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Opinions – 1/7/15: Maryland Court of Special Appeals

Civil Procedure

Law of the Case Doctrine

 

BOTTOM LINE: County was barred from challenging the circuit court’s arbitration award to a county police union because the issues challenged by the county on the present appeal had previously been decided by the appellate court and, under the law of the case doctrine, the county was barred from re-litigating these previously decided issues.

 

CASE: Baltimore County, Maryland v. Baltimore County Fraternal Order of Police, Lodge No. 4, No. 099, Sept. Term, 2013 (filed Dec. 17, 2014) (Judges MEREDITH, Wright & Hotten). RecordFax No. 14-1217-03, 78 pages.

 

FACTS: In this case, Baltimore County challenged an arbitration award regarding retirement benefits that was issued in 2008, affirmed in 2010 by the circuit court, and ultimately affirmed again in 2012 by the Court of Appeals in FOP Lodge No. 4 v. Baltimore Co., 429 Md. 533 (2012), reconsideration denied, 429 Md. 533 (2013). FOP Lodge No. 4 was the exclusive bargaining agent for the Baltimore County Police Department. Periodically, the FOP and the County negotiated a Memorandum of Understanding (“MOU”) setting forth each party’s rights and obligations.

Pursuant to the procedures outlined in the relevant MOU, FOP filed a grievance against the County, alleging that the proposed downward adjustment of a health-care subsidy violated the parties’ MOU negotiated in 2007. After the grievance was denied by the Labor Commissioner on November 6, 2007, FOP demanded arbitration pursuant to the dispute-resolution provision of the MOU. On May 9, 2008, Arbitrator Richard Bloch, Esq., conducted a hearing. One argument made by the County was that the grievance had not been timely filed because it was not filed within ten workdays after the 2007 MOU’s expiration on July 1, 2007.

The main argument made by the County, however, was that there was nothing left to either grieve or arbitrate relating to the now-expired 2007 MOU. In his decision, Arbitrator Bloch rejected both of these contentions. The arbitrator’s findings were affirmed in subsequent proceedings. The Arbitrator’s decision that the grievance was timely and that it should be granted – and the accompanying “award” – was entered on July 15, 2008.

On August 14, 2008, the County filed a complaint in the circuit court, seeking to vacate the arbitration award. The circuit court denied both the County’s motion for summary judgment and FOP’s cross-motion. On May 24, 2010, motions for summary judgment were again heard by the circuit court. The court subsequently denied the County’s motion for summary judgment and granted the FOP’s motion for summary judgment. In its order, the circuit court found that the grievance was timely and the award was arbitrable. The court also rejected the County’s argument that retirees are not “employees” entitled to bring a grievance.

The County appealed the circuit court’s grant of summary judgment in favor of FOP and the denial of the County’s own motion for summary judgment to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals reversed the circuit court’s decision and remanded the case, holding that FOP had not been entitled to summary judgment in its favor as a matter of law, and that the County had demonstrated its entitlement to summary judgment. However, the Court of Appeals granted FOP’s petition for writ of certiorari, reversed the judgment of the Court of Special Appeals in favor of the County, and reinstated the judgment of the circuit court.

The County filed a motion for reconsideration, which was denied by the Court of Appeals. FOP subsequently filed in the circuit court a petition for award of costs and disbursements, seeking $130,691 in costs and disbursements, including attorneys’ fees. FOP later filed a “motion to enforce this court’s judgment and for an order to show cause,” asserting that the County refused to comply with the court’s judgment by providing the required relief. On August 14, 2013, the circuit court issued a memorandum opinion and order granting FOP’s motion to enforce.

The County filed a motion to alter or amend the judgment, continuing to raise issues regarding the timeliness of the initial grievance and whether or not retirees were entitled to pursue a grievance. The County subsequently appealed to the Court of Special Appeals. The County’s motion to stay pending the outcome of the appeal was denied.

A damages hearing was held on February 6, 2014. Admitted in evidence as FOP’s Exhibit 1 was an updated chart, provided by the County, showing that the updated damages amount through the end of January 2014 was $1,413,121. On March 6, 2014, the court filed an order reflecting its partial grant of FOP’s motion to enforce, awarding FOP damages of $1,413,121, but declining to award any attorney’s fees or pre-judgment interest. FOP filed a motion to clarify the amount of prejudgment interest. FOP subsequently filed a motion to reconsider the March 6 order, which the court granted. After granting FOP’s motion for reconsideration, the court entered an amended judgment awarding FOP the original judgment amount of $1,413,121, plus pre-judgment interest of $213,446, for a total judgment of $1,626,567.

The County then noted its appeal of the amended judgment order. Meanwhile, on April 15, 2014, FOP filed a petition for an order of constructive civil contempt against the County and several County officials, citing the County’s refusal to make payment in accordance with the court’s orders. On May 30, 2014, the County filed a certification of compliance with outstanding court orders, representing that it had, under protest, paid the judgment amount of $1,413,121 and $213,446 in pre-judgment interest.

The County then appealed to the Court of Special Appeals, challenging the circuit court’s orders of November 5, 2013 (ordering the County to reset the retiree health insurance split to the rate in effect at the time of retirement); March 6, 2014 (entering judgment in favor of FOP for $1,413,121); and April 28, 2014 (entering an amended judgment in favor of FOP for $1,626,576). The Court of Special Appeals affirmed the judgment of the circuit court.

 

LAW: Under the law of the case doctrine, litigants cannot prosecute successive appeals in a case that raises the same questions that have been previously decided by the appellate court in a former appeal of that same case. Furthermore, they cannot, on the subsequent appeal of the same case raise any question that could have been presented in the previous appeal on the then state of the record, as it existed in the court of original jurisdiction. In the present appeal, the County argued that it was challenging the “enforceability of the recent orders,” not the “legally distinct issue” of the legal validity of the award itself.

The County contended that the circuit court’s application of the law of the case doctrine was patently erroneous in light of the Court of Appeals holding in Garner v. Archers Glen Partners, Inc., 405 Md. 43 (2008). In one of the Garner appeals, the Court of Special Appeals stated that the dicta in an earlier unreported opinion was merely dicta that did not constitute the law of the case. Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292 (2007) (“Archers Glen II”). The Court of Appeals affirmed the judgment of the Court of Special Appeals, noting that in Maryland, dicta not adopted as a final determination may not serve as the binding law of the case. Garner v. Archers Glen Partners, Inc., 405 Md. at 57.

By contrast, in the instant case, the decision of the Court of Appeals affirming the circuit court’s grant of summary judgment in favor of FOP was not mere dicta. Rather, it was a final determination that FOP was entitled, as a matter of law, to the judgment to enforce the arbitration award. That decision necessarily embraced and resolved all of the issues that the County raised, as well as any other issues that were then available to raise, challenging the validity of the arbitration award.

In the previous appeal of this case, in its opinion ruling that the circuit court’s order to enforce the arbitration award was affirmed, the Court of Appeals stated that the circuit court would be legally correct in granting summary judgment in FOP’s favor, if it reviewed the arbitrator’s findings under a proper standard of review and if FOP was entitled to judgment as a matter of law. The Court found that the circuit court applied a proper standard of review in both instances, and that the circuit court was legally correct in granting summary judgment in FOP’s favor. As such, the Court of Appeals reversed the judgment of the Court of Special Appeals.

Plainly, the Court of Appeals affirmed the circuit court’s conclusion that the grievance was arbitrable, which meant that it necessarily agreed that the grievance was properly pursued by FOP on behalf of the retirees and that the grievance was timely. Summary judgment would not have been properly granted to FOP if it were otherwise. Similarly, the Court of Appeals could have remanded, but did not remand, the case to this Court for further consideration of the “nine questions” the County raised in the 2011 appeal. Once an appellate court rules upon a question presented on appeal, litigants and lower courts become bound by the ruling, which is considered to be the law of the case. Scott v. State, 379 Md. 170, 183-84 (2004).

