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2012 Maryland appellate court opinions

2012 legal opinions

Key: 

— The digests below are listed by court, then by main subject, then in chronological order. They include cases published by the Court of Appeals and the Court of Special Appeals between Jan. 1 and Dec. 18, 2012.

— The year and date of publication by the court are given in the first six digits of the RecordFax number. For example, a RecordFax number beginning with “12-0125” indicates the opinion was published on Jan. 25, 2012.

Maryland Court of Appeals

A

Administrative Law, Driver’s license suspension: Administrative suspension of driver’s license for failure to submit to a chemical breath test was supported by substantial evidence, where the officer’s post-crash investigation (including witness statements, the license-holder’s presence at the scene of the accident and his admission to traveling from Delaware to Elkton) allowed her to reasonably infer that the license-holder had been driving under the influence of alcohol. Motor Vehicle Administration v. Carpenter, No. 44, Sept. Term, 2011. RecordFax No.12-0125-21.

Administrative Law, Appeal of public employee’s termination: Petitioner’s appeal of her termination was properly dismissed because she failed to file the appeal in a timely manner pursuant to SP §11-110(a)(1). Fisher v. Eastern Correctional Institution, Department of Public Safety & Correctional Services, No. 90, Sept. Term, 2011. RecordFax No. 12-0426-21, 18 pages.

Administrative Law, Discovery under Law Enforcement Officers’ Bill of Rights: The Law Enforcement Officers’ Bill of Rights does not provide for compelling production of records and documents by subpoena in advance of a disciplinary hearing. Popkin v. Gindlesperger, No. 104, Sept. Term, 2011. RecordFax No. 12-0426-22, 16 pages.

Administrative Law, Handgun permit: An out-of-state conviction can disqualify an applicant from obtaining a handgun permit and, when determining if such a conviction disqualifies an applicant, an agency should look to whether the penalty for the equivalent crime in Maryland meets the statutory threshold for barring possession of a handgun under PS §§5-101(g)(3) and 5-133(b)(1). McCloud v. Department of State Police, Handgun Permit Review, No. 101, Sept. Term, 2011.RecordFax No. 12-0521-23, 17 pages.

Administrative law, State Personnel: Termination of an at-will State executive service employee triggers primary administrative remedy provided by State Personnel and Pensions Article §11-305, which requires terminated at-will State employees to appeal assertedly illegal or unconstitutional terminations through administrative mechanism of §11-113. Forster v. State, No. 92, Sept. Term, 2011. RecordFax No. 12-0522-22, 56 pages.

Administrative Law, Appeal from abuse or neglect findings: Person accused of, but not found responsible for, child abuse or neglect has right to appeal when investigation by local department of social services finds that child abuse allegations are “unsubstantiated.” Department of Human Resources v. Hayward, No. 131, Sept. Term, 2007. RecordFax No. 12-0523-20, 35 pages.

Administrative Law, Driver’s license suspension: In overturning a driver’s license suspension based on driving while intoxicated, the circuit court improperly ruled that the officer had to indicate, on the Motor Vehicle Administration form, the reasonable grounds for the underlying stop that led to the suspension. Motor Vehicle Administration v. Lipella, No. 80, Sept. Term, 2010. RecordFax No. 12-0625-26, 25 pages.

Administrative Law, Private cause of action: TP §21-809, which authorizes the use of speed monitoring systems on certain roads, does not provide an express or implied private cause of action in tort. Baker v. Montgomery County, No. 124, Sept. Term, 2011. RecordFax No. 12-0821-22, 28 pages.

Administrative Law, Suspension of driver’s license: Where a driver agreed to take a breathalyzer test but performed it improperly seven times, the test technician’s certification that the driver refused to take the test, accompanied by a certification that the procedure had been explained to the driver and that he appeared to be in good health, was prima facie evidence to support the Administrative Law Judge’s finding that the driver had refused to take the test by conduct. Motor Vehicle Administration v. McMillan, No. 60, Sept. Term 2010. RecordFax No. 12-0924-22, 14 pages.

Alternative Dispute Resolution, Statute of limitations: While non-binding arbitration, mandated by an employment contract, may have constituted a condition precedent to litigation, pursuing arbitration neither postponed the accrual of the underlying breach of contract claims, nor otherwise tolled the statute of limitations applicable to maintaining an action in court. Kumar v. Dhanda, No. 47, Sept. Term, 2011. RecordFax No. 12-0502-21, 29 pages.

Alternative Dispute Resolution, Grounds for vacating arbitration award: Appellate court erred when it vacated arbitration award on basis that award was “completely irrational” and demonstrated “manifest disregard of the law.” Downey v. Sharp, No. 19, Sept. Term, 2011. RecordFax No. 12-0823-21, 23 pages.

Ci – Co

Civil Procedure, Motion for new trial: The trial court did not err in denying defendant-physician’s motion for a new trial, where the Court of Appeals’ holding in the case did not substantively change the Maryland common law of informed consent. Spangler v. McQuitty, No. 23, Sept. Term, 2011. RecordFax No. 12-0127-20, 26 pages.

Civil Procedure, Res judicata: Once original plaintiffs’ claims had been litigated, a subsequent action by their adult children, raising the same claims, was barred by res judicata because the children were in privity with the parties to the earlier litigation. Cochran v. Griffith Energy Services, Inc., No. 87 Sept. Term, 2011. RecordFax No. 12-0501-22, 16 pages.

Civil Procedure, Failure to name use plaintiff: The circuit court erred in dismissing plaintiffs’ wrongful death action for failure to name a use plaintiff as a potential beneficiary. University of Maryland Medical Systems Corp. v. Muti, No. 42, Sept. Term, 2011. RecordFax No. 12-0503-20, 18 pages.

Civil Procedure, Statute of limitations: Based on the plain language of the statute, confirmed by its legislative history, CJ §5-109(a)(1) of the Health Care Malpractice Claims Act is a statute of limitations, rather than repose. Anderson v. United States, Misc. No. 14, Sept. Term, 2011. RecordFax No. 12-0622-20, 33 pages.

Civil Procedure, Demand for jury trial: A case information report form is neither a “paper” nor a “pleading” and it is, therefore, not a proper means of demanding a civil jury trial pursuant to Rule 2-325. Duckett v. Riley, No. 61, Sept. Term, 2007. RecordFax No. 12-0829-20, 16 pages.

Civil Rights, Handicap discrimination under county code: Plaintiff’s latex allergy was an impairment which substantially limited her major life activities of socialization and parenting, and thus was a “handicap” within the meaning of the Howard County Code and, therefore, defendants’ failure to provide accommodations to plaintiff constituted discrimination in violation of state law and the county code. Meade v. Shangri-La Partnership, No. 128, Sept. Term, 2008. RecordFax No. 12-0128-20.

Constitutional Law, Right to counsel in post-conviction proceedings: Criminal defendant had no right to counsel in post-conviction collateral proceedings, and therefore circuit court did not abuse its discretion in allowing defendant to discharge counsel and continue pro se. Grandison v. State, No. 117, Sept. Term, 2010. RecordFax No. 12-0222-20.

Constitutional Law, DNA collection: The Maryland DNA Collection Act — which allows DNA collection from persons arrested, but not yet convicted, for crimes of violence — was unconstitutional as applied to a defendant who was arrested for assault in 2009; therefore, his conviction for a 2003 rape, based on that DNA sample, could not stand. King v. State, No. 68, Sept. Term, 2011. RecordFax No. 12-0424-22, 75 pages.

Constitutional Law, Double jeopardy: Because the district court’s decision to terminate the prosecution of the charges against defendant was not based on a resolution of some or all of the factual elements of the offenses charged, the trial court’s action did not trigger the protection against double jeopardy and, therefore, the State may pursue its appeal of that ruling. Kendall v. State, No. 2, Sept. Term, 2012. RecordFax No. 12-1127-22, 36 pages.

Consumer Protection, Secondary Mortgage Loan Law: The Secondary Mortgage Loan Law does not restrict a mortgage lender to a single loan origination fee, as long as the aggregate fees charged and collected do not exceed the statutory maximum set forth in CL §12–405 and lenders are only required by the SMLL to provide a disclosure form to borrowers who intend to use the proceeds of their secondary mortgage loans for commercial purposes. Polek v. J.P. Morgan Chase Bank, N.A., Nos. 24, 25, 26, 38 and 80, Sept. Term, 2011. RecordFax No. 12-0124-20.

Consumer Protection, Investigative subpoena power: The Consumer Protection Division of the Office of the Attorney General had authority to issue a subpoena to investigate whether defendant’s actions constituted violations of unfair and deceptive trade practices prohibited by the Consumer Protection Act. Washington Home Remodelers, Inc. v. State, No. 82 Sept. Term, 2011. RecordFax No. 12-0522-20, 29 pages.

Consumer Protection, Credit Services Businesses Act: Tax preparation service company that arranged refund anticipation loan for client for whom it was preparing tax return was not a “credit services provider” for purposes of Maryland Credit Services Businesses Act because company received no direct payment from client for this service, and circuit court therefore properly dismissed client’s complaint alleging that company failed to comply with the statute. Gomez v. Jackson Hewitt, Inc., No. 72, Sept. Term, 2011. RecordFax No. 12-0622-21, 55 pages.

Criminal

Criminal Law, Voir dire: Where defendant’s proposed question during voir dire was not mandatory, the trial court did not abuse its discretion in declining to present the proposed question. Washington v. State, No. 45, Sept. Term, 2011. RecordFax No. 12-0323-21, 24 pages.

Criminal Law, Indecent exposure: The statutory, specific-intent crime of indecent exposure by an inmate to a correctional officer did not preempt the common law offense of indecent exposure. Genies v. State, No. 11 Sept. Term, 2011. RecordFax No. 12-0501-21, 44 pages.

Criminal Law, Inconsistent verdicts: The decision in Price v. State, holding that inconsistent verdicts are no longer allowed in Maryland, does not apply to jury verdicts in criminal cases that are merely inconsistent factually, illogical, or “curious.” McNeal v. State, No. 94, Sept. Term, 2011. RecordFax No. 12-0521-22, 21 pages.

Criminal Law, Voluntary intoxication: Trial court did not abuse its discretion in declining to grant jury instruction on voluntary intoxication, because evidence was insufficient to allow a jury to rationally conclude that defendant was so intoxicated that he was unable to form intent necessary to constitute his crimes. Bazzle v. State, No. 85, Sept. Term, 2011. RecordFax No. 12-0522-21, 27 pages.

Criminal Law, Counterfeiting: In defendant’s trial for counterfeiting, State was not required to prove that defendant acted with intent to defraud a particular person, because evidence showing that defendant recorded deed he had altered was sufficient to show defendant’s intent to defraud another. State v. Neger, No. 108, Sept. Term, 2011. RecordFax No. 12-0820-20, 23 pages.

Criminal Law, Duress: As a matter of first impression, duress is a valid defense to felony murder in Maryland, and to establish and be entitled to the defense of duress, a defendant need not first prove that defendant attempted to stop or thwart the offense that defendant alleged that he or she was compelled to commit; therefore, defendant who showed “some evidence” for each element of the defense was entitled to jury instruction on duress. McMillan v. State, No. 132, Sept. Term, 2008. RecordFax No. 12-0824-23, 33 pages.

Criminal Law, Theft: Defendant was not guilty of theft under CL §7-104(d), where the State failed to prove that, at the time defendant cashed a counterfeit check, she knew that the money was delivered by mistake. Maryland v. Weems, No. 20, Sept. Term, 2012. RecordFax No. 12-1120-20, 21 pages.

Criminal Procedure, Right to counsel at bail determination: Under Maryland’s Public Defender statute, an indigent defendant has a right to appointed counsel at his or her initial appearance before a judicial officer in order for the judicial officer to determine whether there was probable cause for the arrest and, if so, whether the defendant should be released on his or her own recognizance, on bail, or not at all, because this initial appearance is a “critical proceeding” in the disposition of the case. DeWolfe v. Richmond, No. 34, Sept. Term, 2011. RecordFax No. 12-0104-20.

Criminal Procedure, Sentence in excess of plea deal: Rule 4–345(a) is an appropriate vehicle for challenging a sentence that is imposed in violation of a plea agreement to which the sentencing court bound itself and because defendant’s sentence exceeded the sentencing “cap” to which the trial court agreed to be bound, the sentence was illegal. Matthews v. State, No. 20, Sept. Term 2011. RecordFax No. 12-0126-21.

Criminal Procedure, Motion to correct illegal sentence: Where the defendant’s claim was not about alleged illegal sentences, but rather concerned an alleged procedural error, defendant’s complaint was not cognizable under Rule 4–345(a). Tshiwala v. State, No. 108, Sept. Term, 2009. RecordFax No. 12-0123-20.

Criminal Procedure, Request for DNA testing: The trial court did not abuse its discretion in denying defendant’s petition for production and testing of DNA material, pursuant to CP §8–201(b), where the State’s search was reasonable and defendant failed to establish that the requested evidence exists more than 20 years after his conviction. Washington v. State, No. 22, Sept. Term, 2011. RecordFax No. 12-0221-20.

