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Opinions – 9/17/12: Maryland Court of Special Appeals

Civil Procedure

Motion to withdraw as counsel

BOTTOM LINE: The circuit court’s order rejecting an attorney’s request to withdraw as counsel in a civil action is appealable under the collateral order doctrine.

CASE: In The Matter of the Motion of Frederick R. Franke, Jr. To Withdraw Representation, No. 2577, Sept. Term, 2009 (filed Aug. 29, 2012) (Judges KRAUSER, Wright & Carrion (specially assigned)). RecordFax No. 12-0829-03, 21 pages.

FACTS: Dr. Raymon Nelson (Raymon) was the trustee of the Trust of his late brother, Ralph Nelson, M.D. (Ralph, Sr.). The beneficiaries of the Trust are Ralph, Sr.’s wife, Myra Nelson, and his son, Ralph Nelson, Jr. (Ralph, Jr.).

Myra filed a petition in the circuit court, seeking, among other things, the appointment of a co-trustee, because Raymon had purportedly mismanaged the Trust. Raymon hired Frederick Franke to represent him in this matter. After paying Franke a retainer and, later, as the case progressed, additional legal fees, Raymon reimbursed himself with funds from the Trust.

After discovery had advanced, Myra and Ralph, Jr. amended what had become their joint petition to demand that Raymon be removed as trustee, that a trustee be appointed in Raymon’s place, and that he be required to pay damages for misappropriation of Trust funds. The circuit court removed Raymon as trustee, replacing him with an interim trustee.

By that time, Raymon owed Franke more than $120,000 in legal fees. Unable to draw funds from the Trust, as a result of his removal as trustee, Raymon made no further payments to Franke though Franke continued to represent him in this matter.

About two months before trial, Franke notified Raymon that, largely because of Raymon’s failure to pay any pending or projected legal fees and costs, he intended to file a motion to withdraw as Raymon’s counsel. The motion was first granted by one judge and then denied by another. Franke noted an appeal. Pending the resolution of this appeal, at the request of Franke the circuit court stayed these proceedings indefinitely.

The Court of Special Appeals vacated the circuit court’s denial of Franke’s motion to withdraw.

LAW: Although the “exercise of appellate jurisdiction in Maryland is normally dependent upon a final judgment rendered by the trial court,” Washington Suburban Sanitary Comm’n v. Bowen, 410 Md. 287, 294 (2009), there are “three exceptions” to that rule: “appeals from interlocutory orders specifically allowed by statute; immediate appeals permitted under Maryland Rule 2-602; and appeals from interlocutory rulings allowed under the common law collateral order doctrine.” Salvagno v. Frew, 388 Md. 605, 615 (2005).

This case fell under the collateral order doctrine was examined. For an order to fall within that exception:(1) it must first conclusively determine the disputed question; (2) it must resolve an important issue; (3) it must be completely separate from the merits of the action; and (4) it must be effectively unreviewable on appeal from a final judgment.” Addison v. State, 173 Md. App. 138, 154 (2007).

There are no Maryland appellate decisions that specifically consider the appealability of a trial court’s order denying an attorney’s motion to withdraw in a civil case. Thus, the decisions of those federal and state courts that have considered the issue were examined.

In Whiting v. Lacara, 187 F.3d 317 (2nd Cir. 1999), a former police officer, Whiting, brought a civil rights action, in federal district court, against his former employer, the Old Brookville Police Department, and other local entities and individuals, after his employment with that department was wrongfully terminated. Id. at 318. After retaining, then discharging his first counsel, Whiting’s second counsel withdrew from the case, with Whiting’s consent, after a jury had been selected, and that resulted in the discharge of the jury.

Whiting eventually hired Garrett R. Lacara to represent him. Id. at 319. But, less than two weeks before trial, Lacara filed a motion to withdraw as counsel. The district court denied Lacara’s motion.

The 2nd Circuit found that the order denying “Lacara’s motion to withdraw as counsel satisfie[d] each of the…requirements” of the collateral order exception, pointing out that it ‘”conclusively determine[d] the disputed question,’“ that is, whether counsel will ‘”continue his representation,’“ id. at 320 (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375-76 (1981)); that it presented “an issue completely separate from the merits of the underlying action,” id.; and that, once a final judgment had been entered, the harm to Lacara “w[ould] be complete, and no relief c[ould] be obtained on appeal.” Id.

In Fidelity National Title Insurance Company of New York v. Inter county National Title Insurance Company, 310 F.3d 537 (7th Cir. 2002), Fidelity National Title filed suit, in federal district court, alleging that the named corporate and individual defendants had wrongfully diverted $20 million from real estate escrow accounts under their control. Five of those defendants retained the law firm of Myron M. Cherry & Associates, LLC, to represent them. As the case progressed, they repeatedly failed to pay their legal bills, eventually owing the Cherry law firm approximately $470,000 in legal fees and expenses. The law firm to move, on two separate occasions, to withdraw its representation. But, each time, its motion was denied.

In considering whether it had jurisdiction over that appeal, the 7th Circuit acknowledged that the Supreme Court had held that neither an order disqualifying a lawyer, Richardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985), nor an order declining to do so, Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), was appealable. While conceding a “superficial” similarity between orders denying motions to disqualify and motions to withdraw, it avowed a “vital difference”: “[I]ncorrect decisions about disqualification may justify reversal at the end of the case, while an incorrect decision forcing an unpaid lawyer to continue providing services never would supply a reason to reverse the final judgment.” Fidelity, 310 F.3d at 539. Then, observing that, “[b]ecause an order compelling a lawyer to work without prospect of compensation is unrelated to the merits of the dispute, cannot be rectified at the end of the case, and has a potential to cause significant hardship,” the Court held that an order denying a motion to withdraw “is immediately appealable as a collateral order.” Id.

Thus, under the collateral order doctrine, Franke’s appeal was an interlocutory appeal.

 

COMMENTARY: Under Maryland Rules of Professional Conduct 1.16 a lawyer may withdraw from representing a client if: “(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; [or] (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client[.]” Rule 1.16(b)(5) and (b)(6).

There was no dispute that Raymon “fail[ed] substantially to fulfill an obligation” owed to Franke, “regarding…the services” provided by Franke as his lawyer. Raymon never disputed the amount of legal fees that he owes Franke. Nor has he made any attempt to either pay any portion of the fee arrearage or to obtain new counsel since his removal as trustee.

Moreover, two months before the scheduled trial, Franke advised Raymon of his intention to withdraw, as Raymon’s counsel, for non-payment of fees and suggested that Raymon should either obtain new counsel or notify the court that he wished to proceed pro se. Thirteen days later, Franke filed his motion to withdraw, as well as a certificate that he had so informed Raymon by letter of his intention to withdraw his representation. Thus, Franke fully complied with Rule 1.16(b)(5).

As for Rule 1.16(b)(6), Raymon did not claim that there is any chance that Franke will be paid for his legal services except out of the assets of the Trust, a highly unlikely outcome. Having no reasonable prospect of receiving any of the more than $ 120,000 owed him, Franke faced, unless given the opportunity to withdraw, further expenditures of time and resources on Raymon’s behalf. Thus, Franke was confronted with an “unreasonable financial burden.”

Maryland Rule of Civil Procedure 2-132(b) governs striking of an attorney’s appearance. As directed by Rule 2-132(b), Franke’s motion to withdraw was “accompanied by” a “certificate that notice ha[d] been mailed to” Raymon “at least five weeks prior to the filing of the motion.” The notice mailed to Raymon informed him of Franke’s “intention to move for withdrawal” and advised Raymon “to have another attorney enter an appearance or to notify the clerk in writing of [his] intention to proceed in proper person.” Hence, Franke fulfilled the requirements of Rule 2-132(b).

Even after the moving attorney has complied with its notice requirements, Rule 2-132(b) provides that a court “may deny” such a motion “if withdrawal of the appearance would cause undue delay, prejudice, or injustice.”

Granting Franke’s withdrawal request would not necessarily have resulted in undue delay. Further, Raymon would not have suffered unfair prejudice if Franke’s motion to withdraw had been granted. It is inconceivable that Raymon did not understand that a likely consequence of his failure to pay any legal fees incurred, after his removal as trustee, would ultimately be an attempt by his counsel to withdraw from the case. When Franke did notify Raymon of his intention to withdraw, Raymon had two months in which to obtain new counsel.

As for injustice, the circuit court’s order, effectively compelling Franke to continue representing Raymon, without reasonable likelihood of compensation, imposed an unreasonable financial burden on him. Thus, there would be no injustice to Raymon if the motion to withdraw were granted, but there would be to Franke if that motion were denied. Fidelity, 310 F.3d at 539.

Under the circumstances, the circuit court abused its discretion in denying Franke’s motion to withdraw.

PRACTICE TIPS: A circuit court faced with an attorney’s motion to withdraw should also consider whether third parties would suffer unfair prejudice. See, e.g., Fidelity, 310 F.3d at 541.

Criminal Procedure

False arrest

BOTTOM LINE: County police officers had probable cause to arrest a security guard who failed to produce a valid permit for the handgun he was wearing outside the nightclub where he worked, because the gun-permit law’s exemption for certain supervisory employees applies only “within the confines of the business establishment”; therefore, the guard could not prevail in his actions for false arrest or malicious prosecution.

CASE: Prince George’s County v. Blue, No. 0191, Sept. Term, 2011 (filed Aug. 30, 2012) (Judges ZARNOCH, Berger & Eyler, J. (retired, specially assigned)). RecordFax No. 12-0830-03, 19 pages.

FACTS: Roguell Blue filed suit against Prince George’s County, and police officers Steve Thompson, Charles Patterson, and Timothy Tyler (collectively, “the County”) for his allegedly wrongful arrest for wearing and carrying a handgun without a permit outside Irving’s Nightclub in Capitol Heights, Md.

On June 17, 2008, during an investigation into a possible shooting at Irving’s Nightclub, police officers Patterson, Tyler and Thompson found Blue in the parking lot of the nightclub, wearing a handgun without a permit, and with neither a certification nor a license to be a security guard. When questioned, Blue identified himself as the nightclub’s “head of security” and produced a card which identified him as a “special agent” of the “United States Fugitive Enforcement Agency,” a company he owned. He provided the officers with several weapons certifications and a laminated copy of a portion of the Maryland Handgun Law which he believed exempted him from the State’s handgun permit requirement.

Officer Tyler believed that Blue was required to be in possession of both a security guard permit and weapons permit to lawfully carry a handgun as an armed security guard in the parking lot of a business. Lacking this documentation, Blue was arrested and charged with wearing, carrying, or transporting a handgun in public, whether concealed or open without a permit, in violation of Crim. Law §4-203.

After the criminal charges against him were nol prossed, Blue filed a complaint in the circuit court against the County and its police officers, alleging that his civil rights under Article 24 of the Maryland Declaration of Rights had been violated (Count 1), that he was falsely arrested and imprisoned (Count 2), and that he was maliciously prosecuted (Count 3). According to Blue, the officers arrested him without probable cause because he could lawfully wear and carry a handgun without a permit pursuant to the “supervisory employee” exception in Crim. Law §4-203(b)(7).

The County moved for summary judgment. The court denied the motion, and a jury trial proceeded. At the close of Blue’s case, the County moved for judgment on all counts. The court granted the motion as to the malicious prosecution claim. The court eventually denied the motion as to the remaining counts, and sent the case to the jury. The jury found that the County had violated Blue’s civil rights and was liable for his false arrest and false imprisonment.

After the court denied the County’s JNOV Motion, the County appealed. The Court of Special Appeals reversed the judgment and affirmed the rejection of Blue’s malicious prosecution claim.

LAW: The County argued that the plain meaning of Crim. Law §4-203(b)(7) did not insulate Blue from being arrested for violating Crim. Law §4-203(a), because Blue did not carry a handgun on the night of the offense “within the confines of the business establishment,” as provided in the statutory exemption. The word “confine” is defined in Merriam-Webster’s Collegiate Dictionary (11th ed. 2005) as “something (as borders or walls) that encloses.” That same dictionary states that “establishment” means a “place of business with its furnishings and staff.” Id. at 427. The word “within” suggests being “in or into the interior.” Thus, the language “within the confines of the business establishment” sets forth a very specific and narrow limitation on the supervisory employee exception to the handgun law.

In examining the language of Crim. Law §4-203, with an emphasis on its context and related provisions in the whole statute, it was helpful to focus on the relevant provisions as enacted in 1972 and incorporated without substantive change into a 2002 Code Revision, essentially its present form. Notably, the revisers made no change to the place-restrictive language of “business establishment” exceptions, such as the one for supervisory employees. See Marshall v. Walker, 958 F. Supp. 359, 365 (N.D. Ill. 1997).

