Opinions – 1/3/14: Maryland Court of Appeals

Listen to this article

Criminal Law

Contempt of court 

BOTTOM LINE: There was insufficient evidence to support a finding that defendant was in direct criminal contempt of court because there was no evidence that defendant willfully, and in the presence of the presiding judge, interrupted an order of the court and interfered with the dignified conduct of the court’s business.

CASE: Hammonds v. State, No. 14, Sept. Term, 2013 (filed Dec. 3, 2013) (Judges Barbera, Harrell, Battaglia, GREENE, Adkins, McDonald & Watts). RecordFax No. 13-1203-21, 36 pages.

FACTS: Terry Hammonds was charged second degree assault, which stemmed from an incident when Hammonds struck and kicked Audrey Wilgis. Following a guilty verdict, Ms. Wilgis gave a victim impact statement. Hammonds was sentenced to ten years in prison, with all but 18 months suspended, and three years’ probation. Under the “Standard Conditions” of Hammonds’ Probation/ Supervision Order, Hammonds was required to “[o]bey all laws.”

Approximately one week later, the State petitioned to revoke Hammonds’ probation based on his actions following sentencing. At the probation revocation hearing, Deputy John Wilson, who was standing next to Hammonds at the time of sentencing, testified. He stated that after Hammonds received his sentence, he calmly signed his probation papers, and then began to tear up his personal copy of the documents. Deputy Wilson then escorted Hammonds out of the courtroom and back to lockup. As they were walking down the hall, Hammonds was talking out loud. He testified that Hammonds stated: “She don’t know it, but she just signed her death warrant,” and “she’s going to be one sorry bitch in a year and a half.” Hammonds then repeated these statements to other detainees when he was back in lockup. Deputy Wilson reported to the State’s Attorney’s Office that Hammonds made these statements.

Following Deputy Wilson’s testimony and after relating her own observations, the trial judge revoked Hammonds’ probation. The Court of Special Appeals affirmed.

Hammonds appealed to the Court of Appeals, which reversed and remanded.

LAW: A probation revocation case typically involves two stages: “(1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation.” Wink v. State, 317 Md. 330, 332 (1989). The State must satisfy the first stage by a preponderance of the evidence standard. Id. At the second stage appellate review is for an abuse of discretion.

Hammonds was found in contempt of court for his actions inside the courtroom following his trial and sentencing for second-degree assault. At his probation revocation proceeding, the trial court determined that Hammonds violated the condition of his probation that he “obey all laws” by committing a contemptuous act at the earlier hearing.

“We recognize two forms of contempt—direct and constructive—and two types of each form— criminal and civil. Direct contempt is committed in the presence of the trial judge or so near to him or her as to interrupt the court’s proceedings, while constructive contempt is any other form of contempt. Criminal contempt serves a punitive function, while civil contempt is remedial or compulsory and must provide for purging.” Smith v. State, 382 Md. 329, 338 (2004). “A direct contempt occurs when the actions of the contemnor interrupt the order of the courtroom and interfere with the conduct of business.” State v. Roll, 267 Md. 714, 734 (1973). Moreover, “[w]hen such disruption occurs within the sensory perception of a presiding judge he [or she] will have a sufficient knowledge of the contemptuous act which tends to interrupt the proceedings and will not have to rely on other evidence to establish all the details, though some of them can be supplied by additional testimony.” Id.

When a trial court does not impose sanctions summarily for an alleged contemptuous act under Rule 15-203, Rule 15-204 mandates that any later proceeding involving a direct contempt shall be conducted pursuant to Rule 15-205 (constructive criminal contempt) or 15-206 (constructive civil contempt). See King v. State, 400 Md. 419, 441 (2007). Here, had the trial judge later opted to pursue sanctions against Hammonds, she would have done so under the guidelines of Rule 15-205 for criminal contempt.

Here, Hammonds was confronted with an allegation of criminal contempt on the basis of conduct which occurred in the courtroom and was allegedly a violation of the condition of his probation that he “obey all laws.” See Dean v. State, 291 Md. 198, 203 (1981). In order for a charge of direct criminal contempt to stand, the alleged contemnor must have acted willfully. See Ashford v. State, 358 Md. 552, 563 (2000). In a direct criminal contempt situation, “[w]hat is sought to be guarded against is an inability to comply caused by a deliberate effort or a wilful act of commission or omission and committed with the knowledge that it would frustrate the order of the court.” Ashford, 358 Md. at 562. Moreover, “[b]efore the court could make a finding of wilfulness and direct contempt, there must be legally sufficient evidence that would be admissible in a criminal case to support those findings.” King, 400 Md. at 433 n.3.

Hammonds’ alleged contemptuous conduct was brought before the court in a revocation of probation proceeding, rather than in a criminal contempt proceeding, and accordingly, the process and burden of persuasion of the two proceedings are different. “It is firmly established that a revocation of probation hearing is a civil proceeding, in which the probationer is not cloaked with the full panoply of constitutional rights and procedural safeguards enjoyed by a defendant in a criminal cause.” Gibson v. State, 328 Md. 687, 690 (1992). Before probation may be revoked, a court must be reasonably satisfied that the probationer has violated a condition of his or her probation, and this “reasonable satisfaction need be established by no more than a preponderance of the evidence.” Id. at 695. Therefore, even when a probationer has not been convicted of a subsequent crime, “[i]f it is shown by independent, probative evidence” that such a crime was committed and the trial court is reasonably satisfied that the probationer committed that crime, “probation may be revoked on the ground that the probationer violated the special condition of his probation that he obey all laws.” Dean, 291 Md. at 203.

The inquiry at the probation revocation proceeding should have been whether the evidence showed, by a preponderance of the evidence, that Hammonds willfully and in the presence of the presiding judge, “interrupted the order of the court and interfered with the dignified conduct of the court’s business.” Rule 15-203.

Although the trial judge stated, five weeks after the incident, that she did perceive Hammonds tear up the paper, based on this record, the act of tearing up the probation papers neither interrupted the order of the court, nor did it interfere with the dignified conduct of the court’s business. Rule 15-203. Essentially, the record did not support a finding that Hammonds made a “deliberate effort” to disrespect the presiding judge or interrupt the court proceedings. Moreover, Deputy Wilson described Hammonds’ demeanor as “calm” when he received his sentence and executed the paperwork, and never testified that Hammonds acted “violently,” in a threatening or insulting manner, or in an out of control manner at that point in time.

In a case somewhat factually similar to the present case, the intermediate appellate court reversed the trial court’s finding of contempt where a spectator in a courtroom “slammed his hands down” on the back of the bench in front of him “apparently in exasperation at the justice meted out to” his friend. Jones v. State, 32 Md. App. 490, 492 (1976). As in the present case, the Petitioner in Jones was not standing before the court at the time and committed a single, non-disruptive act, apparently in exasperation with the events that occurred in court.

