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Law digest – 3/14/13

Environmental law, Public notice requirement: In prosecution of defendant for illegal use of hydraulic clam dredge in an submerged aquatic vegetation protection zone, Maryland Department of Natural Resources was required to prove as element of its case its compliance with statutory “public notice” provision requiring publication of delineations of protection zones, and failure to do so rendered defendant’s conviction invalid. Lowery v. State, No. 26, Sept. Term, 2012. RecordFax No. 13-0228-21

Torts, Compensatory damages: Even though defendant’s counsel conceded liability and, in opening and closing arguments at trial, stated to the jury that defendant would pay whatever the jury awarded, defendant did not waive its right to appeal the award for compensatory damages. Exxon Mobil Corp. v. Ford, et al., No. 16, Sept. Term 2012. RecordFax No. 13-0226-21

Torts, Sufficiency of evidence of fraud: The circuit court erred by denying defendant’s motion for judgment notwithstanding the verdict of fraud because plaintiffs failed to establish that they detrimentally relied on defendant’s alleged misrepresentations. Exxon Mobil Corp. v. Albright, et al., No. 15, Sept. Term 2012. RecordFax No. 13-0226-20

COURT OF SPECIAL APPEALS 

Administrative Law, Liquor license: Local licensing provision in Baltimore, which stated that a liquor license with a hardship extension from the licensing board expires 360 days after the business closes or ceases active operation in alcoholic beverages, rather than the typical 180 days, prevailed over conflicting general provisions in Maryland state code; therefore, where the liquor licensing board granted a hardship extension within 180 days of restaurant’s last day of active alcoholic beverages business, the license remained “live” and subject to transfer.YIM, LLC v. M. Hasip Tuzeer, No. 0984, Sept. Term, 2011. RecordFax No. 13-0228-01

Commercial Law, Derivative liability under SMLL: Where defendant was an assignee of plaintiffs’ loan, there was no statutory or common law basis to impose derivative liability on defendant for any of the alleged violations of the Secondary Mortgatge Loan Law, regardless of whether defendant was a holder in due course. Thompkins v. Mortgage Lenders Network USA, Inc., No. 98, Sept. Term, 2011. RecordFax No. 13-0228-00

Contract Law, Damages: The per diem damages provision in the agreement of sale was a lawful liquidated damages clause rather than an unlawful penalty. Cuesport Properties, LLC v. Critical Developments, LLC, No. 2752, September Term, 2010. RecordFax No. 13-0227-04

Criminal Procedure, Condition of probation: A probation condition prohibiting direct contact between defendant and his wife, the domestic violence victim, is not an illegal sentence despite the victim’s expression that it is her desire to reconcile with defendant. Lambert v. State, No. 2542, September Term, 2010. RecordFax No. 13-0227-00

Criminal Procedure, Waiver of right to a unanimous verdict: Where defendant informed the court that he wished to waive his right to a unanimous verdict, and, alternatively opt for a majority verdict, because he believed the jury was headed toward an acquittal, defendant’s waiver of his right to a unanimous verdict was knowing and voluntary.Claybourne v. State, No. 0443, September Term, 2011. RecordFax No. 13-0228-03

Evidence, Expert testimony: The trial court abused its discretion by permitting testimony about the cellulara cell tower site location without qualifying the State’s witness as an expert, where the only reason that the State offered such evidence was to show that these towers, and therefore the defendants, were in close proximity to the scene of the crime on the date and time in question and the error is not harmless beyond a reasonable doubt. Payne v. State, No. 2156, Sept. Term, 2009 and Bond v. State. RecordFax No. 13-0227-03

Evidence, Post-accident conduct: The trial court did not err in excluding evidence of defendant’s post-accident conduct, which included leaving the scene of the accident and laughing at plaintiffs while they were trapped in their vehicle, because such evidence was irrelevant and its probative value was outweighed by the danger of undue prejudice. Alban v. Fiels, No. 1038, September Term, 2011. RecordFax No. 13-0228-02

Evidence, Unavailability of witness: The circuit court did not err in admitting, under Rule 5-804, a witness’ prior testimony when the witness’ refusal to testify at trial made him “unavailable,” and a witness’ grand jury testimony on the ground that defendant procured his unavailability at trial, pursuant to CJ §10-901. Alexis v. State, Nos. 2786 &, 2787, Sept. Term, 2010. RecordFax No. 13-0227-01

Family Law, Child support: The circuit court did not abuse its discretion in denying a motion to disqualify the trial judge, conducting an interview of the parties’ daughter or granting an above-guidelines award of child support. Karanikas v. Cartwright, No. 1314, Sept. Term, 2012. RecordFax No. 13-0226-08

U.S. 4TH CIRCUIT COURT OF APPEALS 

Constitutional Law, Censorship: In case involving constitutional challenge of city ordinance which prohibited individuals from soliciting immediate donations in public street, district court erred in dismissing plaintiffs’ complaint for failure to state a claim, because complaint plausibly alleged that city enacted ordinance with a censorial purpose and in violation of First Amendment. Clatterbuck v. City of Charlottesville, No. 12-1149. RecordFax No. 13-0221-61

Criminal Procedure, Appeal waiver : Where defendant affirmed that he had read and discussed the plea agreement with his lawyer prior to signing it, and that he understood the terms of the document and the appellate rights he was giving up, the appeal waiver was valid. U.S. v. Copeland, No 11-4654. RecordFax No. 13-0225-61

Criminal Procedure, Capital punishment: Where defendant acted with monetary motives, planned and premeditated the murder, exploited his military and law enforcement experience in committing it, and showed no remorse, the jury was justified in concluding that these aggravators sufficiently outweighed the mitigators established by the defense, and defendant offered no reason to upset the judgment or death sentence. U.S. v. Runyon, 09-11. RecordFax No. 13-0225-60

Criminal Procedure, Sex offender registration: When enforcing Sex Offender Registration and Notification Act, the rights of the juvenile offender do not outweigh the rights of the community and victims to be free from additional sexual crimes. U.S. v. Under Seal, No 12-4055. RecordFax No. 13-0226-63

Criminal Procedure, Warrantless searches: Although police are given wide latitude to fulfill their function, the police disregarded defendant’s right against unreasonable search and seizure because the officers’ observations of defendant, who was lawfully carrying a weapon and was with another person who had an arrest record, gave them no right to detain the defendant. U.S. v. Black, No 11-5084. RecordFax No. 13-0225-62