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Opinions – 1/10/13: Maryland Court of Special Appeals

Civil Procedure

Statute of limitations 

BOTTOM LINE: Plaintiffs’ lawsuit against insurer was barred by the statute of limitations because they failed to file it in Maryland within three years after their cause of action accrued; filing the suit in Pennsylvania to take advantage of that state’s Bad Faith Statute did not toll the running of the statutory period.

CASE: Antar v. The Mike Egan Insurance Agency, Inc., No. 1481, Sept. Term, 2011 (filed Dec. 21, 2012) (Judges Eyler, D., Wright & MOYLAN (retired, specially assigned)). RecordFax No. 12-1221-02, 34 pages.

FACTS: Samuel and Rose Antar and Solomon and Gloria Lewittman owned the building at 321 North Howard Street in Baltimore City. They obtained an insurance policy from the Mt. Vernon Fire Insurance Company through the Mike Egan Insurance Agency, Inc. (Egan). On July 13, 2007, the building was destroyed by fire. The Antars and the Lewittmens submitted a claim to Mt. Vernon for their loss. Mt. Vernon denied the claim.

No one satisfactorily established the precise date on which Mt. Vernon refused to honor the claim. All parties agreed, however, that the accrual date was no later than February 4, 2008.

As a calculated trial tactic to take advantage of Pennsylvania’s Bad Faith Statute, the Antars and the Lewittmens filed suit against Mt. Vernon on February 4, 2008 in the Court of Common Pleas of Philadelphia County, Pennsylvania, alleging claims for breach of contract and bad faith. Mt. Vernon successfully joined Egan as an additional party defendant.

Mt. Vernon filed a motion to dismiss the suit in Philadelphia County on the grounds of forum non conveniens. The Philadelphia County court granted Mt. Vernon’s motion and dismissed the case, with leave to refile in Maryland.

The Antars and the Lewittmens sought appellate review of the Philadelphia County court’s dismissal of their case. The Pennsylvania Superior Court affirmed the trial court’s dismissal order. The order of the Superior Court was ultimately entered on the docket of the Philadelphia County Court of Common Pleas on September 27, 2010.

On May 18, 2011, the Antars and the Lewittmens first filed suit against both Mt. Vernon and Egan in the circuit court for Baltimore City, alleging a breach of contract claim against Mt. Vernon and a negligence claim against Egan. Both moved for a dismissal of the suit as time-barred by the statute of limitations. The circuit court granted the motions to dismiss.

The Court of Special Appeals affirmed.

LAW: Under CJ §5-101, a civil action at law shall be filed within three years from the date it accrues. The cause of action in this case accrued no later than February 4, 2008. Absent the possibility of tolling, the statutory filing deadline for the claim in Maryland thereby became February 4, 2011.

The Antars and the Lewittmens contended that the running of the limitations period in Maryland should have been tolled while the suit was pending in Pennsylvania

In Walko Corporation v. Burger Chef Systems, Inc., 281 Md. 207 (1977), the question before the Court of Appeals, on certification from the United States Court of Appeals for the District of Columbia Circuit, was whether the statute of limitations in Maryland would be tolled by the pendency of the appellant’s motion for leave to intervene in a civil action in the United States District Court for the District of Columbia. The Court of Appeals certified that the statute of limitations in Maryland would not be tolled.

“Where the Legislature has not made an exception in express words in the Statute of limitations, the Court cannot allow any implied and equitable exception to be engrafted upon the statute merely on the ground that such exception would be within the spirit or reason of the statute. This venerable rule, which defers to the legislative intent expressed in the statute of limitations itself, and avoids implied exceptions or strained constructions, is also applicable in cases such as the one at bar where an action filed initially within the required period fails for some technical, procedural defect falling short of a full decision on the merits.” Id. at 211-12.

Bertonazzi v. Hillman, 241 Md. 361 (1966), did carve out a small and narrow exception to the mechanically harsh application of the statute of limitations that at that time prevailed. In that case, the Court of Appeals was not dealing with the general three-year statute of limitations, but with the six-month period of limitations following the qualification of a personal representative within which a suit against the estate of a deceased tortfeasor must be filed under what was Art. 93, §112. The general principles announced by the Bertonazzi opinion, however, would apply to the more general statute of limitations as well.

Suit should have been brought against the deceased tortfeasor Hillman or Hillman’s personal representative in Baltimore City. The Hillman residence, however, was located right on the Baltimore City-Baltimore County line. The plaintiff’s lawyer looked at a map and erroneously concluded that the residence was on the Baltimore County side of the line. Suit was accordingly filed in Baltimore County.

The case came on for a hearing in Baltimore County six months and fourteen days after Hillman’s personal representative had qualified and fourteen days, therefore, after the statutory filing deadline. The defense motion to dismiss the suit was granted on the ground that neither the plaintiff nor the defendant actually lived in Baltimore County and that Baltimore County was an improper venue to hear the case. Bertonazzi’s attorney refiled the suit in Baltimore City, within one to two hours later. The trial court granted Mrs. Hillman’s motion to dismiss the case on the ground that it had not been filed until after limitations had run.

In reversing the trial court, the Court of Appeals was “persuaded that the six months’ limitations period was tolled” when the plaintiff “commenced an action in Baltimore County within six calendar months after the date of the qualification of the administratrix.” Id. at 365. The Bertonazzi opinion considered significant the fact that Baltimore County, albeit the wrong venue, nonetheless actually had jurisdiction over the subject matter. See id. at 365-66.

The differences between the present case and Bertonazzi are profound. Geographically and jurisdictionally, the transfer in Bertonazzi was between two adjacent venues dealing with precisely the same cause of action under the same state law. In this case, the removal was from Pennsylvania to Maryland with different laws and different procedures. In Bertonazzi, the filing in Baltimore County was the result of a mistake made in good faith, whereas here, the filing in Philadelphia County was the result of a deliberate trial stratagem.

In Bertonazzi, the plaintiff filed his claim in Baltimore City within less than two hours after it had been dismissed in Baltimore County. Here, the Antars and the Lewittmens filed their claim in Baltimore City two years and eleven months after the case had been dismissed in Philadelphia County and eleven months after the Pennsylvania intermediate appellate court had affirmed the dismissal.

In Bertonazzi, the plaintiff was dismissed from Baltimore County as a matter of law and the time for a new filing had already run. The Antars and the Lewittmens were dismissed from Philadelphia County as a discretionary matter and months, if not years, were still available for a new filing in Maryland.

In Bertonazzi, the Court of Appeals attached great significance to the fact that in Maryland, at that time, there was neither a transfer statute without the need for refiling nor a saving statute. See id. at 365. That arbitrary harshness, however, has since been rectified.

Rule 2-327(b) now provides for a transfer of venue if, in the interest of justice the action should not be dismissed.

Furthermore, in 1992, a savings statute was enacted for the first time in Maryland. If an action is filed within the period of limitations and is dismissed for, among other reasons, because the action is barred by the statute of limitations, an action filed in a circuit court within 30 days after the entry of the order of dismissal shall be treated as timely filed. Rule 2-101(b)

However, because the Maryland statute of limitations had not run when the Pennsylvania case was terminated, the saving provision of Rule 2-101(b) would not even apply. Furthermore, the Antars and the Lewittmens did not need the benefit of Rule 2-101(b)’s 30 day grace period, because when the Philadelphia County Court dismissed the case on the grounds of forum non conveniens on July 24, 2008, they still had two years and seven months within which to refile the case timely in Baltimore. Even figuring from the affirmance of the dismissal by the Pennsylvania intermediate appellate court on June 15, 2010, they still had eight months within which to accomplish a timely refiling of the case in Baltimore.

In Kumar v. Dhanda, 426 Md. 185 (2012), Dr. Kumar and Dr. Dhanda entered into an employment contract. The contract included a mandatory non-binding arbitration clause. It also included a non-competition clause that prohibited Dr. Dhanda from engaging in the practice of urology within specified geographic limits and for three years after his termination of employment. After a tangle of convoluted procedures, Dr. Kumar filed suit against Dr. Dhanda. The trial court dismissed the suit because it was e time-barred by the statute of limitations. The Court of Appeals affirmed.

Dr. Kumar argued that the running of limitations was effectively tolled during the time that the case was mandatorily in arbitration. The Court of Appeals explained that the mandatory but non-binding arbitration clause did not affect the accrual date of the cause of action. Id. at 210.

The filing deadline for suit in Maryland was February 4, 2011. Accordingly, the Antars’ and the Lewittmens’ suit, filed in May, 2011, was barred by the statute of limitations.

COMMENTARY: In Christensen v. Philip Morris, 162 Md. App. 616 (2005), during the pendency of a class action lawsuit, limitations was suspended for potential class members. At issue there, however, was a basic clash between two competing social and legal policies: statutes of limitation, on the one hand, and class action law, on the other.

A tolling exception to a statute of limitations will be recognized only under two conditions: “(1) there is persuasive authority or persuasive policy considerations supporting the recognition of the tolling exception and (2) recognizing the tolling exception is consistent with the generally recognized purposes for the enactment of statutes of limitations.” Philip Morris v. Christensen, 394 Md. 227, 238 (2006).

There are “persuasive policy considerations” supporting a class action tolling exception. “To hold to the contrary would frustrate the principal function of a class suit because then the sole means by which members of the class could assure their participation in the judgment if notice of the class suit did not reach them until after the running of the limitation period would be to file earlier individual motions to join or intervene as parties — precisely the multiplicity of activity which [FRCP] 23 was designed to avoid in those cases where a class action is found superior to other available methods for the fair and efficient adjudication of the controversy.” American Pipe & Construction Co. v. Utah, 414 U.S. 538, 550-51 (1974).

In Swam v. Upper Chesapeake Medical Center, 397 Md. 528 (2007), a plaintiff’s mistake in misreading an ambiguous statute caused her to file a medically-related claim but not a strict medical claim with the Health Care Office instead of with the circuit court.

The Court of Appeals stated: “In the present case, while we have held that the Swams’ claim is outside the purview of the Health Claims Act, we are aware that the proper forum may not have been entirely obvious to the claimant. Mrs. Swam’s injury was very much medically-related, occurring in a hospital, and inflicted because of the alleged negligence of a health care provider. In light of the Court’s broad interpretation of the Health Claims Act, and its willingness to be over-inclusive as opposed to under-inclusive in terms of covered claims, we should approach a claimant’s choice of the proper forum, as it affects limitations, in the same spirit.” Id. at 541.

In the present case, no policy concerns were in any way implicated.

PRACTICE TIPS: States that recognize class action tolling have split on the issue of whether to adopt cross-jurisdictional tolling, under which the filing of a putative class action in a different jurisdiction tolls the statute of limitations for putative class members to file individual claims in the jurisdiction recognizing cross-jurisdictional tolling while the issue of class certification is pending in the other jurisdiction. Christensen, 394 Md. at 255.

Contract Law

Arbitration agreement 

BOTTOM LINE: Broad arbitration clause in employee’s employment agreement with employer, providing that “any dispute, claim, or controversy arising out of or relating to this Agreement shall be settled by arbitration by a single arbitrator,” applied to employee’s claim for bonus, brought pursuant to Maryland state wage payment and collection statute, because employee’s alleged right to bonus arose directly from agreement.

CASE: Falls v. 1CI, Inc., No. 02747, Sept. Term, 2010 (filed Dec. 19, 2012) (Judges Eyler, J., Hotten & SALMON (retired, specially assigned)). RecordFax No. 12-1219-23, 33 pages.

FACTS: At the beginning of 2009, Anthony Falls was an employee of 1CI, Inc., a wholly owned subsidiary of Cape Fox Corporation. 1CI was a Delaware Corporation. Cape Fox was an Alaskan Native Corporation and served as a holding company for several subsidiary corporations. The principal office of Cape Fox was located in Saxman, Alaska.

On January 1, 2009, Falls signed an employment agreement with 1CI. The agreement provided that Falls would serve as Chief Executive Officer (“CEO”) of 1CI and would be paid an annual salary in addition to an incentive bonus equal to 40% of the sum total of 1CI’s profits before taxes but after payment of compensation to Falls. The agreement contained an arbitration clause providing that “any dispute, claim, or controversy arising out of or relating to this Agreement shall be settled by arbitration by a single arbitrator.”

Falls’ employment with 1CI was terminated in January 2010. Approximately six months later, he filed suit in circuit court against 1CI and Cape Fox. In his complaint, Falls alleged that the defendants were employers within the meaning of the Maryland Wage Payment and Collection Law as codified in Maryland Code (2008 Repl. Volume), Labor & Employment Article (“LE”), Section 3-501 through 3-509 (“MWPCL”), that his employers had wrongfully failed to pay him the 40% bonus he was entitled to under the agreement, and that he was owed a bonus in excess of $400,000. Invoking Section 3-507.1 of the MWPCL, Falls asked the court to award him treble damages, plus attorney’s fees and costs.

1CI filed a motion to dismiss the complaint and/or to compel arbitration. Cape Fox filed a separate motion to dismiss the complaint based on its assertion that the circuit court did not have personal jurisdiction over it. The circuit court denied Cape Fox’s motion to dismiss insofar as the motion was based on the allegation of no personal jurisdiction, but ordered that Falls submit his claims against both 1CI and Cape Fox to arbitration. The judge further ordered that the complaint filed against both defendants be dismissed.

Falls appealed to the Court of Special Appeals, challenging the trial judge’s decision to order arbitration. The Court of Special Appeals affirmed the judgment of the circuit court.

LAW: Falls argued that the circuit court erred in compelling arbitration, where Falls asserted a statutory claim for wages under the Maryland Wage Payment and Collection Law. Specifically, Falls contended that under his employment agreement, he did not consent to arbitration of his right to a bonus under the MWPCL. Resolution of the issue presented required examination of two statutes, the Federal Arbitration Act (“FAA”), 9 U.S.C., §1 et. seq., and the Maryland Uniform Arbitration Act (“MUAA”), Maryland Code (1974, 2002 Repl. Volume”) §3-201 et seq. of the Courts and Judicial Proceedings Article.

The FAA applies to nearly all arbitration agreements, and, like all federal law, it preempts inconsistent state law. Walther v. Sovereign Bank, 386 Md. 412 (2005). In creating a substantive rule applicable in state as well as federal courts, Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements. Id. Section 2 of the FAA, which the United States Supreme Court has made clear state courts are also bound to recognize and enforce, provides that a written provision to settle by arbitration a controversy thereafter arising out of such contract or transaction shall be valid, irrevocable, and enforceable, save upon any grounds at law or in equity for the revocation of any contract. 9 U.S.C. §2; see also Southland Corp. v. Keating, 465 U.S. 1, 14-15, 104 S.Ct. 852, 861 (1984). In enforcing §2 of the FAA, however, state courts are not bound by the federal procedural provisions of the FAA, which are found in §§3 and 4 of the FAA, but may generally apply their own procedures. See Southland, 465 U.S. at 16 n. 10.