Moreover, the public policy arguments about enforceability that the County complained were never addressed were, in fact, presented to and ruled on by the circuit court before the first round of appeals. In the circuit court’s memorandum opinion and order granting summary judgment in favor of FOP, the court noted that one of the County’s arguments was that “the Arbitrator had no authority to rewrite the FY 2008 MOU and order the County to reset the previous 85/15 split for the retirees in question.” As noted, the circuit court addressed the County’s public policy arguments, stating in part that the arbitrator did not exceed his authority in reaching his award.

The County’s argument that the law of the case doctrine should not apply because the public policy arguments it made previously went to the merits of the award, whereas the present arguments attack the enforceability of the award, was unpersuasive. The arbitrator’s award expressly directed the County to take the actions the FOP asked the circuit court to compel in the motion to enforce. The County was obligated to assert all of its arguments that might support vacating the award, including all of its arguments against enforcement of the award, during the first round of circuit court proceedings.

When the Court of Appeals confirmed in 2012 that FOP was entitled to the grant of summary judgment in its favor, all of the public policy arguments the County had made, or could have made, about enforceability of the arbitration award were resolved against the County. Consequently, the arguments that the County sought to make in the present appeal were already been conclusively resolved by the prior ruling of the Court of Appeals in favor of FOP, and there was no basis for further consideration of these questions. Similarly, the County’s arguments about the timeliness of the initial grievance and the right of the retirees to file a grievance were also conclusively resolved.

Accordingly, the judgment of the circuit court was affirmed.

 

COMMENTARY: The County’s remaining contentions, which raised issues that arose for the first time after the remand, were likewise without merit. The County asked whether the show cause order’s threat of incarceration was “an unconstitutional exercise of judicial power calculated to coerce an appropriation or illegal payments in violation of the separation of powers doctrine.” Because the circuit court never ordered the incarceration of any County official, this issue was moot. Suter v. Stuckey, 402 Md. 211, 219 (2007).

Next, the County asked whether the circuit court’s “award of injunctive relief and damages to FOP was clearly erroneous, because FOP did not sustain any harm or damages as a result of the reduced subsidy rates.” In support of its claim, the County cited one case: L.W. Wolfe Enterprises, Inc. v. Maryland National Golf, L.P., 165 Md. App. 339, 343 (2005). However, L.W. Wolfe was inapplicable to the issues in the present case, and a damages hearing was not an appropriate forum to re-litigate the validity of the underlying award. Consequently, there was no error in the court’s refusal to permit the County’s witnesses to give irrelevant testimony. See Maryland Rule 5-402.

Finally, the County asked whether FOP was entitled to pre-judgment interest. However, FOP’s entitlement to prejudgment interest was clear; all that remained to be done was the math. See Ali v. CIT Technology Financing Services, Inc., 188 Md. App. 269 (2009). A calculation of simple interest at the rate of 6% for pre-judgment interest (or 10% for post-judgment interest) on a fixed sum is a ministerial task and one for which the court did not need to convene a new hearing. See Kosnoski v. Howley, 33 F.3d 376 (4 Cir. 1994). As such, this argument was without merit.

 

PRACTICE TIPS: The law of the case doctrine does not apply when one of three exceptional circumstances exists: (1) the evidence on a subsequent trial was substantially different; (2) controlling authority has since made a contrary decision on the law applicable to such issues; or (3) the decision was clearly erroneous and would work a manifest injustice.

 

Evidence

Out-of-court statements

 

BOTTOM LINE: Certain recordings of jail calls between defendant and his son were admissible in defendant’s trial for the murder of his wife: the discussion of wife’s cremation was relevant, as it tended to prove the identity of the remains and that defendant was aware of the impending cremation; the son’s statements were not offered to prove the truth of the matter asserted; and defendant’s statements, if hearsay, were admissible as statements of a party-opponent.

 

CASE: Jarrett v. State, No. 1298, Sept. Term, 2013 (filed Dec. 17, 2014) (Judges BERGER, Nazarian & Leahy). RecordFax No. 14-1217-00, 28 pages.

 

FACTS: On January 3, 1991, Christine Jarrett, age 34, went missing. Twenty-one years later, on April 18, 2012, skeletal remains later identified as Christine’s were found buried under the backyard shed of the home in Howard County, Maryland, in which Christine had previously resided with her husband, Robert Jarrett, Jr. On April 18, 2012, Jarrett was placed under arrest.

Jarrett was subsequently charged with murder and associated crimes relating to Christine’s death. At Jarrett’s jury trial, evidence was adduced that Jarrett and Christine had two children, Robert Jarrett, III (“Bobby”) and Michael Jarrett, ages ten and five, respectively, at the time of Christine’s disappearance in 1991. The State sought to play recordings of certain telephone calls between Jarrett and his son Michael for the jury.

In one conversation, Michael asked Jarrett to assist “money-wise” in the cremation of “mom.” Jarrett agreed to help with cremation expenses. Defense counsel objected to the conversations being played for the jury. The trial court permitted the recordings to be played. Recordings of portions of four telephone calls were played for the jury, and transcripts of the recordings were entered into evidence.

At the conclusion of trial, Jarrett was convicted of second-degree murder. Jarrett appealed to the Court of Appeals, which affirmed the judgment of the circuit court.

 

LAW: Jarrett argued that the circuit court erred in permitting the State to play for the jury the recordings of jail calls between Jarrett and his son. First, he argued that the conversation was not relevant. Second, he argued that the conversation contained inadmissible hearsay and the tacit admission exception to the hearsay rule did not apply.

In the April 24, 2012 telephone conversation that was played for the jury, Michael asked his father whether he would be able to “help out” with the expense of cremating his mother’s remains. Jarrett answered, “Um-hum.” Michael asked, “Would you be able to help us out with that?” Jarrett responded, “Money-wise?” and also asked, “Yeah, how much you looking at?” Michael responded that he would let his father know. Jarrett responded, “Okay.”

With respect to the relevance of the telephone conversation, “relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Md. Rule 5-401. The issue of whether the skeletal remains were, in fact, Christine’s remains was raised at trial, and defense counsel had further argued that evidence was “destroyed” when the remains were cremated before the defense could examine them. The telephone recording was relevant because Jarrett arguably acknowledged that the remains were Christine’s by agreeing to contribute financially to the expenses for the cremation of “mom.”

Furthermore, the telephone recording was relevant to show that Jarrett was aware that his sons were planning to move forward with Christine’s cremation. Jarrett, however, did not ask his sons to delay the cremation, nor did Jarrett take any other steps to postpone the cremation. As such, the trial court did not err in determining that the telephone recording was relevant.

With regard to Jarrett’s contention that the recording contained inadmissible hearsay, not all out-of-court statements are necessarily hearsay. An out-of-court statement is admissible if it is not being offered for the truth of the matter asserted or if it falls within one of the recognized exceptions to the hearsay rule. Handy v. State, 201 Md. App. 521, 539 (2011). Here, none of Michael’s statements in the recording were offered for their truth.

Michael’s statements were not offered to prove that Michael and Bobby were planning to have Christine’s remains cremated, that Frank was helping with arrangements, or that the funeral home had the remains at the time. Rather, Michael’s statements were offered to show their effect on Jarrett. Accordingly, because Michael’s statements were offered for a non-hearsay purpose, the circuit court did not err in admitting them.

With respect to Jarrett’s statements, several of the statements were not offered for the truth of the matter asserted. Several of the phrases uttered by Jarrett were questions rather than statements. Jarrett’s questions could not have been admitted for the truth of the matter asserted because the questions did not assert any truth. Rather, the questions asked by Jarrett were introduced to prove that Jarrett, in fact, asked those particular questions of Michael.