Conversely, the Court of Appeals has only recognized more disruptive and confrontational acts to be contemptuous. In Mitchell v. State, 320 Md. 756 (1990), the defendant was found in direct criminal contempt when he “gesture[d] with his middle finger” to the trial judge after he was sentenced and while he was still in front of the presiding judge. See also Wilkins v. State, 293 Md. 335 (1982).

Additionally, the record was insufficient to prove that Hammonds acted willfully, as required in a finding of direct criminal contempt, when he tore up his copy of the court documents. According to the record, the trial judge had already moved on to another matter, Hammonds was sitting next to the exit door in the courtroom, and he did not act out in a “violent” manner or direct his actions toward the court or the presiding judge. One act made in exasperation or agitation that does not disrespect the presiding judge or deliberately interrupt proceedings is not contemptuous or an obstruction to the administration of justice.

Under the circumstances of the present case, the record was insufficient to support a finding of direct criminal contempt.

“A decision [to revoke probation] based in whole or in part on improper grounds cannot stand.” Smith v. State, 306 Md. 1, 7, 11 (1986). There was insufficient evidence in the record to support a finding that Hammonds committed direct criminal contempt of court.

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

COMMENTARY: CL §9-303(a) prohibits retaliation against witnesses or victims of crimes who testify about or report criminal activity. The statute provides that “[a] person may not intentionally harm another, threaten to harm another, or damage or destroy property with the intent of retaliating against a victim or witness for: (1) giving testimony in an official proceeding; or (2) reporting a crime or delinquent act.”

The statute does not include a definition of “threaten” or “threat.” Black’s Law Dictionary defines “threat” as “a communicated intent to inflict harm or loss on another or on another’s property, esp[ecially] one that might diminish a person’s freedom to act voluntarily or with lawful consent.” Black’s Law Dictionary 1519 (8th ed. 2004). In addition, Webster’s Dictionary defines “threat” as “[a]n expression of an intention to inflict something harmful[;]” and “threaten” as “to express a threat against[;] to serve as a threat to[;] to give signs or warning of[;] to announce as possible.” Webster’s II New College Dictionary 1176 (3d ed. 2005). None of these definitions indicate who must hear the statement or to whom the statement must be directed in order for an expression to fall within the definition of “threat,” so long as the statement or expression evidences an intent to inflict harm.

In Parker v. State, 189 Md. App. 474 (2009), the Court of Special Appeals noted that “the words ‘threaten to harm’ are unambiguous [a]nd the operative phrase ‘threaten to harm another’ has a common and generally accepted meaning.” Id. at 484-85. The retaliatory threat at issue in Parker was communicated directly to the witness, but conveyed an intent to harm the witness’ family rather than the witness himself. The Court of Special Appeals held that a person of ordinary intelligence would know that the statement threatening the family of the witness “would be viewed as conduct threatening harm in retaliation for the witness’ participation in the proceeding” and therefore the statute is constitutional. Id. at 485.

Additionally, in discussing the defendant’s challenge as to sufficiency of the evidence, the intermediate appellate court determined that the statute only requires proof of (1) an intentional threat of harm to another, and (2) that defendant made the threat with the intent to retaliate against a witness. Id. at 486-87. Requiring communication to a witness would constitute an additional element which is not present in the statute.

Thus, the plain meaning of the statute does not contain a requirement of actual communication of the threat to the witness or victim, or with the belief that the threat would be communicated to the witness or victim. Moreover, the legislative history of §9-303 supports this interpretation. See Tracy v. State, 423 Md. 1 (2011).

Hammonds’ statements, “[s]he don’t know it, but she just signed her death warrant” and “[s]he’s going to be one sorry bitch in a year and a half,” constituted a “communicated intent to inflict harm,” Moosavi v. State, 355 Md. 651 (1999), and, therefore, a “threat” for the purposes of §9-303(a). Secondly, a trier of fact could reasonably conclude that when Hammonds made these statements immediately after the sentencing, he intended to retaliate against Ms. Wilgis for giving a victim impact statement. Both elements of the crime were complete when Hammonds made the statements immediately following the trial and sentencing at which Ms. Wilgis gave a victim impact statement.

Accordingly, Hammonds violated §9-303(a). On remand, the trial court must determine whether it would revoke Hammonds’ probation solely for his violation of §9-303(a) which, in and of itself, could be a violation of the “obey all laws” condition of probation.

Election Law

Petition for referendum 

BOTTOM LINE: Minor errors in the circulator affidavit did not invalidate petition signatures that were already certified by the appropriate administrative body, because having one or two digits of a circulator’s zip code misstated did not defeat the purpose of attaching the circulator’s affidavit to petition signatures, so that the circulator of the petition could be identified, located, and served a subpoena.

CASE: FOP Lodge 35 v. Montgomery County, No. 132, Sept. Term, 2011 (filed Dec. 2, 2013) (Judges Barbera, Harrell, Greene, Adkins, McDonald & BELL (retired)) (Judge Battaglia dissenting). RecordFax No. 13-1202-20, 26 pages.

FACTS: On July 19, 2011, the County Council passed Bill 18-111 to amend §§33-80(a)(7) of the County Code. Section 33-80(a), which prescribes the scope of County collective bargaining with its police department union.

Prior to the enactment of the Bill, §33-80(a)(7), which required effects collective bargaining, i.e. that the Executive bargain with a certified employee group over the “effect on employees of the employer’s exercise of rights listed in [§33-80](b),” restricted the free and unfettered exercise of the Executive’s rights. Bill 18-11 was enacted to prevent police unions from using “effects bargaining” to hinder the implementation of Executive initiatives made pursuant to §33-80(b).

Fraternal Order of Police, Lodge 35 (“FOP 35”), in response to the passage of the Bill, initiated a Petition to place the bill on the November 4, 2012 ballot for voter referendum. To do so, pursuant to County Charter §1142 and consistent with Article 11-F, §7 of the Maryland Constitution, FOP 35 was required to obtain approximately 30,000 signatures. FOP 35 engaged the services of a California and Michigan based company, which specialized in gathering signatures for petition drives, to assist in gathering the required signatures. Through the company’s efforts, FOP 35 collected 48,935 signatures in Montgomery County. Those signatures were timely submitted to the County Board of Elections (“MCBE”) for verification and validation.

Each petition page submitted to the Board, as required by §6-201(c) of the Election Law Article (“EL”) contained, among other things, a copy of the Bill, spaces for signatures, printed names, and signer addresses and, at the foot, the affidavit of the circulator. The circulator’s affidavit was in the form of, and contained the statements required by, EL §6-204, COMAR 33.06.03.07, and COMAR 33.06.03.08. Pursuant to COMAR 33.06.03.07, following the affidavit was also a space for the circulator’s name, signature, telephone number, and address, including city, state, and zip code.