While Blue contended that it would defy logic for the club owner to hire a head of security and restrict his carrying the gun to the building only, crediting this argument would allow the facts surrounding the employer’s needs to trump the text of the statute. Moreover, case law from other jurisdictions interpreting home/real estate and business exemptions from weapon possession/concealed weapon statutes demonstrates that the County’s proffered narrow construction of the business establishment exception is far from aberrational.

Finally, Blue’s “absurd consequences” was flawed in that it would unreasonably transform a narrow exception grounded in property and patron protection into a dangerous and open-ended one. Although it is arguably possible to screen patrons at the door for possession of weapons, it is quite unlikely that motor vehicles in a parking lot could be similarly checked. The display of a weapon by a security guard indoors could halt violence by unarmed patrons inside the establishment. However, drawing a handgun to chase a malefactor across a parking lot, where he or she may have a weapon hidden in a car, would invite possible battlefield-type carnage.

The purpose of the “supervisory employee” exception cannot be fully understood apart from the prohibition on handgun possession, both of which were enacted in 1972. See Norman J. Singer and J.D. Shambie, Statutes and Statutory Construction (7th Ed. 2007) at §47.11. The 1972 handgun control legislation is designed to discourage and punish the possession of handguns on the streets and public ways. The legislature determined that if a citizen is apprehensive of impending danger, his recourse is not to immediately arm himself, but instead to seek help from the State, by applying for a permit to carry a gun or, of course, by contacting the police for protection. Thus, by controlling the number of handguns in the public, and not permitting citizens to carry guns when there is time for alternative, safe action, the legislature sought to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens. State v. Crawford, 308 Md. 683, 695 (1987).

In implementing a more stringent statute, the Legislature established a “blanket rule” prohibiting any person from carrying, whether open or concealed, any handgun. Id. at 694. A limitation on the coverage of the statute carved out five specific exceptions to what would otherwise be criminal conduct, making it lawful for law enforcement personnel, persons with permits, persons transporting handguns for legitimate purposes, and persons on their own property to carry handguns. Id. at 694-95. The narrowness of the law’s exceptions indicates that they are not intended to override the statute’s primary purpose of controlling the possession of handguns to provide public safety. See Singer and J.D. Shambie, Statutes and Statutory Construction (7th Ed. 2007) at §47.11.

Thus, examination of the text and entire statute, its purpose, and the consequences of Blue’s proffered interpretation yielded the conclusion that the General Assembly intended to restrict the supervisory employee exception in the handgun control law to the interior of the business establishment where the supervisory is employed (i.e., the nightclub).

Here, the evidence adduced at trial sufficiently demonstrated that on the night of arrest, Blue was wearing and carrying a handgun, without a permit, in the parking lot of Irving’s Nightclub. These facts would establish probable cause as a matter of law. Therefore, Blue could not successfully maintain his due process claim. As such, no determination of liability was required by the fact finder and, as a matter of law, the County’s JNOV motion should have been granted.

Accordingly, the judgment of the circuit court was reversed as to Counts 1 and 2, and judgment on Count 3 was affirmed.

COMMENTARY: Count 2 alleged false imprisonment/false arrest. This tort consists of a deprivation of a person’s liberty without his or her consent and without legal justification. State v. Dett, 391 Md. 81, 92 (2006). As probable cause existed to believe that Blue was violating the handgun statute, there was legal justification for his arrest/imprisonment.

The same analysis applies to Count 3, Blue’s malicious prosecution claim, one element of which is the initiation of a criminal proceeding “without probable cause.” Heron v. Strader, 361 Md. 258, 264 (2000). The circuit court correctly found that Blue failed to show that the officers acted maliciously, but the existence of probable cause was an additional ground to affirm the judgment on Count 3.

Criminal Procedure

Search and seizure

BOTTOM LINE: Police detectives had reasonable suspicion to stop a suspect who had a short, private meeting in his vehicle with a known heroin dealer at a public park, after the dealer had gone out of his way to collect a small package just before the meeting and was acting precisely as he had two weeks earlier, when he was seen delivering heroin.

CASE: State v. Holt, No. 132, Sept. Term, 2012 (filed Aug. 29, 2012) (Judges Krauser, Wright & Eyler, J. (retired, specially assigned)). RecordFax No. 12-0829-01, 32 pages.

FACTS: The charges in this case stemmed from an investigatory stop of James Holt’s vehicle on July 13, 2011. The stop was the result of an ongoing investigation of suspected drug dealer Daniel Blue.

According to Detectives Joseph Crystal and James McShane, members of the Violent Crime Impact Section of the Baltimore City Police Department, on June 29, 2011, Blue, who was known by law enforcement for distributing raw heroin within Baltimore City, delivered 50 grams of raw heroin to Keith Townsend on a street corner in East Baltimore. Police saw Blue scanning his surroundings as he exited the vehicle, as he approached Townsend, while he spoke to Townsend, and when he left Townsend. Blue then returned to his vehicle and drove out of the area. Townsend was arrested as he walked away from the street corner, and the arrest team retrieved a plastic bag from Townsend’s pocket that contained a piece of bread with 50 grams of raw heroin inside. Blue was not arrested that day.

On July 13, 2011, Detectives Crystal and McShane conducted surveillance of Blue when he appeared at the North Avenue courthouse. Prior to arriving at the courthouse, both detectives reviewed the video of the June 29th interaction between Blue and Townsend in order to familiarize themselves with Blue’s mannerisms and actions. At the courthouse, Detective Crystal noted that Blue was not scanning his surroundings as he had during the drug transaction two weeks earlier. The detectives placed a GPS tracker on Blue’s vehicle and followed him after he left the courthouse. Blue drove to an apartment complex in White Marsh, Baltimore County, where he entered the complex and returned moments later with a small Rubbermaid container. Blue then traveled back into Baltimore City, arriving at Lake Montebello in northeast Baltimore.

At Lake Montebello, Blue parked on a single road encircling the lake, just before a workout station, and got out of his vehicle. Detectives Crystal and McShane both noticed that Blue was again scanning his surroundings and looking over both of his shoulders. Blue walked toward and through the workout station and met with a man later identified as Holt. Blue continued to scan his surroundings while briefly speaking with Holt. Holt did not look around before or after seeing Blue. The two men got into a Jeep Cherokee parked near the workout station. Holt entered the driver’s side, and Blue entered the passenger’s side. Holt drove around the lake once before Blue got out of the car and walked back to his car. Holt remained in the Jeep and drove away.

The detectives followed Holt in the Jeep for several minutes. After Holt made a few turns, both detectives activated their emergency lights, and the Jeep came to a stop. The detectives positioned their vehicles in front and to the side of the Jeep, but did not block the Jeep. Both detectives exited their vehicles while announcing themselves as police. McShane approached the Jeep from the front and repeatedly stated, “Police, let me see your hands.” Crystal approached from the rear driver’s side. Crystal initially saw Holt’s hands on the steering wheel, but then Holt lowered his right hand out of sight and quickly raised it to point a handgun directly at McShane.

Holt then started driving the Jeep directly toward McShane, who was able to move out of the vehicle’s path. At some point, both detectives fired into the vehicle. Holt left the scene, but later arrived at the University of Maryland Medical Hospital with gunshot wounds.

Holt was indicted and charged with first and second degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, felon in possession of a firearm, and conspiracy to distribute narcotics.

Prior to trial, Holt challenged the legality of the stop. The circuit court agreed and granted Holt’s motion to suppress the evidence discovered during the stop. The State’s motion for reconsideration and its interlocutory appeal were denied.

The State appealed to the Court of Special Appeals, which reversed the circuit court’s order of suppression and remanded the case.

LAW: A law enforcement officer can conduct a brief investigative “stop” of a person if that officer has a reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1 (1968); see also Nathan v. State, 370 Md. 648 (2002). Rather than an “inchoate and unparticularized suspicion or hunch,” Terry, 392 U.S. at 27, there must be specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Id. at 21.

Reasonable suspicion requires a minimal level of objective justification for making the stop. Illinois v. Wardlow, 528 U.S. 119, 123 (2000). It is a common-sense, nontechnical conception that considers practical aspects of daily life and how reasonable and prudent people act. Stokes v. State, 362 Md. 407, 416 (2001). The court must analyze the totality of the circumstances to determine objectively whether the officer possessed reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 8 (1989). A string of otherwise innocent behavior may, when analyzed together as part of the totality of the circumstances, constitute reasonable suspicion. United States v. Arvizu, 534 U.S. 266, 277 (2002).

Here, the detectives knew that Holt met in a public location with a known drug dealer, Blue, in what appeared to be a prearranged meeting. The detectives knew that Blue entered Holt’s car, and that the two drove around Lake Montebello once before quickly parting ways. The detectives knew that Blue had just traveled from the North Avenue courthouse to Baltimore County to pick up a small container, and that he then drove to Lake Montebello. The detectives noticed Blue was looking rapidly around, just as he had at a confirmed narcotics transaction only a few weeks prior. The detectives also knew that Blue had not looked rapidly around while visiting the North Avenue courthouse. Finally, the detectives were familiar with a previous confirmed narcotics transaction in which Blue participated.

This case highlighted the importance of not focusing on any set list of facts, but rather to examine the totality of the circumstances to determine whether an officer could reasonably suspect that criminal activity is afoot. The fact that the detectives did not witness any overtly criminal behavior during their meeting did not preclude the detectives’ reasonable suspicion.

The mere fact that there may be innocent explanations for each aspect of a defendant’s conduct, standing alone, does not necessarily make it impossible for an officer with training and experience in the field to form an objectively reasonable articulable suspicion that the defendant is engaged in criminal activity, based on a totality of the circumstances. Here, the officers’ reasonable suspicion to believe that Holt was engaged in criminal activity supported a brief investigatory stop.

Accordingly, the circuit court’s order of suppression was reversed and the case remanded.

COMMENTARY: Assuming arguendo that the stop was unlawful, the circuit court did not err in refusing to suppress testimony regarding the detective’s observations of Holt’s firearm under the exclusionary rule. Generally, the exclusionary rule prohibits any illegally obtained evidence to be used against a defendant at trial, Weeks v. United States, 232 U.S. 383 (1914), including not only evidence originally obtained in an illegal search or seizure, but any “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 488 (1963).

However, some derivative evidence can be introduced if the evidence to which the instant objection is made has been obtained by means sufficiently distinguishable to be purged of the primary taint. Id. Under one such exception, the use of illegally obtained evidence is permissible where it can be shown that the so-called “poison” of the unlawful governmental conduct is so attenuated from the evidence as to purge any taint resulting from said conduct.

In Maryland, a new crime, even if causally linked to illegal activity on behalf of law enforcement, is an intervening circumstance that attenuates the taint from that illegal activity. Evidence of the new crime should not be suppressed. Here, Holt’s actions of raising and pointing the firearm at Detective McShane were an intervening act, born out of Holt’s free will, which sufficiently attenuated any potential taint from the investigatory stop. Thus, the exclusionary rule did not apply.

PRACTICE TIPS: Under Maryland law, there are three ways to “purge the taint” from illegally obtained evidence. Such evidence is purged of its taint if it was inevitable that the police would have discovered the evidence; if the evidence was derived from an independent source; or if the so-called “poison” of the unlawful governmental conduct is sufficiently attenuated from the evidence.

Criminal Procedure

Waiver of counsel

BOTTOM LINE: The circuit court failed to comply with the dictates of Rule 4-215 before finding a waiver of counsel.

CASE: Gutloff v. State, No. 207, Sept. Term, 2011 (filed Aug. 31, 2012) (Judges EYLER, D., Kehoe, Raker & Irma (retired, specially assigned)). RecordFax No. 12-0831-00, 32 pages.

FACTS: Montgomery County Police Officer Kevin Correa was on patrol when he saw Adam Gutloff speed around a car that had stopped in front of him. Officer Correa made a traffic stop of Gutloff’s car, exited his police vehicle, and approached Gutloff’s car on foot. Gutloff rolled down his window. Correa could smell the odor of burnt marijuana emanating from inside the car. He asked Gutloff to get out of the car. Gutloff became agitated and refused. A struggle ensued, during which Gutloff struck Correa’s hand and tried to close the car window on the officer’s arm. Although Correa told Gutloff that he was under arrest, Gutloff still refused to get out of the car and proceeded to repeatedly strike Correa’s arm with the car door.

After officers managed to incapacitate Gutloff with a taser, Gutloff was arrested. A search of the car revealed sticks and stems and a bag of loose marijuana.

Gutloff was charged in district court with possession of drug paraphernalia, simple possession of marijuana, second-degree assault and resisting arrest. He also was cited for three traffic offenses, including negligent driving.

Gutloff first appeared before the district court without counsel. As soon as the case was called, Gutloff challenged the court’s jurisdiction, which became a recurring theme in the pretrial proceedings. The court asked Gutloff if he understood he was entitled to be represented by an attorney. Gutloff stated he did not understand that, and continued to argue jurisdiction. The judge determined that Gutloff waived an attorney.