The Maryland Uniform Arbitration Act (“MUAA”), set forth in Md. Code (1974, 2002 Repl. Vol.) §§3-201 et seq. of the Courts and Judicial Proceedings Article, was purposefully meant to mirror the language of the FAA. In nearly identical language to that found in §2 of the FAA, the MUAA provides that a “written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy arising between the parties in the future is valid and enforceable, and is irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract.” Section 3-206(a) of the Courts and Judicial Proceedings Article. Arbitration has been described as the process whereby parties voluntarily agree to substitute a private tribunal for the public tribunal otherwise available to them. Cheek v. United Healthcare of the Mid-Atlantic, Inc., 378 Md. 139 (2003). Public policy strongly favors such agreements, as arbitration agreements are generally a less expensive and more expeditious means of settling litigation and relieving docket congestion. Id.

The MWPCL governs the manner in which Maryland employers pay their employees and provides remedies for an employer’s failure to pay an employee all wages owed to him. Barufaldi v. Ocean City, 196 Md. App. 1, 27 (2010). “Wage” is defined in the MWPCL as “all compensation that is due to an employee for employment” and includes bonuses, commissions, fringe benefits, and any other remuneration promised for service. Labor and Employment Article (“LE”) §3-501(c). If a court finds that the employer withheld wages from an employee in violation of the MWPCL and not as a result of a bona fide dispute, the court may award the employee an amount not exceeding three times the wage, along with reasonable attorneys’ fees and other costs. LE §3-507.1(b). The bonus mentioned in Falls’ complaint was a “wage” as defined in Labor and Employment Article §3-501(c).

It is well established that an agreement to arbitrate can include statutory claims. Gilmer v. Interstate-Johnson Lane, Corp., 500 U.S. 20, 26 (1991). Although all statutory claims may not be appropriate for arbitration, having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue. Id. Here, as stated, the parties agreed that any dispute, claim, or controversy arising out of or relating to the employment agreement would be settled by arbitration. Such broad arbitration clauses are capable of an expansive reach. American Recovery Corporation v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 93 (4th Cir. 1996).

Moreover, even aside from the fact that the arbitration language in this case was broad, precedent from federal courts, interpreting the FAA, have uniformly held that even ambiguous arbitration clauses must be interpreted in favor of arbitration. See, e.g. Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 24-25 (1995). The heavy presumption of arbitrability requires that when the scope of the arbitration clause is open to question, a court must decide the question in favor of arbitration. American Recovery Corporation v. Computerized Thermal Imaging, Inc., 96 F.3d at 93; see also Adkins v. Labor Ready, Inc., 303 F.3d 496 (4th Cir. 2002). Here, although Falls stressed that in his one count complaint he did not allege a breach of contract but instead alleged a violation of the MWPCL, that distinction was irrelevant, as that the arbitration agreement was broad enough to encompass statutory claims. See Gilmer, 500 U.S. at 25-26.

The broad language of Falls’ employment agreement with the defendants made it clear that it was required that Falls’ claim for a bonus be submitted to arbitration. After all, if the agreement had not existed, Falls clearly would have had no right to receive a bonus. In other words, Falls’ right to receive an incentive bonus arose directly out of the agreement, and Falls and 1CI agreed to submit to a single arbitrator “any dispute, claim, or controversy arising out of or relating to” the Agreement. Therefore, it was required that the “controversy” as to whether Falls was entitled to a bonus and the amount of that bonus be arbitrated in accordance with the agreement.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Falls additionally argued that the arbitration clause in the employment agreement was unconscionable because it called for the arbitration to take place in Seattle, Washington. An unconscionable bargain or contract has been defined as one characterized by “extreme unfairness,” which is made evident by one party’s lack of meaningful choice and contractual terms that unreasonably favor the other party. BLACK’S LAW DICTIONARY 1560 (8th ed. 2004). Substantive unconscionability involves those one-sided terms of a contract from which a party seeks relief. Procedural unconscionability, on the other hand, involves the process by which an agreement is reached and the form of an agreement (including the use therein of fine print and convoluted or unclear language), and resembles fraud or duress in contract formation. Carlson v. General Motors Corp., 883 F.2d 287, 296 (4th Cir. 1989).

Here, Falls claimed that the arbitration clause was substantively unconscionable because the place of the arbitration was to be Seattle, Washington, a location inconvenient to him. However, the situs of the arbitration was evidently chosen because Seattle was the nearest major city to Saxman, Alaska, where Cape Fox had its principal place of business. No proof was presented in the circuit court as to how expensive it would be for Falls to travel to Seattle, or to stay there for the arbitration hearing. Falls made no showing in the circuit court that the provision dealing with the place of arbitration was “unreasonably or grossly favorable” to 1CI. Walther, 386 Md. at 427. Thus, based on the record, there was nothing unconscionable in the agreement to arbitrate in Seattle.

PRACTICE TIPS: Frequently, an arbitration agreement will contain language that the arbitrator’s award is “final,” “binding,” and “non-appealable.” Such language does not, however, bar review and vacatur for the grounds recognized under the Federal Arbitration Act. Thus, where an arbitration contract provides that an award shall be binding on parties without any right of appeal, motion for vacatur or to modify is the only remedy.

Criminal Law

Obtaining property with a value over $500 

BOTTOM LINE: The evidence was sufficient to support defendant’s convictions for obtaining property with a value over $500, where defendant wrote two bad rent checks to obtain property, which was a leasehold interest.

CASE: Heffernan v. State, No. 1711, September Term, 2011 (filed Dec. 21, 2012) (Judges Wright, Graeff & EYLER, J. (retired, specially assigned)). RecordFax No. 1221-00, 16 pages.

FACTS: On November 1, 2009, Delores Heffernan and Constance Heckert executed a lease agreement for an apartment owned by Heckert. The term of the lease was one year with a rental of $11,400, payable in $950 monthly installments. The lease also required a security deposit in the amount of $950.

Ms. Heckert required payment of the first month’s rent and payment of the security deposit at the time she entered into the lease. Ms. Heckert testified that Heffernan gave Ms. Heckert two checks dated November 1, 2009, each in the amount of $950, one for the security deposit and one for the first month’s rent. Ms. Heckert deposited the checks right away and left to spend the winter in Florida.

Heckert further testified that, on November 21, Heckert discovered that Heffernan’s November 1 checks bounced due to insufficient funds. Two days later, Heffernan promised to pay Heckert the amount owed. Heffernan failed to pay any money owed. Heffernan promised that, on November 30, she would deposit money into Heckert’s account. On December 2, 2009, Heffernan called to say she had put in $1,000 after 6 o’clock, but in fact she had deposited $340. Heffernan claimed to have deposited an additional $950 that day, but in fact, the total amount Heffernan deposited into Heckert’s account between November 30-December 4, 2009 was $750.

Heffernan testified differently. According to her, while seeing the apartment for the first time, she informed Heckert that she could not immediately move in due to her financial situation. Heffernan testified that Heckert was willing to refrain from cashing the rent check until November 15 and the security deposit check until November 30.

Heffernan also explained that she deposited $750, not the $950 owed for the first month’s rent, because she and Heckert had an agreement that Heffernan would clean Heckert’s house for $200. Heffernan did not deposit the additional $950 owed for the security deposit because, according to her testimony, she was moving out of the apartment.

After Heffernan’s motion for judgment of acquittal was denied, the jury convicted her of two counts of obtaining property with a value over $500. The Court of Special Appeals affirmed.

LAW: The issue of legal sufficiency was not argued in support of Heffernan’s motion for judgment of acquittal, as required by Rule 4-324(a). She argued that the failure to do so constituted ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel’s performance was deficient and that it prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687(1984).

While there did not appear to be a trial strategy that would explain defense counsel’s failure to raise the issue of legal sufficiency, counsel refused to endorse the argument when raised by Heffernan in her post-verdict motion. Nevertheless, even though the record was sufficient to enable the Court to address the merits, the result would not have been different. Consequently, Heffernan could not satisfy the prejudice prong of Strickland.

CL §8-103 provide that a person may not obtain property or services by issuing a check if: “(1) the person knows that there are insufficient funds with the drawee to cover the check and other outstanding checks; (2) the person intends or believes when issuing the check that payment will be refused by the drawee on presentment; and (3) payment of the check is refused by the drawee on presentment.”

Pursuant to CL §8-101(h), the term “Property has the meaning stated in §7-101 of this article,” and pursuant to §8-101(j), “Service” includes: “(1) labor or professional service; (2) telecommunication, public utility, toll facility, or transportation services; (3) lodging, entertainment, or restaurant service; and (4) the use of computers, data processing, or other equipment.”

Under CL §7-101(1), “property” means “anything of value.” CL §7-101(2) then sets forth a list of items that are included in the word “property.”

“When analyzing a statute, “[o]ur predominant mission is to ascertain and implement the legislative intent, which is to be derived, if possible, from the language of the statute itself.” Downes v. Downes, 388 Md. 561, 571 (2005). “If the language is clear and unambiguous, our search for legislative intent ends and we apply the language as written and in a commonsense manner.” Id. at 571 (2005). “If there is any ambiguity, we may then seek to fathom the legislative intent by looking at legislative history and applying the most relevant of the various canons that courts have created.” Id.

In both 1997 and 1998, bills were introduced into the House to amend the definition of “property” in the bad check statute to expressly include a leasehold interest in real property. A similar bill was introduced in the Senate. The Attorney General’s office opined that the statute in question did not reach bad checks given to satisfy past due rent. However, the contents of the bill files reflect confusion on the part of some with respect to the distinction between use of a check to pay a pre-existing obligation as opposed to a current obligation, as compared to the payment of a rent obligation as opposed to a non-rent obligation.

“The doctrine of ejusdem generis applies when the following conditions exist: (1) the statute contains an enumeration by specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.” Tribbitt v. State, 403 Md. 638, 657 (2008). Ejusdem generis “is merely a rule of construction, and cannot be invoked to restrict the meaning of words within narrower limits than the statute intends, so as to subvert its obvious purpose.” Id.

In State v. Sinclair, 274 Md. 646 (1975), the defendant issued a check in payment of past due wages, and the check was dishonored because of insufficient funds. Id. at 647. The defendant was convicted of violating Art. 27, §144, which provided: “Every person who shall obtain…anything of value…of one hundred dollars or more, from another by means of a check…with intent at the time of giving such instrument to stop payment or otherwise cause the drawee to dishonor it shall have obtained the money, credit, goods, wares or anything of value with intent to defraud.” Id. at 650. Generally statutes requiring proof that the victim gave money or property in reliance on a check are not violated because there is no intent to defraud when the check is in payment of an antecedent debt. Thus, the defendant did not violate the statute because the check was given for an existing obligation. The defendant did not “obtain” money or any of the other items listed. Id. at 658.

The statute here contains language different from that in Sinclair. In Sinclair, the statute contained enumerated items followed by a general reference. In contrast, CL §7-101(1) provides that “Property means anything of value” and §7-101(2) provides that “Property includes” the categories that follow. The word “means” is typically employed “if the definition is intended to be exhaustive.” Hackley v. State, 389 Md. 387, 393 (2005). This is followed by the word “includes,” which is to be construed to illustrate possibilities — not as a way to limit or narrow statutes. Id. Thus, “property” is anything of value and the items listed in §7-101(2) are illustrative and not exhaustive. The statute is not limited to the examples expressly provided. Thus, the statute may include the obtention of a leasehold interest.

CL §8-103 requires a person to “obtain” the property in question. The statute does not extend to those who have previously failed to pay rent. If the bad check is used to pay for an existing debt, e.g., past due rent, then the provisions of the bad check statute would not apply.

Here, Heffernan wrote two bad checks to obtain property, which was a leasehold interest. Consequently, there was sufficient evidence to support Heffernan’s convictions.

COMMENTARY: Heffernan contended that the court abused its discretion in denying her motion to set aside the verdict. Ordinarily, in a case tried before a jury, the Court will not reach the merits of a challenge to the legal sufficiency of the evidence in the context of a post-trial motion when appellant fails to raise the issue on a motion for judgment of acquittal.

In Murphy v. State, 100 Md. App. 131 (1994), the defendant was convicted by the court after pleading not guilty on an agreed statement of facts. Post-conviction, the defendant filed a motion to set aside the verdict, which the court denied. The Court of Special Appeals held that the court erred in denying the motion because the agreed statement of facts was legally insufficient to support the conviction. Id. at 136. That case was non-jury, however; in that context the Court must review sufficiency of the evidence when requested to do so. Jones v. State, 77 Md. App. 193, 196 (1988).

Since here the issue of legal sufficiency was not raised by pre-verdict motion, the trial court did not abuse its discretion in denying the post-verdict motion, which was premised solely on the lack of legal sufficiency of the evidence. Nevertheless, the Court addressed the merits because there is confusion in the bench and bar with respect to the application of the statutes in question regarding the payment of rent.

Criminal Procedure


BOTTOM LINE: The suppression court erred in denying defendant’s motion to suppress statements made to police, where defendant was in custody during the post-polygraph interrogation, but was not given the Miranda advisements.

CASE: Aguilera-Tovar v. State, No. 1841, Sept. Term, 2010 (filed Dec. 20, 2012) (Judges KRAUSER, Kehoe & Sharer (retired, specially assigned)). RecordFax No. 12-1220-00, 25 pages.

FACTS: In November, 2009, Fidel Z. contacted the Family Crimes Division to report that his seven-year-old son, Angel Z., had been fondled by Guillermo Aguilera-Tovar one week earlier. Following that disclosure, Detective Chad Williams arranged for Angel to be interviewed by a social worker. Angel told the social worker that Aguilera-Tovar had made him fondle Aguilera-Tovar’s “genital area,” and then he had attempted to penetrate Angel’s anus, with his penis.

Accompanied by Detective Karen Carvajal, who was fluent in Spanish, Detective Williams drove to Aguilera-Tovar’s home. Aguilera-Tovar agreed to talk to the detectives in their car. Detective Carvajal advised Aguilera-Tovar that he was not under arrest and asked him if he knew why they were there. Aguilera-Tovar replied that he did. At the conclusion of the interview, Aguilera-Tovar agreed to take a polygraph examination the following morning.

The next morning, Detective Miguel Marquez conducted the polygraph examination of Aguilera-Tovar in Spanish. The examination lasted about an hour. At its inception, Detective Marquez explained to Aguilera-Tovar that he was there voluntarily and that he could leave at any time. When he asked Aguilera-Tovar whether he knew why he was being asked to take a polygraph test, Aguilera-Tovar stated that it was because of allegations that he had molested Angel Z. At no time was Aguilera-Tovar advised of his Miranda rights.

When the polygraph examination ended, Detective Marquez advised Carvajal and Williams that the results of the polygraph were indicative of deception.

After the polygraph, Detective Carvajal conducted an interrogation of Aguilera-Tovar. At no time before or during the interrogation was Aguilera-Tovar advised of his Miranda rights. Detective Carvajal informed Aguilera-Tovar that he had not passed the test. Failing to obtain an inculpatory response from Aguilera-Tovar, Detective Carvajal continued to confront Aguilera-Tovar with his purported failure to pass the polygraph examination, repeatedly accused him of lying, and then questioned him without letup in an aggressive, persistent, and accusatory manner.

Aguilera-Tovar continued to deny that any inappropriate touching had occurred, but Detective Carvajal continued to press him with questions.