Criminal Procedure, Interrogation after invocation of Miranda rights: The conversation that ensued after defendant’s invocation of his right to an attorney constituted an impermissible custodial interrogation and, therefore, defendant’s inculpatory statements should have been suppressed. Phillips v. State, No. 58, Sept. Term, 2011. RecordFax No. 12-0316-20, 18 pages.

Criminal Procedure, Post-conviction Procedure Act: The post-conviction trial court’s reopening of defendant’s post-conviction proceeding was unauthorized under CP §7-104 and the re-imposition of defendant’s original sentences, after having vacated those sentences and ordered a new trial, constituted the imposition of illegal sentences within the meaning of Rule 4-345(a). Alston v. State, No. 121, Sept. Term, 2009. RecordFax No. 12-0323-20, 19 pages.

Criminal Procedure, Voir dire objection: An overruled objection to a “CSI effect” voir dire question, where the nature of the objection was directed to the composition of the jury, was waived when the defense thereafter accepted the jury without qualification. State v. Stringfellow, No. 62, Sept. Term, 2011. RecordFax No. 12-0423-22, 25 pages.

Criminal Procedure, Sentencing: Defendant was entitled to resentencing because the court’s comments at sentencing could cause a reasonable person to conclude that the sentence was based in part on defendant’s exercise of his right to a de novo trial on appeal. Abdul-Maleek v. State, No. 46, Sept. Term, 2011. RecordFax No. 12-0427-20, 29 pages.

Criminal Procedure, Maryland Wiretapping and Electronic Surveillance Act: Because the “listening post” where the law enforcement officers first heard communications intercepted from defendant’s cell phone was within the geographical jurisdiction of the circuit court issuing the ex parte wiretap order, the interception was proper under the Maryland Wiretapping and Electronic Surveillance Act. Davis v. State, No. 59, Sept. Term, 2011. RecordFax No. 12-0502-20, 55 pages.

Criminal Procedure, Communications from jury: A jury note with no date or time stamp found in the appellate record did not establish that the trial court received the jury communication at issue in order to trigger statutory disclosure requirements under Rule 4-326(d). Black v. State, No. 73, Sept. Term, 2011. RecordFax No. 12-0503-21, 32 pages.

Criminal Procedure, Merger of convictions: Where an ambiguity existed as to the factual bases for the defendant’s convictions for second-degree assault, under the required evidence test, the second-degree assault convictions merged into the conviction for resisting arrest. Nicolas v. State, No. 88, Sept. Term, 2011. RecordFax No. 12-0508-21, 47 pages.

Criminal Procedure, Post-Conviction Procedure Act: Defense counsel’s failure to object to the advisory nature of the trial judge’s jury instructions at defendant’s trial did not amount to deficient representation, and the lack of objection to the same jury instructions did not constitute a waiver under CP §7-106(c)(2). Unger v. State, No. 111 Sept. Term, 2009. RecordFax No. 12-0524-20, 66 pages.

Criminal Procedure, Discharge of counsel: Under Maryland Rule 4-215(e), when an accused moves to discharge counsel and the trial judge finds that the accused has not presented meritorious reasons for discharge, the judge may require the accused to proceed to trial with his assigned counsel without first informing him that he may discharge counsel and proceed pro se if he chooses. Pinkney v. State, No. 97, Sept. Term, 2011. RecordFax No. 12-0622-23, 26 pages.

Criminal Procedure, Post-conviction relief: Defendant was not entitled to post-conviction relief to re-litigate the allegation that the trial court erred by excluding expert testimony, because that issue had already been finally litigated and cases decided after his trial did not establish any previously unrecognized constitutional standard. Greco v. State, No. 86, Sept. Term, 2011. RecordFax No. 12-0626-20, 43 pages.

Criminal Procedure, Illegal sentence: Defendant’s conviction and sentence for assault with intent to murder were illegal because that crime was not contained in the indictment returned by the grand jury. Johnson v. State, No. 84, Sept. Term, 2011. RecordFax No. 12-0710-21, 26 pages.

Criminal Procedure, Potential confusion of jury: The trial court’s refusal to allow a discussion of extraneous legal standards was not an abuse of its broad discretion in controlling the scope of closing argument so as to avoid potential confusion of the jury. Ingram v. State, No. 121, Sept. Term, 2011. RecordFax No. 12-0821-23, 21 pages.

Criminal Procedure, Warrantless collection of DNA: Defendant’s Fourth Amendment rights were not violated when the State recovered his DNA from saliva that he left on a straw in the course of complying with an alcohol monitoring program mandated by the terms of his probation for a drunken driving offense. Corbin v. State, No. 48, Sept. Term, 2011. RecordFax No. 12-0822-20, 61 pages.

Criminal Procedure, Ineffective assistance of counsel: Criminal defendant was entitled to presumption of actual prejudice with regard to defendant’s Sixth Amendment ineffective assistance of counsel claim where, during course of representation, defense counsel filed lawsuit against defendant seeking unpaid attorney’s fees, thereby creating personal conflict of interest; however, remand was necessary to determine whether presumed conflict of interest adversely affected counsel’s representation of defendant. Taylor v. State, No. 95, Sept. Term, 2011. RecordFax No. 12-0824-21, 31 pages.

Criminal Procedure, Right to discharge counsel: With regard to a defendant’s request to discharge counsel after the judge began to question the venire panel, “meaningful trial proceedings” began once the venire panel was summoned to courtroom for questioning; therefore, Rule 4-215(e), which applies to requests to discharge counsel before “meaningful trial proceedings” have begun, did not apply. Marshall v. State, No. 103, Sept. Term, 2011. RecordFax No. 12-0824-20, 30 pages.

Criminal Procedure, De facto arrest: Police officer’s use of a stun gun to fire two metal darts into the back of fleeing suspect converted what otherwise might have been a Terry stop into a de facto arrest for Fourth Amendment purposes, because the defendant would reasonably believe he was not free to leave; and, as there was no probable cause to arrest defendant, his gun and his statement to police should have been suppressed. Reid v. State, No. 113, Sept. Term, 2011. RecordFax No. 12-0824-22, 51 pages.

Criminal Procedure, Jury communications: Where criminal defendant moved for mistrial after learning that judge’s secretary had ex parte discussion with juror about juror’s grandmother’s death and juror’s ability to continue on the case, circuit court’s denial of defendant’s motion for mistrial was prejudicial error, because under the clear mandate of Rule 4-326(d), pertaining to jury communications, the discussion with the juror should have taken place before the judge and the parties. State v. Harris, No. 22, Sept. Term 2010. RecordFax No. 12-0927-22, 23 pages.

Criminal Procedure, Jury instructions: Where trial court gave different jury instruction than that requested by defendant, defendant’s constitutional rights were not violated because the content of the requested instruction was fairly covered elsewhere in instructions actually given. Carroll v. State, No. 126, Sept. Term 2011. RecordFax No. 12-0927-21, 23 pages.

Criminal Procedure: Re-indictment after dismissal for continued incompetency to stand trial: The State may re-indict a defendant after his charges were dismissed under Crim. Proc. 3-107(a) without showing that the defendant has been restored to competency. However, the 3-107(a) dismissal creates a rebuttable presumption that there is no substantial likelihood that the individual will become competent in the foreseeable future, and the State must overcome that presumption before the re-indicted defendant is placed in incompetency commitment. Otherwise, the court shall initiate civil commitment proceedings. State v. Ray, No. 23, Sept. Term 2012. RecordFax 12-1218-20, 37 pages.

Criminal Procedure, Confessions: Suspect’s confession of sexual molestation of his daughter, which was made to police officers after suspect voluntarily drove himself to police station, was questioned by unarmed, non-uniformed officers in an unlocked room, and was told that he was not under arrest and was free to go, should not have been suppressed for lack of Miranda warnings, because given totality of circumstances, suspect was not “in custody.” Thomas v. State, No. 130, Sept. Term, 2011. RecordFax No. 12-1026-21, 59 pages.

Criminal Procedure, Search and seizure: Under the plain feel doctrine, the officer’s seizure of items discovered during a pat-down search of defendant was lawful because it was “immediately apparent” to the officer that those items were evidence of defendant’s involvement in the crime of hacking and, therefore, the handgun seized from defendant’s vehicle was not the tainted fruit of that initial seizure. McCracken v. State, No. 18, Sept. Term, 2012. RecordFax No. 12-1128-20, 15 pages.

E

Education Law, Public school construction: A county board of education, which must ordinarily procure construction services through a locally-conducted competitive bid process, may purchase roofing repair services for public schools through an intergovernmental purchasing cooperative when it acts pursuant to authority granted by the Board of Public Works in regulations authorized by the General Assembly. Building Materials Corporation of America d/b/a GAF Materials Corporation v. Board of Education of Baltimore County, No. 71, Sept. Term 2011. RecordFax No. 12-0924-20, 27 pages.

Election Law, Ballot questions: The Maryland General Assembly has the power to enact general legislation before, and contingent on, the adoption of a constitutional amendment that it has proposed to the voters, and as a result, the General Assembly’s enactment of senate bill, which enacted comprehensive legislation that would regulate the implementation and the allocation of revenues originating from video lottery terminals in Maryland contingent on voter ratification of a constitutional amendment proposed by house bill which proposed to legalize video slot machine gambling and implement the Governor’s proposed revenue raising program, was constitutional. Stop Slots MD v. State Board of Elections, No. 87, Sept. Term, 2008. RecordFax No. 12-0106-20.

Election Law, Formation of new political party: In a proceeding involving political parties’ attempt to gain ballot access from Maryland State Board of Elections by presenting requisite number of voter petition signatures, the Board of Elections correctly implemented its mandate to adopt regulations prescribing form and content of petitions and to specify procedures for verification and counting of signatures; therefore, the circuit court erred in granting plaintiffs summary judgment on the basis that there was “sufficient cumulative information” from which the Board could identify petition signatories as registered voters. Maryland State Board of Elections v. Libertarian Party of Maryland, No. 79, Sept. Term, 2011. RecordFax No. 12-0521-21, 38 pages.

Election Law, Petition for special election: The Court of Appeals has not adopted the “sufficient cumulative information” standard for state and local boards of elections to use in determining whether to validate a petition signature and, instead, the signature validation requirements set forth in EL §6-203(a) are mandatory. Burruss v. Board of County Commissioners of Frederick County, No. 99, Sept. Term, 2011. RecordFax No. 12-0625-20, 43 pages.

Election law, Referendum: The Maryland Dream Act, which directly mandates and requires an increase in future appropriations for community colleges and which regulates amount of tuition revenue received by University System of Maryland, is not a law making an “appropriation” within the meaning of Article XVI, section 2 of the Maryland Constitution, because its primary object was not to appropriate money by assigning public monies to a particular use; therefore, the Act was not exempt from referendum. Doe v. Maryland State Board of Elections, No. 131, Sept. Term, 2011. RecordFax No. 12-0925-21, 28 pages.

Election Law, Statutory requirements for petition: In obtaining the signatures necessary to petition a bill to referendum, allowing a petition sponsor’s computer program to pre-fill the signer’s identifying information on the petition form does not violate the statutory requirement that the individual signer shall “include” that information and/or the requirement that the signer shall “[p]rovide” such information. Whitley v. Maryland State Board of Elections, No. 133, Sept. Term 2011. RecordFax No. 12-1023-21, 51 pages.

Election Law, Appropriation exception: County zoning ordinance allowing video slot machines in certain areas of county was not an appropriation ordinance and, therefore, was subject to a referendum under the Anne Arundel County Charter. Citizens Against Slots at the Mall v. PPE Casino Resorts Maryland, LLC, No. 154 Sept. Term, 2009. RecordFax No. 12-1024-20, 26 pages.

Environmental Law, License to fill and dredge state wetlands: In denying plaintiff’s application for a license to fill and dredge on certain State wetlands, the Board of Public Works committed legal error by basing its decision on factors outside the scope of its authority and discretion. Maryland Board of Public Works v. Hovnanian Kent Island, LLC, No. 67, Sept. Term, 2011. RecordFax No. 12-0423-20, 49 pages.

Estates and Trusts, Enforceable claims: “Enforceable claims,” as used in ET §1-101(n), are claims that in fact reduce the assets in the estate or are allowed by the court. Assets in a spouse’s elective share are valued, when paid in kind by legatees, as of the date of distribution; and when paid in cash pursuant to ET §3-208(b), as of the date of the spouse’s election to take a statutory share. Green v. Nassif, No. 57, Sept. Term, 2011. RecordFax No. 12-0420-20, 46 pages

Estates and Trusts, Trustee release and indemnification: Where trustee requested that beneficiaries execute a release and indemnification agreement prior to distributing trust funds, circuit court correctly denied beneficiaries’ request for judgment declaring the release agreement unlawful because the agreement merely expanded upon an interest the trustee already possessed and was not in its terms so one-sided as to place impermissibly its own interests ahead of those of Petitioners. Hastings v. PNC Bank, NA, No. 109, Sept. Term 2011.RecordFax No. 12-0927-20, 49 pages.

Evidence, Hearsay exception for former testimony: The testimony of a witness at a pre-trial motion to suppress the witness’ extrajudicial identification of defendant was not admissible at defendant’s trial under the “former testimony” hearsay exception because defendant was not afforded at the suppression hearing an adequate opportunity to develop the witness’ testimony. Dulyx v. State, No. 54, Sept. Term, 2011. RecordFax No. 12-0321-21, 23 pages.