The judge then attempted to determine whether Gutloff was seeking a jury trial. Gutloff continued to make assertions about jurisdiction, including that the district court lacked jurisdiction even to consider that question.

After the district court denied Gutloff’s motion to dismiss on jurisdictional grounds, Gutloff requested a jury trial. The case was transferred to the circuit court.

Gutloff was taken before a circuit court judge and again launched into his jurisdictional argument. The trial court attempted to explain voir dire to Gutloff and asked him whether he had any questions for the venire panel. Gutloff actively participated in voir dire.

Just prior to opening statements, Gutloff complained that he had not had time to prepare and requested a continuance. The judge denied his motion to postpone the trial.

The jury convicted Gutloff of possession of drug paraphernalia, simple possession of marijuana, second-degree assault, resisting arrest, and negligent driving. Gutloff was not represented by counsel at any point in the proceedings.

The Court of Special Appeals reversed.

LAW: Rule 4-215 was adopted as part of the implementation and protection of the fundamental right to counsel in a criminal proceeding. Any decision to waive counsel (or to relinquish the right to counsel through inaction) and represent oneself must be accompanied by a waiver inquiry designed “to ensure that [the decision] is ‘made with eyes open’ and that the defendant has undertaken waiver in a ‘knowing and intelligent’ fashion.” Knox v. State, 404 Md. 76, 87-88 (2008) (quoting Broadwater v. State, 401 Md. 175, 180 (2007).

The requirements of Rule 4-215 “are mandatory and must be complied with, irrespective of the gravity of the crime charged, the type of plea entered, or the lack of an affirmative showing of prejudice to the accused” because the right to counsel is a fundamental right. Broadwater, 401 Md. at 182.

The State argued that Gutloff’s disruptive conduct rendered it impossible for the courts below to fully adhere to the “precise rubric” of Rule 4-215.

In Leonard v. State, 302 Md. 111 (1985), the Court of Appeals reversed the defendant’s convictions for possession of a controlled dangerous substance with intent to distribute and of conspiracy, obtained after the trial judge refused to appoint new counsel for the defendant and ordered Leonard’s existing attorney to act as standby counsel.

The Court of Appeals acknowledged that “circumstances may arise where the defendant is so disruptive during the trial court’s attempt to advise him of the dangers and disadvantages of self-representation that the court would be justified in terminating its inquiry.” However, “these circumstances would be rare indeed. When it does occur, however, the record must be indelibly clear that the trial court made reasonable efforts to comply with [the] Rule. The defendant’s disruptive and obstreperous conduct during these efforts must be of a magnitude such as effectively to thwart the court from complying with the Rule or to reduce the proceeding to a mockery.” Id. at 125-27.

The Leonard Court concluded that there had been no “reasonable effort by the trial court to engage in a…waiver inquiry,” id. at 128, and that Leonard’s conduct was not so disruptive as to excuse the trial court’s failure to conduct an adequate waiver inquiry.

In U.S. v. Goldberg, 67 F.3d 1092 (3d Cir. 1995), Goldberg was represented by a federal public defender, but before trial filed a pro se motion seeking a continuance to obtain new counsel or, in the alternative, leave to represent himself. The district court advised him that the court would consider a postponement should Goldberg be able to retain an attorney by the trial date. In the meantime, the appointed counsel unsuccessfully sought to withdraw. Once the trial commenced, appointed counsel continued to represent Goldberg during jury selection.

Soon thereafter, appointed counsel informed the court that Goldberg had asked him to renew his motion to withdraw and, when he had refused to do so, had threatened his life. In Goldberg’s absence, the district court granted counsel’s motion to withdraw. Goldberg appeared at trial, accompanied by an attorney who had yet to enter his appearance. Goldberg explained that the new lawyer required a retainer, and asked for a continuance to obtain the necessary funds. Id. at 1096.

The district court denied Goldberg’s motion. The Court found that by Goldberg’s conduct he waived the right to proceed with counsel and that that was a knowing and voluntarily intentional act. Goldberg proceeded pro se and was convicted. Id.

The 3rd Circuit reversed. The court first explained the distinction between a “waiver,” which is an intentional and voluntary relinquishment of a known right, and a “forfeiture,” which is conduct that “results in the loss of a right regardless of the defendant’s knowledge thereof and irrespective of whether the defendant intended to relinquish the right.” Id. at 1099-1100. The court concluded that, to apply waiver, the defendant at least must have been informed of the nature of his rights, and that, even if it were to accept a forfeiture argument in theory, “the acts of this case would not support such a result.” Id. at 1102. See also United States v. McLeod, 53 F.3d 322 (11th Cir. 1995).

Gutloff’s conduct was not disruptive and obstreperous. Although the trial judge was frustrated by Gutloff’s repeated assertion of his completely non-meritorious jurisdictional argument, even after the court had ruled against him on it, the judge was able to control his courtroom, and there was no risk of danger or harm to anyone. Gutloff was not intransigent and acknowledged the trial judge’s warning not to become argumentative if the court ruled against him on any particular matter. Gutloff’s behavior, while annoying, did not “thwart the court from complying with Rule 4-215 or reduce the proceeding to a mockery,” Leonard, 302 Md. at 127.

Gutloff was not given the advisement required by Rule 4-215 and could not waive his right to counsel, as any waiver would not have been knowing. Gutloff’s conduct was not such as to thwart the court in giving the required advisements. Finally, Gutloff’s conduct was not egregious and extremely serious misconduct that would amount to a forfeiture of the right to counsel.

COMMENTARY: Gutloff’s jurisdictional argument was made, and rejected, in United States v. James, 328 F.3d 953 (7th Cir. 2003). In that case, Frederick James offered the “defense” that his ancestors came from Africa, that he is therefore a Moorish national, and as a result he need obey only those laws mentioned in an ancient treaty between the United States and Morocco. The 7th Circuit held that even if James were not a citizen of the United States (he is, having been born here), he would be obliged to respect the laws of this nation.

As a federal judge stated in another court stated: “[T]his Court is not aware of any legal principle which allows a person to immunize herself from state court jurisdiction simply by joining a particular church. If such a principle did exist, it would be utterly contrary to our Constitution, our history, and our legal traditions, which require equal treatment under the law for all people regardless of their religious or ethnic backgrounds.” Bank of Am. Nat’l Ass’n v. Derisme, 743 F. Supp. 2d 93, 103 (D. Conn. 2010). This jurisdictional argument has been characterized by the 4th Circuit as “patently frivolous.” United States v. Burris, 231 Fed. Appx. 281, 282 (4th Cir. 2007).

PRACTICE TIPS: There is a “hybrid situation,” “waiver by conduct,” in which the defendant is warned about the consequences of his conduct, including the risks of proceeding without representation, but persists. Goldberg, 67 F.3d at 1100-01.

Evidence

Scientific evidence

BOTTOM LINE: Because there is no consensus in the relevant scientific community that exposure to mold causes the injuries at issue here, the circuit court erred in concluding that the theories and methods of the expert were reliable and acceptable to establish general and specific causation, as required under the Frye-Reed standard.

CASE: Montgomery Mutual Insurance Company v. Chesson, No. 2454, Sept. Term, 2009 (filed Aug. 29, 2012) (Judges Eyler, D., Graeff & HOTTEN). RecordFax No. 12-0829-02, 41 pages.

FACTS: Josephine Chesson, Martha Knight, Carole Silberhorn, Linda Gamble, Kenneth Lyons, and Connie Collins (collectively, the Employees), were employees of the Baltimore Washington Conference of the United Methodist Church (BWCUMC). In late 2002, several employees complained of an odor emanating through the facility’s walls. Mold was discovered in the walls.

Each of the Employees filed a claim against BWCUMC and its insurer, Montgomery Mutual Insurance Co., with the Maryland Worker’s Compensation Commission (the Commission). The Employees alleged that they suffered an accidental injury or occupational disease, known as sick building syndrome, as a result of the workplace exposure. The Commission disallowed two of the claims and awarded the remaining Employees partial compensation.

Each of the Employees appealed and the cases were consolidated. Before trial, Montgomery filed a motion in limine to preclude the testimony of Dr. Shoemaker because his methodologies and theories regarding the causal nexus between exposure to mold and human health effects were not generally accepted in the relevant scientific community. The court denied the motion without a Frye-Reed hearing, saying it was unnecessary.

The Commission’s decisions were reversed and Montgomery noted an appeal. The Court of Special Appeals held that the court correctly declined to conduct a Frye-Reed hearing.

The Court of Appeals reversed, remanding the case for the limited purpose of conducting a Frye-Reed hearing.

At the Frye-Reed hearing on remand, Dr. Shoemaker explained the genesis of his theories and methodologies. Hung Cheung, M.D., a board certified physician in internal and occupational medicine, testified in opposition to Shoemaker.

The circuit court concluded that Shoemaker’s differential diagnosis method was reliable and acceptable to establish general and specific causation and, therefore, his testimony was admissible.

Montgomery appealed to the Court of Special Appeals, which reversed.

LAW: Dr. Shoemaker considered himself to be a physician who practices family medicine and uses a differential diagnosis to treat individuals exposed to water damaged buildings. Differential diagnosis “is a scientific method that laymen would refer to as the process of elimination.” CSX Transportation, Inc. v. Miller, 159 Md. App. 123, 204 (2004).

In Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), the U.S. Court of Appeals for the District of Columbia reviewed the notion of general acceptance: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

The “general acceptance rule” was adopted in Reed v. State, 283 Md. 374, 389 (1978). “[I]f the reliability of a particular technique cannot be judicially noticed, it is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence. Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved.” Id. at 380.

At bottom, the Reed Court explained that “before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.” Id. at 381. To be sure, “if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence.” Id.

The Court of Appeals discussed the issue of general acceptance and the differential diagnosis in Blackwell v. Wyeth, 408 Md. 575 (2009). There, the plaintiffs argued that thimerosal-laden vaccinations caused autism and mental retardation. One of the plaintiffs’ experts, Dr. Geier, used a differential diagnosis to establish “a genetic susceptibility thesis.” See id. at 614.

The circuit court excluded Dr. Geier’s testimony, in part because he failed to consider unknown genetics when conducting the differential diagnosis. On appeal, the plaintiffs argued that the circuit court was incorrect — that Dr. Geier considered genetics, and genetic interactions, but “unknown genetics account[ed] for less than 5% of autism cases, and he need not discount all possible causes.”

Because there was significant authority suggesting that unknown genetics accounted for the majority of autism cases, the Court of Appeals held that the lower court did not err and that “the ultimate determination — that Dr. Geier’s genetic susceptibility theory is no more than hypothesis and conjecture, devoid of a generally accepted methodology to support it — should not be disturbed by us.” Id. at 617-18.

At the Frye-Reed hearing in the case sub judice, Dr. Shoemaker testified that he conducts a differential diagnosis by using the repetitive exposure protocol, blood testing, and the visual contrast testing, to conclude that exposure to water-damaged buildings causes certain human health effects. These underlying methodologies have been recognized in scientific publications authored by Dr. Shoemaker. See Shoemaker, Rash, Simon, Sick Building Syndrome in Water Damaged Buildings: Generalization of the Chronic Biotoxin-Associated Illness Paradigm to Indoor Toxigenic Fungi, Health Effects II — Toxicology & Neurological Effects, at 52-63 (2006).

However, in Shoemaker, House, A Time-Series Study of Sick Building Syndrome: Chronic, Biotoxin-Associated Illness from Exposure to Water Damaged Buildings, Neurotoxicology & Teratology, Vol. 27, No. 1, at 29-46 (2005), the abstract noted that the results of the study must be “tempered” because there were “several study limitations.” Id. at 29. Specifically, the article highlighted the fact that exposure to specific agents was not demonstrated. Id. Dr. Shoemaker’s admission that he does not account for exposure amounts when conducting his differential diagnosis, which Dr. Cheung testified was integral to diagnosing illnesses associated with exposure, is similar to the situation in Blackwell in which the doctor did not sufficiently consider genetics in his differential diagnosis.

In Wilson v. State, 370 Md. 191 (2002), the defendant’s newborn daughter Brandi had died from what an autopsy suggested was Sudden Infant Death Syndrome (SIDS). Several years later, the defendant’s five-month-old son, Garrett, also died from what an autopsy initially suggested was SIDS. The causes of death were changed to possible suffocation and smothering, respectively, and the defendant was indicted for the murder of Garrett. See id. at 197-99.

At trial, Dr. Linda Norton stated that the statistical probability of one child dying of SIDS was 1 in 2,000, but the probability that Garrett died of SIDS was 1 in 4 million. Id. at 199-200. Using the product rule, she explained that the probability of two SIDS deaths in one family was 1 in 2,000 multiplied by 1 in 2,000.