As the interview progressed, Aguilera-Tovar’s story began to change. Although he initially denied that anything had happened between Angel and him, he eventually admitted that he had been hugging and tickling Angel, but that there had been “nothing more.” But, later, Aguilera-Tovar conceded that, as the two played, his penis had hardened and that Angel had grabbed it on his own initiative. He insisted that, when Angel touched him, he told the child to “go upstairs” and that “nothing bad” had happened. At that point, Detective Carvajal told Aguilera-Tovar that she would tell Angel what he had said.

Detective Carvajal then conferred with Detective Williams, who asked Carvajal to pose “follow-up questions” to Aguilera-Tovar. From those questions, Detective Carvajal learned that Aguilera-Tovar was illegally in the United States.

After informing Detective Williams of Aguilera-Tovar’s answers, Detective Carvajal, along with the social worker assigned to the case, confronted Aguilera-Tovar with Angel’s accusation that he had “touched [Angel’s] butt with” his penis. Aguilera-Tovar denied the accusation. At that time, Detective Williams placed him under arrest.

Aguilera-Tovar moved to suppress the statements he made. The suppression court held that Aguilera-Tovar was not in custody at the time he made the post-polygraph statements; that those statements were voluntary; and that his statements passed were admissible at trial.

The Court of Special Appeals reversed.

LAW: The prosecution may not introduce, in its case-in-chief at the trial of a defendant, a statement made by that defendant during a custodial interrogation unless, during that interrogation, the police first advise the defendant that “he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). To successfully claim the right to such advisements, a defendant must show that, at the time he gave his statement to police, he was in custody and was being subjected to an interrogation. State v. Thomas, 202 Md. App. 545, 565 (2011).

It was undisputed that Aguilera-Tovar was subjected to an interrogation at the time he made the statements at issue.

The test for determining whether an individual is in custody is “whether a reasonable person would understand that his freedom of action is restricted to a degree associated with formal arrest.” Thomas, 202 Md. App. at 567.

Among the many factors that are relevant to that inquiry are: “when and where [the interrogation] occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness.” Owens v. State, 399 Md. 388, 429 (2007).

When a suspect is made aware of the fact that he is a suspect in a case and is not merely being questioned as a witness, that weighs in favor of a finding of custody. See Buck v. State, 181 Md. App. 585, 624 (2008).

The day before the polygraph, when Detective Carvajal asked Aguilera-Tovar, as they both sat in a police car, if he was aware of why the detectives were speaking with him, Aguilera-Tovar acknowledged that he knew he was suspected of having fondled Angel. Furthermore, just before the polygraph examination, Aguilera-Tovar confided to Detective Marquez that he agreed to submit to that test because of the suspicion that he had molested Angel. Finally, during the post-polygraph interrogation by Detective Carvajal, it is clear that Aguilera-Tovar knew that child-sex-abuse allegations had been made against him and that he was suspected of that crime.

Detective Carvajal began the post-polygraph interview by asserting that Aguilera-Tovar’s purported failure of his polygraph test showed that “something obviously happened” between him and Angel. While Aguilera-Tovar continued to deny that he had had any sexual contact with the victim, Detective Carvajal pressed on, insisting that Aguilera-Tovar was not telling the “whole truth” and that the test indicated that he was “lying.”

When accusations as to what the test showed did not produce the kind of statements the detective hoped for, she turned to threats, telling Aguilera-Tovar that she would inform his wife of the polygraph.

In State v. Godfrey, 131 N.J. Super. 168, 172 (1974), Godfrey, a suspect in a barroom murder, learned that the police wanted him to come to the police station, and he voluntarily did so. Id. When he arrived there, a detective persuaded him to submit to a polygraph test.

At the conclusion of the test, the detective administering the polygraph test informed Godfrey “that the test results indicated that he had lied during the administration of the polygraph test; that he was present at the time of the shooting[;] and that he was the one who did the shooting.” Id. at 173. Godfrey denied that he was present at the crime scene or that he had killed the victim, but the detective “continued to confront” him with the test results, and he “finally confessed to the shooting.” Id. Godfrey was then administered Miranda advisements, re-interrogated and gave a written confession. Id. The trial court granted Godfrey’s motion to suppress his confession.

The New Jersey intermediate appellate court affirmed, holding that Godfrey was in custody when he made his statement to the polygraph operator. It rejected the State’s contention that Godfrey “voluntarily appeared at the police station, was not placed under arrest, was free to leave before taking the polygraph test and free to leave after the conclusion of it.” Id. at 175. “It cannot be seriously argued that after the police had administered a polygraph test to defendant, and as a result thereof were in possession of information indicating to them that (1) defendant had lied to them, (2) defendant was present at the shooting and (3) defendant was actually the man who shot [the victim], they would have permitted him to walk…out of the police station. Statements by the detectives to that effect are incredible and not worthy of belief.” Id. at 177.

Like Godfrey, Aguilera-Tovar was suspected of having committed a specific offense and was, as a consequence, asked to take a polygraph test to be administered at a police station. At the conclusion of that examination, he was told that he had lied and had flunked the test. When Aguilera-Tovar denied the accusations, the interrogating detective persisted in confronting him with the test results, and Aguilera-Tovar ultimately gave an incriminating statement. And finally, as in Godfrey’s case, the State contended that Aguilera-Tovar voluntarily went to the police station, was not placed under arrest, and was free to leave both before and after taking the polygraph test, but statements “to that effect are incredible and not worthy of belief.” Id. at 177.

Thus, Aguilera-Tovar was in custody during the post-polygraph interrogation and he should have been given the Miranda advisements. Because Aguilera-Tovar was never given those advisements, the suppression court erred in denying his motion to suppress the statements.

COMMENTARY: In People v. Algien, 501 P.2d 468 (Colo. 1972), Algien, a security guard of an apartment complex under construction, which was completely destroyed by fire, was given a polugraph test focusing on his potential involvement in that fire. Id. at 469. When the officer who administered the test confronted Algien with the results, which “indicated that [he] was untruthful,” he confessed to burning down the complex.

The Colorado Supreme Court affirmed the trial court’s suppression of the statement on the grounds that, once Algien was told by the officer that he was not telling the truth, he “was significantly deprived of his freedom.” Id. at 471.

The Supreme Court of Colorado later reviewed a trial court’s decision which had granted a motion to suppress inculpatory statements, made by a defendant after being confronted with a failed polygraph test and without benefit of Miranda advisements, based upon an application of Algien. People v. Pittman, 284 P.3d 59 (Colo. 2012). Although the Pittman Court reversed the lower court’s grant of the suppression motion, it reached that conclusion because the lower court had “relied upon only one circumstance, not the totality of the circumstances, in determining that Pittman was in custody after the polygraph test.” Id. at 61-62. The Pittman Court reaffirmed its previous holding in Algien, cautioning, however, that that decision had “analyzed multiple factors in determining that the suspect in that case was in custody.” Pittman, 284 P.3d at 62.

In the instant case, the court also considered the totality of the circumstances and not merely the one circumstance of the coercive use of the failed polygraph test results.

PRACTICE TIPS: Addressing the admissibility of polygraph results in criminal trials, where the defendant was confronted with the “failed” test results, the Court of Special Appeals has held that, where the defendant conceded that the polygraph test did not “in any manner” influence him to make inculpatory statements, the trial court correctly refused defendant’s request to admit into evidence the fact that polygraph tests had been administered to him. See Mitchell v. State, 51 Md. App. 347 (1982); Johnson v. State, 31 Md. App. 303 (1976).

Criminal Procedure

Double jeopardy 

BOTTOM LINE: In defendant’s trial for murder, defense counsel’s assertion during opening statement that defendant had offered to take lie detector test was so prejudicial to State that declaration of mistrial was manifestly necessary, and, therefore, double jeopardy did not bar defendant’s retrial on same charges.

CASE: Simmons v. State, No. 1893, Sept. Term, 2010 (filed Dec. 19, 2012) (Judges Zarnoch, GRAEFF & Raker (retired, specially assigned)). RecordFax No. 12-1219-00, 18 pages.

FACTS: This appeal involved charges against Stephen Simmons arising from the July 1, 2009, shooting of Christopher Wright outside his apartment. Wright’s death followed an altercation between Simmons and Wright’s roommate, Razaq Sarumi. Sarumi spit outside a window overlooking the front entrance to the apartment building, causing Simmons to become angry. Simmons and Sarumi argued, and Simmons went into an apartment on the first floor, retrieved a gun, and fired one shot, which grazed Sarumi’s leg. At that time, Wright was standing in front of a nearby apartment.

Sarumi ran toward the road. He heard shots in the building, and turned and saw Simmons exiting the building. Simmons fired a shot from the sidewalk. After that shot, Sarumi ran across the street and saw Simmons and Simmons’ girlfriend running away. Sarumi then called 911. Officer Ricky Serrano of the Prince George’s County Police Department responded to the apartment building. When he arrived, he saw drops of blood on the steps leading to the door of Apartment 101. On the steps leading to the second floor, he found a black male face down, with a gunshot wound to his back. The man was not conscious or responsive.

On July 3, 2009, Sarumi viewed a photo array. He identified Simmons as the person who shot him and who had the gun prior to the shooting. Simmons was arrested and charged with first-degree murder and related offenses. After his arrest, Simmons made certain statements to the police. Prior to his trial in the circuit court, Simmons moved to suppress the statement he had given to the police after he was arrested. The circuit court denied the motion.

During his opening statement at trial, Simmons’ attorney asserted that, following his arrest, Simmons was mistreated by the police and tricked into making an involuntary statement. Defense counsel also stated that Simmons had volunteered to take a lie detector test. The prosecutor objected, and the court sustained the objection.

The State then began the presentation of its case against Simmons. The next day, the court recessed early to consider the admissibility of the testimony of the State’s firearms expert, which the court ultimately determined was not admissible. The following day, the prosecutor requested that the court declare a mistrial based on defense counsel’s opening statement that Simmons had offered to take a lie detector test.

In making the motion, the prosecutor asserted that he was aware that, if the State’s motion for a mistrial was granted, Simmons would argue that retrial was barred based on double jeopardy. He argued that defense counsel’s comment left the State in an untenable position because it was prohibited from introducing any evidence regarding polygraph examinations. The prosecutor added that despite the court’s immediate curative instruction, the statement regarding the lie detector test was so powerful that manifest necessity required the court to grant a mistrial.

Defense counsel responded by asserting that any misstatement so prejudicial as to justify a mistrial under the manifest necessity standard would be so immediately obvious as to engender an immediate request for a mistrial. Defense counsel added that the fact that the request had not been made until two days later suggested that the State’s motion was motivated more by the trial court’s exclusion of the expert testimony of the State’s firearms examiner than by any fear that the jury was prejudiced by defense counsel’s “fleeting” reference to Simmons’ offer to take a lie detector test, which was promptly addressed by the court through a curative instruction. The circuit court ultimately granted the State’s motion for a mistrial.

On August 26, 2010, Simmons filed a motion to dismiss the charges against him due to violation of double jeopardy. The circuit court denied the motion, and Simmons appealed to the Court of Special Appeals, which affirmed.

LAW: Simmons argued that the trial court erred in denying his motion dismiss. Noting that double jeopardy principles prohibit a retrial if a court grants a mistrial over the defendant’s objection and there is no manifest necessity for a mistrial, Simmons contended that the trial court here abused its discretion in finding manifest necessity to support a mistrial.

Generally, the State is afforded only a single opportunity to require a defendant to stand trial. Arizona v. Washington, 434 U.S. 497, 505 (1978). The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects individuals from being tried for the same offense more than once. Taylor v. State, 381 Md. 602, 610 (2004) (quoting U.S. CONST. amend. V). Where, as in the instant case, the jury has been empaneled and sworn, the protection of the Double Jeopardy Clause has attached. Hubbard v. State, 395 Md. 73, 90 (2006). Once jeopardy attaches, the State is prohibited from retrying the accused if the trial court declares a mistrial without the defendant’s consent, unless there is a showing of “manifest necessity” to declare the mistrial. Taylor, 381 Md. at 611 (quoting State v. Woodson, 338 Md. 322, 329 (1995)).

Whether manifest necessity to declare a mistrial and avoid double jeopardy exists is based upon the unique facts and circumstances of each case. Hubbard, 395 Md. at 90. The State must demonstrate that there is no reasonable alternative to the declaration of a mistrial. Id. at 91. In Washington, the United States Supreme Court considered a factually analogous case, where the trial court granted the State’s request for a mistrial after defense counsel made improper remarks during opening statement. Washington, 434 U.S. at 498-99. Washington was being tried for a second time because the prosecutor had withheld exculpatory evidence from the defense at his first trial. Id. at 498. During opening statement, defense counsel improperly disclosed that the prosecution had purposely withheld evidence in the previous trial and a new trial was granted because of the prosecutor’s misconduct. Id. at 499.

In upholding the trial court’s determination that manifest necessity existed for a mistrial, the Supreme Court observed that an improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Id. at 512-13. The Court noted that because even a curative instruction by the trial judge will not necessarily remove the risk of bias that may be created by improper argument, the trial judge must have the power to declare a mistrial in appropriate cases. Id. at 512-13. The Court further stated that in circumstances in which a jury may be tainted by bias, the public’s interest in fair trials designed to end in just judgments must prevail over the defendant’s valued right to have his trial concluded before the first jury impaneled. Id. at 516.

Here, defense counsel’s comment in opening statement, that Simmons had offered to take a lie detector test to prove his innocence, was clearly improper. State v. Hawkins, 326 Md. 270, 275 (1992). The circuit court found that defense counsel’s statement was an “absolute transgression” of the rule precluding references concerning polygraph examinations for the consideration of the jury. Thus, the question on appeal was whether defense counsel’s disclosure was so prejudicial that the trial court properly exercised its discretion in determining that manifest necessity existed to declare a mistrial.

When reference is made to a witness’s willingness to take a lie detector test, several factors should be considered in determining whether the evidence was so prejudicial that it denied a party a fair trial. Kosmas v. State, 316 Md. 587, 594 (1989). These factors include: whether the reference to a lie detector was repeated or whether it was a single, isolated statement; whether the reference was solicited by counsel, or was an inadvertent and unresponsive statement; whether the witness making the reference was the principal witness upon whom the entire prosecution depends; whether credibility is a crucial issue; whether a great deal of other evidence existed; and, whether an inference as to the result of the test can be drawn.

Id. No single factor is determinative in any case; the factors themselves merely help to evaluate whether the defendant was prejudiced. Guesfeird v. State, 300 Md. 653, 659 (1984)).

Applying these factors to the present case, the statement by defense counsel was, as the circuit court found, so prejudicial that a mistrial was warranted. Although defense counsel’s disclosure of Simmons’ offer to take a lie detector test was an isolated statement, the prejudicial comment was not unexpectedly presented by a witness but instead was made in the powerful setting of opening statement, where defense counsel had the opportunity to introduce into the minds of the jury his theory of the case. Because Simmons’ willingness to take a lie detector exam was offered by defense counsel as proof that his protestations of innocence to the police were genuine, i.e., that he was not the shooter, it impacted the central issue at trial. Moreover, there was no way for the State to explain or otherwise mitigate defense counsel’s disclosure.