To the extent that Jarrett’s statements constitute hearsay, however, they were admissible as statements of a party-opponent. Pursuant to Maryland Rule 5-803(a), a statement that is offered against a party and is the party’s own statement, in either an individual or representative capacity, is excluded from the hearsay rule. Thus, Jarrett’s statements, which were offered into evidence by the State, were admissible. Because the telephone recordings contained relevant evidence, which was admissible either as non-hearsay or as an exception to the rule against hearsay, the trial court did not err or abuse its discretion by admitting the telephone recordings into evidence.

Because Jarrett’s remaining arguments were also without merit, the judgment of the circuit court was affirmed.

 

COMMENTARY: Jarrett additionally contended that the circuit court erred by denying his request for a jury instruction on the gross negligence form of involuntary manslaughter. Maryland Rule 4-325(c) provides that the court may, and at the request of any party shall, instruct the jury as to the applicable law. The parties did not dispute that Jarrett’s proposed instruction on the gross negligence variation of the involuntary manslaughter was a fair statement of law that was not otherwise covered in the instructions actually given. The only question was whether the gross negligence variation of the involuntary manslaughter instruction was applicable under the facts of the case.

A particular instruction is generated when a defendant can point to some evidence that supports the requested instruction. Malaska v. State, 216 Md. App. 492, 517 (2014), reconsideration denied (May 7, 2014), cert. denied, 439 Md. 696 (August 28, 2014). Here, the record made clear that the trial court carefully considered whether an instruction on the gross negligence variation of involuntary manslaughter was generated by the evidence. The trial court ultimately concluded that a gross negligence variation of involuntary manslaughter instruction was not generated by the evidence, ruling that there was nothing to suggest “what, if anything, Mr. Jarrett did to cause the death, specifically the death of Christine Jarrett, as far as being gross negligence or conduct like that.”

During jury instructions, the trial court instructed the jury on involuntary manslaughter but declined to give an instruction on the specific gross negligence variation. As the trial court found, there was no evidence presented to suggest that Jarrett was grossly negligent by acting in a manner that created a high risk to, and showed a reckless disregard for, human life. Because there was no evidence which would demonstrate Jarrett acted in a grossly negligent manner, the requested instruction was not generated by the evidence. Accordingly, the trial court did not err or abuse its discretion by declining to give the gross negligence variation of the involuntary manslaughter instruction.

 

PRACTICE TIPS: A “missing evidence” jury instruction is designed to draw a jury’s attention to the simple, straightforward premise that one does not ordinarily withhold evidence that is beneficial to one’s case. A missing evidence instruction does not require that a jury make an adverse inference in situations involving the spoliation of evidence. Rather, it merely permits such an inference.

 

Evidence

Unfair prejudice

 

BOTTOM LINE: In a rape trial, circuit court abused its discretion in admitting impeachment evidence that, two weeks after the alleged rape, police searched defendant’s apartment in connection with an entirely different case and found a handgun which could not be linked to the alleged rape; this was extrinsic evidence concerning a collateral matter, with virtually no probative value and a far greater danger that it would unduly prejudice defendant and confuse and mislead jurors.

 

CASE: Anderson v. State, No. 713, Sept. Term, 2013 (filed Dec. 17, 2014) (Judges EYLER, D., Kehoe & Rodowsky (Retired, Specially Assigned)). RecordFax No. 14-1217-01, 24 pages.

 

FACTS: Based on DNA evidence, defendant Russell Anderson was charged in 2012 with raping Rosa Molina in 1989. According to Molina, a firearm was used in the rape, and a second man, co-defendant Timothy McLaughlin, also raped her. According to Anderson, who testified at trial, his sexual encounter with Molina was consensual.

In the court of Anderson’s trial, the court ruled to admit extrinsic evidence that, on January 5, 1990, two weeks after the day Molina maintained she was raped, the police searched his apartment and found a handgun. On that date, a woman from Washington, D.C., called the District of Columbia Metropolitan Police and reported that Anderson had raped her at gunpoint. The D.C. Police immediately obtained and executed a search warrant for Anderson’s apartment. They seized several items, including a handgun they found in the living room closet.

The police report of the search described the handgun as a .36 caliber Navy Model handgun, black with a wood handle. On the third day of Anderson’s trial, the prosecutor informed defense counsel of the existence of the D.C. Police report and provided copies. Anderson’s counsel moved to preclude the prosecutor from using the D.C. Police report on cross-examination and from introducing it into evidence. The trial court ruled that the State could use the report for impeachment.

On cross-examination of Anderson, the prosecutor asked Anderson whether he had purchased a .36 caliber Navy Model handgun, black with a wood handle. Anderson responded in the negative and denied ever owning a gun. The prosecutor showed him the D.C. Police report and gave him an opportunity to read it. Anderson then testified that he had shared the living room closet with his girlfriend. When asked whether it was true that in 1989, a .36 caliber Navy Model revolver was kept in that closet, Anderson answered “No.”

At that point, the prosecutor moved to admit the D.C. Police report into evidence, under Rule 5-616(b)(2). Over a hearsay objection, the trial court ruled that the report would be admitted for the sole purpose of showing that on January 5, 1990, a handgun was found in the living room closet of Anderson’s apartment. The court made clear that before the report would come into evidence the prosecutor would have to redact it to eliminate everything other than the address of the apartment, the date of the search, and the list of items recovered.

The next morning, the prosecutor announced that she planned to call as a rebuttal witness Detective Juanita Terrell, the original investigator from the D.C. case who was in charge of the search of Anderson’s apartment on January 5, 1990, in which the handgun was found. The prosecutor’s stated purpose in calling Detective Terrell was to remedy the issue of any hearsay with respect to the report. The prosecutor explained that the State was not contending that the handgun seized from Anderson’s apartment was the same weapon used against Molina.

The court ruled to admit the evidence, finding that that the evidence that a handgun was recovered in the search of Anderson’s apartment on January 5, 1990, was not being used substantively but rather to discredit Anderson’s testimony that no such handgun was in his apartment on the date of the search. Detective Terrell took the stand and testified regarding the search of Anderson’s apartment on January 5, 1990. The detective explained that, even though she was not present when the search was carried out, she was the lead detective in the case in which the search was being conducted and was in charge of maintaining the evidence seized in the search, including the handgun.

Defense counsel again objected and moved for a mistrial or to have Detective Terrell’s testimony stricken on the ground that it was not based on personal knowledge. The court overruled the objection, denied the motion for mistrial, and denied the motion to strike. The jury convicted Anderson and McLaughlin, and both were sentenced to two consecutive terms of life in prison.

Anderson appealed to the Court of Special Appeals, which reversed the judgment of the circuit court and remanded the case.

 

LAW: Anderson asserted that the circuit court erred in admitting the evidence of the handgun found in his apartment two weeks after the day that Molina claimed she was raped. Rule 5-616(b) governs the admissibility of extrinsic evidence to impeach a witness by contradiction. Evidence is “extrinsic” when it is proved through another witness, or by an exhibit not acknowledged or authenticated by the witness sought to be contradicted. Lynn McLain, 6 MARYLAND EVIDENCE STATE AND FEDERAL §607:3, at 553 (3d ed. 2013).

The Rule states that extrinsic evidence of prior inconsistent statements may be admitted as provided in Rule 5-613(b). Other extrinsic evidence contradicting a witness’s testimony ordinarily may be admitted only on non-collateral matters, except that, in the court’s discretion, extrinsic evidence may be admitted on collateral matters. Here, the D.C. Police Report and Detective Terrell’s testimony were “extrinsic evidence” that the State was using to impeach Anderson’s testimony by contradiction.

As discussed, Anderson testified, on cross-examination, that there was no handgun in his apartment when he lived there in late 1989 and early 1990. The D.C. Police Report showed that a handgun was present in Anderson’s apartment, as one was recovered by the police in a search of the apartment on January 5, 1990. Detective Terrell’s testimony established the same thing. Thus, the D.C. Police Report and Detective Terrell’s testimony each contradicted Anderson’s testimony.