Two circulators, filled out by Chris Head and Jesse Rowe, misstated the zip codes for their addresses by one digit. The zip codes were for addresses in Michigan. Despite the incorrect zip codes, the MCBE checked each signature and certified that 34,828 of the 48,935 signatures were those of registered voters of Montgomery County, more than required by law. In November 2011, the Board announced by letter that the bill was certified for placement on the ballot.

Seeking to prevent the referendum on the Bill, the County filed a complaint against the MCBE, seeking judicial review and declaratory relief. The complaint challenged the MCBE’s certification of the Petition, alleging violation of EL §6-203.10.

FOP 35, as proponents of the petition to referendum, having been granted leave to intervene, moved to dismiss the complaint, arguing that the respondents’ failed to exhaust available administrative remedies, as well as failed to file timely the administrative record before the MCBE in compliance with Maryland Rule 7-206.11 The circuit court denied the motions.

The respondents amended their complaint to add another action for declaratory judgment, this one pursuant to the CJP §3-401, and continued to prosecute their action on the new theory that the MCBE had unlawfully counted the voters’ signatures on the circulation petition pages, in which the zip code provided by a circulator was erroneous. This, they maintained, was a violation of EL §6-204. On this ground, the respondents filed a motion for summary judgment, contending that thousands of signatures were improperly certified by the MCBE, because affidavits signed by circulators in support of the Petition were incorrect, incomplete, or fraudulent. The petitioners responded by filing a cross-motion for summary judgment on the ground that the County did not have standing, pursuant to EL §6-209, to appeal the MCBE’s certification.

The court granted the respondents’ motion for summary judgment, relying on Tyler v. Secretary of State, 229 Md. 397 (1962), and agreed that the petition pages containing circulators’ incorrectly recorded zip codes should be rejected.

Petitioners appealed to the Court of Special Appeals, which reversed the judgment of the circuit court and upheld the decision of the MCBE.

LAW: In Tyler v. Secretary of State, 229 Md. 397 (1962), a registered voter opposed a referendum on a bill involving the establishment of new school bus routes, contending, among other things, that at least one of the signers of the referendum petition was not a registered voter of the State and County. The opponent further contended that the statement in the accompanying affidavit of the circulator, attesting to the affiant’s personal knowledge of the signer’s eligibility, was therefore, false and fraudulent and ineligible for certification. The issue was “the effect upon a referendum petition of the falsity, in part, of the statement in the accompanying affidavit of the circulator…that the signers of the petition were registered voters of the State and County, as set opposite their names….Whether such falsity amounts to fraud or gives rise to a presumption of fraud depends, we think, upon a determination of the intent behind the language employed in setting out the requirements of the affidavit.” Id. at 401-02.

It was concluded that an inaccurate circulator affidavit created the presumption of fraud because the circulator falsely attested to a fact of which he had a duty to know. Id. at 405. In reaching this conclusion, it was observed that Maryland at that time was one of the only states that imposed a duty on the affiant to certify, not merely his belief that the attached signatures were valid, but to his personal knowledge in every particular fact or allegation, which is original and does not depend on information or hearsay. Id. at 404.

It was concluded that, wherever the affiant failed in this duty, that affiant’s submission would be presumed fraudulent, and, in the absence of rebuttal evidence, the petition signatures would be invalidated. The reason for this was that, while provisions pertaining to ballot referendums are to be liberally construed, a referendum valid on its face carried the drastic effect of suspending legislation designed to correct a particular evil. Id. at 402.

As such, the “crux of the matter was the falsity of the statement that, of the affiant’s own personal knowledge, such persons were registered voters.” Id. at 404. It was therefore concluded that each circulator had the duty to execute an affidavit attesting “personal knowledge” that every signatory to the petition was in fact eligible to sign. Id. at 405.

There is simply no call among the controlling authorities for invalidating otherwise valid petition signatures in the absence of fraud because a petition circulator failed to dot an “i” or cross a “t”. See Montgomery County Volunteer Fire-Rescue Ass’n v. Montgomery County Bd. of Elections, 418 Md. 463, 470-71. Maryland law makes it clear that the purpose of attaching the circulator’s affidavit to petition signatures is so that the circulator of the petition can be identified, located, and if necessary, served a subpoena. Id. at 473-74. Having one or two digits of a circulator’s zip code misstated does not defeat that purpose. The circulators still could be identified, as the addresses provided were more than adequate for their intended purposes, and the correct zip code was easily discoverable and available. Therefore, minor errors in the circulator affidavit do not invalidate petition signatures that are already certified by the appropriate administrative body.

Accordingly, the judgment of the circuit court was reversed and the decision of the MCBE was upheld.

COMMENTARY: The respondents took from Tyler that the affiants’ incorrect zip code information created a presumption of fraud, and that the petitioners have failed to produce evidence to rebut that presumption. The respondents, therefore, conclude that the signatures attached to the affidavits are necessarily invalid.

The respondents’ analysis failed to consider that Maryland Election Law has changed significantly since Tyler was decided. Maryland has since joined the majority of states that do not require that affiants attest to personal knowledge as to the signer’s actual voting status. Indeed, current Maryland election law places the burden of verifying signatures and counting validated signatures contained in the petition upon the staff of the election authority, in this case the County Board of Elections, not upon the petition circulators. EL §6-207(a).

Rather than attest personal knowledge of the signatory’s eligibility to vote, Maryland law now only requires that the petition circulators attest to the best of their knowledge and to their belief that the signatures given are genuine and that the signers are registered voters. The legal analysis underlying Tyler’s holding was, therefore, inapplicable to this case, and for this reason, Tyler provided no support for the respondents’ argument.

DISSENT: The dissent and would have affirmed the circuit court’s ruling that an affidavit containing information provided by a circulator that is incorrect is contrary to the clear and unambiguous statutory mandate of EL §6-204(b) and, therefore, should be rejected. See Doe v. Montgomery County Board of Elections, 406 Md. 697 (2008).

Family Law

Child custody 

BOTTOM LINE: In a child custody case, the trial court abused its discretion by applying a local court policy to procedural matters that required the court to exercise its discretion, resulting in presumed prejudice to Appellant.

CASE: Sumpter v. Sumpter, No. 120, Sept. Term, 2011 (filed Dec. 9, 2013) (Judges Barbera, Harrell, Battaglia, Greene, ADKINS, McDonald & Watts). RecordFax No. 13-1209-20, 27 pages.

FACTS: Sean Sumpter filed a complaint in the circuit court for absolute divorce from Millicent Sumpter. Sean also sought sole physical and legal custody of the couple’s two children.