In sum, there was substantial evidence to support the circuit court’s conclusion that, given that the case against Simmons was a close case that relied on the credibility of witnesses, there was no way to erase the potential infection of the jurors’ minds caused by defense counsel’s improper disclosure. Thus, the circuit court did not abuse its discretion in determining that manifest necessity existed for the declaration of a mistrial. See United States v. Gantley, 172 F.3d 422, 427-28 (6th Cir. 1999).

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Because there was manifest necessity to declare a mistrial, double jeopardy principles did not prevent a retrial. As such, the circuit court did not err in denying Simmons’ motion to dismiss the charges against him.

PRACTICE TIPS: Generally, the right to seek appellate review of a trial court’s ruling ordinarily must await the entry of a final judgment. However, under the collateral order doctrine, a defendant may take an immediate appeal from the denial of a motion to dismiss a criminal charge on double jeopardy grounds.

Criminal Procedure

Right to counsel 

BOTTOM LINE: Defendant’s pro se letter to trial court expressing desire for new counsel was insufficient to trigger Maryland rule requiring court to conduct an inquiry into defendant’s reasons for wanting to discharge attorney of record, because defendant failed to raise issue of misrepresentation by court-appointed counsel at any of his subsequent appearances before trial court and thereby waived any request to discharge his attorney of record and obtain new counsel.

CASE: Williams v. State, No. 644, Sept. Term 2011 (filed Dec. 19, 2012) (Judges EYLER, D., Wright & Sharer (retired, specially assigned)). RecordFax No. 12-1219-01, 21 pages.

FACTS: In the late evening of September 15, 2008, Harford County Sheriff’s Office Deputies Grant Krulock and Robert Schultz, who were on uniformed bike patrol, observed Melvin Williams walking down a street in a high-crime area with his left hand in his shorts. The deputies approached Williams, who still had his left hand in his pants. Deputy Krulock asked Williams to stop, engaged him in conversation, and asked him to remove his hand from his pants.

Williams became agitated and argumentative. When he finally removed his hand from his pants, he turned away from the deputies. As Williams brought his hand back down to his side, Deputy Krulock saw a small clear plastic bag fall from Williams’ hand to the ground. Deputy Krulock ordered Williams to put his hands behind his back. At first, Williams complied, but when the deputy touched his arm, he ran.

Deputy Krulock yelled for Williams to stop, but Williams kept running. Deputy Schultz deployed his taser gun at Williams but did not hit him. The deputies chased Williams back out to the street, where a bystander tackled him and held him down. Williams continued to struggle to get away, even though Deputy Krulock repeatedly ordered him to “get down on the ground,” Deputy Krulock warned Williams that if he did not comply with the deputies’ directions, he would be tased. Nevertheless, Williams continued to try to escape the citizen who was holding him. Deputy Krulock then tased Williams and placed him in handcuffs.

In a search incident to arrest, Deputy Krulock recovered from Williams’ wallet a plastic bag containing a small yellowish piece of rock, later determined to be cocaine. Deputy Krulock contacted Deputy Chad Layton to transport Williams to the station house in a patrol vehicle. Deputy Layton searched the back seat of his vehicle before Williams was seated there. His hands were still cuffed behind his back. The drive to the station house took two minutes. Deputies Krulock and Schultz returned to the station house on their bikes.

When Deputies Krulock and Schultz arrived at the station house, Williams was still in the back seat of Deputy Layton’s patrol car. At that point, Deputy Layton transferred him back into Deputy Krulock’s custody. Deputy Layton then searched the back seat of his patrol car and found a plastic bag containing several individually bagged small white rocks and a green plant-like substance. The items later were confirmed to be cocaine and marijuana, respectively. There was fecal material on the outside of the recovered package. Deputy Layton gave the package he had found in the back seat of his patrol car to Deputy Krulock, who itemized the evidence, submitted it for analysis, and prepared a report of the arrest. Deputy Krulock then transported Williams to the Harford County Detention Center.

Williams was subsequently charged with possession of cocaine and resisting arrest. At all times in his case, Williams was represented by attorney John Janowich of the Office of the Public Defender. On January 27, 2010, Williams wrote a letter to the court, requesting new representation from the Public Defender’s Office, asserting that Janowich had no interest in helping him with his case. The circuit court did not address the contents of the letter at any time, and neither Williams nor Janowich raised the issue at any court proceeding. At the conclusion of trial, the jury found Williams guilty of possession of cocaine and resisting arrest.

Williams appealed to the Court of Special Appeals, which.

LAW: Williams argued that the circuit court violated Maryland Rule 4-215(e) by failing to address his pro se written request to obtain new representation from the Public Defender’s Office. The right of a criminal defendant to be represented by competent counsel is guaranteed by the Sixth Amendment to the Constitution. The purpose of Rule 4-215 is to protect that right. Parren v. State, 309 Md. 260, 281-82 (1987).

With respect to discharge of counsel, Rule 4-215 provides that if a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request. If the court finds that there is a meritorious reason for the defendant’s request, the court shall permit the discharge of counsel, continue the action if necessary, and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel. The requirements of Rule 4-215 are mandatory and require strict compliance. Pinkney v. State, 427 Md. 77, 87 (2012).

However, the requirements of Rule 4-215(e) are triggered only when a defendant or another person present before the court informs the court of the defendant’s “present intent to seek a different legal advisor.” State v. Davis, 415 Md. 22, 33 (2010). Thus, even where a defendant submits written requests for appointment of new counsel, if neither he nor his counsel ever brings the issue to the court’s attention on the record in open court, the defendant is deemed to have waived his right to have the court address his request. See State v. Northam, 421 Md. 195 (2011). Rule 4-215(e) is not triggered by a defendant’s pro se motions, as criminal defendants often will experience fleeting desires for new counsel. Id.

In the present case, Williams’ sole expression of dissatisfaction with his attorney was his January 27, 2010 letter. At most, that letter reflected his desire to obtain new legal counsel as of January 27, 2010; it did not necessarily reflect his view about the quality of representation provided by his attorney on any of the subsequent dates that he appeared before the court. Absent any reaffirmation by Williams of a present intention to discharge Janowich and obtain new counsel, it was reasonable for the trial court to infer that any issues between Williams and his attorney had been resolved, and that Williams was assenting to his continued representation by Janowich. See id. at 208.

After Williams’ letter of January 27, 2010 was received by the clerk of court, he appeared, represented by Janowich, at four pretrial hearings and at his two-day trial. Janowich also represented Williams at his sentencing hearing. Notwithstanding the many opportunities Williams had to bring to the court’s attention any desire he might have had to discharge Janowich, he did not do so. The record was devoid of any showing of dissatisfaction by Williams with Janowich beyond January 27, 2010. See Northam, 421 Md. at 208 n.4.

Presumably, if Williams had expressed to Janowich any ongoing desire to discharge him as counsel, at any time beyond January 27, 2010, Janowich would have acted in accordance with the obligations imposed by the Rules of Professional Conduct and brought Williams’ desire to the attention of the court. Northam, 421 Md. at 207-08. In the absence of any such action by counsel, the court reasonably could have inferred that Williams had not told Janowich that he continued to want to discharge him as counsel. See Garner v. State, 414 Md. 372, 390 (2010). Had Williams, during any of the times he appeared in open court, stated that he wished to discharge Janowich as counsel, the court would have been required by Rule 4-215(e) to further inquire into his reasons. Pinkney v. State, 427 Md. 77, 87-99 (2012). The trial court did not address Williams’ January 27, 2010 request to discharge counsel because Williams did not take any action in open court to bring the representation issue to the court’s attention either directly or by reminding the court of his January 27, 2010 letter. See Northam, 415 Md. at 206.

As such, the circuit court’s receipt of Williams’ original pro se letter of January 27, 2010, was insufficient to trigger an obligation on its part to conduct an inquiry into Williams’ reasons for wanting to discharge his attorney, pursuant to Rule 4-215(e). See Northam, 421 Md. at 207. Williams’ failure to raise the issue at any of his subsequent appearances before the trial court constituted a waiver of his January 27, 2010 request to discharge Janowich and obtain new counsel. See id.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Williams additionally argued that the evidence was legally insufficient to convict him of resisting arrest. Under CL §9-408(b)(1), to convict a defendant of resisting arrest, the State must prove the following elements beyond a reasonable doubt: (1) that a law enforcement officer arrested or attempted to arrest the defendant; (2) that the officer had probable cause to believe that the defendant had committed a crime, i.e., that the arrest was lawful; and (3) that the defendant refused to submit to the arrest and resisted the arrest by force. Rich v. State, 205 Md. App. 227, 239 (2012).

The degree of “force” that is required to find a defendant guilty of resisting arrest is the same as the “offensive physical contact” that is required to find a defendant guilty of the battery variety of second degree assault. Id. at 249. The plain language of the statute does not specify that a defendant may be found guilty of resisting arrest only if he employs force against the police officer who is attempting to arrest him. CL §9-408(b)(1); see also Cooper v. State, 128 Md. App. 257, 265-66 (1999). All that must be shown is that a legal arrest was resisted by force. CL §9-408(b)(1). The necessary force may be employed against someone other than the police officer who is attempting to effectuate the arrest.

In the present case, Deputy Krulock testified that Williams persisted in struggling to escape from the bystander who had restrained him until the police arrived, and then continued to resist despite Deputy Krulock’s repeated orders and warnings. From this evidence, reasonable jurors could find beyond a reasonable doubt that Deputy Krulock was attempting to arrest Williams and had probable cause to arrest him; that Williams knew that Deputy Krulock was a law enforcement officer and that he was attempting to arrest him; that Williams refused to submit to the arrest; and that Williams resisted Deputy Krulock’s attempt to arrest him by using force against the citizen who had tackled him, thus necessitating the use of a taser by the deputy to effectuate the arrest. These findings satisfied the elements of the crime of resisting arrest.

PRACTICE TIPS: A trial court has no obligation to inform a criminal defendant who proffers a non-meritorious request to discharge counsel of the defendant’s right to proceed pro se, unless the defendant makes a statement that reasonably indicates that he desires to invoke the right to self-representation.

Criminal Procedure

Vindictive prosecution 

BOTTOM LINE: Circuit court properly denied defendant hearing on defendant’s claim of vindictive prosecution, where defendant’s charge was based solely on fact that charges against him were refiled after he filed a civil suit against police officers and defendant offered no actual evidence of bad faith.

CASE: Robinson v. State, No. 2332, Sept. Term, 2011 (filed Dec. 21, 2012) (Judges Krauser, Woodward & GRAEFF). RecordFax No. 12-1221-04, 33 pages.

FACTS: On April 22, 2010, Michael Robinson visited a night club in Prince George’s County, Maryland, to celebrate the birthday of his friend, Patrick Young. He arrived between 11:00 p.m. and 12:00 a.m. Approximately half an hour later, he noticed security guards removing Young and one of his friends, Stanley Fields, from the club. Robinson followed Young and Fields outside, and he saw them engage in a verbal dispute with several other men in the parking lot. After one of the men threw a punch, the dispute escalated into a fistfight.

Police Deputy Alvin Lide was working as a security guard at the club that evening. Deputy Lide began his career as a police officer in 1996, and he had worked part-time at the club since approximately 1997. After the fight broke out, he and another police officer, Deputy Ecolia Moore, who also provided security at the club, closed down the club and attempted to break up the fight. As Deputy Lide was attempting to break up the fight in the parking lot, Robinson, while backing up in his car, hit Deputy Lide with his vehicle. As Robinson was backing up, Deputy Lide and Deputy Moore both fired their guns in the direction of Robinson’s car. Robinson was shot seven times in the legs and torso, and he suffered permanent nerve damage from one of the wounds to his legs.

The State initially filed criminal charges against Robinson as a result of the incident, but these charges were nol prossed on July 19, 2010. On August 12, 2010, the State again charged Robinson with second degree assault, attempted second degree assault of a law enforcement officer, and reckless endangerment. Robinson’s first trial, which ended in a mistrial, began on July 11, 2011. On October 13, 2011, his second trial began.

At the start of the second trial, Robinson filed a motion to dismiss for retaliatory prosecution, and he requested a hearing, arguing that that the charges against him initially had been nol prosed and that he was recharged after filing a notice of intent to file suit against the police. The court denied the motion to dismiss without an evidentiary hearing. At the close of the prosecution’s evidence, Robinson moved for judgment of acquittal, which the court denied. Robinson then presented his defense. After the defense rested, Robinson renewed his motion for judgment of acquittal. The court again denied his motion, and the jury found Robinson guilty of second degree assault.

Robinson filed a Motion for New Trial And/Or Motion to Dismiss And/Or Motion for Appropriate Relief, which the court denied. Robinson appealed his conviction to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Robinson first argued that the circuit court erred in failing to grant him a hearing on his motion to dismiss due to “vindictive, selective, and/or retaliatory prosecution.” He contended that the charges against him were improper because they were motivated by his act of filing a civil suit against Prince George’s County for acts of brutality (shooting him as he was backing away).

The United States Supreme Court has made clear that it is improper for the State to retaliate against a person for exercising a legal right. Bordenkircher, Penitentiary Superintendent v. Hayes, 434 U.S. 357, 363, r’hng denied, 435 U.S. 918 (1978). To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and is patently unconstitutional. Id. A selective prosecution or vindictive prosecution claim is not a defense on the merits to the criminal charge itself but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. United States v. Armstrong, 517 U.S. 456, 463 (1996).

In State v. Adams, the Court of Appeals addressed a claim of prosecutorial vindictiveness when the State filed three separate criminal charges against Adams after he successfully moved to dismiss an earlier charge involving a single count. State v. Adams, 293 Md. 665, 666 (1982). The Court rejected his claim, stating that Adams had presented no evidence of actual vindictiveness supporting his allegation that the prosecutor retaliated against him based on his exercise of his right to challenge the legality of the charging document. Id. at 667. The only evidence Adams pointed to was that, after he had successfully moved to dismiss the charges against him based on a defective charging document, a new charging document was filed that increased the charges against him. Id. at 667. The Court noted that a prosecutor’s charging decision is presumptively lawful, and a prosecutor should have the freedom, at least in the pretrial stage, to exercise the broad discretion of his office to ascertain society’s continuing interest in prosecution. Id. at 672.

In United States v. Miller, the United States Court of Appeals for the Tenth Circuit was presented, as in the present case, with a claim of vindictive prosecution based on the timing of the charges. United States v. Miller, 948 F.2d 631, 632-33 (10th Cir. 1991), cert. denied, 503 U.S. 912 (1992). In that case, Miller’s criminal prosecution for filing false income tax refunds followed his filing of a civil lawsuit against the Treasury Department, his former employer, and the court addressed the issue whether the timing alone created a presumption of vindictiveness on the part of the prosecution. In rejecting that claim, the court noted that, generally, there is no such presumption in the context of pretrial prosecutorial decisions. Id. at 633. Indeed, the court recognized that, as a policy matter, a presumption of vindictiveness based on timing alone would be unsound, as it could easily be abused. Id. at 634. As such, the court upheld the trial court’s ruling denying Miller’s motion to dismiss for vindictive prosecution. Id.