Rule 5-616(b)(2) is derived largely from the holding in Smith v. State, 273 Md. 152 (1974), which preceded the 1994 adoption of the Maryland Rules of Evidence. The Smith Court noted that a witness, including a party, may be cross-examined on any matter relevant to the issues, and the witness’s credibility is always relevant. Id. at 157. It recognized, however, that there are restrictions upon the extent to which extrinsic evidence may be used to impeach a witness, such evidence generally not being allowed on a collateral or irrelevant matter. Id. The Court also observed that some evidence is irrelevant, even to credibility, and that evidence which is otherwise irrelevant cannot become relevant simply because it is capable of being contradicted, and will thereby impeach the witness. Id. at 158.

The subject matter of the D.C. Police report and Detective Terrell’s testimony was the presence of a handgun in Anderson’s apartment on January 5, 1990. The State had no proof that that handgun was the weapon used against Molina on December 22, 1989, and the prosecutor made clear to the court that the State was not pursuing that theory. Absent any evidence connecting the handgun found in Anderson’s apartment to the handgun used against Molina, the fact that there was a handgun in Anderson’s apartment two weeks after Molina was raped, as the D.C. Police Report and Detective Terrell’s testimony showed, did not have any tendency to make the existence of any fact that was of consequence to the determination of the rape charges more probable or less probable than it would be without the evidence of that fact. Md. Rule 5-401.

Without being relevant to any fact or issue in the case, the evidence had no substantive value and would not have been admissible independently, that is, if Anderson had not testified. The Smith Court made clear that an irrelevant fact that comes into evidence does not become relevant merely because there is extrinsic evidence to contradict it. Given that the D.C. Police Report and Detective Terrell’s testimony concerned a collateral matter, it was necessary to apply the balancing test set forth in Rule 5-403, which states that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

The probative value of the D.C. Police report and Detective Terrell’s testimony establishing that a handgun was found in Anderson’s apartment two weeks after Molina was raped was non-existent. Moreover, even if there was some negligible probative value to the evidence, it was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. The jurors reasonably but incorrectly could have inferred that the search in question was conducted in connection with the present case, and that the handgun that was recovered was the weapon that was used against Molina. Obviously, such an inference would seriously prejudice Anderson. For these reasons, the trial court erred and abused its discretion in admitting the extrinsic evidence in this case.

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

 

COMMENTARY: The court’s ruling with respect to the D.C. Police report was harmless error. The report was not received in evidence at trial, as the prosecutor withdrew it. The court’s ruling admitting Detective Terrell’s testimony, however, was not harmless beyond a reasonable doubt.

 

PRACTICE TIPS: Even in the case of subject matter which may be validly pursued on cross-examination, a witness can be impeached by extrinsic evidence only with regard to material facts and not with respect to facts that are collateral, irrelevant, or immaterial to the issues of the case. The rule preventing impeachment of a witness by extrinsic evidence on a collateral matter is aimed at preventing inconvenience, loss of time, unfair surprise to the witness and confusion of the issues.

 

Family Law

Visitation

 

BOTTOM LINE: Circuit court did not err in applying a “preponderance of the evidence” standard in finding that a non-custodial father had sexually abused his minor daughter and, on that basis, denying him all visitation with his daughter.

 

CASE: Michael D. v. Roseann B., No. 0047, Sept. Term, 2014 (filed Dec. 17, 2014) (Judges KRAUSER, Nazarian & Leahy). RecordFax No. 14-1217-02, 21 pages.

 

FACTS: Michael D. and Roseann B. married in April 2005. Eight months later, on December 13, 2005, their only child, Emily, was born. When Emily was 15 months old, the family moved from Virginia to Annapolis, Maryland, where they lived for the next five years. During that time, Michael was employed by the Federal Bureau of Investigation.

In June 2012, when Emily was six years old, Roseann separated from Michael, and, with Emily, moved to New Jersey, where Roseann’s family lived. Two months later, Roseann filed a complaint in a Maryland circuit court for absolute divorce, seeking sole physical and legal custody of Emily. The complaint specifically requested that Michael be denied “any visitation with the minor child until” he had undergone “intense counseling for his behavioral issues.” Notably, however, the complaint did not allege that Michael had abused Emily in any way.

After Roseann had filed for divorce in the circuit court, she sought, in New Jersey, a temporary restraining order against Michael, alleging that Michael was texting and calling her repeatedly, notwithstanding her requests that he leave her alone. A temporary restraining order was issued by a New Jersey court, directing Michael to have no contact with either Roseann or Emily. Among other things, the consent order specifically prohibited Michael from contacting Roseann with respect to any topic that was not related to Emily. In addition, it granted Michael “temporary supervised parenting time” at a New Jersey courthouse, where he could see Emily on alternate Saturdays “for no more than two hours.”

This supervised visitation began on September 15, 2012, and continued until June 2013. In March 2013, Emily disclosed to her mother, and then to a counselor, that, during her father’s visits with her in the back of the courthouse visitation room, her father would play the “bug game” during which he would touch her inappropriately. Roseann and Emily’s counselor contacted the New Jersey Division of Child Permanency and Protection. Separate investigations by the New Jersey Division and the Maryland Department of Social Services into Emily’s allegations followed. Michael’s supervised visitation continued without interruption.

The New Jersey investigation ultimately found that the allegations were “unfounded,” while the Maryland investigation “ruled out” “neglect” (but did not address sexual abuse). In June 2013, Roseann, after learning that the FBI (Michael’s employer at the time) had issued a “Be On The Lookout” notice for Michael, obtained a New Jersey court order suspending Michael’s supervised visitation with Emily. That “Be On The Lookout” notice was apparently issued in error. Nonetheless, Michael’s visitation with Emily remained suspended.

On July 1, 2013, the circuit court ordered a limited custody evaluation. Terri Harger, a custody evaluator, performed the evaluation. Upon Harger’s subsequent request, the court ordered a full custody evaluation, which was completed by Harger on December 17, 2013. During that evaluation, Emily disclosed for the first time that, during the time she lived in Annapolis, her father had had her touch his penis. In light of these new allegations of sexual abuse, Harger contacted the Maryland Department of Social Services, which launched a new investigation.

As part of the proceeding in the Maryland circuit court, the court conducted an in-chambers interview of Emily. During that interview, Emily described the “bug game” that her father played with her during his supervised visits with her. Emily also stated that when she lived in Annapolis, her father would have her touch his penis. In response to the court’s questioning, Emily disclosed, for apparently the first time, that her father would sometimes insert his penis into her vagina. As a result of Emily’s disclosures during this interview, the court contacted the Department of Social Services, whereupon the Department initiated another investigation.

This third and final investigation was not completed before the proceedings in the circuit court concluded. However, in a motion for reconsideration filed by Michael after the court below rendered its decision, Michael attached a copy of the Department’s report from this investigation. In that report, the Department “ruled out” sexual abuse because, in its words, “Emily did not disclose any new allegations of abuse.” On the final day of the proceedings, the circuit court, applying a “preponderance of the evidence standard,” found, under Family Law Article (“FL”) §9-101, that there were reasonable grounds to believe that Michael had sexually abused Emily. It thereupon awarded custody of Emily to her mother, Roseann B., and denied Michael all right of visitation.

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

 

LAW: Michael contended that the circuit court erred in applying the “preponderance of the evidence” standard in finding that he had sexually abused Emily and then in denying him any visitation. Before imposing that prohibition, he claimed, the court was required to find by “clear and convincing evidence” that he had sexually abused his daughter.

FL §9-101 requires the court, when faced with a history of child abuse or neglect by a party seeking custody or visitation, to give specific attention to the safety and well-being of the child in determining where the child’s best interest lies. In re Adoption No. 12612, 353 Md. 209, 238 (1999). In cases where evidence of abuse or neglect exists, courts are required by FL §9-101 to deny custody or unsupervised visitation unless the court makes a specific finding that there is no likelihood of further child abuse or neglect. In re Mark M., 365 Md. 687, 706 (2001). Thus, FL §9-101 requires that a circuit court, facing allegations of child abuse or neglect in a custody or visitation proceeding, first determine whether it has “reasonable grounds to believe” that the parent seeking custody or visitation has abused or neglected a child. FL §9-101(a).