The Court of Appeals held that Dr. Norton’s testimony should have been excluded, because the product rule is applicable when events are independent, and “[t]here is not general agreement in the medical community that multiple SIDS deaths in a single family are genetically unrelated. Moreover, the recent study in the Journal of the American Medical Association suggests that there may well be a genetic component to SIDS.” Id. at 209.

At the Frye-Reed hearing in this case, the parties acknowledged that the primary issue was whether exposure to mold caused the Employees’ neurocognitive and musculoskeletal problems.

Unanimity is not required to establish general acceptance. Wilson, 370 Md. at 210. The articles published over the years which address whether exposure to water damaged buildings caused human health effects relevant to the case sub judice demonstrate that there is a genuine controversy within the scientific community with regard to whether exposure to water damaged buildings causes the human health effects Dr. Shoemaker suggests are caused by exposure to water damaged buildings. Dr. Cheung cited articles that suggest more research is necessary, or that the majority of the illnesses suffered by the Employees could not be obtained through inhalation. Dr. Shoemaker cited articles that indicate neurological symptoms could be caused by exposure to water damaged buildings. Neither party cited articles that concerned musculoskeletal symptoms and exposure to water damaged buildings.

Thus, because there are sources that support and oppose Dr. Shoemaker’s theories and methodologies, and at least one that recognizes the relevant scientific field is undecided, Dr. Shoemaker’s theories and methodologies with regard to exposure to water damaged buildings, and the human health effects suffered by the Employees, are not generally accepted in the relevant scientific community.

Frye-Reed mandates that Dr. Shoemaker’s theories regarding causation be generally accepted in the medical community. Because Maryland follows the Frye-Reed standard, and there is no consensus in the relevant scientific community that exposure to mold causes the injuries at issue here, the circuit court erred in its Frye-Reed determination.

COMMENTARY: The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), concluded that Frye was superseded by the Federal Rules of Evidence. Under Daubert, the court would have determined whether Dr. Shoemaker’s theories regarding causation were reliable. See Daubert, 509 U.S. at 589 (the Federal Rules of Evidence state that a “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”). If Daubert was controlling, the Court would have entertained the circuit court’s invitation to choose the clinical-medical approach to determine the admissibility of expert medical testimony as it pertains to establishing general or specific causation.

PRACTICE TIPS: In toxic tort cases, under the toxicological approach, “[i]n the absence of an established scientific connection between exposure and illness, or compelling circumstances…, the temporal connection between exposure to chemicals and an onset of symptoms, standing alone, is entitled to little weight in determining causation.” Moore v. Ashland Chem., Inc., 151 F.3d 269, 278 (5th Cir. 1998).

Labor & Employment

State agencies

BOTTOM LINE: A State agency that had laid off employees had authority, under State Personnel and Pensions Article, to fill the vacancies by reinstatement or recruitment; however, a remand to the administrative law judge was necessary to determine whether the agency had complied with the Article’s mandatory procedures for recruitment and reinstatement.

CASE: Sturdivant v. Maryland Department of Health and Mental, No. 309, Sept. Term, 2011 (filed Aug. 31, 2012) (Judges Eyler, D., Wright & KEHOE). RecordFax No. 12-0831-06, 30 pages.

FACTS: In 2009, the Maryland Department of Health and Mental Hygiene (“DHMH”) closed the Rosewood Center, a facility that provided treatment services to developmentally disabled individuals, and transferred a number of its staff members to Spring Grove Hospital, a psychiatric hospital. As a result of the consolidation of the two facilities, a number of Spring Grove staff members were laid off, including the 17 plaintiffs in this case. Some of the laid-off workers were then rehired. Asserting that they should have been included among the rehired staffers, the plaintiffs filed a grievance, which was denied by an administrative law judge (“ALJ”). The plaintiffs then filed a petition for judicial review in the circuit court, which affirmed the ALJ’s decision.

The plaintiffs appealed to the Court of Special Appeals, arguing that under the State Personnel and Pensions Article (“SPP”) (1994, 2009 Repl. Vol.), they had a statutory right to reinstatement by seniority. The Court of Special Appeals found that the plaintiffs did not have a statutory right to reinstatement, but that because the ALJ’s findings of act did not sufficiently indicate whether the follow the mandatory SPP procedures for recruitment or reinstatement, remand was necessary to determine whether DHMH complied with these requirements.

LAW: The plaintiffs contended that Spring Grove did not comply with most of the requirements of SPP §§7-202-204 in its efforts to recruit among the laid-off Day Care Assistants (“DCAs”) and when it chose to hire from the class of laid-off employees. The ALJ concluded that Spring Grove’s hiring process was valid because it involved recruitment, pursuant to Title 7, and not a reinstatement, pursuant to Title 11. However, some of the ALJ’s findings were not consistent with her ultimate conclusion.

Title 11 of the SPP addresses the layoff of employees in the skilled service or the professional service, and the reinstatement of laid-off and separated skilled service or professional service employees to comparable positions in State employment. SPP §11-202. When an agency seeks to fill vacant job positions by reinstatement, Title 11 provides that positions are filled according to seniority, where the employee with the most seniority points is the first to be reinstated. SPP §11-208(a). Title 11 operates in concert with Title 7. Laid-off employees eligible for reinstatement form an existing list of eligible candidates within the purview of SPP §7-203(1).

Title 7 of the SPP sets out a detailed scheme that an appointing authority must follow when it chooses to fill a vacant position. The process begins, conceptually, with a description of the position to be filled. Under SPP §7-102(a)(1), each employee shall be provided with a written position description which describes the essential duties and responsibilities the employee is expected to perform and the standards for satisfactory performance. The position description must be approved by the appointing authority. SPP §7-102(b). Supervisors are obligated to give each supervised employee a copy of the position description for the employee’s position. SPP §7-102(c)(1)(iii).

With regard to the present case, SPP §7-204(a) states that the appointing authority must conduct the recruitment in accordance with the position selection plan. Thus, the position selection plan must be completed before recruitment commences. On this point, the ALJ’s findings indicated that the position selection plans were drafted weeks after the offers were extended for the DCA positions, thereby failing to comply with the statute’s requirement. In addition, pursuant to SPP §7-202(b), a position selection plan must list the minimum qualifications for the class of the position and any selective qualifications required for appointment to the position. On this point, the ALJ found that in the position selection plans, nothing was listed on the forms under “Minimum Qualifications,” “Selective Qualifications” or “Limitations On Selection.” Because the position selection plans did not list the minimum qualifications or selection qualifications required for the position, Spring Grove did not comply with the recruitment requirements set out in SPP §7-202(b).

Under SPP §7-202(b)(4), if an appointing authority chooses to recruit, the position selection plan must contain certain information, including the plan of development of any selection test to be administered to qualified applicants. None of the position selection plans in the present case listed this or the other required information. Moreover, SPP §7-204 requires an appointing authority to prepare a job announcement for the position, which must be sent to the Secretary of DBM at least 1 week before posting the job announcement to assure public access. There was nothing in the record to indicate that Spring Grove complied with this requirement. Similarly, there was nothing in the record to indicate that Spring Grove complied with SPP §7-209(d), which requires that the appointing authority must certify to the Secretary that the hiring process was conducted in accordance with the selection plan and this subtitle.

Of all of these requirements, SPP §7-204’s provisions relating to public notice and advertising are arguably the most critical. The statute states that to recruit candidates, an appointing authority shall prepare a job announcement for the position and conduct recruitment in accordance with the position recruitment plan. SPP §7-204(a). The job announcement must contain, among other information, a summary of the position description and the minimum qualifications for the class. SPP §7-204(b). The statute requires an appointing authority to advertise the vacancy at least two weeks before the deadline for submitting applications by, among other things, making available a job announcement to all appropriate State agencies based on selection limitations. SPP §7-204(c)(3)(i).

Thus, if Spring Grove failed to comply with §7-204, its efforts to fill the vacant DCA positions could not be deemed a recruitment. If Spring Grove did not recruit but instead merely appointed candidates from among those recently laid off, it filled the positions through reinstatement, and the ALJ found that seniority points were not considered as a qualification in the hiring decision. Therefore, if Spring Grove filled the positions through reinstatement, it did so in violation of SPP §11-208(a)’s mandate that laid-off employees be reinstated solely on the basis of seniority.

Given the lack of findings of fact indicating that Spring Grove complied with SPP requirements, remand to the Office of Administrative Hearings was necessary in order for an ALJ to complete the fact-finding process as to Spring Grove’s compliance with SPP §7-204 and make conclusions of law based upon those findings and this opinion.

Accordingly, the judgment of the circuit court was reversed, and the case remanded.

COMMENTARY: The ALJ was correct, however, in finding that SPP §11-208 does not establish a right of reinstatement for laid-off State employees. SPP §11-208 authorizes, but does not require, reinstatement of laid-off state employees. SPP §7-203 clearly states that an agency can fill vacancies by recruitment or selection from an existing list of eligible candidates. If the list of eligible candidates includes laid-off employees, the laid-off employees must be rehired on the basis of seniority as mandated by Title 11’s reinstatement procedure. If the agency makes the effort to recruit in accordance with Title 7, it can hire the candidates it deems to be the best suited for the position.

There is no statutory preference for either method; an agency may fill a vacancy through a Title 7 recruitment or a Title 11 reinstatement, or, conceivably, a combination of both. There is nothing in the State Personnel and Pensions Article that prevents an agency from directing its recruiting efforts at previously laid-off employees, as occurred in this case. However, as discussed above, if an agency chooses to recruit, it must comply with the statutory requirements set out in Title 7.

Negligence

Duty

BOTTOM LINE: Because defendants were not in contractual privity or its equivalent with the plaintiff, defendants did not owe plaintiff any legal duty and, therefore, plaintiff’s negligence claims failed.

CASE: Iglesias v. Pentagon Title and Escrow, LLC, Nos. 1562 and, 1563, Sept. Term, 2010 (filed Aug. 30, 2012) (Judges EYLER, D., Graeff & Kenney (retired, specially assigned)). RecordFax No. 12-0831-02 pages.

FACTS: In July 2006, Maria Iglesias responded to an advertisement for a condominium sale. The owner, identified to Iglesias as “Oscar,” referred her inquiry to his agent, Albert Gomez. Gomez in turn referred Iglesias to Jose Ramirez, who purported to be a loan officer.

Upon Ramirez’s request, Iglesias provided him with a number of personal financial records. Supposedly, with that information in hand, he pursued financing on her behalf. Iglesias subsequently made an offer to purchase Oscar’s condominium, which he accepted. At some point prior to settlement, however, Ramirez advised Iglesias that there was a problem with the financing and settlement was postponed to a later date. Oscar then told Iglesias that he no longer wished to sell that condominium

In September 2006, Iglesias used the services of a new loan officer to assist in obtaining financing with which to purchase a different condominium. It was then that she discovered that she was a record owner of a house located at 13114 English Turn Drive in Silver Spring (English Turn Property). Later, Iglesias learned that she also was a record owner of a house located at 19067 Sawyer Terrace in Germantown (Sawyer Terrace Property). Both properties were encumbered by deeds of trust (DOT) supported by loans solely in Iglesias’s name.

An investigation revealed that both of the transactions for the sales occurred at the offices of Pentagon Title & Escrow, LLC (Pentagon). Gomez, a real estate agent with Remax Home Centre, acted as the buyer’s agent and prepared the residential contract of sale; Kenneth C. Sanchez, of First Advantage Mortgage Company (First Advantage), acted as the loan officer; and settlement occurred at Pentagon’s office. In addition, at each settlement, the subject property was conveyed to Iglesias and another individual as joint tenants, but only Iglesias was obligated on the loans associated with the DOTs. Finally, in each case, settlement proceeded on the strength of a power of attorney (POA) purporting to authorize an individual to act on Iglesias’ behalf to consummate the real estate transaction.

The sales contract for the English Turn Property had been executed on July 27, 2006. It reflected that one Raymond Ekpedeme was the seller and that Iglesias was the buyer. The contract price was $897,500.

Settlement was held in the offices of Pentagon with Christina Shin, an attorney and Pentagon member. Ekpedeme and Ramirez were present. Iglesias was not. Ramirez gave Shin a Special Power of Attorney (Ramirez POA) in order to act on Iglesias’s behalf. Shin asked to see Ramirez’s photographic identification. After his identity was confirmed, Ramirez, acting under the force of the forged POA, executed all of the pertinent documents. Ekpedeme executed a deed conveying the property in fee simple to Iglesias and Ramirez as joint tenants. JP Morgan Chase Bank, N.A. (Chase) was the lender.

Settlement on the Sawyer Terrace Property occurred later, also at Pentagon’s office. The sales contract reflected that it was executed between Hugo and Marina Fochi, the sellers, and Iglesias, the buyer.