Before the merits hearing on Sean’s petition for divorce, the court ordered that the Adoption and Custody Unit (ACU) for the circuit court complete a custody investigation report (the Report). The Report summarized interviews that ACU staff conducted with the parties, the parties’ relatives and partners, and the children. The Report also described the parties’ personal, criminal, health, education, housing, child protective services, and employment histories. This information was presented as findings in the Report’s first 17 pages. The findings were supplemented with 17 attachments, which consisted of 147 pages of various records. The Report did not make a recommendation concerning custody of the children.

The Report was due on November 1, 2010, in time for a scheduled pre-trial conference, but the ACU did not file the Report with the court until December 3, 2010. That day, the ACU sent counsel for both parties a letter indicating that the Report was complete and could be reviewed at the Family Division Clerk’s Office. Counsel for Millicent received this notification on December 6, 2010, and visited the Family Division Clerk’s Office at 2:30 p.m. that day.

Counsel’s access to the Report in the present case was limited by the 2004 Policy Regarding Distribution of Court Ordered Evaluative Reports, promulgated by the circuit court in 2004, which states that attorneys are allowed to view all of the sections of a Report in the Clerk’s office. They are not be allowed to take the report out of the office and are not be allowed to copy the report. Attorneys may obtain copies of a report with an Order of the Court.

Millicent’s counsel studied the Report and took notes for ninety minutes until the Family Division’s Clerk’s office closed for the day. Millicent’s counsel was not able to return to the clerk’s office before the merits hearing, and did not see the Report again until that time.

At trial, Millicent’s counsel moved in limine to exclude the Report from evidence, or, in the alternative, to receive a copy of the Report. The trial court denied these motions, erroneously stating that the Policy prevented copies from being taken out even in the control of counsel. The trial court did allow counsel access to the Report during breaks for the purpose of examining witnesses. To accomplish this, the court’s copy of the Report had to be shared amongst counsel.

The trial court granted Sean’s petition for divorce and awarded him sole legal and physical custody of the children. The Court of Special Appeals affirmed the circuit court.

Millicent appealed to the Court of Appeals, which declined to reach the merits of Millicent’s appeal and remanded the case for supplementation of the record.

LAW: Discretionary trial court matters are “much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or autocratic action has occurred.” Northwestern Nat’l Ins. Co. v. Samuel R. Rosoff, Ltd., 195 Md. 421, 436 (1950). Even when there is an abuse of discretion, “appellate courts of this State will not reverse a lower court judgment for harmless error: the complaining party must show prejudice as well as error.” See Harris v. David S. Harris, P.A., 310 Md. 310, 319 (1987). Prejudice means an “error that influenced the outcome of the case.” Id.

A child custody investigation report’s main content is a series of individual investigations of the parents and relatives, and interviews with both children. These reports typically contain substantial hearsay and hearsay-within-hearsay. These reports also include the investigators’ subjective impressions on matters like the parties’ homes, their relationship with the children, and the parties’ relationship with each other. The Report’s attachments include items like Millicent’s mental health records, the children’s school records, and various court documents. Likely, this is fertile ground for content that is biased, subjective, and contestable.

Under the Policy, Millicent’s counsel had limited time to examine the Report and investigate its findings—a process that requires interviewing witnesses and evaluating documents. Without a copy of the Report, Millicent’s counsel was not able to present the Report to an expert. Indeed, without a copy of the Report, Millicent may not have been able to retain an expert at all. Consequently, Millicent was unable to prepare a vigorous rebuttal of the Report.

By disabling Millicent from fully challenging the Report, the trial judge deprived the court of one of the core benefits of the adversarial system: the progression towards truth through the presentation of counter-evidence. And, by so gravely impairing Millicent’s interest in a fair trial, application of the Policy surpassed, in this instance, mere court administration.

In Gunning v. State, 347 Md. 332, the Court of Appeals considered a trial judge who applied a policy denying requested eyewitness identification instructions based on his personal opinion that such instructions were inappropriate. Id. at 351. The Court held that the trial court abused its discretion by applying a hard and fast rule to a decision that required the court to exercise its discretion. Id. The requested instructions “should have at least been given careful consideration in the instant cases, and arbitrarily rejecting them as always inappropriate was an abuse of discretion.” Id. at 353-54.

A judge presiding over a particular case may not blindly apply an administrative policy (or through misapprehension of what the policy required or allowed, misapply it) without considering the particular circumstances at hand. “Despite being vested with this discretion, the hearing judge failed to appreciate or exercise her discretion, in favor of an ‘unyielding adherence to [a] predetermined position,’ and an improper deference to her understanding of the Administrative Judge’s views. In this case, the record is clear that the hearing judge commenced the hearing with no intention of entertaining seriously the parties’ arguments (no matter what they were), but rather indicated that she had decided prior to the hearing to defer to the Administrative Judge’s opinion. When a circuit court is vested with discretion, such predispositions are inappropriate and constitute an abuse of discretion.” 101 Geneva LLC v. Wynn, 77 A.3d 1064, 2013 WL 5663815, at *4 (Md. 2013).

That is what happened here. The trial court misapplied a policy issued by the Judge in Charge of the Family Division for the circuit court for Baltimore City. The Policy does much more than impact the administration of the courts. By any standard, the Policy surpasses mere court administration and affects the rights of individual litigants.

Millicent’s access and ability to receive a copy of the Report is properly a matter of judicial discretion, as the Policy recognizes. See Goodman v. Commercial Credit Corp., 364 Md. 483, 491 (2001). The trial court abused its discretion by invoking what it incorrectly thought the Policy required, to govern its ruling. When the court denied Millicent’s motion based on this misapprehension, it applied a misconceived, hard and fast rule to a matter that required the exercise of its discretion.

Prejudice occurs when an error affects the outcome of a case. See Harris v. David S. Harris, P.A., 310 Md. 310, 319 (1987). The harmless error test does not have precise standards, but is instead based on the facts of each case. See Flores v. Bell, 398 Md. 27, 33 (2007). To determine whether prejudice occurred, courts look “to the degree to which the conduct of the trial has violated basic concepts of fair play.” Barksdale v. Wilkowsky, 419 Md. 649, 658 (2011). Generally, the complaining party must show that prejudice was probable, not just possible. Id. at 662.

The test for what constitutes prejudice varies based on the “context of the case—civil or criminal—and by the type of error alleged.” Barksdale, 419 Md. at 658. For particularly acute errors, the Court will employ a presumption of prejudice. Id. at 659. In cases involving egregious civil errors, the presumption of prejudice enables the Court to meet “the need to provide for hearty review of trial errors.” See Barksdale, 419 Md. at 660.

In Harris, the lower court erroneously disqualified one of the party’s attorneys. We “relied on a presumption of prejudice due to the practical impossibility of proving prejudice.” See Barksdale, 419 Md. at 660 (citing Harris, 310 Md. at 320). Had the Court not presumed prejudice, the disqualification would not be “subject to effective postjudgment review.” Harris, 310 Md. at 320.