Upon a finding that reasonable grounds exist to believe that abuse or neglect has occurred, the court must make an additional specific finding as to whether further child abuse or neglect is likely to occur if custody or visitation rights are granted to the parent responsible for the abuse or neglect. FL §9-101(a). If the court finds that it is unable to make that specific finding, it is required to deny custody or visitation rights to the abusive parent, though the court may, but is not required to, approve a supervised visitation arrangement that assures the safety and well-being of the child. FL §9-101(b). The outcome of the present case turned on the meaning of the phrase “reasonable grounds to believe,” as used in FL §9-101, and the burden of proof that locution mandates.

In a previous case similar to the present case, the Court of Appeals considered whether the circuit court’s “finding or determination” that abuse or neglect had likely occurred must be made by at least a preponderance of the evidence. Volodarsky v. Tarachanskaya, 397 Md. 291, 304 (2007). The Court concluded that, in the context of FL §9-101, the “reasonable grounds to believe” language of the statute and the “preponderance of the evidence” standard were not different standards of proof. Id. In fact, the preponderance standard was the correct standard for the circuit court to apply in determining whether there were reasonable grounds to believe that abuse or neglect had occurred. Id. at 308.

The plain language of FL §9-101 clearly states that the same evidentiary standard of proof (that is, the “reasonable grounds to believe” standard) is the appropriate standard whether the court is granting visitation, supervised visitation, or none at all. There is no indication in the statutory language that a burden of proof greater than “reasonable grounds to believe” is required before visitation can be denied. Rather, the statute was written so that “reasonable grounds to believe” that abuse or neglect has occurred would require the court to deny visitation rights. And, as noted by the Court of Appeals, “reasonable grounds to believe” means a “preponderance of the evidence.”

For this reason, the circuit court did not err in applying the “preponderance of the evidence standard in determining that it had “reasonable grounds to believe” that Michael had sexually abused his daughter. Neither did the court abuse its discretion in refusing, on that basis, to grant Michael visitation. Accordingly, the judgment of the circuit court was affirmed.

 

COMMENTARY: Michael contended that the circuit court abused its discretion in not granting him at least supervised visitation with Emily. The circuit court dutifully considered what would be in Emily’s best interests and incorporated, into that determination, its analysis under FL §9-101. Specifically, it found, by a preponderance of the evidence, that Michael had sexually abused Emily, and then stated that it could not find that there was no likelihood that Michael would further abuse or neglect Emily if he was awarded visitation rights.

Upon reviewing the numerous factors as to what would be in Emily’s best interests, the circuit court concluded that it was not in Emily’s best interest to have supervised visitation with Michael, and that Emily’s physical, psychological, and emotional well-being could not be assured if such visitation was allowed. The circuit court found Emily to be a credible witness, a finding that it did not make as to Michael, whose credibility it found lacking. In light of the lower court’s determination of whether visitation with Michael would be in Emily’s best interests, the evidence presented regarding Michael’s abuse of Emily in supervised visitation settings, and the credibility determinations made by that court, it did not abuse its discretion in declining to award Michael supervised visitation with his daughter.

 

PRACTICE TIPS: In all custody and visitation determinations, the best interest of the child is the “overarching consideration.” Thus, while a parent has a fundamental right to raise his or her own child, the best interests of the child may take precedence over the parent’s liberty interest in the course of a custody, visitation, or adoption dispute. Moreover, while, as a general rule, a parent who is not granted custody will be given a right to liberal visitation with his or her child at reasonable times and under reasonable conditions, this right is not absolute, and when the child’s health or welfare is at stake visitation may be restricted or even denied.

 

Real Property

Foreclosure

 

BOTTOM LINE: Circuit court erred in denying plaintiff’s motions to dismiss a foreclosure action filed by trustees who relied on a Notice of Intent to Foreclose issued in an earlier foreclosure action, prior to changes in the notice law; once the first foreclosure action was dismissed, the trustees were obligated to send a new NOI containing the particularized information and documents prescribed by law before filing a second foreclosure action.

 

CASE: Granados v. Nadel, No. 242, Sept. Term, 2013 (filed Dec. 16, 2014) (Judges Kehoe, Arthur & LEAHY). RecordFax No. 14-1216-00, 28 pages.

 

FACTS: In 2009, Ramos Granados defaulted on a construction loan secured by his principal residence. Granados endeavored to participate in loan modification, but after he made several late payments, the lender filed a notice of intent to foreclose (“NOI”). Shortly after filing a foreclosure action, the lender dismissed the case without prejudice.

Almost one year after the NOI was issued, Jeffrey Nadel and Scott Nadel, as Substitute Trustees for the current noteholder, filed a second foreclosure action in the circuit court. The Trustees did not send Granados a new NOI, relying instead on the NOI issued prior to the first foreclosure action, and prior to intervening changes in the statute governing notice requirements for residential foreclosures. During the second foreclosure action Granados filed several motions to dismiss, followed by exceptions to the foreclosure sale, in which he asserted that the Trustees failed to comply with the notice requirements of Maryland Code (1974, 2010 Repl. Vol., 2010 Supp.), Real Property Article (“RP”), §7-105.1 and Maryland Rule 14-205. The circuit court denied the motions and ratified the sale.

Granados appealed to the Court of Special Appeals, which reversed the judgment of the circuit court and remanded with instructions to dismiss the case.

 

LAW: Relevant to this appeal was the requirement in Maryland Rule 14-205(b), which refers to and reproduces parts of RP §7-105.1, that a lender issue an NOI at least 45 days before filing an order to docket the foreclosure. In 2008, upon the recommendation of the Maryland Homeownership Preservation Task Force, the General Assembly added §7-105.1 to alert distressed homeowners to a pending foreclosure action and afford them adequate time to mitigate their loss or present defenses to the foreclosure action. Shepherd v. Burson, 427 Md. 541, 544-46 (2012). Thus, the purpose of RP §7-105.1 is to provide some advance warning of the foreclosure proceedings to the defaulting borrower, the identification of the secured party, and other specified information to allow the borrower to pursue a modification of the loan or other action to forestall foreclosure. Id. at 557.

Before a lender may foreclose on a defaulting borrower, the lender must give a borrower notice of its intent to foreclose upon the secured property. Pursuant to Real Property Article §7-105.1(b)(1), an action to foreclose a mortgage or deed of trust on residential property may not be filed until the later of: (i) 90 days after a default in a condition on which the mortgage or deed of trust provides that a sale may be made; or (ii) 45 days after the notice of intent to foreclose required under subsection (c) of this section is sent. Maryland Rule 14-205(b) duplicates the notice requirement, stating that an action to foreclose a lien on residential property may not be filed until the later of 90 days after a default for which the lien instrument lawfully allows a sale or 45 days after the notice of intent to foreclose required by Real Property Article, §7-105.1(c), together with all items required by that section to accompany the notice, has been sent in the manner required by that section.

At the time the NOI was issued in this case, the NOI was required to contain the following information: (1) the name and telephone number of the secured party, the mortgage servicer, if applicable, and an agent of the secured party who is authorized to modify the terms of the mortgage loan; (2) the name and license number of the Maryland mortgage lender and mortgage originator, if applicable; (3) the amount required to cure the default and reinstate the loan, including all past due payments, penalties, and fees; and (4) any other information that the Commissioner of Financial Regulation requires by regulation. .RP §7-105.1(c) (2003 Rep. Vol., 2008 Supp.). During the 2010 legislative session, the General Assembly substantially changed the content that lenders were required to provide borrowers when sending a notice of intent to foreclose. See House Bill 472, ch. 485 (2010). The General Assembly also mandated expanded mediation opportunities for borrowers. See RP §7-105.1(c)(5).