Evidence, Prior inconsistent statement: The trial did not err in admitting the audio taped statement of the witness as a prior inconsistent statement, under Rule 5-802.1(a). McClain v. State, No. 17, Sept. Term, 2010. RecordFax No. 12-0321-20, 41 pages.

Evidence, Prior consistent statement: Although a witness’ prior consistent statements may be admissible as substantive evidence, provided certain prerequisites are satisfied, if the prior consistent statements were made at a time prior to the existence of any fact which would motivate bias, interest or corruption on the part of the witness, then the prior consistent statements are admissible to rebut the alleged bias or interest, but, conversely, statements made when the declarant had an alleged motive to falsify are not relevant to rebut a charge of fabrication. Thomas v. State, No. 127, Sept. Term 2011. RecordFax No. 12-1022-20, 29 pages.

Evidence, Cumulative testimony: Improperly admitted hearsay statement from a detective was cumulative, and did not entitle defendant to a new trial, as two other witnesses testified to similar admissions by the defendant. Yates v. State, No. 8, Sept. Term 2012. RecordFax No. 12-1023-20, 21 pages.

Family

Family Law, Attorneys’ fees for pro bono service: The gratuitous cost of pro bono legal services, provided to a party in a custody modification proceeding, may not be considered in awarding attorneys’ fees to the other party unless the circuit court first determines that both sides had substantial justification for bringing or defending the action. Davis v. Petito, No. 30, Sept. Term, 2011. RecordFax No. 12-0227-20.

Family Law, Uniform Child Custody Jurisdiction and Enforcement Act: Guardianship decree issued in Japan did not sever father’s custodial rights to his daughter, and therefore did not implicate fundamental principles of human rights; as such, “vacuum exception” to application of Uniform Child Custody Jurisdiction and Enforcement Act, allowing for a Maryland circuit court to exercise jurisdiction, did not apply. Toland v. Futagi, No. 83, Sept. Term, 2011. RecordFax No. 12-0328-20, 28 pages.

Family Law, Collateral estoppel effect of CINA determination: Child in Need of Assistance determinations preclude the re-litigation of issues presented in contested case hearings where the elements of collateral estoppel are satisfied. Cosby v. Department of Human Resources, Allegany County Department of Social Services, No. 74, Sept. Term, 2011. RecordFax No. 12-0425-22, 26 pages.

Family Law, Dissolution of same-sex marriage: Under the common law doctrine of comity, the circuit court must grant a divorce to two people of the same sex who were validly married in another jurisdiction and who otherwise meet the criteria for divorce under Maryland law. Port v. Cowan, No. 69, Sept. Term, 2011. RecordFax No. 12-0518-20, 23 pages.

Family Law, Court rules: In wife’s appeal of child custody case on basis that her due process rights were violated by unwritten circuit court policy limiting counsel’s access to custody investigation report, remand to circuit court for supplementation of record was appropriate because record did not illuminate sufficiently full contours of circuit court policy, its origin, balancing of the interests sought to be protected by it against competing interests, whether less restrictive alternatives were considered, and any special or compelling reasons for policy. Sumpter v. Sumpter, No. 120, Sept. Term, 2011. RecordFax No. 12-0821-24, 29 pages.

Family Law, Uniform Child Custody Jurisdiction and Enforcement Act: A Maryland court had authority under Uniform Child Custody Enforcement and Jurisdiction Act to relinquish jurisdiction to a Virginia court in the county in which the child’s mother lived; it was not abuse of discretion to relinquish jurisdiction on the basis of inconvenient forum, given that the mother intended to call multiple witnesses, including professional witnesses, who lived in Virginia and would incur unnecessary expenses if required to travel to Maryland. Miller v. Mathias, No. 146, Sept. Term, 2008. RecordFax No. 12-0827-20, 38 pages.

I – L ¬

Insurance Law, Discrimination: Insurance carrier’s decision to cease writing new homeowners policies in certain geographic areas was in compliance with IN §§27–501(a) and 19–701(a), in that the geographic designations were reasonably related to the carrier’s economic and business purposes and were not arbitrary or unreasonable. People’s Insurance Counsel Division v. Allstate Insurance Co., No. 60, Sept. Term, 2011. RecordFax No. 12-0125-22.

Insurance Law, First named insured: The waiver of enhanced uninsured motorist coverage signed by plaintiff was effective since plaintiff was the “first named insured” with respect to her car insurance policy at the time she executed the waiver, even though her husband’s name was listed first in the policy. Swartzbaugh v. Encompass Insurance Company of America, No. 100 Sept. Term, 2011. RecordFax No. 12-0425-23, 18 pages.

Labor and Employment, Respondeat superior: Where fatigued employee fell asleep at the wheel on his way home from work, causing an accident, his employer was not liable to a third party. Barclay v. Briscoe, No. 41, Sept. Term, 2011. RecordFax No. 12-0627-20, 33 pages.

Labor and Employment, Law Enforcement Officers’ Bill of Rights: Grievance filed by police union pursuant to its collective bargaining agreement with county did not implicate Law Enforcement Officers’ Bill of Rights, because it involved union’s assertion of its own right to train shop stewards and contained no allegation that the county’s practice increased, impinged upon, or otherwise affected the substantive rights of an officer; therefore, LEOBR did not preempt collective bargaining and subsequent arbitration of underlying grievance. Montgomery County v. Fraternal Order of Police, No. 105, Sept. Term, 2011. RecordFax No. 12-0820-21, 24 pages.

Labor and Employment, Public safety employees: Where a County Charter amendment binds the County Council to arbitration of collective bargaining impasses with public safety workers, portions of an ordinance that blocked funding for the resulting arbitration awards violate the Charter and are therefore invalid. Atkinson v. Anne Arundel County, No. 111, Sept. Term 2011. RecordFax No. 12-0928-20, 44 pages.

Labor and Employment, Arbitration clause: The arbitrator correctly found that plaintiffs’ claim was arbitrable because, although plaintiff’s collective bargaining agreement had expired, the rights that were the subject of the dispute had vested during the life of the agreement. Baltimore County F.O.P. Lodge No. 4 v. Baltimore County, No. 3, Sept. Term, 2012. RecordFax No. 12-1119-20, 37 pages.

Professional Responsibility

Professional Responsibility, Unauthorized practice of law: Reprimand was the appropriate sanction for New York-licensed attorney found to have engaged in the unauthorized practice of law in Maryland by failing to limit his practice to federal immigration matters. Attorney Grievance Commission of Maryland v. Ambe, Misc. Docket No. 6, Sept. Term, 2011. RecordFax No. 12-0222-22.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction for an attorney who knowingly made false statements to Bar Counsel and engaged in conduct involving dishonesty, fraud and deceit. Attorney Grievance Commission v. Payer, Misc. Docket AG No. 8, Sept. Term, 2011. RecordFax No. 12-0222-23.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction when, in response to an inquiry from an agency regulating the practice of law in another jurisdiction, attorney deliberately submitted altered and misleading documents concerning the her compliance with a rule governing the practice of law in that jurisdiction. Attorney Grievance Commission v. Smith, Misc. Docket AG No. 10, Sept. Term, 2011. RecordFax No. 12-0319-20, 9 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction for an attorney who failed to keep his client reasonably informed of her case, retained more than twice his agreed-upon fee, failed to deposit unearned fees in his trust account, failed to remit a settlement payment to the client and did not respond to Attorney Grievance Commission’s repeated requests for information. Attorney Grievance Commission v. Nelson, No. 9, Sept. Term, 2011. RecordFax No. 12-0327-20, 24 pages.

Professional Responsibility, Disbarment: Under the totality of the circumstances, given the gravity and pervasiveness of attorney’s misconduct, disbarment was the appropriate sanction. Attorney Grievance Commission v. Brown, Misc. Docket AG No. 1, Sept. Term, 2011. RecordFax No. 12-0423-24, 30 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction for multiple violations of the Maryland Lawyers’ Rules of Professional Conduct, including the misuse of trust funds and misconduct involving fraud, deceit and dishonesty. Attorney Grievance Commission v. Camus, Misc. Docket AG No. 15, Sept. Term, 2011. RecordFax No. 12-0423-21, 22 pages.

Professional Responsibility, Indefinite suspension: Where attorney negotiated a settlement and suggested to the court that the settlement had his client’s approval even though attorney had not, in fact, consulted with his client on the matter, indefinite suspension was the appropriate sanction. Attorney Grievance Commission v. McGlade, Misc. Docket AG No. 6, Sept. Term 2010. RecordFax No. 12-0424-23, 27 pages.

Professional Responsibility, Reinstatement: Attorney was reinstated to the Bar of Maryland because the criminal convictions pursuant to which he was disbarred were reversed on appeal, the underlying charges dismissed on remand and not further pursued, and attorney has, since his disbarment, demonstrated that he has been rehabilitated and is legally competent. In the Matter of Ira C. Cooke for Reinstatement to the Bar of Maryland, No. 82 Sept. Term, 2007. RecordFax No. 12-0425-20, 50 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction for an attorney who violated several Maryland Rules of Professional Conduct, including the misappropriation of client funds, and who filed no exceptions to the findings of fact. Attorney Grievance Commission v. Goodman, Misc. Docket AG No. 46, Sept. Term, 2008. RecordFax No. 12-0501-20, 19 pages.

Professional Responsibility, Suspension for 60 days: Given attorney’s disciplinary history, 60-day suspension from practice of law, rather than mere reprimand, was appropriate sanction for attorney who failed to appear on behalf of client in two proceedings and who drafted release agreement, signed by client, without advising client to obtain independent legal advice regarding agreement. Attorney Grievance Commission v. Butler, Misc. Docket AG No. 14, Sept. Term, 2011. RecordFax No. 12-0521-20, 20 pages.

Professional Responsibility, Indefinite suspension: Although attorney’s conduct violated Maryland Rules of Professional Conduct regarding competence, scope of representation and allocation of authority between client and lawyer, communication, safekeeping property, unauthorized practice of law, bar admission and disciplinary matters, and misconduct warranted severe sanction, because attorney did not act with selfish motive or intent to deceive, indefinite suspension rather than disbarment was appropriate sanction. Attorney Grievance Commission of Maryland v. Tanko, Misc. Docket AG No. 70, Sept. Term, 2010. RecordFax No. 12-0523-21, 44 pages.

Professional Responsibility, Indefinite suspension: Indefinite suspension was the appropriate sanction for attorney’s failure to pay the recordation tax associated with a real estate settlement, failure to keep property of clients and third persons separate from his own property, failure to answer Bar Counsel’s inquiries, and failure to maintain sufficient funds in his trust account. Attorney Grievance Commission of Maryland v. Moeller, Misc. Docket AG No. 49, Sept. Term, 2007. RecordFax No. 12-0622-22, 13 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney violated several Rules of Professional Conduct and had been suspended indefinitely for similar misconduct in other cases. Attorney Grievance Commission v. Shakir, Misc. Docket AG No. 8, Sept. Term, 2009. RecordFax No. 12-0625-24, 12 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney abandoned his representation of his client and failed to cooperate with Bar Counsel. Attorney Grievance Commission v. Park, Misc. Docket AG No. 15, Sept. Term, 2009. RecordFax No. 12-0625-23, 18 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney violated multiple Rules of Professional Conduct in connection with nine separate clients and matters. Attorney Grievance Commission v. Garrett, Misc. Docket AG No. 13, Sept. Term, 2010. RecordFax No. 12-0625-22, 22 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction for an attorney who engaged in a pattern of misconduct that included the abandonment of paying and pro bono clients and denying to bar counsel that she represented one of the pro bono clients, as that conduct was dishonest and prejudicial to the administration of justice. Attorney Grievance Commission v. Dominguez, Misc. Docket AG No. 47, Sept. Term, 2011. RecordFax No. 12-0703-20, 21 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney had previously been disbarred and, after reinstatement, engaged in intentionally dishonest conduct. Attorney Grievance Commission v. London, Misc. Docket AG No. 12, Sept. Term, 2011. RecordFax No. 12-0710-20, 28 pages.

Professional Responsibility, Denial of application for admission to bar: Petitioner’s application for admission to the Maryland Bar was denied because, by omitting key information about his criminal history, among other things, his application was incomplete and misleading, and he thus failed to meet his burden of proving that he possessed the requisite moral character and fitness to be a member of the Maryland Bar. Matter of the Application of Cramer, Misc. No. 19, Sept. Term, 2006. RecordFax No. 12-0821-26, 19 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney violated several of the Maryland Lawyers’ Rules of Professional Conduct, including charging an unreasonable fee, while an attorney disciplinary proceeding was pending against him at the time he committed the acts in question. Attorney Grievance Commission v. Lawson. Misc. Docket AG No. 4, Sept. Term, 2008. RecordFax No. 12-0821-27, 20 pages.

Professional Responsibility, Disbarment: Disbarment was the appropriate sanction where attorney was unresponsive to his clients, changed offices without telling them, failed to keep them informed about their matters, and instructed them to lie to the court about the nature of his representation. Attorney Grievance Commission v. Nnaka, Misc. Docket AG No. 52, Sept. Term, 2008. RecordFax No. 12-0821-28, 16 pages.