Like the court in Harris, it was impossible to determine whether Millicent was prejudiced by the trial court’s error. The trial court’s error so hamstrung the defense that every aspect of the trial was affected. This error so infected the trial proceedings that it can only be characterized as egregious. Because determining prejudice was practically impossible, it was presumed.

Given the court’s misapprehension of the Policy, a continuance would not have resulted in Millicent receiving a copy of the Report. Without a copy of the Report, Millicent’s counsel would be limited to investigating its contents from the information captured in their personal notes. This would pose a practical hindrance to the investigation of the Report’s findings. Moreover, Millicent would still have difficulty retaining an expert. In this case, a continuance would not have been a cure-all.

The trial court abused its discretion by applying the Policy to procedural matters that required the court to exercise its discretion. Because of the egregious error of not allowing Millicent’s counsel a copy of the Report and the practical impossibility of evaluating prejudice, it was presumed that the trial court’s error prejudiced Millicent. For these reasons, the Court of Special Appeals was reversed.

Until this issue can be brought before the circuit court on remand, the custody order granting custody to Sean, with visitation to Millicent, was modified to an interim pendente lite order, subject to further order of the circuit court on remand and after a new hearing on this matter. See Koffley v. Koffley, 160 Md. App. 633, 641 (2005); Rule 8-604 (a)(4) and (e).

COMMENTARY: The State argued that Millicent disclaimed prejudice by declining to move for a continuance.

Even if Millicent had sought a continuance upon first discovering the belated filing of the Report, obstacles remained. First, a continuance is not easily obtained. Under the “Postponement Policy for the Circuit Court for Baltimore City,” a request for modification of a pretrial conference date or trial date “shall be made through a written motion for modification filed within 15 days of the initial order setting a date for pretrial conference and/or trial.” Thereafter, motions for continuance are subject to a policy which guides and limits when a continuance will be granted. See Circuit Court for Baltimore City, Family Docket – Postponement Policy, available at http://www.baltocts.state.m- d.us/family/postponement.htm.

Based on this policy, in any case where counsel need a continuance based on the Report, counsel will need to coordinate the schedules of all parties to schedule a hearing. Otherwise, such a postponement must, presumably, wait until the merits hearing. This coordination may be difficult, particularly in cases where the parties are confrontational, or there is a short time frame between the Report’s issuance and the merits hearing.

Moreover, when custody is disputed, children face instability and risk, becoming objects in a custodial tug-of-war. See Brown v. Brown, 463 N.E.2d 310, 313 (Ind. Ct. App. 1984). In recognition of the maladies of delay in child access cases, Maryland issued Rule 8-207(a), providing expedited appeal for adoption, guardianship, child access, and child in need of assistance cases. To accept a postponement may delay a trial for months. Such a delay is not desirable, and a litigant’s reluctance to pursue this result is understandable.

Professional Responsibility

Indefinite suspension 

BOTTOM LINE: Attorney violated Maryland Lawyers’ Rules of Professional Conduct regarding competence, diligence, and communication with clients in two separate matters by failing to communicate with clients and by assisting disbarred attorney in unauthorized practice of law; taking into account mitigating fact that attorney suffered from depression, anxiety, and posttraumatic stress disorder, indefinite suspension was the appropriate sanction.

CASE: Attorney Grievance Commission v. Bocchino, Misc. Docket AG No. 39, Sept. Term, 2012 (filed Nov. 25, 2013) (Judges BARBERA, Harrell, Battaglia, Greene, Adkins, McDonald & Watts). RecordFax No. 13-1125-20, 35 pages.

FACTS: On September 27, 2012, the Attorney Grievance Commission, acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against attorney David Bocchino. The Petition alleged that Bocchino engaged in professional misconduct, in violation of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”), in two separate client matters: his representation of Lisa and Montgomery Embrey in an automobile warranty action, and his representation of Lily Cleaves in a credit card debt collection matter.

The hearing judge’s findings of fact stated that Bocchino established his own practice in 2008. In 2009, Bocchino assumed an “of counsel” position at the Ohio law firm of Kahn & Associates (“Kahn”), in which he represented the firm’s clients in “lemon lawsuits” (actions brought under Maryland’s Automotive Warranty Enforcement Act) in Maryland. Another Kahn attorney, Christal Edwards, had filed suit on behalf of Lisa and Montgomery Embrey against General Motors (“GM”) in the circuit court, alleging that the Embreys’ Chevrolet malfunctioned. Kahn reassigned the case to Bocchino in September 2009, but Bocchino did not enter his appearance until October 27, 2009.

On October 5, 2009, the circuit court issued a scheduling order setting deadlines for discovery, designation of expert witnesses, motions, and mediation. On October 27, 2009, the same day he entered his appearance, Bocchino filed a Line to Enter Change of Address from Kahn’s Ohio mailing address to 205 E. 28th Street, Baltimore, MD 21218. Within a month of entering his appearance, Bocchino moved his office again, but did not file a second Line to Enter Change of Address with the circuit court. The attorney for GM in this matter, Barbara Duvall, acted as opposing counsel on numerous other unrelated cases with Bocchino during this period and, as a consequence, was aware of his new mailing address. She thus addressed all correspondence in the Embreys’ case to Bocchino’s new address and had all filings served there.

During his representation of the Embreys, Bocchino failed to comply with various discovery orders, including an order to designate an expert witness and an order to participate in mediation, and he failed to provide discovery. In addition, Bocchino failed to communicate with the Embrys regarding required discovery. Based on these violations, Duvall filed a Motion for Sanctions, to which Bocchino filed no opposition. The circuit court granted the motion, dismissed the Embreys’ case with prejudice, and assessed against the Embreys GM’s attorney’s fees and costs. Bucchino’s subsequent motion to vacate the judgment was denied. Based upon these factual findings, the hearing judge concluded that Bocchino violated MLRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); and 8.4(a), (c), and (d) (misconduct).

In April 2009, Bocchino entered into a professional relationship with Ralph Byrd, who was disbarred on April 14, 2009. Aware of Byrd’s disbarment, Bocchino nevertheless entered into a professional relationship with him wherein Bocchino would act as counsel of record for Byrd’s clients in exchange for Byrd’s mentorship in the law of debt collection and Byrd’s promise to refer clients to Bocchino in the future. Several days after his disbarment, Byrd entered into a retainer agreement with Lily Cleaves, a defendant in a credit card debt collection action. In the agreement, Ms. Cleaves agreed to be represented by “one of our affiliated attorneys.” Bocchino subsequently took over her case.

Bocchino failed to file a timely response to the plaintiff’s motion for summary judgment against Ms. Cleaves, but later filed a motion to excuse late filing, which was granted. The circuit subsequently court granted summary judgment in favor of the plaintiff and entered a judgment of $19,750 against Ms. Cleaves. Bocchino filed a motion for reconsideration, which was denied, and the circuit court subsequently granted a writ of garnishment to enforce the judgment against Ms. Cleaves. Based upon these factual findings, the hearing judge concluded that Bocchino violated MLRPC 1.1 (competence); 1.3 (diligence); 5.5(a) (unauthorized practice of law); and 8.4(a) and (d) (misconduct).