The 2010 amendment to §7-105.1(c) added subsection (5), requiring the notice of intent to be accompanied by a loss mitigation application. The General Assembly intended the new law to be applied prospectively, and stated that it “may not be applied or interpreted to have any effect on or application to any order to docket or complaint to foreclose on residential property filed before the effective date [July 1, 2010] of this Act.” House Bill 472, ch. 485, §8 (2010). The legislation did not specify whether it was intended to apply prospectively to NOIs.

The Commissioner of Financial Regulation addressed the issue in an advisory notice on May 5, 2010. However, the 2010 Advisory was intended only to address transition issues in connection with legislative changes and maintain the orderly processing of residential foreclosures in Maryland, not to provide that that an NOI delivered on or before July 1, 2010 is perpetually valid. The Commissioner cannot determine the time at which an NOI should be reissued and defers to the Maryland Judiciary to make such determinations on a case-by-case basis.

Under the circumstances of the present case, the Trustees were required to issue a new and updated NOI between the dismissal of the first foreclosure proceeding and the institution of the second that contained all of the information required by §7-105.1. The NOI sent to Granados in March of 2010 and used in the first foreclosure proceeding, which was dismissed, could not properly be used as valid notice for any subsequent foreclosure proceeding. As demonstrated by the legislative history of RP §7-105.1, the amendments apply to “any order to docket or complaint to foreclose on residential property filed” after July 1, 2010.

The Trustees filed their Order to Docket on February 24, 2011, almost a year after the NOI was sent. As discussed by the Commissioner in the 2011 Advisory Notice, the intent of 2010 amendments was to grandfather existing Notices during the transitional period surrounding the July 1, 2010 effective date of the new law. The 2010 Advisory Notice was not meant to confer perpetual validity to Notices issued before the new law went into effect. The Commissioner’s directive on the interpretation of the statute is entitled to some deference. Burson, 427 Md. at 553. However, when a lender institutes a foreclosure action, and then dismisses that action, the lender should issue a new NOI.

Especially here, where the dismissal of the first foreclosure action coincided with legislative changes providing new protections to borrowers, the NOI issued in 2010 was clearly no longer sufficient. The NOI is not a blank check that will allow a lender to initiate a foreclosure proceeding against a borrower at any point in the future. It has a specific function: to give borrowers notice of a potential foreclosure and allow them to pursue remediation of their default. It is contrary to the spirit of the law that the NOI should operate as a document providing notice to a borrower of an impending foreclosure by an uncertain lender at some unpredictable time in the future.

The Trustees asserted that, even if they should have issued a new NOI, the order to docket was a valid substitute because it allowed Granados to receive all the information he would have received from an updated NOI. However, following this argument would obviate the requirement for the NOI. Its purpose is to give borrowers an opportunity for loan modification and communication with the current lender before the initiation of the foreclosure action, that is, before a trustee files an order to docket. As such, this argument was without merit.

Because the court’s error in failing to deny Granados’s motion to dismiss was not harmless, reversal was required. Accordingly, the judgment of the circuit court was reversed and the case remanded with instructions to dismiss.

 

COMMENTARY: The Trustees argued that the circuit court’s error in not requiring the Trustees to issue a new NOI before filing an order to docket did not require reversal because Granados was aware of his loan modification options. In making this argument, the Trustees cited Shepherd v. Burson, a Court of Appeals case interpreting RP §7-105.1 as codified in 2008. In that case, Ms. Shepherd contested a foreclosure action, contending that the failure to identify Freddie Mac as the secured party in the notice of intent to foreclose violated RP §7-105.1(c)(4)(ii)(1)(A), and that this violation warranted dismissal of the foreclosure action pursuant to Maryland Rule 14-207. Shepherd, 427 Md. at 549. The circuit court disagreed, allowed the sale to proceed, and ratified the foreclosure. Id. at 549-550.

On direct appeal, the Court of Appeals held that the NOI was incomplete because it failed to identify one of the secured lenders, but the Court did not reverse the circuit court because it found that that the NOI effectuated the purpose of RP §7-105.1 because the notice contained “details to allow her to seek a loan modification, including the name and phone number of a specific individual.” Id. at 557. The Court held that a failure to disclose every secured party is not necessarily a basis for dismissing a foreclosure action. Id. at 544. The case at bar, however, presented a different factual situation from the one in Shepherd.

Here, the NOI fulfilled its purpose for the original foreclosure action because it gave notice to Granados that foreclosure proceedings were imminent and gave contact information for the loan servicer. However, the NOI did not fulfill its purpose for the second foreclosure proceeding, which was the proceeding at issue here. By the time the Trustees filed their order to docket in the second foreclosure action, the NOI was not just incomplete, it was also inaccurate. It did not name the current secured party or the loan servicer, nor did it contain contact information for someone authorized to perform loan modification as of the time the order to docket was filed. Because the Notice here was incorrect, not merely incomplete, as in Shepherd, the error warranted vacating the sale and remanding to the circuit court for dismissal without prejudice.

 

PRACTICE TIPS: Ordinarily, an appellate court will not decide an issue unless it plainly appears by the record to have been raised in or decided by the trial court. This is true for issues of standing. Thus, when a party raises the issue of standing on appeal, the appellate court need not decide the issue if it was not raised and decided by the circuit court.

 

Torts

Governmental immunity

 

BOTTOM LINE: In plaintiff’s action seeking money damages from police officers for firearms seized during officers’ execution of a warrant, circuit court properly granted police officers’ motion to dismiss on the basis of governmental immunity because plaintiff’s claims were tort actions, police officers were acting in the course of their government duties in seizing the weapons, and plaintiff failed to sufficiently allege that police officers acted with malice.

 

CASE: Bord v. Baltimore County, No. 1154, Sept. Term, 2013 (filed Dec. 17, 2014) (Judges Meredith, Zarnoch & REED (Retired, Specially Assigned)). RecordFax No. 14-1217-04, 40 pages.

 

FACTS: David Bord was a licensed gun collector with an extensive collection of firearms that were fully registered and documented. All weapons were securely stored in safes within his basement of his residence, and a 30mm cannon was stored within his automobile repair shop.

In 2009, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF” Baltimore and Phoenix field offices approached Baltimore County Police Detective Socha and told him that there might be an illegally manufactured machine gun in Bord’s possession.

Based on this information, Det. Socha applied for a search warrant for Bord’s home at 9 Springbriar Lane and his business at 6303 Blair Hill Lane, in Baltimore County. The search warrant was based on a violation of the Maryland Code, Criminal Law Article (“C.L.”) §4-405(a)(1)(iii). On December 8, 2009, while Bord was away, Bord received a phone call from Corporal Anthony Kidwell, who explained that a police team was present at Bord’s residence with a warrant, and that they intended to open the door and drill open Bord’s gun safes. Bord called his adult children, who went to the residence and opened the door and gun safes for the officers. A total of 28 weapons were seized from Bord’s residence, and a 30mm cannon was seized from Bord’s place of business.

In December 2009, Bord met with the Baltimore County Police and an ATF agent, and allowed the officers to examine his paperwork for the firearms, but the police refused to return the firearms at that time. On August 27, 2010, after several unsuccessful attempts to recover his firearms, Bord filed a complaint in the circuit court. The complaint consisted of three counts: (1) demand for return of property; (2) detinue; and (3) trover and conversion against Baltimore County, Det. Socha, and Cpl. Kidwell.

Bord subsequently requested a temporary restraining order, which was granted, followed by a request for preliminary injunction enjoining the defendants from selling, destroying or damaging the property seized from Bord, which was also granted. In November 2010, the State charged Bord for possession of a banned assault pistol, which was placed on the stet docket. Bord was not charged under any federal criminal statutes.

The defendants’ moved to dismiss the complaint. The court granted the motion to dismiss as to the two officers but denied Baltimore County’s motion to dismiss. In that same order, the circuit court granted Bord leave to amend the complaint. Subsequently, Bord filed a motion for summary judgment, which was denied.