Professional Responsibility, Disbarment: Disbarment was appropriate sanction for attorney who engaged in conduct involving fraud, dishonesty and deceit, failed to communicate with clients about status of cases, misappropriated clients’ funds, and created false records to conceal his behavior in response to disciplinary investigation. Attorney Grievance Commission of Maryland v. Ross, Misc. Docket AG No. 19, Sept. Term, 2011. RecordFax No. 12-0821-25, 40 pages.

Professional Responsibility, Disbarment: Disbarment was appropriate sanction for attorney who engaged in conduct violating numerous Rules of Professional Conduct, including charging an unreasonable fee by requiring two clients to pay a “non-refundable engagement fee,” which did not require attorney to perform any legal services or other duties in return. Attorney Grievance Commission v. Stinson, Misc. Docket AG Nos. 30 and 70, Sept. Term, 2009. RecordFax No. 12-0821-29, 55 pages.

Professional Responsibility, Disbarment: Disbarment was appropriate sanction for attorney who misappropriated client funds, despite fact that attorney was acting as caretaker for her parents who were ill with cancer, because attorney’s family obligations did not constitute sufficient mitigation of attorney’s dishonesty and deceit. Attorney Grievance Commission v. Zimmerman, Misc. Docket AG No. 32, Sept. Term, 2011. RecordFax No. 12-0821-20, 29 pages.

Professional Responsibility, Reciprocal discipline: An indefinite suspension, with the right to reapply after attorney is re-admitted unconditionally to the Bar of the District of Columbia, was the appropriate sanction where attorney’s financial misappropriation actions were negligent rather than intentional. Attorney Grievance Commission v. Tun, Misc. Docket AG No. 71, Sept. Term, 2011. RecordFax No. 12-0822-22, 16 pages.

Professional Responsibility, Suspension: A 60-day suspension was the appropriate sanction where attorney violated several Rules of Professional Conduct, including competence and diligence, and his violations were repeat offenses following an earlier 30-day suspension. Attorney Grievance Commission v. Walker-Turner, Misc. Docket AG No. 16, Sept. Term, 2011. RecordFax No. 12-0822-23, 23 pages.

Professional Responsibility, Dismissal of petition: Although attorney may have engaged in gamesmanship and was possibly negligent in the handling of his deceased father’s hotly contended estate, the Attorney Grievance Commission’s petition for sanction was dismissed because there was no evidence of intent to defraud. Attorney Grievance Commission v. Zeiger, Misc. Docket AG No. 28, Sept. Term 2007. RecordFax No. 12-0924-21, 16 pages.

Professional Responsibility, Conditional Diversion Agreement: Attorney’s substantive and procedural due process rights were not violated by the denial of her untimely request for a legislative continuance to respond to Bar Counsel’s request to revoke a conditional diversion agreement she had entered with the Attorney Grievance Commission two years earlier. Attorney Grievance Commission v. Alston, No. 13, Sept. Term, 2011. RecordFax No. 12-0925-20, 33 pages.

Professional Responsibility, Reciprocal discipline: Where attorney was convicted for failure to file Maryland state income taxes and was suspended in four jurisdictions, an indefinite suspension was the appropriate reciprocal sanction in Maryland. Attorney Grievance Commission v. Katz, Misc. Docket AG No. 86, Sept. Term, 2011. RecordFax No. 12-1119-21, 26 pages.

R – Te

Real Property, Easement over unimproved land: Where the public’s use of the beach on defendants’ property was presumptively permissive and the plaintiffs failed to produce sufficient evidence to demonstrate that such use was adverse, plaintiffs failed to establish a public prescriptive easement. Clickner v. Magothy River Association, Inc., No. 13, Sept. Term, 2011. RecordFax No. 12-0120-20.

Real Property, Foreclosure purchaser’s liability: Absent special circumstances, a defaulting purchaser at a foreclosure sale of property is liable, under Rule 14–305(g), for only the one resale resulting from his or her default. Burson v. Simard, No. 35, Sept. Term, 2011. RecordFax No. 12-0123-22.

Real Property, Foreclosure fees: It was an abuse of discretion for trustees to impose a fee which required the purchaser at a foreclosure sale to pay additional legal fees incurred by the trustees since it was not in conformance with state or local rules and was against public policy. Maddox v. Cohn, No. 55, Sept. Term 2011. RecordFax No. 12-0124-22, 25 pages.

Real Property, Judicial immunity: Defendants, acting as court-appointed trustees, were not public officials and therefore were not entitled to absolute judicial immunity or qualified public official immunity for their actions in connection with the judicial sale of plaintiff’s condominium. D’Aoust v. Diamond, No. 5, Sept. Term, 2011. RecordFax No. 12-0131-20.

Real property, Condominium resale certificate: The trial court erred in granting summary judgment to plaintiffs because there existed a dispute of material facts as to whether the disclosures made by defendants in a resale certificate during the sale of condominiums to plaintiffs constituted unfair or deceptive trade practices under the Consumer Protection Act, which could have applied. MRA Property Management v. Armstrong, No. 93, Sept. Term 2007. RecordFax No. 12-0430- 20, 36 pages.

Real Property, Foreclosure: In case involving the foreclosure of deed of trust for plaintiffs’ home, circuit court properly denied plaintiffs’ exceptions to foreclosure sale, because plaintiffs’ post-sale exceptions did not relate to procedural irregularities at sale or to statement of indebtedness, and plaintiffs did not sufficiently make any specific allegation of fraud. Thomas v. Nadel, No. 106, Sept. Term, 2011. RecordFax No. 12-0625-21, 16 pages.

Real Property, Foreclosure: Although a notice of intent to foreclose should ordinarily identify each “secured party,” failure to do so is not automatically a basis for dismissing the action where, as here, the notice identifies a secured party and contains other required information to allow the borrower to pursue loan modification, the other secured party is elsewhere disclosed well in advance of the sale, and the borrower failed to move to dismiss the action on the grounds of defective notice for more than a year after such disclosure. Shepherd v. Burson, No. 110, Sept. Term, 2011. RecordFax No. 12-0820-23, 23 pages.

Real Property, Protecting Tenants at Foreclosure Act: Under the Protecting Tenants at Foreclosure Act, when a purchaser at a foreclosure sale sends a bona fide tenant contradictory and misleading notices concerning the right to remain in a residence, the purchaser has not met its obligation to provide accurate advance notice. Curtis v. US Bank National Association, No. 96, Sept. Term, 2011. RecordFax No. 12-0820-22, 18 pages.

Real Property, Easements: The specificity requirement set forth in RP §4–101(a)(1) was satisfied, where the servient estate was adequately described in the deed that established the easement. USA Cartage Leasing, LLC v. Baer, No. 129, Sept. Term, 2011. RecordFax No. 12-1024-21, 18 pages.

Real Property, Self-help: Where purchasers of foreclosed property seized possession of home while its occupant was away, and disposed of occupant’s personal belongings, purchasers acted reasonably in exercising their right to peaceable self-help because occupant knew that the home had been sold at foreclosure and had been notified in advance that purchasers would take possession, and because, by waiting until occupant was away, purchasers reasonably sought to avoid a potentially violent confrontation. Nickens v. Mount Vernon Realty Group, LLC, et al., No. 7, Sept. Term 2012. RecordFax No. 12-1019-20, 30 pages.

Real Property, Damages: Evidence of post-breach market conditions not contemplated by the parties in the contract is inadmissible to prove lost profits and, therefore, the trial court properly excluded such evidence proffered by defendants. CR-RSC Tower, LLC v. RSC Tower I, LLC, No. 115, Sept. Term, 2011.RecordFax No. 12-1127-20, 95 pages.

Tax Law, Statute of limitations on partnership refund claim: The one-year statute of limitations for plaintiff to file her Maryland tax refund claim after a federal audit of a partnership of which she was a limited partner began to run on the date that the IRS issued its report identifying the adjustments to her personal tax liability. King v. Comptroller of the Treasury, No. 32, Sept. Term, 2011. RecordFax No. 12-0224-20.

Telecommunications, PSC’s duty to ensure quality: The Public Service Commission acted within its discretion in approving an incentive-based Alternative Form of Regulation as part of a settlement of six complaints about Verizon’s telecommunications service; and the PUC §4-301’s use of the term, “ensuring,” did not require that the PSC be completely certain that incentive strategy would result in compliance with standards. Communications Workers of America, AFL-CIO v. Public Service Commission of Maryland, Verizon Maryland, Inc., No. 39, Sept. Term, 2011. RecordFax No.12-0125-20.

Torts 

Torts, Defamation and false light: Defendants were entitled to summary judgment on plaintiff’s claims of defamation and false light, where the statements published by defendants were protected by the fair reporting and fair comment privileges. Piscatelli v. Smith, No. 18, Sept. Term, 2011. RecordFax No. 12-0123-21.

Torts, Wrongful death: The circuit court abused its discretion in dismissing the plaintiffs’ wrongful death claims as a sanction for their omission of a potential beneficiary as a use plaintiff. University of Maryland Medical Systems Corporation v. Muti, No. 42, Sept. Term, 2011. RecordFax No. 12-0221-21.

Torts, Public Duty Doctrine: The public duty doctrine did not foreclose liability in plaintiff’s claim of negligent training and supervision, which did not allege harm resulting from an external injurious force but rather from State’s negligent training of deputy sheriffs in allegedly unconstitutional arrest procedures, because public duty doctrine does not apply if law enforcement is not engaged in protecting the public from an injurious force but rather is itself the alleged injurious force. Jones v. State of Maryland, No. 37, Sept. Term, 2011. RecordFax No. 12-0222-24.

Torts, Public Duty Doctrine: The public duty doctrine barred a negligence claim against the State for damages arising when plaintiff’s 5-year-old daughter suffered a serious allergic reaction after consuming peanut butter given to her under her school’s free lunch program. Pace v. State, No. 132, Sept. Term, 2010. RecordFax No. 12-0222-21.

Torts, Dog attacks: Upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull, and that the owner knows that the dog is a pit bull, that person is strictly liable for the damages caused to one who is attacked by the dog on or from the owner’s. Tracey v. Solesky, No. 53, Sept. Term, 2011. RecordFax No. 12-0426-20, 42 pages. (On Motion for Reconsideration, limited to pure pit bulls, RecordFax No. 12-0821-30, 9 pages.)

Torts, Assumption of risk: In a suit for injuries sustained while walking in an area of a store that was open during renovations, the defendant retailer’s asserted defenses of contributory negligence and assumption of risk were not substantially the same, as voluntarily encountering such a risk would not necessarily be negligent; therefore, the jury should have been allowed to consider each defense separately. S & S Oil, Inc. v. Jackson, No. 122, Sept. Term, 2011. RecordFax No. 12-0925-22, 31 pages.

Torts, Sovereign immunity: Under the Washington Metropolitan Area Transit Authority Compact (WMATA), in which WMATA has waived immunity for proprietary functions but retained it for governmental functions, WMATA was immune from suit for plaintiff’s injuries resulting from WMATA’s allegedly negligent failure to clean wet water on floor of subway station because this function was governmental/discretionary rather than proprietary/ministerial in nature. Tinsley v. Washington Metropolitan Area Transit Authority; Hodge v. Washington Metropolitan Area Transit Authority, Nos. 1, 25, Sept. Term, 2012. RecordFax No. 12-1026-20, 35 pages.

Torts, Contribution: The defendant in a medical malpractice case could pursue, in a separate action, contribution against a defendant that had been released from the original action, but had not admitted joint tortfeasor status. Mercy Medical Center v. Julian, Nos. 118, 119, Sept. Term, 2011. RecordFax No. 12-1127-21, 48 pages.

W – Z

Workers’ Compensation, Jurisdiction: Under LE §9–736(b), the Workers’ Compensation Commission retains jurisdiction to hear new issues while other issues in the same claim are pending on appeal, so long as no evidence was taken or decision made on the new issues in the hearing from which the appeal was taken. Potomac Abatement, Inc. v. Sanchez, No. 56, Sept. Term 2011. RecordFax No. 12-0221-22.

Workers’ Compensation, Tort immunity and indemnity: CJ §5-518 contains an indemnification provision, rather than an immunity provision, that allows an injured party to sue a county board of education employee who caused the injury, joining the board as a defendant; any damages awarded may be executed and levied against the county board only and not from the negligent employee. Board of Education of Prince George’s County v. Marks-Sloan, No. 117, Sept. Term, 2011. RecordFax No. 12-0821-21, 48 pages.

Workers’ Compensation, Jurisdiction: Forum selection clauses in an employment contract are ineffective to divest the Maryland Workers’ Compensation Commission of the ability to exercise jurisdiction. Pro-Football, Inc. v. Tupa, No. 29, Sept. Term, 2011. RecordFax No. 12-0822-21, 17 pages.

Workers’ Compensation, Covered employee: Washington Redskins football player was “covered employee” for purposes of Maryland Labor and Employment Article because he was injured in Buffalo, Philadelphia, and Virginia while working for professional football league outside of Maryland on an “incidental or occasional basis,” and Maryland Workers’ Compensation Commission therefore had jurisdiction to hear his workers’ compensation claim. Pro-Football, Inc. v. McCants, No. 116, Sept. Term, 2011. RecordFax No. 12-0823-20, 21 pages.