Here, the question was whether the circuit court erred in denying the motion to dismiss without an evidentiary hearing on Robinson’s claim of vindictive prosecution. In McNeil v. State, the Court of Special Appeals addressed a similar issue. In that case, the question was whether McNeil was entitled to a hearing on his claim for prosecutorial misconduct due to the State’s alleged failure to act in good faith in pursuing an interlocutory appeal of the circuit court’s ruling granting his motion to suppress his confession. McNeil v. State, 112 Md. App. 434, 462 (1996). The Court stated that a defendant is entitled to a hearing, if timely requested, to prove or dispel his claim of misconduct if he proffers verifiable facts amounting to “some evidence tending to show the existence of” the State’s bad faith; however, a mere general allegation of prosecutorial misconduct is not sufficient to warrant the granting of an evidentiary hearing. Id. at 465. Courts in other jurisdictions similarly have held that a conclusory allegation of improper motive on the part of the State is insufficient to entitle a defendant to an evidentiary hearing. See United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003).

The McNeil Court held that McNeil was entitled to a hearing where at least some of the allegations were readily verifiable by review of the court file. McNeil v. State, 112 Md. App. at 466. The verifiable facts that supported his position that the State had taken its appeal in bad faith in order to gather evidence against him and delay his trial included: (1) the State never paid the filing fee for the appeal; (2) only days after filing the appeal, the State had issued trial subpoenas; (3) when the State took its appeal based on the motion to suppress, it certified that the suppressed evidence was substantial proof of a material fact, but it later decided to proceed to trial without the evidence; and (4) the State did not notify McNeil of its intent to dismiss the appeal, even though the State obviously intended to go forward with the trial, as it had witnesses ready. Id. Based on these specific, verifiable factual allegations, it was found that McNeil had provided some evidence tending to show the existence of prosecutorial misconduct, and the case was remanded for a hearing. Id. at 464-67.

However, Robinson did not meet this standard. He provided the circuit court with no evidence of actual vindictiveness, nor did he provide verifiable facts supporting his claim of vindictive prosecution. Rather, his allegation was based solely on the fact that charges against him were refiled after he filed a civil suit against the police officers. A claim of vindictive prosecution based solely on the timing of the filing of the charges, without some evidence of actual bad faith, does not rise beyond the level of mere conjecture. Thus, Robinson’s assertion was insufficient to entitle him to a hearing, and the circuit court properly denied his motion to dismiss, without a hearing.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Robinson additionally asserted that because he was charged with the statutory short form indictment, he was entitled to a bill of particulars, and the State’s failure to provide it required the reversal of his conviction and dismissal of the charges. A Statement of Charges was filed against Robinson on August 12, 2010. With respect to the charge of second degree assault, the Statement of Charges set forth the location and date where the alleged second degree assault occurred. The Application for Statement of Charges detailed the events supporting the charges. Robinson filed his Demand for Bill of Particulars, pursuant to Maryland Rule 4-241(a), on May 9, 2011. The State responded by stating that the indictment was sufficient on its face to apprise Robinson of the nature of charges against him, that the information requested was provided through discovery, that Rule 4-241 did not require the State to particularize all the evidence it might offer, and that because the State had already provided the applicable information, no further particulars were warranted.

The purpose of a bill of particulars is to guard against the taking of an accused by surprise by limiting the scope of the proof. McMorris v. State, 277 Md. 62, 70 n.4 (1976). While Rule 4-241 states that a defendant is entitled to file a demand in circuit court for a bill of particulars, it does not set forth sanctions for the State’s refusal to comply with the defendant’s request. As such, whether to compel a response to the defendant’s request is left to the discretion of the trial judge. See Patrick v. State, 90 Md. App. 475, 503 n.20. In addition to Rule 4-241(b), Md. Code (2010 Supp.) §3-206(b) of the Criminal Law Article (“CL”) specifically provides that, where the general statutory form of charging document is used to charge the crime of assault in the second degree, the defendant, on timely demand, is entitled to a bill of particulars.

Here, the Statement of Charges filed against Robinson used the statutory short form for second-degree assault. Accordingly, based on the plain language of CL §3-206(b), Robinson was entitled to a bill of particulars. However, although the State technically should have provided Robinson with a bill of particulars, the information essentially was provided in open file discovery. In light of the information the State provided to Robinson in the charging document, the Application for Charges, and through discovery, and where there was no showing of any surprise to the Robinson regarding the evidence offered by the State, the circuit court did not abuse its discretion in denying Robinson’s motion to dismiss the charges against him. See Grant v. State, 55 Md. App. 1, 32-33 (1983).

PRACTICE TIPS: Defense of another is a recognized response to a second degree assault charge if: (1) the defendant actually believed that the person defended was in immediate and imminent danger of death or serious bodily harm; (2) the defendant’s belief was reasonable; (3) the defendant used no more force than was reasonably necessary to defend the person defended in light of the threatened or actual force; and (4) the defendant’s purpose in using force was to aid the person defended.

Family Law

Child support 

BOTTOM LINE: In applying child support statute extending child support until the later of when child reaches age of 19 or graduates from high school, trial court properly found that 18-year-old who did not earn high school diploma but was enrolled in community college pursuant to program at his high school permitting students to substitute community college courses in order to obtain high school diploma was entitled to continued support until age of 19.

CASE: Richardson v. Boozer, No. 0774, Sept. Term, 2011 (filed Dec. 20, 2012) (Judges Kehoe, HOTTEN & Thieme (retired, specially assigned)). RecordFax No. 12-1220-05, 23 pages.

FACTS: Donald Richardson and Jacquelyn Boozer married on November 26, 1988. They were the parents of their then-minor child, Christian Richardson. The parties voluntarily separated on July 14, 2001, and the trial court granted a judgment of absolute divorce on May 9, 2005.

As part of the dissolution, the court awarded Boozer sole legal and primary physical custody of Christian. Boozer was responsible for maintaining health insurance coverage for Christian, and Richardson was ordered to pay Boozer $1,456 per month for child support commencing from May 1, 2003. On July 15, 2009, the parties reached an agreement regarding child support, and on August 15, 2009, the court ordered that Richardson pay child support to Boozer in the amount of $1,062 on the first day of each and every month until the later of Christian’s attaining the age of 18 years or his graduation from high school.

On November 24, 2009, Boozer informed Christian that he could no longer reside with her, and Christian began residing with Richardson on November 29, 2009. Richardson ceased his child support payments, and filed a motion on December 9, 2009, requesting that the court: (1) order Boozer to pay child support in the amount of $895 per month until Christian attained the age of 18 or graduated from high school; (2) order Boozer to pay by check the amount of $3,369 for overpayment of child support; and (3) order Boozer to file a statement of satisfaction of monetary judgment, reflecting Richardson’s payment of $43,976 with accrued interest. On April 11, 2010, Christian returned to his mother’s home.

Christian was expected to graduate from high school on June 12, 2010. However, he failed to meet the graduation requirements at his private high school, Sidwell Friends School, and therefore did not earn his high school diploma. As a result, on August 16, 2010, Richardson renewed his motion regarding child support. Boozer alleged that Sidwell’s administration permitted Christian to register for substitute courses at Prince George’s Community College to obtain his diploma from Sidwell. Christian enrolled for the summer and fall 2010 semesters, but failed the necessary courses.

During the motion hearing on January 31, 2011, the court stated that under Maryland law, child support extends to age 19 or high school graduation, whichever comes first, and that as long as Christian was working toward his high school graduation, child support would continue until age 19. Because Christian would attain the age of 19 on February 7, 2011, the court determined that Richardson’s support would be terminated seven days from the hearing. The court granted Richardson’s motion, finding that there was a material change in circumstances, but ordered that Richardson pay Boozer an outstanding child support balance of $7,101. The court used the post-October 1, 2010 child support guidelines, and computed Richardson’s obligation, less the five months that Christian resided with Richardson and unreimbursed medical expenses of $419, resulting in a total of $7,101.

On February 10, 2011, Richardson filed a motion for reconsideration, arguing that the court erred in determining that his child support obligation was not legally terminated when Christian failed to graduate high school and in calculating his total child support obligations under the post-October 1, 2010 guidelines. The court denied Richardson’s motion, finding that Richardson’s obligation extended beyond the date of termination and that his contentions regarding the court’s calculations were unfounded.

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

LAW: Richardson first argued that the trial court erred in determining that Richardson had an obligation to pay child support until Christian reached the age of 19. The circumstances under which child support may be terminated once a child attains the age of 18 are governed by Md. Code (1957, 2011 Repl. Vol.), Article 1, §24(a)(2) of the Rules of Interpretation, which provides that a person who has attained the age of 18 years and who is enrolled in secondary school has the right to receive support and maintenance from both of the person’s parents until the first to occur of the following events: (i) the person dies; (ii) the person marries; (iii) the person is emancipated; (iv) the person graduates from or is no longer enrolled in secondary school; or (v) the person attains the age of 19 years. Here, the issue was whether Christian fell within the purview of Md. Code (1957, 2011 Repl. Vol.), Article 1, §24(a)(2)(iv) of the Rules of Interpretation.

It was undisputed that Christian did not graduate from Sidwell in June 2010, but was enrolled at Prince George’s Community College in an effort to substitute the necessary courses required by his high school to secure his diploma. Richardson acknowledged that Christian did enroll at the Prince George’s Community College for summer and fall 2010 classes as a special student and was enrolled in January 2011. Furthermore, Richardson did not object during the hearing when Boozer asserted that Christian was registered at the community college for the purpose of attaining his high school diploma. Richardson asserted, however, that his obligation to pay child support ended in June 2010 because Christian failed to attain his high school’s graduation requirements and was not enrolled at the high school or other secondary school.

Article 1, §24(a)(2) of the Rules of Interpretation does not define the term “secondary school.” However, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2051 (2002) defines secondary school as “a school more advanced in grade than an elementary school and offering general, technical, vocational, or college-preparatory courses.” Post-secondary education is defined as “a school or other institution that offers an educational program within the State for persons 16 years of age or older who have graduated from or left elementary or secondary school.” McCarthy v. Bd. of Educ. of Anne Arundel County, 280 Md. 634, 644 (1977). Post-secondary education excludes “an adult education, evening high school, or high school equivalency program.” Id.

While the issue was one of first impression in Maryland, other jurisdictions had considered what constitutes enrollment in a secondary school. For instance, in a Missouri case, the Missouri court held that there was sufficient evidence to support a finding that a child was enrolled in and attending a secondary school program of instruction where the child tested in various subjects to determine his areas of weakness and was given assignments to improve his skills in those areas using computer disks and workbooks, and the program continued until the student was able to take and pass the GED exam. In re Marriage of Copeland, 850 S.W.2d 422, 423 (Mo. Ct. App. 1993). Similarly, in a Louisiana case, the Louisiana Court of Appeals, First Circuit decided that a child enrolled in a vocational-technical school and pursuing a GED or high school equivalency education satisfied the statute’s “secondary education” requirement. Park v. Park, 634 So.2d 83, 85 (La. App. 1 Cir. 1994).

In the present case, Christian did not discontinue his attendance at Sidwell, and his studies were continuous. Christian was expected to graduate from Sidwell in June 2010. As indicated in the record, Sidwell’s administration permitted him to enroll in Prince George’s Community College’s summer and fall 2010 semester to obtain his high school diploma. Although he failed the necessary equivalency courses during those periods, he re-registered for the spring 2011 semester, completed the necessary courses, and received his diploma from Sidwell in June 2011. Thus, although Christian was enrolled in Prince George’s Community College, it was a limited, specific type of curriculum for the purposes of obtaining his Sidwell diploma. As such, the trial court was legally correct in finding that child support extended to age 19 or high school graduation, whichever came first, and Richardson therefore had an obligation to pay child support from April 2010, the time when Christian returned to his mother’s home, until February 2011, when Christian reached the age of 19.

Accordingly, the judgment of the trial court was affirmed.

COMMENTARY: Richardson additionally argued that the trial court erred in utilizing the post-October 1, 2010 child support guidelines in calculating his obligation. Maryland’s child support guidelines first require that the trial court determine each parent’s monthly adjusted actual income. Voishan v. Palma, 327 Md. 318, 323 (1992)). Following this determination, the court then adds the two amounts to arrive at the parent’s monthly combined adjusted actual income. Id. After calculating the combined adjusted actual income, the court then determines whether the figure falls within the range of incomes found in the schedule of §12-204(e). Id.

Although the child support guidelines apply in most cases, in situations where the combined adjusted monthly income exceeds the statutory limit, the court may exercise discretion in setting the amount of child support. Md. Code (1984, 2006 Repl. Vol., 2012 Cum. Supp.), §12-204(d) of the Family Law Article. In the present case, after adding Richardson’s income of $108,410 with Boozer’s income of $92,000, the parties’ adjusted actual income totaled $200,410 annually, or approximately $16,700 monthly. This amount exceeded the highest levels specified in the pre-and post-October 1, 2010 schedules.

Therefore, the court did not abuse its discretion in calculating Richardson’s obligation or in utilizing the post-October 1, 2010 guidelines.

PRACTICE TIPS: Child support orders are generally within the sound discretion of the trial court. Permitting judicial discretion promotes the public policy of the guidelines, that even at very high income levels, a child’s standard of living should be altered as little as possible by the dissolution of the family.

Family Law

Indicated child abuse 

BOTTOM LINE: There was substantial evidence in the record to support the decision of the Administrative Law Judge that defendant was guilty of indicated child abuse as defined in FL §5-701(b)(1).

CASE: B.H. v. Anne Arundel County Department of Social Services, No. 01835, September Term, 2011 (On Motion for Reconsideration) (filed Dec. 21, 2012) (Judges Zarnoch, MATRICCIANI, & Thieme (retired, specially assigned)). RecordFax No. 12-1221-01, 27 pages.

FACTS: On the evening of April 22, 2010, B. H. prepared a meal for himself and his two minor children. B. H. made spaghetti with a sauce containing mushrooms. Brayden, B.H.’s four-year-old son, refused the food because he disliked mushrooms. B. H. responded by informing Brayden that if he did not finish his dinner, he would not get dessert and he would be unable to go outside to play with his friends. Brayden then left the table. B. H. returned Brayden to his seat and told him that his presence at dinner was required while B. H. and his eleven-year-old daughter, Brianna, finished eating. Brayden resisted and B. H. held Brayden by the arm to ensure his attendance at the dinner table.

Because B. H. and Mrs. H. shared custody of the children, she picked them up from school on the afternoon of April 23, 2010. Once home, Mrs. H. found several bruises on Brayden’s neck and a scratch under his chin. That day, Mrs. H. brought Brayden to his pediatrician. The pediatrician documented the injuries discovered by Mrs. H. The pediatrician’s office referred the matter to Anne Arundel County Department of Social Services (DSS). DSS contacted the police.

The police questioned Brayden about his injuries, who informed them that his father had grabbed him around his neck and had pulled him down and that he had also somehow bruised his arm in the process of either falling or hitting it on something.