At settlement, the listing agent, Andres Franzetti, appeared and acted as attorney-in-fact for the Fochis. Luis Canales appeared on behalf of himself and Iglesias and gave Pentagon a Special Power of Attorney (Canales POA). Shin asked to see Canales’s photographic ID, which he produced. Thereafter, Canales, acting under the force of the forged POA, executed all of the pertinent documents. Franzetti executed a deed conveying the Sawyer Terrace Property in fee simple to Iglesias and Canales as joint tenants.

Iglesias sued Chase, Pentagon and Shin in the circuit court, alleging one count of negligence against each of them. The circuit court granted Chase’s motion to dismiss. The circuit court also granted summary judgment in favor of Shin on limitations and in favor of Pentagon and Shin on the issue of duty. The court denied Iglesias’ motions for partial summary judgment and her motion for default.

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

LAW: “Duty is a foundational element in a claim of negligence.” Pace v. State, 425 Md. 145, 155 (2012). Whether a legal duty exists is a question of law. Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 414 (2005). “There is no precise formula for determining the existence of a duty of care between two parties.” Griesi v. Atlantic Gen. Hosp. Corp., 360 Md. 1, 12 (2000).

In Jacques v. First National Bank, 307 Md. 527. 534-35 (1986), the Jacqueses sued the Bank for, among other things, negligence in the processing of their loan application. The jury awarded the them $10,000 in compensatory damages. The Court of Special Appeals reversed, holding that the Bank had no legal duty to use due care in evaluating a loan application.

The Court of Appeals reversed, saying that, when conduct creates the risk of economic loss (as opposed to the risk of personal injury), a tort duty of care will be found to exist only when there is an “intimate nexus” between the parties. A showing of “contractual privity or its equivalent” satisfies the “intimate nexus” requirement. Id. at 534-35.

The Court concluded that the Jacqueses were in contractual privity with the Bank, since the Bank expressly promised to lock in a particular interest rate for 90 days and process their application, in consideration for which the Jacqueses had paid the Bank appraisal and credit report fees. The Court concluded that it was implicit in the Bank’s promise to process the Jacqueses’ application that it would do so with reasonable care. Given the “rather extraordinary financing provisions” in the Jacqueses’ sales contract, the Jacqueses were “particularly vulnerable and dependent upon the Bank’s exercise of due care.” Id. at 540. This vulnerability, coupled with the “public nature” of the banking industry, led the Court to conclude that a tort duty should be recognized. Id. at 542.

In Weisman v. Connors, 312 Md. 428 (1988), the Court of Appeals considered the nature of “equivalent” relationships that might otherwise satisfy the “intimate nexus” requirement and give rise to a tort duty. The Court held that statements by a prospective employer to a prospective employee in pre-contractual negotiations can give rise to a duty on the prospective employer’s part to use only accurate statements about the company and the position. “[T]he circumstances under which the two men [in that case] came together in precontractual negotiations created a sufficiently close nexus or relationship as to impose a duty” largely because the potential employer’s goal was to persuade the potential employee to leave his current position to take the new job. Id. at 448. See also Walpert, Smullian & Blumenthal, P.A. v. Katz, 361 Md. 645 (2000); Simmons v. Lennon, 139 Md. App. 15 (2001).

There were several points of contact between Chase and the individuals purporting to act on behalf of Iglesias. First, a mortgage loan application was submitted to Chase representing facts about Iglesias’ employment, income, assets, and liabilities. Based on these representations, Chase approved the application and agreed to extend two loans totaling $897,000 to a person it presumed to be Iglesias. The loans were to be secured by two Deeds of Trust (DOTs) on the English Turn Property. Then, after Ramirez executed the loan documents securing the two DOTs under the authority of a forged POA, Chase disbursed the mortgage loan funds. By virtue of the fraud that gave rise to all of Iglesias’ claims, she was not an actual party to the loan transaction. Thus, Chase and Iglesias were not in actual contractual privity.

As for the equivalent to contractual privity, Iglesias did not allege any facts that would have put Chase on notice that the English Turn Property loan transaction was suspect. See Chicago Title Ins. Co. v. AllFirst Bank, 394 Md. 270 (2006). Chase knew only that it was processing two mortgage loans in Iglesias’ name for a residential real estate transaction. Iglesias’ negligence allegations against Chase stemmed from the factual assertion that it proceeded with a loan transaction on the strength of a notarized POA without verifying that Iglesias had in fact signed the POA. Iglesias did not allege facts demonstrating any relationship between herself and Chase, much less a relationship sufficiently intimate to justify the imposition of a tort duty.

Accordingly, neither contractual privity, nor its equivalent, existed and the motion to dismiss properly was granted.

Iglesias contended the circuit court erred in ruling that neither Pentagon nor Shin owed her a duty of care to look behind the facially valid POAs in either of the real estate transactions.

Iglesias was not in contractual privity with Pentagon. As to whether there was the “equivalent” of contractual privity between Iglesias and Pentagon, the reasons as to why, in this circumstance, a lender’s relationship with an imposter does not constitute the equivalent of privity applied with equal force to the relationship between a title company conducting a real estate closing and an imposter purchaser. Moreover, whereas Chase believed itself to be in contractual privity with Iglesias’ imposter, Pentagon did not enter into any contractual relationship with Iglesias or her imposter. Rather, it was acting as an agent for the lender in each transaction to facilitate the closing of the subject loans.

Iglesias argued that “red flags” in each transaction put Pentagon on notice that the POAs were suspect, thus making it foreseeable that Iglesias was likely a victim of identity fraud, therefore creating a circumstance akin to contractual privity.

The “red flags,” according to Iglesias, were that the POA was executed on the same day as closing; Iglesias was substituted as a buyer shortly before closing; Iglesias was the sole obligor on the mortgage loans; and the Ramirez POA improperly identified the county where the English Turn Property was located. However, these were not facts that would cause a settlement agent to suspect that an identity fraud was being perpetrated, much less to suspect that the facially valid POAs were forged.

As the settlement agent, Pentagon was not charged with a duty to compare or investigate the lenders’ closing documents. Its obligation was to carry out the lenders’ instructions and there was nothing to show that Pentagon did not do so. Moreover, Iglesias presented no evidence that agents of Pentagon realized that the Maria Iglesias purchasing the Sawyer Terrace Property was the same Maria Iglesias involved in the English Turn Property settlement; that they should have had mechanisms in place to alert them to such a fact; or that, if alerted, Pentagon would have been on notice of fraud.

Thus, as a matter of law, the relationship between Pentagon and Iglesias was not sufficiently intimate to give rise to a tort duty of care and summary judgment was properly granted in favor of Pentagon.

COMMENTARY: On July 20, 2009, Iglesias filed her complaints naming Pentagon, Chase, and various other parties as defendants. On March 26, 2010, she added Shin as a party. On May 5, 2010, Shin was served by private process server. Shin filed motions to dismiss and/or for summary judgment on the basis of limitations.

It is well established that a cause of action accrues for purposes of limitations at the time of the injury or, if the injury is unknown to the plaintiff, at such time as the plaintiff discovers that he or she has been injured. See Poffenberger v. Risser, 290 Md. 631, 636 (1981). Thus, a plaintiff “will be charged with notice, and the statute will begin to run when: ‘knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry [thus, charging the individual] with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.’“ Jacobs v. Flynn, 131 Md. App. 342, 361-62 (2000) (quoting O’Hara v. Kovens, 305 Md. 280, 287 (1986)).

Iglesias acknowledged that she became aware of the subject transactions in September 2006. Thus, at the very latest, Iglesias’ cause of action against Pentagon, and hence against Shin, accrued in September 2006. Only under unusual facts not present here may a plaintiff’s late discovery of the identity of an alleged tortfeasor delay the running of the statute of limitations. See Jacobs, 131 Md. App. at 360-68. As Iglesias did not amend her complaint to add Shin as a defendant until March 2010, three years and six months after her cause of action accrued, her claim against Shin was barred by limitations.

PRACTICE TIPS: To determine the nature and extent of an accountant’s duty, “(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance.” See Walpert, Smullian & Blumenthal, P.A. v. Katz, 361 Md. 645 (2000) (citing Credit Alliance Corp. v. Arthur Anderson & Co., 65 N.Y.2d 536 (1985)).

Negligence

Medical malpractice – expert’s certificate

BOTTOM LINE: Because plaintiff’s expert was not board certified in “the same or a related specialty” as defendants, and neither of the exceptions to that statutory requirement applied, the expert was not qualified to submit a valid certificate attesting to breaches of standards of care by defendants and, accordingly, the case was dismissed.

CASE: Hinebaugh v. The Garrett County Memorial Hospital, No. 331, Sept. Term, 2011 (filed Aug. 31, 2012) (Judges EYLER, D., Zarnoch & Kenney (retired, specially assigned)). RecordFax No. 12-0831-04, 36 pages.

FACTS: On August 12, 2006, Bryan Hinebaugh, then incarcerated at a local jail, was hit in the face, sustaining injuries to his left cheek and jaw. He was seen by Daniel Miller, D.O., a family medicine doctor, and was transported to Garrett County Memorial Hospital (GCMH). Dr. Miller ordered simple X-rays of Mr. Hinebaugh’s facial bones. The X-rays were performed at GCMH and were evaluated by Dr. Miller and by James K. Benjamin, M.D. and Stan Lambert, M.D., both of whom are radiologists. The radiological report said there were no radiographic abnormalities of Mr. Hinebaugh’s facial bones.

Ten days later, Hinebaugh, having been released from jail, went to the GCMH emergency room, where he was seen by Dr. Robert Coughlin, who is a family medicine doctor. Mr. Hinebaugh complained that ever since the day of the assault he had been experiencing numbness and pain in the area of his left cheek and pain in his left jaw, which was worse when he chewed. He reported that the pain was increasing.

Dr. Coughlin ordered a maxillofacial CT scan. He read the CT scan himself. It showed “a left supraorbital fracture with displacement.” Dr. Coughlin prescribed pain medication for Mr. Hinebaugh and urged him to be seen that week either by an Ear Nose and Throat (ENT) doctor, or an Oral and Maxillofacial Surgeon (OMS), for follow-up treatment.

On August 12, 2009, Mr. Hinebaugh filed a medical negligence claim in the Health Care ADR Office (HCADRO) naming Drs. Miller, Lambert, and Benjamin as defendant health care providers.

Hinebaugh filed a three-page certificate of a qualified expert and one-page report by John Mitcherling, D.D.S., a doctor of dental surgery, specializing in OMS. Dr. Mitcherling opined defendants had deviated from the standard of care by failing to get a CT scan of Hinebaugh’s face, and that Hinebaugh had suffered injury as a result.

Drs. Miller, Lambert, and Benjamin elected to waive arbitration. Hinebaugh filed a complaint in the circuit court alleging medical malpractice against Drs. Miller, Lambert, and Benjamin. He also sued GCMH and Allegany Imaging, P.C. (Allegany), based solely upon vicarious liability. Otherwise, the allegations were the same as in his complaint in the HCADRO.

Drs. Miller, Benjamin, and Lambert, together with Allegany, filed a joint motion to strike Dr. Mitcherling’s certificate and to dismiss the complaint without prejudice for failure to file a certificate satisfying the requirements of the Maryland Health Care Malpractice Claims Act (the Act), CJ §3-2A-01et seq. GCMH filed a similar motion.

The court granted the motions to dismiss without prejudice, finding that Dr. Mitcherling is not board certified in “the same or a related specialty,” CJ §3-2A-02(c)(2)(ii)lB, as any of the defendants and that neither of the exceptions to that requirement applied.

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

LAW: Unless the defendant has admitted liability or the sole issue is informed consent, the plaintiff in a medical malpractice case must file a “certificate of a qualified expert” who “attest[s] to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury.” CJ §3-2A-04(b)(1)(i)1. The certificate shall be accompanied by “a report of the attesting expert.” CJ §3-2A-04(b)(3)(i). If the plaintiff fails to file a valid certificate, the claim shall be dismissed without prejudice. CJ §3-2A-04(b)(1)(i)1.

CJ §3-2A-02(c)(2)(ii) states that “1. [A] health care provider who attests in a certificate of a qualified expert…concerning a defendant’s compliance with or departure from standards of care: A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and B. Except as provided in subsubparagraph 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.”

It was undisputed that Dr. Mitcherling is a dentist who specializes in OMS, and that he is board certified to practice in the specialty of OMS by the American Board of Oral and Maxillofacial Surgeons. Thus, he is a health care provider, and he is board certified in a specialty. Likewise, the defendant physicians are health care providers who are board certified in specialties — Dr. Miller in family medicine and Drs. Lambert and Benjamin in radiology.

It is not necessary for a certifying or testifying expert witness in a medical malpractice case to be the same kind of health care provider as the defendant. See CJ §3-2A-02(c).

Nor do the prerequisites for a person to sign a certificate of qualified expert or testify concerning “a defendant’s compliance with or departure from standards of care” include any words to the effect that the attesting or testifying expert must be a member of the same health care profession as the defendant.