Zoning, Appealability: While the Montgomery County Council decision to not designate a building as a historic site was a final appealable agency decision, the Planning Commission’s recommendation to the County Council was not. Montgomery Preservation, Inc. v. Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission, No. 36, Sept. Term 2011. RecordFax No. 12-0124-24.

Zoning, Conflict with Master Plan: Approval of plaintiff’s amended development plan was properly denied because the plan conflicted with the Baltimore County Master Plan. HNS Development, LLC v. People’s Counsel for Baltimore County, No. 85, Sept. Term, 2011. RecordFax No. 12-0423-23, 29 pages.

Zoning, Standing to enforce MOA: Because developer was neither a party to, nor an intended beneficiary of the Memorandum of Agreement, which set forth terms pertaining to the renewal plan for the west side of Baltimore City, developer did not have standing to bring an action seeking a declaration interpreting the terms of the Agreement. 120 West Fayette Street v. Mayor and City Council of Baltimore, No. 81 Sept. Term, 2011. RecordFax No. 12-0427-21, 54 pages.

Court of Special Appeals

A

Administrative Law, Line-of-Duty Disability Benefits: Preexisting degenerative disc disease did not disqualify police officer from line-of-duty disability due to an injury sustained while working in the line of duty. Employees’ Retirement System of City of Baltimore v. Dorsey, No. 2818, Sept. Term, 2010. RecordFax No. 12-0210-01, 19 pages.

Administrative Law, Record on appeal: For purposes of Maryland Rule of Procedure 7-206, which applies to actions for judicial review of agency decisions, the “record” of a hearing need not include transcript of hearings in which no witness testimony was offered. McReady v. University System of Maryland, Nos. 1668, 1669, 1670, Sept. Term, 2010. RecordFax No. 12-0209-02, 24 pages.

Administrative Law, Child neglect: Although there was no gap in custody between the time a disabled teenager’s caregivers refused to let him return home from school and the time the Department of Social Services placed him in foster care, the administrative law judge was legally incorrect in ruling that the child was never “at risk” and therefore finding that child neglect was “ruled out.” Doe v. Allegany Dept. of Social Services, No. 2354, Sept. Term, 2010. RecordFax No. 12-0426-03, 19 pages.

Administrative Law, Social Security survivor benefits: City Department of Social Services, which was appointed representative payee of child’s social security survivor benefits, did not abuse discretion by using paid benefits to cover cost of child’s foster care, because use of benefits by a representative payee to cover a beneficiary’s current maintenance costs is deemed to be a proper expenditure made in the interest of the beneficiary, and department was required only to exercise discretion to apply benefits among various current maintenance needs of the child and had no obligation to conserve or invest the benefits. In re Ryan W., No. 1503, Sept. Term, 2011. RecordFax No. 12-1121-01, 69 pages.

Administrative Law, Liquor license: The circuit court erred in concluding that the county liquor licensing board had considered only one statutory factor in denying a license application — the potential effect of a new license on existing licensees — where the record as a whole showed the board considered all the required factors, and provided substantial evidence to support the denial. Dakrish, LLC T/A Vineyards Elite v. Raich, No. 1327, Sept. Term, 2012. RecordFax No. 12-1130-00, 29 pages.

Alternative Dispute Resolution, Arbitration clause: The circuit court erred in granting defendants’ request for arbitration because the defendants were not signatories to the contract that contained the arbitration clause; nor was there a “significant relationship” between the plaintiff’s asserted claims and the contract containing the broadly-worded arbitration clause. Griggs v. Evans, No. 2596, Sept. Term, 2009. RecordFax No. 12-0502-01, 32 pages.

Ci – Co

Civil Procedure, Motion to transfer: The circuit court abused its discretion in granting defendant’s motion to transfer on the grounds of improper venue and/or forum non conveniens. DiNapoli v. Kent Island, LLC, No. 2506, Sept. Term, 2010. RecordFax No. 12-0301-03, 23 pages.

Civil Procedure, Expert witness opinion: Trial court abused its discretion in granting defendant a new trial based on its conclusion that opinion of plaintiff’s expert witness, a vocational rehabilitative counselor, was not supported by a sufficient factual basis, because counselor’s many years of experience, knowledge of the labor market, and skill in performing employment assessments qualified her at least to testify before the jury so that jury could weigh the evidence and reach a verdict, and in granting defendant a new trial, court interjected itself and confused the weight of the evidence with its admissibility. Yiallouros v. Tolson, No. 2773, Sept. Term, 2011. RecordFax No. 12-0302-04, 21 pages.

Civil Procedure, In banc panel: CJ §1-403(c) was not violated where the case was heard in banc and a majority of the nine judges qualified to act decided each of the issues on appeal. Exxon Mobil Corporation v. Ford, No. 1804, Sept. Term, 2009. RecordFax No. 12-0306-12, 8 pages.

Civil Procedure, Statute of limitations: A civil action, filed within the three year statute of limitations but voluntarily dismissed by the plaintiff more than three years from the date of the injury, cannot be re-filed and escape the bar of the statute of limitations. Bi v. Gibson, No. 1663, Sept. Term, 2010. RecordFax No. 12-0604-00, 8 pages.

Civil Procedure, Return of verdicts: The circuit court erred in awarding damages, since the verdict as to damages was not returned in open court, the jury was not hearkened to the verdict on damages and defendant had no opportunity to poll the jury as to unanimity. Hastings v. Turner, No. 2448, Sept. Term, 2010. RecordFax No. 12-0605-00, 17 pages.

Civil Procedure, Issue preclusion: Plaintiff’s Maryland claim was barred by issue preclusion, since the issue of liability was conclusively decided by a court in a prior proceeding in New York and a subsequent settlement made that factual determination beyond modification by a court. Bryan v. State Farm Mutual Automobile Insurance Company, No. 0353, Sept. Term, 2011. RecordFax No. 12-0607-00, 22 pages.

Civil Procedure, In banc review: An in banc panel of the circuit court lacked jurisdiction to consider the merits of a husband’s request to dissolve a consent judgment that barred him from contacting his wife, and to vacate the contempt order that was issued when he breached that consent judgment; therefore, there was no final judgment that could be reviewed on appeal. Remson v. Krausen, No. 2187, Sept. Term, 2010. RecordFax No. 12-0628-05, 20 pages.

Civil Procedure, Service of process: Substituted service on SDAT was sufficient against a corporation that had forfeited its charter, had no resident agent, and whose only corporate director was deceased. Thomas v. Rowhouses, Inc, No. 2102, Sept. Term, 2010. RecordFax No. 12-0628-04, 19 pages.

Civil Procedure, Motion to withdraw as counsel: 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. In The Matter of the Motion of Frederick R. Franke, Jr. To Withdraw Representation, No. 2577, Sept. Term, 2009. RecordFax No. 12-0829-03, 21 pages.

Civil Procedure, Final judgment rule: Plaintiffs who obtained final judgments against various defendants in asbestos litigation and were paid in full were not entitled to recover against trust that was in bankruptcy at that time, because judgments were based on actual litigation of measure of loss, and final judgment rule therefore barred them from bringing enforceable claim against any other obligor who was responsible for the same loss. Brannan v. Wallace & Gale Asbestos Settlement Trust, No. 2287, Sept. Term, 2008. RecordFax No. 12-1126-00, 16 pages.

Civil Procedure, Jury trial: A counterclaim should not be considered in determining whether the amount in controversy entitles a party to trial by jury and because plaintiff alleged less than the required amount in controversy in damages in its complaint, neither party could properly make a demand for a jury trial. McKlveen v. Condominium, 1926, No. 1926, Sept. Term, 2011. RecordFax No. 12-1128-07, 16 pages.

Commercial Law, Antitrust: Defendant was entitled to judgment on plaintiff’s antitrust claim because plaintiff failed to prove that defendant’s work rules unreasonably restrained competition. Krause Marine Towing Corp. v. Association of Maryland Pilots, No. 561, Sept. Term, 2010. RecordFax No. 12-0531-02, 37 pages.

Constitutional Law, Search and seizure: Defendant’s Fourth Amendment rights were not violated where police had reasonable articulable suspicion to initiate a traffic stop of the vehicle in which defendant was a passenger and probable cause to arrest him. Ray v. State, No. 1444, Sept. Term, 2011. RecordFax No. 12-0702-01, 50 pages.

Constitutional law, Retroactive effect of Supreme Court rulings: The holdings of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), and Denisyuk v. State, 422 Md. 462 (2011), did not apply retroactively to defendant, where defendant did not raise a Sixth Amendment claim in his petition for a writ of error coram nobis and only raised the issue of the voluntariness of his plea in light of the fact that he was not advised about deportation consequences of his conviction. Miller v. State, No. 1907, Sept. Term, 2009. RecordFax No. 12-0926-05, 75 pages.

Contracts, Third-party beneficiary: In a lawsuit stemming from water damage to plaintiffs’ condominium units, the circuit court properly granted the defendant condominium complex’s motion for judgment on basis of plaintiffs’ lack of standing as third-party beneficiaries of a repair contract between the complex and the company it hired to make repairs. Yaffe v. Scarlett Place Residential Condominium, No. 2775, Sept. Term, 2010. RecordFax No. 12-0605-03, 31 pages.

Corporations and Partnerships, Piercing corporate veil: Absent a finding of fraud, the circuit court erred in finding defendant personally liable for the debts of the limited liability company solely owned by him. Serio v. Baystate Properties, LLC, No. 1441, Sept. Term, 2009. RecordFax No. 12-0308-00, 26 pages.

Corporations and Partnerships, Usurpation of corporate opportunity: Defendants’ failure to disclose to plaintiffs other real estate development opportunities was not a breach of their fiduciary obligation not to usurp corporate opportunities, since there was only superficial similarity between the projects. Ebenezer United Methodist Church v. Riverwalk Development Phase II, LLC, No. 2852, Sept. Term, 2010. RecordFax No. 12-0606-00, 10 pages.

Criminal

Criminal Law, Felony murder: Where the evidence was insufficient to convict defendant of distributing marijuana, it was also insufficient to convict him of felony murder based on that underlying offense. Kohler v. State, No. 2150, Sept. Term, 2009. RecordFax No. 12-0202-02, 23 pages.

Criminal Law, Theft: Where defendant was convicted under Criminal Law §7–104(d) for passing a counterfeit check, the judgment of the circuit court was reversed because the State failed to prove that defendant knew that the check was counterfeit at the time she presented it for cashing. Weems v. State, No. 2782, Sept. Term, 2009. RecordFax No. 12-0202-03, 16 pages.

Criminal Law, Inconsistent verdicts: Defendant’s conviction for first-degree assault could have been based on a theory of aggravated guilt that was not legally inconsistent with the acquittal of defendant on related handgun charges. Dickerson v. State, No. 2977, Sept. Term, 2010. RecordFax No. 12-0330-04, 10 pages.

Criminal Law, Resisting arrest and escape: Defendant’s mere flight from police was insufficient to support hid conviction for resisting arrest, but the evidence did support defendant’s conviction for second-degree escape since he was in custody. Rich v. State, No. 2339, Sept. Term, 2009. RecordFax No. 12-0531-00, 39 pages.

Criminal Law, Sexual solicitation: Where defendant did not “command, authorize, urge, entice, request, or advise” his 15-year-old victim before assaulting her, the evidence was insufficient to support his conviction for sexual solicitation of a minor; however, his challenge to a related conviction for a third-degree sexual offense was not preserved for appeal. Poole v. State, No. 2126, Sept. Term, 2010. RecordFax No. 12-0926-03, 24 pages.

Criminal Procedure, Post-conviction relief: CP §7–103(b)(1), requiring post-conviction petitioners to show extraordinary cause for filing a petition more than ten years after a sentence other than death is imposed, did not apply to defendant’s amended petition filed after defendant filed a timely, original pro se petition. Poole v. State, No. 2098, Sept. Term, 2008. RecordFax No. 12-0201-00, 16 pages.

Criminal Procedure, Detention of visitors during execution of search warrant: The trial court did not err in denying defendant’s motion to suppress where, in executing a search warrant, the police acted reasonably in temporarily detaining defendant who was walking towards the premises being searched. Fields v. State, No. 0656, Sept. Term, 2009. RecordFax No. 12-0202-00, 21 pages.

Criminal Procedure, Competency: Following the dismissal of felony charges because defendants remained incompetent after five years, their re-indictments on the same charges, as well as their continued confinement under criminal commitments based on such re-indictments, violated CP §§3–106 and 3–107 and defendants’ due process and equal protection rights. Adams v. State, No. 352, Sept. Term, 2010. RecordFax No. 12-0208-00, 25 pages.

Criminal Procedure, Inculpatory custodial statements: Inculpatory statements given to police by suspect in custody after he had invoked his right to counsel should have been suppressed from evidence at trial because the State did not satisfy its burden to rebut the presumption that such statements were involuntary. Henry v. State, No. 952, Sept. Term, 2010. RecordFax No. 12-0425-02, 47 pages.