Bocchino filed eight exceptions to the hearing judge’s findings of fact and conclusions of law. The Court of Appeals overruled the exceptions and imposed the sanction of indefinite suspension.

LAW: In his exceptions, Bocchino first contended that there was no need for him to communicate with the Embreys for certain periods of time, but maintained that he did inform them of the pendency of discovery and discuss with them the scheduling of depositions and mediation. However, the record belied Bocchino’s assertion that he kept the Embreys apprised of significant developments in the case as they occurred. Although Bocchino was not required to inform his clients of each passing pre-trial deadline, he needed to inform the Embreys of missed deadlines that carried potential adverse consequences, the action he was taking to avoid such consequences, and any negative consequences that did come to pass.

Bocchino’s failure to observe discovery deadlines resulted in GM’s filing a dispositive motion – a significant development in the case. Nevertheless, not until late April did Bocchino inform Ms. Embrey that GM had filed a motion for dismissal, which, by that point, the court had granted. This omission constituted a failure to “keep the client reasonably informed about the status of the matter.” MLRPC 1.4(a)(2). Consequently, Bocchino’s exception was overruled.

Bocchino also asserted that he “did in fact respond to the client.” However, instead of offering support for this assertion, he attempted to shift the blame onto the client, characterizing Ms. Embrey’s attempts to contact him as “border[ing] on harassment.” Bocchino admitted to refusing to speak with Ms. Embrey on the telephone, and he was similarly unresponsive by email. After depositions in February 2010, at which she learned that Bocchino had failed to provide responses to GM’s interrogatories, Ms. Embrey began sending Bocchino emails seeking reassurance that he was paying proper attention to her case, but he did not reply to these messages. It was clear from the record that Bocchino answered only a small fraction of the messages Ms. Embrey sent. As such, this exception was likewise overruled.

Bocchino also excepted to the judge’s factual finding that he failed to communicate opposing counsel’s requests for a settlement demand to his clients. This factual finding was clearly supported by the record, specifically Bocchino’s own admission that he made a deliberate decision not to engage in settlement discussions. Therefore, this exception was overruled.

Bocchino’s fifth and sixth exceptions concerned the hearing judge’s legal conclusion that he violated MLRPC 8.4(c) (misconduct). He first excepted to the hearing judge’s conclusion that he made a misrepresentation to the court when he stated in his Motion to Vacate that he “never received documentation of any kind from the court and only a few of Defendant’s filings.” Bocchino admitted during this attorney discipline proceeding that he was aware of every pleading GM filed, and the record reflected that Bocchino knew of each deadline in the Embreys’ case. His language in the Motion to Vacate, however, suggested to the court that he did not comply with the scheduling order because the inefficiency of the Postal Service left him unaware of his obligations. This amounted to misrepresentation. The record likewise supported the hearing judge’s conclusion that Bocchino made a misrepresentation to the court when he stated in his the Motion to Vacate that he did not become aware of the dismissal of his clients’ case until May 2010. As such, these exceptions were overruled and the hearing judge’s conclusion that Bocchino violated MLRPC 8.4(c) was sustained.

Bocchino’s seventh exception concerned the hearing judge’s factual finding that Byrd conducted all client contact in Bocchino’s representation of Ms. Cleaves. The record, including Bocchino’s own testimony, supported a finding that Byrd did conduct all client contact in this matter. Based on this record, it was not clear error for the hearing judge to find that Byrd conducted all client contact, and Bocchino’s exception was thus overruled.

Finally, Bocchino excepted to the hearing judge’s legal conclusion that he assisted Byrd in the unauthorized practice of law, in violation of MLRPC 5.5(a). However, the record revealed that Bocchino indeed assisted Byrd in his unauthorized practice of law. To the extent it was within his power, Bocchino failed to insulate either the court or Ms. Cleaves from Byrd. Essentially, Bocchino allowed Byrd to practice in the circuit court under Bocchino’s license. Therefore, this exception was overruled.

Accordingly, the circuit court’s findings of fact and conclusions of law were sustained, and an order for Bocchino’s indefinite suspension was entered.

COMMENTARY: The gravamen of Bocchino’s misconduct was his incompetence, lack of diligence, and failure to communicate with his clients, and his persistent misconduct was evidence of his disregard of his obligation to uphold his professional duties. However, the hearing judge found that Bocchino suffered from depression, anxiety, and posttraumatic stress disorder while representing his clients in these matters.

In cases where there has been a finding that the attorney suffered from a serious mental or physical illness, the ultimate sanction of disbarment is rarely imposed. Attorney Grievance Comm’n v. West, 378 Md. 395, 412-13 (2003). Therefore, disbarment was not the appropriate sanction for Bocchino’s misconduct. Instead, indefinite suspension was the more appropriate sanction for Bocchino’s violations of the Maryland Lawyers’ Rules of Professional Conduct.

Professional Responsibility

Ninety-day suspension 

BOTTOM LINE: A 90-day suspension was the appropriate sanction for an attorney who authorized non-lawyer, non-notary staff-members of his law firm to sign his name and notarize mortgage documents, including affidavits, because, by engaging in such conduct, attorney falsely represented to the circuit courts that the affidavits had been properly notarized.

CASE: Atty. Griev. Comm’n v. Geesing, No. 36, Sept. Term, 2012 (filed Dec. 3, 2013) (Judges Barbera, Harrell, Battaglia, Greene, Adkins, McDonald & WATTS). RecordFax No. 13-1203-20, 20 pages.

FACTS: George Geesing routinely authorized two non-lawyer members of the staff BWW Law Group, LLC to sign his name on documents — including affidavits — in foreclosure filings. Geesing instructed the staff members (who were also notaries public) to notarize the affidavits, even though he had not signed them.

After learning of allegations that the affidavits had been falsely notarized, Geesing reported himself to the Attorney Grievance Commission. Bar Counsel charged him with violating MLRPC 3.3 (Candor Toward the Tribunal), 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers), 5.3 (Responsibilities Regarding Non-lawyer Assistants), and 8.4 (Misconduct).

The Court of Appeals upheld the conclusions of the circuit court and suspended Gessing for 90 days.

LAW: A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. MLRPC 3.3(a)(1).

Here, clear and convincing evidence supported the hearing judge’s conclusion that Geesing violated the rule. Geesing routinely authorized non-lawyer, non-notaries to sign his name on and notarize affidavits. Thus, Geesing filed affidavits that he knew to have been falsely notarized.