B. H. was charged with child abuse in the second degree, assault in the second degree, and reckless endangerment.

DSS assigned social worker Lauren Askew to conduct a civil investigation into the incident on its behalf. Ms. Askew interviewed Brayden, Mrs. H., and Brianna. The investigation resulted in Ms. Askew finding indicated child abuse. B.H. appealed that finding to an Administrative Law Judge.

At the hearing, Ms. Askew testified that Brayden told her that his dad tried to make him eat the mushrooms and that he did not like them. Further, she testified that Brayden told him that he tried to run away from the table. Brayden said that he hurt his elbow by hitting it on the wall while he was running away from B.H., at which point B.H. grabbed him by his neck and brought him back to the table. Mrs. H. confirmed this account.

Brianna told Ms. Askew that they were at their dad’s house eating spaghetti and that Brayden did not want to eat the mushrooms. Their dad had told him that he had to eat the mushrooms or that he would not go outside and play if he did not eat them. Brayden then got up from the table and tried to run, but B.H. grabbed him and picked him up by the arm and placed him back at the table. Brianna stated that B.H. put the mushrooms in Brayden’s mouth and Brayden spit the mushrooms out on the floor.

Ms. Askew interviewed B. H. on April 29, 2010. Ms. Askew testified that he stated that Brayden did try to exit the table, but he picked Brayden up from under his arm and carried him back to the table and told him to sit there. When asked about whether B. H. intended to injure Brayden, Ms. Askew agreed that the intention was to have his son eat mushrooms.

The ALJ found that B.H.’s actions rose to child abuse. The ALJ accepted Brianna’s and Brayden’s hearsay statements to Ms. Askew over B.H.’s testimony and believed that B.H. chased Brayden and forced food into his mouth. The circuit court upheld the ALJ’s decision.

The Court of Special Appeals affirmed.

LAW: Generally, an appeal from judicial review of an agency action involves review of the agency action directly, not the decision of the trial court. McLaughlin v. Gill Simpson Elec., 206 Md. App. 242, 251 (2012). Review of the agency’s factual findings “consists solely of an appraisal and evaluation of the agency’s fact finding and not an independent decision on the evidence.” Doe v. Allegany County Dep’t of Soc. Servs., 205 Md. App. 47, 54 (2012). To determine the proper standard of review, it must first be determined whether the agency decision was a legal conclusion, a factual finding, or a mixed question of law and fact.” Charles County Dep’t of Soc. Servs. v. Vann, 382 Md. 286, 296-97 (2004).

Here, where an application of law to facts was required to find that B.H.’s actions placed Brayden’s health and welfare at substantial risk of harm, the Court was reviewing a mixed question of law and fact. See id.

“When the agency decision being judicially reviewed is a mixed question of law and fact, the reviewing court applies the substantial evidence test.” Taylor v. Harford County Dep’t of Soc. Servs., 384 Md. 213, 223 (2004). An administrative decision is based on substantial evidence when a reviewing court determines that “a reasoning mind reasonably could have reached the factual conclusion that the agency reached.” Eberle v. Baltimore County, 103 Md. App. 160, 166 (1995).

Abuse means: “the physical or mental injury of a child by any parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed.” FL §5-701(b)(1).

Under COMAR §, a finding of indicated child physical abuse is appropriate if there is credible evidence that “(a) A current or prior physical injury; (b) The injury was caused by a parent, caretaker, or household or family member; (c) The alleged victim was a child at the time of the incident; and (d) The nature, extent, and location of the injury indicate that the child’s health or welfare was harmed or was at substantial risk of harm.”

B. H. contended that the ALJ erred by failing to make a specific finding of fact to establish that the location, nature or extent of Brayden’s alleged injury injured the child or placed the child at a substantial risk of harm.

Although DSS placed greater emphasis on the fact that B. H. force fed mushrooms to his son, the ALJ found satisfactorily that the B.H. caused three bruises on Brayden’s neck and a scratch under his chin when he grabbed him. Brayden’s three bruises and the scratch under his chin satisfied both the nature and extent requirements. The location was while running away from the dinner table, down a hall at B. H.’s home.

In Turner v. Hammond, 270 Md. 41 (1973), Turner attempted to secure a special use exception from a Salisbury zoning ordinance. The zoning board denied the exception by using a pre-printed check off form. The form listed a series of conclusions and then provided a box in which the preparer could check “will or will not,” thereby indicating if the proposed development either would or would not have a certain impact on the community.

The zoning board was empowered “to judge whether the neighboring properties and the general neighborhood would be adversely affected” by the development project. Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287 (1953). The Court of Appeals found the “reasons given by the Board for denying the application suggest a rather cavalier attitude in respect of its duties and responsibilities.” Turner, 270 Md. at 55-56. The “record [was] utterly devoid of any evidence.” Id. at 56.

This record was not one “utterly devoid of any evidence.” Id. The ALJ heard testimony, credited the testimony which persuaded her, and applied the law to the facts in order to uphold a finding of indicated child abuse. Id. at 60. Accordingly, the ALJ did not err.

COMMENTARY: The factors of CP §11-304(e) for the admissibility of child victim’s out of court statement are restricted facially to hearsay statements offered “in a juvenile court proceeding or in a criminal proceeding.” CP §11-304(b). In a contested case administrative proceeding, hearsay “may not be excluded solely on the basis that it is hearsay.” SG §10-213(c).

In Montgomery County Health & Human Servs. v. P.F., 137 Md. App. 243 (2001), the administrative law judge used the §11-304(e) factors to assess whether the hearsay statements of a three year old were sufficiently reliable to be “considered credible evidence.” Id. at 271-72. The statutory factors “address[] the inherent questions of trustworthiness raised by such a young child’s out of court statement and balance[] the need to protect child victims from the trauma of court proceedings with the fundamental right of the accused to test the reliability of evidence proffered against him or her.” Id. at 272.

Like P.F., application of the statutory factors was not compulsory here because “the proceedings did not involve a proceeding in court.” Id. at 273. The statements were admissible under SG §10-213(c). Although the P.F. Court found that “the ALJ was legally correct to make a threshold determination of trustworthiness by considering the factors identified in [§11-304(e)]” the converse of that statement does not follow necessarily.

While it is true that in an administrative hearing testimony may not be excluded simply because it is hearsay, “[i]t is improper for an agency to consider hearsay evidence without first carefully considering its reliability and probative value.” Travers v. Baltimore Police Dep’t, 115 Md. App. 395, 413 (1997). “[S]tatements that are sworn under oath, or made close in time to the incident, or corroborated ordinarily [are] presumed to possess a greater caliber of reliability.” Id.

Ms. Askew testified “having first been duly sworn.” Ms. Askew’s interviews followed in close temporal proximity from the alleged events. Brayden and Brianna were with B. H. on the evening in question. Ms. Askew interviewed them only five days later. Finally, the statements made to Ms. Askew by Mrs. H., Brayden, and Brianna were self-referential and corroborated each other. Furthermore, B. H. subjected the hearsay statements to cross examination.

Accordingly, the hearsay statements were sufficiently reliable to be admissible in this administrative proceeding. See Maryland Dep’t of Human Resources v. Bo Peep Day Nursery, 317 Md. 573 (1989).

PRACTICE TIPS: “A finding of `indicated child abuse’ is not `appropriate’ when the evidence establishes that the child’s parent imposed corporal punishment that left the child with an injury unless the nature, extent, and location of the injury indicate that the child’s health or welfare was harmed or was at substantial risk of harm.” See Dep’t of Human Res. v. Howard, 168 Md. App. 621, 642 (2006).

Family Law

Intervention in adoption proceeding 

BOTTOM LINE: Non-parental, non-custodial relative of a minor child could not intervene in the child’s adoption proceeding commenced after the termination of parental rights, because no statute or rule affords such a relative the right or an opportunity to intervene in an adoption proceeding after parental rights have been terminated.

CASE: In re Malichi W., No. 0688, Sept. Term, 2011 (filed Dec. 20, 2012) (Judges Woodward, ZARNOCH & Raker (retired, specially assigned)). RecordFax No. 12-1220-01, 13 pages.

FACTS: Kris Golden was the maternal cousin of eight-year-old Malichi W. The parental rights of Malichi’s biological parents were terminated on August 10, 2010. Malichi’s biological mother consented to the termination of parental rights (“TPR”) on the condition that Malichi be adopted by Yolanda W., who was Malichi’s pre-adoptive foster mother, and who had had custody of Malichi since June 6, 2006. Malichi’s biological father did not object, and thus consented by operation of law.

On March 9, 2011, the Baltimore City Department of Social Services, Malichi’s appointed guardian, consented to Malichi’s adoption by Yolanda W. Yolanda W. filed a petition to adopt Malichi on March 24, 2011. The following day, the court appointed an attorney to represent Malichi.

On April 8, Golden filed a motion in Malichi’s adoption proceedings captioned “Motion to Intervene and Appeal.” She sought to be considered as an adoptive parent for Malichi. The juvenile court denied the motion on April 12, in a one-line order, stating that it lacked good cause. Golden did not appeal this decision.

On May 31, 2011, Golden filed a second motion with the same caption as her first. On June 1, 2011, the juvenile court granted Yolanda W.’s petition for adoption of Malichi. The court then denied Golden’s motion on June 10, 2011, finding that there was a lack of good cause and that the issue was moot because Malichi had been adopted on June 1, 2011.

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

LAW: The key issue in the case was whether a non-parental, non-custodial relative of a child is authorized to intervene in an adoption proceeding after termination of parental rights. Golden argued that the juvenile court erred in denying her motion to intervene and appeal because she was Malichi’s maternal cousin and had an interest in adopting him. Specifically, she contended that the court should have considered her as a potential adoptive parent because she was a biological family member.

The Maryland Code provisions and Maryland Rules of Procedure that potentially relating to this case were: Title 5, Subtitle 3 of the Family Law Article (“FL”) of the Md. Code (1984, 2006 Repl. Vol.); Title 9 of the Maryland Rules; Md. Rule 2-214; and Title 11 of the Maryland Rules, particularly with respect to its interaction with Title 3, Subtitle 8 of the Courts and Judicial Proceedings Article (“CJP”) of the Md. Code (1973, 2006 Repl. Vol.). As discussed below, no statute or rule afforded Golden, or a person in her situation, either a right or an opportunity to intervene in an adoption proceeding after parental rights have been terminated.

First, Family Law Article, Title 5, Subtitle 3, which governs adoptions, and more specifically Part IV, which applies to adoptions after termination of parental rights, makes no mention of a right to intervene in an adoption proceeding. See FL §§5-301 et seq. Under FL §5-345(a), any adult may petition a juvenile court for an adoption of the child post-TPR. However, the petitioner must include in his or her filing all written consents required by FL §5-350(a). Here, because Yolanda W. filed the consent of Malachi’s guardian, the Maryland Department of Social Services, Golden could not. This fact posed an insurmountable barrier to the relief sough by Golden – consideration as an adoptive parent.

Moreover, even assuming, arguendo, that Golden’s goal was to overturn Yolanda W.’s adoption of Malachi, there existed no mechanism for her intervention in a post-TPR adoption. Title 9 of the Maryland Rules, which concerns adoption and guardianship cases, did not give Golden the right to intervene in this adoption. Under Md. Rule 9-107(a), any person having a right to participate in a proceeding for adoption or guardianship may file a notice of objection to the adoption or guardianship. Section (b)(1) stipulates that such a person must file an objection within 30 days after the show cause order is served. Md. Rule 9-107(b)(1). A show cause order must include a pre-captioned notice of objection form. Md. Rule 9-105(c)(3). Because a person must file his or her objection within 30 days after the court sends a show cause order, it would seem that the only persons permitted to object are those who receive a show cause order.

However, unlike other types of adoptions, in a post-TPR adoption proceeding, there is no requirement for issuance of a show cause order. Md. Rule 9-105(a). Rather, the clerk of court sends notice to the local department of social services and the child’s last attorney of record in the guardianship case. FL §5-346. Nevertheless, Rule 9-105 contains blank Notice of Objection forms which apply to five different types of adoptions, including “a Public Agency Adoption after TPR.” Thus, even assuming that Rule 9-107(a) applies in a post-TPR adoption case, the rule still requires that the objectors have “a right to participate” in the adoption proceeding.

Under FL §5-350, for a minor, the guardian must consent to the adoption and if the child is at least 10 years of age, he or she must also consent. These are the persons entitled to notice under FL §5-346. They are the participants and potential objectors. Here, Golden did not qualify as an intervenor under Rule 9-107(a). The persons having a “right to participate” in the proceeding under this rule and a right to object to the proposed adoption are very limited. See 2 Am. Jur. 2d Adoptions (2004) at §121. Because Golden was not within this class of persons with a right to participate in the adoption proceeding, she could not rely on the Title 9 rules as a basis for intervention.

Upon a review of the potentially applicable law, no statute or rule allows intervention in an adoption after termination of parental rights. As such, Golden had no right to intervene in the adoption. She was not a parent or guardian. Yolanda W. had already filed her adoption petition. Malichi’s biological mother had consented to the termination of her parental rights on the condition that Malichi be adopted by Yolanda W., not Golden. The Department of Social Services, as guardian, had already consented to Yolanda W.’s adoption petition. After these steps were taken, the only parties to the adoption proceeding were Yolanda W. and Malichi. According, there was no legal error from the juvenile court’s decision, and the denial of Golden’s motion to intervene was affirmed.


COMMENTARY: Neither could Golden find support for her argument in Maryland Rule 2-214, which governs intervention in certain civil cases but does not apply to adoption proceedings. Md. Rule 1-101(b) states that Title 2 “applies to civil matters in the circuit courts, except for Juvenile Causes under Title 11 of these Rules and except as otherwise specifically provided or necessarily implied.” It is necessarily implied that intervention under Title 2 is inapplicable to adoption proceedings because Title 9 has its own rules for “intervening” in adoption proceedings. Specifically, as discussed above, Md. Rule 9-107 allows for a person to object to an adoption in limited circumstances. Providing for an “objection” to the adoption proceeding necessarily implies that it is the exclusive way that one can intervene in such a proceeding. Thus, Md. R. 2-214 does not apply to adoption proceedings.

Maryland Rule 11-122(b), a rule concerning non-parental intervention, does not

apply to post-TPR adoption proceedings. Rule 11-122(b) allows non-parental intervention at the discretion of the juvenile court, but for “dispositional” purposes only. While the Rule does not specifically state what “dispositional purposes” means, the Title 11 Rules, and the statutory provisions shed light on the meaning of the term. In CJP §§3-801 et seq., which governs child in need of assistance (“CINA”) proceedings, the term “dispositional hearing” means a hearing to determine whether a child is in need of assistance and, if so, the nature of the court’s intervention to protect the child’s health, safety and wellbeing. CJP §3-801(m). Section 3-819(b)(1) of the CJP Article describes the possible judicial “interventions.” Finally, CJP §3-819.2(b) states that the court may grant custody and guardianship to a relative or nonrelative under this subtitle.