Criminal Procedure, Mistake of law: Police officer’s detention of defendant, which was based on officer’s mistaken belief that defendant’s act of parking so that his car took up two spots in a private lot constituted a traffic violation, was an unreasonable use of police authority; therefore, items seized during a subsequent search of defendant were inadmissible at defendant’s trial for drug crimes. Gilmore v. State, No. 2744, Sept. Term, 2009. RecordFax No. 12-0425-01, 18 pages.

Criminal Procedure, Voir dire questions: Court’s voir dire question to potential jurors, which used neutral language, advised potential jurors that shows like CSI are fiction and use exaggerated or non-existent scientific methods and that jurors must base decisions solely on evidence presented in court, and did not suggest that finding defendant guilty was a foregone conclusion, was a permissible inquiry and was not grounds for reversal. Morris v. State, No. 1705, Sept. Term, 2010. RecordFax No. 12-0425-03, 24 pages.

Criminal Procedure, Jury instructions: Based on two cases decided after defendant’s criminal case was tried, which applied settled constitutional guarantees to new and different factual situations, court’s instruction to jurors that “there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case” was improper because it relieved the State of its burden to prove defendant’s guilt beyond a reasonable doubt, invaded the province of the jury, and thus violated defendant’s constitutional right to a fair trial. Allen v. State, No. 606, Sept. Term, 2011. RecordFax No. 12-0427-02, 26 pages.

Criminal Procedure, Sentencing in absence of verdict: Although the verdict sheet indicated that defendant had been convicted of first- and second-degree assault, the court was legally required to vacate defendant’s sentences for those offenses where the announcement of the verdict did not mention either crime, the offenses were not included in the hearkening of the verdicts, and a docket entry confirmed that no verdict was rendered with respect to either charge. Colkley v. State, Fields v. State, Nos. 1770, Sept. Term, 2010. RecordFax No. 12-0426-00, 59 pages.

Criminal Procedure, Laches as a bar to post-conviction relief: The doctrine of laches is available to bar certain post-conviction relief in cases where sentence was imposed before October 1, 1995; however, the record was insufficient to determine whether defendant’s petition was barred by laches in this case. Lopez v. State, No. 2916, Sept. Term, 2008. RecordFax No. 12-0510-00, 37 pages.

Criminal Procedure, Waiver of Miranda rights: Where the State demonstrated that a Miranda warning was given to and understood by defendant, defendant knowingly, voluntarily, and intelligently waived his rights. Warren v. State, No. 1996, Sept. Term, 2009. RecordFax No. 12-0502-00, 50 pages.

Criminal Procedure, Voir dire: A claim that the defendant was denied his right to a fair and impartial jury was not preserved for appeal, where defense counsel not only failed to object to the lack of individual follow-up questions when a potential juror expressed her belief that the defendant should be required to prove his innocence, but affirmatively accepted the juror for impaneling on the jury. Tetso v. State, No. 2219, Sept. Term, 2010. RecordFax No. 12-0604-02, 84 pages.

Criminal Procedure, Interstate Agreement on Detainers: Where defendant, who was incarcerated in Virginia when charges were filed against him by the State of Maryland, properly requested speedy disposition of outstanding Maryland charges pursuant to the Interstate Agreement on Detainers, and Maryland withdrew the detainer against defendant but failed to bring him to trial within 180 days, dismissal with prejudice of the Maryland charges was required. Pitts v. State, No. 2791, Sept. Term, 2010. RecordFax No. 12-0605-02, 21 pages.

Criminal Procedure, Restitution: Trial court properly ordered defendant convicted of assault to pay restitution for damage to his victim’s teeth, even though the victim had not yet paid for any dental work, because the victim provided competent evidence of loss. McDaniel v. State, No. 258, Sept. Term, 2011 RecordFax No. 12-0607-01, 17 pages.

Criminal Procedure, Search and seizure: Although the police officers’ initial entry into defendant’s home was improper, drugs and paraphernalia ultimately were seized pursuant to a valid warrant, based on probable cause independent of any observations made in the protective sweep; therefore, the evidence was admissible under the independent source doctrine. Kamara v. State, No. 650, Sept. Term, 2011. RecordFax No. 12-0607-02, 11 pages.

Criminal Procedure, Plea agreements: The circuit court properly denied defendant’s motion to enforce the terms of an oral plea agreement, which was superseded by a later written agreement, and was not clearly erroneous in concluding that the defendant failed to fulfill his duties within a reasonable time. Y.Y. v. State, No. 3025, Sept. Term, 2009. RecordFax No. 12-0627-05, 42 pages.

Criminal Procedure, Warrantless search of hotel room: Defendant did not have a subjective expectation of privacy in an unoccupied and locked-out hotel room he had previously rented, and the hotel could consent to the warrantless entry and search. Bordley v. State, No. 0464, Sept. Term, 2010. RecordFax No. 12-0627-04, 16 pages.

Criminal Procedure, ‘CSI effect’ jury instructions: In defendant’s criminal trial for weapons possession, court erred in instructing the jury that there was no legal requirement that the state utilize any specific investigative technique or scientific test to prove its case. Samba v. State, No. 1895, Sept. Term, 2010. RecordFax No. 12-0628-00, 33 pages.

Criminal Procedure, Search and seizure: Public school employee had no reasonable expectation of privacy in his unlocked work desk, which was owned by school, was in centrally located area, and which employee could have taken steps to secure but did not. Walker v. State, No. 2733, Sept. Term, 2010. RecordFax No. 12-0628-02, 40 pages.

Criminal Procedure, Jury instructions: The circuit court erred by refusing to submit the charge of fourth-degree burglary to the jury, where the evidence was legally sufficient for defendant to be convicted of either third-degree burglary or the lesser included offense of fourth-degree burglary. Bass v. State, No. 2971, Sept. Term, 2010. RecordFax No. 12-0628-03, 14 pages.

Criminal Procedure, Parolee’s diminished expectation of privacy: Where a parole retake arrest warrant for defendant was outstanding, the search of defendant’s hotel room, based on reasonable suspicion to believe that defendant was engaged in criminal activity, was not unreasonable under the Fourth Amendment. Feaster v. State, No. 408, Sept. Term, 2011. RecordFax No. 12-0629-00, 42 pages.

Criminal Procedure, False arrest: 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. Prince George’s County v. Blue, No. 0191, Sept. Term, 2011. RecordFax No. 12-0830-03, 19 pages.

Criminal Procedure, Search and seizure: 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. State v. Holt, No. 132, Sept. Term, 2012. RecordFax No. 12-0829-01, 32 pages.

Criminal Procedure, Waiver of counsel: The circuit court failed to comply with the dictates of Rule 4-215 before finding a waiver of counsel. Gutloff v. State, No. 207, Sept. Term, 2011. RecordFax No. 12-0831-00, 32 pages.

Criminal Procedure, Criteria for continuance: The trial court did not abuse its discretion in denying defendant’s continuance to obtain exculpatory evidence, because defendant did not meet his burden to show that he satisfied the criteria set forth in Jackson v. State, 214 Md. 454, 459 (1957). Davis v. State, No. 953, Sept. Term, 2011. RecordFax No. 12-0904-04, 25 pages.

Criminal Procedure, Motion for new trial: To the extent that defendant’s appeal challenged the circuit court’s ruling on his amended motion for new trial, the appeal was dismissed because the appeal was not filed within 30 days of the order denying the motion, as required by Rule 8-202. Crippen v. State, No. 0531, Sept. Term, 2011. RecordFax No. 12-0904-05, 22 pages.

Criminal Procedure, Speedy trial: Defendant was not unconstitutionally denied right to speedy trial where the total delay between his arrest and trial was eight months and fifteen days, the reason for delay was neutral, the defendant did not strongly assert his right to a speedy trial, and defendant was not prejudiced as result of delay. Lloyd v. State, No. 1144, Sept. Term, 2011. RecordFax No. 12-0904-02, 13 pages.

Criminal Procedure, Mistrial: Where defense moved for mistrial based on prosecutor’s prejudicial remarks during closing arguments, circuit court did not err in denying defendants’ motion because the remarks were isolated and brief and did not warrant such drastic remedial action as mistrial. Francis v. State, Nos. 908, 913, Sept. Term 2011. RecordFax No. 12-1121-00, 28 pages.

Criminal Procedure, Prejudicial testimony: In defendant’s criminal trial for assault and robbery, testimony of defense witness that “some guys” had broken his jaw and “it was wired shut” was not irrelevant or unfairly prejudicial to defendant, because explanation served to explain witness’s strange manner of speaking and, given that witness testified that he did not know who had broken his jaw, it could be just as reasonably inferred that neither defendant nor his colleagues were responsible for the beating. Mines v. State, No. 2681, Sept. Term, 2010. RecordFax No. 12-1127-02, 31 pages.

Criminal Procedure, Search and seizure: Circuit court properly denied defendant’s motion to suppress evidence obtained via use of GPS tracking device which police attached to defendant’s vehicle because prevailing legal standard at time of search was expectation of privacy and defendant did not have expectation of privacy in movement on public highway; therefore, good faith exception to exclusionary rule applied. Kelly v. State, No. 2479, Sept. Term, 2010. RecordFax No. 12-1127-01, 35 pages.

Criminal Procedure, Restitution: Juvenile court had authority to order juvenile defendant to pay restitution to robbery victim for full $900 of which victim was deprived even though petition for restitution alleged loss of only $10, because loss of $900 was attributable to the adjudicated offense, State proffered evidence to sustain that finding, and juvenile defendant had sufficient notice of claim. In re Earl F., No. 2434, Sept. Term, 2010. RecordFax No. 12-1127-00, 11 pages.

Criminal Procedure, Stored Communications Act: Defendant’s name and address were not protected by Fourth Amendment right of privacy after he provided that information to cellular phone service provider, and evidence discovered as result of this information was therefore not subject to exclusionary rule. Upshur v. State, No. 1461, Sept. Term, 2011. RecordFax No. 12-1128-00, 19 pages.

Criminal Procedure, Warrantless arrest: Police officers’ entry into defendant’s home late at night in order to effect warrantless arrest of defendant was lawful under community caretaking exception to rule against warrantless search and seizure, because defendant undermined his right to privacy in his home by projecting loud noises into the neighborhood despite repeated requests to reduce noise levels, thereby significantly disrupting his neighbors’ peace. Olson v. State, No. 3032, Sept. Term, 2009. RecordFax No. 12-1128-01, 58 pages.

Criminal Procedure, Waiver of appeal: Defendant waived his challenge to the admission of his statements because he raised the argument for the first time at the appellate level. Joyner v. State, No. 1173, Sept. Term, 2011. RecordFax No. 12-1129-00, 39 pages.

Criminal Procedure, Search and seizure: Circuit court erred in suppressing evidence obtained from police officers’ warranted search of defendant’s home where the warrant application sufficiently alleged the officers’ reasonable deduction that relevant evidence was likely to be hidden in defendant’s residence. State v. Johnson, No. 0782, Sept. Term, 2010. RecordFax No. 12-1130-01, 52 pages.

E

Election Law, Public Local Law Referendum petition: County Board of Elections was prejudiced by petitioner’s failure to submit a memorandum when seeking judicial review of the board’s finding that petitioner’s Public Local Law Referendum petition was insufficient, and dismissal was therefore proper. Swatek v. Board of Elections of Howard County, No. 1557, Sept. Term, 2010. RecordFax No. 12-0209-01, 14 pages.

Election Law, Petition for referendum: In a case involving interpretation of statute governing act of petitioning for referendum of municipal annexation resolution, examination of statute’s text, purpose and interpretive consequences indicated that enactment of the resolution must precede the petition for referendum, and circuit court therefore erred in concluding that petition signatures gathered prior to final enactment could be counted toward the petition for referendum. Town of Oxford v. Koste, No. 2355, Sept. Term, 2010. RecordFax No. 12-0426-04, 19 pages.

Environmental Law, Surface mining: The circuit court erroneously upheld the county’s regulation of surface mining operations within its borders, as the state has impliedly pre-empted the field; and even absent implied pre-emption, the ordinance in question would be pre-empted because its provisions are incompatible with those imposed by the state. East Star, LLC, et al. v. The County Commissioners of Queen Anne’s County, CSA No. 2616, Sept. Term 2010. RecordFax No. 12-0301-04, 19 pages.

Environmental Law, Critical Area Act: Critical Area Commission for the Chesapeake and Atlantic Coastal Bays acted in a quasi-legislative capacity when it decided that certain provisions of Wicomico County’s Critical Area program did not conform to state law, and Commission did not exceed its statutory authority in so doing. Lewis v. Gansler, No. 2174, Sept. Term, 2009. RecordFax No. 12-0425-00, 36 pages.

Estates and Trusts, Interpretation of will: Where the deceased’s last will and testament was ambiguous, extrinsic evidence of the surrounding circumstances was admissible to ascertain the deceased’s intent. Click v. Click, No. 2430, Sept. Term, 2010. RecordFax No. 12-0330-00, 30 pages.

Evidence, Adoptive admissions exception to hearsay rule: A detective’s testimony as to defendant’s date of birth, learned through defendant’s production of his driver license, was admissible pursuant to the exception to the hearsay rule for adoptive admissions set forth in Rule 5-803(a)(2). Gordon v. State, No. 2968, Sept. Term, 2010. RecordFax No. 12-0330-03, 23 pages.