Geesing’s contention that he did not knowingly make false statements of fact was rejected. It is true that Geesing believed that, because he adopted the signatures as his own, it was legal to authorize the staff members to sign documents in foreclosure filings. However, Geesing had no reason to believe that a notary public could properly notarize a document that was not signed in the notary public’s presence. Thus, by filing falsely notarized affidavits in circuit courts, Geesing falsely represented to the circuit courts that the affidavits had been properly notarized. MLRPC 5.3(a) (Responsibilities Regarding Non-lawyer Assistants) states: “With respect to a non[-]lawyer employed or retained by or associated with a lawyer[, ] a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm[,] shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the [non-lawyer]’s conduct is compatible with the professional obligations of the lawyer[.]”

“It is professional misconduct for a lawyer to…engage in conduct that is prejudicial to the administration of justice[.]” MLRPC 8.4(d). “In general, a[ lawyer] violates [MLRPC] 8.4(d) when his or her conduct impacts negatively the public’s perception or efficacy of the courts or legal profession.” Attorney Grievance Comm’n v. Dore, 433 Md. 685, 696 (2013).

Here, clear and convincing evidence supports the hearing judge’s conclusion that Geesing violated MLRPC 8.4(d). Geesing’s actions reflected adversely on the public’s perception of the legal profession in that they demonstrated a pattern of falsity and a cavalier attitude regarding the function and purpose of the notary attestation. As proof of the negative impact that Geesing’s misconduct had on the public’s perception of the legal profession, Geesing’s misconduct: (1) caused significant media coverage; (2) prompted certain mortgagors to file several lawsuits arising out of the robo-signing against Geesing and BWW Law; (3) caused three mortgagees to end BWW Law’s representation; and (4) prompted Geesing to encourage his partners to remove his name from BWW Law’s title.

Additionally, as proof of the negative impact that Geesing’s misconduct had on the efficacy of the courts: (1) BWW Law dismissed five foreclosure actions and re-filed each with documents that Geesing had signed; (2) BWW Law filed corrective affidavits in approximately 2,500 open foreclosure actions in which BWW Law represented the mortgagees; (3) several circuit courts ordered Geesing to replace documents that he had not signed; and (4) in two foreclosure actions in which BWW Law represented the mortgagees, the mortgagors raised on appeal the issue of whether the robo-signing invalidated the ratification of the foreclosure sales.

Accordingly, Geesing was suspended from the practice of law for 90 days.

COMMENTARY: Under Attorney Grievance Comm’n v. Dore, 433 Md. 685, 696 (2013), a 90-day suspension land is the appropriate sanction where: (1) a lawyer “robo-signs” a large number of documents — including falsely notarized affidavits — in foreclosure filings; and (2) there are several mitigating factors, including (a) the absence of a prior disciplinary record; (b) the absence of a dishonest or selfish motive; (c) timely good-faith efforts to make restitution or to rectify consequences of misconduct; (d) full disclosure to the Commission and cooperation and participation in the disciplinary proceeding; (e) good character and reputation; (f) remorse; and (g) significant press coverage of the issue and considerable time and effort that the lawyer and spent correcting the problem.

In determining Geesing’s sanction, seven mitigating factors were considered. First, Geesing had no prior disciplinary record. Second, Geesing authorized the staff members to sign his name on documents in foreclosure filings because he wanted to expedite services to mortgagees, not because of a dishonest or selfish motive. Third, once Geesing no longer believed that it was legal to authorize the staff members to sign documents in foreclosure filings, Geesing made timely good-faith efforts to rectify the consequences of his misconduct. Fourth, by reporting himself to the Commission, Geesing engaged in full and free disclosure to the Commission; additionally, Geesing agreed to submit joint proposed findings of fact, and otherwise showed a cooperative attitude toward the proceedings before the hearing judge. Fifth, the hearing judge found that Geesing’s good character has led him to help those in need while protecting the interests of his clients. Sixth, as to imposition of other penalties, Geesing’s misconduct: (1) cost BWW Law approximately $152,500; (2) caused significant media coverage; (3) caused three mortgagees to end BWW Law’s representation; and (4) prompted Geesing to encourage his partners to remove his name from BWW Law’s title. Seventh, Geesing showed remorse for his misconduct, not merely because of this attorney disciplinary proceeding, but mainly because he dishonored his profession and disappointed his partners and his family, and because others may view the judicial process negatively as a result of his misconduct.

Accordingly, under Dore, a 90-day suspension was appropriate.

Torts

Local Government Tort Claims Act 

BOTTOM LINE: In separate lawsuits against housing authority seeking damages from exposure to lead paint, the plaintiffs did not substantially comply with notice requirement of Local Government Tort Claims Act; one plaintiff merely notified defendant of plaintiff’s elevated blood-lead level and the second plaintiff merely orally advised defendant of chipping paint at the property and threatened to bring an action for repairs.

CASE: Ellis v. Housing Authority of Baltimore City, No. 16; Johnson v. Housing Authority of Baltimore City, Sept. Term, 2013 (filed Nov. 26, 2013) (Judges Barbera, Harrell, Battaglia, Greene, Adkins, McDonald & WATTS). RecordFax No. 13-1126-23, 35 pages.

FACTS: This case involved the consolidated cases of Brittany Ellis and Tyairra Johnson, who separately sued the Housing Authority for Baltimore City (“HABC”) in the circuit court, seeking damages arising from their alleged exposure to lead paint in properties that HABC owned and operated. Ellis was born on January 10, 1989. She first resided with her mother at 1004 North Washington Street. In 1989, Ellis and her mother moved to 2708 Giles Road. On September 10, 1990, Ellis and her mother moved to 26 South Exeter Street. All three properties were owned and operated by HABC.

On April 3, 1992, the University of Maryland Pediatric Ambulatory Center tested Ellis’ blood-lead level and notified Ellis’ mother that Ellis’ lead level was 14 ?g/dL, not dangerously high, but that Ellis might be at risk for high lead in the future and should have her lead retested every three to four months. On June 19, 1992, the University tested Ellis’ blood-lead level and reported 12 ?g/dL. A University form signed by Dr. J. Rubin stated that Ellis was seen on June 19, 1992, “for repeat lead testing.”

An HABC form entitled “Summary of Interviews” pertaining to Ellis’ mother stated that on June 24, 1992, HABC received a form letter from Dr. Rubin advising that Ellis’ level of 14 was an indication there was some exposure to lead, but that the level was not cause for treatment, only frequent testing. On April 27, 1993, Ellis and her mother moved to 725 George Street, which HABC owned and operated. On January 7, 2010 (approximately 18 years after Ellis’ first blood-lead level test), in the circuit court, Ellis sued HABC for negligence and violations of the Maryland Consumer Protection Act arising out of Ellis’ alleged exposure to lead paint at 1004 North Washington Street, 2708 Giles Road, 26 South Exeter Street, and 725 George Street.