On August 10, 2010, Baltimore County released 18 of the 28 firearms to the ATF. The remainder of the firearms were released to the ATF on March 31, 2011, and May 5, 2011. At this point, Baltimore County possessed only the 30mm cannon, which it had returned to Bord as of the March 19, 2013, hearing. Thus, by the date of trial, Baltimore County was no longer in possession of any of Bord’s firearms.

The circuit court conducted a trial on the merits in March 2013. After Bord rested his case, the County made a motion for directed verdict primarily based on governmental immunity. On April 12, 2013, Bord filed a motion to reconsider order of dismissal against the officers, and a motion for leave to amend pleadings. The court denied both motions. At the conclusion of trial, the circuit court granted Baltimore County’s motion for judgment. The court subsequently denied Bord’s motion for a new trial.

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

 

LAW: Bord contended that the circuit court erred in holding that Bord’s causes of action were common-law torts, and that Baltimore County was entitled to government immunity from such actions. Bord argued that a violation of the C.P. §1-203(d) provides a private cause of action for statutory damages. He asserted that the circuit court’s holding effectively immunized all county or local police agencies from having to return property, rendering C.P. §1-203(d)(1) useless.

C.P. §1-203(d) provides, in part, that a circuit court judge shall cause property rightfully taken under a search warrant to be restored to the person from whom it was taken if, at any time, on application to the judge, the judge finds that the property is being wrongfully withheld after there is no further need for retention of the property. The statute further states that the judge may receive an oral motion made in open court at any time making application for the return of seized property if the application for return is based on the ground that the property, although rightfully taken under a search warrant, is being wrongfully withheld after there is no further need for retention of the property. C.P. §1-203(d) does not define the term “restore.”

The standard definition of “resort is “to give back” or “to put or bring back into existence or use” or “to bring back to or put back into a former or original state; RENEW.” WEBSTER’S NEW COLLEGIATE DICTIONARY 987 (1973). Here, this definition was consistent with the return of property. The plain meaning of this definition supported the conclusion that the statute provided only for the return of property. Further, this statute is found in the Article titled “Search Warrants” and section titled “Application or motion for restoration of property.” Thus, this statute clearly created a criminal, and not a civil, remedy for the physical return of property.

Section 1-203(d)(1) directs the circuit court or district court judge to cause property rightfully taken under a search warrant to be restored to the person from whom it was taken if, at any time, on application to the judge, the judge finds that the property is being wrongfully withheld after there is no further need for retention of the property. Subsection (d)(2) directs the court to “return” property rightfully taken under a search warrant upon receiving an oral motion on the ground that the property is being wrongfully withheld after there is no further need for retention of the property. Bord made no application or oral motion to a judge, as required under the statute. Thus, Bord did not follow the proper methods to seek return of his property.

Bord’s contention that §1-203(d)(1) provides for money damages would result in an illogical conclusion in which persons making a claim under subsection (d)(1) would be entitled to collect damages while those claiming under subsection (d)(2) would be entitled only to the return of possession of the property seized. Moreover, nothing in the legislative history of the statute indicated that General Assembly intended to create a private right of action for damages to property resulting from a search and seizure. See Bd. of Educ. of Baltimore Cnty. v. Zimmer-Rubert, 409 Md. 200, 215 (2009). Throughout its legislative history, the statute’s principal focus remained the same: to guide police forces in performing their duties relating to criminal procedure, and not to provide remedies for those claiming police officers violated the statute.

The underlying purpose of subsection (d)(1) of §1-203 is to permit a judge to allow persons to seek the return of their property after the police have executed a search and seizure warrant, rather than to compensate for damages that arise from the execution of a search warrant. See In re Special Investigation No. 228, 54 Md. App. 149, 160 (1983). As a result, Bord’s claims for damages to his firearms were grounded in tort law, not §1-203. Bord demanded the return of property, which is equivalent to a replevin action. See Novak v. State, 195 Md. 56, 64 (1950). Therefore, the circuit court properly found that Bord’s claims were tort actions.

Common law public official immunity applies when the actor is (1) a public official; (2) the tortious conduct occurred in the course of the actor’s performance of discretionary, rather than ministerial acts; and (3) those acts were within the scope of the actor’s official duties. See Houghton v. Forrest, 412 Md. 578, 585 (2010). Policemen are “public officials.” Robinson v. Bd. of Cnty. Comm’rs for Prince George’s Cnty., 262 Md. 342, 346-47 (1971). Given that Cpl. Kidwell and Det. Socha were executing a search warrant, both officers fell within the class of employees who might enjoy common law public official immunity based on being public officials, engaged in the performance of discretionary acts within the scope of their employment. See Houghton, 412 Md. at 585.

Common law public official immunity does not shield a defendant from liability in cases where the official has committed an intentional tort, id., or acted with malice. Robinson, 262 Md. at 348. Bord contended that the circuit court erred in dismissing his claims against Cpl. Kidwell and Det. Socha because there was ample pleading and showing of malice. In fact, however, Bord’s references to the police officer’s statements did not indicate that the officers had acted with “ill will, improper motivation, or evil purpose” when they executed the search and seizure pursuant to the warrant. Shoemaker v. Smith, 353 Md. 143, 161 n. 6 (1999).

The complaint did not allege with clarity and precision facts which made the acts malicious. Penhollow v. Bd. of Comm’rs for Cecil Cnty., 116 Md. App. 265, 294 (1997). Furthermore, the “actual malice” alleged in this case did not come close to the sufficient pleadings of “actual malice” found in other cases. See, e.g., Cox v. Prince George’s Cnty., 296 Md. 162, 164 (1983), superseded by statute C.J.P. §§5-401 to 5-404. Under these circumstances, the absence of “actual malice” and the absence of a “special relationship” between the officers and Bord did not eliminate the officers’ entitlement to governmental immunity, or entitle Bord to a civil cause of action for money damages. And, because the defendants were entitled to governmental immunity, the circuit court did not err in dismissing Bord’s claims against Cpl. Kidwell and Det. Socha.

Accordingly, the judgment of the circuit court was affirmed.

 

COMMENTARY: Because the circuit court correctly granted the motion to dismiss as to the two policer officers on the basis that Bord failed to plead facts of actual malice, the circuit court correctly granted appellee Baltimore County’s motion for judgment. DiPino v. Davis, 354 Md. 18 (1999). Thus, the order granting Baltimore County’s motion for judgment was also affirmed.

 

PRACTICE TIPS: Violation of an injunction or restraining order that is valid and operative is punishable as a contempt of court. The power to punish a violation of an injunction or restraining order rests in the court which granted it. To punish the violation of an injunction, the act complained of must fall squarely within the restraining language of the injunction.

 

Torts

Gross negligence

 

BOTTOM LINE: Despite a state law limiting damages for injuries to pets to $7,500, the trial court properly permitted the plaintiffs’ constitutional tort claims arising from sheriff deputies’ alleged gross negligence in the shooting of plaintiffs’ dog to go to the jury because, based on the evidence, the jury could readily infer that one deputy overreacted to the potential threat, responded with excessive force, and acted with reckless indifference.

 

CASE: Brooks v. Jenkins, No. 1499, Sept. Term, 2012 (filed Dec. 16, 2014) (Judges Berger, NAZARIAN & Eldridge (Retired, Specially Assigned)). RecordFax No. 14-1216-01, 43 pages.

 

FACTS: Frederick County Sheriff deputies Timothy Brooks and Nathan Rector went to the home of Roger and Sandra Jenkins, warrant in hand, to arrest their son. Mr. Jenkins answered the door and sought to cooperate, among other ways by moving the family dogs from the house to an outside kennel. Ultimately, however, Deputy Brooks ended up shooting and wounding the Jenkinses’ chocolate Labrador Retriever, Brandi. When Mr. and Mrs. Jenkins left the house to take Brandi to the vet, the Deputies entered the house and arrested the son.