Accordingly, the mere fact that Dr. Mitcherling is a dentist and the defendants are physicians did not disqualify Dr. Mitcherling from signing a valid certificate in this case.

Recently, in DeMuth v. Strong, 205 Md. App. 521 (2012), the Court of Special Appeals applied the well-established principles of statutory construction to determine the meaning of the phrase “related specialty” in CJ §3-2A-02(c)(2)(ii)1B. The Court reasoned that the word “related,” considered in the context of both subsubparagraph 1A, in which it modifies “field of health care,” and subsubparagraph 1B, in which it modifies “specialty,” has its ordinary plain dictionary meaning of “associated” or “connected.” Id. at 535-36. Taking into account the purpose of the Act, which is to weed out non-meritorious medical malpractice claims but not to create roadblocks to the pursuit of meritorious medical malpractice claims, the Court concluded that fields of health care are “related,” and hence board certified specialties are “related,” when there is an overlap in treatment or procedures within the specialties and therefore an overlap of knowledge of treatment or procedures among those experienced in the fields or practicing in the specialties, and the treatment or procedure in which the overlap exists is at issue in the case. Id.

In DeMuth, the evidence showed a treatment overlap between board certified orthopedic surgeons and board certified vascular surgeons with respect to the postoperative management of orthopedic patients. Specifically, board certified orthopedic surgeons and board certified vascular surgeons both engage in the assessment of blood flow to the extremities of a patient who just has undergone an orthopedic operation.

The Court concluded that, within that overlap area of treatment, the specialties were “related.” They would not be related with respect to the performance of surgeries within the specialties.

In his affidavit, Dr. Mitcherling attested that the field of OMS is one of only three fields of medicine that diagnose and treat facial fractures caused by traumatic injuries. Neither family doctors nor radiologists are qualified to treat facial fractures caused by traumatic injuries.

When Dr. Miller saw Hinebaugh in August 2006, Dr. Miller was engaged in the family medicine practice of “first-contact care,” that is, he was on the front line, assessing Hinebaugh’s complaint of pain caused by having been hit in the face. He ordered simple X-rays of Hinebaugh’s face to determine whether there were fractures of the facial bones. The X-rays were performed and read by Drs. Benjamin and Lambert who were practicing diagnostic radiology. Drs. Benjamin and Lambert, and Dr. Miller all concluded that the simple X-rays did not show any fractures to the bones of Hinebaugh’s face.

The single specifically stated standard of care opinion given by Dr. Mitcherling in his certificate was that all three defendants breached the standard of care by failing to perform a CT scan of Hinebaugh’s face. Dr. Mitcherling did not opine that any of the defendants breached the standard of care by ordering simple X-rays. Likewise, he did not opine that the X-rays showed a fracture that Drs. Miller, Benjamin, and Lambert failed to detect.

Thus, the question was narrowed to whether OMS is related to family medicine and/or radiology with respect to whether either such doctor breached the standard of care in his own specialty by not ordering a CT scan of the facial bones of a patient who was hit in the face, after simple X-rays of the face did not show any broken bones.

On the topic of diagnosis of facial fractures, Dr. Mitcherling attested that as an OMS he “regularly diagnose[s] and treat[s] individuals who suffered facial fractures caused by traumatic injuries” and that he has regularly taught “the clinical aspects of diagnosing and treating” facial fractures to residents in the programs he runs. The information furnished by Dr. Mitcherling makes clear that the programs he runs are for residents training in OMS — not for residents training in family medicine or radiology.

The fact that, as an OMS, he diagnoses and treats facial fractures, and teaches OMS trainees how to do so, does not show that an overlap between OMS and family medicine or OMS and radiology. Indeed, it does not show any knowledge or experience on the part of Dr. Mitcherling, as an OMS, of the standard of care that applies to family medicine doctors or radiologists confronted with a patient who complains of pain as the result of being hit in the face.

The standard of care issue in this case concerned the alleged failure of a family medicine doctor and two radiologists to diagnose facial fractures upon initial presentation of a patient. It is in that context that the “relatedness” or not of the specialties was assessed. OMS is not a “related specialty” to family medicine or radiology.

Under the test for “related specialty” set forth in DeMuth, the circuit court properly ruled that Dr. Mitcherling was not qualified to furnish the certificate and report in this case.

Even when an expert witness does not satisfy the “same or related specialty” board certification requirement of CJ §3-2A-02(c)(2)(ii)1B, if either of two exceptions to that requirement is satisfied, the expert nevertheless may express standard of care opinions about a health care provider who is board certified in a different or unrelated specialty.

The first exception, in (ii)2A, is triggered when the defendant health care provider “was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified.” Whether Dr. Miller was treating Hinebaugh in the hospital, his office, or the jail, the nature of the treatment he was rendering was not outside the realm of family medicine.

The second exception, at (ii)2B, applies when the certifying or testifying health care provider “taught medicine in the defendant’s specialty or a related field of health care.” There was nothing in Dr. Mitcherling’s affidavit or any other document in the record to show that Dr. Mitcherling ever taught family medicine or radiology.

Thus, neither exception to the requirement that the certifying expert witness be board certified in the same or a related specialty as the defendant or defendants applies.

COMMENTARY: Hinebaugh contended the circuit court erred by ruling prematurely on whether Dr. Mitcherling’s certificate satisfied CJ §3-2A-02(c)(2)(ii)1B, or either of the exceptions thereto, because the parties had not yet engaged in any discovery.

CJ §3-2A-04(b)(3)(ii) states that “[d]iscovery is available as to the basis of the certificate [of qualified expert].” Just because the parties have the opportunity to conduct discovery about the basis of a certificate does not mean that a certificate cannot be found invalid unless discovery has been conducted. Hinebaugh had access, without discovery, to all the information material to whether Dr. Mitcherling satisfied the necessary criteria, most importantly, Mitcherling’s training and experience, his board certification, the nature of his OMS practice, the board certification and practices of the defendant physicians, and the opinions he had to offer.

There was no discovery Hinebaugh needed to enable him to submit a certificate by Dr. Mitcherling that was most likely to meet the statutory requirements or to enable him to adequately oppose the motion to dismiss.

PRACTICE TIPS: Although submission of evidence beyond the four corners of the complaint ordinarily will convert a motion to dismiss into a motion for summary judgment, that is not so when the motion to dismiss concerns the validity of a certificate of qualified expert. Breslin v. Powell, 421 Md. 266, 288-94 (2011).

Premises liability

Lead paint causation expert

BOTTOM LINE: The trial court properly excluded testimony of plaintiff’s medical causation expert as lacking a sufficient factual basis, where the expert’s opinion that the apartment owned by the defendant contained lead-based paint was supported only by age of premises and presence of lead on one component of house exterior; defendants were therefore entitled to summary judgment because without expert’s testimony, plaintiff could not prove causation.

CASE: Taylor v. Fishkind, No. 2407, Sept. Term, 2010 (filed Aug. 31, 2012) (Judges Eyler, D., WRIGHT & Davis (retired, specially assigned)). RecordFax No. 12-0831-07, 35 pages.

FACTS: This case arose from a complaint filed in the circuit court by plaintiff Jazminn Taylor, through her mother, Nellie Taylor, in which Jazminn sought damages for injuries she sustained as a result of alleged exposure to lead paint while living at 2320 Riggs Avenue and 1025 North Carrollton Avenue in Baltimore. The complaint identified defendants Ronald Fishkind and Edward Lichter as the owners of 1025 North Carrollton, and the Housing Authority of Baltimore City (“HABC”) as the owner of 2320 Riggs Avenue during the period that Jazminn lived at each residence. The complaint asserted one count of negligence, for failing to remove lead paint from the premises, and one count of unfair trade practices in violation of §3-303 of the Commercial Law Article (“CL”), for leasing the premises when they contained lead paint, against each defendant.

Jazminn was born on June 7, 1990. From her birth until February 1993, Jazminn lived with her family at 2320 Riggs Avenue. She then moved with her family to 1025 N. Carrollton Avenue where she resided from February 1993 until March 1994. Thereafter, she lived at 828 Clintwood Court until 2005. While at each residence, Jazminn’s blood was tested for the lead. Between April 22, 1991 and November 21, 1996, her blood was tested ten times. According to the causation report prepared by Jazminn’s expert, Henri Merrick, M.D., since 1991, on three occasions Jazminn was found to have an elevated blood lead level. Two of the tests revealing an elevated blood lead level were conducted while Jazminn lived at the Carrollton address.

On December 10, 2007, Jazminn filed her initial complaint against Fishkind, Lichter, and the HABC. According to the complaint, both the Carrollton and Riggs residences contained lead-based paint, and Jazminn ingested lead-based paint chips, dust, and powder while living at both properties and suffered permanent brain damage as a result. On July 3, 2008, Jazminn identified Dr. Merrick as one of her expert witnesses. On July 28, 2008, after discovering that the HABC did not own the Riggs property while she lived there, Jazminn amended her complaint to add Allan Bird and Bentalou Associates, LTD., whom she identified as the owners during the relevant period. Shortly thereafter Jazminn agreed to dismiss the HABC.

On November 26, 2008, Jazminn amended her complaint a second time to add MYAL Partnership Management Services, Inc., Real Properties Services Corporation, and the estate of Allan S. Bird as defendants. The Second Amended Complaint identified MYAL Partnership Management Services, Inc. and Real Properties Services Corporation as the parties who were responsible for the maintenance and management of the Riggs property while Jazminn lived there.

During discovery, Jazminn retained Arc Environmental, Inc. to inspect 1025 N. Carrollton for lead-based paint. Arc inspected the property on June 3, 2009, and issued a report with its findings the following day. According to the report, the only surface that tested positive for the presence of lead-based paint was an exterior window apron on the front of the house, and the paint on the window apron was intact. All other tested surfaces were negative for the presence of lead-based paint.

On June 14, 2010, the defendants filed a motion for summary judgment, in which they argued that the testimony of Jazminn’s medical causation expert, Dr. Henri Merrick, was inadmissible pursuant to Maryland Rule 5-702 because she lacked a sufficient factual basis to testify that Jazminn was exposed to lead-based paint at the Carrollton address or that it was a lead source. The defendants further asserted that, without Dr. Merrick’s testimony, Jazminn could not prove the elements of her claims, and therefore, defendants were entitled to judgment as a matter of law. The circuit court granted defendants’ motion for summary judgment.

The Court of Special Appeals affirmed.

LAW: Maryland Rule 5-702 governs the admissibility of expert testimony and provides that expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. An expert’s opinion testimony must be based on an adequate factual basis so that it does not amount to conjecture, speculation, or incompetent evidence. Giant Food, Inc. v. Booker, 152 Md. App. 166, 182-83 (2003). Testimony amounting only to speculation or conjecture, or testimony based on improper or insufficient data, or testimony lacking factual support in the admitted evidence, is inadmissible. Terumo Med. Corp. v. Greenway, 171 Md. App. 617, 624 (2006). A factual basis may arise from a number of sources, such as facts obtained from the expert’s first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions. Sippio v. State, 350 Md. 633, 653 (1998).

Here, Dr. Merrick’s opinion that 1025 N. Carrollton contained lead-based paint was supported only by the age of the house and the presence of lead on one component of the exterior of the house. The only evidence that Jazminn was exposed to lead at 1025 N. Carrollton was her elevated blood lead level while living at that property. By Dr. Merrick’s own admission, she could not conclude that Jazminn’s blood lead level rose while living at 1025 N. Carrollton, nor could she rule out the possibility that Jazminn’s elevated blood lead level was caused by an exposure to lead that occurred prior to moving there.

In light of Dr. Merrick’s inability to rule out other sources of lead, and the scant evidence presented that areas of 1025 N. Carrollton that were accessible to Jazminn contained lead-based paint, the circuit court acted reasonably in concluding that the circumstantial evidence supporting Dr. Merrick’s opinion amounted to no more than a possibility that Jazminn was exposed to lead-based paint at 1025 N. Carrollton.

In light of the facts before the circuit court, the circuit court did not abuse its discretion in ruling that Dr. Merrick’s testimony was inadmissible because she lacked an adequate factual basis to support her conclusion that Jazminn was exposed to lead-based paint at 1025 N. Carrollton. The defendants were therefore entitled to judgment as a matter of law.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Jazminn further argued that even if the trial court did not abuse its discretion in excluding Dr. Merrick’s testimony, it erred in granting summary judgment in favor of the defendants as a result. To state a claim for negligence, a party must show (along with a duty, breach, and actual injury or loss), that the loss or injury proximately resulted from the defendant’s breach of the duty. Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76 (1994).

To establish causation, a plaintiff must show that the defendant’s conduct was a “substantial factor” in bringing about the alleged injury. See Johnson v. Rowhouses, Inc., 120 Md. App. 579, 593.

