for an attorney who violated several Maryland Rules of Professional Conduct, including the misappropriation of client funds, and who filed no exceptions to the findings of fact.

CASE: Attorney Grievance Commission v. Goodman, No. 46 September Term, 2008 (filed May 1, 2012) (Judges BELL, Harrell, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 12-0501-20, 19 pages.

FACTS: In November 2003, Nellie Spearman and Noah Silver sustained injuries in an automobile accident. They retained Bruce Goodman to prosecute personal injury claims on their behalf. On November 14, 2003, Spearman and Silver executed authorizations for Goodman to pay, from the proceeds of any recovery, the Upper Marlboro Physical Therapy and Wellness Center (UMPTWC), which provided treatment for their injuries.

Goodman sent a letter, dated July 28, 2004, to the UMPTWC, requesting that the UMPTWC reduce the medical bills for Spearman’s and Silver’s treatments. The UMPTWC’s billing agency agreed to reduce each client’s bill by $400. At some point thereafter, Goodman disbursed the settlement funds due to Spearman and Silver; however, the UMPTWC never received payment.

In 2006, Spearman received several letters from a collection agency regarding her outstanding medical bill owed to the UMPTWC. After she was unable to reach Goodman by telephone, Spearman went to his office to inquire about the unpaid medical bill. Goodman’s response to her inquiry was that he was “fairly sure that he had paid the bill.” Silver also inquired of Goodman, several times over a two-month period, about his outstanding bill with the UMPTWC. The UMPTWC medical bills remained unpaid as of the hearing.

Goodman corroborated Spearman’s and Silver’s testimony, but he continued to maintain that he believed he paid the bill. Goodman also stated that he does not maintain a client trust account, that he placed Spearman’s and Silver’s settlement proceeds into his operating account, and that he had no financial records because they were lost during his divorce proceedings.

The Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed, against Goodman, a petition for disciplinary or remedial action, which alleged that Goodman violated: Maryland Rules of Professional Conduct (MRPC) 1.3 Diligence, 1.15 (a), (d) and (e) Safekeeping Property, and 8.4 (b), (c), and (d) Misconduct, Rules 16-603 Duty to Maintain Account, 16-604 Trust Account — Required Deposits, and 16-609(a) Prohibited Transactions; and BOP §10-306. The hearing judge concluded, by clear and convincing evidence, that Goodman violated all charges.

The Court of Appeals disbarred Goodman.

LAW: In instances where neither the petitioner nor the respondent files exceptions to the findings of fact, as was the case here, the Court “may treat the findings of fact as established for the purpose of determining appropriate sanctions, if any.” Rule 16-759(b)(2)(A).

An attorney who agrees to pay client medical bills from recoveries in connection with his/her representation, and fails to do so in a timely manner after receipt of settlement or judgment funds, acts without reasonable diligence and promptness. Att’y Griev. Comm’n v. Roberts, 394 Md. 137, 163-64 (2006). The hearing judge found that Goodman did not pay the UMPTWC medical bills and that the bills remain unpaid, a clear violation of MRPC 1.3.

Goodman failed to maintain a client trust account, in violation of MRPC 1.15(a). This Rule mandates that attorneys keep client or third-person funds in a separate trust account. See Att’y Griev. Comm’n. v. Mitchell, 386 Md. 386, 398 (2005); Att’y Griev. Comm’n. v. Prichard, 386 Md. 238 (2005).

“[A]n attorney who fails to notify the lender of his receipt of a settlement check and does not pay a client’s debts from settlement funds, violates Rule 1.15(b), “which became present MRPC 1.15(d), through a Rules Order filed in 2005. Att’y Griev. Comm’n. v. Zuckerman, 386 Md. 341, 370 (2005). See also Roberts, 394 Md. at 163-64.

Goodman failed entirely to pay his clients’ medical providers from settlement funds, as agreed to previously. Goodman stated that he believed that he paid the medical bills. Even if he failed to pay them accidently, an inadvertent failure to disburse settlement funds to a third party violates MRPC 1.15(d). Att’y Griev. Comm’n. v. Stolarz, 379 Md. 387, 400, (2004). Therefore, Goodman’s failure to pay his clients’ medical bills, whether accidentally or intentionally, violated MRPC 1.15(d).

Goodman’s failure to pay the outstanding medical bills promptly after negotiating the reduced amount owed also violated MRPC 1.15(e), which requires an attorney, who, in the course of representing a client, possesses property in which two or more persons claim an interest, to distribute promptly all portions of that property as to which the interests are not in dispute. Att’y Griev. Comm’n. v. Kendrick, 403 Md. 489, 503 (2008). Goodman negotiated a $400.00 reduction in both Spearman’s and Silver’s medical bills and then dispersed to Spearman and Silver their shares of the settlement funds regarding their personal injury claims, which indicated that there no longer was a dispute as to the money owed to the UMPTWC. See Roberts, 394 Md. at 150. His subsequent failure to distribute promptly to the UMPTWC its share of the settlement proceeds violated MRPC 1.15(e).