The Jenkinses filed a complaint in the circuit court seeking damages, on a number of theories, for the Deputies’ wounding of the dog and the officers’ alleged unlawful entry into their home. The counts in the complaint contained overlapping claims alleging both constitutional and common-law causes of action. Following a trial, both the Jenkinses prevailed against both of the Deputies and the jury awarded damages totaling $620,000 (reduced, after remittitur, to $607,500).

The Deputies appealed to the Court of Special Appeals, which affirmed in part and reversed in part the judgment of the circuit court and remanded the case.

 

LAW: Deputy Brooks first argued that the trial court improperly denied his motion for judgment with respect to the Jenkinses’ claim that he violated their constitutional rights and committed a trespass to chattel when he shot Brandi. He argued that the

evidence did not support a finding of gross negligence, and without that finding he was acting within the scope of his employment throughout the event and, therefore, entitled to statutory immunity under the Maryland Tort Claims Act (“MTCA”). See generally Md. Code (1984, 2009 Repl. Vol.), § 12-104(b) of the State Government Article (“SG”). In support of his argument, Brooks cited Boyer v. State, in which the Court of Appeals found insufficient evidence of gross negligence where two individuals died after a police officer pursued a drunk driver who ultimately killed two people. Boyer v. State, 323 Md. 558, 563 (1991).

As Brooks saw the facts, an “aggressive” dog ran toward him and he had “seven to eight seconds” to decide what to do about it. He claimed that his decision to shoot Brandi was so far below the standard in Boyer that as a matter of law, no rational jury could have found him grossly negligent. The MTCA did away with the principle of sovereign immunity in certain circumstances, such that the State assumes liability for intentional torts and constitutional torts as long as they were committed within the scope of state employment and without malice or gross negligence. Lee v. Cline, 384 Md. 245, 256 (2004). If the employee is found, however, to have acted with malice or gross negligence, even though in the course of his employment, the State does not assume liability for his conduct. Courts over time have struggled, however, to articulate a consistent definition of gross negligence.

Adopting language from a non-MTCA setting, the Court of Appeals has stated that in the context of the MTCA, gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Barbre v. Pope, 402 Md. 157, 187 (2007). Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. Id. The challenge lies in translating this principle to different factual settings.

In Boyer, the Court of Appeals held that the plaintiff failed to allege facts supporting gross negligence in the context of the MTCA where the defendant, a state trooper, pursued a suspect at a high rate of speed through a congested area, and the suspect (whom the trooper believed to be intoxicated at the time) crashed into the back of another vehicle and killed two passengers. Boyer, 323 Md. at 578. By contrast, in Barbre, the Court of Appeals held that the plaintiff sufficiently alleged both malice and gross negligence where the officer allegedly ordered him to raise his hands and, despite his compliance and the fact that he was unarmed, approached with his gun drawn and shot him in the neck. Barbre, 402 Md. at 190. Gross negligence without malice lies somewhere in between.

Gross negligence is more akin to reckless conduct, but in the absence of malice, gross negligence is often “more troublesome” to define because of the fine line between allegations of negligence and gross negligence, incorporating a subtle element almost of intentional indifference. Id. It is not sufficient to simply to parrot the word “gross.” A plaintiff must point to specific evidence that raises an inference that the defendant’s actions were improperly motivated. Chinwuba v. Larsen, 142 Md. App. 327, 382 (2002). Because of the “troublesome” factual problem of trying to differentiate between simple and gross negligence, the issue is usually one for the jury, not the court. Holloway-Johnson v. Beall, — Md. App. —, Sept. Term 2012, No. 2338 (filed November 25, 2014), slip op. at 5, 24.

Viewed against this backdrop, the trial court in this case properly denied the motion for judgment so long as the Jenkinses introduced evidence sufficient to permit the jury to infer that Deputy Brooks acted either with the intent to inflict injury or with “utter indifference” to the rights of others. That standard was clearly met here. The jury had before it testimony and videotaped evidence from which it readily could infer that Deputy Brooks acted indifferently to the Jenkinses’ rights in concluding that Brandi posed a threat and that he acted intentionally when he fired his gun at her as he did. While the jury was not required to find gross negligence from these facts, the evidence sufficed to support the jury’s finding that the Deputy overreacted to the potential threat, responded with excessive force, and acted with reckless indifference, and the court was correct to allow the jury to make that decision.

The plaintiffs presented sufficient evidence on which a jury could conclude that Deputy Brooks acted with a conscious disregard of the Jenkinses’ rights when he fired his gun at Brandi, and the court did not err in submitting the issue to the jury. As such, the portion of the judgment of circuit court denying Deputy Brooks’s motion for judgment was affirmed, as were the trial court’s reduction of the award of economic damages for the shooting of Brandi, to one $7,500 award to Mr. and Mrs. Jenkins against Deputy Brooks only, and the jury’s award of $100,000 in non-economic damages each to Mr. and Mrs. Jenkins, also for the shooting of Brandi, against Deputy Brooks only. The Court of Special Appeals reversed the award of $100,000 to each Mr. and Mrs. Jenkins against both Deputy Brooks and Deputy Rector (a total of $400,000) and remanded for the entry of nominal damages on the trespass claim against each.

 

COMMENTARY: Deputies Brooks and Rector appealed the award of damages for common-law and constitutional trespass, arguing that because the jury found no malice or gross negligence in the context of the constitutional trespass claim, they were immune from liability on those claims. A State employee acting within his or her scope of employment and without malice or gross negligence is immune from suit. Here, the jury resolved that threshold mental state in the Deputies’ favor.

The Deputies were correct in asserting that once the jury found that they acted without malice or gross negligence, the MTCA immunized them from personal liability on the Jenkinses’ constitutional claim for entry into the home. Ford v. Baltimore City Sheriff’s Office, 149 Md. App. 107, 120 (2002). With regard to the Jenkinses’ common-law trespass claim, the jury found that the Deputies acted with gross negligence. However, the Jenkinses’ claim failed at the damages phase of the analysis. A plaintiff must establish malice, fraud, or other like motives to recover damages for emotional distress “attendant to property damage. Exxon Mobil Corp. v. Albright, 433 Md. 303, 395 (2013).

The Jenkinses argued that the jury’s gross negligence finding on the common-law trespass claim qualified as an “other like motive” for these purposes. This distinction was important because the jury was asked only to consider “Non-Economic Damages (mental anguish, pain and suffering)” in connection with the trespass claims, and the $100,000 the jury awarded to each plaintiff against each Deputy (a total of $400,000) fell entirely into that category. Since the jury declined to find malice with regard to the trespass, the Jenkinses’ common law damages claim failed altogether unless this “other like motives” concept applied and covered the Deputies’ actions.

However, a preliminary hurdle the Jenkinses never overcame was that they never established any damage to their property or their home in the first place. See Zeigler v. F Street Corp., 248 Md. 223 (1967). Under ordinary circumstances, there can be no recovery for mental anguish suffered by plaintiff in connection with an injury to his property. Id. Only where the act occasioning the injury to the property is inspired by fraud, malice, or like motives is mental suffering is a proper element of damage. Id. A plaintiff must show an intent (i.e., an intent to deceive or an intent to harm), rather than negligence or something “more akin to reckless conduct.” Barbre, 402 Md. at 187.

There was no evidence adduced at trial that the Deputies were motivated by any intent to harm the Jenkinses when they entered the home. To the contrary, the undisputed evidence demonstrated that the Deputies entered and left without causing any damage to the property. Once the jury found that the Deputies acted without malice or gross negligence, the MTCA immunized them from personal liability on the Jenkinses’ constitutional claim for entry into the home. Ford v. Baltimore City Sheriff’s Office, 149 Md. App. 107, 120 (2002). Because there was neither intent nor damage to support the award of $400,000 against the Deputies on the common-law trespass claim, that award was reversed.

 

PRACTICE TIPS: By statute, Maryland caps compensatory damages for the death or injury of a pet to a total of $7,500 in lost economic (not emotional) value and veterinary bills. However, this statute does not cap the non-economic mental anguish damages available in such cases.