Evidence, Hearsay: In defendant’s criminal trial for crimes relating to stabbing death of victim, witness’s statement to police at the scene of the crime shortly after stabbing occurred, in which witness described the assailant, was not inadmissible under the Confrontation Clause because it was made for the primary purpose of assisting police in meeting an ongoing emergency and was therefore non-testimonial in nature. Brock v. State, No. 1974, Sept. Term, 2010. RecordFax No. 12-0209-04, 27 pages.

Evidence, Hearsay: The victim’s statements, made in a recorded interview between a social worker and the victim, did not fall within an exception to the hearsay rule pursuant to Rules 5-616(c)(2) and 5-802.1 and, therefore, the circuit court erred in admitting the recorded interview. Hajireen v. State, No. 232, Sept. Term 2011. RecordFax No. 12-0302-06, 26 pages.

Evidence, Discovery sanctions: The record did not support the finding of a discovery violation, and even if there were a violation, it was an abuse of discretion to exclude evidence without considering: whether defendant’s supposed violation was technical or substantial; the timing of the ultimate disclosure; the reason for the violation; the degree of respective prejudice to the parties; and whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance. Schneider v. Little, No. 1346, Sept. Term, 2010. RecordFax No. 12-0601-03, 28 pages.

Evidence, Expert opinion on causation: The trial court abused its discretion under Rule 5-702 when it denied defendant’s motion to exclude plaintiffs’ expert opinion on “substantial contributing factor causation” where the expert’s testimony did not quantify the probability of causation. Dixon v. Ford Motor Company, No. 536, Sept. Term, 2011. RecordFax No. 12-0629-06, 27 pages.

Evidence, Gang-related evidence: The circuit court did not err by admitting gang-related evidence where the fact evidence demonstrated that the murder was gang-related, the evidence was relevant to explain inconsistencies between witnesses’ pretrial statements and trial testimony and the probative value of the evidence outweighed any danger of unfair prejudice. Burris v. State, No. 1970, Sept. Term, 2010. RecordFax No. 12-0628-01, 61 pages.

Evidence, Frye-Reed standard for scientific evidence: 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. Montgomery Mutual Insurance Company v. Chesson, No. 2454, Sept. Term, 2009. RecordFax No. 12-0829-02, 41 pages.

Evidence, Declaration against penal interest: The statement of an unavailable declarant was inadmissible at defendant’s trial as a declaration against penal interest under Rule 5-804(b)(3), where the statement lacked sufficient indicia of reliability and particularized guarantees of trustworthiness. Jackson v. State, No. 01159, Sept. Term, 2011. RecordFax No. 12-0905-01, 29 pages.

Evidence, Co-conspirator exception to hearsay rule: In defendant’s criminal trial for drug-related offenses, the court properly admitted a witness’s statements pursuant to the co-conspirator exception to the hearsay rule because the statements were made during the course of a conspiracy to buy illegal drugs and, because the statements were intended to reassure undercover police officer that the transaction was going as planned, the statements were “in furtherance of” the conspiracy. Shelton v. State, No. 1240, Sept. Term, 2012. RecordFax No. 12-0905-03, 28 pages.

Evidence, Comparative Bullet-Lead Analysis: Appellant was not entitled to post-conviction relief because the prosecution’s introduction of and reliance on Comparative Bullet–Lead Analysis evidence at his murder trial did not render the trial so fundamentally unfair that it violated his right to due process. Kulbicki v. State, No. 2940, Sept. Term, 2007. RecordFax No. 12-0926-01, 46 pages.

Evidence, Lay testimony: Where defendant’s friend of 45 years gave testimony identifying defendant at trial, Circuit court properly allowed such lay testimony because it was based on specialized knowledge, it was rationally based, and it was relevant. Moreland v. State, No. 1360, Sept. Term 2010. RecordFax No. 12-0926-02, 12 pages.

Evidence, Prior consistent statements: Trial court properly allowed hearsay statements from victim’s peace order application because, during cross-examination, defense counsel opened the door to the admission of such statements by attempting to impeach victim’s credibility with respect to defendant’s conduct, and contents of the peace order application were prior consistent statements that the prosecution was permitted to introduce to rehabilitate the victim. Quansah v. State, No. 2433, Sept. Term 2010. RecordFax No. 12-0926-04, 32 pages.

Family

Family Law, Adoption by stepparent: In the context of independent adoptions, as in guardianship cases, a natural parent’s failure to file a timely objection to a petition for adoption of a child serves as an irrevocable deemed consent to termination of parental rights; as such, by filing one day too late an objection to notice of stepparent’s petition for adoption of father’s child, untimely filing operated to terminate father’s parental rights. In re Adoption of Sean M., Nos. 1836, Sept. Term, 2011. RecordFax No. 12-0427-03, 28 pages.

Family Law, Modification of custody: In light of the evidence of mother’s mental illness, among other things, the circuit court did not err in modifying the custody agreement, because there was sufficient evidence to demonstrate a material change in circumstance and that the modification was in the best interests of the children. Gillespie v. Gillespie, Nos. 960 and 2153, Sept. Term, 2011. RecordFax No. 12-0629-03, 36 pages.

Family Law, Emergency jurisdiction: The circuit court did not have temporary emergency jurisdiction over the parties’ custody dispute, because the evidence failed to establish that their child was subjected to or threatened with mistreatment or abuse. Kalman v. Fuste, No. 1617, Sept. Term, 2011. RecordFax No. 12-0905-02, 24 pages.

Family Law, Right to foster child’s OASDI benefits: Department of Social Services’ practice of reimbursing itself for the direct cost of foster care services, when acting as a representative payee for Social Security Old Age, Survivor, and Disability Insurance benefits, was in compliance with the Social Security Act and the regulations and did not violate the Equal Protection clause. In Re: Ryan W., No. 1503, Sept. Term, 2011. RecordFax No. 12-0905-00, 69 pages.

Family Law, Proxy marriages: Where husband and wife were married over the phone, with husband’s cousin standing in for husband at wedding ceremony, husband’s argument that the circuit court should not recognize such a marriage by proxy was properly rejected because husband and wife lived as married couple, owned property together, had children, and held themselves out to the community as a married couple. Tshiani v. Tshiani, No. 2655, Sept. Term 2010. RecordFax No. 12-1121-04, 20 pages.

Family Law, Sibling visitation: In order to preserve parents’ fundamental liberty interest in the care, custody, and control of their children, courts must apply strict scrutiny test when considering an adult’s petition seeking visitation with her minor siblings, requiring threshold showing by petitioner of either parental unfitness or exceptional circumstances indicating that lack of requested visitation has significant deleterious effect upon children who are subject of petition; failing that, adult’s petition for visitation with minor siblings must be denied. In re Victoria C., No. 174, Sept. Term, 2012. RecordFax No. 12-1126-03, 20 pages.

Family Law, Telephone testimony in guardianship proceeding: In a hearing for the termination of parental rights, the trial court did not abuse its discretion in allowing the telephone testimony of a witness because good cause was shown. In Re: Adriana T., No. 0433, Sept. Term, 2012. RecordFax No. 12-1129-01, 29 pages.

I – Pr

Insurance Law, Umbrella policy coverage: An umbrella policy is not a private passenger motor vehicle liability insurance policy and there is therefore no prohibition on a household exclusion in an umbrella policy. Stickley v. State Farm Fire & Casualty Company, No. 307, Sept. Term, 2011. RecordFax No. 12-0427-01, 25 pages.

Insurance Law, HMO Act: Plaintiff’s private claims against health care provider were properly dismissed with prejudice, because the HMO Act precludes private causes of action against health care providers. Scull v. Groover, No. 332, Sept. Term, 2011. RecordFax No. 12-0607-03, 10 pages.

Insurance Law, Release of liability: Circuit court erred in ruling that car accident victim’s claim for uninsured/underinsured benefits was barred by the release that she executed with tortfeasor’s insurance carrier, even though the release purported to release everyone from any and all claims arising from the accident. Buckley v. Brethren Mutual Insurance Co., No. 1855, Sept. Term 2010. RecordFax No. 12-0926-07, 45 pages.

Labor and Employment, Federal Employers’ Liability Act: Railroad worker’s claim for the negligent use of ballast in rail yard walkways brought under the Federal Employers’ Liability Act was not precluded by the Federal Railroad Safety Act. CSX Transportation, Inc. v. Pitts, No. 837 Sept. Term, 2010. RecordFax No. 12-0208-01, 57 pages.

Labor and Employment, Termination of police officer: Where administrative board found police officer had violated police department general orders and recommended penalty of six-day suspension, police commissioner had right to increase penalty and terminate officer’s employment, because commissioner’s decision was based on violations of which officer was found guilty. Rivieri v. Baltimore Police Department, No. 35, Sept. Term, 2011. RecordFax No. 12-0427-00, 18 pages.

Labor and Employment, Maryland Wage Payment and Collection Law: The circuit court applied an improper test in denying an award of attorneys’ fees and costs to plaintiff under the Maryland Wage Payment and Collection Law. Barufaldi v. Ocean City, Maryland Chamber of Commerce, Inc., No. 270, Sept. Term, 2011. RecordFax No. 12-0629-01, 28 pages.

Labor and Employment, State agencies: 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. Sturdivant v. Maryland Department of Health and Mental Hygiene, No. 309, Sept. Term, 2011. RecordFax No. 12-0831-06, 30 pages.

Labor and Employment, Fair Labor Standards Act: Even though father of construction company’s owner supervised employees and manifested some ability to pay them, father could not be liable to employees for unpaid wages under the Fair Labor Standards Act because, under the “economic reality test,” father was not the workers’ “employer.” Campusano v. Lusitano, No. 1529, Sept. Term 2011. RecordFax No. 12-1121-03, 14 pages.

Landlord/Tenant, Jury trial: In consolidated case involving action by landlord against tenants in which landlord sought to regain possession of property from “Tenant Holding Over” and action by tenants against landlord seeking damages for harassment and for breach of the covenant of quiet enjoyment or warranty of habitability, tenants were entitled to jury trial because claims were both legal and equitable in nature, tenants met threshold damages amount for a jury trial, and they made a timely demand for a jury trial; however, because circuit court properly disposed of case by directed verdict, court’s error in striking tenants’ demand for jury trial was rendered harmless. Sandler v. Executive Management Plus, Nos. 0732, 0752, Sept. Term, 2010. RecordFax No. 12-0301-01, 27 pages.

Premises Liability, Lead paint causation expert: 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. Taylor v. Fishkind, No. 2407, Sept. Term, 2010. RecordFax No. 12-0831-07, 35 pages.

Premises Liability, ‘Owner’ defined: 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. Butler v. S&S Partnership, No. 214, Sept. Term, 2011. RecordFax No. 12-0831-05, 68 pages.

Real Property

Real Property, Title defects: Plaintiff did not have a cognizable negligence claim against defendants, who issued policies of title insurance to plaintiff, for failure to discover and report a prior conveyance of the property. Columbia Town Center Title Company v. 100 Investment L.P., No. 0915, Sept. Term, 2009. RecordFax No. 12-0202-01, 52 pages.

Real Property, Easement of necessity: The evidence was sufficient to establish an easement of necessity in favor of plaintiffs across the property of the defendants. Purnell v. Beard & Bone, LLC, No. 1861, Sept. Term, 2009. RecordFax No. 12-0301-00, 39 pages.

Real Property, Foreclosure: Circuit court properly denied homeowner’s motion to vacate foreclosure sale of homeowner’s property and dismiss foreclosure proceedings stemming from homeowner’s default on promissory note held by substitute trustees, where homeowner had actual notice of foreclosure proceedings and substitute trustees satisfied burden of proving that they possessed promissory note currently and lawfully. Svrcek v. Rosenberg, No. 988, Sept. Term, 2010. RecordFax No. 12-0329-00, 35 pages.

Real Property, Easements: Defendants were entitled to a declaratory judgment because plaintiff failed to establish a prima facie claim for establishing an ingress/egress easement to his property. Bacon v. Arey, No. 2339, Sept. Term, 2010. RecordFax No. 12-0329-03, 65 pages.

Real Property, Recordation tax exemptions: Tax court was correct in finding that economic development corporation, a state entity, was not exempt from paying recordation tax on a deed of trust, because tax was imposed on privilege of recording the document rather than on any particular party to the transaction, and corporation agreed to pay recordation tax even though it was not so required. Montgomery County v. Maryland Economic Development Corporation, No. 2763, Sept. Term, 2010. RecordFax No. 12-0330-02, 48 pages.

Real Property, Standing to enforce preservation easement: Plaintiffs’ status as neighbors adjacent to farm seeking to construct creamery operation allegedly in violation of preservation easement between farm and State gave rise to presumption that plaintiffs would be “specially harmed” by farm’s act and therefore had standing to pursue equitable claims against farm, subject to rebuttal of presumption of special harm. Long Green Valley Association v. Bellevale Farms, No. 0228, Sept. Term, 2009. RecordFax No. 12-0608-00, 55 pages.

Real Property, Interpretation of deed: The circuit court did not err by declaring that plaintiff owned no interest in a 10-foot strip of land that borders property owned by both plaintiff and defendants, and that defendant holds all right, title and interest in and to the strip, subject to an easement. Annapolis Roads Property Owners Association v. Lindsay, No. 1380, Sept. Term, 2010. RecordFax No. 12-0604-01, 65 pages.