Here, Jazminn relied exclusively on Dr. Merrick’s testimony to establish that exposure to lead-based paint at 1025 N. Carrollton caused her injuries. Therefore, without Dr. Merrick’s testimony, Jazminn was unable to state a claim for negligence, and the defendants were entitled to judgment as a matter of law.

PRACTICE TIPS: In determining whether to admit expert testimony, Maryland courts consider: (1) whether the expert witness is qualified as an expert by knowledge, skill, experience, training, or education; (2) the appropriateness of the expert testimony on the particular subject; and (3) whether a sufficient factual basis exists to support the expert testimony. A factual basis may arise from a number of sources, such as facts obtained from the expert’s first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions.

Premises liability

‘Owner’ defined

BOTTOM LINE: In a lead-paint poisoning lawsuit, partnership that financed, guaranteed and took an indemnity deed of trust on an apartment building, but did not own the building, was not an “owner” within the definition of city housing code; as it had no involvement with ownership, management or maintenance of the property at any time, it could not be held liable for negligence or for any violations of Consumer Protection Act.

CASE: Butler v. S&S Partnership, No. 214, Sept. Term, 2011 (filed Aug. 31, 2012) (Judges Matricciani, Berger & EYLER, J. (retired, specially assigned)). RecordFax No. 12-0831-05, 68 pages.

FACTS: On October 9, 2007, Hector Butler, by his mother, Yvonne Crosby, filed suit in the Circuit Court for Baltimore City, against defendants S&S General Partnership (“S&S G.P.”), Lee Shpritz, Barbara Benjamin, S&S Partnership (“S&S”), Stanley and Rhoda Rochkind, N.B.S., Inc., Dear Management & Construction Co., Inc., and Charles Runkles, alleging injuries and damages resulting from lead paint exposure at two residential properties, 2238 Linden Avenue and 2308 Bryant Avenue in Baltimore City. These properties were owned, operated, and managed by the defendants, either individually or in their capacity as agents/employees.

Butler was born on October 11, 1986. From approximately August 7, 1987, through May 1988, Butler resided with Crosby in an apartment on Linden Avenue. During the first 12 days of Crosby’s and Butler’s tenancy, S&S G.P. owned the Linden Avenue property. Shpritz was a general partner in S&S G.P. In September 1987, S&S G.P. sold the Linden Avenue property to Benjamin. From approximately May 1988 to August 1991, Butler lived with Crosby in an apartment on Bryant Avenue. S&S owned the Bryant Avenue property from 1978 through 2008. The Rochkinds were partners in S&S. N.B.S., an entity related to S&S, did not own the Bryant Avenue property but, at some point, obtained a $2 million loan secured by an indemnity deed of trust on the property.

At the conclusion of discovery, each defendant, either individually or together, filed dispositive and/or discovery and/or scheduling order motions, raising several issues, including lack of ownership of the properties and/or lack of the presence of lead-based paint during the relevant time periods; that the affidavit of Butler’s expert witness, Howard Klein, M.D., should be stricken, as there was no factual basis to support his proffered opinion; that capillector screening tests for Butler’s blood lead level related to Bryant Avenue should be stricken; and that reports prepared by Arc Environmental, Inc., which conducted tests to determine the presence of lead at each property, were not in compliance with the court’s scheduling order and, thus, should be stricken.

The court refused to strike the screening tests but ruled in favor of the defendants on the other issues, including striking the Arc reports with respect to both properties, as Butler did not comply with the scheduling order. The court also struck the affidavit of Dr. Klein on the ground that it violated the scheduling order and Maryland Rule 2-402.

After a final judgment was reached as to all parties, Butler appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Butler first argued that the circuit court erred in granting N.B.S.’s motion for summary judgment. In its amended motion for summary judgment, N.B.S. stated that S&S owned Bryant Avenue during all relevant time periods, and that N.B.S. had no involvement with the ownership, management or maintenance of the property at any time; thus, N.B.S. could not be held liable for negligence or for any violations of the CPA with respect to Bryant Avenue. Attached to N.B.S.’s amended motion was an affidavit of Stanley Rochkind, who swore that N.B.S. had no ownership, management or control of Bryant Avenue. In response, Butler argued that in 1985, N.B.S. borrowed $2,600,000 from Suburban Bank and that S&S guaranteed the loan and secured its guaranty obligation by an indemnity deed of trust on property owned by S&S, including the Bryant Avenue property.

Thus, according to Butler, N.B.S. had an “ownership interest” in Bryant Avenue, pursuant to the definition of “owner” in the Baltimore City Housing Code, making summary judgment inappropriate. Butler also asserted that the court’s denial of his request to depose Stanley Rochkind, pursuant to Maryland Rule 2-501(d), after N.B.S. included Rochkind’s affidavit as an attachment in support of its amended motion for summary judgment, was an abuse of discretion. According to Butler, the deposition of Rochkind was required so that information concerning Rochkind’s involvement with N.S.B., Inc., and S&S Partnership and the details surrounding the execution of an Indemnity Deed of Trust with regard to the Bryant Avenue property could be obtained.

In fact, however, the circuit court was correct in concluding that the evidence and theory advanced by Butler based on the indemnity deed of trust did not meet the definition of “owner” within the meaning of the housing code. As such, there was no reasonable basis on which to believe that the deposition of Stanley Rochkind would produce anything relevant. Pursuant to §105 of the housing code, an “owner” is any person, firm, corporation, guardian, conservator, receiver, trustee, executor, or other judicial officer, who, alone or jointly or severally with others, owns, holds, or controls the whole, or any part, of the freehold or leasehold title to any dwelling or dwelling unit, with or without accompanying actual possession thereof, and shall include in addition to the holder of legal title, any vendee in possession thereof, but shall not include a mortgagee or an owner of a reversionary interest under a ground rent lease.

Butler did not dispute that N.B.S. was never an “owner” of the property in the traditional sense, or that S&S had title to the Bryant Avenue property during his tenancy. Rather, Butler’s theory was that because N.B.S. acquired a loan, for which the property was offered by S&S as security, that interest was somehow equivalent to “ownership.” However, there was no authority to support Butler’s position on ownership. Therefore, the details surrounding the execution of the deed of trust would not have changed the fact that the issuance of such a deed does not transfer ownership or control of property to a borrower. Moreover, there was no evidence in the record to support a contention that N.B.S. managed the day-to-day affairs of the property owned by S&S, or that N.B.S. was in any way responsible for, or had knowledge of, the maintenance or leasing of the property.

Rule 2-501(d) does not contain an entitlement to discovery. A court has the discretionary right to grant a continuance to obtain discovery, and in the present case, there was no abuse of discretion by the circuit court. Chaires v. Chevy Chase Bank, 131 Md. App. 64, 88 (2000). Given Butler’s untenable theory of ownership, there was no reasonable basis for requiring the court to grant further discovery.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Butler also argued that the circuit court erred and/or abused its discretion when it granted the motion to strike the Arc report relating to Bryant Avenue filed by Runkles and joined by the Rochkinds, S&S and N.B.S. Specifically, Butler claimed that he was deprived of notice and the opportunity to be heard when the trial court, on its own initiative, questioned Butler on his adherence to Maryland Rule 2-402(g)(1), and relied on that rule as the basis for its decisions, although no such motion was before the court. Butler further asserted that the court erred in deciding the merits of the motion to strike because the scheduling order concerned “Defendants who still own a subject property,” and it was undisputed that none of the defendants owned the Bryant Avenue property at the time of the testing.

At issue was a paragraph from the scheduling order which stated, “Defendants who still own a subject property shall allow the Plaintiffs to perform a non-destructive lead test upon the premises within 60 days of a written request provided that the request i[s] made no later than four months prior to the discovery deadline in paragraph 2(a). The defendants shall be permitted to attend the lead test accompanied by a consultant(s) or expert(s).”

Instead of giving any defendant notice and an opportunity to attend the lead assessment testing by Arc, Butler had the testing done a few days before the close of extended discovery. As the circuit court found, the scheduling order was “clear enough.” Butler was required by the plain language of the scheduling order to permit the defendants to attend the lead test accompanied by a consultant or expert, and he did not do so.

The court was within its discretion to fashion an appropriate remedy for Butler’s violation, and the remedy of excluding the reports was not excessive. See Admiral Mortgage, Inc. v. Cooper, 357 Md. 533, 545 (2000); Wilson v. Crane, 385 Md. 185, 199 (2005).

PRACTICE TIPS: In assessing the propriety of a sanction for a violation of a scheduling order, the reasons given for noncompliance, and the need for an exemption from the time deadlines imposed, are significant. While absolute compliance with scheduling orders is not always feasible from a practical standpoint, Maryland courts are entitled to demand at least substantial compliance, or, at the barest minimum, a good faith and earnest effort toward compliance. A party’s good-faith substantial compliance with a scheduling order is ordinarily sufficient to forestay the exclusion of a key witness because of a party’s failure to meet the deadlines in its scheduling order; ultimately, however, the appropriate sanction for a discovery or scheduling order violation is largely discretionary with the trial court.

Torts

Non-economic damages cap

BOTTOM LINE: The non-economic damages cap imposed by CJ §11-108 applies separately to damages awarded in a wrongful death and a survival action.

CASE: Goss v. The Estate of Bertha Jennings, No. 1931, Sept. Term, 2010 (filed Aug. 31, 2012) (Judges ZARNOCH, Eyler, J. (retired, specially assigned) & Rodowsky (retired, specially assigned)). RecordFax No. 12-0831-08, 25 pages.

FACTS: Rodney Jennings and two other inmates, Denard Thomas and Christian Taylor, were driven by a correctional officer in a Maryland Division of Corrections (DOC) van to pick up litter along the southbound shoulder of I-495. Another State Highway Administration (SHA) employee accompanied the crew in an SHA dump truck. Upon arriving at the intersection of I-495 and Route 202, the inmates were discharged from the van, donned bright green safety vests and began walking southbound on the shoulder of I-495. Shortly thereafter, the inmates crossed the exit ramp by foot and entered into the gore area of the beltway.

Lee Bayersdorfer, who was driving a tractor-trailer in the lane closest to the exit ramp, observed that immediately before the accident, a dump truck owned by W.H. Goss Trucking, LLC and operated by Wayne Goss accelerated, passed him on the left, and cut in front of him to take the Route 202 exit. At this time, and when he was at a distance of approximately 75 feet from the exit, Goss saw the inmates walk across the exit ramp and into the gore and sounded his horn to “warn” them.

When Goss’ dump truck was about five to eight feet away from him, Jennings ran from the gore back across the exit ramp. At that point, Goss applied the truck’s brakes, but was unable to avoid striking Jennings, who later died from accident-related injuries.

After the accident, Maryland State Troopers conducted a post-accident inspection, which revealed that the truck weighed 78,400 pounds, in violation of the 70,000 pound weight limit imposed by TP §13-919, and that three of Goss’ brakes were out of adjustment.

Jennings’ estate, the estate of his mother, and three beneficiaries, filed a wrongful death/survival action against Goss in the circuit court. Later, they amended their complaint to include claims against the DOC and the SHA (collectively, the State). In turn, Goss filed a third-party complaint against the State, and the State filed a cross-complaint against him, with both parties seeking contribution or indemnification against the other.

At the close of all the evidence, Goss and the State renewed their earlier motions for judgment, and the court reserved ruling. The jury returned a verdict against both parties in the amount of $2,025,000. This award represented the sum of $350,000 and $1,675,000 in noneconomic damages for the survival action and wrongful death claim, respectively. Thereafter, Goss filed motions for judgment notwithstanding the verdict (JNOV), a new trial, and a remittitur. The State also moved for JNOV.

The circuit court denied Goss’ motions and granted the State’s motion for JNOV, finding that the State was not negligent. The court’s rulings left the $350,000 survival action judgment intact and reduced the wrongful death awards to 150% of $680,000 or $1,020,000.

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

LAW: Goss contended that the court’s decision to apply separate statutory caps to the survival and wrongful death actions was not authorized by CJ §11-108.

When first enacted in 1986 in response to an insurance crisis, the noneconomic damage cap applied in “any action for damages for personal injury.” However, in United States v. Streidel, 329 Md. 533, 544 (1993), the Court of Appeals concluded that CJ §11-108 did not apply in a wrongful death case.

The General Assembly responded to Streidel in 1994 with legislation that was a compromise. Rather than redefining an “action…for personal injury” in CJ §11-108 to include a wrongful death action, the Legislature distinguished between the two causes of action in all key sections of the cap statute. In the definitional section, §11-108(a)(2)(i), the statute defined noneconomic damages as: “1. In an action for personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury; and 2. In an action for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education, or other noneconomic damages.”

CJ §11-108(b)(3) states: “(i) The limitation established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim. (ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award.”

Goss argued that this language requires the aggregation for cap purposes of the damages in survival and wrongful death actions.