Goodman’s failure to maintain a client trust account and deposit the clients’ funds, in excess of his earned fees, into his operating account also violated Rule 16-604. Further, by accepting funds despite not having a client trust account, Goodman violated Rule 16-603.

Both Rules 16-609(a) and BOP §10-306 prohibit an attorney’s unauthorized use of client trust funds; the former couches the prohibition as “any unauthorized purpose” and the latter couches it as “any purpose other than the purpose for which the trust money is entrusted to the lawyer.” Goodman did not produce or maintain any relevant financial records regarding his operating account, yet claimed to have disbursed payment to the UMPTWC.

When Goodman failed to produce financial records to corroborate his claim that he paid his clients’ medical bills, he used those funds for an unauthorized purpose in violation of Rule 16-609(a) and §10-306. See Roberts, 394 Md. at 155-56; Nwadike, 416 Md. at 198. Even when faced with the prospect of disciplinary charges, Goodman elected not to pay $400.00 to have his bank reproduce copies of the financial records of his operating account.

An act prejudicial to the administration of justice is one that “tends to bring the legal profession into disrepute.” Att’y Griev. Comm’n. v. Rose, 391 Md. 101, 111 (2006). The commingling of personal and client funds, including the failure to maintain a separate trust account, is prejudicial to the administration of justice. Att’y Griev. Comm’n. v. Carithers, 421 Md. 28, 56 (2011).

Goodman acknowledged that he did not maintain a separate client trust account and commingled client settlement proceeds with his operating account, a clear violation of MRPC 8.4(d). Carithers, 421 Md. at 56-57. Further, Goodman’s inexplicable failure to pay his clients’ medical bills, in violation of his agreement to do so, exposed Spearman and Silver to potential lawsuits from the UMPTWC or anyone who might acquire the right to sue on debts. Such conduct erodes the public confidence in, and brings disrepute to, the legal profession and is, therefore, prejudicial to the administration of justice.

MRPC 8.4(c) proscribes attorney conduct that is dishonest, fraudulent, deceitful, or a misrepresentation. Goodman never paid his clients’ medical bills, despite agreeing to do so; deposited the clients’ settlement funds into his operating account without authorization; claimed he had paid the bills, but provided no evidence to rebut the evidence to the contrary; and assured both clients that he would take care of the matter, which he did not. Goodman’s conduct violated MRPC 8.4(c).

Further, misappropriation of client or third-party funds violates MRPC 8.4(c). Roberts, 394 Md. at 164. “Misappropriation is ‘any unauthorized use by an attorney of [a] client’s funds entrusted to him [or her],’ whether or not temporary or for personal gain or benefit.” Att’y Griev. Comm’n v. Glenn, 341 Md. 448, 484 (1996) (quoting In re Harrison, 461 A.2d 1034, 1036 (D.C. App. 1983)). Further, ‘“The co-mingling of client and attorney funds always creates the potential for misappropriation, even when there is no intent to misappropriate.” Att’y Griev. Comm’n v. Hayes, 367 Md. 504, 516 n.10.

Goodman commingled client and personal funds and did not provide financial records to establish how the funds were spent. Despite claiming to have paid the medical bills, Goodman could not provide any evidence to refute the claims that the medical bills were unpaid. A permissible inference is that Goodman misappropriated funds that belonged rightfully to the creditors, which left an insufficient balance to pay his clients’ medical bills. See Nwadike, 416 Md. at 197-98.

Furthermore, the sum of the circumstantial evidence demonstrated that Goodman knew he invaded his clients’ funds and those of third persons. Goodman acknowledged that he did not maintain a client trust account and placed his clients’ funds into his operating account. Therefore, he knew that he commingled client and personal funds and used them for purposes unauthorized by the clients. A knowing misappropriation of client funds is a violation of MRPC 8.4(c). See Att’y Griev. Comm’n v. Webster, 402 Md. 448, 466 (2007).

Finally, Goodman violated MRPC 8.4(b). Misconduct constituting a violation of BOP §10-306 and Rule 8.4(c) also supports a violation of MRPC 8.4(b). Att’y Griev. Comm’n v. Nussbaum, 401 Md. 612, 637-39 (2007).

COMMENTARY: The primary purpose of attorney disciplinary proceedings is to protect the public and its confidence in the legal profession. Att’y Griev. Comm’n. v. Stein, 373 Md. 531, 537 (2003). The Court of Appeals will sanction an offending attorney at a level commensurate with the nature and gravity of the violation(s) as well as the attorney’s intent when he or she committed the violation. Nwadike, 416 Md. at 201.

“Misappropriation of funds by an attorney is an act infected with deceit and dishonesty and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.” Roberts, 394 Md. at 166 (quoting Att’y Griev. Comm’n v. Vanderlinde, 364 Md. 376, 406 (2001)). Disbarment is the appropriate sanction for attorneys who misappropriate client funds. Roberts, 394 Md. at 166.

Goodman did not provide compelling extenuating circumstances that mitigate the sanction below disbarment. Thus, Goodman was disbarred.