Real Property, Reverter: Circuit court erred in ruling that the passage of time had converted a temporary easement over plaintiff’s property into a perpetual easement pursuant to the 30-year limit on possibilities of reverter under RP §6-101, since the statute does not apply to easements. Arthur E. Selnick Associates, Inc. v. Howard County, No. 01418, Sept. Term, 2010. RecordFax No. 12-0831-01, 40 pages.

Real Property, Doctrine of lis pendens: Lender that acquired interest in property was not entitled to protection as a bona fide purchaser because at the time lender acquired its interest, it had constructive notice of a lawsuit filed in circuit court and title issues clouding the property. Murphy v. Fishman, No. 786, Sept. Term, 2012. RecordFax No. 12-0904-03, 32 pages.

Real Property, Homeowners Association Act: The Maryland Homeowners Association Act, which bars the vendor of residential lots in a development from enforcing a sales contract with certain “member(s) of the public” unless specified disclosures are made, applies to purchasers who already own other property within that development; thus, the circuit court properly dismissed a breach of contract action by a seller who failed to make the required statutory disclosures. Lipitz v. Hurwitz, No. 351, Sept. Term, 2012. RecordFax No. 12-0904-00, 31 pages.

Real Property, Justiciable controversy: A justiciable controversy existed over whether the implementation of conditions necessary for plaintiff to obtain approval of the subject project by the Planning Board violated defendant’s easement over the property. Michael LLC v. 8204 Associates LLC, No. 0601, Sept. Term, 2011. RecordFax No. 12-0926-06, 14 pages.

Real Property, Condemnation: In county’s condemnation case against landowners, County was not entitled to judgment as matter of law because even though landowners did not put forth any affirmative evidence of value of the property to raise genuine dispute of material fact to contradict County’s appraisal, Maryland Constitution requires that just compensation be awarded by a jury, not by a court. Soleimanzadeh v. Montgomery County, No. 1433, Sept. Term, 2010 RecordFax No. 12-1126-02, 31 pages.

Real Property, Covenants: Restrictive covenant on lots in subdivision limiting use of lots to “single family residences” but which does not define term “family” does not prohibit owner of lot in subdivision from renting lot to persons not related by blood, marriage, or adoption, because such use of term “family” is ambiguous, and any ambiguity in restrictive covenant must be resolved in favor of free enjoyment of the property. South Kaywood Community Association v. Long, No. 00691, Sept. Term, 2010. RecordFax No. 12-1126-01, 32 pages.

Real Property, Reverter: A fee simple property owner’s conveyance of a life estate to herself and remainder to herself and her four children was valid; and, when she and two of the children conveyed their future interests to a third party, they severed the joint tenancy created by the first conveyance and eliminated the survivorship contingency with respect to their future interests. Roland v. Messersmith, No. 854, Sept. Term, 2010. RecordFax No. 12-1129-02, 15 pages.

Torts

Torts, Damages from gasoline leak: Property damage awards of about $60 million for 88 households located near the source of a month-long gasoline leak were largely upheld, but the jury instruction on emotional distress damages was faulty, especially as to the fear of cancer, and the awards for medical monitoring were also struck down. ExxonMobil Corp. v. Ford, No. 1804, Sept. Term, 2009. In banc. RecordFax No. 12-0209-05, 321 pages.

Torts, Good Samaritan Act: Where plaintiff was injured by private commercial ambulance company, circuit court’s grant of summary judgment in favor of ambulance company based on immunity under the Good Samaritan Act was reversed because ambulance company was not a “person” entitled to such immunity under the Act. Murray v. TransCare Maryland, Inc., No. 1791, Sept. Term, 2010. RecordFax No. 12-0209-03, 54 pages.

Torts, Medical malpractice: In light of the abundance of expert witness testimony indicating that newborn’s injuries could have been prevented, evidence was legally sufficient to support a finding by a preponderance of the evidence that injuries were caused by a breach of the standard of care by the doctor. University of Maryland Medical System Corporation v. Gholston, No. 2505, Sept. Term 2010. RecordFax No. 12-0210-00,21 pages.

Torts, Local Government Tort Claims Act: Pursuant to Local Government Tort Claims Act (LGTCA), wrongful death claims against police defendants arising from death of arrested man, brought by deceased man’s estate and his two sons, should have been aggregated with deceased man’s survival claim, resulting in total judgment of $200,000 under LGTCA provision capping liability of local government at $200,000 per an “individual claim.” Leake v. Johnson, No. 9, Sept. Term, 2010. RecordFax No. 12-0330-01, 35 pages.

Torts, Transferred intent: Where defendant collided with plaintiff’s car while pursuing another car during a “road rage” altercation, circuit court did not err in granting summary judgment against plaintiff’s battery claim because there was no evidence that the defendant had intended to strike either vehicle. Hendrix v. Burns, No. 2039, Sept. Term, 2010. RecordFax No. 12-0329-02, 24 pages.

Torts, Medical malpractice: Since vascular surgery and orthopedic surgery are “related specialties” under the board certification requirement in CJ §3-2A-02(c)(2)(ii) 1B, a board certified vascular surgeon was properly permitted to testify about the standard of care applicable to defendant, a board certified orthopedic surgeon. DeMuth v. Strong, No. 195, Sept. Term, 2011. RecordFax No. 12-0606-02, 34 pages.

Torts, Special relationship: The State of Maryland had no duty to prevent a convicted child rapist who had been released from prison on mandatory supervision from murdering another child, since no special relationship existed between the state and the victim. Dixon v. State, No. 187, Sept. Term, 2011. RecordFax No. 12-0606-01, 18 pages.

Torts, Assumption of risk of medical malpractice: Absent exceptional circumstances, an assumption of risk defense is not available to a physician in a suit for medical malpractice in Maryland. Schwartz v. Johnson, No. 2556, Sept. Term, 2009. RecordFax No. 12-0627-00, 20 pages.

Torts, Duty to third parties: 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. Iglesias v. Pentagon Title and Escrow, LLC, Nos. 1562 and, 1563, Sept. Term, 2010. RecordFax No. 12-0831-02 pages.

Torts, Expert’s certificate in medical malpractice case: 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. Hinebaugh v. The Garrett County Memorial Hospital, No. 331, Sept. Term, 2011. RecordFax No. 12-0831-04, 36 pages.

Torts, Non-economic damages cap: The non-economic damages cap imposed by CJ §11-108 applies separately to damages awarded in a wrongful death and a survival action. Goss v. The Estate of Bertha Jennings, No. 1931, Sept. Term, 2010. RecordFax No. 12-0831-08, 25 pages.

Torts, Release agreements: 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. Rosen v. BJ’s Wholesale Club, Inc., No. 2861, Sept. Term, 2009. RecordFax No. 12-0830-00, 26 pages.

Torts, Duty to warn: Where plaintiff became ill from asbestos exposure after washing her grandfather’s asbestos-laden work clothes over a period of years, defendant that manufactured asbestos-containing construction material owed duty to warn grandfather that members of his household could become contaminated through his exposure to such material at job site. Georgia-Pacific, LLC v. Farrar, No. 751, Sept. Term 2010. RecordFax No. 12-0926-00, 43 pages.

Torts, Negligent hiring or supervision: Evidence was sufficient to prove that employer, a mortgage broker, negligently hired and/or retained employee who perpetrated fraudulent foreclosure scheme that caused plaintiff to lose title to her home where record showed that employee’s role as loan officer brought him into contact with public, employer caught employee forging documents on multiple occasions, and employer was aware that employee engaged in “contract for deed” transactions with distressed homeowners. Fidelity First Home Mortgage Company v. Williams, No. 726, Sept. Term, 2011. RecordFax No. 12-1127-04, 44 pages.

Torts, Misrepresentation: Wife had valid claim against husband for misrepresentation, where husband falsely represented to wife that he was divorced, and wife was thus fraudulently caused to change her position in reliance on husband’s intentional misrepresentation of his marital status. Bradley v. Bradley, No. 560, Sept. Term, 2011. RecordFax No. 12-1127-03, 21 pages.

Torts. Fraudulent inducement: The evidence established that defendants fraudulently induced plaintiffs to loan them money in reliance on the false representation that defendants would convey to plaintiffs ownership in its company. Dynacorp Ltd v. Aramtel Ltd., No. 1077, Sept. Term, 2011. RecordFax No. 12-1128-06, 101 pages.

W – Z

Workers’ Compensation, Course of employment: Courthouse employee was not entitled to workers’ compensation benefits for injury sustained when, without a supervisor’s permission, he went home during work hours to change his shirt and tie so as to present a more professional appearance. Garrity v. Injured Workers’ Insurance Fund, No. 1185, Sept. Term, 2010. RecordFax No. 12-0209-00, 18 pages.

Workers’ Compensation, Offset for service pension benefits: Widow’s claim for dependent benefits following the death of her husband, a firefighter, was subject to the general offset provision in force at the time of his death from an occupational disease; a subsequent amendment to the offset provision of the Workers’ Compensation Act did not apply retroactively because it altered the vested rights of the worker and the employer. Johnson v. Mayor, No. 1707, Sept. Term, 2010. RecordFax No. 12-0329-01, 30 pages.

Workers’ Compensation, Work-related injuries: Injury to employee’s right leg, which occurred while employee was en route from physical therapy for prior work-related injury to employee’s left leg, for which employee had successfully claimed workers’ compensation benefits, was not causally related to prior work-related injury to his left leg, and therefore was not covered by workers’ compensation benefits. Washington Metro Transit Auth. v. Williams, No. 2316, Sept. Term, 2010. RecordFax No. 12-0426-02, 15 pages.

Workers’ Compensation, Jones Act: Plaintiff who spent less than 30 percent of his time at sea did not, as a matter of law, qualify as a seaman under the Jones Act. Dize v. Association of Maryland Pilots, No. 26, Sept. Term, 2010. RecordFax No. 12-0531-01, 21 pages.

Workers’ Compensation, Suit against supervisor: Because defendant was not performing a non-delegable duty at the time of the accident, the circuit court erred in determining that plaintiff’s sole remedy for his injuries was through the Workers’ Compensation statute. Hayes v. Pratchett, No. 2751. RecordFax No. 12-0605-01, 21 pages.

Workers’ Compensation, Statute of limitations: Employee’s petition to reopen his workers’ compensation claim for worsening of condition was barred by the statute of limitations, because the employee’s withdrawal of supporting issues constituted withdrawal of his petition to reopen, and more than five years elapsed between his last indemnity payment and the filing of any new issues for worsening of condition. McLaughlin v. Gill Simpson Electric, No. 376, Sept. Term, 2011. RecordFax No. 12-0629-05, 20 pages.

Workers’ Compensation, Subsequent Injury Fund: The Workers’ Compensation Act provision that calls for apportionment of liability between the Subsequent Injury Fund (“SIF”) and the employer, and provides for SIF’s payments to be made after conclusion of employer’s payments, does not permit the employee to accelerate the commencement of SIF’s weekly payments by settling with employer; rather, the proper commencement date of SIF’s payments is the date the employer’s weekly payments would have ended had there been no lump sum settlement. Schaffer v. Subsequent Injury Fund, No. 548, Sept. Term, 2011. RecordFax No. 12-0904-01, 16 pages.

Zoning, Standing to appeal: Plaintiffs lacked standing to obtain judicial review of a zoning decision because they failed to establish that they were aggrieved by the decision. Ray v. Mayor & City Council of Baltimore, No. 0215, Sept. Term, 2011 RecordFax No. 12-0201-01, 33 pages.

Zoning, Open meetings requirements: In reviewing application for special zoning exemption, zoning board violated the open-meetings statute and open-meetings rule by holding a site visit on private property. Bowie v. Board of County Commissioners of Charles County, No. 0312, Sept. Term, 2010. RecordFax No. 12-0203-02, 20 pages.

Zoning, Exhaustion of administrative remedies: Plaintiff’s requests for writs of mandamus and for declaratory relief to enforce compliance with the Baltimore County Code and Charter and the zoning regulations were denied because administrative remedies were available to resolve plaintiff’s complaints. Falls Road Community Assoc. v. Baltimore County, No. 2133, Sept. Term, 2010. RecordFax No. 12-0301-02, 32 pages.

Zoning, Standing to challenge land use actions: Plaintiffs lacked standing to bring a declaratory judgment action against county challenging several land use actions taken by county because plaintiffs failed to state a particularized harm and because there were too many individuals who would have been affected by the declaratory relief sought by plaintiffs. Kendall v. Howard County, No. 0235, Sept. Term, 2010. RecordFax No. 12-0411-00, 14 pages.

Zoning, Agricultural preservation: Baltimore County properly granted a creamery’s petition for a special exception for a farm market or farmer’s roadside stand in an agricultural zone, because the creamery was an agricultural producer, it met the requirements regarding sales of farm produce and locally produced nonagricultural goods, and the special exception would not be detrimental to the health, safety or general welfare of the locality, would not tend to create congestion and would not create a potential hazard from fire, panic or other danger. Long Green Valley Association v. Prigel Family Creamery, No. 350, Sept. Term, 2011. RecordFax No. 12-0629-04, 19 pages.