Because the 1994 legislation did not erase the distinction between the two causes of action, to reach Goss’ proffered solution both paragraphs of §11-108(b)(3) would have to merge, contrary to the intention of the Legislature and applicable caselaw. Each paragraph of §11-108(b)(3) stands alone, with a survival action falling under paragraph (i) and a wrongful death action being confined to paragraph (ii).

This construction of §11-108 in no way offends the general purpose of the statute in promoting the availability and affordability of liability insurance in Maryland. See Oaks v. Conner, 339 Md. 24, 34-35 (1995).

Finally, the conclusion that the §11-108 damage cap applies separately to damage awards in survival and wrongful death actions, does not conflict with Leake v. Johnson, 204 Md. App. 387 (2012). There, the Court of Special Appeals said that for purposes of the Local Government Tort Claims Act (LGTCA), CJ §§5-501 et. seq., and its $200,000 limitation on liability, damages for survival actions and for wrongful death were required to be aggregated. However, that conclusion turned on the particular language of the LGTCA, where the cap was keyed to claims that arise from “the same occurrence.” CJ §5-303. The text and history of CJ §11-108 are vastly different and they account for a different result in this case.

Accordingly, under CJ §11-108(b)(3)(i), the $350,000 personal injury/survival action award here remained intact because it did not exceed the cap. Under §11-108(b)(3)(ii), the combined wrongful death awards of $1,675,000 were properly reduced to 150% of the applicable cap. Thus, the circuit court did not err in establishing the total damage award at $1.37 million.

COMMENTARY: Maryland has a “very restrictive rule” about removing negligence cases from the jury. Campbell v. Montgomery County Bd. of Education, 73 Md. App. 54, 62 (1987). If there is “any evidence, however slight, legally sufficient as tending to prove negligence,” then the trial judge must leave the weighing and evaluating of that evidence to the jury. Moore v. Myers, 161 Md. App. 349, 363 (2005).

When a defendant raises a claim of contributory negligence against a plaintiff who has died in the underlying action, a presumption applies that the decedent “exercised ordinary care for his own safety in accordance with the natural instinct of human beings to guard against danger.” Baltimore Transit Company v. State, 194 Md. 421, 434 (1950). Contributory negligence will not be decided as a matter of law unless the evidence overcomes this presumption and demonstrates “some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Id.

Here, whether Jennings exercised proper caution in running across the exit ramp was not so obvious that it could be said as a matter of law that the jury was unjustified in finding him free from fault. Whether Jennings’ decision to run was negligently or carelessly made was a question for the jury.

Goss’ next contention was that Jennings’ dash into the travel portion of the roadway was an intervening cause of the accident that relieved Goss of liability for negligence. Generally, intervening conduct will break the chain of causation when the act is neither intended by the initial actor nor foreseeable as the probable result of his conduct. See Stone v. Chicago Title Ins. Co., 330 Md. 329, 337 (1992).

There was sufficient evidence to support the jury’s finding that Jennings’ death was the reasonably foreseeable consequence of Goss’ negligence. The jury heard evidence that Goss was speeding, traversing lanes, sounding a loud horn, and apparently heading directly toward the inmates. The totality of this evidence created a jury question as to the foreseeability of Jennings’ flight, and it was permissible for them to conclude that Goss’ conduct created the chain of events that caused Jennings’ death. Accordingly, the trial court did not err in denying Goss’ motion for JNOV on this basis.

With respect to the State’s JNOV, the evidence was legally insufficient to establish that State personnel were negligent. Although some evidence was presented to suggest that it was unsafe for an inmate to cross the ramp into the gore on foot, it was undisputed that Jennings was fatally injured after he finished crossing the ramp, entered the gore and then ran back across the exit ramp into the path of Goss’ dump truck. Thus, none of Jennings’ evidence about the State directing an allegedly improper ramp crossing into the gore, or the methods used to train inmates or protect them while crossing the ramp into the gore and while working in the gore constituted evidence from which the jury could reasonably determine that State personnel were negligent.

Accordingly, the court properly granted the State’s motion for JNOV.

PRACTICE TIPS: Post-accident reports are admissible under the business records exception to the hearsay rule, see Rule 5-803(b)(6), and the nature of the records may be established by a “qualified witness” who has sufficient knowledge of the record-keeping system and the creation of the contested record to establish their trustworthiness. Davis v. Goodman, 117 Md. App. 378, 417 (1997).

Torts

Release agreements

BOTTOM LINE: As a matter of first impression, a parent may not waive by agreement a minor child’s future claim in negligence against a commercial enterprise; therefore, release agreement signed by parent, which purported to release retail store from claims arising from use of store’s play center by parent’s child, was invalid and unenforceable.

CASE: Rosen v. BJ’s Wholesale Club, Inc., No. 2861, Sept. Term, 2009 (filed Aug. 30, 2012) (Judges KRAUSER, Woodward & Kehoe). RecordFax No. 12-0830-00, 26 pages.

FACTS: Defendant BJ’s Wholesale Club, Inc., a self-described “membership warehouse club,” purported to offer its members brand-name products at relatively low prices. To be a member, an interested party was required to pay an annual membership fee. BJ’s provided a play center for members’ children of its members while its members shopped.

Before a member’s child could access the play center, the member was required to execute a release agreement, which ostensibly released BJ’s from “any and all claims and causes of action” arising from the use of the play center by a member’s child and requires a member to “indemnify, defend and hold harmless” BJ’s from any such claims or causes of action. As a member of BJ’s, Russell Rosen executed one of BJ’s release agreements in July 2005. On October 22, 2006, Russell’s wife, Beily Rosen, entrusted their 5-year-old son, Ephraim, to the play center, upon entering BJ’s to shop. While playing there, Ephraim fell head first from an elevated plastic play apparatus, suffering a serious brain injury.

The Rosens thereafter brought a negligence action on behalf of Ephraim and themselves in the circuit court against BJ’s. BJ’s filed a counterclaim against the Rosens, alleging breach of the release agreement. BJ’s later filed a motion for summary judgment invoking the same agreement. The circuit court granted summary judgment in favor of BJ’s, concluding that the release agreement was valid and enforceable.

The Rosens appealed to the Court of Special Appeals, which reversed and remanded.

LAW: This appeal presented a legal question of first impression in Maryland: whether a release of liability, presented by a “commercial enterprise,” and executed by a parent, on behalf of a minor child and before the child has sustained any injury, is enforceable. The BJ’s release agreement contained both an exculpatory and an indemnification clause. An exculpatory clause absolves a party from liability for its future negligence, by denying an injured party the right to recover damages from the person negligently causing the injury. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 257 (1996); Scott v. Pacific West Mountain Resort, 119 Wash. 2d. 484, 491 (1992). An indemnification clause, by contrast, attempts to shift responsibility for the payment of damages to someone other than the negligent party, usually back to the injured party, thereby producing the same result as an exculpatory clause. Id.

Because Maryland appellate courts had not yet addressed the question of the validity of an exculpatory clause in an agreement entered into by a parent with a commercial enterprise on behalf of a minor child, it was helpful to look to the opinions of the appellate courts of other states. A substantial majority of the state courts that have squarely considered whether a release agreement may bar future negligence claims of a child have held that such agreements are invalid and unenforceable on public policy grounds. Galloway v. State, 790 N.W.2d 252 (Iowa 2010). And while a minority of other states have upheld the enforceability of agreements executed by a parent on behalf of a minor child, releasing a potential tortfeasor from future claims of the child, they have generally done so not where a “commercial enterprise” was the subject of the release, but where the release was of a claim against either a government agency or non-profit organization, or its agents. Sharon v. City of Newton, 437 Mass. 99 (2002). For purposes of the present case, it was sufficient to recognize that BJ’s was unquestionably a commercial enterprise; therefore, there was no need to address whether the same rule should be applied so as to invalidate a parentally executed pre-injury release on behalf of a minor child, that waives any future claims that child may have, against a governmental entity.

In each of the extraterritorial, majority-view decisions that have invalidated, on public policy grounds, pre-injury agreements, executed by a parent on behalf of a minor child, purporting to release a “commercial enterprise,” a parent had executed, on his or her minor child’s behalf, a release agreement (with or without an indemnification clause) in favor of a private commercial enterprise, usually as a pre-condition for allowing the child’s access to and participation in some recreational activity. While participating in that activity, the child sustained injuries, and suit was thereafter brought on the child’s behalf. In each case, the defendant entity attempted to shield itself from liability by invoking the release agreement, and the trial court granted summary judgment or, as in one case, a motion to dismiss. Thus, all of these cases presented the same legal issue and were in essentially the same procedural posture.

In declining to enforce such agreements where minors are involved, a number of the majority-view courts recognized that an exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. See Hawkins v. Peart, 37 P.3d 1062 (Utah 2001). Such clauses are routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance, unlike post-injury releases of liability, which involve actual negotiations concerning ascertained rights and liabilities. Id. at 1066. A number of majority-view courts have further noted that the owners and operators of commercial businesses are in a better position than minor children to eliminate hazards on their property and to insure themselves against any risks which cannot be eliminated. Kirton v. Fields, 997 So. 2d 349, 358 (Fla. 2008). In addition, several of the majority-view decisions have invoked the state’s duty to act as parens patriae, because, in the words of the New Jersey Supreme Court, although parents undoubtedly have a fundamental liberty interest in rearing their children, the question of whether a parent may release a minor’s future tort claims implicates wider public policy concerns and the parens patriae duty to protect the best interests of children. Hojnowski v. Vans Skate Park, 187 N.J. 323, 339 (2006).

In the instant case, there was no statute or rule requiring court approval before a parent may release a minor child’s tort claim, after an injury has already occurred. As provided in Maryland Code (1974, 2006 Repl. Vol.), section 6-405 of the Courts & Judicial Proceedings Article (“CJ”), any action, including one in the name of the State, brought by a next friend for the benefit of a minor may be settled by the next friend. See also Maryland Rule 2-202(c). Consequently, the rationale of several of the majority-view decisions, which were premised on a statute or rule restricting a parent’s authority to settle a minor’s post-injury claim, could not be applied here. See, e.g., Scott v. Pacific West Mountain Resort, 119 Wash. 2d 484, 491 (1992).

However, the ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations. Wolf v. Ford, 335 Md. 525, 535 (1994). As the Court of Appeals has observed, the State of Maryland has a parens patriae interest in caring for those, such as minors, who cannot care for themselves, and the child’s welfare is a consideration that is of transcendent importance when the child might be in jeopardy. In re Najasha B., 409 Md. 20, 33 (2009). This parens patriae interest tilted the scales in favor of invalidating a parent’s agreement to release his or her child’s future tort claims against a “commercial enterprise,” even though such an agreement, if executed by the parent on his or her own behalf, may be enforceable. Wolf v. Ford, 335 Md. 525, 531 (1994). Therefore, despite the strong presumption in favor of freedom of contract and the presumption, no less strong, that a parent acts in the best interests of his minor children, a parent may not legally bind his or her minor child to a pre-injury release of tort liability in favor of a commercial enterprise.

Accordingly, the judgment of the circuit court was reversed and the case remanded.

COMMENTARY: BJ’s additionally contended that the issue concerning the enforceability of the indemnification clause in the release agreement was not preserved for appellate review. In fact, however, BJ’s quoted the release agreement, including its language regarding indemnification, both in its motion for summary judgment and in its reply memorandum below. Moreover, during the hearing before the circuit court, in its opening statement, BJ’s stated that the Rosens also agreed to defend, indemnify and hold BJ’s harmless for any claim that the child brought against BJ’s. Finally, the Rosens’ opposition to BJ’s motion for summary judgment stated that enforcing this waiver and indemnification clause would violate Maryland’s generally recognized deeply-rooted public policy interest in protecting the best interests of children. Thus, the enforceability of the indemnification clause was clearly raised before the court below; under Maryland Rule 8-131(a), that was all that was required to preserve the issue for appellate review.

Moreover, even if the issue had not been expressly advanced below, it was inextricably intertwined with the enforceability of the exculpatory clause, an issue the circuit court did address. Although an indemnification clause theoretically binds only the parent who signed it, as a practical matter, it could chill a child’s pursuit of his own claims against a negligent party, as his parent would be the ultimate source of compensation. Hawkins v. Peart, 37 P.3d at 1067. Therefore, for the same public policy reasons relied upon in holding the exculpatory clause unenforceable, the indemnification clause was also unenforceable.

PRACTICE TIPS: Maryland public policy strongly favors protecting children and their rights to financial support and appropriate compensation. For instance, Maryland law prohibits bargaining away the duty to support minor children, and parents’ ability to waive their child’s patient/psychologist privilege is greatly restricted in Maryland. Similarly, a parent cannot consent to the participation of a child or other person under legal disability in non-therapeutic research or studies in which there is any risk of injury or damage to the health of the subject.