Thus, this statute makes clear that the term “dispositional purposes” in Rule 11-122(b) applies to proceedings that precede an adoption that follows a termination of parental rights. Moreover, the specificity and exclusivity of Rule 11-122(b) create the negative implication that no right of intervention exists beyond the dispositional stage – here, an adoption following termination of parental rights. The rationale for such a construction is readily apparent, as there is a need to surround the final adoption decree with a high degree of certainty, and anything which would undermine public confidence in adoption proceedings must be read by the courts in the gravest light. Palmisano v. Baltimore County, 249 Md. 94, 103 (1968).

PRACTICE TIPS: In a guardianship case, the court provides a show cause order to each of the child’s living parents who has not consented to the guardianship, each living parent’s last attorney of record in the child in need of assistance (“CINA”) case, and the child’s last attorney of record in the CINA case. In an adoption without termination of parental rights, the court must send a show cause order to each of the child’s living parents who has not consented to the adoption, each living parent’s last attorney of record in the CINA case, and the child’s last attorney of record in the CINA case.

Family Law

Support of destitute adult child

BOTTOM LINE: The trial court properly determined that the parties’ eldest child, who was mildly retarded, was a destitute adult child within the meaning of FL §§13-101 and 13-102, and was therefore entitled to continuing support from her parents.

CASE: Cutts v. Trippe, No. 1029, Sept. Term, 2011 (filed Dec. 20, 2012) (Judges Matricciani, BERGER & Kenney (retired, specially assigned)). RecordFax No. 12-1220-02, 18 pages.

FACTS: Edmund Cutts and Nancy Trippe were the divorced parents of three children. Pursuant to the judgment of divorce the parties have joint legal custody of the children, subject to Cutts’ specified visitation. The divorce decree required Cutts to pay $200 per week to Trippe for the support of the children and to provide health insurance coverage for the children.

Trippe was required to pay all uninsured health expenses, co-pays, and deductibles up to $1,000 for a single illness or condition, without contribution from Cutts. Expenses over $1,000 would be paid one-third by Cutts and two-thirds by Trippe. Trippe was further ordered to pay the children’s costs for private school, special education fees, book costs, room and board, and other private school expenses, without contribution from Cutts.

The oldest child, Sarah, was 19 years old at the time of the child support modification trial. Sarah was diagnosed with mild mental retardation at a young age. She has attended special schools her entire life and requires constant supervision. At the time of trial, Sarah attended a special school in New York for students who have an IQ below 70. When Sarah returns from school for weekends, holidays, and summer breaks, she resides at Trippe’s home. Sarah is the beneficiary of a trust with a value of approximately $400,000 (the trust). Trippe is the trustee of Sarah’s trust, and has the sole power to disburse trust funds.

Trippe filed a motion to modify child support in the circuit court. The first count alleged that Cutts had failed and refused to provide reimbursements for certain medical and tutoring expenses incurred by the children. The second count sought modification of Cutts’ child support obligations on the basis of material changes in circumstances, including: increases in the children’s medical expenses, Trippe’s substantial loss of annual income, the inability of Sarah to support herself by reason of her disability, and Cutts’ limited exercise of visitation, which placed the primary burden for the children’s living expenses on Trippe.

Cutts filed a counterclaim alleging that there had been a material change in circumstances based on the children’s attendance at boarding schools, and asked the court to establish a new custody and visitation schedule.

Trippe filed a financial statement with the court detailing her monthly expenses for the three children. Trippe testified that she pays 10 percent of the tuition for each child, and that her parents pay the balance. Aside from the tuition assistance provided by her parents, Trippe testified that she pays for all of the children’s other expenses. In 2008, the children’s health insurance provider initiated a $1,800 deductible, whereas there previously was no deductible. This deductible increased to $2,400 after December 2008. There was also a decrease in coverage for psychological care and increases in co-payment obligations. Between 2008 and 2010, Trippe paid between $2,300 and $2,400 in deductibles on the health insurance policy.

As to Sarah in particular, Trippe testified that she prepares Sarah’s food and coordinates her medical appointments when Sarah is home. Trippe partially paid $6,500 for Sarah’s orthodontic bill, $603 for Sarah’s oral surgery, and $200 to repair a broken orthodontic wire. Trippe also introduced medical bills for Sarah totaling approximately $4,520, which were related to Sarah’s treatment for mild mental retardation.

The trial court found that Sarah was a destitute adult child within the meaning of FL §§13-101 and 13-102, and was therefore entitled to continuing support from Trippe and Cutts. The court also found that there had been a material change in circumstances due to Trippe’s decreased salary, which warranted a modification to the parties’ existing child support obligations. Accordingly, the trial court calculated the amount of child support for Sarah and for the youngest child using the parties’ current incomes. In calculating the amount of support, the trial court adhered strictly to the child support guidelines contained in FL §§ 12-202 to 12-204 (the Guidelines). This resulted in an increase in the amount of Cutts’ child support obligations. The trial judge further determined that the increases in healthcare costs did not warrant any departure from the Guidelines. Finally, the trial judge modified Cutts’ visitation schedule and appointed a parent coordinator.

The Court of Special Appeals affirmed.

LAW: Parents have a statutory duty to support an adult destitute child. If a destitute adult child has a parent who is able to earn sufficient means, the parent may not neglect or refuse to provide the destitute adult child with food, shelter, care, and clothing. FL §13-102

A “destitute adult child” is defined as “an adult child who: (1) has no means of subsistence; and (2) cannot be self-supporting, due to mental or physical infirmity.” FL §13-101(b). The Guidelines apply to the establishment or modification of child support under this provision. Goshorn v. Goshorn, 154 Md. App. 194 (2003).

As to whether a trust constitutes a “means of subsistence,” no Maryland court has addressed this particular issue. The Court of Special Appeals has, however, held that only resources that are currently available to a child should be considered in the destitute adult child analysis. See Presley v. Presley, 65 Md. App. 265, 278-79 (1985).

A trust may not be considered as an available resource in the destitute adult child analysis. The trial court considered the trust, but properly excluded it from the destitute adult child analysis on the basis that Sarah had no right to access the trust funds, nor had any funds ever been disbursed to Sarah. Further, ET §14-402(a)(2) provides that: “Trust property may not be considered property or an available resource of the beneficiary.”

In interpreting FL §13-102(b), the Court of Special Appeals explained that it was rejecting the notion that “food, shelter, care, and clothing” could be construed to mean any expenses, “no matter how extravagant those expenses might be.” Presley, 65 Md. App. at 277-78. Such an interpretation would not be consistent with the legislative intent because it is “inconsistent with the very concept of a `destitute adult child.’“ Id. Rather, “The child need not be penniless, nor may he be profligate. The duty of support arises when the child has insufficient resources and, because of mental or physical infirmity, insufficient income capacity to enable him to meet his reasonable living expenses.” Id.

The trial court summarized Sarah’s expenses as established through the parties’ testimony and also considered the reasonableness of these expenses. There was ample evidence and testimony that Sarah is incurring reasonable expenses that trigger parental support under the destitute adult child statute. The trial court was not clearly erroneous in structuring its memorandum opinion with a summary of the reasonable expenses incurred based on testimony, rather than explicit findings of fact regarding the expenses.

Cutts argued that the trial court erred in its application of the destitute adult child statute by failing to compare Sarah’s expenses to her resources.

The Court of Appeals has extended the definition of “destitute adult child” to include not only individuals with no means of subsistence, but also those with expenses that exceed their resources. See, e.g., Presley, 65 Md. App. 265. Thus, the mere fact that an adult with physical or mental infirmities has a job or other source of income is not an automatic bar to parental support. In cases where a child has financial resources, “the court must weigh [the child’s] total reasonable living expenses against her existing available resources. If it finds a net deficit — a need for parental support — it may then order such support.” Presley, 65 Md. App. at 279. Upon finding a deficit, the resulting order of support is to be calculated based upon the Guidelines. Goshorn, 154 Md. at 219.

Sarah fits the classic statutory definition of “destitute,” and therefore a balancing analysis was unnecessary. The trial court determined, based on testimony, that Sarah had no job, received no disability benefits or other assistance, and had no other available financial resources. Thus, by definition, Sarah is destitute — she has “no means of subsistence.” FL §13-101(b). Accordingly, under these circumstances, there was no need for the trial judge to go any further and weigh Sarah’s financial resources against her expenses, because there were simply no financial resources to consider.

Accordingly, the trial judge applied the proper standard in determining that Sarah constituted a destitute adult child.

COMMENTARY: A trial court may modify a party’s child support obligation if a material change in circumstances has occurred which justifies a modification. Ley v. Forman, 144 Md. App. 658, 665 (2002). “Once a material change in circumstances has occurred, the court must apply the guidelines in [FL §§] 12-202 to 12-204 to determine the level of support to which the child is currently entitled.” Rivera v. Zysk, 136 Md. App. 607, 619 (2001).

Under FL §12-202(a)(2)(i), “[t]here is a rebuttable presumption that the amount of child support which would result from the application of the child support guidelines…is the correct amount of child support to be awarded.” In order to rebut that presumption, a party must produce “evidence that the application of the guidelines would be unjust or inappropriate in a particular case.” FL §12-202(a)(2)(ii). The decision “[w]hether to grant a modification rests with the sound discretion of the trial court and will not be disturbed unless that discretion was arbitrarily used or the judgment was clearly wrong.” Ley, 144 Md. App. at 665.

Cutts first contended that the fact that the children spent significant time at boarding schools amounted to a material change in circumstances. However, the children reside at Trippe’s home on weekends, holidays, and summer breaks. Therefore, the trial court was not arbitrary in its decision to decline to depart downward from the Guidelines in this situation.

Cutts argued that the trial court should have considered Sarah’s trust, and on that basis departed downward from the Guidelines. The trust was properly excluded from the analysis because it is not an asset currently available to Sarah. If trust funds are made available to Sarah in the future, that would constitute a material change warranting a child support modification. At that point, it would be appropriate to consider the trust in determining child support obligations.

Accordingly, the trial court did not err by excluding the trust from its analysis.

Insurance Law

Choice of law 

BOTTOM LINE: Circuit court properly applied Pennsylvania law rather than New York law in lawsuit involving indemnification claims by insurers where defendant did not dispute that insurance policies that were subject of the action were delivered to plaintiff’s office in Pennsylvania via its broker in Pennsylvania and defendant produced no evidence that policies were delivered to New York, that premiums were paid from New York, or that final act giving policies effect occurred in New York.

CASE: TIG Insurance Company v. Monongahela Power Company, No. 2842, Sept. Term, 2010 (filed Dec. 21, 2012) (Judges Eyler, D., Meredith & WATTS). RecordFax No. 12-1221-03, 32 pages.

FACTS: Allegheny Energy, Inc., a Maryland corporation, was the holding company of Monongahela Power Company, The Potomac Edison Company, West Penn Power Company, and Allegheny Energy Supply Company, LLC. Since 1949, Allegheny had purchased both project specific and comprehensive general liability insurance policies from various insurers, including Certain Underwriters at Lloyd’s, London and London Market Companies (“London”) and North River Insurance Company (“North River”). Among 19 general liability insurance policies that North River issued to Allegheny were four Excess Insurance Policies (the “Non-JU Policies”), covering a policy period from October 31, 1984, through October 31, 1985.

Each of the Non-JU Policies listed Allegheny’s address as “320 Park Avenue, New York, New York. The Non-JU Policies provided that the insurer agreed to indemnify Allegheny for loss exceeding the amount of loss payable by underlying policies over $5 million. The underlying policy listed on each Non-JU Policy was Associated Electric & Gas Insurance Services Limited (“AEGIS”) Policy No. 195 ANJ (the “AEGIS Policy”), which covered the same policy period as the North River policies. Liability under the AEGIS Policy had an underlying limit of $500,000 and was limited to $1 million for any one occurrence. In addition, Allegheny purchased $3.5 million in first layer excess insurance through Employers Insurance of Wausau and Twin City Fire Insurance Company.

In 2001 and 2002, Allegheny demanded that insurers indemnify it for costs related to the settlement of asbestos suits that triggered the insurers’ Liability Insurance Policies. By 2003, Allegheny had informed insurers that thousands of claims were expected to be brought against Allegheny for alleged bodily injuries arising from the claimants’ exposure to asbestos fibers while performing work within facilities owned and/or operated by Allegheny. On May 2, 2003, London filed in the circuit court a complaint (the “London Complaint”) against Allegheny, as well as “other interested insurers,” requesting declaratory judgment for the purpose of determining the rights and legal relations of the parties arising under the contracts of insurance entered into between Allegheny and the insurers. In essence, London sought to resolve the issue of what obligations it had under the excess insurance policies to defend or indemnify Allegheny in connection with alleged liability arising from asbestos lawsuits.

Allegheny filed a counterclaim against London and a cross-claim against the other insurers listed in the London Complaint, including North River, seeking declaratory judgment against the insurers for breach of contract under the comprehensive general liability insurance policies sold to it. Allegheny sought a declaration that the insurers were obligated, pursuant to the terms of the Liability Insurance Policies, to provide insurance coverage for the asbestos claims. Allegheny sought damages from insurers for their alleged failure to pay the costs for the investigation and defense of the asbestos suits and other alleged breaches of insuring obligations. On December 22, 2003, TIG filed an answer to the cross-claim as successor in interest by merger to International Insurance Company, and on behalf of North River Insurance Company by power of attorney, as to the Non-JU Policies.

On March 31, 2005, the circuit court granted a motion by Allegheny to realign the parties so that Allegheny was the plaintiff and the insurers were the defendants. On May 3, 2005, Allegheny filed a complaint alleging breach of contract by the named defendants, and requesting declaratory judgment and other relief. On November 12, 2008, Allegheny filed a First Amended Complaint, alleging breach of contract and requesting declaratory and other relief. The First Amended Complaint contained ten counts, including Count I, for “Breach of Contract against [London], North River, Wausau, Twin City, and Commercial Union,” and Count X for “Declaratory Judgment Against All Insurers.” In Count I, Allegheny contended that it was due reimbursement under the insurance policies purchased from North River and other insurers for costs incurred during litigation of asbestos claims. In Count X, Allegheny requested that 19 declarations be entered against insurers, including a declaration that the insurers be required to pay or reimburse Allegheny for sums it was legally obligated or reasonably required to pay as damages by reason of bodily injury, personal injury and other damage or injury in connection with the asbestos suits.

On April 9, 2010, Allegheny filed a motion for partial summary judgment requesting that the circuit court find that Pennsylvania law applied to the 1974 to 1980 London comprehensive general liability insurance policies and that, as a result, Allegheny was entitled to select which policy (from 1974 to 1980) to first respond to in the asbestos suits. On April 9, 2010, London filed a motion for partial summary judgment requesting that the court find that New York law applied. On April 9, 2010, TIG filed a motion for partial summary judgment requesting that the circuit court grant summary judgment in its favor as to the claims contained in Counts I and X of the First Amended Complaint. In a footnote in the memorandum in support of its motion, TIG joined in London’s motion for partial summary judgment, stating that it was joining in the arguments in support of the application of New York substantive law in the action. TIG also sought partial summary judgment regarding the issue of whether North River and International Insurance Company were entitled to a set-off against Allegheny’s asbestos liabilities for all amounts covered by insurance policies with which Allegheny had settled its asbestos liabilities.