During discovery, HABC produced a “tenant folder” pertaining to Ellis’ mother’s tenancy at 26 South Exeter Street and 725 George Street, containing a form titled “Summary of Interviews.” Nothing in the tenant folder indicated that Ellis’ mother complained of the presence of lead paint in any of the premises occupied by Ellis. The circuit court granted HBAC’s motion for summary judgment, concluding that Ellis did not substantially comply with the Local Government Tort Claims Act (“LGTCA”) notice requirement or show good cause for her failure to comply. Johnson appealed to the Court of Special Appeals.

Tyairra Johnson was born on July 1, 1990. Johnson first resided with her mother at 1620

Booker Court, which HABC owned and operated. In an affidavit dated March 13, 2012, Johnson’s mother averred that, from 1990 through 1996, every day for several hours at a time, Johnson visited her grandmother at 601 North Brice Street, which HABC owned and operated. In her affidavit, Johnson’s mother averred that, when Johnson was approximately three years old, Johnson’s mother noticed chipping paint at 1620 Booker Court and saw Johnson put paint in her mouth. Johnson’s mother immediately complained to a housing manager of HABC about the chipping paint and threatened to sue if HABC did not repair the chipping paint.

In 2000, Kennedy Krieger Institute informed Johnson’s mother that Johnson suffered from elevated blood-lead-levels. On June 24, 2011, Johnson sued HABC for negligence and violations of the Maryland Consumer Protection Act arising out of Johnson’s alleged exposure to lead paint at 1620 Booker Court and 601 North Brice Street. The circuit court granted HBAC’s motion for summary judgment, holding that Johnson did not substantially comply with the LGTCA notice requirement. Johnson appealed to the Court of Special Appeals.

While Ellis’ and Johnson’s appeals were pending in the Court of Special Appeals, the Court of Appeals granted certiorari on its own initiative. Ellis’ and Johnson’s cases were consolidated. The Court of Appeals ultimately affirmed the judgments of the circuit court.

LAW: Ellis and Johnson contended that the circuit court erred in concluding that they did not substantially comply with the LGTCA notice requirement. Ellis asserted that HABC had actual notice of her claim because HABC received the results of her first blood-lead level test via Dr. Rubin’s letter. Johnson maintained that HABC had notice of her claim because her mother orally complained timely to an HABC housing manager about chipping paint and threatened to sue HABC if it did not fix the chipping paint.

Under the LGTCA, an action for unliquidated damages may not be brought against a local government unless the notice of the claim is given within 180 days after the injury. CJP §5-304(b)(1). The notice must be in writing and must state the time, place, and cause of the injury. CJP §5-304(b)(2). Even if a plaintiff does not strictly comply with the LGTCA notice requirement, a plaintiff substantially complies with the LGTCA notice requirement where: (1) the plaintiff makes some effort to provide the requisite notice; (2) the plaintiff does in fact give some kind of notice; (3) the notice provides requisite and timely notice of facts and circumstances giving rise to the claim; and (4) the notice fulfills the LGTCA notice requirement’s purpose, which is to apprise the local government of its possible liability at a time when the local government could conduct its own investigation.

In Faulk v. Ewing, the Court of Appeals held that the plaintiff substantially complied with the LGTCA notice requirement where, in a letter to a local government’s insurer dated 12 days after his injury, the plaintiff provided sufficient information about his injury to enable a timely investigation to occur and to notify the insurer that the plaintiff expected some type of compensation from the local government for his injury. Faulk v. Ewing, 371 Md. 284, 308 (2002). By contrast, in Halloran v. Montgomery Cnty. Dep’t of Pub. Works, the Court of Special Appeals held that a plaintiff did not substantially comply with the LGTCA notice requirement where the plaintiff mailed a letter to the “Highway Maintenance” division of a county’s department of public works stating that she had been injured on a road and demanding that the road be fixed, but not stating that she had a claim against the county or that the county was responsible for damages resulting from her injury.. Halloran v. Montgomery Cnty. Dep’t of Pub. Works, 185 Md. App. 171, 187-88, cert. denied, 409 Md. 48 (2009). Id. at 187.

In Ellis’ case, HABC had no record of any complaint by Ellis or any of her family members regarding chipping, flaking or peeling lead paint. In fact, the record did not indicate that, before Ellis sued HABC, she or her mother ever contacted HABC about deteriorated paint conditions in any property, or that Ellis or her mother ever alleged that property owned or operated by HABC was the cause or source of Ellis’ injury (i.e., Ellis’ elevated blood-lead level). A plaintiff does not substantially comply with the LGTCA notice requirement where the plaintiff does not “in fact” give some kind of notice. Faulk, 371 Md. at 299. Thus, the circuit court properly found that Ellis did not substantially comply with the LGTCA notice requirement.

In Johnson’s case, before Johnson sued HABC, Johnson’s mother allegedly orally complained to an HABC housing manager about chipping paint and threatened to sue HABC if it did not fix the chipping paint. However, Johnson’s mother’s alleged oral complaint did not apprise HABC of its possible liability. For one, Johnson’s mother threatened to sue HABC if it did not fix the chipping paint; thus, Johnson’s mother essentially advised that the threatened action against HABC would be a landlord-tenant action in which Johnson’s mother sought that HABC fix the chipping paint, not a lead paint action in which Johnson sought damages for her alleged injury resulting from exposure to lead paint. Moreover, Johnson’s mother did not learn of Johnson’s elevated blood-lead level) until approximately six or seven years after her oral complaint. As such, Johnson did not substantially comply with the LGTCA notice requirement.

The plaintiffs’ contention that HABC had notice of their injuries because HABC was legally required to inspect properties for deteriorated lead paint and generally aware of the frequency of lead paint actions involving older rental dwellings in Baltimore City was likewise without merit. As discussed, a plaintiff does not substantially comply with the LGTCA notice requirement where the plaintiff does not “in fact” give some kind of notice. Faulk, 371 Md. at 299. Thus, commonsensically, a plaintiff does not substantially comply with the LGTCA notice requirement simply by virtue of the circumstance that: (1) a local government is legally required to inspect for a potential source of injury; and/or (2) the local government is generally aware of the frequency of the type of action that the plaintiff plans to initiate.

Essentially, the plaintiffs sought to except lead paint actions from the LGTCA notice requirement. However, the right to decide to except lead paint actions from the LGTCA notice requirement belongs to the General Assembly, not the Judiciary. See Rios v. Montgomery Cnty., 386 Md. 104, 137 (2005). For these reasons, the circuit court properly found that the plaintiffs did not comply with the LGTCA notice requirements.

Accordingly, the judgment of the circuit court was affirmed.

PRACTICE TIPS: Before the enactment of the LGTCA, local governments were immune from liability for torts that arose out of “governmental” (rather than “proprietary”) activities. An activity is governmental where the activity is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the local government, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest. Through the LGTCA, the General Assembly waived such local governmental immunity.