The circuit court held that Pennsylvania law applied to the construction and effect of all policies involved in the lawsuit. The circuit court deferred ruling on the issues of “occurrence,” “trigger,” and “off-set.” The court later issued an order consistent with its oral ruling. On June 22, 2010, the circuit court issued an order granting TIG’s motion for partial summary judgment as to Count I of the First Amended Complaint and denying TIG’s motion for partial summary judgment as to Count X of the First Amended Complaint. On June 29, 2010, the circuit court denied London’s motion for partial summary judgment.

TIG appealed the circuit court’s grant of partial summary judgment to Allegheny Energy, Inc., Monongahela Power Company, The Potomac Edison Company, West Penn Power Company, and Allegheny Energy Supply Company, LLC. It also appealed the circuit court’s denial, in part, of TIG’s motion for partial summary judgment. The Court of Special Appeals affirmed the judgment of the circuit court.

LAW: TIG first contended that the circuit court erred in granting summary judgment in favor of Allegheny and applying Pennsylvania law to the Non-JU Policies because New York law was applicable. Insurance policies are contracts and are treated and construed like other contracts. Cont’l Cas. Co. v. Kemper Ins. Co., 173 Md. App. 542, 546 (2007). Absent a choice-of-law provision in a contract, Maryland courts have applied the rule of lex loci contractus to matters regarding the validity and interpretation of contract provisions. Am. Motorists Ins. Co. v. ARTRA Grp., Inc., 338 Md. 560, 573 (1995). Under this principle, the law of the jurisdiction where the contract was made controls its validity and construction. The United States Life Ins. Co. v. Wilson, 198 Md. App. 452, 463 (2011).

A contract is made in the place where the last act occurs necessary under the rule of offer and acceptance to give the contract a binding effect. Cont’l Cas. Co., 173 Md. App. at 548. Maryland appellate courts have consistently held that the locus contractu of an insurance policy is the state in which the policy is delivered and the premiums are paid. Id. In this case, TIG made no independent argument regarding the choice-of-law issue before the circuit court but merely joined the arguments made by London in its motion for partial summary judgment. London’s argument consisted of two parts: (1) New York law applied to all policies purchased through the EBASCO program between 1974 and 1980, as EBASCO, an agent of Allegheny, was located in New York and the policies were delivered and premiums paid there; and (2) New York law applied to the JU Policies signed between 1980 and 1984, as Allegheny’s headquarters were located in New York during that period, and it could, therefore, be assumed that the policies were delivered to New York.

That a company is headquartered in a state does not mean that all contracts into which the company enters are made in that state. See Commercial Union Ins. Co., 116 Md. App. at 674-76. Here, Allegheny contended before the circuit court that the Non-JU policies were delivered to its office in Greensburg, Pennsylvania, via its broker in Pittsburgh, Pennsylvania. TIG did not contest this assertion other than to point out that Allegheny was headquartered in New York and its department heads were stationed in New York. TIG offered no information leading to the conclusion that the policies were delivered to New York or that the premiums were paid from New York. Thus, TIG produced no evidence on which the jury could reasonably find for TIG, and, therefore, failed to properly generate a dispute of material fact. Reiter, 417 Md. at 67 .

At oral argument, TIG raised the new argument that the Non-JU Policies contained language stating that the final act of contract formation occurred in the location where the policy was countersigned and issued, and that in this case, that countersigning and issuance occurred in New York. In fact, however, the evidence demonstrated that the countersigning occurred either in Illinois, via a broker, or in New Jersey, and not in New York. TIG failed to provide any information demonstrating that the countersigning of the policies by North River or any company occurred in New York.

Moreover, countersigning of the policies was not the last act necessary to give the policies binding effect. A contract is made in the place where the last act occurs necessary under the rule of offer and acceptance to give the contract a binding effect. Cont’l Cas. Co., 173 Md. App. at 548. Here, Allegheny made an offer to buy insurance coverage from North River, which North River accepted by writing, signing, and sending a policy to Allegheny. Once the policy was delivered to Allegheny, Allegheny signed the Declarations page and paid premiums. As such, North River’s countersigning of the Declarations page, in Illinois, New Jersey, or elsewhere, was not the last act necessary to create a binding insurance policy.

For these reasons, there was no error in the circuit court’s grant of Allegheny’s motion for partial summary judgment, finding that Pennsylvania law applied to interpretation of the Non-JU Policies.

COMMENTARY: In the alternative, TIG argued that the circuit court erred as a matter of law by failing to enter summary judgment for TIG on the grounds that TIG was entitled to a set-off against any liability it might have for the underlying lawsuits under the Non-JU Policies reflecting the settling insurers’ proportionate shares of coverage responsibility for the loss. No Pennsylvania appellate court has directly addressed the question of whether an insurer of an excess insurance policy is entitled to a set-off based on settlements reached between the insured and other insurers. In Pennsylvania, where multiple primary and excess insurance policies indemnify an insured for a single occurrence, a non-settling excess insurance policy is triggered only upon exhaustion of its directly underlying policies, either by settlement or payment. Koppers Co. Inc. v. Aetna Cas. & Sur. Co., 98 F.3d. 1440, 1455 (3rd Cir. 1996).

In requesting a declaration that it was entitled to a set-off, TIG, in essence, requested that the circuit court determine it was entitled to a set-off without knowing whether TIG would be found liable for any coverage, without knowing the amount it might be liable for, and without information concerning the settling insurers’ policies and the details of their liability. As such, for a myriad of reasons, a declaration that TIG was entitled to a set-off was not possible. Accordingly, the circuit court did not abuse its discretion in denying TIG’s motion for partial summary judgment as to the issue of set-off.

PRACTICE TIPS: Excess Insurance Policies are policies providing coverage above general liability insurance policies once the underlying general liability insurance policies are exhausted.


Apparent agency 

BOTTOM LINE: Belief that physician listed as provider for managed care organization (“MCO”) is agent of MCO is unreasonable as matter of law; therefore, in plaintiff’s lawsuit seeking damages arising from negligent treatment by physician, trial court erred in submitting to jury issue of apparent agency.

CASE: JAI Medical Systems Managed Care Organization, Inc. v. Bradford, No. 0734, Sept. Term, 2011 (filed Dec. 20, 2012) (Judges Woodward, WRIGHT & Eyler (retired, specially assigned)). RecordFax No. 12-1220-03, 19 pages.

FACTS: This case arose from a medical negligence claim by plaintiff Wilhelmina Bradford. JAI Medical Systems Managed Care Organization, Inc. (“JAI”) was a managed care organization (“MCO”) formed to provide health insurance to Medicaid patients. Medicaid recipients enrolled in a MCO through the Maryland Department of Health and Mental Hygiene (“DHMH”). After an individual enrolled through DHMH, the State notified the MCO selected by the individual of the new enrollment. The MCO, in this case JAI, then sent each new enrolled member a Member Handbook containing information about the health insurance benefits provided by JAI, how to obtain the covered health care services, how the services were paid, and the grievance procedure. Members also received a Provider Directory listing the approximately 4,000 providers in the JAI network. Each member selected a primary care physician (“PCP”) from the list of providers in JAI’s network to provide the majority of care. When necessary, the PCP would refer the member to a specialist, using a referral form. JAI entered into contracts with health care providers, hospitals, and specialists to become part of the JAI network.

One of JAI’s in-network health care providers, Hollis Seunarine, M.D., P.A., owned and operated several medical clinics, including the Eutaw Medical Center. The reception area of the Eutaw Medical Center displayed a sign stating that the provider accepted “several insurances” including Jai Medical Systems Managed Care Organization, Maryland Primary Care, Aetna, the Department of Social Services, DSS, Medicare, and Medicaid. Dr. Seunarine employed Wilhelmina Bradford’s PCP, Dr. Peter Chiang, at the Eutaw Medical Center.

Dr. Stephen Bennett was not employed by Dr. Seunarine, but was a member of the JAI network of providers. Dr. Bennett signed the standard contract that every JAI network provider signed, and while JAI reviewed and approved Dr. Bennett’s credentials before he joined the network, JAI did not provide him with training or direct his activities or medical decisions. Dr. Bennett was listed in the Directory as a specialist (podiatrist).

Bradford, a widow with an eighth-grade education, enrolled in JAI in 1998. At that time, she suffered from depression, hypertension, HIV, and alcohol abuse. She initially received medical care at a walk-in clinic named “Jai Medical Center” but later changed to the Eutaw Medical Center. Eutaw Medical Center was listed on Bradford’s member card as her PCP.

In July 2008, Bradford visited Dr. Chiang for treatment of pain in her right foot and a large bunion. Bradford sought a referral from Dr. Chiang to a specialist. She specifically requested a referral to Dr. Bennett because another patient in the waiting area had recommended Dr. Bennett. After Bradford received the referral, Dr. Bennett performed surgery on Bradford’s right foot to remove her bunion. Following the surgery, Bradford’s toes became gangrenous. Eventually, her toes and part of her right foot were amputated, and a bypass was performed on her right leg leaving her lower limb disfigured. It was undisputed that Dr. Bennett was negligent.

On May 8, 2009, Bradford filed a complaint in the circuit court against Dr. Bennett and various other defendants. Bradford later amended her complaint, adding JAI, Jai Medical Systems, Inc., and Hollis Seunarine, M.D., P.A., as defendants. The claim asserted against the three new defendants was that they were responsible for the acts and/or omissions of Dr. Bennett, as he was their agent, servant, or employee. JAI filed a motion for summary judgment prior to trial asserting that it was an insurance company that did not employ any health care providers. The circuit court denied the motion.

At the close of Bradford’s case, JAI renewed its motion for judgment. The court again denied the motion. The case was submitted to the jury to determine damages and the issue of whether Dr. Bennett was the apparent agent of either JAI or Dr. Seunarine. The jury found that Dr. Bennett was not the apparent agent of Dr. Seunarine but was the apparent agent of JAI. JAI then filed motions for JNOV and a new trial. The court denied both motions.

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

LAW: JAI asserted that the trial court erred in finding the doctrine of vicarious liability so broad as to permit a managed care organization to be held liable for the actions of a physician in its provider network under a theory of apparent agency. Maryland has adopted the Restatement (Second) of Agency, §267 (1958) in determining the existence of an apparent agency relationship. According to the Restatement definition, “One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care of skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care of skill of the one appearing to be a servant or other agent as if he were such.” Jacobs v. Flynn, 131 Md. App. 342, 384-85 (2000).

The first test of apparent agency is objective: could a reasonable man believe that the company’s manifestations of apparent authority indicate it is holding the operator out as its agent? Chevron, U.S.A., Inc. v. Lesch, 319 Md. 25, 35 (1990). The second is subjective: could the facts known by the plaintiff in a particular case reasonably justify his assumption that the operator was the company’s agent? Id. The Chevron Court concluded that in order for liability to attach under the doctrine of apparent agency, a party must show that 1) he/she was misled by the appearances of another into believing that the tortfeasor was the other’s agent; 2) that belief was objectively reasonable under all the circumstances; and 3) he/she relied on the existence of that relationship in making their decision to trust the tortfeasor. Id. at 34-35. Regarding the third element, the mere fact that acts are done by one whom the injured party believes to be the defendant’s servant is not sufficient to cause the apparent master to be liable; there must be such reliance upon the manifestation as exposes the plaintiff to the negligent conduct. Id. at 35.

In this case, the burden was on Bradford to show that appearances created by JAI led her to believe that Dr. Bennett was an agent of JAI. See Mercedes-Benz of N.Am., Inc. v. Garten, 94 Md. App. 547, 557 (1993). However, a review of the record revealed that JAI’s materials comported with State requirements for an MCO, and that JAI consistently defined itself to Bradford as an insurance provider. The record contained no evidence that JAI made any representations that Dr. Bennett was anything other than a health care provider in its network.

The record was similarly devoid of evidence regarding what Bradford thought she was signing up for in 1997, what her understanding of an MCO was, and who she thought employed Dr. Bennett. Bradford’s statements suggested that she understood that JAI was the equivalent of medical insurance, which was consistent with JAI’s argument and the representations made in its Handbook. There was a paucity of evidence as to Bradford’s subjective beliefs regarding the relationship between JAI and Dr. Bennett that was created by any representations of JAI. Therefore, there existed insufficient evidence for a reasonable jury to find this element satisfied by a preponderance of the evidence.

With regard to the objective reasonableness of Bradford’s belief, JAI argued that it was manifestly unreasonable as a matter of law for Bradford to conclude that Dr. Bennett was the employee of JAI. A “reasonable person” is defined as “a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of other’s interests.” BLACK’S LAW DICTIONARY 1294 (8th Ed. 2004). Therefore, the question here was whether a reasonable person in Bradford’s circumstances would have believed that Dr. Bennett was an apparent agent of JAI.

Despite the complicated corporate structure of JAI and the other defendants, the trial court’s conclusion that, because of this structure alone, Bradford’s beliefs were objectively reasonable, was in error. As JAI contended, the trial court, in denying JAI’s motion for judgment, erred in not applying the “common knowledge” test espoused in Chevron. Chevron, 319 Md. at 34-35. Applying this test, it is common knowledge that MCOs are the equivalent of insurance providers and not the provider of actual medical services. Thus, the listing of health care providers accepting a given insurance plan was not a manifestation of agency, but rather notice to enrolled members as to whose services JAI would cover. Simply providing information to Bradford about who accepted a particular insurance was distinguishable from providing medical services. See P. Flanigan & Sons, Inc. v. Childs, 251 Md. 646, 655 (1968).

A reasonable person with Bradford’s education could comprehend that JAI was an MCO. Bradford had a history of using Medicaid and, therefore, must have been familiar with how such a managed care system worked, and she was sophisticated enough to comply with treatment for her multiple medical issues, including HIV. The Handbook provided by JAI detailed how the MCO was set up and worked, including explaining how members could obtain treatment. There was no evidence presented that the Handbook failed to explain what JAI was, or that Bradford was unable to understand it because of her limited formal education.

In sum, a belief that a provider in an MCO’s network is an agent of the MCO is unreasonable as a matter of law. As such, the trial court erred in submitting the issue of apparent authority to the jury and denying JAI’s motions for judgment. Accordingly, the judgment of the circuit court was reversed.

COMMENTARY: As JAI further contended, the record contained no evidence that Bradford relied on the Handbook or Directory in selecting Dr. Bennett. Bradford did not go into a medical facility and request podiatry services, only to be assigned to whatever doctor was available. Instead, she specifically requested a referral to see Dr. Bennett. The law is clear that for there to be liability in a case such as the present one, there must be actual reliance upon the part of the person injured. B.P. Oil Corp. v. Mabe, 279 Md. 632, 644-45 (1977). Here, Bradford did not adduce sufficient evidence to prove such reliance.

PRACTICE TIPS: An MCO is required by law to provide “health care services,” defined as any health or medical care procedure or service rendered by a health care practitioner that provides testing, diagnosis, or treatment of human disease or dysfunction. The MCO retains a primary duty to ensure that its subcontractors provide the services that the MCO is required to provide.